History reveals that the state of SriLanka has a poor record in delivering justice to its minorities. With this being the status quo, in September 24, 2015, the UNHRC in Geneva passed a resolution with reference to war crimes to put in place a domestic mechanism to bring to truth, justice, and reconciliation. This resolution was passed after the release of the OISL report which accused the Liberation Tigers of Tamil Eelam (LTTE) – a militant separatist organization, the Sri Lankan security forces, and the other militant organizations for committing grave human rights violations during the last phase of the civil war that ended on May, 2009.
Today, the most important question is that does Sri Lankan state (or the dominant Sinhalese Buddhist majority) have the political will to bring out truth and deliver justice to its Tamil minorities on war crimes and crimes against humanity?
Sri Lanka had established 32 commissions to inquire various issues such as arbitrary executions and disappearances. The outcomes of most of these commissions have been debatable. For example, the state did not publish the findings of most of these commis- sions, the perpetrators continue to avail impunity from the justice sys- tem, and the interference of the Ex- ecutive within the Judiciary has been consistent.
With this history, on September 24, 2015, a resolution was passed by the UNHCR in Geneva. This resolution was passed with the support of the recently elected Sri Lankan government and was aimed to initiate a domestic inquiry process (with the involvement of the experts from the Commonwealth countries) to bring accountability and evolve political solution.
This resolution was passed based on the findings of the Office of High Commission for Human Rights Inves- tigation on Sri Lanka (OISL) report. The report accuses the Liberation Tigers of Tamil Eelam (LTTE) – a mil- itant separatist organization, the Sri Lankan security forces, and the other militant organizations for committing grave human rights violations during the last phase of civil war. It highlights the systemic nature of the crimes committed by the Sri Lankan security forces with sheer.
For the international community, the human rights defenders, and the Tamil minorities, it took six long years after the end of the militant struggle to bring the state of Sri Lanka on a table to discuss accountability and political solution for the Tamils.
End of war
The last phase of war created 282,000 Internally Displaced People (IDPs) and at one juncture, this entire Tamil population was caged inside a camp named Manik Farm. Ban Ki-moon, the UN Secretary-General had stated that condition of this camp was worse than anything he’d seen in Goma and Darfur. Rape and disappearance were rampant.
The international communities had no wish to watch or hear the crisis of the Tamils. They sulkily accepted the discourse of the Sri Lankan state, Zero Civilian Casualties, although they know it was a blatant lie. A leaked embassy cable stated that in the last phase of the carnage, about 7,000 to
17,000 Tamils went missing or presumably dead. The estimate of the UN varies between 40,000 to 70,000 people. From the side of the victims, a Tamil Catholic Bishop estimates the death toll as 146,678 people. He arrived at this figure based on a population statistics. The state did not care to enumerate the deaths. However, it challenges the figures put forward by various sources.
The Channel 4 disclosures
The Channel 4 documentary, The Killing Fields of Sri Lanka, shook the world by disclosing the scenes of the final weeks of the militant struggle. The Tamil civilians were caught in between the LTTE and the security forces. Few civilians were killed by the LTTE to prevent them from moving out of war zone. The LTTE believed that they could bargain with the international community for ceasefire by showing the presence of civilian population but the reality turned the opposite. A vast majority of Tamil civilians were killed by the Sri Lankan forces through their indiscriminate shelling.
Many international countries and human rights defenders alleged that both the LTTE and the Sri Lankan forces have committed war crimes. In continuation, an internal report pre- pared by the UN accepted that it had failed in its mandate of protecting the civilians in the final months of war. Continuous international pressure made the President, Rajapaksa, to establish an internal inquiry com- mission, the Lessons Learnt and Rec- onciliation Commission (LLRC), in May 2010. The Sri Lankan state used this commission as the trump card to stonewall international investi- gations. The outcomes of this report were not to an acceptable interna- tional standard.
On March 27, 2014, the U.S. spon- sored resolution against Sri Lanka was tabled in the UN session in Geneva. It called for an international investigation into alleged war crimes in the final stage of the island’s civil war which ended in 2009.
Change of guard
The Presidential election of 2015 was a watershed moment in the history of Sri Lanka. Maithripala Sirisena, a SLFP parliamentarian, defected from his party with his supporters and stood as a common opposition candidate challenging his former leader Mahinda Rajapakse. The latter was defeated with the support of the Tamil and the Muslim minorities. There are reports that Chandrika Kumaratunga, the for- mer President of Sri Lanka, played a major role in convincing Sirisena to contest against Rajapakse. It is believed that Sirisena had help from not just opposition politicians such as Ranil Wickremesinghe but also from India and the U.S. The reason for this involvement was Rajapakse’s pro-Chinese policies.
In continuation, the new regime worked diligently convincing the international community that they would work towards accountability and justice mechanism. There have been some visible changes in the ground such as the passage of the 19th amendment to limit the power of the executive Presidency, civilian governors for Northern and Eastern provinces, and freedom of press. In reciprocation and with the request from Sirisena, the UNHRC deferred the release of its international investigation report by six months to set the domestic political arena in order.
In an interesting twist to the tale, Mahinda Rajapakse has been given a new life in politics and nominated as the candidate of the UPFA (United People’s Freedom Alliance) in the general election of Sri Lanka on August, 2015. The election result clearly divulged the aspirations of the people. The island was divided into three zones, the UNP took the hill and the wet zones of the central region, the Tamil National Alliance (TNA) took the northern region, and the SLFP took the bot- tom and the dry zones. The UNP won the race by a narrow margin and the mission to bring back Mahinda [Rajapakse] faced a setback not a complete defeat.
Before the UN resolution on 2015
The U.S. has started constructing the narrative of progress in Sri Lanka since the visit of the U.S. Secretary of State, John Kerry, to Sri Lanka in May, 2015. In continuation, the U.S. Assistant Secretary of State, Nisha Biswal, made her visit to Sri Lanka in August, 2015, and promised that they would support the Sri Lankan Government’s position for a credible domestic ac- countability mechanism.
The release of the OISL report made the world know the gravity of the suf- ferings that the Tamils have endured during the last phase of armed con- flict. Some of the crucial allegations in the report were that the Sri Lank- an security forces have executed surrendered LTTE members unlawfully; there were arbitrary arrests and detentions by the security forces which often resulted in disappearance; sexual
violence, rape, and torture were perpetuated as methods of warfare by the security forces; the LTTE was
involved in abduction and forced recruitment of children and adults.
It should be highlighted here that before tabling the resolution, there was marathon horse-trading between the high profile officials of Sri Lanka and the international power centers. At the end, Colombo was able to obtain some leverages, the totem of hybrid court was removed and was replaced by a Sri Lankan ‘Judicial Mechanism with a Special Counsel’ that would encompass ‘Commonwealth and other foreign judges defence lawyers and authorized prosecutors and investigators’.
The propaganda of the regime has been that the mechanism will be purely domestic. The regime speaks
one language in the international arena and another within Sri Lanka. At the other side of the spectrum,
the right wing Sinhalese nationalists poke the present regime as a stooge of the America since it supported the passage of a resolution on war crimes and crimes against humanity.
The road never travelled before
The regime had proposed for a fourtiered structure for accountability mechanism. They are as follows: a
Commission for Truth, Justice and Reconciliation, to be established in consultation with South Africa; an Office of Missing Persons, set up by statute and in line with ‘internationally-accepted standards’; what he termed a ‘Judicial Mechanism with a Special Counsel’; and an ‘Office of Reparations.
In a recent interview, Chandrika Kumaratunga, the former President and the head of the reconciliation unit, have stated that the war crimes court would start functioning from end of December, 2015, or at the latest by early January, 2016 and that the judicial mechanism would be domestic and international experts may only give technical assistance; and only line of command will be tested before the court and not individual soldiers.
One side, the state of Sri Lanka talks about justice mechanism and reconciliation with Tamils. However, on the other side, the Northern and the Eastern provinces continue to be under heavy militarization even after six years of civil war. In Mullaitivu, there is a military base in every ten minutes of journey. If we look at the budget of Sri Lanka, still a large chunk of budget is been spent on defence sector. Iron- ically, the Sri Lankan security forces have also started involving in numerous business ventures in the Tamil homelands such as parks, shopping arcades and cricket stadiums to hotels, restaurants, a veterinary clinic, a beauty salon and even a cruise ship. This move removes clearer demarcation between civil and defence spaces and increases surveillance.
Since independence, Sri Lankan majority has been following the footsteps of the Israel in colonizing the lands of the minority communities. For example, a recent report reveals that about 11,710 acres of private lands [are] still under the control of Sri Lankan security forces in the Northern provinces.
Over 200 Tamil political prisoners went on a hunger strike in the beginning of November, 2015. Tamils believe that there are at least 300 Tamil political prisoners across Sri Lanka and they are arrested under the Prevention of Terrorism Act. Though the court had granted bail to 32 prisoners, recently, the bail condition was lopsided. The Human Rights Commission of Sri Lankan, lately, called the Attorney General and asked the state to release of those held in de- tention or remand for a long period of time without charges and against whom there is no credible evidence. Further, it asked the Attorney General
to look into and review the cases that are solely based on confessions made to police officers, cases where there is no credible evidence exist and for cases which are relatively minor.
( Prabhakar Jayaprakash, Phd. Student at TISS, Mumbai )