U.S. report: a contradicting confluence of politics, international law
In the recently released factual supplement on the violations of international law in Sri Lanka’s conflict, the US State Department Office of Global Criminal Justice (GCJ) exposes the defects in the investigations into the crimes reported by the Sri Lanka’s President appointed LLRC and the deviations in the LLRC report with reference to the report by the UN’s Panel of Experts (PoE). Tamils Against Genocide (TAG), an activist group in the US, expressing concern for the damaging impact of the report to Tamil justice, said, "the deficiency in the fundamental framework of reference articulated in the key sections of "accountability" and the "legal framework" will seriously undermine justice for the victims who were subjected to the ‘crime of the 21st century’ where the Sri Lanka state stands accused of killing more than 40,000 Tamil civilians."
The report, however, points out, with commendable precision, the defects in the mandate and in the execution of investigative procedures in providing an estimate of civilian casualties, shelling of the No Fire Zone (NFZ) crowded with civilians, attacks against humanitarian objects, white flag incident and other alleged violations of international law.
Stephen Rapp, US ambassador-at-large for war-crimes issues
"But, the Accountability section fails to articulate the failures of past internal Commissions of Inquiries (CoIs) that have plagued Sri lanka, black-marking the island as being "unable or unwilling" to conduct impartial investigations. The report also provides an elastic time frame and characteristically undefined metrics to determine whether Sri Lanka’s expected implementation of the LLRC recommendations will be timely and will comply with exacting international standards," TAG spokesperson said, and added:
The US falsely construes the non-existence of LTTE after Mu’l'livaikkaal as the equivalent of a regime change which would make hybrid transitional justice solutions viable. But, that is not a mistake. While it is widely understood a regime change is a key pre-requisite for transitional justice, the US has carefully avoided this issue.
The US appears willing to allow alleged perpetrators of the crimes to be the overseeing authority to control and govern the investigations, despite revelations in Wikileaks where the US ambassador admitted to the futility of an internal investigation when the rulers Rajapakses bear clear command responsibility to several alleged ‘universal crimes.’
The report also has not mentioned that three years have passed with no discernible action by the Sri Lankan State, within the background history of failed CoIs. While the accountability process is protracted within a flawed transitional justice model, parallel objectives of the GoSL to alter the demographic composition of historically Tamil territories progress unimpeded. This is the same policy of state-sponsored Sinhala settlement successfully executed in Amparai in the 60s and 70s. While the report is on war crimes, and US takes no position on self-determination and colonization, TAG contends that the U.S. is not unaware that prompt action is essential on war crimes prosecution as providing more time to Rajapakses will lead to irreversible demographic changes, thereby postponing the inevitable solution based on Tamils right to self-determination.
The US articulates its own preference of the accountability criteria, instead of using what’s acceptable to a broader section of the stake holders, including, and especially, the Tamil victims. This is in stark contrast to the recent announcement by the State Department which is proactively funding mechanisms for the Syrians to collect evidence for use in criminal prosecution of the regime.
The US is seemingly advocating a flawed accountability model, and will likely criticize the model when Sri Lanka, with stubborn defiance, fails the international community mandated ‘implementation’ exercise. The language also appears to reflect an alarmingly dangerous long-term intention of the US to help Rajapakses white-wash war crimes. "The US appears to be simply going through the motions as a protector of humanrights, rather than bringing the perpetrators of war-crimes to justice.
The State Department’s analysis of the legal framework for assessing the rights violations in Sri Lanka conflict, as applied to international law, raises several issues. Here, the US’s contradicting positions, through the war, where on one hand, viewing the conflict in Sri Lanka as part of its "war on terror," and proscribing the LTTE as a Foreign Terrorist Organization (FTO), and on the other hand participating in the quartet of co-chairs to advocate a ‘political solution’ to the civil war, provide the backdrop to the seemingly flawed analysis. TAG raises the following issues:
The legal analysis assumes that the war is of non-international character, a civil war, and hence Protocol II of the Geneva conventions applies. One can argue that while the two actors of the conflict are local to Sri Lanka, many external actors were involved covertly or overtly, supplying arms on the one hand, and negotiating peace on the other, making the conflict, at least fall into a category of non-international conflict with international dimensions. Geopolitics drew countries focused on dominating the Indian Ocean to ‘indirectly intervene’ in the conflict, creating an international character to the internal war. This might allow application of part of the Protocol I articles applicable to Sri Lanka conflict. Outward flow of refugees as asylum seekers in the West, "war on terror" which allowed the international community to tacitly permit and approve killings of 100,000+ civilians to wipe out "terrorists," are additional factors providing a tincture of international dimension.
Tamils can argue that the conflict is essentially a war for national self-determination, and thus should be recognized as an international armed conflict.
It is unclear when the US changed its view of the conflict as an armed conflict or a "war on terror," a position which undermined the peace process. First, the legal posture including the cognizance of the Sri Lankan situation as a non-international armed conflict, necessarily stipulates by negative inference the legal status of the LTTE was that of a belligerent party and not a terrorist group. This contradicts the policy of active prosecution of the LTTE during the Cease Fire Agreement (CFA) as a terrorist group perpetrating terrorist acts. The LTTE status cannot be "belligerent" and "terrorist" at the same time.
Report provides no recognition that the mandate given to the LLRC was grossly disproportionate to the gravity of the alleged war crimes and crimes against humanity, and other violations of International Humanitarian Law (IHL), and International Human Rights Law (IHRL). Environmental damage to the Tamils historical areas of habitation is another rising concern, and is a crime under IHL and IHRL; the criminality for causing environmental damage by the use of deliberate shelling and disproportionate offensive violence is not addressed in the legal framework.
The report should have addressed the legal status of the US citizens and Greencard holders alleged to have been involved in committing war-crimes. Omission of the US dimension of Gotabaya Rajapakse’s US citizenship, and the Greencard status/citizenship of Sarath Fonseka, Basil Rajapakse, and possible US-nexus of ACF-17 alleged criminal Kotagadeniya, and their command responsibility over many of the crimes alleged, will likely trigger domestic US criminal statutes for genocide, torture, and war crimes.
The War Crimes section of the US Government has attempted to critically analyze the viability of the LLRC report and recommendations in a framework, extricated and insulated from a history of failed commissions, and political circumstance where the perpetrator is expected to investigate himself.
Those omissions threaten to invalidate the merits of the analysis, although one can agree on the issue of compelling the GoSL to investigate and rectify the LLRC mandate to create an acceptable and workable option.
But fixation on only the areas of consensus is a Red Herring which detracts from the foreseeable failure of the LLRC as a mechanism to address Tamil killings of genocidal proportions, and to provide accountability and justice to the victims.
If Sri Lanka’s past history of 60 years is an indication, a reasonably predictable outcome is the non-implementation, or grossly deficient implementation, of the LLRC recommendations, TAG spokesperson said, adding, "Tamil Diaspora, and the different political groups within, should begin to discuss on how the non-implementation of the LLRC maybe turned into the first step towards a post-LLRC proposal to deliver Tamil justice."