(Editor’s Note: This is the latest in a series on the spotlight placed on allegations of war crimes and other abuses in Sri Lanka during the Feb. 22 to March 23, 2021, session of the United Nations Human Rights Council. The series includes voices from former U.N. officials, international NGOs, human rights litigators, and researchers. Find links to the full series, as installments are published, at the end of the first article, Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session.)  

The issue of accountability and post-war reconciliation in Sri Lanka has been on the agenda of the U.N. Human Rights Council for the past 12 years, with seven resolutions having been passed to date.  And yet the record is one of failure and of signs that the international community has been more prepared to tell itself tales of hope – sometimes on the basis of geopolitical considerations — than to make the difficult decisions required to achieve justice.

The first of the seven resolutions during this time, No. 11/1, was adopted a few days after the end of the war in 2009. It was a complete disaster from the perspective of the victims and survivors. It ended up congratulating the Sri Lankan government for winning a war in which thousands had perished and as evidence mounted that the victory likely had been accomplished via assaults that constituted war crimes and crimes against humanity.

The second and third resolutions, 19/2 in March 2012 and 22/1 in March 2013, pressed Sri Lanka to implement a domestic transitional justice mechanism. The fourth, resolution 25/1 in March 2014, set up an inquiry led by the U.N. Office of the High Commissioner for Human Rights, which reported back in September 2015 that there had been a total failure of domestic accountability mechanisms.

A new thread of hope emerged in October 2015, after the government that won the war was finally defeated electorally the previous January and the new Sri Lankan leadership co-sponsored Human Rights Council resolution 30/1, promising to establish a hybrid court and a truth commission, among other transitional justice mechanisms. The resolution was hailed by Amnesty International as a “turning point for victims looking for justice and accountability” and as an example of how the UNHRC could contribute to domestic initiatives for accountability and justice.

Sri Lanka had co-sponsored the resolution following the election of a National Unity Government (a self-descriptor used by the government to denote that the main two parties, the Sri Lanka Freedom Party and the United National Party, were in coalition along with a few other minor parties) in the January 2015 presidential elections, a development that was later consolidated in the August 2015 parliamentary elections. The new government assumed power promising reconciliation (though not necessarily accountability). The regime change had been hailed as a welcome democratic advancement by the Obama administration. Samantha Power, then U.S. ambassador to the U.N., praised Sri Lanka as “a global champion of human rights.”

Unwarranted Enthusiasm

However, recent developments in Sri Lanka have shown that this clearly was a case of unwarranted enthusiasm. But the basis for that enthusiasm was as thin then as it is now. Indeed, just two years after the 2015 resolution, the council adopted resolution 34/1 in 2017, followed two more years later in 2019 with resolution 40/1, both calling on the Sri Lankan government to implement its obligations under the 2015 measure.

President Maithripala Sirisena, who had dislodged Mahinda Rajapaksa in the January 2015 election, had lost no time in playing down the scope of the 2015 resolution. He would later claim he was not told about the decision to co-sponsor the resolution. Even more concerning was that those in the Sri Lankan administration who did take ownership of the resolution, like Prime Minister Ranil Wickremesinghe and his Foreign Minister Mangala Samaraweera, portrayed it to the Sinhalese Buddhist majority as a foreign policy win for Sri Lanka and as a move that saved the country from further scrutiny and international action.

Hence the “change” in Sri Lanka in 2015 was not necessarily in the direction of greater accountability. Rather, the new regime pitched its engagement with the U.N. Human Rights Council as merely an example of better foreign policy management. Indeed, the Sirisena government ended up appropriating and twisting the language of transitional justice to advance its foreign policy goals. The United States, the United Kingdom, and the European Union, who appreciated the new government’s attempts at distancing itself from China, backed the National Unity Government enthusiastically. It was a clear example of how geopolitical goals and alignments have sadly driven the international response to the atrocities committed.

The National Unity Government did open up some space for civil society, as U.N. High Commissioner for Human Rights Michelle Bachelet noted in her January 2021 report to the Human Rights Council. The Sri Lankan security forces also returned some land in the North and East and released some Tamil political prisoners. The new government also made changes to the constitutional structure that allowed for a relatively more independent appointment process to key institutions like the judiciary and the Human Rights Commission of Sri Lanka.

But these were half-hearted measures. The opening up of civil society space, for example, was not matched with a dismantling of the state’s massive surveillance system, which remained in place and was deployed to track those who would mobilize and protest government action. Particularly for activists in the majority Tamil North and East provinces, threats and intimidation continued, albeit in lesser forms and methods.

As for the UNHRC Resolution 30/1 in 2015, the National Unity Government ultimately reneged on its promise to establish a hybrid court. Sri Lanka’s foreign minister, who had championed transitional justice at the UNHRC in 2015, claimed in March 2017 that the country’s constitution could not allow foreign judges. The truth commission was never established, though the government kept saying that it was in the process of drafting legislation. The other anticipated transitional justice mechanisms, including the Office of Missing Persons (OMP) and the Office of Reparations, either arrived too late or were indelibly flawed. The OMP in particular suffered from official lethargy and disregard. The government allowed some investigations into “emblematic cases,” but was unwilling to see them through. Most of these cases collapsed even before the Sirisena regime lost power in 2019.

The National Unity Government finally cracked in October 2018, when Sirisena switched his support to the Rajapaksas and staged an unconstitutional coup, deposing Prime Minister Ranil Wickremesinghe. Though the Supreme Court restored Wickremesinghe to power, the National Unity Government remained in name only. In November 2019, former wartime Defence Secretary Gotabaya Rajapaksa won the presidential elections. That was followed by his party’s massive win in the parliamentary elections in August 2020, securing a two-thirds majority.

Absence of Incentives for Accountability

A dispassionate reading of the Sirisena government’s failings between 2015 and 2019 is necessary to understand why regime change alone cannot cure Sri Lanka’s impunity problem. The primary reason domestic options for accountability are unlikely to work is that, irrespective of party affiliation, neither of the two main parties that represent the Sinhalese Buddhist majority have a domestic, internal, democratic incentive to implement a genuine agenda for accountability. An absolute majority of Sinhalese Buddhists hold the view that the war had to be won at any cost to protect Sri Lanka as a unified political system founded on values that provided for a centralized system of government and one which gave Buddhism the foremost place in the governance of the country. This deeply held political value system is not something that can be turned around by running a few workshops and seminars on transitional justice, as some donors believed.

With the return of the Rajapaksas to power, the international community must see that purely domestic options will not work. Bachelet concluded very strongly in her January 2021 report that Sri Lanka, despite being given multiple chances to engage in genuine transitional justice, is both “unwilling and unable” to deliver on accountability. But this is the conclusion that her predecessor, High Commissioner Prince Zeid Ra’ad Zeid Al Hussein, had already arrived at in September 2015. Zeid had noted that there had been a “total failure of domestic mechanisms.”

Nonetheless, the international community was blinded by what it thought was regime change. And so in 2021, we are repeating the conclusions arrived at in 2015.

What options remain now? While accountability for its own sake is a goal worth pursuing for the sake of ensuring such violations don’t recur, international action on Sri Lanka must also help improve the lives of the Tamils who live under renewed militarization and oppression. It has been suggested that a new resolution during this 46th session of the Human Rights Council should establish an evidence-gathering mechanism, similar to the one dedicated to Syria and Myanmar. But without a clear plan of the judicial process to which such a mechanism would contribute, this would result in just another placeholder mechanism with no impact on the current government.

Joint Letter from Tamils and Civil Society

In a joint letter released in January 2021, Tamil political parties and civil society groups collectively demanded a U.N. Security Council (UNSC) referral of Sri Lanka to the International Criminal Court. The signatories include the Tamil National Alliance, which had previously backed Resolution 30/1 and spent valuable political capital working with the National Unity Government towards its implementation. Tamils are painfully aware that the likelihood of a UNSC referral is slim, but the demand needs to be understood as an unequivocal expression of the lack of faith in any domestic means of seeking justice.

Moreover, the civil society letter should not be read as an act of faith in the international legal system. The demand, in fact, carries a subtle but important underlying challenge to the system: It exposes the hypocrisy of the international legal structures that failed to prevent the atrocities, that collaborated in the commission of the atrocities, and that repeatedly promised and repeatedly denied justice in the aftermath of those atrocities.

The limitations of the UNHRC in dealing with crimes committed during war (as distinct from dealing with ongoing human rights violations) need to be understood. There must be better coordination between the U.N.’s work in Sri Lanka, in Geneva –- home to the human rights bodies, and in New York, home to the Security Council. The Sri Lankan experience is instructive of how different agencies of the U.N. work at cross purposes. The U.N. in Sri Lanka acts as if the conclusions of the OHCHR do not matter to its work. For instance, it currently is collaborating with the Rajapaksa regime on how to bring the country’s counterterrorism legislation in line with international human rights standards, an issue in which the Sri Lankan government has no genuine interest whatsoever. There must be serious reflection on the need for a common strategy across the different U.N. agencies with regard to engagement with Sri Lanka.

The manner in which the perpetrators of the worst crimes of the war in Sri Lanka have evaded accountability is a textbook example of the failings of the international criminal legal system. The Sri Lankan experience must trigger an honest debate on the inherent limits of the human rights system in preventing ongoing violations and dealing with historical atrocities. The Sri Lankan experience, if not for anything else, calls for a complete rethink.

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