UN calls for special Sri Lanka tribunal

"Our investigation has laid bare the horrific level of violations and abuses that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes." These are the words of UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein presenting on September 16 his organization's long-awaited report on war crimes and abuses committed in the South Asian nation between 2002 and 2011.

The 261-page-long document speaks of "patterns of grave violations" committed during the final stages of Sri Lanka's decades-long civil war, strongly indicating that atrocities were "most likely" committed by both sides to the conflict. The report also recommends the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, as an "essential step towards justice."

For 26 years, Sri Lanka's armed forces fought against the Liberation Tigers of Tamil Eelam (LTTE) - militant separatists seeking to create an independent state for the Tamil-speaking minority in the north and the east of the country. In May 2009, the army recaptured the last area controlled by the LTTE, putting an end to a war that claimed the lives of up to 100,000 people, according to the UN. Nearly 40,000 of them are believed to have been killed in the last five months of the conflict.

'Brutal use of torture'

Although the UN Human Rights Office (OHCHR) paper names no suspects, stating it was a "human rights investigation, not a criminal investigation," it does say that Tamil politicians, humanitarian workers, journalists and ordinary civilians were among the alleged victims of Sri Lankan security forces and associated paramilitaries.

At the same time, the LTTE also reportedly killed Tamil, Muslim and Sinhalese civilians, through indiscriminate suicide bombings and mine attacks, as well as assassinations of individuals including public officials, academics and dissenting Tamil political figures.

One shocking finding of the investigation was the extent to which sexual violence was committed against detainees by the Sri Lankan security forces, with men as likely to be victims as women. "Incidents of sexual violence were not isolated acts but part of a deliberate policy to inflict torture," said the report.

Tens of thousands of people also went missing during the long conflict, suggesting that enforced disappearances were committed as part of a "widespread and systematic attack" on the civilian population. There are also indications that a large number of individuals who surrendered to government forces during the final phase of the conflict were disappeared, and remain unaccounted for.

The UN report also makes reference to the "widespread and brutal use of torture" by the Sri Lankan security forces not only during the civil war, but also in the immediate aftermath of the conflict. The investigation also found indications of "patterns of abductions" leading to the forced recruitment of adults by the LTTE, which intensified towards the end of the conflict.

But it seems that children were also extensively recruited and used in armed conflict both by the Tamil rebels and the paramilitary Karuna group, which supported the government following its split from the LTTE in 2004. Children, frequently below the age of 15, "were often recruited by force from homes, schools, temples and checkpoints, and, after basic training were sent to the frontlines," said OHCHR.

The report also documents years of government denials and cover-ups, failure to carry out prompt investigations, stalled investigations and reprisals against the family members of victims and others who have pushed for justice.

Growing frustration

Successive Sri Lankan governments have promised to look into the alleged crimes, but have been slammed for failing to conduct adequate investigations and promote reconciliation with the country's Tamil minority. In this context, the report notes that authorities have yet to bring a single person to justice, leading to a growing sense of frustration among survivors, particularly since "many of the structures responsible for the violations and crimes remain in place."

The UN publication came just two days after Sri Lanka's new unity government outlined its plans for a truth and reconciliation commission and other proposals to set up a criminal justice mechanism and compensate victims.

Foreign Minister Mangala Samaraweera said on September 14 in Geneva that South Africa, which confronted its own apartheid-era crimes through such a body, would advise the nation on how to use the commission. But Tamil leaders said the government's plans were not enough, and insisted on an international inquiry amid concerns that abuses would not be properly investigated.

'An unfortunate reality'

It appears that UN rights chief Zeid shares the Tamil leaders' concerns. While commending the government's plans, Zeid said the "unfortunate reality is that Sri Lanka's criminal justice system is not yet ready." Among the reasons given were the absence of "reliable" victim and witness protection systems, and the degree to which Sri Lanka's security sector and justice system have been "distorted and corrupted by decades of emergency, conflict and impunity."

Zeif therefore suggested the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators. "A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises," said the UN rights chief, adding that the levels of mistrust in state authorities and institutions among broad segments of Sri Lankan society "should not be underestimated."

The Sri Lankan government reacted to the UN report by promising to deliver justice to the victims, and putting in place new mechanisms as recommended by the world body. "We will take into consideration the recommendations made by the UN Human Rights Council report on having the service of international expertise," said Foreign Minister Mangala Samaraweera

But he added that these mechanisms will be established "not to please the international community or because there is pressure from the international community, but due to our strong belief that there is no other path for Sri Lanka other than this."

Strong will needed

Experts point out that plans to establish such special tribunals in Sri Lanka are highly controversial, as many in the island-nation view the involvement of foreign judges and investigators as an infringement on the nation's sovereignty.

"The issue of the last phase of the war has been a controversial one, and the present government has affirmed that they will only employ a national process to ensure accountability," Jehan Perera, Executive Director of Colombo-based National Peace Council (NPC) told DW, adding that bringing in foreign judges would require a change of law, and of the constitution - a move unlikely to find support in parliament.

However, many analysts agree with the UN rights chief's view that, given Sri Lanka's history and the current state of its political and legal institutions, justice and accountability cannot be achieved through purely domestic means.

"If the government is committed to discovering the truth, giving justice to victims, ending impunity and re-establishing fair and impartial judicial institutions, it should welcome the involvement of international expertise at all stages of its truth, reconciliation and accountability processes," Alan Keenan, a Sri Lanka analyst at the International Crisis Group (ICG), told DW.

Pursuing this agenda will require leadership from President Maithripala Sirisena, Prime Minister Ranil Wickremesinghe and other top government officials, the expert said, pointing out that "this won't be easy, but it's entirely achievable if there is the will to do so."

On the other hand, there are also reasons to be hopeful that Colombo will implement at least some of the UN recommendations, as there are several overlapping points between them and the promises made by Sri Lanka's foreign minister in his recent speech to the Human Rights Council.

As analyst Keenan explains, the government has already promised to review the Prevention of Terrorism Act, return land occupied by the military, strengthen the Human Rights Commission, ratify the international convention on disappearances, and establish an effective system of reparations, as well as other key points called for by the UN. "Should the government be determined in seeing these reforms through, this will constitute major progress," the analyst noted.

A huge challenge

Much uncertainty remains, however, as to the forms and extent of international support and expertise Colombo will accept in its "domestic" accountability mechanisms. Moreover, many questions remain unanswered in terms of how far the government will be willing to reform the security forces and pursue both disciplinary action and criminal prosecutions of those implicated in the crimes documented in the OHCHR report - including those in positions of command.

"This government wants to work in partnership with the rest of the world. But it will have to be pragmatic, and keep in mind that politics is the art of the possible," said NPC analyst Perera, adding that the Sirisena-led administration will face great obstacles from opposition parties.

At the same time, analyst Keenan warned that unless the new unity government agrees to adopt the legal and institutional reforms recommended by the UN, and accepts a "substantial international role," Sri Lanka could "well miss an unprecedented opportunity for lasting peace and reconciliation."