Sri Lanka’s War Crimes Controversy

army sri lankaEarlier this month, the UN’s Office of the High Commissioner for Human Rights released its long-awaited investigation into alleged crimes during Sri Lanka’s civil war. The conflict, which began in 1983 and lasted nearly three decades, pitted the Sri Lankan government against various ethnic Tamil rebels, most prominent the Liberation Tigers of Tamil Eelam, which were fighting for the creation of a separate state in the country’s north and east.

The 272-page report makes for grim reading. Focusing on alleged abuses committed by both sides between 2002 and 2011, it documents numerous crimes, including unlawful killings and sexual violence, especially at the hands of the military during the last phase of the war in 2009, under the administration of President Mahinda Rajapaksa.

The report contains few factual surprises, after years of drip-by-drip accounts of atrocities from journalists and human rights groups, and a previous United Nations investigation in 2011. But it is arresting for the disconnect between the seriousness of the abuses it documents and the mildness of its recommendations.

The report offers a slew of proposals better designed for strengthening human rights protection in the future than for prosecuting past atrocities. Its most salient proposal is a call to try suspected criminals before a hybrid special court with both international and Sri Lankan prosecutors and judges — but the idea is a nonstarter, as its proponents well know.

This outcome is a political compromise. The Western states that clamored for the U.N. investigation, especially the United States and some European countries, will push for accountability in Sri Lanka today only so far as doing so will not weaken the country’s fledgling pro-Western government. They will not force the administration of President Maithripala Sirisena, who defeated Mr. Rajapaksa in elections earlier this year, to take actions that the Sinhalese majority cannot tolerate, or that look like the government is turning its back on the armed forces and inviting foreign meddling.

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The Ohchr report was ordered by a 2014 resolution from the U.N.’s Human Rights Council, after Mr. Rajapaksa’s government spent several years stalling on conducting a comprehensive probe of its own. His government also refused to cooperate with the U.N. team, never even allowing it into the country. But investigators managed to collect substantial evidence through affidavits and interviews with witnesses and secondary sources.

The report states that “thousands, and likely tens of thousands” of civilians died, mostly as a result of indiscriminate government shelling and bombardment. While the LTTE forcibly recruited adults and children and used civilians as buffers, according to the U.N. investigation, government forces systematically committed grave abuses, especially in early 2009 after they cornered the LTTE in a small pocket of coastal land in Mullaitivu district. The report found evidence or “reasonable grounds to believe” that the army shelled hospitals and facilities where civilians were sheltering, that government troops raped Tamil women and that LTTE leaders who surrendered were then executed.

The report does not implicate the country’s new leaders. Mr. Sirisena served as minister of agriculture and minister of health under Mr. Rajapaksa and had no direct role; Prime Minister Ranil Wickremesinghe initiated the peace process in 2002. It is Mr. Rajapaksa, his brother the former defense secretary Gotabaya Rajapaksa, and the former army chief Sarath Fonseka who have the most to fear.

Yet there seems to be little appetite among Sinhalese, who make up three-quarters of the population, to investigate even their culpability. Although Mr. Rajapaksa was voted out of office this year, largely because of perceived corruption, nepotism and an increasingly autocratic style, he is widely credited with having ended the war. And in a 2014 poll by the Center for Policy Alternatives, a Sri Lankan NGO, 35 percent of Sinhalese respondents said the government had already done a lot to address the root causes of the ethnic conflict, compared with 3 percent who said it had done nothing.

Of the Tamils surveyed, however, 40 percent said the Rajapaksa government had done nothing, compared with 2 percent who said it had done a lot. As though responding to these divisions in public opinion, the Ohchr report provides little to bring to justice the main suspects — mostly field commanders, in addition to the former defense secretary and the former army chief. Instead, its recommendations are geared toward mitigation and prevention.

Proposed measures include returning private land seized by the army, ending the harassment of human rights defenders, passing legislation criminalizing war crimes and enforced disappearances, establishing a witness-protection program, developing a national reparations policy and providing psychosocial support for victims — mostly policies the Sirisena government could pursue without risking a major public backlash.

Whether to create a court, and what kind, to try alleged perpetrators would be a different matter. In March, the Center for Policy Alternatives conducted a poll asking respondents whether there should be a credible mechanism to look into what happened during the last stage of the war. Only 32 percent of Sinhalese said yes (while 44 percent said no), compared with 84 percent of Tamils who said yes (with only 9 percent saying no). Opinions were also divided over whether any such process should be domestic or international or a combination.

The Ohchr report’s central recommendation to set up a hybrid tribunal was thus the most controversial — which may be why almost as soon as it was made, its backers signaled their willingness to endorse something less. On Friday, the United States and Britain, among other Western states, joined Sri Lanka in proposing a draft resolution that will be presented for a vote at the Human Rights Council later this week. Instead of a hybrid court, the document endorses the Sri Lankan government’s idea to create a domestic “judicial mechanism with a special counsel,” with the participation of Commonwealth and other foreign judges, prosecutors and defense lawyers. These Western states appear to be going along with the Sirisena government on the strength of its promise to conduct a credible domestic investigation — even though its predecessor failed to do so and the country’s legal system seems to lack the capacity to address wartime abuses effectively.

But after years of obstruction under Mr. Rajapaksa, this watered-down proposal is the most tangible expression yet of the Sri Lankan government’s willingness to cooperate with the international community in reckoning with the war. And if Sri Lanka’s new leaders reject the hybrid special court, they may be in a stronger position to sell the Ohchr report’s other recommendations to the Sinhalese population. This would be some measure of progress — perhaps more on strengthening Sri Lanka’s human rights regime in the future than on accountability for past crimes, but it would be progress nonetheless. (New York Times)

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