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Sri Lanka: Need for credible international investigations

Documented crimes must be investigated if victims of atrocities are to have any real opportunity of seeking justice.

Last updated: 26 Mar 2014 09:57
Toby Cadman

Toby Cadman is an international criminal law specialist. He is a partner at Omnia Strategy LLP, a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.
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President Rajapakse has said calls for an inquiry demonstrate an attitude of colonialism, writes Cadman [AP]

Allegations of war crimes during the internal conflict within Sri Lanka are not new. There have been calls for investigations for some time now, both from groups within Sri Lanka, and those within the international community. Notably, Australia has thus far refused to condemn the post war actions, nor has it added its voice to the calls for such an investigation. This is a stance that there does not appear to be any justification for and as a result it finds itself coming under increasing criticism.

However, those calls have become consistently stronger of late, culminating in a resolution being tabled during the 25th Session of the UN Human Rights Council.

The draft resolution follows the calls of UN Human Rights Chief Navi Pillay's recommendation for a credible, independent external investigation into allegations of war crimes in the final stages of the civil war in 2009, given the notable absence of any credible national process.

It is essential to implement a system of justice and accountability. A great deal of attention has been placed on "human rights violations" and a large number of groups and organisations have vested a great deal of time and money into documenting such violations. It is now critical to ensure that a process is adopted that is geared towards "international criminal investigations" aimed at establishing a system of justice and accountability that will lead to true reconciliation.

It is critical in this regard that a system is implemented that follows an established legal framework consistent with universally recognised standards as set out in the Rome Statute of the International Criminal Court and the International Covenant on Civil and Political Rights.

101 East - Scars of Sri Lanka

All calls to establish a national framework to address impunity have been flatly rejected by Sri Lanka, with its officials suggesting that it is an "unwarranted interference" and that the calls for such an inquiry demonstrate an attitude of colonialism.

Such allegations are not new when dealing with issues of international justice. The ICC has long been criticised for focusing on African nations and that it is a European tool of colonialism. However, the argument tends to be raised by those that seek to benefit from an absence of international scrutiny and intervention.

On the one hand, it is certainly perceivable that a sovereign nation wishes to resist such calls for intervention. However, the fact remains that the crimes documented within the various reports, and in particular those contained within the recently published report by the Sri Lanka Campaign for Peace and Justice, which I endorsed, must be investigated if victims of such atrocities are to have any real opportunity of seeking justice.

The calls for an international investigation are not comments that harp back to a colonial era, nor are they an unwarranted and unwelcome interference that would destabilise efforts to establish truth and reconciliation. It is simply a basic response to allegations of state supported crimes under international law that constitute war crimes and crimes against humanity.

These calls are made with the background of eye-witness testimony of such crimes occurring, and a number of credible independent reports outlining that such offences have, and continue to occur to this day. The recent report of the "Sri Lanka Campaign for Peace and Justice" highlights this point detailing how offences continue to occur after the end of the conflict, providing specific examples of such crimes from the victims.

The Sri Lankan government has rejected the report of the High Commissioner for Human Rights as baseless. The fact remains that the examples given in the report are highly credible and have been endorsed by leading members of the international legal community, including Manfred Nowak, Former UN Special Rapporteur on Torture, and Juan Mendez, UN Special Rapporteur on Torture.

This credibility is perhaps further enhanced given that three human rights activists have been arrested and detained under the Prevention of Terrorism Act (PTA). It is recognised that two activists have since been released, but a third remains in custody. There is little information as to the basis of the arrest at the time of writing, however, given that the government is the subject of a significant number of allegations, it is of serious concern that those who have highlighted some of those allegations are now the subject of arrest and detention.

As in any case of a similar nature, there is often strong demand for accountability from local populations or international human rights groups, but there is limited if any will at the senior political level to pursue it, and we see political rhetoric attempting to justify why such investigations are not required. In such cases, it is perhaps only international venues that can be used to seek accountability.

Destabilisation is an interesting position to take and the Sri Lankan Government do need to consider it, irrespective of the obvious flaws in their argument.

However, the stance adopted by the president goes beyond rhetoric; it is in fact a very dangerous position to take. Does the president therefore seek to suggest that the international community has no mandate to involve itself in such issues in any country? Does he, therefore, seek to suggest that such involvement in Rwanda, in Bosnia, in Sierra Leone constituted an unwarranted interference? That the ethnic cleansing should have remained unpunished; that such actions should have simply been ignored by the international community? Or does he seek to suggest that it was required in those countries, but not in Sri Lanka?

Destabilisation is an interesting position to take and the Sri Lankan government does need to consider it, irrespective of the obvious flaws in their argument. Destabilisation is a real issue. However, it is not likely to occur if the investigations take place. It is, however, more likely to occur if they do not, and the cycle of violence and impunity continues. If one considers the various reports, there is clear evidence of crimes committed on a massive scale.

One assessment has been that up to 40,000 civilians lost their lives after being ordered into a no-fire zone by government forces. Evidence has surfaced of instances of civilians being abducted off the streets by groups of men in security forces uniforms and subjected to prolonged arbitrary detention and rape. There are allegations of disappearances and forcible displacement after the conflict.

Culture of ignorance and impunity

If those allegations are not investigated fully, it is not an unrealistic concern that the calls for investigations will turn to discontent, will turn to anger, and will perhaps fester and increase in its magnitude. If history has taught us anything, it is that a culture of ignorance and impunity creates greater instability not peace.

One must ask how the people of a country can preserve trust in their government, if those responsible for maintaining a secure environment refuse to investigate credible allegations of security forces being used to commit crimes on such a massive scale. As noted above, surely such a refusal to engage will only serve to increase greater discontent.

There cannot be any credible argument that such crimes did not occur. It is not suggested that all allegations are verifiable, nor is it suggested that it is only the government forces that colluded in the commission of such crimes, but surely this is all the more reason to commence such an investigation on the international level.

Regrettably, it seems we are still some way off from achieving international consensus. Earlier comments suggested that the Sri Lankan government were to be given until mid-2014 to commence their own investigations and a failure to do so would result in an independent UN-backed inquiry being initiated. However, the resolution being tabled during the 25th Session of the UN Human Rights Council is not perhaps as strong as many hoped or indeed expected.

It is clear that those member states that oppose credible international investigations in Sri Lanka will be those same states that oppose international scrutiny and intervention in a host of other conflicts around the world such as Syria, Egypt and now Ukraine.

A further report has been requested in 2015 to ascertain what steps have been taken. It remains to be seen whether the Sri Lankan government will implement the recommendations or whether they will simply maintain their position of defiance.

The international community that holds justice at the heart of accountability and peace owes the people of Sri Lanka a process that meets universal standards aimed at bringing a just resolution to the many victims of years of conflict. It is a tragedy that justice has been delayed, but without urgent international intervention justice will be denied once again.

Toby Cadman is an international criminal law specialist. He is a partner at Omnia Strategy LLP, a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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