An approach to resolve issues of accountability

While it may be possible to identify and locate more of those that were associated with the Sri Lankan Government 

for prosecution, it would be nearly impossible to identify and locate most of those who were associated with 

the LTTE for prosecution

By Neville Ladduwahetty

In keeping with the Government’s commitment to address accountability a domestic mechanism was instituted by appointing a Presidential Commission of Inquiry headed by a Supreme Court Judge by Gazette No. 222111/55 of 21 January 2021. The mandate of this Commission was: “to investigate and inquire into, take necessary action or report on the following matters, namely”:

a)“Find out whether preceding Commissions of Inquiry which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such offences;

b) Identify what are the findings of the said Commissions and Committees related to the serious violation of human rights, serious violations of international humanitarian laws and other such offences and whether recommendations have been made on how to deal with the said facts;

c) Manner in which those recommendations have been implemented so far in terms of existing law and what steps need to be taken to implement those recommendations together in line with the present Government policy;

d) Overseen of whether action is being taken according to (b) and (c) above”                          

The reason for a Domestic Mechanism instead of a Hybrid Commission involving Foreign Commissioners as proposed in UNHRC Resolutions co-sponsored by the former Government is because it violates provisions of the Constitution of Sri Lanka. This was brought to the attention of the UN Human Rights Council by the former Government as well as by the present Government. This fact entitled the present Government to withdraw from obligations of co-sponsorship because Article 46 of the Vienna Convention invalidates any commitments undertaken whenever an ‘internal law of fundamental importance’ is violated.    

However, since there are no restrictions to engage foreign personnel in processes limited only to investigations, the recommendation herein is to engage a mix of foreign and local personnel whose credibility in respect of their expertise is beyond question, with a mandate to carry out comprehensive investigations into alleged violations of human rights and/or international humanitarian laws. If there are constitutional impediments for such a mix, foreign experts could be engaged as consultants on the basis of their expertise to assist investigations.       

Scope of the investigations  

The suggestion herein therefore, is to focus on investigations. However, unlike normal law and order situations when investigations into violations of human rights and/or humanitarian law could lead to prosecution depending on the comprehensiveness of the investigation, the intention is to limit investigations with the primary purpose of recording the acts relating to human rights law and/or humanitarian law violations that occurred during the conflict between 22 February 2002 when the Cease Fire Agreement was signed, and 19 May 2009 when the conflict ended.   

If instead, investigations are permitted to be comprehensive enough to warrant prosecution, the most likely outcome would be that more persons who represented the Government of Sri Lanka and others who were associated with the conflict would have to face prosecution. Such persons could either be those alleged to have committed violations or those who exercised command responsibility. 

In contrast, it is more likely that few of those associated with the LTTE would have to face prosecution because either there is no evidence as to who specifically committed the violations and acts of terror, or even if their identities can be established, they cannot be located since they have acquired new identities and are domiciled in foreign countries.   

Furthermore, others who were in positions to exercise command responsibility, cannot be prosecuted for the crimes committed such as, targeted assassinations and terrorist acts, conscripting civilians to take part in hostilities, taking over 300,000 civilians hostage and killing those who attempted to escape because they are no longer with the living.  

The net effect of such an asymmetric outcome following a prosecutorial process would permanently damage the efforts advocated and undertaken to bring about reconciliation by successive Governments. For the UNHRC to include the provision in several of its Resolutions that “a credible justice process should include independent judicial and prosecutorial institutions….”, is to ignore this reality because the perception of the UNHRC is based on the premise that prosecuting the guilty would foster reconciliation.   

While such a premise may be applicable to normal law and order situations, it is certainly not applicable in the case of an armed conflict that spanned three decades involving two communities, if the prosecutorial process causes disproportionate outcomes as referred to above. Furthermore, if the outcome is such that more from the Sinhala majority community is prosecuted than from the minority Tamil community for whatever reason, the consequences would be so serious that reconciliation would not only be a pipe dream but it would also precipitate outcomes that may be unimaginable.

In view of the real possibility of such serious outcomes, it is imperative that the scope of the investigation be constrained to such a degree that legal prosecution is not possible. However, the scope of the investigation could be such that it is possible to establish the body of evidence associated with a particular incident, but not enough to prosecute those who actually committed the act. For instance, there is evidence that the security forces targeted temporary hospitals despite being aware of their location. 

However, there is also counter evidence that the LTTE directed artillery fire from such locations and moved their ordinance soon after, thus prompting the security forces to target these make-shift hospitals. The investigation would then be limited to what each party to the conflict did in a given situation and not go beyond as to who was culpable to warrant prosecution under the relevant laws. Investigations would thus be a record of actions taken by respective parties to the conflict without going further to establish which party was responsible for which violation of which laws – Human Rights or Humanitarian.

The majority of internal conflicts that either occurred in other countries or those that are currently ongoing, are essentially conflicts between State entities and non-State armed groups.   Consequently, violations committed during such conflicts are governed by Human Rights Law. The conflict in Sri Lanka on the other hand, is recognised by the Office of the UN Human Rights Council in their Report on Sri Lanka (OISL) as a Non-International Armed Conflict governed by Common Article 3 of the Geneva Convention.  

Consequently, violations committed by either party to the conflict during the armed conflict are governed by International Humanitarian Law as codified in the Additional Protocol II of 1977 together with those Human Rights Laws that ‘cannot’ be derogated by the ICCPR and by the Constitution of Sri Lanka during a declared Emergency; facts acknowledged in the OISL Report.

Article 6, titled ‘Penal Prosecution’ of the Additional Protocol II of 1977 sets out the procedures that need to be followed whenever prosecutions and punishment of criminal offences during an armed conflict are undertaken.   

Section 2(a) of Article 6 states: “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him…”. This means that if an accused is to be informed of “the particulars of the offence alleged against him, the person concerned has to identified and located before he/she is prosecuted. While it may be possible to identify and locate more of those that were associated with the Sri Lankan Government for prosecution, it would be nearly impossible to identify and locate most of those who were associated with the LTTE for prosecution.   

In such a background a full-blown prosecutorial process involving internationally recognised lawyers engaged by either side would ‘not’ be in a position to navigate a meaningful outcome because the international lawyers engaged by the supporters of the LTTE would he armed with more material to prosecute Government’s agents while international lawyers engaged by the Government would have relatively few to prosecute. Consequently, the entire prosecutorial process would end up being skewed leading to the hardening and polarisation of attitudes between the Sinhala and Tamil communities; an outcome that should be avoided at all cost.                                

The scope of the investigation should therefore be limited to finding the truth as to the nature and extent of the violations committed by parties to the conflict. Going beyond and engaging in prosecuting those responsible for such violations by either party to the conflict would set in place trends with consequences that would be difficult to control. Therefore, as Governments have done in the past and continue to do, the recommendation in the last Section of Article 6 of the Additional Protocol cited below should be followed.     

Section 5 of Article 6 states: “At the end of hostilities the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”   

 

Conclusion

The approach pursued by repeated Resolutions of successive Human Rights Councils has been to investigate and prosecute those from both parties to the armed conflict in Sri Lanka who violated human rights and/or humanitarian laws from 22 February 2002 to 19 May 2009.  However, if such an approach is adopted, it would lead to an asymmetric outcome resulting in the polarisation of the two communities to a degree that could give cause for instability because the numbers associated with successive Governments who could be identified and prosecuted would in comparison be far in excess of those associated with the LTTE, since it would be next to impossible to identify and prosecute them because they are dispersed primarily in the West with fresh identities.    

Furthermore, while it would be possible to identify those associated with the Government responsible for command, it is ‘not’ possible to identify the leaders of the LTTE who were responsible for command, because they are no longer among the living.                     

In light of this hard reality, the approach should be to limit investigations, not with the intent of prosecution, but with the intent of recording the events that occurred during the armed conflict, and which party to the armed conflict could be identified with the respective violations. Such an investigation should be undertaken by a panel made up of a mix of both local and foreign experts responsible to the appointed Commission. 

At the end of such investigations the present leadership of the parties to the conflict should acknowledge the serious omissions and commissions committed by both parties and move on by declaring the broadest possible amnesty to all who were associated with the conflict as stated in Section 5 of Article 6 of the Additional protocol II of 1977 cited above.   Since such amnesties and  pardons have been instituted starting with the release of child soldiers and nearly 11,000 plus former LTTE combatants and more recently the release of prisoners, the practice has been in operation from time to time. The need therefore, is to regularise this practice and bring closure to an issue whose time has come.