Change in the international approach to ‘war time atrocities’ augurs well for Sri Lanka
Former President Mahinda Rajapaksa has called on the government to reject the report of the investigation carried out by the Office of the High Commissioner for Human Rights (OHCHR) on the alleged ‘war crimes and serious violation of international humanitarian law and international human rights law’ by the security forces and the LTTE during the war.
What the former president and his loyalists have not explained was the outcome of such a rejection of the report as well as the US initiated resolution on Sri Lanka for which Sri Lanka was a co-sponsor.
The recent history has it that the US or the UNHRC would not back down from their position with such a Sri Lankan negative response to the report or the resolution. Whatever the Sri Lankan response would be, the US and the UNHCR would continue with the procedures of the UN system as well as with their own political agendas, if any, as claimed by many Sri Lankans including the former president,
The Sri Lankan government under former President Mahinda Rajapaksa rejected the first three US sponsored resolutions on Sri Lanka adopted by the UNHRC consecutively from 2012 to 2014 on various grounds, ranging from morality to legality which were not totally unfounded, only to face an ever toughening stance of the international players. The first resolution demanded Sri Lanka to implement the recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC) which had been used then by the Sri Lankan government leaders to show off its commitment in safeguarding human rights. The LLRC recommended domestic inquiries into the alleged human rights violations.
Sri Lankan leaders rejected the resolution claiming that it was prejudicial to the sovereignty of the country, but later responded with a National Action Plan incorporating human rights issues and with a six member army court of inquiry to look into certain allegations mentioned in the LLRC report. They also rejected outright the second resolution in 2013 and the third one last year on the same grounds, but again responded with a presidential commission investigating cases of missing persons. Interestingly, the Missing Persons Commission was appointed after a strong claim was made by the then Defence Secretary, Gotabaya Rajapaksa and the findings of a court of inquiry appointed by the army commander that no person disappeared during the war.
It goes without saying that the former government of President Rajapaksa would not have appointed these courts and commissions had it totally rejected the UNHRC resolutions. It also appointed foreign experts to advice the Missing Persons Commission commonly known as the Paranagama Commission and gave it a second mandate to investigate the civilian deaths that took place during the war. The Sri Lankan authorities earlier maintained that the Sri Lankan security forces followed a ‘zero casualty policy’ in the battle field. However, the confrontational approach apart from these half-hearted actions by the former regime led the US as well as the UNHRC to threaten with an international investigation through the second US resolution. With the confrontation heightening the international investigation was brought in through last year’s resolution.
Since it was a human rights investigation rather than a criminal investigation, as claimed in the human rights high commissioner’s report, the investigators had analysed the evidence they had gathered and given an overall picture of trends in human rights violations. Based on that, High Commissioner Prince Zeid Ra’ad Al Hussein had recommended in his report a ‘special hybrid court’ to investigate specific cases of rights violations.
The analysis was important in that for the first time in an international official report a plethora of atrocities committed by the LTTE during the war had been compiled, to the utter disappointment of Tiger sympathisers around the world who had long demanded an international investigation. Almost every allegation levelled against the security forces except for instances of sexual violence had been levelled against the LTTE as well.
While the security forces were accused of unlawful killings of Tamil politicians, humanitarian workers and journalists,the LTTE has been held responsible for indiscriminate suicide bombings and claymore mine attacks on civilians and for killing Tamil, Sinhalese and Muslim civilians perceived to hold sympathies contrary to that of the terrorist outfit. Both the armed forces and the LTTE have been accused of abductions of people alike while the LTTE, according to the report, have abducted and recruited adults as well as children. The security forces have been implicated in child recruitment by the Karuna group.
Both the security forces and the LTTE have been held responsible for civilian casualties within the ‘no fire zones’. It has to be noted that only the armed forces had thus far been accused for the human carnage that had taken place in Mullivaikkal, exonerating the LTTE that created one of the largest human shields in history. The report charged that the armed forces had targeted civilian facilities such as hospitals in the no fire zones while the LTTE had constructed military fortifications and positioned artillery and other weaponry in close proximity to civilian areas including medical facilities.
Both belligerent parties have been held responsible for restricting movements of humanitarian aid organisations and personnel thereby depriving the people entrapped in the war theatre starved of much needed food and medicines. The human rights high commissioner said that if proven in court, all these acts by both sides may constitute war crimes.
The UNHRC that had been pressing the government on the accountability issue for the past six years has observed in the report: “There must be recognition within the Tamil community, for example, of the destruction and harm inflicted on civilians and communities by the LTTE.” In response, the TNA which had thus far had made references in their occasional statements to atrocities by ‘both sides’ has been specific for the first time in accepting accountability on the part of Tamils.
Welcoming the OHCHR report, the TNA said in a statement: “We also accept and undertake to carry out our responsibility to lead the Tamil people in reflecting on the past, and use this moment as a moment of introspection into our own community’s failures and the unspeakable crimes committed in our name, so as to create an enabling culture and atmosphere in which we could live with dignity and self-respect, as equal citizens of Sri Lanka.”
Amidst these positive developments, the government has four options; an international investigation; a hybrid court; a domestic mechanism and rejection of all as recommended by the former President Rajapaksa. The UNFGG government seems to have chosen the least harmful option, despite diplomatic pitfalls that have to be expected in the future with foreign involvements in the process.