by Laurel E. Fletcher
(Editor’s Note: This is the sixth 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.)
Former U.N. High Commissioner for Human Rights Navi Pillay says the Sri Lankan government has made clear it has no serious intention of pursuing accountability for alleged war crimes and crimes against humanity during the country’s civil war that ended in 2009, and that as a result, the U.N. Human Rights Council must act. Successive high commissioners have made increasingly strong statements calling for a comprehensive process of accountability, she said, based on successive U.N. reports outlining what she describes as “credible evidence that the Sri Lankan state itself committed international crimes.”
“It is time for the HRC to make a drastic departure from its customary complacency over the failures of the Sri Lankan government and hold it to account,” Pillay said.
I interviewed the former high commissioner, who served from 2008 to 2014, about the role of her office in addressing the humanitarian crisis in Sri Lanka in the final stages of the war and since that time, and her views on what the council should do at its upcoming session.
The last six months of Sri Lanka’s civil war inflicted mass numbers of civilian casualties and caused international outrage. What was your role as high commissioner in responding to this crisis?
The last six months of Sri Lanka’s civil war in 2009 were played out live on world television screens. We watched the Sri Lankan army shoot to death the alleged leaders of the terrorist group, the Liberation Tigers of Tamil Eelam (LTTE), even as they raised white flags in surrender. We watched extensive aerial bombing of Tamil civilians and destruction of their homes, hospitals, and places of refuge. The onslaught continued well after the capture and killing of the alleged terrorists. We heard the last cries for help from doctors who were treating the injured in hospitals that were being shelled.
International humanitarian law (IHL) protects the lives of civilians in armed conflict. The two firm principles of “distinction” and “proportionality” of the Geneva Conventions and Additional Protocols apply to both governments and non-state actors in all situations of armed conflict. Direct, indiscriminate, and disproportional military attacks violate the principle of proportionality where they exceed the anticipated concrete and direct military advantage. Distinction dictates that parties must distinguish between civilians and combatants.
Sri Lanka informed the international community that it was exercising its sovereign right to contain terrorism inside its territory; and so no international forum — not the U.N. Security Council, not the U.N. General Assembly, nor the Human Rights Council — addressed the situation until June 2, 2009 when, in my capacity as high commissioner for human rights, I placed the matter on the agenda of the Human Rights Council (HRC). I reported serious human rights violations to the HRC, including loss of thousands of civilian lives, rape and sexual violence against women and girls, and forced dislocation of Tamils. The HRC and U.N. bodies have a role in the protection of human rights in crisis situations. I recommended that the council establish an independent international inquiry into grave violations of International Human Rights Law (IHRL) and International Humanitarian Law (IHL).
In the absence of national investigations, international inquiries establish the facts and determine whether there is evidence of the commission of international crimes. Commissions of inquiry established by national and international bodies make critical contributions by providing independent factual accounts of events to inform international action and ensure accountability for serious human rights crimes. If international experts find evidence of crimes, then states have a duty to investigate and prosecute the perpetrators. International accountability mechanisms are considered appropriate when states are unwilling or unable to take action.
The Security Council set up commissions of inquiry in conflicts in former Yugoslavia and Rwanda before setting up the ad hoc international tribunals there, and mandated an inquiry into the Central African Republic. The General Assembly recently established the International, Impartial and Independent Mechanism (IIIM) for the conflict in Syria and the Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) in Iraq. The HRC established numerous international commissions of inquiry, including for Gaza, Syria, DPRK, Eritrea, and Libya, and ordered investigative reports on Sri Lanka and Ukraine.
There have been numerous U.N. reports about the atrocities committed during the conflict. How have you seen these used to advance accountability mechanisms in the case of Sri Lanka?
There have been numerous fact-based reports of atrocities committed during the conflict in Sri Lanka from the U.N., as well as credible reports from international and national NGOs and journalists. The U.N. reports serve as important levers to maintain the issue on the HRC agenda and are persuasive in motivating states to take action to protect against the excesses of the Sri Lankan authorities and to advance accountability mechanisms.
The U.S. ambassador to the HRC at the time, Eileen Chamberlain Donahoe, said that, “In light of the facts that came out in the report (of the U.N. Panel of Experts) the U.S. delegation simply felt compelled to help support a process of transitional justice in Sri Lanka.” The ambassador played an influential role in securing support for the early Sri Lankan resolutions, stating, “We felt that the clear and substantial evidence of war crimes and crimes against humanity committed during the final days of the Sri Lankan civil war simply could not be ignored.”
In 2015, the Sri Lankan government co-sponsored a resolution with the U.N. Human Rights Council that laid out a comprehensive transitional justice framework for the country, including criminal prosecutions with limited international involvement. What is the role of the Office of the High Commissioner for Human Rights (OHCHR) and the council to ensure the government lives up to these kinds of commitments?
Successive high commissioners, including Zeid Ra’ad Al Hussein and the current high commissioner, Michelle Bachelet, together with independent U.N. experts, have made even stronger calls than I did in 2009, calling for a comprehensive process of accountability. All three U.N. reports on Sri Lanka (report of the UNSG’s Panel of Experts, the internal review report and the OISL report) state that there is credible evidence that the Sri Lankan state itself committed international crimes.
All of us drew attention to the failure on the part of the government of Sri Lanka to honor its own obligations and the undertakings it made to the HRC to set up any kind of judicial mechanism to prosecute international crimes, let alone a domestic process. We drew attention to growing authoritarianism, intrusion by the military into civilian activities, attacks on democratic institutions, and persisting violations of the rights of Tamils. We warned of recurrence and pressed for urgent action from the HRC.
What are the trade-offs between domestic versus international accountability mechanisms, and how have these played out in the Sri Lankan context?
The HRC has adopted the course of encouraging Sri Lanka to undertake domestic investigations and reconstruction initiatives. This is in accordance with international law, which places primary responsibility on the state concerned to undertake justice and accountability measures. The international community will only intervene when the state is unwilling or unable to comply. The 2015 HRC resolution was welcomed at the time as an example of comprehensive, domestic transitional justice, with the U.N. playing a supportive role. The resolution received the support of the Sri Lankan government, together with their repeated undertakings to comply in full.
Twelve years on from the end of the war, the Sri Lankan government has failed to make any meaningful progress towards accountability for international crimes, reparation for victims, or accountability for disappearances and land dispossessions. Only a single perpetrator was convicted — in 2015, Army Sergeant Sunil Ratnayake was sentenced for the murder of eight civilians including a 5-year-old child in 2000. Both conviction and sentence were confirmed by the Supreme Court of Sri Lanka in May 2019. Yet the president pardoned Ratnayake, in willful defiance of international law against impunity.
What do you think of the most recent OHCHR report’s recommendation to establish an international investigative mechanism for Sri Lanka to collect evidence for international or foreign prosecutions under principles of universal jurisdiction?
In her recent report, the high commissioner for human rights makes several recommendations to states to exercise collective international action. The HRC, as a subsidiary body of the General Assembly, does not have authority to make a direct request to the Security Council for a referral of the Sri Lanka situation for investigation of international crimes by the International Criminal Court. The report invites individual member states to support such a referral.
The OHCHR report also calls for the exercise of universal jurisdiction by states, and recommends the establishment of an international investigative mechanism, such as the IIIM (the International, Impartial and Independent Mechanism) and UNITAD (the U.N. Investigative Team for Accountability) established by the UNGA for Syria and Iraq. Such a body will ensure the collection and preservation of evidence for future investigations or prosecutions by states under the principle of universal jurisdiction. This is an important step in the preservation of evidence and will enable an ICC prosecution in the event of a Security Council referral, or in the event of the establishment of an international criminal tribunal or for national prosecutions. It is hoped that the threat of universal jurisdiction cases will move the Sri Lankan government to at least prosecute the emblematic cases.
We often talk about the need to end impunity, not just for victims of past crimes, but to improve human rights conditions in the present. To what extent is this what we are seeing in Sri Lanka today?
The high commissioner’s report paints a graphic picture of a rapidly deteriorating human rights situation in Sri Lanka. Whereas previous reports of high commissioners recorded failures of compliance with HRC resolutions by the Sri Lankan government, the current report goes much further in detailing not just failures to act, but active obstruction by the government of any effort to secure justice and accountability. The alarm raised by the high commissioner to dangerous trends such as “exclusionary and majoritarian discourse,” giving rise to the risk of recurrence of grave violations of the past must be heeded.
Such a dire prediction of new violations to come from the failure of accountability for the past crimes was made by Zeid and I when we were in office. It is time for the HRC to make a drastic departure from its customary complacency over the failures of the Sri Lankan government and hold it to account for its non-compliance with HRC resolutions.
The bona fides of the government, in its commitment to establish a domestic judicial process for past crimes, was always in question, but is more so now with Gotabaya Rajapaksa assuming the office of the president. He was the minister of defense and commander of the armed forces during the conflict and is named in various reports as the individual most responsible for mass violations during the final attack in 2009. In my meeting with him in 2012, he proudly laid claim to having ended terrorism in Sri Lanka. His exploits are recorded in a book about him, titled “Gota’s War- The crushing of Tamil Tiger Terrorism in Sri Lanka.” Indeed, the LTTE was responsible for a reign of terror, but now that terrorism has ended, why is “Gota’s war“ continuing to be waged against human rights defenders and democratic institutions? (A copy of the book was gifted personally by Gotabhaya Rajapaksa to a high official in the South African Foreign Ministry, who in turn passed it on to me.)
How should the HRC address Sri Lanka at the upcoming meeting?
As the world watches in awe and respect, the swift action taken by the US Congress to impeach the departing strongman for insurrection and attacks on democratic institutions, lessons can be drawn for the HRC. It should similarly act decisively and accept the recommendations made by the HC for justice and accountability in Sri Lanka, and unequivocally hold the perpetrators of grave human rights violations against the Tamils accountable. “Gota’s war” against terrorism must not be allowed to become a war against the rule of law and International standards of conduct towards defeated peoples.
What do you think the United States can and should be doing at the forthcoming HRC session, since it is not a member of the council?
I referred above to the important lead taken by the U.S. in the adoption of the first resolutions against Sri Lanka in the HRC. Although the U.S. is not a member of the HRC and does not have the right to vote, it has the right to address the council as an observer state. There is a role for the U.S. to continue to press for justice and accountability even though President Trump withdrew from the council. The Biden-Harris administration should seize the opportunity to reinforce its support for justice and accountability and make known to the world its return to values-based leadership.