Justice Delayed, Justice Denied? the Search for Accountability for Alleged Wartime Atrocities Committed in Sri Lanka
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Pace International Law Review Volume 33 Issue 2 Spring 2021 Article 3 May 2021 Justice Delayed, Justice Denied? The Search for Accountability for Alleged Wartime Atrocities Committed in Sri Lanka Aloka Wanigasuriya University of Copenhagen, Faculty of Law Follow this and additional works at: https://digitalcommons.pace.edu/pilr Part of the Criminal Law Commons, Criminal Procedure Commons, Human Rights Law Commons, International Humanitarian Law Commons, International Law Commons, Law and Politics Commons, and the Military, War, and Peace Commons Recommended Citation Aloka Wanigasuriya, Justice Delayed, Justice Denied? The Search for Accountability for Alleged Wartime Atrocities Committed in Sri Lanka, 33 Pace Int'l L. Rev. 219 (2021) Available at: https://digitalcommons.pace.edu/pilr/vol33/iss2/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. JUSTICE DELAYED, JUSTICE DENIED? THE SEARCH FOR ACCOUNTABILITY FOR ALLEGED WARTIME ATROCITIES COMMITTED IN SRI LANKA Aloka Wanigasuriya* TABLE OF CONTENTS I. Introduction .......................................................................... 221 II. National Action ..................................................................... 223 A. National Mechanisms............................................... 223 1. Human Rights Commission of Sri Lanka (HRCSL) ............................................................... 224 2. Lessons Learnt and Reconciliation Commission (LLRC) ............................................ 225 3. Military Court of Inquiry (MCI) ......................... 227 4. Presidential Commission to Investigate into Complaints Regarding Missing Persons (Paranagama Commission) ................................. 228 5. Consultation Task Force (CTF) on Reconciliation Mechanisms ................................ 229 6. Office on Missing Persons (OMP) and Related Legislation ............................................................ 232 B. National Legal Action .............................................. 235 III. International Reactions ...................................................... 242 IV. International, or Partially International, Avenues for Justice .............................................................................. 245 A. International Criminal Court .................................. 245 * Aloka Wanigasuriya is a PhD Candidate at the Faculty of Law, University of Copenhagen, Denmark. 219 1 220 PACE INT’L L. REV. Vol. 33.2 B. Hybrid Court ............................................................. 248 C. Extraterritorial Prosecutions .................................. 249 V. Conclusion ............................................................................. 258 https://digitalcommons.pace.edu/pilr/vol33/iss2/3 2 2021 Justice delayed, justice denied? 221 I. INTRODUCTION During the final stages of its nearly three-decades-long civil war in 2009, Sri Lanka attracted considerable international attention due to the allegations of international crimes that were said to have been committed both by the Sri Lankan government Armed Forces, the Guerilla Force, and the Liberation Tigers of Tamil Eelam (LTTE). According to United Nations (UN) experts, an estimated 40,000 civilians were killed during the final offensive, which lasted from January to May 2009.1 However, the Sri Lankan government has set this figure at 9,000 with no civilian casualties.2 Several UN bodies found credible allegations that international crimes were committed by both parties taking part in the civil war, some of which amounted to war crimes and crimes against humanity.3 Further allegations of international crimes being committed by Sri Lankan government forces surfaced in two documentaries by Channel 4 (UK) that claimed to include video footage from the final phases of the civil war.4 Since the end of the civil war, multiple national and international actors repeatedly called for conducting transparent and impartial investigations and prosecutions, albeit with no success.5 Recently, the conflict once again 1 U.N. Secretary-General, Rep. of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, ¶ 137 (Mar. 31, 2011) [hereinafter UNSG Experts Accountability Rep.]. 2 Id. ¶¶ 2, 195; Charles Haviland, Sri Lanka government publishes war death toll statistics, BBC (Feb. 24, 2012), http://www.bbc.com/news/world-asia- 17156686. 3 See Rep. of the OHCHR Investigation on Sri Lanka (OISL), Human Rights Council on Its Thirtieth Session, ¶¶ 5–6, 70, U.N. Doc. A/HRC/30/CRP.2 (Sept. 16, 2015) [hereinafter OISL Rep.]; UNSG Experts Accountability Rep., supra note 1, at ii–iv. Violations of Common Article 3 of the Geneva Conventions included unlawful killings, torture, sexual and gender-based violence, hostilities on civilians and civilian objects, abductions and forced recruitment, etc. OISL Rep., supra note 3, ¶¶ 1113–74. 4 See Sri Lanka’s Killing Fields, CHANNEL 4 (June 14, 2011), https://www.channel4.com/programmes/sri-lankas-killing-fields; Sri Lanka’s Killing Fields: War Crimes Unpunished, CHANNEL 4 (Mar. 14, 2012), https://www.channel4.com/programmes/sri-lankas-killing-fields/on- demand/52949-001. 5 War Crimes in Sri Lanka, INT’L CRISIS GRP. (May 17, 2010), https://www.crisisgroup.org/asia/south-asia/sri-lanka/war-crimes-sri-lanka; 3 222 PACE INT’L L. REV. Vol. 33.2 received a rare yet fleeting dose of attention when former U.S. President, Barack Obama, made reference to it in his recent memoir, “A Promised Land.”6 In addition, in January 2021, the United Nations High Commissioner for Human Rights, Michelle Bachelet, outlined “a number of options [available to UN member states] to advance criminal accountability and provide measures of redress for victims [of the conflict]” in Sri Lanka, specifically mentioning referring the situation to the International Criminal Court (ICC).7 This led to the subsequent adoption of a resolution during the 46th session of the UN Human Rights Council (UNHRC), where a decision was made “to strengthen . the capacity of the Office of the High Commissioner to collect . and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka.”8 Despite this, eleven years after the end of the conflict, progress in terms of achieving justice and ending impunity has been limited. Despite their fading hopes, victims of the alleged international crimes committed during the civil war and its aftermath and their loved ones still continue to await justice. Against this background, this article discusses: (1) the various national actions that have been initiated in Sri Lanka; Sri Lanka: UN Members Should Back Hybrid Court, HUM. RTS. WATCH (Sept. 16, 2015, 5:47 PM), https://www.hrw.org/news/2015/09/16/sri-lanka-un- members-should-back-hybrid-court. 6 See Easwaran Rutnam, Obama’s book notes UN failure in Sri Lanka, DAILY MIRROR (Nov. 25, 2020, 12:07 AM), http://www.dailymirror.lk/front_page/Obama%E2%80%99s-book-notes-UN- failure-in-Sri-Lanka/238-200524. 7 Rep. of the OHCHR on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, Human Rights Council on Its Forty-Sixth Session, Feb. 22–Mar. 19, 2021, ¶ 59, U.N. Doc A/HRC/46/20 (Jan. 27, 2021) [hereinafter OHCHR Advanced Unedited Rep.]. This idea was again reiterated in the Advanced Edited Version of the Report released in February 2021. See Rep. of the OHCHR on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, Human Rights Council on Its Forty-Sixth Session, Feb. 22–Mar. 19, 2021, ¶ 59, U.N. Doc A/HRC/46/20 (Feb. 9, 2021) [hereinafter OHCHR Advanced Edited Rep.]. 8 Rep. of the OHCHR on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka, Human Rights Council on Its Forty-Sixth Session, Feb. 22–Mar. 23, 2021, ¶ 6, U.N. Doc A/HRC/46/L.1/Rev.1 (Mar. 16, 2021). https://digitalcommons.pace.edu/pilr/vol33/iss2/3 4 2021 Justice delayed, justice denied? 223 (2) the progress made with regard to the various international calls for justice; and (3) the possible international and partially international avenues for pursuing justice. Finally, the article concludes by outlining the present domestic conditions in Sri Lanka and making recommendations on possible avenues to pursue in order to ensure that justice is delivered. II. NATIONAL ACTION A. National Mechanisms Since the end of the civil war, successive Sri Lankan governments have engaged in several box-ticking exercises in order to subdue both internal and external calls for justice. Thus far, three main steps have been taken by the Sri Lankan government to establish an institution resembling a national accountability mechanism. These steps have been: (i) the Lessons Learnt and Reconciliation Commission (LLRC);9 (ii) the Consultation Task Force (CTF) on Reconciliation Mechanisms;10 and (iii) the Office on Missing Persons (OMP).11 As outlined below, other mechanisms and avenues have also emerged. However, in the absence of any viable means through which victims and aggrieved communities can seek justice for the alleged international crimes, all these initiatives have fallen short of any real attempt at delivering justice and combating impunity. 9 See REPORT OF THE COMMISSION OF INQUIRY ON LESSON LEARNT AND RECONCILIATION 1–3