The recent findings of two inquiry commissions in Sri Lanka underscore the need for a formal process to investigate and prosecute those responsible for grave crimes during the armed conflict that spanned three decades.
The submission of the reports in Parliament should be welcomed, although it could also be interpreted as a signal to the international community that the domestic mechanisms are strong enough. The Maxwell Paranagama Commission, mandated to probe cases of missing persons and allegations of war crimes, has established that there were significant civilian casualties caused by Sri Lankan Army shelling in 2009 and that there may have been many individual acts of war crimes.
The three-member Commission has, however, mainly blamed the Liberation Tigers of Tamil Eelam (LTTE) for the civilian deaths, noting that it used civilians as human shields, placed weaponry in their midst and prevented them from leaving war zones.
At the same time, the panel has pointed to the need to probe the exact circumstances of each instance of shelling of civilian clusters to fix individual responsibility. It has recommended an investigation led by a judge into some cases – such as the killing of LTTE political leaders while they were surrendering to the army, the disappearance of over a hundred LTTE members after their surrender, and the death of Balachandran, son of LTTE leader V. Prabakaran. Instituting presidential commissions of inquiry is quite common a practice in Sri Lanka. But the mechanism is inherently limited in scope as the proceedings do not amount to criminal prosecution. An earlier exercise by the Lessons Learnt and Reconciliation Commission (LLRC) was notable for its acknowledgment of violations of human rights and humanitarian law, and its recommendations for justice and reconciliation.
The Paranagama Commission has contributed immensely to the cause of truth-seeking and justice by flagging key instances and setting out the circumstances in which they took place. It has identified the legal framework in which actions on the battlefield ought to be assessed. On the other hand, the N.K. Udalagama Commission, which probed certain grave crimes that took place in 2005-06, has some controversial findings.
It has blamed the LTTE for the death of 51 schoolgirls in August 2006 in an air strike, failing to note that their being possible LTTE recruits was not sufficient ground to target them. Also, the claim that the LTTE could have killed 17 local workers attached to an international aid agency appears to be only conjecture.
With Sri Lanka under pressure from the international community to probe the crimes, it has to come up with a mechanism that is more credible. A model rooted in international principles and drawing on translational legal and forensic expertise will have to be evolved so that an empowered domestic judicial process can address the issue. Transitional justice requires sustained action, not just sporadic inquiries.