The international community continues to have a collective responsibility to act on Sri Lanka under the doctrine of R2P, even though it may have failed to halt the atrocities during the final months of the armed conflict, wrote Henrietta Briscoe in E-International Relations.

The former Litigation and Advocacy Officer for Tamils Against Genocide argues that the concept of ‘Responsibilty to Protect’ has been too restrictively applied and proposed that the idea of ‘Responsibility After Not Protecting’ forged within R2P, can be utilised even after a crisis.

Briscoe went on to put forward that whilst R2P is conceptualised as being only applicable within the borders of a ‘host’ state, Sri Lankan state violence exceeds those borders. She states that full engagement of the international community is thus needed and can be applied in areas such as political asylum, litigation and diplomacy.

She adds,

“Above all, concerted engagement must start with rigorous analysis. In the reviews of Sri Lanka’s record at the Human Rights Council, there was a worrying tendency among states party, to beg for ‘time’ on Sri Lanka’s behalf: time to transition from war to peace... But failure to ‘protect’, in war and peace, can also be intentional. Giving more time to a state that has intentionally committed atrocities against its own populace is deeply problematic.”

“Without a rigorous case by case analysis, set in historical context, and without the international community remaining alive to its enduring responsibilities, the true nature of the state is all too easily obscured, and failings are understood, as they too often are in the case of Sri Lanka, reductively, as the product and proof of the inadequacies of ill-formed institutions that have been corrupted by a long civil war.”

Briscoe concludes,

“Under R2P, the International community has a collective responsibility after not protecting, RANP, if not a collective obligation. It is a responsibility to be exercised here and now. Continued failure with regards to Sri Lanka serves to give confidence to those who would transgress the peremptory norms of international law, that they can do so with impunity.”

Extracts from her piece have been reproduced below. See the full piece here.

The failure of R2P in Sri Lanka
With the exception of Sri Lankan state denials, there is now near full acceptance that Sri Lanka was responsible for the commission of atrocities particularly in the final months of the war. The UN Panel of Experts report from March 2012 puts the civilian death toll at a minimum of 40,000. The November 2012 Internal Review Panel Report, the ‘Petrie’ report, references ‘credible reports’ that civilian casualties were as many as 70,000.

The International Community has recognized its own failures in 2009: the Petrie report detailed both the extent of knowledge of the crimes perpetrated by the Sri Lankan state against its citizens and the lack of international action in the face of such knowledge. It was not a war without witness, but a war where a decision was made not to bear witness. More recently, Madeleine K. Albright and Richard S. Williamson, in their capacity as co-chairs of the Working group on the R2P, observed, “Tens of thousands of Tamil civilians died at the end of the Sri Lankan civil war with little inter-national outcry or effective UN response”. Sri Lanka is thus an example of R2P “double manifest failure”: a failure to protect on the part of both the state and the international community.

Despite the overwhelming evidence of Sri Lankan state responsibility for crimes against International Humanitarian and Human Rights Law, attempts to bring the Sri Lankan state and its officials to account are frustrated on multiple levels.

Today’s abuses in Sri Lanka are a continuation of past crimes and policies. A potent blend of impunity and triumphalism begets yet more Tamil suffering. Although the international community has reflected upon its own failures, it is in danger of filing away that failure, of consigning it to the past as though the time for R2P action is over. But the violence has not stopped. The citizens of Sri Lanka continue to be failed, nationally and internationally, in part because R2P is understood and employed too narrowly.

Responsibility After Not Protecting (RANP)
The available measures to ‘protect’ and ‘prevent’ under the R2P are many and varied. The provision of justice is part and parcel of the international community’s responsibilities under R2P. Madeleine K. Albright and Richard S. Williamson, in their co-authored report, previously mentioned, recognise the pre-eminent importance of prevention within the R2P and the significance of justice and accountability for prevention. The imperative to provide justice is arguably made all the more pressing after a demonstrable failure of R2P, as is the case in Sri Lanka, where the state (having perpetrated crimes against the Tamil people during the conflict, in contravention of international humanitarian law), is now, in the space enabled by impunity, committing grave human rights violations predominantly against the same body of people.

RANP is a concept forged entirely from within R2P. As such, it is not a new creation. But it is in need of its own title in order to impress that R2P is as alive and pertinent after a failure, after a mass atrocity, as it is at the point of commission of that atrocity. RANP demands that the international community remains fully engaged – and in diverse ways and places – in the aftermath of a crisis, in the understanding that the obligations of the R2P’s third pillar still hold. In the case of Sri Lanka, the lack of any meaningful lawful accountability for crimes, the systematic cruelty of the ‘rehabilitation’ programme of former members of the LTTE, the flood of asylum boats laden with their desperate cargo, all are examples testifying to the failure of R2P today, post ‘conflict’ – that is, a failure of RANP.

R2P’s utility has been suffocated by a too narrow temporal interpretation of its reach, but also by a restrictive spatial understanding. Although conceptually the there and here are bound in R2P – since the domestic is made the concern of the international – in terms of action the distinction between the here and the there remains heavily drawn. That is, the site of action under R2P is largely conceived as being within the borders of the R2P ‘host’ state, over there where the crisis is unfolding. But Sri Lankan state violence post 2009 firmly exceeds the boundaries of state; the government of Sri Lanka conducts surveillance on Tamil diaspora groups, and treats that diaspora as inherently dangerous. And it is only outside of Sri Lanka that survivors can speak out. In the absence of political consensus among the members of the UN Security Council on the situation in Sri Lanka, individual member states can nevertheless, in the interim, at least meet some of their responsibilities under R2P, here at home.