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Road To Reckoning

The release of the long awaited OHCHR investigation into Sri Lanka (OISL) report last week is a monumental moment for the victims of mass atrocities on the island and all those who continue to work towards seeing justice served. The crucial document, which was mandated by a UN resolution, meticulously outlines the gravity of the crimes perpetrated, and lays down the path towards accountability for them. Clear decisive action must now be taken to follow it.

The report is damning. Crimes committed before and after the climax of the armed conflict were laid bare. The suffering that Tamils endured, including the state’s calculated and deliberate shelling of hospitals, the deprivation of food and medicines, extra judicial killings, torture and the “particularly shocking” use of sexual violence, all made for grim reading. As the report notes, the Sri Lankan military “retains an oppressive presence in the war-affected areas of the north and east… maintaining a culture of surveillance and harassment of the local population and civil society”.

By Sri Lankan Foreign Minister Mangala Samaraweera’s own admission, troops “were acting on orders they received”. The report states, the gravity, consistency and widespread pattern of the attacks, required resources, coordination, planning and organisation. The High Commissioner said this all points towards crimes of a grave and systematic nature “with a design at various levels of the state”. The victims have clearly articulated that this amounts to genocide - a conclusion that the High Commissioner did not rule out upon future criminal investigation. The charge now requires thorough judicial scrutiny. His office was unequivocal that Sri Lanka cannot investigate these crimes domestically.

Despite more cordial relations with the office since the new government came to power, Colombo’s reluctant proposals fall far short of what the OISL outlined as the bare minimums needed. If Sri Lanka is sincere in dealing with accountability, it must heed those recommendations without reserve. The doors must be open to an international criminal investigation, with decisive international involvement at all levels, including international judges that will prosecute international crimes.

Any mechanism that proceeds without these clearly defined positions risks falling the way of previous commissions. Mr Samaraweera’s assertion that the burden of criminal investigation continues to lie with the state, will stir no confidence in the victims that this occasion will be different from the past. Indeed, whilst even announcing these proposals, Prime Minister Ranil Wickremesinghe lamented the previous government’s agreement for a domestic investigation, and President Sirisena boasted of saving military commanders from being named in the report. These statements will only compound the victims scepticism in any domestic process. As the OHCHR noted, this government too denied OISL investigators entry. This will not assuage the fears of witnesses, many of whom risked their lives and their liberty to ensure the publication of this report, or instil confidence in testifying before any domestic mechanism. Their safety must be guaranteed by the international community and a process that all victims have facilitated and have faith in implemented. Without a process that wins the confidence of those who suffered the most at the hands of the state, witness participation will not exist. 

Meanwhile steps must be taken in parallel to win the confidence of beleaguered victims, including the return of unlawfully occupied land by the military, an immediate halt on ongoing torture, repealing the Prevention of Terrorism Act and releasing the names of Tamil detainees. Allowing the OHCHR to establish a presence in the North-East and ratifying the Rome statute would be welcome gestures that send a wider signal of co-operation with the international community. Through the continuous monitoring of tangible deliverables, the international community must also hold Sri Lanka to its commitment given to the UNHRC of non-recurrence by seeking a political solution that addresses the grievances of the Tamil people.

Whilst the recognition of the grave nature of these crimes and the suffering faced is undoubtedly welcome, without a concrete path to justice, it will provide little solace to the victims. Indeed, over the last six years, in the face of continuing harassment and oppression, it is they who have tirelessly repeated their calls for an international process of justice. An internationally mandated investigation has now acknowledged that the crimes cannot be tackled by a domestic mechanism - a rationale that Tamils had consistently argued was the case. It was the international community that mandated the OISL report and it now requires those members to follow through with robust action.

The failures of the international community have been documented in the Petrie report. The OISL report now signals a historic juncture where those failures can be put right and justice that is long overdue served. Only a UN Human Rights Council resolution, that incorporates all the recommendations made by the OISL team, will drive change in Sri Lanka. The crimes are simply too grave for any other mechanism to take its place. Sustained international pressure, the single largest factor that has been key to driving progress on Sri Lanka, cannot falter now. Only that can bring about an enduring peace to the island and restore the Tamil people’s much worn faith in the international community.

Illustration by Keera Ratnam