Created: Wednesday, 21 August 2013
Accountability for Violations of International Humanitarian Law in Counter Insurgency : the Case of Sri Lanka
Ambassador Dr. Palitha T.B. Kohona,
Permanent Representative to the United Nations, New York
• At the outset I would like to state very clearly that what happened in Sri Lanka cannot be characterized as a simple case of countering an insurgency. There was a group, proscribed by most of the democratic world as a terrorist organization, which controlled territory, and uniquely, deployed naval and air assets. The violence, began not in 1983 as popularly perceived, but in the mid 1970s. Alfred Duraiyappa, the elected Major of Jaffna, was assassinated in 1975 by Prabhakaran himself. The proscription has been extended recently by the EU and the US. Terrorism, as we all know, is a crime condemned internationally and punishable under domestic law. Sri Lanka as a sovereign state, with the overwhelming endorsement of its population, used its security forces to counter and defeat this terrorist organization. And that also, after trying over and over again to negotiate an end to the conflict.
• It is also to be remembered that for a period of over 27 years this terrorist group, the LTTE, recruited over 5,700 children as armed combatants, according to the UNICEF, and in the view of some, close to three times that number. It also had the reputation for having invented the suicide vest and for having successfully deployed over 236 suicide bombing missions. It regularly blasted civilians going to work, children going to school, and massacred worshippers at temples and mosques.
• It had a reputation for collecting funds using its agents scattered throughout the West, employing intimidation and threats to finance its activities.
• It is also the organization that ethnically cleansed the Northern Province of Sri Lanka of all other ethnic groups and brutally eliminated almost all moderate Tamil leaders.
• In the final stages of conflict, this organization herded, and I use this expression deliberately, approximately 300,000 civilians and used them as a human shield. It is under these circumstances that the Government of Sri Lanka employed its military to counter the vicious threat posed by the terrorist LTTE. The Government adopted a policy of zero civilian casualties. It is important to remember that most of the Tamils in Sri Lanka do not live in the North. These civilians were taken against their will and they escaped as soon as the Security Forces broke through. We have seen their escape on television screens. The allegation of thousands of civilian deaths cannot be substantiated. You just need to do the math.
• Now turning our attention to allegations of violations of international humanitarian law in the process of defeating this terrorist organization which so deliberately and callously used the thousands of civilians as a human shield and as a bargaining chip, and ignored calls by many, including the Secretary-General of the UN, to let these civilians go. So far, these allegations remain in the realm of simple allegations. It is interesting that the rump LTTE, its well-wishers, and the Tamil Net have been working overtime propagating these stories, many of which are fanciful, and far removed from fact but which have been sadly picked up by liberal thinkers in the West.
• Organizations such as Amnesty International, Human Rights Watch, and the International Crisis Group have all picked up these stories. The State Department report refers to these allegations but takes care to characterize them as “allegations”. It was Goebbels who said that even a lie, repeated often enough, will gain credence as the truth.
• As a sovereign state, Sri Lanka had the responsibility, in the first instance, to protect the vast majority of the population from terrorism and, also, to investigate allegations of infractions of global standards, that can be substantiated, to investigate them. The primary responsibility is for the state itself to deal with any infractions. The allegations must not only be made for the benefit of international entities and global headlines or simply be fanciful, but also be brought to the attention of the national authorities. A proper procedure must be observed. Sri Lanka has a mature legal system and any violations of domestic law can be handled by the Courts. A petition for Habeas Corpus or a writ application is available to an aggrieved entity. Those who made these allegations have not taken the trouble to invoke the domestic judicial processes or the Courts. It is also interesting that those who make these allegations have not thought it fit to invoke the Fundamental Rights provisions of the Constitution, which have been invoked in other instances by many people. Torture is a serious crime in Sri Lanka and the legislation incorporates international standards.
• Sri Lanka, for its part, has also established a Lessons Learnt and Reconciliation Commission to examine all aspects of the conflict, which could include allegations of violations of IHL. This Commission has borrowed extensively from the South African and British experience. The emphasis is on restorative justice. The State has taken upon itself the responsibility of compensating the victims. Anyone with evidence of any violations has been invited to come before the Commission. Hundreds of people have done so. The AG’s Department has a special unit in place to investigate any matters referred to it.
• When the LLRC invited Amnesty International, Human Rights Watch and the ICG to present any evidence in their possession to the Commission, they jointly decided not to do so. This makes their claims and allegations more than a little suspect.
• In summary, where there are local remedies to deal with violations that can be proved, the enthusiasm to simply clamour for international interventions is simply disingenuous and not consistent with international law and practice. This is simply an attempt to draw international attention, score propaganda points, rather than an effort to remedy a wrong.
• Instead of continuing to smear the good name of the Government of Sri Lanka internationally, while forgetting the criminal reign of the LTTE which lasted over 27 years, it may be of help, if the critics and the aggrieved resorted to the remedies so readily available under the domestic legal system.
• It is important for us to remember that there is no such enthusiasm among the people of Sri Lanka to continue to delve into these allegations. The yearning is for peace and to move forward. All the communities of the island join in this one aspiration.
• It would be far better to permit Sri Lanka go get on with the task of healing and reconciling rather than continuing to scratch a wound that is so desperately trying to heal.