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Investigating War Crimes in Sri
Lanka Illusion and Reality
Ravi Nair
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In continuation of the series of articles on the latest
situation of Tamils in the island nation, in this exclusive
piece, the renowned human rights activist presents the harsh and
bitter truth about the working of UN bodies. He also outlines
the road ahead for the United Nations, the European Union and
other human rights and humanitarian organizations.
As we observe 25 years of the tragic events of June 1984, it is
still not too late for Sikh human rights organizations to learn
the meticulousness and methodology required engage international
bodies to highlight concerns and human rights violations.
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 The European
Union (EU) did not need a crystal ball to predict that its
resolution at the special session of the United Nations Human Rights
Council (UNHRC) convened on 28 May 2009 to discuss the human rights
situation in Sri Lanka had as much chance of success as the cow had
of jumping over the moon.
A few hopeful
Tamils across the world, clueless about the Byzantine ways of the
UN, thought the world’s premier human rights body would soon send in
the blue helmets to save Tamils in distress. In fact, the UN cannot,
on its own, send even its independent experts, the Special
Procedures, to Sri Lanka since Colombo has not issued a standing
invitation to any of them.
If the EU and
its allies failed, the non-governmental community did no better. In
view of the fact that all the dirty dozen countries in the regional
blocs of Asia, Africa and Latin America were expected to gang up and
shout down calls for accountability, NGOs should have sent a clear,
forthright signal and proposed a sound strategy for the road ahead.
But all they had to show for was non-representative discussions.
Certain Asian NGOs, even those that call themselves ‘regional’
organisations, on the other hand opted for profound silence.
The road to
hell…
The EU
resolution failed, as the EU might have expected. It was not even a
moral victory, as the EU might have been hoping. The Czech opening
statement in the debate on behalf of the EU was indifferently
drafted and delivered, and was not about to stir a leaf, let alone
the consciences of the majority of the diplomats, most of whom have
long smothered any altruistic stirrings in their individual hearts
at the altar of their nations’ geopolitical priorities.
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Instead of pursuing pies in the sky, it would be more fruitful
to look at national mechanisms that can try violations of
international human rights and humanitarian law, as outlined
above. For a start, the large Tamil diaspora in the
United States should enter into negotiations with credible human
rights NGOs and law firms to assess the possibility of seeking
civil damages and bringing prosecutions. The Alien Tort Statute
(ATS) and the Torture Victim Protection Act are two options in
the United States. Similar assessments must be carried out in
all countries of Europe and elsewhere in the world.
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The debate
started with a forceful statement by the UN High Commissioner for
Human Rights, Navi Pillay. It was rebutted with a stout but
disingenuous statement by Mr. Mahinda Samarasinghe who heads Sri
Lanka’s aptly named Ministry of Disaster Management and Human
Rights. The Cubans speaking on behalf of that cold war relic that
they have appropriated, the Non Aligned Movement (NAM), launched
their usual diatribe. The Indian statement did little credit to a
country that is democratic. This once again underscores the need for
the Indian Parliament and citizens to exercise scrutiny over what
Indian diplomats get away with at forums like the UN, purporting to
interpret the sovereign will of the Indian people.
The statement by
Canada
was uplifting. It made specific demands of the Sri Lankan
government. It sought to emphasise international scrutiny and the
need to strengthen key national protection mechanisms in Sri Lanka.
Also, the US would have taken its place as a member of the Human
Rights Council in another fortnight. Why did the EU not wait until
the US
brought its force multiplier effect to the Council? Old
Europe
has much to learn from the world across the
Atlantic.
It would also
have been a quantum leap if the EU resolution had sought an
adequately staffed and resourced field presence of the office of the
UN High Commissioner for Human Rights in
Jaffna
and Colombo. The current presence in Colombo consists of a solitary
UN Human Right advisor to the UN system in that country assisted by
two junior colleagues.
Let’s do it,
but how
But the EU’s
biggest failure has been its ambiguity on investigations of possible
war crimes and other violations of international humanitarian law.
During a meeting on 18 May 2009, the EU council called for alleged
war crimes in Sri Lanka
to be
investigated through an independent inquiry. “Those accountable must
be brought to justice,” it stated. It did not specify who or what
would carry out these investigations. But
briefing the
media subsequently, Czech foreign minister Jan Kohout stated that
“in principle, the inquiry should be carried out by Sri Lankan
authorities but it could also involve non-government and UN bodies.”
Smoke and mirrors, if you know what it means.
And schooled in
the best British tradition, British Foreign Secretary David Miliband
did not forget the importance of being earnest. There have been
“very grave allegations” of war crimes on both sides of the conflict
and “they should be properly investigated,” he stated.
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The EU resolution failed, as the EU might have expected. It was
not even a moral victory, as the EU might have been hoping. The
Czech opening statement in the debate on behalf of the EU was
indifferently drafted and delivered, and was not about to stir a
leaf, let alone the consciences of the majority of the
diplomats, most of whom have long smothered any altruistic
stirrings in their individual hearts at the altar of their
nations’ geopolitical priorities. |
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Balderdash and
fiddlesticks. What is more important is what these worthy European
gentlemen did not say. Over the past few weeks, Europe has seen
anger on the streets, and its calls for accountability are intended
merely to assuage those sentiments. The disingenuousness of European
countries, however, lies in the fact that they have not explicitly
proposed making use of a robust mechanism that is to be found within
their own jurisdictions, one that might actually lead to
accountability and eventual justice for the horrendous crimes
committed in Sri Lanka.
The national
prosecution option
It might be
useful for the EU to recall its report on the 10th and 11th meetings
of the African Union (AU)-EU Ministerial Troika, which observed as
follows:
“….. Certain EU
Member States provide for the exercise of universal jurisdiction in
criminal matters only where such exercise is envisaged or rendered
mandatory by international treaties to which the relevant state is
party. An example of such a state is
Ireland. Many of
these states have adapted their national laws to provide for
universal jurisdiction over grave breaches of the 1949 Geneva
Conventions and of 1977 Additional Protocol I, over the crime of
torture recognised in the Convention against Torture 1984 and over
the crimes recognized in some or all of the various conventions
dealing with terrorist acts.”
Further,
“Other EU Member
States grant universal jurisdiction over international crimes on the
basis of customary international law as well. Such countries include
Belgium (universal jurisdiction over genocide, crimes against
humanity and war crimes), the Czech Republic (universal jurisdiction
over genocide, certain war crimes and crimes against peace), Denmark
(universal jurisdiction over genocide, crimes against humanity and
war crimes), Finland (universal jurisdiction over genocide, crimes
against humanity and war crimes), France (universal jurisdiction
over the crimes within the respective jurisdictions of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and
the International Criminal Tribunal for Rwanda (ICTR)), Germany
(universal jurisdiction over genocide. These states also
provide for universal jurisdiction where such exercise is envisaged
or rendered mandatory by international treaties to which the
relevant state is party.”
The good Mr.
Miliband might also wish to recall his own observation that “United
Kingdom
law explicitly provides for universal jurisdiction over the crimes
of
torture, hostage taking, participating in the slave trade, offences
against United Nations personnel, piracy and certain war crimes,
including grave breaches of the 1949 Geneva Conventions and its
first additional Protocol.”
EU
policy does state that “[i]n
prosecuting serious crimes of international concern, states should,
as a matter of policy, accord priority to territoriality as a basis
of jurisdiction, since such crimes, while offending against the
international community as a whole by infringing universal values,
primarily injure the community where they have been perpetrated and
violate not only the rights of the victims but also the general
demand for order and security in that community. In addition, it is
within the territory of the state of alleged commission that the
bulk of the evidence will usually be found.”
However, surely
the EU cannot be unaware of the fact that the Sri Lankan judiciary
is not only grossly ill equipped to handle such an onerous the task,
but that it also judicially abdicated its responsibilities on
accountability and fighting impunity a long time ago.
In fact, as
early as 2007, the EU had asked the Sri Lankan Government to
investigate violations of international humanitarian and human
rights law, adding its weight to calls by Louise Arbour, the then UN
High Commissioner for Human Rights, and Manfred Novak, the UN
Special Rapporteur on Torture, who had requested international
monitoring in that country.
In
March
2007, the International Commission of Jurists (ICJ) addressing the
UN Human Rights Council said that domestic human rights mechanisms
were, “insufficient to protect civilians in the escalating conflict
and human rights crisis in Sri Lanka.” The ICJ added:
“An international human rights field operation is especially needed
when, as in Sri Lanka, justice and human rights mechanisms of the
state are struggling to function effectively and independently, and
when an armed opposition group such as the LTTE has prevented any
independent and effective human rights mechanism developing in
territory it controls.”
As far back as
2003, when it was still relatively independent, the Sri Lankan Human
Rights Commission (HRC), a statutory body, had concluded as follows:
“It is the Commission's belief that no national or regional human
rights entity will be able to effectively monitor and implement
human rights standards in the north and the east. No organisation or
individual enjoys that kind of universal authority and legitimacy.”
The Sri Lankan
Human Rights Commission has since become little more than a joke,
and even the super cautious International Coordinating Committee of
National Human Rights Institutions has downgraded the Commission
from ‘member’ to ‘observer’ status for not being fully compliant
with the Paris Principles, a UN standard that is the lowest common
denominator for national human rights institutions.
The ICJ also
asserts that confidence in the judiciary has declined in recent
years, and that members of the judiciary and legal community who
seek to uphold the law and protect rights are often threatened.
Is it this
wholly inadequate judicial system in Sri Lanka that is being trusted
by the EU to deliver justice? The principle of territoriality
apparently did not apply to Sudan. Why must it apply to Sri Lanka?
Get real
The international human rights community and particularly the Tamil
diaspora in
Europe
and North America need a reality check. A Paris-based international
human rights organisation, clearly not having drawn any lessons from
the abject rout in Geneva, has now urged that “alternative
mechanisms…must be activated for an international commission of
inquiry”. Shades of Don Quixote, one might say. Any new tribunal of
an international nature would need UN Security Council approval. And
since Beijing and Moscow are standard bearers of human rights, can
we expect that remarkable agenda to find a place on the table? If on
the other hand a non-governmental body of experts is being sought
here, it might be useful to bear in mind that no such body will get
past immigration at Katunayake airport.
Instead of pursuing pies in the sky, it would be more fruitful to
look at national mechanisms that can try violations of international
human rights and humanitarian law, as outlined above. For a start,
the large Tamil diaspora in the
United States should enter into negotiations with credible human
rights NGOs and law firms to assess the possibility of seeking civil
damages and bringing prosecutions. The Alien Tort Statute (ATS) and
the Torture Victim Protection Act are two options in the United
States. Similar assessments must be carried out in all countries of
Europe and elsewhere in the world.
Caution, meticulous legal work, and collaborations with credible
human rights organisations and law firms, is what will win the day,
and eventually win the peace.
Ravi Nair is Executive Director of the South Asia Human Rights
Documentation Centre (SAHRDC). He is Coordinator of the Asia
Pacific Human Rights Network. Mr. Nair was the recipient of the M A
Thomas National Human Rights Award for 1997. He may be contacted at
rnairsahrdc@gmail.com.
This feature and previous features are available on
www.worldsikhnews.com
and at
http://ravinair.blogspot.com.
3
June 2009
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