The OISL (Office of the High Commissioner for Human Rights [OHCHR] Investigation into Sri Lanka) finding that crimes “amount[ing]” to war crimes were committed in the war between the Sri Lankan security forces and the LTTE, and its calls for a “hybrid” court to fix responsibility and punishment could open a new chapter, and new opportunities in the island’s search for post-war reconciliation between the majority Sinhalese and the Tamils.
The Sri Lankan government has not yet committed itself to the OISL recommendations, but its response, appended to the report, does not argue against them either. The main political response of the Sri Lankan government is expected on Friday, when Prime Minister Ranil Wickremesinghe and President Maithripala Sirisena are both expected to make statements on the report.
The main Tamil political party, the Tamil National Alliance has welcomed the report and the recommendation of a hybrid court, but perhaps more significantly, it has accepted the OISL’s finding that the LTTE was also to blame.
The TNA, which was aligned with the LTTE for some of the period covered by the report, said that it would reflect on “our own community’s failures” and the “unspeakable crimes committed in our name”. It also committed to creating an atmosphere where Tamils could live as equal citizens in Sri Lanka.
The findings of the report, covering the period 2002-2009, were widely anticipated, and it was released without friction at the HRC on September 16. The change in the atmospherics at the HRC has come with the new government in Sri Lanka, and its more open approach to the proceedings. This has ensured that the event did not witness the tensions with which sessions of previous years were fraught.
From 2012 to last year, the predecessor Rajapaksa regime would go into high battle mode, sending out top ministers months ahead of HRC sessions to lobby member countries. At home, pro-government parties and organisations would take to the streets for protest rallies and demonstrations against the US, UN and the HRC.
For the session itself, a plane load of officials and journalists would be shipped out to Geneva for what the government saw as nothing less than a war with the entire Western world, and its media — most allegations of war crimes against Sri Lanka surfaced just before the sessions, the most damaging ones on Channel 4 television.
There was none of that this time.
The OISL was set up after a HRC resolution in March 2014 calling for an international investigation. India abstained from voting on this resolution.
The report was to be released at the March 2015 session, but was put on hold on a request from the new government, a fact mentioned in the report.
There are five points to note about the report:
1) There is no good news in it for Sri Lanka. The report’s findings confirm the worst suspicions about the last stages of the war in Sri Lanka. It makes the point that serious crimes were committed that “if confirmed by a court of law”, “amount to crimes against humanity and/or war crimes”.
It also says: “These patterns of conduct consisted of multiple incidents that occurred over time. They usually required resources, coordination, planning and organisation, and were often executed by a number of perpetrators within a hierarchical command structure. Such systemic acts cannot be treated as ordinary crimes but, if established in a court of law, may constitute international crimes, which give rise to command as well as individual responsibility.
2) The report documents its findings on what it has described as “system crimes” into several categories:
a) Unlawful killings
b) Violations related to the deprivation of liberty
c) Enforced disappearances
d) Torture and other forms of cruel, inhuman or degrading treatment
e) Sexual and gender based violence
f) Abduction and forced recruitment
g) Abduction of children and use in hostilities
h) Impact of hostilities on civilians and civilian objects
i) Control of movement
j) Denial of humanitarian assistance
k) Screening and deprivation of liberty of Internally Displaced Persons
3) The report does not name any individuals for acts of wrong –doing. The report says at the outset that it is not a criminal investigation but a “human rights investigation”. It says : “The timeframe covered by the investigation, the extent of the violations, the amount of available information, as well as the constraints to the investigation, including lack of access to Sri Lanka and witness protection concerns, posed enormous challenges”.
4) As well blaming the Sri Lankan security forces and paramilitaries linked to the government, the report is clear that the LTTE was no angel. But there is no comfort even in this for the government, as the report rejects the argument of reciprocity — that the Sri Lankan security forces were responding to LTTE provocation in aiming at civilian targets, such as hospitals:
“OISL recognises the complexities inherent in conducting military operations against legitimate military targets in or near densely populated areas. Nevertheless, the presence of LTTE cadres directly participating in hostilities from within the predominantly civilian population did not change the character of the population, nor did it affect the protection afforded to civilians under international humanitarian law. It is important to recall that the obligations of a party to an armed conflict under international humanitarian law are not conditioned on reciprocity. Violations attributable to one of the parties do not justify lack of compliance on the part of the other.”
5) It stresses that a domestic investigation would not be able to meet the high credibility bar required for such an enquiry, as those who may be responsible for the crimes could still be holding office, and also because Sri Lanka’s legal framework could not scale up to the level of prosecuting international crimes. The report calls for setting up of “a special hybrid court” and asks the Sri Lankan government to adopt specific legislation to set it up “integrating international judges, prosecutors, lawyers and investigators mandated to try war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defense office and witness and victims protection program, and resource it so that it can promptly and effectively try those responsible”.
Such a mechanism, the report says, will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka.
Hybrid courts are also known as “internationalized criminal courts”, which like the International Criminal Courts for Yugoslavia and Rwanda, seek to punish violations of international human rights and humanitarian laws. Three hybrid courts were set up from 1999 to 2001 in East Timor, Sierra Leone and Kosovo. Hybrid courts may be part of the country’s judicial system but will have both domestic and international elements.
A response by the Sri Lankan government, which received a copy of the report before it was released, has been included. Sri Lanka has indicated that it will give “due attention” to the recommendations, “including the new mechanisms that are envisaged to be set up”.
Prime Minister Wickremesinghe and President Sirisena are expected to make detailed statements on the report on Friday in Sri Lanka.
The Tamil National Alliance welcomed the OISL report, and its recommendation for the setting up of a hybrid court. Without naming the LTTE, the TNA, which has gone through a cycle of evolution since 2002, said it would “use this moment as a moment of introspection into our own community’s failures and the unspeakable crimes committed in our name, so as to create an enabling culture and atmosphere in which we could live with dignity and self-respect, as equal citizens of Sri Lanka”.
India has so far made no comment on the report so far.