The international community must be “tough and supportive” towards Sri Lanka whilst the government continues to undermine “trust and confidence” by rejecting foreign participation in an accountability mechanism, said the former US Ambassador-at-large for Global Criminal Justice Stephen Rapp, in an interview with the Tamil Guardian.
“Progress has been slower than it should have been,” said the former ambassador, as he spoke to the Tamil Guardian in London this week and called for the international community to continue foregrounding public calls for accountability.
“There are serious allegations supported by evidence that could justify indictments to be frank,” he added. “I’m not saying convictions but indictments for serious international crimes. That’s there and that has to be confronted in a process that will clear the air.”
The international community must continue to play an important role in ensuring this process pushes forward he added. Though the Sri Lankan president claimed “cries for a war crimes tribunal have ceased” this week, Mr Rapp insisted that “messages are being delivered”.
Acknowledging that “quiet but firm diplomacy” on justice and accountability has been underway, he stated that nevertheless the international community should be “continuing the message that this is important publically”.
“It doesn’t help their (Sri Lanka’s) ability to work this thing through if the perception is the pressure is off,” he said. “Even in the public sphere it is important to make statements about those expectations… it is an important part of making it happen.”
Though he no longer represents the United States, Mr Rapp asserted that his government remained “very strong about what needs to be done in terms of consultation, in terms of plan and policy for transitional justice”, suggesting that international leverage has paid off in Sri Lanka.
Pointing to the government’s newly announced – and heavily criticised – Office of Missing Persons’ (OMP), he said “there was concern about an original draft that would essentially have barred information gained from that process from any judicial process”.
“And because of, let’s say, concern, about that issue raised within Sri Lanka and from its partners from outside, that was changed to the extent so that it would be possible to share that information”.
That diplomacy is set to play out over the coming weeks in Geneva, as the United Nations Human Rights Council session gets underway, where Mr Rapp expects to hear these public calls for action. Sri Lanka is on the agenda, with the UN Human Rights chief mentioning the island in his opening statement and due to present a report on its implementation of a UN resolution that the government had co-sponsored last year.
Speaking ahead of the session Mr Rapp expressed concern at how Sri Lankan leaders continued to reject foreign participation, despite the move being a crucial part of that resolution.
“Certainly the rejection by the government and statements made by the prime minister that something that they have agreed to in a consensus resolution… it was something that would undermine the trust and confidence in this process that is very important going forward”.
Despite international concern Sri Lankan president Maithripala Sirisena has been unperturbed; reiterating once more this week that his government does not need foreign judges to participate in an accountability mechanism.
Mr Rapp disagrees.
The former ambassador is clear that an international component is vital to unpick the cases of mass atrocities that occurred as the Sri Lankan government offensive reached a peak more than seven years ago, leaving tens of thousands of Tamil civilians killed.
“From the point of view of building trust and expertise among those that are going to do these kind of cases which are more complicated about the laws of armed conflict – what’s proportionate, how this constitutes a crime, what’s not a crime – these are difficult issues,” he said. “So having internationals, can help both capacity and can also give the victims in whatever communities greater confidence that these will be decided independently and not on some political basis.”
Mr Rapp, who was in Britain for the launch of an International Truth and Justice Project report, says that the Sri Lankan government should have already taken several steps to address issues of accountability on its own accord. “I understand there is progress on some issues,” he noted, but states more should have been done.
“I’d like to see them changing legislation to domesticate international criminal law, so that war crimes and crimes against humanity and genocide can be prosecuted in the courts of Sri Lanka or in a hybrid court,” he said. “I’d like to see them establish a special investigative unit, a special prosecuting unit.”
Yasmin Sooka, a former member of the South African Truth Commission and co-author of the UN Panel of Experts report, “wants the special courts set up yesterday,” quipped Mr Rapp. “I would too, to be frank.”
“These are things that should be moved forward on and they can do this now.” Calculating the number of missing Tamils would be a lengthier and more arduous, but nevertheless important task acknowledged the former Ambassador.
“People like the Bishop of Mannar look at census figures at the two relevant districts from October 2008 and look at the number of people that were in Menik Farm and other refugee centres, note that during that time period there was a very tight cage that would have prevented leakage in any direction, suggests that more than something like 120,000 people are missing,” he said. “Various international reports have suggested 40-70,000.”
Those figures are only estimates of those missing, he noted, fearing that many have died “in this horrendous bombardment that occurred”. The bombardment “became more and more and more intense as these so called No Fire Zones became smaller and smaller, and moved further east,” he recalled.
Sri Lanka’s former defence secretary Gotabhaya Rajapaksa told him that the government considered everyone in that area a combatant. “You know basically that men, women and children if they were in those areas were.” “1,000 a day dying in April,” he said. “Then that number, at least according to UN experts, tripling in May and becoming even more intense in the end.”
During a 2014 visit to the island, Mr Rapp visited the site of some of these massacres, including St Anthany’s Ground where the US government stated the January 2009 “killing of hundreds of families by army shelling” took place.
The Sri Lankan government “suggested only 6 or 7,000 people were killed or missing,” he noted. “This is just impossible… We know at the end of the day the numbers won’t add up”.
Yet Sri Lanka still refuses to produce a figure for the number of civilians killed during the military offensive. Indeed, it has blocked other attempts to do so. “When the Tamil parliamentarians locally tried to do that they were stopped,” said Mr Rapp. “When someone tries to do it independently they were stopped.”
“But these are the kind of things that are the best possible way of determining what may have happened.”
When asked about how even acknowledgement of the massacres that took place seems distant, the ambassador agreed that such an act was “extremely important”. “It’s a difficult issue to confront,” he continued.
Mr Rapp would know, having experienced opposition from Sinhala nationalists first hand.
Hundreds of Sinhalese protestors, including Buddhist monks, gathered outside the US Embassy in Colombo during his 2014 visit, with placards depicted the visiting US Ambassador with fangs and blood streaming from his mouth. He was labelled as a “threat to world peace”.
Even if “there were heroic soldiers in the army that fought hard to eliminate a threat”, the Sri Lankan government cannot shy away from the horrors of what happened he said. “It needs to be explained, acknowledged, go through a study in these situations as has happened in other places.”
“That hasn’t been done and of course you have the aspects of this such as the white flag killings and the killings of surrenderees that are murders,” he added. “That needs to be acknowledged as such and investigated and prosecuted.”
“When that kind of truth is revealed, then I think clearly the people will understand that justice is necessary.”
Indeed the lack of such justice shows “an impunity that reigns and people think they can do anything and they can get away with it,” said Mr Rapp.
“Reports that Yasmin Sooka and the group that she leads, the ITJP, point to in terms of these ongoing situations of abductions and sexual slavery and white vans, kidnappings and torture and horrendous acts,” he added.
The ongoing human rights abuses are linked directly to Sri Lanka’s failure to hold perpetrators accountable said the former ambassador. “Even emblematic significant cases against some people – cases that politicians, political leaders, military commanders should be ashamed of – in those kind of cases this hasn’t been done”. “And so people think they can get away with it.”
With Sri Lankan troops pledging to participate in UN peacekeeping missions across the globe, the issue of impunity for human rights abuses may spread beyond the Tamil North-East. Acknowledging how Sri Lankan soldiers in Haiti were expelled for the sexual abuse of minors, the Ambassador bemoaned the lack of action.
“And then those cases get sent back with very strong evidence and the response of the government is “No, no, insufficient, nothing””, he said.
“Obviously that undermines.”
The lack of progress towards justice, alongside the government’s apparent reversal on an accountability mechanism, has left the Tamil victims exacerbated, he acknowledged.
During Friday’s report launch Mr Rapp recalled speaking to Tamil victims during his visit to the North-East. Some tearfully told him how they had nothing to live for.
“In one sense of course I can understand knowing so well the concerns of members of the victimised communities that it seems that the pressure is dissipated when they don’t actually see pressure on the justice front,” he sympathised. “This makes them even less trusting and less hopeful that justice will arrive.”
The former Ambassador appreciated that victims have also campaigned for the charge of genocide to be upheld against the Sri Lankan state, stating “I know there are among the victims when they look at the pattern of conduct they see a suppression of their community”.
However “reaching the standard of genocide is a very hard thing to do” he noted. “No-one should be afraid of that,” he said, though warned there are “very tough international standards that are applied in that area”.
Regardless of the conclusion a court may reach on that charge, the ambassador remained hopeful justice would be achieved. “I do believe, and I consult and discuss on my own behalf with representatives of my government and with my former office,” he said, noting that high level officials from the US State Department’s Global Criminal Justice branch had visited the island recently.
“Pablo de Greiff called in, the Special Rapporteur for transitional justice in the UNHRC special procedures area,” he added. “He’s been here and there. And we are supporting his messaging.”
“It’s actually the people that want to see justice that must have continued demonstrations publically,” he concluded.
“You’ve got to show that the international community cares about this” (Tamil Guardian)