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Sri Lanka needs to have a transparent investigation

By Stephen Keim - posted Tuesday, 3 May 2011

It is a tenet of the human rights movement that societies recover from conflict, wrongdoing and criminal acts best by a process of transparency and accountability. The Nuremberg Principles play a vital part in this worldview. In particular, the view is taken that neither high office nor superior orders justify or excuse acts that would otherwise amount to serious crimes against humanity or war crimes.

The view that transparency and accountability help a society survive and build is not universally held. Governments seldom believe in either accountability or transparency to the same degree as oppositions. Governments seldom believe with the same fervour as they did when, as little as days earlier, they formed the opposition. I was particularly disappointed, for example, when the new premier of Queensland, Wayne Goss, in 1990, formed the view that it was better for futurity that the files of the Queensland Special Branch be destroyed rather than allowing those who had been spied upon to discover the truth as what lies had been told about them.

In international affairs, governments believe in transparency and accountability: in theory. Principle gives way to pragmatism whenever they meet. If another nation state has trade, natural resources, or even a vote in some obscure international committee to offer, other nation states will overlook the worst crimes by those in control of that state.


Sri Lanka has been a state in conflict since it received its independence as the Dominion of Ceylon on 4 February 1948. Since that same date, political control of Sri Lanka has remained with the Sinhalese community and the minority Tamil community (along with other minorities including the Muslim community) have largely been excluded from power. The events since 1948 include the passing of legislation to disenfranchise a million Tamils with Indian connections in 1949 and government tolerated pogroms including mass killings and torture in July 1983.

The resulting civil war ended in May 2009. The circumstances of the last nine months of the war have been the subject of reports since then by Amnesty International; Human Rights Watch; the International Crisis Group; the United States State Department and, most recently, the Foreign and Commonwealth Office of the United Kingdom . Each pointed to evidence of child recruitment and forced use of human shields by the Liberation Tigers of Tamil Eelam ("LTTE"). These are war crimes. The same reports pointed to even more cynical and criminal conduct by the forces of the government of Sri Lanka including the shelling of hospitals and shelling of government created No Fire Zones in which non-combatants had been deliberately concentrated.

The Human Rights Committee, its majority cynically deciding that the usual compromise of principle was warranted, voted simply to congratulate the Sri Lankan government on its actions.

The United Nations Secretary-General, Ban ki-Moon, showed sufficient independence and courage to appoint an international panel to advise him as to what steps he should take in the interest of accountability and transparency. The panel has now reported. At the date of writing Its report has not been officially released but had been provided to the Sri Lankan government. However, a Sri Lankan outlet (close to the government), The Island, on 15 April 2011, released extracts from what it says is a leaked copy of the report. The Sri Lankan government may not have been happy when they read their copy of the report.

The Island reports that the Panel has found that there were credible allegations of serious violations of international humanitarian law and international human rights law by both the LTTE and the Sri Lankan government. The "credible" allegations against the government included the creation and shelling of three consecutive No Fire zones. The shelling included attacks on the United Nations hub; food distribution lines; and near the International Committee of the Red Cross ships which were picking up wounded survivors from the beach. The allegations also included systematic shelling of hospitals on the frontlines.

The Panel places much emphasis on accountability and transparency. Despite the Panel finding that government's inquiry, called the Lessons Learnt and Reconciliation Commission, failed to satisfy international standards, the Panel's first recommendation is that the Sri Lankan government should, with a view to an effective domestic accountability process, initiate genuine investigations into the allegations found credible by the Panel and other alleged violations of international humanitarian and human rights law committed by both sides in the conflict.


This recommendation does not allow the Secretary-General to avoid his own steps in support of accountability. Concurrently, the Secretary-General is urged to establish an "independent international mechanism". This mechanism has a tri-partite role. It is to keep an eye on the government's efforts to conduct an effective domestic accountability process; it is to conduct its own investigations guided by the extent to which the government is playing its part; and it is to be a repository of information and evidence concerning the final stages of the civil war.

There are other recommendations some of which deal with the concern of human rights groups with the way in which the Sri Lankan government has administered the country and dealt with the non-Singhalese minorities since the end of the war. The Panel found that these included "triumphalism" on the part of the government; ongoing exclusionary measures based on ethnicity, real or perceived; the continuation of wartime measures including emergency regulations and continued militarisation of the former conflict zone; and media restrictions. The Panel also had cautionary words for parts of the Tamil diaspora who had supported the LTTE and continued to refuse to acknowledge the LTTE's role in the humanitarian disaster that occurred in the closing months of the Civil War. All of these are important but it is clear that the panel sees a refusal to be accountable for past crimes as a crucial barrier to a stable and peaceful Sri Lankan community.

The Sri Lankan government and its diplomatic supporters obviously consider that a resilient new Sri Lanka can be built on continuing oppression and suppression and by ignoring the ugly aspects of the recent past. This belief is understandable on the part of Sri Lanka's President Rajapakse. The same credible evidence to which the Panel refers also suggests that the shelling of No Fire Zones and hospitals and other crimes could not have occurred without the ongoing knowledge and consent of, at least, the President and his brother, the Defence Minister. Accountability and transparency is less welcome when you are the one on whom the focus falls.

There is something uncomfortable about building a future built on lies about the past. There is something believable about the claim that such an approach will give rise to new hatreds and new conflict in future decades and among future generations.

The international community does not have the same excuse as President Rajapaksa. All nation states are obligated to act to protect the rights identified in the Universal Declaration of Human Rights and its first born child, the International Covenant on Civil and Political Rights. The recommendations of the Panel must be taken seriously. Resources must be provided to ensure that, if a suitable domestic process does not emerge, the independent international mechanism does, in fact, conduct a thorough investigation and the evidence is located and preserved to ensure the truth about the closing months of the Sri Lankan Civil War is indeed uncovered and told in authoritative terms.

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About the Author

Stephen Keim has been a legal practitioner for 30 years, the last 23 of which have been as a barrister. He became a Senior Counsel for the State of Queensland in 2004. Stephen is book reviews editor for the Queensland Bar Association emagazine Hearsay. Stephen is President of Australian Lawyers for Human Rights and is also Chair of QPIX, a non-profit film production company that develops the skills of emerging film makers for their place in industry.

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