When War Criminals Run the Government: Not Too Late for the International Community to Vet Sri Lankan Officials

(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 February 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 United Nations Human Rights Council’s deliberations over yet another resolution on Sri Lanka this month has cast renewed attention on repeated failures to achieve any semblance of accountability for past atrocities, and on the deteriorating human rights situation over the past year following the return to power of accused war criminal Gotabaya Rajapaksa as president. The lack of accountability and concerns about future violations have rightfully received the bulk of the attention. But there is another question worth bringing to the fore – namely, how did an alleged war criminal return to power – and relatedly, should the human rights system have done more to prevent such individuals from taking official power again?

These inquiries are centered around the legal concepts known as “vetting” and “lustration,” and they deserve increased attention. It is not just the election of Rajapaksa. Since his return to power, after having served as the defense minister who commanded the violent final phase of the country’s decades-long war that killed countless civilians, he has appointed a slew of other compromised individuals who face “credible allegations” of international crimes, including war crimes and crimes against humanity.

Rajapaksa, for example, immediately appointed his brother, former wartime President Mahinda Rajapaksa, as prime minister, and named other relatives and family associates to top cabinet positions. The large number of individuals with credible allegations against them who now occupy top positions in the government raises concerns about militarization of the government. It also all but eliminates any chance that those who suffered violations will obtain justice in the near term for the crimes committed against them.

The appointments involve so many high-level positions that they have even been described by Yasmin Sooka from the International Truth and Justice Project (ITJP) as “amount[ing] to a coup by stealth.” And had efforts to vet or ban alleged war criminals from public service been robustly in place, Sri Lanka would likely look very different today.

Key Concepts in Vetting

Vetting and lustration have taken many forms in transitioning societies around the world, including through the “denazification” process of Germany following World War II but also in post-communist Eastern Europe and in Libya, Egypt, and Iraq. While there is no agreement on the precise legal definitions of vetting and lustration (also known as “screening” or “administrative justice”) and the terms are often used interchangeably, for our purposes, a few key concepts are critical.

First, these processes are aimed at removing, barring, and/or screening out individuals from public service who have been implicated in certain activities, such as human rights violations or international crimes, that would undermine the integrity and professionalism of the public institutions. The U.N., for example, has recognized the importance of vetting “to screen out individuals associated with past abuses” in societies transitioning from periods of mass conflict or human rights violations.

Second, in addition to restoring faith in government institutions, these processes aim to address the needs of survivors. As Martha Minow has observed, “The continued presence and exercise of power by people who participated in the regime of atrocity ironically provides both constant reminders and routinized forgetting of what happened.”

Finally, balanced against the needs of survivors are due process concerns of the accused. Lustration, which stems from the idea of “purification,” has at times been associated with purges that screen, bar, or remove entire categories of individuals, groups, or institutions from public office. Blanket or “wholesale purges,” however, may run the risk of infringing on the rights of the accused if the net is cast too broadly and indiscriminately. Vetting has become an umbrella term in the field to distinguish from such blanket purges while seeking to screen individuals and simultaneously ensure procedural safeguards are in place.

The 2015 U.N. Human Rights Council Resolution 30/1, which intended to give Sri Lanka the opportunity to dispense justice itself, identified the importance of incorporating “the vetting of public employees and officials” as part of a “comprehensive approach to dealing with the past.” While the need to establish rigorous vetting systems has been discussed, as noted in the most recent report from the Office of the High Commissioner for Human Rights (OHCHR), Sri Lanka has failed to implement such measures.

What Vetting Might Look Like Now

So, how might the vetting have played out regarding Sri Lanka, and what might be possible now or going forward? Several elements are in play: 1) determining whether disqualifying acts, such as atrocities, had taken place, 2) identifying the alleged perpetrators, and 3) addressing procedural concerns, including due process, who decides, and what standards should apply.

On the threshold question of whether there were acts that would be considered disqualifying, there can be little doubt. The acts in question have been repeatedly described by authoritative official bodies as war crimes and crimes against humanity. In the final months of the island’s 26-year-long civil war alone, hundreds of thousands of Tamil civilians were caught in the fighting in 2009 as the government launched its final offensive against the Liberation Tigers of Tamil Eelam (LTTE). During this period, civilians were trapped in so-called “No Fire Zones,” where they were regularly subjected to artillery fire and indiscriminate shelling by the government. There was repeated bombing of makeshift hospitals set up to treat the wounded and dying, along with attacks on food distribution points; making matters worse, the government also imposed severe restrictions on humanitarian assistance, including food and proper medical supplies, that led to extreme suffering. Conservative estimates state that as many as 40,000 civilians were killed during this time period. Given the gravity of the violations and abuses, it seems straightforward to classify the acts as disqualifying.

On the second question – who are the alleged perpetrators? – the answer is: the very people now in power. While there is strong evidence that both sides of the conflict are responsible for committing grave human rights violations during the long war, the current vetting concern is with government forces implicated in abuses who have now taken on official posts. The U.N. High Commissioner for Human Rights Michele Bachelet recently said that since 2020, “at least 28 serving or former military and intelligence personnel [have been appointed] to key administrative posts.” ITJP has documented that in the absence of vetting, “loyal military officers exert control over the COVID response, the police, the intelligence services, the prisons, foreign policy, airports, sea ports, customs, utilities, agriculture, fisheries, land development, wildlife protection, and last but not least, the Bribery Commission.”

The third question is whether there are sufficient procedural safeguards for the accused to justify some level of screening. As a starting point, whatever vetting process is developed, it cannot be designed by the alleged abusers or a domestic process that they control. Independent review is required, and given the failure of domestic efforts, there is a need for international involvement. Next, a “reasonable ground to believe” standard of proof drawn from the practice of U.N. fact-finding bodies, including ones for Sri Lanka, could be used. U.N. investigations, including those concluded in 2011 and 2015, have indeed used this approach and found prima facie evidence of international crimes and other gross violations of human rights perpetrated by the Sri Lankan military. Other independent reports and numerous dossiers in the public record reinforce these findings. Even the previously established domestic Paranagama Commission, which has been soundly criticized for its pro-government tilt, found in 2015 that there were “credible allegations, which if proved to the required standard, may show that some members of the armed forces committed acts during the final phase of the war that amounted to war crimes giving rise to individual criminal complicity.”

Perpetrators in Power Reinforces Need

In this context, such prima facie evidence should suffice to result in vetting that would screen, bar, or remove individuals alleged to have committed atrocities. The government of Sri Lanka has argued that accusations of international crimes committed by military “war heroes” are “false and unsubstantiated allegations” that have not been proven in a court of law. For the vetting purposes, the insistence on criminal convictions in Sri Lanka is misplaced. Strikingly, all indications are that the current government is intent on obstructing investigations and prosecutions rather than allowing independent bodies to pursue final adjudication. The fact that the alleged perpetrators are the ones making the decisions to delay adjudication is only further evidence of the need for vetting by independent actors.

There is precedent – albeit limited in the Sri Lankan context – for vetting and international action despite the lack of criminal convictions. In October 2018, after a vetting process, the U.N. demanded the immediate repatriation of the commander of Sri Lanka’s contingent to the peacekeeping force in Mali, Lt. Col. Kalana Amunupure, based on the emergence of credible evidence that implicated him in the commission of war crimes in the final phases of active conflict. And the absence of vetting can also have consequences: the U.N. suspended an entire contingent of Sri Lankan peacekeepers after the Sri Lankan Army had attempted to deploy them to Lebanon without the proper human rights vetting.

Furthermore, while not directly framed as a vetting process, there are relevant parallels between vetting and sanctions. Several of the recent Rajapaksa government appointments have drawn condemnation by numerous civil society and human rights organizations, countries, and international bodies including the European Union and the OHCHR. In February 2020, for example, following the appointment of General Shavendra Silva as commander of the Sri Lankan Army, the United States took the additional step of “blacklisting” the official for “gross violations of human rights” due to the credible accusations of war crimes and crimes against humanity committed in 2009.

All this is to say that, with a domestic screening process now out of the question, there is a crucial role for international actors to play when it comes to vetting. Some may question the value of vetting right now when there is no clear immediate power to enforce screening in Sri Lanka. But there is power in naming specific individuals. While the international community could have had a “vetted” list in place long ago, it is still possible for the U.N. and human rights system to create one now. As the vetting of the U.N. peacekeeping forces shows, vetting can and has been done in the past despite domestic unwillingness.

Instead of waiting, the international community should create a robust vetting system now, with the screening process undertaken by international bodies to compile the names of those implicated in prima facie human rights violations. If such a vetting had been in place previously, it would have identified most if not all of the individuals now taking on government positions. That would have made the “stealth” nature of the power grab more difficult as it would have been clear to all that alleged perpetrators (from an independently vetted list) were taking power once again. And just as importantly, developing such a list of individuals now would still signal to survivors that there is at least some measure of recognition of the atrocities they have suffered.

IMAGE: Sri Lanka’s President Gotabaya Rajapaksa (2R) and Prime Minister Mahinda Rajapaksa (2L) leave after the new cabinet swearing-in ceremony at the Buddhist Temple of the Tooth in the ancient hill capital of Kandy, some 116 km from Colombo on August 12, 2020. Gotabaya Rajapaksa retained the powerful defense portfolio and gave other key jobs to his close family in a 26-member cabinet. (Photo by LAKRUWAN WANNIARACHCHI/AFP via Getty Images)

 

About the Author(s)

Sondra Anton

Sondra Anton (@sondra_anton) is is a JD candidate at Harvard Law School (HLS), and a student attorney in the International Human Rights Clinic at HLS.

Tyler Giannini

Tyler Giannini is Clinical Professor at Harvard Law School (HLS) and Co-Director of its International Human Rights Clinic.