(Editor’s Note: This is the ninth article of 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. The full list 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.)
Though Sri Lanka’s armed conflict ended in 2009, the entrenched impunity for the deaths of tens of thousands of Tamil civilians in what the United Nations called a “bloodbath” has kept the conflict on the Human Rights Council’s agenda ever since. The prospects for accountability reflect inevitably on the credibility of the Council and the U.N. itself, after a 2012 internal review of the U.N.’s actions – or, more accurately, inaction – in the final stages of the war and the aftermath found “systemic failure … to the detriment of hundreds of thousands of civilians and in contradiction with the principles and responsibilities of the UN.”
Another damning report just last month from the Office of the High Commissioner for Human Rights (OHCHR) will be debated at the upcoming session. The report tracks Sri Lanka’s current, deteriorating human rights situation, identifying developments that “risk the recurrence of… the grave violations of the past.”
Yet a draft resolution released today by the Human Rights Council’s Core Group on Sri Lanka contains serious shortcomings (more on that below). Impunity for Sri Lanka’s past crimes has very real consequences, even beyond the preservation of international rule of law. Its consequences are lived daily by Tamil survivors, who continue to live in a heavily militarized security state – Mullaitivu, the most war-ravaged district, for example, has one soldier for every two civilians. Tamil families of the disappeared also suffer the unimaginable, endless trauma of not knowing the fates of their children, spouses, or siblings.
Tamil Demands for Justice
Tens of thousands of Tamils began a march through the streets of Sri Lanka on Feb. 3, demanding justice and accountability for Sri Lanka’s war crimes, crimes against humanity, and genocide. They were joined by Muslim communities, many of whom were also protesting Sri Lanka’s forced cremations policy that infringes on their religious practices, even though health experts say it isn’t necessary to prevent the spread of the coronavirus. Protesters marched for five days, from Pottuvil in the East to Polikandi in the North (over 250 miles), covering all eight districts of the traditional Tamil homeland. From the state, they were met with surveillance, harassment, and threats, as well as court orders attempting to quash the peaceful march.
These protests were unprecedented in two key ways: in size and scale in the post-war period, and in the solidarity it reflected across Tamil and Muslim communities. However, protests for justice and accountability for mass atrocities against Tamils are nothing new on the island.
Tamil families of the disappeared have protested for years — most incredibly with continuous protests since 2017 — demanding answers about the fates of their loved ones, many of whom were taken by the Sri Lankan government in 2009, just before the war ended, and have not been seen since.
Such resistance and resilience is ingrained in Tamil history in post-independence Sri Lanka. Indeed, my own father protested in the 1970s against Sri Lanka’s structural discrimination, which privileged Sinhalese people in education and employment over Tamil and Muslim peoples. Unsurprisingly, Tamils’ earlier protests were also met with state violence.
Despite this, Tamils continue to mobilize against virulent Sinhalese Buddhist nationalism that permeates every aspect of governance in Sri Lanka — from making Sinhala the only official language in 1956 to the unabashed Sinhalese nationalism of the current president, Gotabaya Rajapaksa, who was sworn in November 2019 at the Buddhist temple where an ancient Sinhalese king defeated a Tamil king and brought the island under one (Sinhalese) rule.
This reflects the fundamental nature of the Sri Lankan state: it is designed around — and to advance — Sinhalese Buddhist values and ideology, at the expense of non-Sinhalese communities, particularly Tamils. President Rajapaksa himself — a reported U.S. citizen — is implicated in war crimes, including the atrocities of 2009, when he served as secretary of defense. This was a key factor in the landslide victory Sinhalese voters awarded him in 2019 — he is nicknamed “The Terminator” and widely regarded as a hero of Sinhalese Buddhist nationalism, precisely because of his role in the brutal end to Sri Lanka’s armed conflict.
Despite decades of Tamil protests and unequivocal calls for international action to end impunity in Sri Lanka, the Human Rights Council has continued to heed Sri Lanka’s requests for “time and space” to address allegations of international crimes with a homegrown solution.
Domestic Institutions Will Fail – They are Designed To
Unfortunately, Sri Lanka’s homegrown solution is impunity. Decades of “make believe” domestic commissions, as Amnesty International called them, ostensibly tasked with investigating the state’s crimes against Tamils, have only bought time to evade justice. The farce of Sri Lanka’s domestic commissions and judicial processes is well-known and well-documented.
The OHCHR, for instance, has tracked the investigation and prosecution of emblematic cases such as the execution of five Tamil students by the Special Task Force (STF) in Trincomalee in 2006. The STF officers who murdered these students, just steps away from their parents, were acquitted in 2019 due to what the magistrate called a “lack of evidence.” So well-known was the STF’s role in the killings that Basil Rajapaksa, the brother and adviser of then-president Mahinda and current president Gotabaya, said, “We know the STF did it, but the bullet and gun evidence shows that they did not. They must have separate guns when they want to kill someone.”
A few years earlier, in 2016, an all-Sinhalese jury acquitted six Sri Lankan soldiers who reportedly shouted “Demala kattiya maranuwa” (“Death to the Tamils”) when they went on a rampage and massacred 26 Tamil civilians in Kumarapuram in 1996. An in-depth report on the case and its handling in Sri Lanka’s judicial system, produced by People for Equality and Relief in Lanka (PEARL), a Tamil advocacy organization where I serve as executive director, analyzed systemic barriers that contributed to the acquittals. These barriers included improper investigation and evidentiary issues, such as the police claiming that all physical evidence of the killings was lost, though the statements of two soldiers who died before the case went to trial were miraculously preserved. The case was also transferred from an ethnically-mixed region to a predominantly Sinhalese region — reportedly requested and granted to avoid trial by a Tamil judge.
Further, the long delays and mishandling of the case reflected the fundamental lack of political will to address state atrocities against Tamils. Lastly, victims, witnesses, and others involved in the case faced decades-long intimidation and harassment by security forces. Indeed, last week was the 25th anniversary of the killings, and villagers in Kumarapuram who attempted to commemorate this date were again met with intimidation and harassment by Sri Lankan soldiers. Given that the case spanned over two decades and over three different regimes, it exemplifies Sri Lanka’s systemic and structural barriers to justice, regardless of who is in power. PEARL’s report concluded that Sri Lanka is completely unwilling to prosecute atrocity crimes perpetrated against Tamils.
The exception that proves this rule is Staff Sergeant Sunil Ratnayake, the only one of five defendants to be convicted in 2015 for the murder of eight Tamil civilians, including four children in Mirusuvil in April 2000. He was granted a Presidential pardon in March 2020. The OHCHR report condemned this move, noting that pardons must comply with “international obligations under human rights and international humanitarian law, and should exclude those responsible for international crimes or gross violations of human rights.”
Indeed, the latest OHCHR report notes: “Despite investigations over the years by domestic Commissions of Inquiry and the police, and the arrest of some suspects and trials at bar, not a single emblematic case has been brought to a successful conclusion or conviction.”
In an almost-Orwellian move, Sri Lanka appointed yet another Commission of Inquiry in January to investigate the findings of prior commissions. The U.N. High Commissioner for Human Rights was understandably skeptical of this development, stating she was “not convinced the appointment of yet another Commission of Inquiry will advance this agenda”.
Decisive International Action Needed Now to Prevent Recurrence
The recent protests shine a spotlight not only on the need for justice and accountability for Sri Lanka’s past mass atrocities, but also on current human rights violations related to militarization, land grabs, attacks against journalists and human rights defenders, obstruction of memorialization, and arbitrary and indefinite detention and torture of political prisoners. Both the mass atrocities and ongoing abuses disproportionately affect Tamil-speaking peoples. Of note, a key demand of Muslim communities in the most recent protests was to end the forced cremation of COVID-19 victims.
In response to escalating international pressure, including from the United States, the prime minister on Feb. 11 told parliament that authorities would allow burials, but the government quickly backed away from that statement the following day. Nevertheless, this issue and the government’s clearly-ambivalent response demonstrates that international pressure, deployed strategically, plays a significant role in Sri Lanka’s calculations of which human rights violations it can get away with — and which require redress.
Meanwhile, as the January OHCHR report noted, the institutionalized impunity for Sri Lanka’s mass atrocities puts Sri Lanka on an “alarming path towards recurrence of grave human rights violations.” This is even more apparent after Sri Lanka’s public security minister said the government is preparing to file cases against the tens of thousands of protesters who participated in the march earlier this month. Concerningly, yet unsurprisingly to Tamils, he also reportedly said Tamil political leaders who participated should have been attacked or tear gassed.
The U.N. Human Rights Council’s Core Group on Sri Lanka today released a draft resolution, which mandates the OHCHR to “consolidate, analyse and preserve information and evidence” of violations of international law in Sri Lanka. Such a limited mandate – and tasking the OHCHR with it – falls far short of the independent investigative mechanism established by the U.N. General Assembly for Syria. The investigative mechanism established for Syria is explicitly mandated with preparing files to facilitate independent criminal proceedings. This more robust mandate better ensures that the investigation is focused on ensuring accountability. The OHCHR has already collected and analyzed a significant amount of evidence during its work on the OHCHR Investigation on Sri Lanka – there is no need to duplicate that process again now. Any investigative mechanism created through the upcoming Human Rights Council session should also be explicitly mandated with investigating genocide, as Tamils have long demanded.
The draft resolution also fails to acknowledge the need for an international accountability process on Sri Lanka – though it does task OHCHR with developing “possible strategies for future accountability processes.” The resolution should urge member states to support proceedings against Sri Lanka in appropriate international fora, such as at the International Criminal Court through a U.N. Security Council referral or an Article 15 preliminary examination by the Office of the Prosecutor; through bilateral or multilateral action at the International Court of Justice; or by establishing an international ad hoc tribunal for Sri Lanka.
The draft resolution asks the OHCHR to report back on options for advancing accountability at the 51st session of the Human Rights Council, which will be held in September 2022. Eighteen months is far too long to wait, especially given the deteriorating human rights situation in Sri Lanka. The OHCHR should provide this report back at its September session this year.
Member states also should be encouraged to work with Tamil civil society to leverage opportunities for justice in these international accountability processes and in member state’s own national courts under principles of universal jurisdiction. Indeed, engaging and accounting for the perspectives of Tamils in Sri Lanka, where safe, and in the diaspora is absolutely essential to delivering meaningful, victim-centric accountability.
These options should be pursued simultaneously, not in the alternative. The credibility of the Human Rights Council — and indeed the entire U.N. system, given its “grave failure” in the past, as the 2012 inquiry concluded — depends on achieving accountability for Sri Lanka’s atrocities.
Impunity in Sri Lanka also begets impunity elsewhere — including in Sri Lanka’s comrade-at-arms in militant Buddhism, Myanmar. Myanmar and Sri Lanka both seek to establish a “pure” Buddhist state (i.e., one without the Rohingya and Tamils) — militant monks in both countries reportedly have a signed pact.
Decisive international interventions on Sri Lanka’s mass atrocities are necessary at the Human Rights Council and elsewhere, to protect and promote international human rights and humanitarian law. As importantly, Tamil lives depend on it, too.