Between Reconciliation and Prosecution: Sri Lanka Deals With Its Past
September 20, 2015
The United Nations is expected to decide by the end of this month on the establishment of a special court to try those responsible for war crimes in Sri Lanka during that country’s 26-year civil war.
Such a court was recommended in a report published last week by the UN High Commissioner for Human Rights, which concluded that war crimes and crimes against humanity had been committed by both government forces and Tamil Tiger rebels.
The nature of the proposed hybrid court, with representatives of both Sri Lanka and the international community, gives expression to a years-long process: On one hand the demand of western countries for criminal and/or international investigation and, on the other, Sri Lanka’s interest in adopting the model of the South African Truth and Reconciliation Commission.
Over 100,000 civilians were killed during the almost three decades of war between the Sinhalese majority and the Tamil minority, represented by the Tamil Tigers militia. Hundreds of thousands were uprooted from their homes and many others were abducted, raped and tortured.
The conclusion of the war was particularly brutal. The UN found that 40,000 civilians, most of them Tamils, were killed in the last months alone.
Since 2009, when the war ended, the campaign has shuttled between the killing fields of Sri Lanka and Geneva, with the Tamil minority of the island and western countries demanding an international inquiry and the government insisting on an internal investigation based on the South African model, which does not provide for criminal prosecution.
Despite the serious violence of the war, which lasted from 1976 to 2009, the UN has adopted only three resolutions dealing with bringing those responsible to justice – a miniscule number, given the numbers of casualties in the war and in comparison to resolutions adopted against other countries.
The last resolution, adopted in March 2014, was the first to call for “a wide-ranging inquiry into human rights abuses and contraventions of international law, as well as apparent war crimes by the Sri Lankan government and the Tamil Tigers in the last phases of the war.”
A fourth resolution was due to be passed in March this year, but the surprising results of the presidential election in January changed the political map of the island dramatically. A decade of rule by President Mahinda Rajapaksa ended with the election of Maithripala Sirisena, who appointed the pro-Western Ranil Wickremesinghe as prime minister.
Sirisena passed the 19th amendment to the constitution, which essentially reduces the power of the presidency. The Tamils received another gesture towards reconciliation in May, when the sixth anniversary of the defeat of the Tamil Tigers was marked as a memorial day, rather than as a day of victory.
Later, Sirisena called for the curb on loans from China and met with United States Secretary of State John Kerry. Unlike his predecessor, who was vehemently opposed to an international commission of inquiry with the participation of the UN and maintained that the call for such a commission infringed on Sri Lankan sovereignty, Sirisena indicated that the government would cooperate with the UN.
These moves precipitated a change of direction by the UNHCHR, which agreed to postpone publication of its report from March to September.
A U.S. UNHCHR representative said last week that the information in the report is likely to “give a more complete picture of the events of the past,” while the British representative said that his country had supported the postponement of the report’s publication “in the clear understanding that the issue of past crimes and the prosecution of those responsible would be deal with no later than September 2015.”
Tamil politicians utterly rejected the proposal that an internal inquiry be established. A parliamentarian from the opposition National Tamil Union said that “the foreign minister wants us to believe a government which he himself says has had limited success in investigating crimes.
The Tamils quoted the criticism voiced in 2014 by previous UNHCHR commissioner Navanethem Pillay, who said that the previous Sri Lankan government “failed to implement the recommendations” of a previous commission of inquiry established by the government itself.
“It won’t be possible to pay compensation and be done with it,” another Tamil politician said. “We need a real political solution.”
When the report was published this week, UNHCHR Commissioner Zeid Ra’ad al-Hussein said that it “uncovers the appalling level of human rights abuse that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes.”
Al-Hussein said that the judicial infrastructure of the island was not adequately equipped to deal with the violations and would need foreign judges and investigators.
“A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fueled by decades of violations, malpractice and broken promises,” he said.
Al-Hussein recommended the creation of a hybrid special court that integrates judges, prosecutors, lawyers and investigators from around the world, with the participation of Sri Lankan representatives.
Such a court was recommended in a report published last week by the UN High Commissioner for Human Rights, which concluded that war crimes and crimes against humanity had been committed by both government forces and Tamil Tiger rebels.
The nature of the proposed hybrid court, with representatives of both Sri Lanka and the international community, gives expression to a years-long process: On one hand the demand of western countries for criminal and/or international investigation and, on the other, Sri Lanka’s interest in adopting the model of the South African Truth and Reconciliation Commission.
Over 100,000 civilians were killed during the almost three decades of war between the Sinhalese majority and the Tamil minority, represented by the Tamil Tigers militia. Hundreds of thousands were uprooted from their homes and many others were abducted, raped and tortured.
The conclusion of the war was particularly brutal. The UN found that 40,000 civilians, most of them Tamils, were killed in the last months alone.
Since 2009, when the war ended, the campaign has shuttled between the killing fields of Sri Lanka and Geneva, with the Tamil minority of the island and western countries demanding an international inquiry and the government insisting on an internal investigation based on the South African model, which does not provide for criminal prosecution.
Despite the serious violence of the war, which lasted from 1976 to 2009, the UN has adopted only three resolutions dealing with bringing those responsible to justice – a miniscule number, given the numbers of casualties in the war and in comparison to resolutions adopted against other countries.
The last resolution, adopted in March 2014, was the first to call for “a wide-ranging inquiry into human rights abuses and contraventions of international law, as well as apparent war crimes by the Sri Lankan government and the Tamil Tigers in the last phases of the war.”
A fourth resolution was due to be passed in March this year, but the surprising results of the presidential election in January changed the political map of the island dramatically. A decade of rule by President Mahinda Rajapaksa ended with the election of Maithripala Sirisena, who appointed the pro-Western Ranil Wickremesinghe as prime minister.
Sirisena passed the 19th amendment to the constitution, which essentially reduces the power of the presidency. The Tamils received another gesture towards reconciliation in May, when the sixth anniversary of the defeat of the Tamil Tigers was marked as a memorial day, rather than as a day of victory.
Later, Sirisena called for the curb on loans from China and met with United States Secretary of State John Kerry. Unlike his predecessor, who was vehemently opposed to an international commission of inquiry with the participation of the UN and maintained that the call for such a commission infringed on Sri Lankan sovereignty, Sirisena indicated that the government would cooperate with the UN.
These moves precipitated a change of direction by the UNHCHR, which agreed to postpone publication of its report from March to September.
A U.S. UNHCHR representative said last week that the information in the report is likely to “give a more complete picture of the events of the past,” while the British representative said that his country had supported the postponement of the report’s publication “in the clear understanding that the issue of past crimes and the prosecution of those responsible would be deal with no later than September 2015.”
Tamil politicians utterly rejected the proposal that an internal inquiry be established. A parliamentarian from the opposition National Tamil Union said that “the foreign minister wants us to believe a government which he himself says has had limited success in investigating crimes.
The Tamils quoted the criticism voiced in 2014 by previous UNHCHR commissioner Navanethem Pillay, who said that the previous Sri Lankan government “failed to implement the recommendations” of a previous commission of inquiry established by the government itself.
“It won’t be possible to pay compensation and be done with it,” another Tamil politician said. “We need a real political solution.”
When the report was published this week, UNHCHR Commissioner Zeid Ra’ad al-Hussein said that it “uncovers the appalling level of human rights abuse that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes.”
Al-Hussein said that the judicial infrastructure of the island was not adequately equipped to deal with the violations and would need foreign judges and investigators.
“A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fueled by decades of violations, malpractice and broken promises,” he said.
Al-Hussein recommended the creation of a hybrid special court that integrates judges, prosecutors, lawyers and investigators from around the world, with the participation of Sri Lankan representatives.
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