Libertatem Magazine

Sri Lankan War in Focus: U.N. Makes a Breakthrough

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It’s really a rare and powerful phenomenon, in the parlance of the World politics, to have the noose tightened around the necks of white-collar criminals. United Nations, however, has been passionately up for such breakthroughs by laying bare the solid investigation and pushing for reforms. One such major push came from the Office of the United Nations High Commissioner for Human Rights with respect to Human Rights’ violations in Sri Lanka in the form of OISL [OHCHR Investigation on Sri Lanka], an investigation team that was established in Geneva in 2014 by the then High Commissioner for Human Rights, Navi Pillay; mandated by Human Rights Council Resolution 25/1. The timeframe equals that of Lessons Learnt and Reconciliation Commission (LLRC) i.e. February 2002 to 19 May 2009; however the report contains information upto October 2011. The initiative was meant to probe into the human rights’ violations, war crimes and crimes against humanity by the Government of Sri Lanka and related institutions, and the Liberation Tigers of Tamil Eelam (LTTE) over the course of civil war in the country. The report was released on the 16th of September, 2015.

A detailed analysis of a human rights investigation [and not a criminal investigation] was conducted by the OISL, wherein the reports were gorged with overtones of failed judicial machinery and incompetent domestic legislative system in Sri Lanka. The Office seeks to promote reconciliation, accountability and human rights in Sri Lanka. The previous Government has been repeatedly slammed for having categorically rejected the extension of any support whatsoever; required for carrying out the investigation. It was in January 2015, with the newly elected Government, that Sri Lanka saw the lifting of the political mood. ‘The new Government did not alter the stance on cooperation with the investigation, nor did it admit the investigation team into the country. However, it has engaged more constructively with me and my Office on possible options for an accountability and reconciliation process’, read a statement by the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. The report stresses upon the pervert nature of social and institutional structures that have played a role in constructing this unrest amidst civilian circles. Arbitrary detention, unfair trails, torture, sexual harassment, enforced and involuntary disappearances, religious tensions and violence against Muslims and Christians − constitute the bullet-point version of the large-scale atrocities that became rampant in conflict-ridden Sri Lanka. ‘These patterns of conduct consisted of multiple incidents which occurred over time. They usually required considerable resources, coordination, planning and organisation, and were usually executed by a number of perpetrators within a hierarchical command structure. Such systemic acts, if established in a court of law, may constitute war crimes and crimes against humanity, and give rise to individual criminal responsibility’, says the report. The lost faith in judiciary furthers the chaos amongst the commoners. This move seeks to herald a new scope for the regard for human rights and to shape it in letter and spirit.

The report is basically aimed at addressing the loopholes in the already existing criminal justice system in the country. The crimes on the international platform cannot be dealt with under regular crimes under domestic law and the Sri Lanka has witnessed just that. The scanty procedural mechanism for witness and victim protection, the corrupted state’s security forces, police and intelligence services, the insufficient legislation to deal with crimes of international weightage calls for the establishment of an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try notably the war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protections programme. In a highly polarized environment, such a mechanism is essential to give all Sri Lankans, especially victims, confidence in the independence and impartiality of this process.

This report not only seeks to address the faulty mechanism of prosecution but basically aims at hitting impunity and to bring about ‘judicial accountability, truth-seeking, reparations, vetting and deep institutional reform.’ Prosecuting some high-profile criminals that have failed to comply with international humanitarian law would do well in sending across a strong deterrent message. However, both the parties to the war need to stand shoulder to shoulder in the dock for committing atrocities on the civilians in Sri Lanka. The LTTE cadres launching attacks on the civilian population and coercing them into submission is as much a matter of concern as the Government failing to comply with the international law. The essence of the investigation is purely to provide redressal mechanism to the people who have been through torture at the hands of either party in the war. All eyes are on the newly-elected Government – hoping in the meantime, will it stand the test of time (?)

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