08May2024

: Post 04 February 2014; By JS Tissainayagam

Competitive, state-centred international politics are often a barrier for victims of human rights violations to find redress through global judicial institutions. To circumvent some of these restrictions the civil society-led International War Crimes Tribunal was founded by Bertrand Russell in 1967 to try the United States and its allies for war crimes against the Vietnamese people.

The Permanent Peoples’ Tribunal (PPT) was established by Lelio Basso in Bologna in 1979 with similar ideals in mind. PPTs are civil society initiatives that use international legal standards, legal reasoning and procedure such as analysing evidence, but are not limited by constraints of formal judicial systems – both national and international – that bar calling certain witnesses or adopting non-legal norms.

Since PPTs are civil society initiatives they lack the rigour and legitimacy that national and international judicial institutions possess. Moreover, their verdicts cannot be enforced. But a tribunal’s verdict, because it is a collective opinion of a group of judges and the product of legal reasoning, has binding moral authority.

The need for such tribunals for victims caught up in violent civil wars in a world mired in the national interests of powerful states can be seen in many contemporary examples. Two of those are Syria and Sri Lanka. No PPT has sat on Syria yet, while two – Dublin 2010 and Bremen 2013 – have scrutinised the 30-year civil war and ongoing violations in Sri Lanka.

In January, eminent forensic experts examining evidence from Syria between March 2011 and August 2013 concluded that Syrian government forces were guilty of war crimes from a trove of evidence that showed 11,000 prisoners had been tortured and starved before they were killed.

These revelations came out as delicate negotiations unfolded in the presence of the international community in Montreux and Geneva, principally on an interim government and whether al-Assad would be part of it. Despite the mass of evidence unearthed on what appear war crimes there is widespread belief national interests of powerful countries will trump human rights. Ben Hubbard and D. Kirkpatrick wrote in the New York Times, “While the report’s authors hope it will create momentum for the prosecution of war crimes in Syria, they acknowledge that international politics are likely to block such action.”

In Sri Lanka, a 30 year-long civil war between Sri Lanka government troops and Liberation Tigers of Tamil Eelam (LTTE) rebels ended in May 2009 with the military defeat of the latter. Particularly horrifying was the fate of civilians caught up in the merciless slaughter of the final few months of combat that left between 40,000 and 146,000 people dead (the exact numbers are yet to be determined). After examining evidence a UN panel of experts concluded in a March 2011 report that both government troops and rebels had committed war crimes and crimes against humanity.

Over the past four years forensic experts and human rights lawyers have gone on to corroborate the truth of these allegations by pulling together mobile phone videos, photographs and numerous eyewitness accounts, some of which appears in a three-part documentary by Britain’s Channel Four, known as Sri Lanka’s Killing Fields.

Worse, grave human rights violations still occur due to high levels of militarisation in areas where large numbers of Tamils live: disappearances, rape and acts of ethnic cleansing. Meanwhile political prisoners and captured LTTE cadre remain in indefinite detention and are subject to torture and rape.

Mounting evidence of war crimes led to an international call for accountability by the Sri Lanka government. Colombo denied committing war crimes and refused to appoint a domestic commission of inquiry. When the international community threatened to pursue an international investigation into alleged war crimes, Sri Lanka appointed the Lessons Learned and Reconciliation Commission (LLRC). But the LLRC not only fell short of acceptable international norms of independence, but its mandate was not to investigate war crimes, but issues of why the Ceasefire Agreement of 2002 failed and preventing its recurrence.

From November 2011 onwards the international community has pursued two interrelated goals: a) that Sri Lanka appoints a credible domestic commission of inquiry and b) implementing the recommendations of the LLRC. Two resolutions at the UN Human Rights Council (UNHRC) – 2012 and 2013 – reflect these concerns.

But Colombo has continued to stonewall. Finally in October last year, UN High Commissioner for Human Rights Navi Pillay told the UNHRC, “if significant steps were not taken before … March (2014), the international community would be forced to launch its own inquiry.”

In the face of the high commissioner’s call civil society hoped that the international community frustrated by Colombo’s stubborn refusal to implement some measure of accountability or stem the continuing impunity would move towards calling for international accountability mechanisms.

However, states began backtracking despite the mounting evidence of war crimes. The US government remains focussed on the LLRC, ignoring warnings by Amnesty International that “if international policymakers continue to treat the LLRC as a potentially credible domestic accountability mechanism capable of adequately addressing alleged violations as serious as war crimes, despite all evidence to the contrary, they contribute to dangerous delays in providing real accountability, justice and reparations for the victims.”

In December 2013, US Assistant Secretary of State for South and Central Asia Nisha Biswal said, “[t]hrough the LLRC, there are a set of recommendations. I think that those are exactly the points that we’d like to see progress on, and we’ve encouraged them to do that.” The British government declared that it would push for an international investigation only if Sri Lanka did not begin a credible internal investigation into war crimes before March 2014.

Despite four years of not only stonewalling but of a perpetuating new human rights violations, Sri Lanka still retains stature in the eyes of Britain and the US to carry out a credible war crimes investigation. The only explanation for such bizarre thinking is that, as in the case of Syria and in Sri Lanka too, western capitals want to remain engaged with Colombo because it would increase their leverage to pursue their narrowly perceived national interests rather than international law and accountability.

In the face such blatant pussyfooting bodies such as the PPT perform important functions. They collect and document masses of evidence. They analyse that evidence against standards of international law. And by giving a forum to voices that realpolitik shuts out, they supplement the formal processes.

The first PPT on Sri Lanka in Dublin in 2010 established that war crimes and crimes against humanity were committed. The verdict of the second in Bremen in December said, “The panel of 11 judges unanimously found Sri Lanka guilty of the crime of genocide against the Eelam Tamil people, and that this crime continues today.”

We can only hope that in the run-up to the UNHRC sessions in March and beyond, the forthright judgement of the tribunal in Bremen will establish that national interests need not only be for narrow goals of realpolitick. National interests include fighting for justice in the world. Because in the long run a just and equitable world order makes the burden of governance less onerous in all parts of the world.

JS Tissainayagam, a senior journalist and former Sri Lankan political prisoner, is a Nieman Fellow in Journalism at Harvard. He won Peter Mackler Award for Courageous and Ethical Journalism (2009) and the CPJ Press Freedom Award (2009).

JDSLanka

Permanent Peoples’ Tribunals and the pursuit of justice in Sri Lanka