US Can Restore Leadership on Human Rights by Promoting Accountability in Sri Lanka

(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, as installments are published, can be found at the end of the first article, Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session.) 

The United Nations Human Rights Council session starting Feb. 22—the first of President Joe Biden’s term—offers an important opportunity to show that “America is back” on the world stage to uphold universal rights and the rule of law. The administration’s announcement that it plans to re-engage as an observer and the prospect that it will seek election to membership in the council is already a welcome step. U.S. leadership is particularly needed for one of the council’s most prominent agenda items: accountability for gross human rights violations committed in Sri Lanka.

Despite repeated high-level calls to action, the Sri Lankan government has long failed to provide justice for the tens of thousands of victims of mass crimes that both sides committed during the country’s 26-year-long civil war. Sri Lanka has repeatedly resisted U.N. efforts to promote accountability, including by failing to live up to the promises the government made in the landmark unanimous Human Rights Council Resolution 30/1, which called for the establishment of a truth and reconciliation commission, an independent prosecution office, and a special court with national and international judges.

Perversely, those who have evaded justice for atrocities are now running the country, starting with President Gotabaya Rajapaksa. Credible evidence suggests that Rajapaksa is criminally responsible for war crimes and crimes against humanity from his time as defense secretary and a military commander during the civil war.

Yet Rajapaksa has made clear that he will block all efforts for accountability. In 2010, when he was defense secretary in the administration of his brother, Mahinda Rajapaksa, he told the BBC, “I am not allowing any investigations in this country. There is no reason. Nothing wrong happened in this country…. Take it from me…. This is my final word.” Rajapaksa made good on his threat when, as president, he withdrew Sri Lanka from its Resolution 30/1 commitments and instead established a Presidential Commission of Inquiry on Political Victimization to intervene in war crimes investigations, potentially to exonerate war crimes perpetrators while targeting honest investigators for retribution.

In a blistering report issued Jan. 27 that will be debated at the forthcoming Human Rights Council session, High Commissioner for Human Rights Michelle Bachelet notes that Sri Lanka’s “state of denial about the past” has “more deeply entrench[ed] impunity, and exacerbate[ed] victims’ distrust in the system.” She is right to conclude that the government’s failure “has direct impact on the present and the future.”

The Risks of Impunity

The United States must join the international community in making it clear to members of the Rajapaksa regime that they cannot get away with grave human rights abuses. Impunity risks normalizing their behavior, which would be a tragedy for victims of the civil war and a dangerous precedent for people around the world living in countries where violent authoritarianism is on the rise.

The United States previously played an essential role in pressing for accountability in Sri Lanka. Secretary of State Antony Blinken led these efforts as national security advisor to then-Vice President Biden, as shown 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.”

Before it withdrew from the Human Rights Council, the United States advocated for human rights in Sri Lanka as a founding member of the multilateral Friends of Sri Lanka Core Group. This group enabled the building of support for important HRC resolutions in 2012, 2013, and 2014, the last of which established the Office of the High Commissioner for Human Rights’ Official Investigation on Sri Lanka (OISL). Following the publication of the OISL report in August 2015, the United States played a key role in negotiating the transitional justice commitments set forth in unanimous HRC Resolution 30/1.

Even without a voting seat in the Human Rights Council, the United States can build on its past leadership by urging member States to issue a strongly worded resolution based on Bachelet’s recommendations that establishes an independent mechanism to preserve evidence for future accountability processes, akin to those established to confront the situations in Syria and Myanmar.

Further Measures with Allies

The United States should also build on the upcoming Human Rights Council session to take its own measures against Sri Lanka in coordination with allies. The Biden administration should impose sanctions on key officials under the 2016 Magnitsky Act, which authorizes the president to designate foreign persons whom he finds to have committed human rights abuses, freeze their assets, and ban them from entering the United States. These targeted measures could be particularly effective against Sri Lankan officials, many of whom, like Rajapaksa, have close ties to the United States, while avoiding the devastating collateral effects of economy-wide sanctions.

The United States has already imposed sanctions on General Shavendra Silva and his family amid accusations that he ordered extrajudicial killings during the civil war. Other Sri Lankan leaders responsible for grave human rights violations should be next, such as Defense Secretary Kamal Gunaratne and Major General Satyapriya Liyanage, both of whom the U.N. Office of the High Commissioner for Human Rights has implicated in war crimes and crimes against humanity. The Biden administration also should continue to oppose the Sri Lankan military’s participation in U.N. peacekeeping missions.

Sri Lanka offers the first opportunity for Biden to fulfill his pledge to put human rights and multilateralism at the center of U.S. foreign policy. With the HRC session beginning next week, it is time to get to work.

(Editor’s note: Duncan Pickard is part of a team at Debevoise & Plimpton LLP that, together with the Center for Justice and Accountability, has filed a claim against Sri Lanka before the Human Rights Committee over the killing of journalist Lasantha Wickrematunge. This post represents the authors’ views in their personal capacity.)

 IMAGE: Sri Lanka’s President Gotabaya Rajapaksa (C) addresses the nation as Army Chief Shavendra Silva (L), Navy Chief Piyal De Silva (2L), and Airforce Chief Sumangala Dias (R) look on during the Sri Lanka’s 72nd Independence Day celebrations in Colombo on Feb. 4, 2020. (Photo by ISHARA S. KODIKARA/AFP via Getty Images)

 

About the Author(s)

Ambassador Stephen J. Rapp

U.S. Ambassador at Large for Global Criminal Justice, 2009-2015.

Duncan Pickard

Duncan Pickard (@dpickard9)is an Associate at Debevoise & Plimpton LLP.