Source: http://ictj.org

By David Tolbert

The allegations of war crimes and crimes against humanity committed in the final phases of the conflict in Sri Lanka, made in the Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka released on April 25, must be thoroughly investigated. This is the first comprehensive UN report examining the events in the Vanni region between January and May of 2009 and it alleges that “tens of thousands of civilians” were killed. The Government of Sri Lanka, but also the relevant international bodies, cannot claim credibility if these findings are ignored.

The panel of experts was not mandated to investigate, but rather to advise the secretary-general on the “modalities, applicable international standards and comparative experiences” relevant to accountability and “having regard to the nature and scope of the alleged violations.”

The report describes how 330,000 civilians were trapped in the Vanni between the Sri Lankan army and the LTTE (Tamil Tiger rebels fighting for the independence of Jafna peninsula) in its desperate last stand and compiles what it considers to be “credible allegations” against each side. The LTTE was using the civilian population as a human buffer and denied civilians permission to leave the area, eventually resorting to shooting them if they tried to escape.

At the same time, government troops advanced into the Vanni through the widespread use of artillery and declared several “no fire zones” where they encouraged civilians to move. According to the report, the government subsequently proceeded to target those civilians with artillery fire.

A particularly dramatic episode described in the report occurred January 24–25, 2009, when a UN convoy sought shelter in a no fire zone and subsequently came under bombardment. The UN staff survived by sheltering in a bunker, but many civilians around them did not have cover and hundreds were killed or injured.

Other accounts are given of how the Sri Lankan Government forces repeatedly shelled other no fire zones, including striking several makeshift hospitals treating hundreds wounded. Alleged violations also include the executions of LTTE prisoners and the rape of women perceived to be associated with the LTTE.

In the aftermath of the conflict, the entire refugee population of 290,000 civilians was interned for many months in a detention camp under poor conditions. Former LTTE fighters were detained in sites to which international agencies, such as the International Committee of the Red Cross (ICRC), did not have access.

The report finds that some of these allegations, if proven, would amount to war crimes and crimes against humanity.

Since the conflict, the Government of Sri Lanka has maintained that in its victory over “terrorism,” it carried out a humanitarian rescue operation and that it incurred zero civilian casualties. This approach has now been referred to in some circles as the “Sri Lanka model of counter-insurgency” and, in a severely flawed resolution in May 2009, the Human Rights Council (HRC) commended Sri Lanka for its approach. The HRC demonstrated lamentable double standards, when after having created a fact finding mission into the Israeli attacks in Gaza in 2008, not only turned a blind eye to the allegations of Sri Lankan atrocities but nodded in approval of supposed government tactics.

Given that the “Sri Lanka model” may serve as a precedent in other conflicts, this lends a specific importance to examining this case in particular.

And especially so because, if the allegations from the report are to be substantiated, the events from Vanni—in their methods and attempts to conceal the truth—are reminiscent of those we have unfortunately seen elsewhere. In Srebrenica, Bosnian Serb forces executed between 7,000–8,000 men and boys over several weeks in an area closed to the UN observers or independent media. They subsequently attempted to cover up the massacres by relocating mass graves and removing evidence from the crime scenes. Simultaneously, their propaganda machine spoke about the “liberation of Srebrenica” and claimed no civilians were killed in the operation. Years later, the investigations and trials by the International Criminal Tribunal for the former Yugoslavia (ICTY) of senior Bosnian Serb military and political leaders revealed the truth about the scale and the planned nature of the crimes. The tribunal established that the killings and subsequent effort to conceal the crimes amounted to genocide.

In the former Yugoslavia, the media played a very important role in creating a demand for justice which provided impetus for the creation of the ICTY. Until now, the abhorrent events in Sri Lanka have not led to similar demands, perhaps largely because of official efforts to keep these issues out of the media. The report issued by the panel of experts is significant precisely because it gives an authoritative account of what it considers to be credible allegations, therefore moving the debate forward on how to address them.

The allegations in the report are of a level of seriousness that demands a response. The Government of Sri Lanka says it is addressing these allegations through a Lessons Learned and Reconciliation Commission (LLRC). Sri Lanka President Mahinda Rajapaksa appointed the commission in May 2010 primarily to investigate why a Norway-brokered ceasefire signed in 2002 by the government and the Tamil rebels collapsed.

ICTJ has worked with many truth commissions around the world. The LLRC, which we have studied carefully, reflects on how the final phase of the war came about but is not conducting an investigation into the violations. It therefore cannot be considered a truth commission, much less an adequate form of criminal proceedings required under international law given the alleged violations. The panel also concluded that the LLRC is failing “to satisfy key international standards of independence and impartiality” and that its mandate and work “are not tailored to investigating allegations of serious violations of international humanitarian and human rights law, or to examining the root causes of the decades-long conflict.”

Emphasizing reconciliation in the aftermath of mass atrocities is a common refrain. But is real reconciliation possible if widespread atrocities are ignored? ICTJ’s decade-long experience in a broad range of countries suggests that it is not, and that such societies are apt to relapse into cyclical violence if accountability for past abuses is not established.

It is only when Sri Lanka will seek to establish undisputable facts about what has happened in the Vanni as well as the years of preceding conflict that it will be able to restore the trust of its citizens in the state as a protector of human rights and possibly move forward with reconciliation between Tamils and Sinhalese. In this vein, knowing that genuine initiatives in Sri Lanka were unlikely at the current time, the panel recommended that the secretary-general should establish an independent investigative mechanism into these events.

Recently, the HRC initiated commissions of inquiry in Libya and Cote d’Ivoire to promote the protection of civilians in those conflicts. The UN Security Council referred the situation in Libya to the International Criminal Court. While any action to address mass atrocity is to be welcomed, the sheer scale of what is alleged to have happened in Sri Lanka demands consistency in the actions of the international community, to prevent it from becoming a precedent. “Sri Lanka’s model of counter-insurgency” should be investigated and those responsible for serious crimes held to account; it should certainly not be replicated.

ICTJ worked on transitional justice in Sri Lanka from 2002–2008. We provided support to the report on Sri Lanka by granting a senior staff member leave to work with the secretariat of the panel of experts.

David Tolbert is the president of ICTJ.