Oette, Lutz

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Accountability and justice in Sri Lanka: a new chapter at last?Published on openDemocracy (http://www.opendemocracy.net) Accountability and justice in Sri Lanka: a new chapterat last?                                                 Lutz Oette, 19th May 2011         Subjects:International politics [1]Democracy and government [2]Conflict [3]Civil society [4]Sri Lanka [5]Lutz Oette [6]       The recommendations in the Report of the United Nations Secretary-General’s Panel of Expertson Accountability in Sri Lanka provide a good starting point for what should be done to free thecountry from its cycle of violence.   About the authorLutz Oette is Counsel at REDRESS, a human rights organisation that helps torture survivors obtainjustice, www.redress.org and Lecturer in Law at the School of Oriental and African Studies (SOAS)  Implementing the recommendations of the recently published Panel of Experts’ report on Sri Lanka,where credible allegations of international crimes are met with complete impunity, constitutes amajor challenge for the United Nations.The Report of the United Nations Secretary-General’s Panel of Experts on Accountability in Sri Lanka [7] relating to the final stages of the war in 2008/2009 was finally published on 25 April 2011. It isthe first time that the country has received the attention at UN level that its record of conflict andviolations merits. Unsurprisingly, the Report reads as a major indictment of both parties to theconflict that ended with the defeat of the Tamil Tigers (LTTE) in May 2009: “…the Panel foundcredible allegations, which if proven, indicate that a wide range of serious violations of internationalhumanitarian law and international human rights law was committed [by both parties], some ofwhich would amount to war crimes and crimes against humanity. Indeed, the conduct of the warrepresented a grave assault on the entire regime of international law designed to protect individualdignity during both war and peace.” The Panel went further and identified patterns of discrimination,impunity, repressive legislation and the steady erosion of the rule of law as major factors that havefacilitated violations over the years. It roundly dismissed the measures taken by the Government ofSri Lanka following the war that focused almost exclusively on the LTTE’s role.  The UN: Time to abandon its bystander roleThe Report would have missed an important dimension had it not pointed out the UN’s failure toprovide protection of civilians during the war. If anything, the expert’s analysis of the internationalrole is too narrow. Sri Lanka is one of the countries where most international actors have beenbystanders for years. This was not for want of knowledge. Yet, despite tens of thousands of deathsand countless well-documented violations, the UN Security Council or others did not take effectivemeasures [8] to address root causes. The UN Security Council only acted in May 2009 on the conflictin Sri Lanka, without, however, adopting any resolution.The role played by regional actors in Asia, support for its ‘fight against terrorism’ and a lack ofappetite to get involved must have convinced Sri Lanka that it could use ‘all means necessary’ tofinish the war against the LTTE without facing adverse consequences. As the Panel found, thisincluded widespread shelling of civilians and numerous other violations, such as extrajudicial killingsand torture. (The LTTE was held responsible for a series of violations, including killing civilians andforced recruitment of children)Page 1 of 4Accountability and justice in Sri Lanka: a new chapter at last?Published on openDemocracy (http://www.opendemocracy.net)Coming 15 years after the Rwanda genocide and four years after it endorsed the ‘Responsibility toProtect’ [9] populations from international crimes, the UN’s ineffective responses in Sri Lanka raisedanew the question whether the UN and other international actors are able to move beyond rhetoricwhen dealing with such crimes. This failure was compounded, adding insult to injury, by the UNHuman Rights Council’s 2009 special session. Acting as the main UN human rights body, iteffectively endorsed the sanitised version [10] of the war put forward by the Government of SriLanka, which simply blamed the LTTE and offered basic humanitarian assistance and reconstructionfor the future.The Report provides an opportunity for the UN system to play a leading role in seeking accountabilityfor international crimes committed during the war, offering a means to partly make good its earlierfailures. The experts recommend as much when requesting the UN Secretary-General to “immediately proceed to establish an independent international mechanism …,” which also has thepower to “conduct investigations independently into the alleged violations.” The Secretary- Generalresponded saying that “[i]n regard to the recommendation that he establish an internationalinvestigation mechanism, the Secretary-General is advised that this will require host country consentor a decision from Member States through an appropriate intergovernmental forum.”However, the Panel’s recommendations suggest that the UN Secretary-General has the power toestablish commissions of inquiry (under its UN Charter mandate). He has already established suchcommissions to investigate violations in Guinea [11] (2009) and the assassination of Benazir Bhutto [12] in Pakistan (2010). While both Governments consented to these inquiries, there is no reasonwhy an inquiry cannot go ahead without such agreement and be conducted outside the country ifneed be.The UN Secretary-General’s position may come to haunt the UN as it raises questions about itsability to respond to violations and promote accountability. The Government of Sri Lanka has notshown any willingness to take measures, as highlighted in the Panel’s Report. The UN Human RightsCouncil may not be willing to revisit the matter although this would be an opportunity to erase thestain on its reputation caused by the 2009 session. The UN Security Council, for its part, is alsounlikely to act. The position of some of its members on Sri Lanka, its reluctance to endorsecommissions of inquiry (other than against weak or isolated states) and its focus on eventselsewhere would suggest little appetite to act on the Panel’s recommendations any time soon.The looming inaction following the Report threatens to turn into a stalemate, which would reinforceviews about the selectiveness of international responses to international crimes. The consequencesand messages inherent in such outcome for the country are painful to fathom. The victims ofviolations would be denied justice, yet again. The UN’s wait-and-see response may be seen asindirect vindication of the Government’s position. Meanwhile, human rights defenders, journalistsand others may not be able to raise domestic awareness given the lack of political space. This is arecipe for cycles of violations to continue, ignoring the causes identified in the expert’s Report. Competing notions of accountability and justiceFailure to act would constitute a missed opportunity to respond to skeptics who point out thegrowing gulf between what they may portray as aspirational talk about accountability andcontrasting realities on the ground. This would be a pity. The Report is an excellent example of workby a group of experts who have cared to listen, taking a context-sensitive approach to do justice to acomplex post-conflict situation.The Report provides an opportunity to tackle two worrying developments in the field of post-conflictjustice. States find it increasingly difficult to ignore or even refuse outright to acknowledgeinternational standards, which require them to investigate violations and provide reparation forviolations. Instead, states are all too eager to embrace a notion of reconciliation that excludesaccountability. These developments are basically modelled on South Africa’s responses to Apartheid,which are frequently taken out of their context and stripped of their victim-centred, truth-seekingapproach. In this perverted top-down version of “transitional justice” by those still in power,Page 2 of 4Accountability and justice in Sri Lanka: a new chapter at last?Published on openDemocracy (http://www.opendemocracy.net)reconciliation effectively means blaming former enemies or performing officially endorsed rituals.Reparation becomes a repackaging exercise of measures that authorities would have had to take inany case, such as development and reconstruction.The Report did not mince its words to dismiss the Government of Sri Lanka’s approach to a‘state-sponsored’ transition, which by its very nature appears a contradiction in terms. The Panelcriticised Sri Lanka’s ‘Lessons Learnt and Reconciliation Commission’, stating that “the suggestionthat there is a choice between ‘restorative’ and ‘retributive’ justice is based upon a false dichotomy”and that it “… is simply not accurate [to equate criminal justice with retributive justice].” In addition, “[t]he Sri Lankan Government should use reparations as a demonstration of genuineacknowledgement of violations and as redress for victims, not as a cover-up for accountability.” And,finally, “[u]nless the Government of Sri Lanka takes significant steps to open greater political spaces,allow for free debate and permit independent efforts to document the truth of what happened duringthe final stages of the war, not even the best-conceived transitional justice approach will be able tomake an effective contribution to accountability and respect for the rights of victims.”The Panel’s recommendations provide a good starting point if not blueprint for what should be doneto free Sri Lanka from its cycle of violence – it is very clear that a peace at the expense ofaccountability, coupled with what the Report identifies as “triumphalism…on-going exclusionarypolitics… [and] the continuation of wartime measures” is the very opposite of what is needed.One of the first casualties of the war was the truth. Journalist were not allowed to enter the war zoneand Sri Lankan journalists were targeted for speaking out – the killing of Lasantha Wickramatunga inJanuary 2009 who had predicted his own assassination [13] a few days earlier, was the mostpoignant illustration of the nature of this assault. Truth about violations is not an abstract notion inSri Lanka. Rather, it is a suppressed memory of harm done and pain and suffering caused.Acknowledgment and truth, including a frank discussion of the root causes of conflict and violations,are imperative not only for the victims of the final stages of the conflict: it is also vital for many othervictims of violations committed over the last decades and for Sri Lankan society as a whole, if thereis any hope of overcoming deeply entrenched collective trauma. Indeed, the history of sharedsuffering may, if acknowledged and acted upon, be a unifying force that generates the impetus fordoing things differently. Country: Sri Lanka         Topics: Civil society        Conflict        Democracy and government        International politics                                                               This article is published by Lutz Oette, and openDemocracy.net under a Creative Commonslicence [14]. You may republish it with attribution for non-commercial purposes following the CCguidelines. For other queries about reuse, click here [15]. Some articles on this site are publishedunder different terms. No images on the site or in articles may be re-used without permission unlessspecifically licensed under Creative Commons.                        Source URL: http://www.opendemocracy.net/lutz-oette/accountability-and-justice-in-sri-lanka-new-chapter-at-last Created 05/19/2011 - 17:19 Links:[1] http://www.opendemocracy.net/topics/international-politics[2] http://www.opendemocracy.net/topics/democracy-and-government[3] http://www.opendemocracy.net/topics/conflict[4] http://www.opendemocracy.net/topics/civil-society[5] http://www.opendemocracy.net/countries/sri-lankaPage 3 of 4Accountability and justice in Sri Lanka: a new chapter at last?Published on openDemocracy (http://www.opendemocracy.net)[6] http://www.opendemocracy.net/author/lutz-oette[7] http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf[8] http://www.un.org/News/Press/docs//2009/sc9659.doc.htm[9]http://www.responsibilitytoprotect.org/index.php?option=com_content&amp;view=article&amp;id=398[10] http://www2.ohchr.org/english/bodies/hrcouncil/docs/11specialsession/S-11-1-Final-E.doc[11] http://www.unhcr.org/refworld/docid/4b4f49ea2.html[12] http://www.un.org/News/dh/infocus/Pakistan/UN_Bhutto_Report_15April2010.pdf[13] http://www.thesundayleader.lk/archive/20090111/editorial-.htm[14] http://creativecommons.org/licenses/by-nc-nd/3.0/[15] http://www.opendemocracy.net/about/syndicationPage 4 of 4

Accountability and Justice in Sri Lanka: a new chapter at last?

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