Sri Lankan human rights activists campaigned hard for an independent international commission of inquiry into war crimes during the end of the conflict in 2009. Last month members of the UN Human Rights Council did finally vote to set up an inquiry. To many governments it looks as if the issue of accountability is now being dealt with by the UN and they can put their minds at rest and move on.
That couldn’t be more wrong. The UN inquiry is just the start – not the end – of a long process of justice. It would be disastrous if the world stopped paying attention now. Not least because Sri Lanka and its allies will likely mount a counter move at the next Council session in September to have the inquiry set aside on the grounds that the negative votes (12) and abstentions (12) are more than the positive votes (23).
I have watched this story evolve over many years – from the early months after the war when the UN Human Rights Council congratulated Sri Lanka on its glorious victory over terrorism. Surely this must be one of the Council’s most shameful moments. Now it’s more widely accepted internationally that the Sri Lankan security forces violated practically every law on war in the book, slaughtering tens of thousands of Tamil men, women and children on a ghastly tropical killing beach. When I first started tracking down survivors of the war for a book chronicling their stories, it was like listening to holocaust survivors and all the more shocking because so few knew or cared about the atrocities then.
Five years on journalists, lawyers, the UN, ministers and a few Prime Ministers have understood some of the horror of what happened on those beaches crammed with starving people in 2009. But they’ve yet to appreciate that the war is not really over at all. I’ve met Tamil men and women brutally tortured and raped by the security forces in recent months as part of an ongoing campaign of oppression, ethnic cleansing and extortion that’s largely invisible. The world didn’t act when tens of thousands were killed at the end of the war – and that sent a signal to the perpetrators that they could act with impunity.
The UN inquiry on Sri Lanka will have no punitive powers. Russia and China will surely prevent its findings ever being referred to the International Criminal Court. It is not even a fully-fledged Commission of Inquiry as for North Korea – rather the compromise of a small team working under the office of the High Commissioner for Human Rights in Geneva.
They will not investigate ongoing crimes against humanity. The inquiry will focus on the last years of the war. A five-member team with a budget of $1.4m, (that pushes the Office of the High Commissioner for Human Rights even further into overspend), will investigate a huge and complex issue over just ten months. Initial plans envisage the team only spending seven days in Europe, ten in Asia and ten in North America conducting investigations. Taking just one detailed witness statement in translation can take an investigator weeks and run into hundreds of pages with exhibits. There is talk that the UN wants a fresh team to work on Sri Lanka to avoid allegations of bias or repetition but then how will they capture the learning that’s already there or find the key witnesses who’ve already been identified?
Then there’s the focus of the inquiry. In March 2011 a Panel of Experts advising the UN Secretary-General wrote what is still the definitive legal analysis of the case for war crimes in Sri Lanka. It’s not clear how the new inquiry will move beyond what’s already been done. Many argue it needs to look at command responsibility and name high-level perpetrators who are still serving in the military, government or diplomatic service. That requires not just political boldness but a very detailed knowledge of the events in 2009 and extremely good contacts among those who’ve fled Sri Lanka.
Witness protection is also a huge concern. Experienced investigators say the risks are so high that half the current budget alone could be used to keep secret the identities of those who testify, even if they are safely living abroad. It’s extremely unlikely the team will go to Sri Lanka and if they did it would be impossible to protect witnesses there. There is already disturbing evidence of systematic retribution against family members. Of the 40 cases studied for a report An Unfinished War: torture and sexual violence in Sri Lanka 2009-2014 as many as 9 survivors had experienced siblings or parents being abducted, disappeared or killed after they’d fled the country. Some said their families back home in Sri Lanka had been shown photographs of them in the media or at protest demonstrations in the UK just days after the event had happened. Sri Lankan intelligence is watching even the diaspora communities very closely.
Inside the island there’s a post-resolution crackdown underway. Under the guise of hunting for a rebel who purportedly fired at a policeman called “Gopi”, the authorities have arrested more than sixty people, including ten women, in the north of the island. “Gopi”, now reportedly shot dead, was useful in justifying retaliation against a resurgent rebel threat and for instilling fear.
The sense of resumed threat has been reinforced by the Sri Lankan government’s sudden proscription of hundreds of diaspora Tamil groups and individuals. This gives the impression that all Tamil diaspora politicians are involved in terrorism, failing to distinguish between extreme and moderate groups and even reportedly including some name of individuals who are dead.
The proscription is the death knell for the South African – Swiss sponsored dialogue between the Tamil parties and the government of Sri Lanka. Few had thought that process would lead anywhere but now there can be no doubt. One of the main dialogue partners has proscribed the other – the government outlawed the Global Tamil Forum.
More significantly the proscription makes it illegal for Sri Lankans inside the island to have contact with such groups abroad. Thousands of diaspora Tamils with past associations with these parties will now be too scared to go home. It’s a clear attempt to stop war crimes evidence and information flowing abroad to the inquiry through the diaspora. The Sri Lankan government has already warned that legal action could be taken against those who testify to the UN inquiry on the grounds they are revealing official secrets and committing treason.
In this atmosphere it’s going to be difficult for the UN inquiry to do its job, notwithstanding the huge amount of goodwill from Tamils abroad who desperately want to help it. Just managing those expectations is going to be difficult, let alone convincing Sinhalese inside Sri Lanka that the findings are credible and impartial.
Perhaps most worrying is the rising frustration on the part of Tamils who can see no solution to the problems in Sri Lanka. Though they generally support a UN inquiry, accountability for historical crimes is not enough. An inquiry into the past doesn’t stop the ongoing violations.
It’s increasingly clear that justice, if it is ever to come, will be not be through a UN inquiry alone but probably through prosecutions of individual perpetrators using universal jurisdiction in different countries. That requires political will and years of painstaking research and documentation. (Huffington Post)