Getting Away with Murder: The United Nations’ Role in Fostering Accountability and Reconciliation in Post-War Sri Lanka

Yekaterina Reyzis, Vol. 37 Associate Editor

Introduction The United Nations’ (“UN”) intervention in the Sri Lankan civil war spawned an international inquiry into the efficacy and legitimacy of UN forces and raised broader concerns about UN involvement in internal state conflicts generally. The aftermath of the conflict illustrates that during more than a quarter century of violence between the Sri Lankan government and secessionist militants, Liberation Tigers of Tamil Eelam (“Tamil Tigers”), the UN could have been more proactive, efficient, and responsible in its mission to monitor and report the violence on the ground,[1] which slayed at least 100,000 people.[2] Namely, in the lead up to the end of the war, the UN failed to address multiple red flags presented by the Sri Lankan government,[3] which consequently wiped out an estimated 40,000 civilians in the last five months of the conflict alone.[4]  Last week, however, the UN’s call for an international war crimes court[5] appeared to be its first constructive step in ensuring that the post-war Sri Lankan government takes the appropriate steps to achieve accountability and prolonged reconciliation within its borders. UN Response In June 2010, in the wake of the civil war, a panel of experts organized by the UN Secretary General exposed “credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the [Tamil Tigers], some of which would amount to war crimes and crimes against humanity.”[6] The Panel’s allegations against the Sri Lankan government include the most egregious human rights abuses, such as: violence to life and person involving murder, mutilation, cruel treatment and torture, including rape; outrages upon personal dignity; intentional and indiscriminate attacks on civilians and medical and humanitarian objects; starvation of the population and denial of humanitarian relief; and enforced disappearances.[7] Overall, the Panel concluded that, “[T]he conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.”[8] Although the Sri Lankan government established its own investigative procedures and announced plans to prosecute these allegations domestically,[9] the international community rightfully pursued a more transparent process. After the Sri Lankan government made no headway in investigating its own conduct during the war,[10] the UN Human Rights Council approved a multinational investigation into the alleged war crimes committed by both the Sri Lankan government and the Tamil Tigers in the final months of the war.[11] This investigation culminated in the most recent UN report released on September 16, 2015, which demands that the Sri Lankan government prosecute potential war crimes in international open court, instead of domestically.[12] Pressuring Sri Lanka to air its grievances within the international sphere instead of the confines of its own, inherently corrupt mechanisms, is a testament to the UN’s promotion of international humanitarian law and customary international law.[13] Sri Lanka’s International Obligations Sri Lanka is party to international human rights conventions that mandate it to “investigate alleged violations of international humanitarian and human rights law and prosecute those responsible; customary international law applicable to the armed conflict also includes such obligations.”[14] In addition to failing its treaty obligations during and after its civil war, the Sri Lankan government also abandoned notions of international humanitarian law and customary international law to which it is bound as a member of the international community. As the 2011 Accountability Report explains:

International law provides for individual criminal responsibility for certain, but not all, violations of international humanitarian law. Although the Geneva Conventions do not list or define those violations during internal armed conflicts that constitute war crimes, other authoritative sources of international law have elaborated these crimes, and their criminality is now beyond doubt. Notable in this regard is the Rome Statute of the International Criminal Court (ICC), in particular Articles 8(2)(c) and (3). While Sri Lanka is not a party to that statute, the list and definitions of war crimes in non-international conflicts is broadly illustrative, if not precisely reflective, of customary international law.[15]

The new report’s demand for a “comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties”[16] will enhance Sri Lanka’s compliance with customary international law and work to right the wrongs of the UN’s unsuccessful operations during the civil war. UN’s Failed Efforts in Sri Lanka Despite the UN’s numerous steps to stress the unparalleled importance of its role in warranting accountability for alleged war crimes,[17] its own shortcomings in the twenty-six year conflict cannot be ignored. A 2012 report released by the Internal Review Panel on UN Actions in Sri Lanka proclaimed that the “events in Sri Lanka mark a grave failure of the UN to adequately respond to early warning and to the evolving situation during the final stages of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with the principles and responsibilities of the UN.”[18] In fact, the Internal Review Panel details the wide-ranging inconsistencies between the UN mission and the reality on the ground. Among myriad findings alleging corruption and inefficiency, the most troubling aspects of the report detailed purposeful underreporting of civilian casualties, “a culture of trade-offs” between UN officials and Sri Lankan representatives in the form of bribery, and “a continued reluctance among [UN] institutions to stand up for the rights of the people they were mandated to assist.”[19] And yet, attributing UN efforts during the civil war as a complete failure seems unfair. The internal report highlights extreme intimidation of UN forces by the Sri Lankan government, including “control of visas to sanction staff critical of the state” and notes the lack of expertise in UN staff on the ground.[20] Combined with limited resources in the face of such extreme danger, it is no surprise that a militant government easily coerced peacekeepers into falling in line with its objectives. In fact, such a result was entirely predictable. Conclusion The case of Sri Lanka illustrates a broader reality that plagues UN interventions in civil conflicts around the world – deficiencies in resources and expertise, governmental corruption and intimidation on the ground, and a lack of viable enforcement mechanisms on the international level – all of which prohibit the efficiency of the UN’s well-meaning goals and resolutions.[21] Nonetheless, the fact that the UN has taken steps to internally investigate its own successes and failures in this difficult endeavor speaks to its legitimacy. This offers hope for more effective international monitoring and accountability mechanisms to monitor and prevent current and future conflicts. As Pablo de Greiff, the United Nations Special Rapporteur on Transitional Justice, expressed, “[i]f handled well, the case of Sri Lanka has the potential to constitute an example for both the region and the world of how a sustainable peace ought to be achieved.”[22]

[1] See Lyse Doucet, UN ‘failed Sri Lanka civilians’, says internal probe, BBC (Nov. 13, 2012), http://www.bbc.com/news/world-asia-20308610 (“[T]he UN should have told the world what was happening, and done more to try to stop it…During the last months of war, there was not a single formal meeting of the Security Council or other top UN bodies”); see also U.N. Secretary-General, Report of the Secretary-General’s Internal Review Panel on United Nations Actions in Sri Lanka, 28 (Nov. 2012) [hereinafter Internal Review Panel] (contending that the UN failed “to adequately respond to early warnings … during the final stages of conflict.”). [2] Doucet, supra note 1. [3] See Internal Review Panel, supra note 1, at 28 (Listing elements of the UN’s systemic failure in Sri Lanka, including “[A]n incoherent internal UN crisis-management structure which failed to conceive and execute a coherent strategy in response to early warnings and subsequent international human rights and humanitarian law violations against civilians.”). [4] UN Failed To Protect Sri Lankan Civilians During Civil War: Report, HuffingtonPost (Nov. 13, 2012, 1:47 PM) http://www.huffingtonpost.com/2012/11/13/un-failed-sri-lanka-civil_n_2122111.html (Alleging that an estimated 40,000 civilians were killed in the last five months of the conflict and suggesting that the civilian death toll of the civil war may be higher than the estimates listed in the UN’s reports). [5] Ralph Ellis, U.N. calls for war crimes court in Sri Lanka, CNN (Sept. 16, 2015, 10:43 PM) http://www.cnn.com/2015/09/16/world/sri-lanka-war-crimes/. [6] U.N. Secretary-General, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, ii (Mar. 31, 2011) [hereinafter 2011 Accountability Report]. [7] Id. at 57. [8] Id. at 71. [9] See e.g., Jyoti Thottam, New UN report details alleged Sri Lanka war crimes, AljazeeraAmerica (Sept. 17, 2015, 3:45 AM), http://america.aljazeera.com/articles/2015/9/17/new-un-report-details-sri-lanka-war-crimes.html (“[T]he new Sri Lankan government… has vowed to hold those accused of war crimes accountable [and] plan[ed] to prosecute these cases through a domestic body”); [10] See e.g., Nick Cumming-Bruce, U.N. Approves Investigation of Civil War in Sri Lanka, N.Y. Times (Mar. 27, 2014), http://www.nytimes.com/2014/03/28/world/asia/un-rights-council-sri-lanka.html (Quoting the UN High Commissioner for Human Rights, who stated, “Sri Lankan investigations of the military’s actions lack independence and credibility.”). [11] Id. [12] UN Human Rights Council (UNHRC), Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, A/HRC/30/61, (Sept. 16, 2015) [hereinafter 2015 UNHRC Report]; see also UN Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), A/HRC/30/CRP.2, (Sept. 16, 2015) (investigative document related to 2015 UNHRC report). [13] See e.g., Thottam, supra note 9. “([Sri Lanka’s] plan to prosecute these cases through a domestic body, rather than through an international human rights court, is a departure from the widely criticized war crimes prosecutions in Rwanda, Sierra Leone and elsewhere.”). [14] 2011 Accountability Report, supra note 6, at I; see also United Nations in Sri Lanka, http://un.lk/un-in-sri-lanka/ (last visited Sept. 28, 2015) (Listing UN conventions to which Sri Lanka is a signatory, including but not limited to: International Convention on the Elimination of All Forms of Racial Discrimination; International Covenant on Civil and Political Rights; Optional Protocol to the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of all forms of Discrimination Against Women; Optional Protocol to the Convention on the Elimination of Discrimination against Women; Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Rights of the Child; Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict). [15] 2011 Accountability Report, supra note 6, at 67. [16] 2015 UNHRC Report, supra note 12, at 3. [17] 2011 Accountability Report, supra note 6, at iv (“Accountability for serious violations of international humanitarian or human rights law is not a matter of choice or policy; it is a duty under domestic and international law.”). [18] Internal Review Panel, supra note 1, at 28. [19] Id. at 27. [20] Id. at 7-8. [21] See e.g., Christopher J. Le Mon, Junior Fellows’ Note: Unilateral Intervention by Invitation in Civil Wars: The Effective Control Test Tested, 35 N.Y.U. J. Int’l L. & Pol’y 741, 792 (2003) (“Until the system evolves to the point where the United Nations is capable of fulfilling the grand role envisaged by its creators at the end of the Second World War, states that are threatened by internal instability will continue to seek assistance from their neighbors or allies.”). [22] Thottam, supra note 7.