Jun 30, 2016

Sri Lanka wants the world to forget about justice for war victims

‘Fresh evidence has emerged of the use of cluster bombs against Tamil civilians during the last phase of the war.’ Photograph: Tamilsagainstgenocide.org 


In October 2015 the government of Sri Lanka co-sponsored, along with the US, a resolution on promoting reconciliation, accountability and human rights in Sri Lanka, which was adopted at the 30th session of the UN Human Rights Council. However, this very same government has since been backsliding from implementing its own commitments, promises and obligations made at the UNHRC.

Dec 25, 2015

The First Christmas Without Our Santa Claus: Remembering Dietrich

Dietrich has been described at times as Santa Claus. And because of this, during the festive season, Dietrich would become more special a person.


This is the first Christmas we are going to celebrate without his physical existence.

Dietrich was a kind, thoughtful and great human being. As far I am aware, his punctuality and time-keeping was to the second, from starting classes on time to taking a quick nap while his vehicle stopped at the traffic light! Unfortunately, we could not delay his final departure. We never thought that death would come to Dietrich so quickly. As my friend Mark wrote: Dietrich never liked to be late for anything. That may be the reason that even in leaving us, he did so pronto.

Jan 6, 2015

Challenges Ahead: Sri Lanka's mass atrocities and international justice

“The only thing necessary for the triumph of evil is for good men to do nothing.”-  Edmund Burke
Elections and the Engineers of Mass Atrocities 
Sri Lanka, a country currently under international scrutiny for its violation of international humanitarian law and human rights law during the final phase of the war in Mullivaaikaal in the country’s north, is preparing for its seventh presidential election scheduled to be held on 8 January 2015.

Three consecutive resolutions concerning wartime mass atrocities and accountability in Sri Lanka were adopted respectively in March 2012, March 2013 and March 2014 at the UN Human Rights Council. In addition, two high-level detailed reports on war time atrocities and UN action in Sri Lanka have been published by the UN. These international steps have helped highlight the mass atrocities committed in Sri Lanka and the importance of addressing accountability and bringing perpetrators of these crimes to international justice.   
Incumbent President Mahinda Rajapaksa, since coming to power in November 2005, has been the Minister of Defence and Commander in Chief of the armed forces, and is at the top of the chain of command responsible for mass atrocities committed by the country’s armed forces. Currently, he is contesting for his third term of presidency. 
Maithripala Sirisena, once in the same party as Rajapaksa has been acting Minister of Defence during the peak of the offensive military operations. He has held this position at least five times throughout the armed conflict between the Sri Lankan government armed forces and Liberation Tigers of Tamil Eelam (LTTE).  In November 2014, he defected from the government to contest against President Rajapaksa under the banner of being a common opposition candidate. Having played a key role in the chain of command, not only is he also responsible for crimes committed by the armed forces, but he has and continues to be a frontline campaigner against international justice mechanisms.

During the last presidential election in January 2010 the main challenger to President Rajapaksa had been former Army Commander General Sarath Fonseka, the man in charge of the Sri Lankan army throughout the last phase of the war. While he had lost the presidential contest in 2010 he has re-emerged to pledge his support to the January 2015 presidential election common opposition candidate. Their camaraderie extends back to the war with the common opposition candidate having stated in an interview, “I was the Minister in Charge of Defence during the last two weeks of the war in which most of the leaders of the LTTE were killed with General Fonseka at the helm of the Army.”

War victory and the execution of the last phase of the war seems to dominate the campaigns and propaganda of both main candidates in Sri Lanka’s presidential election, whether it be for the presidential election of 2010 or that of 2015.  Each candidate has repeatedly self-proclaimed themselves as the ‘war hero’ in order to attract Sinhala Buddhist voters, grasping at the ‘war victory’ card which often plays a crucial role in the Sinhala voters’ mindset. 

As for the ethnic Tamil voters, neither leading candidate are war heroes of any form, but rather perpetrators responsible for the death of thousands of Tamil civilians. The UN Panel of Experts (PoE) report published in April 2011 indicated that “there could have as many as 40,000 civilian deaths”. The report further elaborated, “Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths.” The UN internal review panel report published in November 2012 estimated that over 70,000 Tamil people were unaccounted for. The Bishop of Mannar Rayappu Joseph, after analysis of census statistics, came to the estimation that over 146,679 Tamil people in the Vanni were unaccounted for.

However, in Sri Lanka, the overwhelming majority of the Sinhala voters and the two main presidential candidates themselves, both of whom hold responsibilities in the chain of command in relation to mass atrocities, have not yet accepted the systematic killings of Tamil civilians. 

Ironically though, expecting a close contest, both leading candidates are competing to get Tamil votes. President Rajapaksa visited Mullaiththeevu district, the very location where mass atrocities were committed during the final stages of the war, and campaigned asking the Tamil people to forget the past and vote for him. In an election rally in Jaffna he stated that “a known devil is better than an unknown angel.” Both leading candidates even visited Bishop Rayappu Joseph to get his ‘blessing’.

The Chain of Command and ICC
Incumbent President Rajapaksa is currently facing possible western isolation due to his brutality and his governance style of the country, which seems to be bordering towards dictatorship. His strategy has been to use western pressure on Sri Lanka to maintain democracy and accountability as a tool in order to gain votes from the Sinhala masses.

Throughout the election campaign he has continued to present himself as a victim of ‘international conspiracy’ and ‘international forces’ wanting to take him and Sri Lanka’s armed forces to the International Criminal Court (ICC). It should be noted that Sri Lanka is not a signatory to the Rome Statute. However, Sri Lanka’s Minister of External Affairs has stated that based on recent experience, Sri Lanka can still be vulnerable to ICC jurisdiction.

The President in his address at the first election rally said that the Hague had enquired about the chain of command of the Sri Lankan armed forces and that it was a strong indication that some sections of the “international community” were trying to prosecute the heads of the Sri Lankan military establishments. He also added that the "Sri Lankan government will not bow down for foreign interventions in the matter of the war victory.” 

His speeches and campaigns have largely focused on claims of international conspiracies and war crimes charges against the Sri Lankan armed forces, and his determination to resist them. 

In parallel, Jathika Hela Urumaya (JHU), an extremist Buddhist party and a key body backing the common opposition candidate expressed that both they and the common opposition candidate have agreed to oppose efforts to prosecute military authorities. General Secretary of JHU said, “We will not give room for international war crimes probe. Whether it is the President, the Defence Secretary (Gotabaya Rajapaksa), the then Service Commanders – Sarath Fonseka and Karannagoda or the likes of Shavindra Silva and Presanna Silva, we will not allow any of these people to be tried before the International Criminal Court (ICC).”

The election manifesto of the common opposition presidential candidate asserts that, “I will allow no international power to ill-treat or touch a single citizen of this country on account of the campaign to defeat terrorism”. He has also said, “I will not allow President Rajapaksa, his family or any member of our armed forces to be taken before any international war crimes tribunal.”

It is important to note that common opposition candidate Maithripala Sirisena, himself an alleged perpetrator of mass atrocities, could face justice in the future regardless of current international climate which may seem supportive of him today. In fact, the very day he was sworn in as the Minister of Defence, over 1700 Tamil civilians were reported to have been killed and 3000 injured by Sri Lankan government shelling within the space of 48 hours. Thousands more were killed in the days that followed. The infamous white flag incident too took place, while Sirisena was serving as the Minister of Defence. 
In order to repel calls for an international investigation into wartime mass atrocities, Maithripala Sirisena stated that he will launch a domestic war crimes inquiry if he wins in the forthcoming election. An important question arises as to how an alleged perpetrator could establish a credible investigation mechanism and what form of justice the victims and survivors could expect from it. Infact, incumbent President Rajapaksa has to date already appointed a few domestic mechanisms with the inclusion of eminent international legal experts to handle the international pressure. However, these were not received well and instead were rather widely discredited by international actors who were already well aware of President Rajapaksa’s intention and strategy behind these initiatives. For the survivors and victims of these crimes, the Rajapaksa regime symbolises  tyranny and mass atrocities.  They have appalling and unforgettable experiences of mass atrocities and broken promises not only of the current regime, but also of each successive previous regime, leading them to have no faith in any domestic justice mechanism. 

Lack of confidence in a domestic mechanism is not only from that of a survivor’s perspective. David Scheffer, the first U.S. ambassador-at-large for war crimes issues (1997-2001) wrote, “If the tribunals’ work had been left to domestic courts, particularly in devastated societies, there simply would not have been any justice at all.”1  

A gruelling battle is taking place in Sri Lanka between both leading presidential candidates despite certain factors which keep them united, such as ‘war victory’, denial of mass atrocities and rejection of an international investigation into such atrocities. Disturbingly all leading figures in the presidential debate are in competition with each other for self-proclamation and self-promotion in terms of credibility for the war victory, and complete denial of responsibility or acknowledgement of mass atrocities during the war. Sri Lanka’s history underlines consecutive governments have had a deliberate policy of destruction and degradation of the Tamil nation, very similar to the trend observed in Bosnia by United States Ambassador to the UN Samantha Power when she was covering the Bosnian war as a journalist.2  

Challenge to International Conscience and Justice
Hence, regardless of which leading candidate is to win Sri Lanka’s seventh presidential election, victims and survivors of mass atrocities will find it difficult to expect justice or a genuine and credible domestic mechanism into these heinous crimes. Considering Sri Lanka’s political dynamics, the culture of impunity in Sri Lanka will remain unchanged regardless of the outcome of the election. The colour may change but the cage will remain the same.

Therefore it is vital that a sustainable independent international investigation mechanism into mass atrocities be designed to deliver justice for the victims and survivors. On 3-6 December 2014 the International Nuremberg Principles Academy and the Wayamo Foundation hosted a two-day conference titled “Preventing Genocide and Other Atrocity Crimes: Challenges in Today’s World” and concurrent four-day journalism workshop. 

During the conference, Adama Dieng, the Special Adviser to the UN Secretary-General on the Prevention of Genocide said that the, “UN Secretary-General had courage to accept UN failure in SriLanka”. Following the event, he also said that the killing of thousands of Tamils “under our eyes” during the end of the armed conflict in 2009, was a “failure of the international community”.  Speaking at the same conference, Margit Hellwig-Botte, Head of Division (Conceptual Issues and R2P), UN Department, Federal Foreign Office, Germany said, “Never again triggered again due to UN failure in Sri Lanka” in 2009.  In September 2014, the US had said that several lives could have been saved had the global community acted earlier and more appropriately to situations in some troubled nations such as Sri Lanka. 

After execution of mass atrocities and their failure to stop it, international actors have accepted their failure. Time has arrived for course correction, and Sri Lanka’s forthcoming presidential election will be the litmus test for it, and a challenge to international conscience. Will international actors bring perpetrators of mass atrocity crimes in Sri Lanka to international justice and prove “Never Again” to be more than just a slogan? 

--------------------------------

1. David Scheffer, All The Missing Souls: A Personal History of the War Crimes Tribunals, Princeton University Press, Princeton and Oxford, 2012. 

2. Samantha Power, A Problem from Hell: America and the Age of Genocide, Harper Perennial, London 2007

Jun 3, 2014

Sri Lanka: War remembrance, reconciliation and non-violent resistance

May 2014 marked the 5th year of the brutal end of the armed conflict in the island of Sri Lanka. The foremost stakeholders of the final phase of the war, the Tamil nation, the Sinhala nation and the international community seem to have different interpretations of the disturbing developments, unfolding since the last phase of the war.
In its narrative, the Government of Sri Lanka (GoSL) keeps obstinately insisting that they liberated the Tamil people from the grip of terror. Though, this year marks the 5th year of the cruel end of war, what it actually means for the Tamil people and the reality on the ground totally contradicts the GoSL narrative. While understanding the GoSL’s empty promises and false hopes, a section of the international community keeps persistently pushing for national reconciliation. It is a serious question how and when this would be feasible considering the reality where the war against a populace is still continued by other means.
The means of war, strategies and fronts have changed for each actor, but not the conflict. The GoSL has waged Psychological Operations (PSY-OPS) mainly through Information Warfare (IW) against the Tamil Diaspora, and equally if not more dangerous, severe military and intelligence activities in the Tamil homeland.

Mar 11, 2014

Is South Africa’s Model Of TRC A Trap Or Trajectory For Sri Lanka?

Background
Three days after the armed conflict in the island of Sri Lanka came to a bloody end, the UN Secretary General visited parts of the war zone. At the end of his visit he told the media, “I have traveled around the world and visited similar places, but this is by far the most appalling scenes I have seen.1”  In a joint statement with the President of Sri Lanka, he also underlined the importance of an accountability process for addressing violations of International Humanitarian Law (IHL) and International Human Rights Law (IHRL)2. At the time, many international stakeholders from the West also claimed they believed the end to armed conflict gave rise to an ‘opportunity’ for national reconciliation in the island.
However, far from the beliefs and expectations of that section of the international community, the realities on the ground differ significantly. The current Government of Sri Lanka (GoSL), like previous ones, has failed once again in its promises and commitments to its people3. Almost five years since the government declared an end to the war, no genuine attempts have been made to address the root cause of the ethno-political conflict. Negative peace continues due to lack of genuine willingness by the Sri Lankan State to address the genuine grievances and a negotiated political solution is far from being achieved. Along with a blanket denial of its perpetrations, Sri Lanka has chosen to bask in triumphalism resulting in a victor’s peace.
After pressure from international stakeholders, the GoSL established the Lessons Learnt and Reconciliation Commission (LLRC). A UN Panel of Experts report released in April 2011 found that “the LLRC lacks the independence, mandate and witness protection capacity to serve as an accountability process for the many credible allegations of war crimes and crimes against humanity committed by both sides and recommended an international investigation.”4
Moreover, “[c]orrecting the LLRC’s flaws would require not only a new commission or other mechanism but also a reversal of the Rajapaksas’ core post-war policies. While the LLRC has served as a platform for airing some grievances, it has failed to win confidence domestically and can do little to aid reconciliation. Sri Lankans know better than anyone that such a commission is ultimately powerless.”5 
The United States of America has since sponsored two resolutions on Sri Lanka at the United Nations Human Rights Council (UNHRC), one in March 2012 and another in March 2013. It is currently in the process of sponsoring a third resolution at the UNHRC session in March 2014. After her visit to the island of Sri Lanka, Ms. Nisha Desai Biswal, Assistant Secretary, Bureau of South and Central Asian Affairs, USA at a press conference in Colombo said, “[L]ack of progress in Sri Lanka has led to a great deal of frustration and skepticism in my government and in the international community.”6 
While Sri Lanka continues its time-buying strategy, a report from the Office of the United Nations (UN) High Commissioner for Human Rights has stated, “The High Commissioner recommends the establishment of an independent, international inquiry mechanism, which would contribute to establishing the truth where domestic inquiry mechanisms have failed… [A]n independent, international inquiry would play a positive role in eliciting new information and establishing the truth where domestic inquiry mechanisms have failed. In the absence of a credible national process, she believes the international community has a duty to take further steps, which will advance the right to truth for all in Sri Lanka and create further opportunities for justice, accountability and redress.”7
With the above mentioned developments and in the failure of its LLRC strategy, the GoSL has actively sought to bring the discourse of South Africa’s Truth and Reconciliation Commission (TRC) into the context of Sri Lanka’s discussions in order to avoid an independent international investigation into wartime atrocities. It is yet another time-buying strategy to mitigate international pressure and to complete the structural genocide within the Tamil homeland, which is being executed in particular through demographic changes through military occupation and Sinhala settlements, destruction of the Tamil identity, Tamil cultural degradation, and erasing Tamil history and replacing it with that of the Sinhalese.
This paper will analyse why South Africa’s TRC is inappropriate for Sri Lanka and recommends alternative solutions to achieving genuine reconciliation and lasting peace in the island of Sri Lanka.

Is South Africa’s TRC Model Inappropriate for Sri Lanka?
There are fundamental differences between the conflict in South Africa and that of Sri Lanka, including in social, religious, historical and political contexts. In addition, there also exists complete disparity in the deep culture of the respective conflicts. Therefore, copying South Africa’s TRC model, particularly with a false intention, cannot solve underlying issues or deliver justice for victims and survivors.
Post-apartheid South Africa developed TRC for its context. It is important that Sri Lanka finds its own solution for its own context based on credible and factual historical understanding. Arguably, South African leaders acted with moral convictions and their leadership was accepted by the victims and survivors. In contrast, Sri Lanka while denying mass atrocities committed throughout the protracted armed conflict has sunk into triumphalism. And more importantly, despite overwhelming evidence of Sri Lanka’s violations of IHL and IHRL, to date no genuine attempts have been made for criminal accountability, punitive justice or prosecution of perpetrators.
South Africa’s TRC was established based on Christian notions of confession and forgiveness. “Archbishop Desmond Tutu and Nelson Mandela exhibited and urged forgiveness, supported by Christian religious convictions that they shared with whites.”8 
In the context of Sri Lanka, the State is Buddhist centric with the constitution itself stating Buddhism as State religion. While Buddhism itself is a philosophy known for peace, nonviolence, compassion, love and tolerance, in Sri Lanka Buddhist monks who yield power in society and politics, have also been known to be architects of violence, intolerance, social disharmony and hatred towards other respective communities. Most accused Sri Lankan war criminals are Buddhists and a considerable number of powerful Buddhists monks have led racial attacks and hate crimes towards other communities, promoting violent ideologies.
The mindset of the Sinhala chauvinists is that the entirety of the island belongs only to Sinhala Buddhists. Former Sri Lankan army commander and alleged war criminal, General Sarath Fonseka, once said in reference to the Tamil people, “I strongly believe that this country belongs to the Sinhalese but there are minority communities and we treat them like our people… We being the majority of the country, 75%, we will never give in and we have the right to protect this country. We are also a strong nation… They can live in this country with us. But they must not try to, under the pretext of being a minority, demand undue things.”9
This entrenched mentality encourages the destruction of any identity that is seen to be a challenge or threat to Sinhala Buddhist domination. A misinterpretation of the Mahavamsa, which states that Buddhism needs to be preserved for a period of 5000 years in the island until the next arrival/ reincarnation of Buddha10-11 has been used as an excuse to explain this mindset. This has created a notion of racial superiority, and has led Sinhala Buddhists to believe they are the chosen ones and that the island belongs to them alone.12
In South Africa, the TRC was led by dignitaries, such as Archbishop Desmond Tutu and Nelson Madela. However, in Sri Lanka, the process of ‘reconciliation’ is not only based on defense policies, but also foreign policies, and the ‘reconciliation’ process is severely influenced by Defense Secretary Gotabaya Rajapaksa. He and the Rajapaksa regime have repeatedly emphasized the need to forget about the past and move on, in contrast to South Africa’s leaders who called for forgiveness while remembering the past. According to Priscilla B.Hayner there are five goals a truth commission is to fulfill13:
1.    Discover, clarify, and formally acknowledge past abuses;
2.    Address the needs of victims;
3.    Counter impunity and advance individual accountability;
4.    Outline institutional responsibility;
5.    Promote reconciliation.
“Truth commissions aim to uncover and acknowledge abuses from the past by recognizing the suffering of victims and making recommendations to prevent a recurrence of violence in the future.”14  However, Sri Lanka’s President and his government have never accepted the atrocities committed by the Sri Lankan Armed Forces (SLAF). Impunity continues to prevail and perpetrators of mass atrocities roaming freely while victims of genocide wait for decades for justice.
In this environment, it is highly unlikely that Sri Lanka will be willing to take adequate measures to combat impunity or challenge command responsibility given many of the accused are part of the regime itself. This may be the very reason why Sri Lanka is instead interested in pursuing on the TRC with collective amnesty for the perpetrators accused of mass atrocities, particularly the GoSL armed forces.
However, while the government suggests collective amnesty for their armed forces, the fate of Tamil Prisoners of War is yet unknown almost five years since war came to an end. In addition, members and suspected members of the Liberation Tigers of Tamil Eelam (LTTE) have been forced through ‘rehabilitation’ programs where they are forced to endure a process of assimilation and ‘Sri Lankanization.’ Many detained LTTE suspects face constant and severe harassments by the armed forces both in detention and after ‘release’ from the ‘rehabilitation centers’. Particularly female suspects or cadres continue to face sexual abuses and harassments by the Sri Lankan military and police. On the contrary, accused Sri Lankan war criminals move freely with some senior army commanding officers even being appointed on diplomatic missions abroad.
It is important to highlight that very recently the UN High Commissioner for Human Rights noted that “it would not be permissible for any truth mechanism to grant amnesties that prevent the prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or gross violations of human rights, including gender-specific violations.”15
“In South Africa, where the granting of amnesty by the Commission has been one of the most controversial aspects of its functioning, Bishop Tutu (1999) argued that “freedom was exchanged for truth.” Heribert Adam (1998) writes of “trading justice for truth.” Now is raised the ethically impacted problem of fungibility, the question of whether truth is a commodity that can be traded – and if so, for what and at what price (Henderson 2000)?.16
“For many, the proper response to the perpetrators of human rights abuses, violence, ethnic cleansing, or genocide, must be criminal proceedings by some sort of tribunal, a court of law (international law, perhaps) duly authorized to render judicial dispositions: to establish justifiable facts of the matter, to render verdicts and, if called for, to punish. But truth commissions (including the more ambitious truth and reconciliation commissions) cannot by their nature deliver this sort of justice.”17
The LLRC report has also carefully avoided mentioning prosecution. Ironically, while continuing to defend its soldiers against involvement in any crimes, the GoSL has been highly intent on granting general amnesty to perpetrators, before any process has even had an opportunity to commence.
Sri Lanka’s successive presidents have appointed over 18 commissions with regards to issues concerning the Tamil people. Analyzing the history and trends of these presidential commissions, none have been substantial or delivered any justice. Hence, it creates an understanding that the aim of all Presidential Commissions have been to mitigate international pressure, with this being the case for the LLRC and the discourse of South Africa’s TRC model as well.
While it continues to ignore international calls for witness protection and fails to protect and promote human rights, soft approaches by international actors is highly unlikely to push Sri Lanka into fulfilling its moral obligation and seeking justice. Considering its deadly silence and denial of mass atrocities committed by the GoSL’s armed forces, there is currently no space in Sri Lanka for accountability. With justice and accountability being major pillars of genuine reconciliation, in Sri Lanka, the State has neither created a conducive environment to start a process of genuine reconciliation nor has a genuine will to do so.
The very Chairman of the TRC, Archbishop Desmond Tutu, has “urge the United Nations Human Rights Council (UNHRC) to use their March 2014 session to pass a resolution that will include a commitment to an independent international investigation in the form of a commission of inquiry in Sri Lanka [as]… [o]nly this will help put the country on the path to justice and reconciliation”18. When one who knows the TRC model exceptionally intricately opts to support an independent international investigation over the TRC framework, it further supports the argument of this paper.
In light of the above-mentioned various aspects, it is clear that any form of internal inquiry, including the adaptation of South Africa’s model of TRC, will not succeed in the context of Sri Lanka. Therefore, this paper strongly advocates for an independent international investigation into past and ongoing mass atrocities against the Tamil people in the island of Sri Lanka.
Challenges to Accountability and Reconciliation
Denial of mass atrocities, command responsibility, combating impunity, victor’s justice, ongoing structural genocide, Sinhala Buddhist chauvinism and lack of political will are some of the serious challenges to accountability and genuine reconciliation in the island of Sri Lanka.
During interviews conducted by the author for other research papers, a survivor of genocide revealed, “As a person who has for decades experienced genocide by the Sri Lankan State, what the Rajapaksa government is doing is not surprising. Indeed, we feel the pain more than ever, but it is not new to us. The patterns of genocidal attacks may have changed, but the intention and policies of consecutive governments towards Tamils remain the same. On paper it may be ‘democracy’ but never have I experienced it during my life living in Colombo for over twenty years. Reconciliation won’t be sustainable and earnest delivering justice and ultimately addressing the genocide against the Tamil people.”
While GoSL talks of reconciliation to appease international pressure, Sri Lanka has in fact it has accelerated its structural genocide, revealing its lack of genuineness regarding reconciliation. Over 2000 Christian, Saiva/Hindu and Islamic religious places of worships have been destroyed due to war but government programs and aid to have these rebuilt have been inadequate. However, the GoSL has keenly built, renovated and expanded Buddhist temples throughout the North and East of the island in parallel to its Sinhala settlements and military occupation programs.
In addition, while the Rajapaksa regime eagerly constructs new monuments for fallen members of the GoSL armed forces, it has demolished monuments commemorating fallen LTTE cadres with parents, siblings, relatives and friends of the deceased forced to helplessly witness this cultural genocide. This act by the Sri Lankan State only hurts further and deepens already sore wounds rather than addressing any form of healing mechanism. “If Sri Lanka wants true reconciliation, simply blaming the Tigers is not enough. The government, and the country, must take responsibility for the dead, mend the lives of the survivors – whatever their ethnicity – and stop the vicious cycle of ethnic strife by arriving at a political solution that meets, if not all aspirations, most of them. Until then, the end of the war will not bring true peace.”19 
An important factor to be highlighted is that ‘end of war’ cannot be inter-changed with ‘end of conflict’, as the root causes of the conflict have yet not been addressed. The LTTE, a consequence of the conflict, may have been militarily defeated. However, a military solution can never be the answer for a protracted ethno-political conflict. An absence of violence is merely a negative peace and there always exists a possibility that the negative peace without root causes of the conflict being addressed can once again lead down a brutal and violent path. Therefore, it is extremely important to set the trend towards positive peace where there is a presence of justice. Hence, concerned actors should differentiate ‘end of war’ from ‘ongoing conflict’ and instead utilize the term ‘post-conflict’.
Each year, the Rajapaksa regime and the majority of the Sinhala community extravagantly celebrate the war victory over the LTTE. At the same time, the government takes brutal steps to deny the Tamil people their right to commemorate and mourn the genocidal massacre of their kith and kin, which has left up to over 146,000 Tamils unaccounted for in the last phase of the war in May 2009 alone. Commemorating loved ones forms part of healing, and healing is a process of reconciliation. Where freedom to remember is denied, questions arise as to how a platform for genuine reconciliation with the Tamil people may be created.
The Denial Syndrome – a Numbers Game
“There are two mistakes one can make along the road to truth… not going all the way, and not starting.” – Lord Buddha
According to the UN Panel of Experts Report (published in April 2011) “[t]wo years after the end of the war, there is still no reliable figure for civilian deaths, but multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out at this stage. Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths.”20
The GoSL, for their part, categorically denied the charges and claimed that they engaged in the world’s largest rescue operation to release the people from terror’s grip – a ‘zero-sum causality’ operation. “Our forces carried the firearm in one hand and the human rights charter in the other. Our forces never harbored hatred towards any community or individual,”21  Sri Lankan President and Armed Forces Commander Mahinda Rajapaksa is to have said.
A report of the Secretary-General’s internal review panel on UN action in Sri Lanka, also know as Petrie report, was released in November 2012, nineteen months after the UN Panel of Experts Report’s release and stated that “[b]ased on internal review panel report, over 70,000 people are unaccounted for.”22
Defense Secretary Gotabaya Rajapaksa was one of the very few men commanding the offensive military operation. According to him “ensuring zero civilian casualties was an overriding priority for everyone involved in the humanitarian operations, from the political leadership to the military personnel on the field of battle. Training on human rights, international humanitarian law and the law of armed conflict as well as highlighting the necessity to protect civilians has been integral to the training syllabi of the Sri Lankan Armed Forces for many years. Moreover, when the operations commenced, strict orders were given to the military at Security Council meetings to avoid civilian losses and minimize destruction of civilian property. These orders were included in the operational orders handed down through the chain of command, and all our military personnel on the ground were very conscious of the fact that civilian casualties would not be acceptable.”23 However, reality was far from this.
While the Rajapaksa government claimed the military onslaught was the world largest humanitarian operation, it used food and medicine as a weapon of war. The UN Panel of Experts report stated “the Government systematically shelled hospitals on the frontline” with “[a]ll hospitals in Vanni region being hit by mortars and artillery, some…hit repeatedly, despite their locations being well-known to the Government” and accused the GoSL of “systematically depriving people in the conflict zone of humanitarian aid, in the form of food and medical supplies, particularly surgical supplies, adding to their suffering.”24
In his submission to the Lessons Learnt and Reconciliation Commission, the Bishop of the Mannar, Catholic Diocese Rt. Rev. Dr. Rayappu Joseph25  pointed out that according to Government figures the population in the Vanni region was 429,059 in early October 2008. The total number of people, however, who emerged from the Vanni into government-controlled areas since then according to UN OCHA 2009 statistics is estimated to be 282,380. Hence, over 146,679 people in the Vanni have been unaccounted for in post-war Sri Lanka.26
Combating Impunity
“Fighting impunity and pursuing peace are not incompatible objectives – they can work in tandem, even in an ongoing conflict situation.” – Ban Ki-moon, The Secretary General, UN.27
Impunity is the main reason why grave human rights violations, particularly genocide against the Tamil nation, have continued for decades in the island of Sri Lanka. Repeated calls by concerned international actors to end impunity have been ignored. “A visit by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, in late 2005 highlighted the escalating reports of violations and the problem of impunity, concerns that were repeated after visits in October 2007 by Manfred Nowak, UN Special Rapporteur on Torture, and Louise Arbour, UN High Commissioner for Human Rights.”28
Louise Arbour further noted, “In the absence of more vigorous investigations, prosecution and convictions, it is hard to see how this will come to an end… There is a disturbing lack of investigation that undermines the confidence in the institutions set up to protect human rights,” adding that Sri Lanka’s culture of impunity was a serious concern.29 
In May 2008, as a result of its failure to end impunity, protect and promote human rights Sri Lanka lost its seat at the UNHRC. However, following this loss, attempts to transform its human rights record towards a positive direction were never really made. Subsequently, five years later, according to UK Foreign and Commonwealth Office’s country latest updated (December 31, 2013) report on Sri Lanka, “[c]oncerns continued over the culture of impunity in Sri Lanka”30. Furthermore, “[i]mpunity has long been the rule in this country where violations of international human rights law and international humanitarian law are concerned, because successive governments wanted it that way.”31 
This culture of impunity and the absence of accountability will never deliver justice for the Tamil people who continue to be deprived of it by the Sri Lankan State system. Given justice is a precondition and a major step towards lasting peace, an era of impunity must be brought to end, perpetrators brought to justice, while the root causes of the problem and particularly mass atrocities are addressed as step for genuine reconciliation. Globally known, ‘Never Again’ must become a meaningful action in the island of Sri Lanka too, rather than a repeated, attractive slogan. Ending impunity and bringing perpetrators to justice need to be the entry point for accountability and genuine reconciliation.
Command Responsibility – Blood-Stained White Flag
Numerous massacres of Tamil civilians were carried out by the GoSL armed forces throughout the conflict. Bringing all the perpetrators of these crimes spanning decades is an important factor that must be done, regardless of the timeframe.
However, since May 2009, the infamous white flag case has widely gained international attention since international actors were directly involved or had sufficient knowledge of the incident. In this case, after assurances of their safety and security were given by GoSL, relayed via external actors, two senior political staff and a senior military leader of the LTTE, accompanied by other political officers and nearly 300 civilians, surrendered to the GoSL armed forces following instructions from the go-betweens. According to available information, all were killed upon surrendering.
In December 2009, former Sri Lankan army commander General Sarath Fonseka made a shocking revelation claiming Defense Secretary Gothabaya Rajapaksa had “instructed a key ground commander in the north that all LTTE leaders must be killed and not allowed to surrender”32. Soon after his revelation, Sarath Fonseka was denounced, arrested and held in prison by the ruling government, and a public rift developed between the two men who were both happy to accept the credit and recognition for the execution of the military victory over the LTTE.
In numerous interviews and speeches, Defense Secretary Gotabaya Rajapaksa had clearly indicated his significant role in militarily defeating the LTTE and hence highlighting his own command responsibilities. However, for victims and survivors of the Tamil genocide, Sarath Fonseka too played a very significant role not only for his role in the last war, but also a notorious commander responsible for mass atrocities committed since the mid 1980’s.
In fact, on 6 March 2014, Fonseka himself admitted during an interview, “There are the people who are first and foremost responsible for everything that happened on the battlefield: not the politicians who is sitting in Colombo. So if there are war crimes allegations and somebody goes to the electric chair, it will be me because I commanded, I planned, I monitored, I directed, I supervised the battlefield activities and I gave orders.”33
Former US ambassador in Colombo, Patricia Butenis, blamed “such little progress towards a genuine Sri Lankan inquiry into the killings” on “the president and the former army commander, Sarath Fonseka” being “largely responsible”, with this being “further complicated by the fact that responsibility for many alleged crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa and his brothers and opposition candidate General Fonseka.34
Principle 19 of the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions states “an order from a superior officer or a public authority may not be invoked as a justification for extra-legal, arbitrary or summary executions. Superiors, officers or other public officials may be held responsible for acts committed by officials under their authority if they had a reasonable opportunity to prevent such acts. In no circumstances, including a state of war, siege or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions.”35  Gotabaya Rajapaksa’s comment, which has been examined earlier under the section 3.1 of this paper, highlights his vital role as the key actor giving commands and instructions.
Although an important case, possible investigations of command of responsibility should not restricted to this incident alone as there exists many more serious mass atrocities committed by other commanders of the GoSL armed forces in different fronts against non combatants, including intentional attacks on so called No Fire Zone and hospitals.
The final report of the International Independent Group of Eminent Persons (IIGEP) stated, “[t]he Government should respect and implement the internationally agreed doctrine of command responsibility as part of the law of Sri Lanka, whereby superiors of those who have committed criminal acts may also be held responsible”36. The IIGEP emphasized to investigate with vigor, where the conduct of GoSL armed forces has been called into question. Yet, there has been an absence of will to do so on the part of the Sri Lankan State.
Considering Sri Lanka’s past record with regards to command responsibility, it is important to appoint an international prosecution as part of the independent international investigation to investigate the command responsibility.
“Vae victis!”/ Victor’s Justice
Immediately after the war came to an end, there was an unprecedented triumphalism among the majority of the Sinhala community. This was exhibited in a manner which severely humiliating the Tamil population regardless of their association with the Tamil liberation movement. Research for this paper discovered that even Tamils harboring anti-LTTE sentiments felt humiliated and hurt by the manner in which the majority of the Sinhala nation celebrated the victory. In the South, even in areas such as Wellawatte in the capital Colombo where a large number of Tamils reside, Tamils stated they felt they could not leave their homes as they had during the time of war, as Sinhalese had surrounded these areas and were celebrating the military victory in a humiliating and threatening manner.
Arguably, the immediate reaction of the Tamil people living in the South was that of insecurity, and highlighted the failure of the ruling government or any main Sinhala political parties to build trust sincerely between both nations in the island. At the same time, Tamils living in the NorthEast were grief-stricken. The Tamil diaspora living abroad were their only source of information on the human catastrophe as information on war casualities was purposely censored within the island by the government.
Furthermore, to date, hundreds of thousands of Tamils still do not know the fate of their kith and kin gone missing during the war, or disappeared or arrested by the Sri Lankan army or police after the war. While being forced to feel like slaves in their own land, their freedom and dignity denied, the Tamil people were also deprived of their right to know the truth. This forms the very foundation for the illusion of ‘genuine reconciliation.’
Survivors of the Tamil genocide want justice. Recently, Leader of the Tamil National Alliance (TNA), the main Tamil political party, Mr. Sampanthan said, “War criminals must be punished for there to be real reconciliation in Sri Lanka following the end of the war” and further added that “the solution should include reconciliation which ensures the perpetrators of war crimes are punished”.37
However, responses from the government representatives have been different. The Permanent Representative of Sri Lanka to the UN in New York, Dr. Palitha Kohona said in an interview, “If you look at the history of war crimes there isn’t one instance where a winner of a war has been tried before a Tribunal. They have always been set up for losers. And if you were to take winners then the start would have to be taken elsewhere. Sri Lanka did not drop atom bombs or destroy entire cities during the war”38.
To date, Sri Lanka’s calls for reconciliation have been on the foundation of denial of mass atrocities, arrogant triumphalism and more importantly while accelerating the structural genocide in the Tamil homeland. However, there cannot be genuine reconciliation without justice, and victor’s justice will never pave way for genuine reconciliation.
Ongoing Structural Genocide
Demographic change through government land-grab, military occupation, Sinhala settlements and sexual abuse on Tamil women have been instrumental in the ongoing structural genocide of the Tamil people. These demographic changes also aim to dismantle the territorial integrity of the Tamil nation. The government’s strategy of compartmentalizing the Tamil homeland into five sections has been executed with the intent of destroying the Tamil nation as a whole or part. According to the People’s Tribunal on Sri Lanka, “the state of Sri Lanka is guilty of the crime of genocide against Eelam Tamils and that the consequences of the genocide continue to the present day with ongoing acts of genocide against Eelam Tamils.”39
Sri Lanka has targeted the territorial integrity of the Tamil homeland, economy, unique culture, identity and security and safety of the Tamil people, with the intention of eventually eliminating the existence of the Tamil nation from the island of Sri Lanka. Hence, safeguarding the Tamil traditional homeland, culture and identity are among the major collective aspirations of the Tamil people as a whole. Despite the mass slaughter campaigns during the war, the Sri Lankan State has been successful in neither deterring the Tamil people nor forcing them to abandon their collective aspirations.
The victimized Tamils are now being subjected to a new wave of terror campaigns through State aided land-grabbing schemes in the Tamil homeland, which go hand in hand with the processes of military occupation and Sinhala settlements. A refreshed plan of selective assassinations, abductions and torture is being used as the relatively soft coercive tactics have failed to deliver the expected results of the Sri Lankan State. Therefore the policy of colonizing the land is supplemented with a policy of terrorizing the minds of the surviving population.
Almost five years after a destructive and protracted war, the repressive and intransigent character of the ethnocratic Sri Lankan State remains unchanged. No signs yet exist of willingness to change into a democratic and pluralistic civilized body. For the Tamil people, the loss of life over decades and the pain felt over generations has led to the conclusion that the Sri Lankan State lacks potential to transform itself. Yet, this is yet to be realized by the rest of the world.
Nearly four decades of asymmetric war between the Sri Lankan State and the LTTE ended in an unprecedented bloodbath. It confirmed that the State's decisive victory over the LTTE was achieved by massacring hundreds of thousands of Tamils. It was a well-calculated and masterly executed systematic war plan, grounded on the State's unwavering determination to annihilate any number of Tamils in order to achieve its ultimate goal. The unacceptably high death toll may have caused the Tamil people up to 150,000 lives, serious physical and psychological harm to many thousands, and destroyed millions of dollars of personal assets.
After witnessing the international community’s lack of action to prevent this mass destruction, the Sri Lankan State has now accelerated the genocide in a different form. If allowed to continue in this manner and at this rate, there will no longer exist a Tamil people with their identity preserved and a sense of belongingness in the island of Sri Lanka. Therefore, it is the international community’s moral responsibility and duty to protect the Tamil people from the forceful assimilation process and the structural genocide taking place in the island of Sri Lanka.
Conclusion
As explained in detail above, the conduct of the war was in violation of IHL and IHRL. Post-war development has indicated that there is no will from the government to create a conducive atmosphere for accountability and a genuine reconciliation process. Notably, root causes of the conflict have not yet been addressed either. Consecutive governments have used internal inquiries or presidential commissions to mitigate international pressure with repeated empty promises instead of genuine attempts or willingness to solve the underlying problems. The very same governments have also failed to establish mechanisms to combat impunity.
Given this analysis, it can be concluded that the TRC is no more than yet another time-buying strategy. Therefore, this paper strongly concludes that an independent international investigation into mass atrocities in the island of Sri Lanka is the only way towards sustainable justice and a lasting solution to the protracted ethno-political conflict.
Recommendations
• Independent international investigation into mass atrocities that took place throughout the armed conflict in the island of Sri Lanka.
• Immediate steps to stop the structural genocide of the Tamil nation, particularly the demographic changes through land grabbing, military occupation, Sinhala settlements process and sexual violence against Tamil women.
• The permanent presence of a UNHRC mission or formation of an internationally monitored transitional administration in the Tamil homeland. In any such formation, capacity to ensure witness protection, political will and operational independence should be included.
• An adequate mechanism for combating impunity, criminal accountability, punitive justice and prosecution should be created in accordance with international norms and standards.

 Notes:
1. U.N. Secretary-General: Sri Lanka Sites for the Displaced 'Appalling' 
2. Joint Statement by UN Secretary-General, Government of Sri Lanka
3. Reconciliation in Sri Lanka: Harder Than Ever
4. Reconciliation in Sri Lanka: Harder Than Ever
5. Reconciliation in Sri Lanka: Harder Than Ever
6. Press Conference With Assistant Secretary Nisha Biswal in Colombo, Sri Lanka
7. Promoting Reconciliation and Accountability in Sri Lanka 
8. Frost, Brian, Struggling to Forgive: Nelson Mandela and South Africa’s Search for Reconciliation 
9. Inside Sri Lanka: A life given over to war
10. L. Marasinghe, The British colonial contribution to disunity in Sri Lanka 
11. J.L. Devananda, The Mahavamsa mindset: Re-Visiting political Buddhism in Sri Lanka
12. Charles R.A. Hoole, A Reassessment of Sinhalese Utopia: Explorative Essay on the Sri Lankan Political Crisis
13. Priscilla B. Hayner, Fifteen Truth Commissions - 1974 to 1994: A Comparative Study 
14. The Diversity of Truth Commissions and Commissions of Inquiry 
15. Promoting Reconciliation and Accountability in Sri Lanka
16. Truth and reconciliation commission models and international tribunals: a comparison
17. Truth and reconciliation commission models and international tribunals: a comparison 
18. Desmond Tutu backs calls for international probe on Sri Lanka
19. Sri Lanka’s Ghosts of War
20. Report of the Secretary-General's Panel of Experts on Accountabiity in Sri Lanka
21. Sri Lanka President Rajapaksa defends military's role
22. Report of the Secretary-General's Internal Review Panel on United Nations Action in Sri Lanka
23. Defence Secretary Spells Out How Political Will Brought Peace to Sri Lanka Inaugurating Seminar on ‘Defeating Terrorism-Sri Lankan Experience’ 
24. Report of the Secretary-General's Panel of Experts on Accountabiity in Sri Lanka
25. One of the badly war-affected districts during the Sri Lankan final offensive operation
26. It’s “Lesson Learnt” — 146,000 Equal “Naught” — Equals “Reconciliation” 
27. Kai Ambos, Judith Large, Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development
28. Twenty Years of Make-Believe - Sri Lanka's Commissions of Inquiry 
29. Human Rights in Sri Lanka: Impunity against Accountability and Justice
30. Human Rights and Democracy 2012, Country Updates: Sri Lanka
31. Twenty Years of Make-Believe - Sri Lanka's Commissions of Inquiry 
32. “Gota Ordered Them To Be Shot” – General Sarath Fonseka
33. If somebody goes to electric chair for war crimes, it would be me-SF
34. WikiLeaks cables: 'Sri Lankan president responsible for massacre of Tamils'
35. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
36. The Final Report of the IIGEP
37. Punish war criminals says TNA
38. No victor has ever been tried before a War Crimes Tribunal
39. People's Tribunal on Sri Lanka

Sep 25, 2013

My Question and the President’s Silence

Today, I asked the following question to the Sri Lankan President, Mahinda Rajapaksa during a Twitter interaction.

Mahinda Rajapaksa @PresRajapaksa:
This is the first time we are doing this. There may have been technical lapsesLalith Weeratunga

Sep 21, 2013

Respect and Democracy in Our Hearts



My mum (72) got discharged from Jaffna hospital this morning, immediately traveled nearly 35KM and then took tuktuk/auto to cast her vote before coming home, despite I don't believe either Sri Lanka constitution or provincial council system due to the denial of Tamils rights and repressive policies. Though, I respect mum's decision and admire her continuing commitment to the cause.

 
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