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Accountability and the Sri Lankan Civil War

Published online by Cambridge University Press:  20 January 2017

Steven R. Ratner
Steven R. Ratner*
Affiliation:
University of Michigan Law School
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Extract

Sri Lanka's civil war came to a bloody end in May 2009, with the defeat of the Liberation Tigers of Tamil Eelam (LTTE) by Sri Lanka's armed forces on a small strip of land in the island's northeast. The conflict, the product of long-standing tensions between Sri Lanka's majority Sinhalese and minority Tamils over the latter's rights and place in society, had begun in the mid-1980s and ebbed and flowed for some twenty-five years, leading to seventy to eighty thousand deaths on both sides. Government repression of Tamil aspirations was matched with ruthless LTTE tactics, including suicide bombings of civilian targets; and for many years the LTTE controlled large parts of northern and eastern Sri Lanka.

Type
Current Developments
Information
American Journal of International Law , Volume 106 , Issue 4 , October 2012 , pp. 795 - 808
Copyright
Copyright © American Society of International Law 2012

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References

1 For useful background, see, for example, the Sri Lanka Reader: History, Culture, Politics (Holt, John Clifford ed., 2011)CrossRefGoogle Scholar; Nira Wickramasinghe, Sri Lanka in the Modern Age: A History of Contested Identities (2006); John Richardson, Paradise Poisoned: Learning About Conflict, Terrorism and Development From Sri Lanka’s Civil Wars (2005).

2 See U.S. Dep’t of State, Country Reports on Terrorism 2010, ch. 6 (Aug. 18, 2011), at http://www.state.gov/j/ct/rls/crt/2010/170264.htm; Council of the European Union, Declaration by the Presidency on Behalf of the European Union Concerning Listing of the Lite as a Terrorist Organisation, Doc. 9962/06 (May 31, 2006).

3 GA Res. 60/1, paras. 138-39 (Oct. 24, 2005).

4 Press Release, Secretary-General, Joint Statement by UN Secretary-General, Government of Sri Lanka, UN Doc. SG/2151 (May 26, 2009), at http://www.un.org/News/Press/docs/2009/sg215l.doc.htm.

5 UN Human Rights Council, S-11/1 Resolution on Assistance to Sri Lanka in the Promotion and Protection of Human Rights (May 27, 2009) (passed by 29-12-6). Documents and resolutions of the Human Rights Council are available at http://www.ohchr.org/En/Hrbodies/Hrc/Pages/Documents.aspx.

6 See, e.g., International Crisis Group, War Crimes in Sri Lanka (2010), at http://www.crisisgroup.org/en/regions/asia/south-asia/sri-lanka/191-war-crimes-in-sri-lanka.aspx.

7 See, e.g., id. at 36-37.

8 For the LLRC’s mandate, see Report of the Commission of Inquiry on Lessons Learnt and Rec Onciliation, at III-IV (2011), at http://slembassyusa.org/downloads/LLRC-Report.pdf.

9 Press Release, Secretary-General, Secretary-General Names Panel of Experts to Advise on Accountability for Possible Rights Violations During Sri Lanka Conflict, UN Doc. SG/SM/12967 (June 22, 2010), at http://www.un.org/News/Press/docs/2010/sgsml2967.doc.htm [hereinafter Secretary-General’s Statement].

10 Darusman had served on the UN commission of inquiry investigating the assassination of Benazir Bhutto; I had served on the secretary-general’s Group of Experts for Cambodia; and Sooka had served on the South Africa and Sierra Leone Truth and Reconciliation Commissions.

11 The panel was funded by the secretary-general’s discretionary fund for peace and security matters.

12 SC Res. 1564, para. 12 (Sept. 18, 2004) (Darfur); HRC Res. S-9/1, para. 14 (Jan. 12, 2009) (Gaza); HRC Res. S-15/1, para. 11 (Mar. 3, 2011) (Libya); HRC Res. S-16/1, para. 7 (May 4, 2011) (Office of the High Commissioner for Human Rights mission to Syria); HRC Res. 16/25, para. 10 (Apr. 13, 2011) (Côte d’Ivoire).

13 Gares. 52/135, para. 16 (Feb. 27, 1998); Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, para. 6 (Feb. 18, 1999), addended to Identical Letters Dated 15 March 1999 from the Secretary-General to the President of the General Assembly and the President of the Security Council, UN Doc. A/53/850-S/1999/231 (Mar. 16, 1999); addended to Ramer, Steven R., The United Nations Group of Experts for Cambodia, 93 AJIL 948, 949 (1999)Google Scholar.

14 Statement by the President of the Security Council, UN Doc. S/Prst/2004/17 (May 25, 2004).

15 Letter Dated 2 February 2009 from the Secretary-General to the President of the Security Council, UN Doc. S/2009/67 (Feb. 3, 2009) (informing Council of commission of inquiry).

16 See Secretary-General’s Statement, supra note 9.

17 See, e.g., Press Release, Secretary-General, Secretary-General Names Members of High-Level Advisory Group on Mobilizing Climate Change Resources, UN Doc. SG/A/1223-ENV/DEV/1113 (Mar. 4, 2010); United Nations, Johannesburg Summit 2002, Secretary-General’s High-Level Advisory Panel, at http://www.johannesburgsummit.org/html/documents/sgpanel.html.

18 Secretary-General’s Statement, supra note 9.

19 Id.

20 Within the United Nations, the panel received briefings from military experts as well as the United Nations Operational Satellite Applications Programme.

21 See Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, paras. 20-22 & Annex 2 (Mar. 31, 2011), at http://www.un.org/News/dh/infocus/Sri_Lanka/Poe_Report_Full.pdf [hereinafter Poe Report]. The panel’s report does not have a UN document number because no entity within the UN system with authority to give it such a number has done so. The report is on the UN Human Rights Council’s extranet, however, along with other documents received by the Council president.

22 Id., para. 51.

23 Id.

24 See, e.g., Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, para. 5, UN Doc. A/HRC/S-17/2/Add. 1 (Nov. 23, 2011) (“the standard of proof used was one of reasonable suspicion’ . . . [which] was met when the commission obtained a reliable body of evidence, consistent with other information, indicating the occurrence of a particular incident or event.”); Report of the United Nations Fact-Finding Mission on the Gaza Conflict, para. 171, UN Doc. A/HRC/12/48 (Sept. 25, 2009) (“assessing whether, in all the circumstances, there was sufficient information of a credible and reliable nature for the Mission to make a finding in fact”).

25 See POE Report, supra note 21, paras. 169-71.

26 paras. 48-175.

27 Id., para. 177.

28 Id., para. 137.

29 Id., paras. 192—259. Although various Tamil exile groups routinely deployed the word genocide to describe governmental actions, the panel made no such legal determination based on the credibly alleged violations.

30 Id., para. 185.

31 Id., para. 188.

32 Id.

33 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, supra note 24, para. 305 (“non-State actors that exercise government-like functions over a territory have a duty to respect human rights”). For an endorsement of the panel’s more cautious position, see Report of the International Commission of Inquiry to Investigate All Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya, para. 62, UN Doc. A/HRC/17/44 (Jan. 12, 2012) (“where non-State groups exercise de facto control over territory, they must respect fundamental human rights of persons in that territory”).

34 Poe Report, supra note 21, para. 189.

35 Id, paras. 290-399.

36 Because Sri Lanka is not a party to the ICC Statute and would likely not consent to ICC jurisdiction in any case, only a Security Council referral would allow an ICC case to proceed.

37 Poe Report, supra note 21, para. 444 (Recommendation 1).

38 Id.

39 See sources cited supra notes 12-14.

40 See, e.g., Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security, GA Res. 46/59, annex, paras. 12-13, UN Doc. A/Res/46/59 (Dec. 9, 1991); Sc Res. 1405, pmbl., op. para. 4(2) (Apr. 19, 2002) (commending secretary-general for creation of fact-finding mission).

41 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, supra note 24, paras. 7-13.

42 See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, paras. 643-46 (Jan. 25, 2005), at http://www.un.org/news/dh/sudan/com_inq_darfur.pdf (noting list of names passed confidentially to secretary-general).

43 See Poe Report, supra note 21, paras. 401-03, 444 (Recommendation 3).

44 See supra note 5 and accompanying text.

45 Poe Report, supra note 21, paras. 136, 444 (Recommendation 4).

46 See, e.g., Sri Lanka Ministry of External Affairs, The Government of Sri Lanka Reiterates Its Position That the “Darusman Report” Is Fundamentally Flawed in Many Respects (Apr. 27, 2011), at http://www.mea.gov.lk/index.php/media/2742-tbe-government4)f-sri-lanka-reiterates-its-posirion-mat-the-qdarusman-reportq-is-rundamentally-flawed-in-many-respects.

47 See, e.g., Tamil National Alliance, TNA Response to the UN Expert Panel’s Report on Sri Lanka, Act. 18, 2011, at http://www.sangam.org/2011/05/Tna_Response.php?uid=4348 (translation from Tamil Guardian).

48 Statement Attributable to the Spokesperson for the Secretary-General on Public Release of Panel of Experts’ Report on Sri Lanka (Apr. 25, 2011), at http://www.un.org/sg/statements/index.asp?nid=5222. The internal investigation had just begun as of the spring of 2012.

49 Statement Attributable to the Spokesperson for the Secretary-General on the Sri Lanka Panel of Experts Report (Sept. 12, 2011), at http://www.un.org/sg/statements/index.asp?nid=5506.

50 See, e.g., U.S. Mission to the Un, Statement by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, on the Release of the UN Panel of Experts’ Report on Sri Lanka (Apr. 25, 2011), at http://usun.state.gov/briefing/statements/2011/161769.htm; Foreign & Commonwealth Office, Foreign Office Welcomes UN Panel of Experts Repon on Sri Lanka, Apr. 27, 2011, at http://www.fco.gov.uk/en/news/latest-news/?view=News&id=589066282.

51 For the TV broadcast, see Sri Lanka’s Killing Fields (Channel 4 broadcast June 14, 2011), at http://www.channel4.com/programmes/sri-lankas-killing-fields/episode-guide/series-1/episode-1. see also Report of the Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Christof Heyns, Addendum: Summary of Information, Including Individual Cases, Transmitted to Governments and Replies Received, appendix, at 423- 82, UN Doc. A/HRC/17/28/Add.1 (May 27, 2011).

52 Report of the Commission of Inquiry on Lessons Learnt and Reconciliation, supra note 8, paras. 8.150, 4.351, 4.319, 5.34, 5.64, 5.156. For other examples of ideas that seem to be taken from the panel’s report, see id., paras. 8.136 (need to acknowledge the suffering of the victims and to compensate them), 8.146 (need for government to avoid triumphalism in its approach).

53 Id., paras. 4.42-.359.

54 Id., para. 4.359(x).

55 Id., paras. 4.5-.17, 4.323-.339.

56 Id., paras. 8.185, 5.48. Given the assessment of the Llrc’s work and report presented in their own report, panel members conveyed their concerns to the secretary-general, to various member states in meetings in New York, Geneva, and elsewhere, and to the public. See Darusman, Marzuki, Ramer, Steven & Sooka, Yasmin, Revisiting Sri Lanka’s Bloody War, Int’l Herald Trib., Mar. 3, 2012, at 6 Google Scholar.

57 HRC Res. 19/2, para. 1 (Apr. 3, 2012) (passed 24-15-8).

58 See Int’l Comm. of the Red Cross, Strengthening Legal Protection for Victims of Armed Conflicts [resolution], 31st International Conference 2011 Res. 1 (Dec. 1, 2011), at http://www.icrc.org/eng/resources/documents/resolution/31-international-conference-resolution-1-2011.htm; Int’l Comm. of the Red Cross, Strengthening Legal Protection for Victims of Armed Conflicts [report], Icrcdoc. 311C/11/5.1.1 (Oct. 2011), at http://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-5-1-1-report- strength-ihl-en.pdf.

59 International Covenant on Civil and Political Rights, Art. 2(3)(a), Dec. 16, 1966, 999 UNTS 171.

60 See Poe Report, supra note 21, paras. 262-77.

61 See Steven R. Ratner, Jason S. Abrams & James L. Bischoff, Accountability For Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 174-76 (3d ed. 2009).