Post Geneva:

Waiting for reparation

by Dr. Paul Newman

Sri Lanka has committed some of the most heinous crimes against its own people, be it the Tamils or the Sinhalese in the post World War II period. The climax of it was the massacre of Tamil civilians in May 2009. There are 146,679 people unaccounted, 90,000 war widows, a minimum of 25,000 war orphans, 160,000 houses destroyed according to UN estimates, 7,000 square kilometres of land belonging to the Tamils in 18,000 sq kms inhabited by them under the control of the army.

Sri Lankans have waited decades for truth and justice  i.guim.co.u

The UN appointed three member panel of experts put the number of dead as 40,000. The UN review panel of Charles Petrie put the number of dead as 70,000 on a conservative estimate. The north of Sri Lanka counts as one of the most militarized zones in the world, despite the civil war ending more than six years ago.

Thousands of displaced are yet to be resettled. Many innocent Tamils are still languishing in unknown detention centres. Yet these verified facts and figures do not matter to the world as these Tamils are not of any political significance to any country.

The only recourse and solace, the Tamils and its Diaspora found post May 2009 was in the United Nations which had taken up their case after moral pressure asserted on it by many human rights groups. The UN was formed to protect the innocent civilians but today, the UN hardly intervenes when people are suffering, be it in Sri Lanka or Syria. They do not want to interfere with the sovereignty of the member nations!

Failure to protect

Do human rights and sufferings of the people inflicted by states come under the purview of state sovereignty?

In the name of 'state security,' state- sponsored terrorism was operated in Sri Lanka by its armed forces exclusively comprising 99% Sinhalese against the exclusive Tamil population living in the northern parts of Sri Lanka.

Four resolutions have been passed since 2009. In June 2009, the first resolution in fact complimented Sri Lanka as the first country in the history of the world to eliminate terrorism from its soil. The massive presence of the Chinese in Sri Lanka was a cause of concern to both India and the US.

In 2012 and 2013, the soft resolutions urged Sri Lanka to implement its own Lessons Learnt and Reconciliation Commission report published in 2011. When Sri Lanka failed to comply, in 2014, a stronger resolution authorized the Office of the High Commissioner for Human Rights Investigation in Sri Lanka (OISL) to be set up. The report of the OISL which was supposed to be published in March 2015 was delayed by six months to give space to the new President to bring about reforms.

On September 16, 2015, the OISL report was published and it acknowledged that they were not permitted to enter Sri Lanka even after the regime change. The International Crisis Group (ICG) which has produced some good ground level reports on Sri Lanka had the following in its statement.

"Sri Lanka has seen decades of failed investigations and prosecutions, with fewer than half a dozen successful prosecutions of (low- and mid-level) military personnel for hundreds of serious human rights cases. No senior commander has ever even been charged with a war-related crime, and the military retains significant autonomy from civilian oversight. Witnesses and rights activists in the Tamil areas of the North and the East continue to be threatened. Police investigations into a few high-profile cases from the Rajapaksa era reportedly face resistance from military leadership. Legislation parliament approved for a witness-and-victim-protection system in February has yet to be implemented and lacks provision for protection units independent of the police and testimony of the many witnesses outside the country."

The UN investigation in Sri Lanka was on war crimes and crimes against humanity. Sri Lanka had very seriously violated International Laws and as a state party to many UN International instruments, should be tried in an International mechanism as domestic laws in Sri Lanka are inadequate to deal with International crimes committed by them. The draft resolution does not use the words war crimes or crimes against humanity anywhere.

Soft language and stance

The language used in the draft resolution is very much evident that US does not want to hurt the sentiments of Sri Lanka. In the preamble, the US uses the word 'welcome' seven times. In the Operational para, the word 'welcome' is used 10 times and the word 'encourages,' some six times.

In operational para 5, the resolution is sure of the abuses committed by the LTTE, on the other hand, in operational para 6, it welcomes and appreciates 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.

The resolution has no specific timeframe for implementation. As President Sirisena stands accused of war crimes as the then Defence Minister, who will prosecute him as he enjoys immunity?

The LTTE was a non- state actor and you can't treat them on a par with Sri Lanka, though they have a moral obligation to respect International laws, they have not signed any international treaties and can be tried only according to domestic laws. More importantly, more than 18,000 LTTE cadres have already undergone punishment and rehabilitation.

There's no mention of international guarantee of witness protection given the great history of impunity, mass graves, disappearances, torture, rape, murder and white van abductions. The Government has categorically stated that they will not demilitarize, still that has been included in the resolution.

Out of 67,000 acres of land taken over by the armed forces only 1,000 acres have been returned over the past eight months and there is no guarantee of returning all land belonging to civilians and dismantling the high security zones. The period of investigation is only from 2002 to 2012. What happens to the other victims from 1983 to 2002? Will they get any reparations or be counted?

The resolution was a consensual one without voting. There is euphoria in Sri Lanka as it gives Sri Lanka another 18 months of leverage and an easy exit strategy from this mess. States and governments can wait as it is a very short period of time for them. Can the victims wait?

Dr. Paul Newman holds a Doctorate of Philosophy on Internal Displacement and Human Rights situation in Northern Sri Lanka from Bangalore University. He was one of the four public speakers at the Permanent People's Tribunal on War Crimes against Sri Lanka.

This article was originally published by Eurasia Review