The visit by senior US officials, Nisha Biswal and Tom Malinowski this week, and the US’ endorsement of a domestic process of accountability into mass atrocities committed against the Tamil people during the end of the armed conflict in 2009 has been met with a sense of relief by the Sri Lankan government and was reported triumphantly across the southern English-language Sri Lankan press. However, whilst the government’s pledge to establish a domestic inquiry has been cautiously welcomed by the West, Tamils, who have been waiting for over 6 years to see justice, responded with disappointment and dismay. The US’ call for a mechanism that is credible to the international community and should have “some degree of international involvement”, while crucial, falls far short of Tamil demands.
Sri Lanka’s long history of failed commission is well documented. Those processes were for crimes committed by the state during the rules of both major parties, who have now together formed a national government. Lest we forget, both Ranil Wickramasinghe and Chandrika Kumaratunge oversaw massacres and war crimes against Tamil civilians during earlier tenures in power, but there has been no recognition of, let alone accountability for, the crimes that occurred, and meanwhile, the current president Maithripala Sirisena was acting defence minister during the last phase of the armed conflict. Whilst the new government’s promises of justice garners hope, it remains to be seen how a credible mechanism to address responsibility can be established by those who themselves have questions to answer about their own conduct.
Longstanding scepticism and distrust of political will in the country have not been eased by the government’s actions since it came into power in January. Statements attributed to senior government officials call into question its sincerity to see justice served, rather than appeasing international pressure. It should be noted that Foreign Minister Mangala Samaraweera’s call for a domestic inquiry was rooted not in the need for justice, but to “clear the name of our armed forces”. Pledges to protect the Rajapaksa brothers from any inquiry and the ongoing promotion of suspected war criminals to senior positions, casts further doubt on the credibility of its process. Their actions fuel Tamil scepticism of the government’s sincerity regarding a domestic process. Moreover, it remains to be seen whether the current UNP-SLFP unity government, which has consistently rejected the findings of the UN Panel of Experts report, and video footage of atrocities, such as that in the No Fire Zone documentary, will accept, in full, the OISL report, which is expected to conclude that mass atrocities against Tamils were predominantly caused by government forces, as stated in the Panel of Experts report.
Even if members in the UNP genuinely would like to see accountability, passing meaningful legislative changes through parliament will remain difficult and risk losing support amongst the electorate. Laws allowing the prosecution of war crimes and punishment will have to be enacted. Sri Lanka’s penal code is insufficient to pursue the grave crimes that were committed and chances of a UNP-UPFA national government passing the necessary legislative changes are remote. Given the long history of impunity, the Tamil people's deep scepticism of any internal process is understandable. The onus must be on the government to build confidence, particularly on issues that are of paramount importance to the credibility of any domestic inquiry. The repeal of the Prevention of Terrorism Act, the release of the names of Tamil detainees, demilitarisation of the North-East and the immediate halt to the torture of detainees that is reported to be ongoing, can all be enacted independent of the accountability mechanism. Any credible domestic mechanism must be established with input by the victims, however Tamils are yet to be consulted on any plans for a domestic mechanism, 8 months after the government pledged to implement one.
Whilst the international community now looks to Sri Lanka to instigate its own domestic process with international oversight, it is important to bear in mind that this does not negate states’ individual responsibilities to investigate and prosecute perpetrators of crimes of this magnitude, when those responsible enter their territory. The international community’s failure to act in the face of the Sri Lankan state’s onslaught during the last phase of the war is well documented, and remains raw in the minds of the Tamil people. Over the last six years, Tamils, despite their repeated and unwavering calls for an international independent investigation, have been urged to be patient, allowing the Sri Lankan government an opportunity to rectify itself at every juncture. Now once again, after waiting six months for the release of the OISL report, Tamil hopes for genuine progress on justice and accountability have been put on hold, while Sri Lanka attempts to convince the international community that it can deliver. As the new government seeks to strengthen much damaged diplomatic relationships with the West, it is important that this eagerness to re-energise relationships should be used to expedite, rather than further delay, the search for credible and meaningful justice and accountability.
