The Slow but Sure Process of Justice and Accountability

Photo courtesy of Kumanan Kanapathippillai

The past few weeks have seen a rapid escalation of justice and accountability mechanisms on the national and international landscape for Sri Lanka’s gross human rights violators; the nooses are tightening around the necks of perpetrators of war crimes and crimes against humanity.

In Colombo, the Supreme Court ordered former President Maithripala Sirisena to pay compensation of Rs. 100 million to victims of the April 2019 Easter Sunday attacks for a “reckless” intelligence failure. Cardinal Malcolm Ranjith called for Mr. Sirisena and high ranking police officials to be criminally prosecuted.

Citing several “failures” of Mr. Sirisena and senior officials, the Supreme Court noted that the lapses in communication within the security establishment and the sporadic conduct of National Security Council meetings amounted to “a serious omission on the part of the then President”.

In the US, President Joe Biden signed President Biden signed into law the historic Justice for Victims of War Crimes Act giving Department of Justice jurisdiction to prosecute persons present in the US for war crimes committed anywhere, regardless of the nationality of alleged perpetrator or victim. This law, passed with strong bipartisan support, better aligns the US with its allies and the Geneva Conventions, the Justice Department said.

Canada announced it was sanctioning Gotabaya Rajapaksa, Mahinda Rajapaksa, Staff Sergeant Sunil Ratnayake and Lieutenant Commander Chandana Hettiarachchi for “gross and systematic violations of human rights during armed conflict in Sri Lanka, which occurred from 1983 to 2009” while the UN has demanded information on “alleged enforced disappearances, arbitrary detentions, torture, and extra-judicial killings, reportedly committed by Government security forces between May 1989 and January 1990, in the Matale District, in the context of the Janatha Vimukthi Peramuna (JVP) uprising.”

In its World Report 2023, Human Rights Watch said the change of presidents in 2022 did not lead to any improvement in the country’s human rights record.

“President Ranil Wickremesinghe responded to calls for reform and accountability with repression,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The foreign partners that Sri Lanka needs to help address its economic crisis should insist on fundamental human rights reforms and respect for the rule of law.”

The European Union played an important role urging the government to comply with its human rights obligations under the GSP+ but pressure needs to be intensified to secure concrete progress, Human Rights Watch said, adding that calls by the US and others to respect the right to peaceful protest were largely ignored.

Groundviews asked Director of the Sri Lanka Campaign for Peace and Justice, Ben Kumar Morris, about the implications of the news US law, the Canadian sanctions and what more the international community could do to ensure justice and accountability for victims of human rights violations.

President Biden signed a law on justice for victims of war crimes act. How do you think this will affect the Sri Lankan situation? Could Gotabaya Rajapaksa be arrested if he goes back to the US?

It is still unclear if the US government will use the Justice for Victims of War Crimes Act to actively pursue the arrest of accused perpetrators in Sri Lanka. However, under the Act, US prosecutors can try alleged perpetrators for war crimes no matter their nationality or the nationality of their victims. It also removes the statute of limitations, opening a huge number of offences for potential prosecution. This means that if there is enough evidence and willingness for a prosecution, any alleged perpetrator could be arrested upon entering the US.

How important are the Canada sanctions given it is unlikely that these four people have assets in Canada or have any great desire to travel there?

While Canada’s sanctions are unlikely to directly impact these four individuals, it is a small but critical step towards international accountability for the Sri Lankans accused of human rights violations in Canada and internationally. A national government recognising two former presidents as human rights abusers is a significant moment. Until now, no country had touched the Rajapaksa family. It is an example human rights groups can point to when they ask other countries to pursue international accountability for the two brothers.

Should other countries follow suit?

Other countries should absolutely follow Canada’s example by pursuing accountability for perpetrators at the highest level of Sri Lankan society. Ideally, however, different countries should tailor their responses to their particular situation. If the United States were also to sanction Gotabaya Rajapaksa, this would have a significant impact but would prevent him from entering the country. If Gotabaya was instead allowed to return to the US, the government could choose to arrest and charge him under universal jurisdiction, which would be a huge step forward in the pursuit of justice. In other cases where securing an arrest is more difficult, sanctions may be more impactful.

The UN has called for justice and accountability in the Matale disappearances. Why is it still important after more than 30 years?

The course of international justice is often far too slow. However, while many of the victims’ families have already passed away, 34 years is certainly not long enough for these crimes to have been forgotten. In Cambodia, justice is still being pursued for a genocide which occurred in the 1970s. Many families and accused perpetrators are still alive. For victims and survivors, even delayed accountability can provide some sense of peace and justice. Moreover, the same army accused of involvement in the disappearances in Matale has been involved in other gross human rights violations right up to the present day. Accountability for the Matale disappearances could lead to accountability for more recent abuses in the near future.

The government continues to call these unsubstantiated allegations. Do you believe there is enough concrete evidence of war crimes against the people named so far?

The standard of evidence for a war crimes prosecution is high, and without first hand access to all the documentation that has been gathered, it is difficult to say anything with complete certainty. However, this collection of UN experts would not have submitted this letter without very good reason. Over the last few decades, the UN, civil society groups and respected international experts have examined the evidence of human rights violations in Sri Lanka and found it highly compelling.

What other measures could and should the international community take?

The international community has tended to see the UN Human Rights Council as the primary vehicle for accountability in Sri Lanka. While the council is important and continues to do valuable work, the UN High Commissioner on Human Rights has repeatedly called on member states to take independent measures to forward accountability. This includes targeted sanctions, prosecution under universal jurisdiction and using their bilateral relationships as leverage to demand accountability for human rights abuses.