The Human Rights Council Must Establish an Accountability Mechanism for Sri Lanka’s Victims

(Editor’s Note: This is the latest in a series on the likely spotlight to be placed on allegations of war crimes and other abuses in Sri Lanka during the next session of the United Nations Human Rights Council, beginning Feb. 22. The series includes voices from former U.N. officials, international NGOs, human rights litigators, and researchers. Links to the full series will appear, as installments are published, at the end of the first article, Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session.)

For Sri Lanka’s victims, the upcoming Human Rights Council (HRC) session offers what could be their last opportunity for justice. The council should exercise its power to establish a mechanism that builds on prior U.N. efforts to investigate atrocity crimes committed during Sri Lanka’s armed conflict and collects and preserves evidence to support international and foreign prosecutions.

The Sri Lankan government, all too aware of this prospect, seeks to remove any threat to President Gotabaya Rajapaksa’s efforts to shield perpetrators from ever facing justice. Last year, the government announced its withdrawal from its commitments made under the current HRC resolution, which included creating domestic accountability measures with some international involvement. Under renewed international pressure, the Rajapaksa government said it would consider agreeing to a new consensus resolution with significantly weaker conditions. This proposal for a consensus resolution, however appealing to some diplomats, should be dismissed as a cynical attempt to evade any international oversight. The HRC must stand up for international rule of law and pass a resolution that establishes an international accountability mechanism capable of delivering justice to victims. The council’s record shows that it has done as much in numerous other cases, and that members historically have taken such action.

The council and the Office of the High Commissioner for Human Rights (OHCHR) had some success cooperating with the previous Sri Lankan government. However, the HRC should not defer to the current government’s assurances that it will institute accountability of its own accord and without international involvement.

In 2015, the OHCHR released a report of a special investigation in Sri Lanka (OISL). This investigation found reasonable grounds to conclude that both parties to the conflict—the government and the Liberation Tigers of Tamil Eelam (LTTE)—committed gross violations of human rights, serious breaches of humanitarian law, and international crimes during the last several years of hostilities (2002 to 2009). While there is no verified number of casualties for the 26-year conflict, a 2012 U.N. Internal Review Panel report cites reliable estimates of civilian casualties to be between 40,000 and 70,000 during the last phase of the war. These deaths are mostly attributed to the government’s campaign of indiscriminate shelling and bombing of LTTE-controlled areas from January to May 2009, including in government-declared “no-fire zones,” where hundreds of thousands of civilians had fled for safety.

The scale and severity of the violations are staggering, and they are evidence of what the OISL investigation called “system crimes”—meaning the international crimes committed were the result of state policy. The president at the time was Mahinda Rajapaksa, who now serves as prime minister. His brother, Gotabaya Rajapaksa, then-Secretary of Defense and current president, oversaw the final campaign against the LTTE.

A month after the OISL report release, the HRC and a newly elected government of Sri Lanka co-sponsored HRC resolution 30/1, which established the framework for a comprehensive set of transitional justice mechanisms, including criminal prosecutions. Maithripala Sirisena, who was president from 2015-2019, ran on a platform of addressing corruption and re-establishing the rule of law, accepting the need for at least limited accountability for war atrocities. The resolution largely entrusted the government to implement its commitments to justice and reparations for victims. The council deferred to the reformist Sirisena government, which contrasted favorably to the Rajapaksa regime. The latter, the resolution declared, oversaw “the absence of a credible national process of accountability.”

The Sirisena government fulfilled some its commitments under resolution 30/1, including creating an Office on Missing Persons as well as a reparations scheme. However, even these initiatives disappointed most survivors and their families. Ultimately, the government also rejected the special court that would have had international assistance and was meant to investigate and prosecute international crimes.

Aggressive Steps to Undermine Commitments

Unfortunately, the HRC today faces another Rajapaksa regime. Gotabaya Rajapaksa was elected president in 2019 on a strongly nationalistic platform, vowing to protect military “war heroes” from prosecution. During his time in office, Gotabaya Rajapaksa has taken aggressive steps to undermine the commitments embodied in the 2015 resolution, and signaled the government has no intent to curb impunity. The president demoted and arrested senior police officials tasked with investigating civil war-era killings and abductions, and pardoned one of the few soldiers ever convicted of killing civilians during the conflict.

Rajapaksa’s indifference to ending impunity is further demonstrated in his appointments of high-level government officials who also have been implicated in conflict atrocities. Among these officials is Shavendra Silva, President Rajapaksa’s army chief, who is banned from entering the United States pursuant to Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act. This sanction required “credible information” that he was involved in “significant corruption,” including “gross violations of human rights.”

The Sri Lankan government’s proffer to create a weak commission to review the work of the previous commission of inquiry should be dismissed as a transparent effort to stave off efforts by the core group of states to pass a new resolution. A new resolution should include real accountability measures as called for by U.N. High Commissioner Michelle Bachelet in her report last month, which warned that “the failure of Sri Lanka to address past violations has significantly heightened the risk of human rights violations being repeated.”

The council, a multilateral governance body, is the “heart of the UN human rights system.” It generally prefers to work cooperatively with states to strengthen human rights protection. However, it is mandated to address situations of gross violations, and the council has repeatedly created human rights mechanisms by vote instead of consensus when warranted. Recognizing the council’s special role, the European Union called upon the HRC, in the case of Myanmar, to act upon its “responsibility” to create a special mechanism that would ensure a credible process of accountability for victims.

In the past 10 years alone, faced with mass human rights violations, the HRC has passed resolutions to establish a variety of accountability mechanisms over the protest of the country concerned in Burundi (2015), Eritrea (2014), Myanmar (2018), North Korea (2013), Syria (2011), and Venezuela (2019). These mechanisms range from fact-finding missions to commissions of inquiry engaged in in-depth investigations to mechanisms established to collect and disseminate evidence for criminal prosecutions. The HRC overwhelmingly voted (35 to 3, with 7 abstentions) to create the Independent Investigative Mechanism for Myanmar (IIMM), which prepares case files to prosecute international crimes committed against the Rohingya population, including crimes against humanity and genocide.

The Need for Support from the West and the Global South

The political reality is that in order to pass a resolution with a strong accountability mechanism, support from European and other western states is necessary. But to receive a sufficient number of votes, resolutions must have support from the Global South.

Our recent study of voting patterns found that countries that make up the three regional groups of the Global South, and which collectively account for a supermajority of votes (34 of 47), have supported accountability measures over the objections of the state in question. They have done so for the same reasons as states in the West: the recognition of a universal value to answer mass violence with justice. As the delegate from Uruguay noted in a December 2015 debate over establishing a mechanism for Burundi, it was the responsibility of the international community to protect the Burundian population. The U.K. argued that the Commission of Inquiry in Burundi was the “minimum that the victims deserve.” Germany (speaking for the European Union) agreed, since “the gravity and persistence of systematic violence against Burundian civil society actors” had been met with an “absence of meaningful progress.”

The creation of successive fact-finding and investigative mechanisms in both Burundi and Myanmar were supported not only by the core group of countries directing the resolution draft for Sri Lanka—Canada, Germany, Montenegro, North Macedonia, and the U.K.—but also by regional leaders such as Argentina, Brazil, Japan, Mexico, Sierra Leone, South Korea, and Uruguay, which spoke up in favor of accountability.

As the recent military coup in Myanmar suggests, an international accountability mechanism does not guarantee the general human rights situation in the country will improve. Transitional justice requires addressing structural causes of violence and their legacies—and international interventions are only ever part of the solution. However, international accountability mechanisms maintain a measure of international engagement in the country at issue and signal to victims that the community of nations has not forgotten them.

The human rights situation in Sri Lanka is deteriorating and the lack of accountability for past crimes contributes to the rise in violations today. Under President Sirisena, the targeting, harassment, arrests, torture, and enforced disappearances of Sri Lankan civil society actors, including human rights defenders and journalists, persisted on a diminished scale despite the end of the civil war. The government did undertake investigations of some political killings and abductions. Yet even those modest human rights gains have been lost.

The recent OHCHR report documents the alarming trends in repression of human rights defenders, government machinations to undermine democratic checks on executive power, and interference by officials in prosecutions of high-profile human rights cases. At President Rajapaksa’s urging, his parliamentary coalition recently approved a new constitutional amendment that grants the president sole and unrestricted discretion to appoint and dismiss judges of the superior court, elections officials, and corruption investigation commissions, among other powers.

The Seeds of Future Conflict

The signs are clear: there will be no meaningful progress on accountability if the Sri Lankan government is left on its own. Indeed, the lack of accountability sows the seeds of future conflict. This explains why Bachelet recommends states consider referring the situation in Sri Lanka to the International Criminal Court for investigation. She also recommends the council double down on its commitment to promoting criminal prosecutions by creating a mechanism to gather and preserve evidence for prosecutions, and support victims and member states to pursue cases in domestic courts through principles of universal jurisdiction. The council should heed Bachelet’s call and pass a strong resolution that this moment requires.

Although the United States currently is not a member of the HRC, Secretary of State Antony Blinken this week announced the new administration’s intent to reengage the council. The U.S. can advance that initiative by signaling its support for justice and accountability that Sri Lanka’s victims demand and deserve. As Blinken said in a 2010 speech at the U.S. Holocaust Memorial Museum, “We have been reminded that there can be no peace without justice…. In Sri Lanka, we know all too well the crimes committed by the Tamil Tigers… but also the thousands and probably tens of thousands of civilians killed in the final months of the war. Holding accountable those responsible is necessary… and it will speed national reconciliation.” [emphasis added]

Victims in Sri Lanka have waited long enough for truth, justice, and reparations. The record is abundantly clear that Sri Lanka’s domestic mechanisms have lacked effectiveness and credibility. This is the justice gap that the United Nations uniquely can fill. The HRC must step up to this challenge and create a new accountability mandate for Sri Lanka. Anything less, including a weak consensus resolution, is code for silence and complicity in a new era of impunity. Victims everywhere deserve better.

IMAGE: Government supporters hold cutouts of portraits of Sri Lanka’s then-President Mahinda Rajapaksa and then-Defense Secretary (current President) Gotabaya Rajapaksa during a march outside the U.N. office in Colombo on March 15, 2012. The demonstrators denounced a US-led move to censure Sri lanka at the ongoing UN Human Rights Council sessions in Geneva over its alleged war crimes while crushing Tamil rebels in 2009. (Photo by LAKRUWAN WANNIARACHCHI/AFP via Getty Images)

 

About the Author(s)

Laurel E. Fletcher

Laurel E. Fletcher (@LaurelEFletcher) is Clinical Professor of Law at UC Berkeley, School of Law where she co-directs the International Human Rights Law Clinic and the Miller Institute for Global Challenges and the Law.

Ashleigh Lussenden

Ashleigh Lussenden (@alussenden) is a JD student, Class of 2021, at Berkeley Law and a fellow at The Miller Institute for Global Challenges and the Law.

Blaire Lee-Nakayama

Blaire Lee-Nakayama (@BlaireLN) is a JD student at Berkeley Law, Class of 2022, and former Case Manager and Project Director for the International Refugee Assistance Project (IRAP).

Helena von Nagy

Helena von Nagy (@hvonnagy), is a J.D. student at University of California, Berkeley, School of Law, Class of 2022, and Berkeley Human Rights Center Scholar.