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There is no conclusive evidence to say that punishments alone can deter recurrence of human rights violations or war crimes. However, without a comprehensive system of punishments there is no other way to move towards deterrence in preventing continued violations and crimes, whether ‘ordinary’ or war related. Rehabilitation and/or reform measures alone might not work without a measure of punishment. All adults in society should be able to, educated to and compelled to take full responsibility for their actions.

The UN “Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity” in 1968 stated the following:

“The effective punishment of war crimes against humanity is an important element in the prevention of such crimes and the protection of human rights and fundamental
freedoms.”

There can be a possibility of prosecuting the LTTE as an organization for perpetrating war crimes. If at all possible, it should be done. For example, the Nuremberg Trials were empowered to rule on the criminality of organizations

The sole purpose of disregarding the usual ‘statutory limitations’ in that Convention alone was to recognize this fact. This was the same principle reiterated in the Rome Statutes for the International Criminal Court (ICC) three decades later in 1998. Those who admire human rights, justice, non-violence, reconciliation and lasting peace should not blink on this matter.

Two examples
There were at least two major incidents that showed the danger of impunity and, more particularly, the failure to conduct proper and frank investigations on what happened during the ‘last stages of the war.’ This was the failure of accountability that the former president Mahinda Rajapaksa, in fact, promised before the UN Secretary General in May 2009.

This is not about the Americans or the international community, this is about ‘Us.’
The first incident that proved the danger of impunity was the unprovoked army shooting in Weliweriya in July 2013. The second, within four months in November, was the killing of 27 inmates to quell a prison riot at the Welikada prison. In addition, continuous violations were reported, or alleged, in the north.

The major offence of the authorities immediately after the end of the war was to place the same commanders/soldiers who were suspected of atrocities at the last stages of the war in the northern districts. We should raise this question directly to the former
Secretary of Defence.

The connection between impunity and recurrence is very clear from the following observation, aftermath of the Weliweriya shooting, from Dayan Jayatilleka (Colombo Telegraph, 2 August 2013) of that moment.

“The obvious observations will be, if this is how the State authorities treat unarmed Sinhalese, largely Buddhist civilian men, women and children who are protesting against polluted water, how must that state have treated the Tamils in the closing stages of the war?”

Investigating the LTTE
The importance of investigating the last stages of the war is that the main perpetrators, on the part of the armed forces, are still living and perhaps in higher positions in the army and other armed forces. It is not only about ‘deterrence’ but also about ‘army discipline’ and the need to have a ‘professional and a respectable army.’ In the same vein, the fact that most of the leading LTTE perpetrators are dead is no reason not to prosecute the others or the second level commanders. There are some key people still living and operating, inside and outside the country. Only leniency could be for the former ‘child soldiers’ who could be both ‘victims and perpetrators.’

The recommended period given by the UNHRC resolution for the judicial investigations is from 2002 to 2009 which supply ample space for major violations of the LTTE to be investigated. These include the violations of the Ceasefire Agreement (CFA) in addition to others.

There can be a possibility of prosecuting the LTTE as an organization for perpetrating war crimes. If at all possible, it should be done. For example, the Nuremberg Trials were empowered to rule on the criminality of organizations.

The prevention of recurrence of war crimes also should include the prevention of recurrence of terrorism. What can be seen in Sri Lanka is some of the main perpetrators becoming political allies after some time, and impunity continuing unabated as a
consequence.

MR’s futile arguments
The former President, Mahinda Rajapaksa, who was the Commander-in-Chief during the last stages of the war, has given three main reasons why he opposes the UNHRC resolution of which the present government has also cosponsored.

First is the participation of foreign judges and prosecutors in a ‘Sri Lankan judicial mechanism’ that has been proposed for the investigations of human rights violations and possible war crimes (Operative Paragraph 6). As it has been already pointed out (Manekshaw, Ceylon Today, 26 September 2015) this is not the first time that foreign or commonwealth judges were involved in judicial processes. One example is the investigation on Denzil Kobbakaduwa et al ‘assassination.’ Even for the Rajapaksa appointed Paranagama Commission last year there were three foreign experts closely involved.

Second objection of MR is for the proposal to remove the individuals who are in the armed forces suspected of human rights violations through administrative vetting even without or before judicial procedures (Operative Paragraph 8).

Third objection is for the government’s willingness to obtain financial assistance for the process of ‘reconciliation, accountability and human rights’ as welcomed in the UNHRC resolution (Operative Paragraph 4). This objection is based completely on a ‘conspiracy theory of Westerners’ on all matters of human rights and human rights investigations.
“The first duty of the Sri Lankan government is to see to it that the interests of our war heroes are looked after.  Operative paragraphs 6 & 8 of the resolution run directly contrary to that sacred duty.”

Defence of war criminals?
It is very clear that when MR talks about ‘our war heroes’ he doesn’t mean the overwhelming majority of the disciplined and professional soldiers or the commanders, but a small minority of offenders most possibly motivated by ‘racist’ orientations or criminal proclivities. It is the perpetrators of violations who would be under investigation under the UNHRC proposed mechanism and not all or the majority. As a former president, MR should know this better. He is attempting to safeguard the perpetrators under the rubric of ‘war heroes.’

During a civil war, on the part of the state armies or insurgent militias, the violations of human rights or war crimes cannot happen merely by accident. Pure collateral damage is completely a different matter, and most often an excuse. For example, the LTTE massacres in Anuradhapura, Aranthalawa or the attack on Dalada Maligawa cannot be considered accidents. Those are purposeful and motivated violations.

Sri Lanka has seen spiralling cycles of violence and violations since 1970s.

UNHRC resolution
The most important operational paragraph of the UNHRC resolution is the following in respect of what we have discussed here in this article.“Welcomes the government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators”.

Accountability is essential and the resolution says the government has recognized it. It is essential to uphold the ‘rule of law and build confidence in the justice system among all communities’ which is undeniably true. Many social surveys have shown that people and particularly the youth have lost or increasingly losing confidence in the prevailing ‘rule of law’ and/or the ‘justice system.’

The above paragraph is also a compromise to allow the Government of Sri Lanka ‘to establish a Sri Lankan Judicial Mechanism.’ It is very clear by word and intent. What would be the composition of the proposed mechanism? (1) There would be a “Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable.” (2) In addition to the Special Counsel, it emphasises the “importance of participation in a Sri Lankan Judicial Mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.”

A proper hybrid mechanism comes about through an agreement between the country concerned and the UN. The appointments to the courts or judicial mechanisms are also done jointly. What has been proposed and agreed for Sri Lanka is a desirable solution where the primary authority is left for the Sri Lankan government to decide but the external element cannot completely be denied.

Conclusion
There cannot be any hesitation on the part of those who support and admire human rights, accountability, justice, reconciliation, non-violence and long-term peace in supporting the government in genuinely implementing the UNHRC resolution that it has cosponsored. Whatever the weaknesses, imbalances or operational hurdles in the resolution, those should be sorted out within the process of its implementation.
However, the crucial or hard issues of accountability and justice have to be addressed without delay. It would be better to have a ‘comprehensive plan’ for the implementation of the resolution sooner without venturing into ad hoc implementation.
(Colombo Telegraph)

  • Lord Shiva

    All criminals and all perpetrators irrespective of race, religion must be investigated and punished. Several state force personnel who raped and murdered Tamil women, children, Christian fathers, politicians still not brought to book.
    LTTE was a product of Sinhala Buddhist Apartheid, racism, state terrorism, hooliganism, race riots, failure of R2P and continued denial of democratic principles and not the product of the ordinary Tamils.
    The Sinhalese people and the international community must know that all successive Sri Lankan regime since independence, UNP or SLFP have been oppressing, denying democratic values, used state forces against innocent Tamils and impunity is widely used to cover up war crimes and state terrorism and thus must be banned from politics.
    It’s like Hitler’s or Milosevic’s crime partners to continue to rule the nation and they investigate crimes and deliver justice.
    International monitoring force must be on the ground to monitor and report state abuses, land grab, cover up of crimes and denial of rule of law and justice.
    Sri Lanka is a rogue and a failed state for decades and escaped from international scrutiny and now its time to put an end to its madness. Sinhala victims too demand for an international independent investigation. Else, there won’t be any Justice.