After releasing a long-anticipated report on Sri Lanka's civil war, which pitted the government against Tamil Tiger rebels and claimed the lives of tens of thousands of civilians in its last months, the United Nations has asked that the country establish a hybrid court to investigate crimes committed during the conflict.
The Office of the UN High Commissioner for Human Rights had originally planned to release the investigative report in March, but postponed it for six months following Maithripala Sirisena's electoral victory in January against the incumbent president, Mahinda Rajapaksa, who had overseen the conclusion of the war. Rajapaksa and Sirisena had both barred the investigators who drafted report, which covered the years between 2002 and 2011, from entering the country. The presence of international officials in the country has long been a point of bitter contention. Rajapaksa's administration considered a 2011 domestic inquiry into the war as sufficient, but human rights groups called it grievously inadequate in addressing accountability.
Despite the lack of access, the 261-page report determined that rebels and government forces both committed atrocities, painting a damning picture of gross human rights violations and impunity.
"Our investigation has laid bare the horrific level of violations and abuses that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes," said UN human rights chief Zeid Ra'ad al-Hussein.
Six years after its bloody and brutal conclusion, the war's echoes still resonate across the country, whose population is split between a mostly Buddhist Sinhalese population and minority Tamil, Muslim, and Christian communities. (Tamils in Sri Lanka are mostly Hindu).
The UN assessment describes the government's widespread use of torture following the defeat of the Tamil Tigers in 2009. Civilians were taken en masse to army camps, police stations, and various unidentified locations, where they were brutalized. Security forces also raped and perpetrated other forms of sexual violence.
The Tamil Tigers, who became known internationally for their audacious suicide attacks, were found to have used child soldiers extensively, particularly as the rebels neared collapse during the later stages of the war. Forced conscription and abductions were widespread in Tamil Tiger-controlled territory.
The report's release and Zeid's recommendations on Wednesday come two days after Sri Lanka's foreign minister told the United Nations Human Rights Council that the country would create a truth and reconciliation commission with input from officials in South Africa, and take other steps to bring closure for the families of more than 100,000 people who were killed and the tens of thousands that disappeared and whose fate remains unresolved.
In a statement, Zeid said that despite those steps, "a purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fueled by decades of violations, malpractice, and broken promises." He called instead for a "hybrid special court, integrating international judges, prosecutors, lawyers, and investigators."
Alan Keenan, a Sri Lanka researcher at the nonprofit International Crisis Group, thinks that a commission modeled on the one that followed the end of apartheid in South Africa, which focused on airing abuses and less on creating justice mechanisms, would be insufficient. Though Sirisena ran against the man credited with winning the war, Keenan pointed out that he is also a member of the Sinhalese majority and had been a close political associate of Rajapaksa. Sirisena was formerly the general-secretary of Rajapaksa's Sri Lanka Freedom Party and had served as the president's health minister up until last fall, when he abruptly announced he would join the opposition and contest the presidency.
Keenan said that it remains to be seen if Sirisena has the political capital to carry out Zeid's recommendations.
"There will clearly be resistance from the military and from strongly Sinhalese nationalist groups," he remarked. "A lot of Sinhalese have been taught to see the government's national security forces as heroes that have defeated this ruthless terrorist organization."
"It will take a while for people's attitude to change," he added.
The UN had previously estimated that as many as 40,000 Tamil civilians were killed in the final months of the war, chiefly by government shelling as the Tigers retreated. Most of the civilians in these territories who survived either fled or were forced to accompany the rebels.
Bhavani Fonseka, senior researcher at the Center for Policy Alternatives in Colombo, sees the report as a welcome step that could help underscore to Sri Lankan leaders that it is imperative to hold those who committed these crimes accountable — a reckoning that they have been slow to realize.
"It's good, because we've had so many past failures," she said. "I think there is more space now for [an international court] to happen compared to 2014."
"Our concern from civil society is that it can't be set up in the present framework. There has to be considerable reform taken," she added, referring to the country's legal code, which the UN called inadequate to "deal with international crimes of this magnitude."
"It does not have laws criminalizing enforced disappearances, war crimes, crimes against humanity or genocide," the report said. "Its legal framework does not enable individuals to be charged with different forms of liability, notably command or superior responsibility."
The UN human rights office said that Sri Lankan authorities had previously prosecuted conflict-related cases by using "regular criminal law" charges, including murder. This approach fails to reflect the "gravity of the crimes," according to the UN, as well as their status as violations of international humanitarian law.
Like Keenan, Fonseka said that the government's reaction to the UN's recommendation will be revealing. Both suggested that a resolution on Sri Lanka at the UN Human Rights Council, which is expected to include input from the government, could indicate just how far Sirisena and his allies are willing to go.
"I suspect it's more of a political question in terms of whether people are ready to have a group of international investigators and prosecutors come to Sri Lanka and be involved in the accountability process," said Fonseka.
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