Sri Lanka still demands justice
International community seriously misapprehended the facts when it failed to call for an investigation of both sides.
If international criminal justice is ever to be effective, its enforcement cannot be selective. We recently marked the first anniversary of the end of the Sri Lankan civil war, yet the international community — in stark contrast to its approach on other conflicts — still has done nothing to address accountability for war crimes committed in its final months.
The difference between the speedy dispatch last year by the United Nations Human Rights Council of a fact-finding mission to Gaza and the deafening silence of the world while thousands of civilians were becoming victims of illegal methods of warfare in Sri Lanka strikes at the heart the international justice project.
On April 3, 2009, the president of the Human Rights Council established the U.N. Fact Finding Mission on the Gaza conflict with the mandate to investigate all violations of international human rights law and international humanitarian law in the context of military operations there between December 2008 and January 2009.
At that very moment several hundred thousand people — civilians of all ages, many wounded, weakened and hungry — were crowded in the second "No Fire Zone" established by the Sri Lankan army in the Vanni, awaiting further shelling by government forces while the remaining cadres of the rebel Liberation Tigers of Tamil Eelam among them ensured that they would not be allowed to cross over to the government side.
By the end of May 2009, it was all over. It is difficult to say precisely how many Tamil civilians were killed in these final five months of the 30-year war waged by the Sri Lankan government against the Tamil Tigers. A proper investigation would likely set the figure in the tens of thousands.
On Sept. 29, 2009, Justice Richard Goldstone, head of the Gaza Fact Finding Mission, presented its report to the Human Rights Council in Geneva, calling for an end to impunity for violations of international law in Israel and the Occupied Palestinian Territory. The U.N. mission reported Palestinian casualty figures at between 1,166 and 1,444.
There was never any Goldstone report on Sri Lanka. Rather, on May 27, 2009, the Human Rights Council adopted a resolution welcoming the conclusion of hostilities and "the liberation by the government of Sri Lanka of tens of thousands of its citizens ..."
Evidence uncovered since then suggests that the council seriously misapprehended the facts when it failed to call for an investigation of both sides. There is indeed evidence suggesting war crimes by the Tamil Tigers, and despite the best efforts of the government of Sri Lanka to keep the world at bay during the last months of the conflict, there is also a substantial body of credible evidence pointing to the commission of war crimes by government forces including attacks on humanitarian operations, attacks on hospitals and deliberate shelling of civilians enticed by the government to seek protection in the safety of "No Fire Zones."
More investigation will be necessary to expose and document the full scale of the violations of the laws of war and the possible individual criminal responsibility at the highest levels of civil and military command in the Sri Lankan armed forces as well as by the Tamil Tigers.
However, no fair, independent and credible investigation can be undertaken by the government of Sri Lanka, or by an organ created by the government.
The long history of impunity, the legitimate fear of reprisals on the part of prospective witnesses and the persistent denial at the highest levels of government of any wrongdoing suggest that only an arms-length international process would be credible.
An international investigation is required to ensure that Sri Lanka rebuilds itself on the solid foundation of the rule of law including the fundamental principle that no one is above the law. It is also necessary to ensure that the future rests on a truthful acknowledgment of the past and that all the people of Sri Lanka understand what was done, seemingly on their behalf, to their fellow citizens, many of whom were innocent civilians trapped between a terrorist movement and a government unwilling to extend to them the protection to which they were entitled by law. The nature and the magnitude of the crimes are such that there is no prospect of a real, durable peace without justice.
Such an investigation is also necessary to reaffirm the international community's commitment to the principle of accountability for serious violations of international humanitarian law. This is particularly pressing since the "Sri Lankan option" may otherwise become increasingly attractive to those governments that will find it expedient to disregard the law if they are convinced that they may do so with impunity.
Former United Nations high commissioner for human rights and former prosecutor for the International Criminal Tribunals for Yugoslavia and Rwanda, Louise Arbour is president of the
International Crisis Group , which recently released the report "War Crimes in Sri Lanka."