Whether the families of the victims – or the survivors – will ever find justice when the state refuses to acknowledge that enormous crimes were committed, is moot. That is a battle which must be fought
The report of the Investigation on Sri Lanka – carried out by the Office of the UN High Commissioner for Human Rights (OHCHR) and released on September 16, 2015 together with the High Commissioner’s overview – details the lawless savagery with which Sri Lanka fought its war against the LTTE, an enemy just as brutal, though unable to match the scale on which the machinery of a State could terrorise when it went rogue.
The UN’s investigators have confirmed that these crimes were commonplace – unlawful killings, violations related to the deprivation of liberty, enforced disappearance, torture and other forms of cruel, inhuman or degrading treatment, sexual and gender-based violence, abduction of adults and forced recruitment, recruitment and use of children in hostilities, the impact of hostilities on civilians and civilian objects, controls on movement, denial of humanitarian assistance, screening and deprivation of liberty of internally displaced persons in closed camps. These were violations of international human rights law, of international humanitarian law – the laws of war – and should have been crimes under Sri Lankan law as well.
States whose agents are charged with crimes like these deny that they were committed – until evidence mounts that cannot be explained away. Then they claim that these were rare exceptions, breaches of discipline by a few wayward individuals, which should not be allowed to sully the image of the institution or tarnish the reputation of the state. (India has written the book on this, though Israel’s translations are also superb). The UN report denies Sri Lanka that tattered fig-leaf with this finding:
“The sheer number of allegations, their gravity, recurrence and the similarities in their modus operandi, as well as the consistent pattern of conduct they indicate, all point towards system crimes. There are reasonable grounds to believe that gross violations of international human rights law, serious violations of international humanitarian law and international crimes were committed by all parties during the period under investigation. Indeed, if established before a court of law, many of these allegations may amount, depending on the circumstances, to war crimes if a nexus is established with the armed conflict and/or crimes against humanity if committed as part of a widespread or systematic attack against a civilian population.”
This report, which seems to pull no punches, will inevitably be compared to that of the Commission of Inquiry also appointed by the Human Rights Council to investigate the conduct of the conflict in the Gaza Strip in 2014.
The Davis Report, which came out in June this year, indicted Israel on several counts, but was still criticised for not being as forthright as the one on the 2008-9 war in Gaza, prepared by Richard Goldstone. Israel and its many supporters, which launched a massive attack on Goldstone and his report, started a pre-emptive campaign against the Davis inquiry that, in the view of its many critics, ensured its findings and recommendations were not as clear as they should have been. There will be murmurs that when the West demands an inquiry on the conduct of a developing country, as it did for Sri Lanka, the UN produces a damning report, but is much more careful and nuanced when a state like Israel, with its powerful patrons, is in the dock.
That would be unfair to the authors of both reports, and it would be a pity if this canard were to influence decisions in the Human Rights Council on the report on Sri Lanka. In fact, it could be argued that on Sri Lanka, the OHCHR has been more cautious in its findings than Judge Davis was. Throughout, after reporting on what Israel had done, she recorded her view that this act was, or may have been, a war crime.
In contrast, the report on Sri Lanka introduces a caveat, explaining that, if established in a court of law, the acts it describes would qualify as war crimes or crimes against humanity, as in its findings on torture:
“there are reasonable grounds to believe that acts of torture were committed on a widespread or systematic scale… This breaches the absolute prohibition of torture, and Sri Lanka’s international treaty and customary obligations. If established before a court of law, these acts of torture may, depending on the circumstances, amount to crimes against humanity and/or war crimes.”
That is a more tenuous conclusion, which will permit Sri Lanka to argue that unless these conclusions are tested and proven in court, they cannot be given credence. Which will then raise the critical question, where and how will these crimes be tried? The High Commissioner has recommended “an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity”. The Government of Sri Lanka has apparently said that it does not accept this recommendation. Without it, though, it is unlikely that those who committed these appalling crimes can ever be brought to justice.
Uncomfortable echoes in India
India has a moral responsibility in all this. We created the monster of the LTTE, let it kill off its moderate rivals, and accepted Prabhakaran for years as the sole defender of the Tamils, while he became their incubus. And we acquiesced in the barbaric denouement of the war. But it is a given that if Sri Lanka argues that the recommendation for a “hybrid special court” is racist and patronising, belittling the independence and integrity of the judicial system in a developing country, this will find many takers in the Council, and India will be one of them. We have always rejected any UN prescription that smacks of a colonial disdain of the Third World and its indigenous structures.
In this case, however, there will be more self-serving interests at play. I know from my five years on the National Human Rights Commission that the crimes the UN has charged the Sri Lankan forces with are committed again and again by our Army, paramilitary and police in all the domestic conflicts that plague us, from Jammu & Kashmir to Manipur to the Maoist insurgency. The reports from each military unit were bizarrely similar, and each state police force had its own narrative, forcing the inference that these were templates that had been laid down for reports to the Commission. It led in turn to the suspicion that these were systemic crimes, mandated by higher command, not the aberrations of a few.
What we found was very similar to what the UN investigators have reported for Sri Lanka:
“These patterns of conduct consisted of multiple incidents that occurred over time. They usually required resources, coordination, planning and organisation, and were often executed by a number of perpetrators within a hierarchical command structure. Such systemic acts cannot be treated as ordinary crimes but, if established in a court of law, may constitute international crimes, which give rise to command as well as individual responsibility.”
A remarkable book just published – Blood on My Hands: Confessions of Staged Encounters by Kishalay Bhattacharjee – has confirmed that our suspicions were justified. His interviews with army and police officers show, sadly and shamefully, that in India’s conflict zones, these crimes were indeed standard operating procedure. Whether the families of the victims, or the survivors, will ever find justice, when the state refuses to acknowledge that these enormous crimes were committed, is moot. That is a battle which must be fought. But India has blood on its hands in Sri Lanka as well. Unless it helps, belatedly, to make amends there, they will never be clean.
Satyabrata Pal is a former Indian diplomat. He served as India’s High Commissioner to Pakistan, and as a member of the National Human Rights Commission
The UN report on Sri Lanka is divided into two parts. Clicking on the links below will download a .docx file to your computer.
1) The overarching Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights (A/HRC/30/61) can be found here.
2) The accompanying report of the OHCHR Investigation on Sri Lanka (A/HRC/30/CRP.2) can be found here.