Vanni, Sri Lanka 2009 |
The Obama administration has taken the lead internationally to promote accountability in Sri Lanka. The principal focus is on war crimes and crimes against humanity committed during the country’s decades long civil war. But those efforts are also important to addressing the situation of Tamil, Muslim, and Christian minorities in Sri Lanka today.
Congress has also played an important role. It has restricted military
and financial assistance, and individual congressional members have distinguished
themselves through a variety of statements and initiatives.
The lack of accountability in Sri Lanka, however, is worsening.
Following her visit there, the UN High Commissioner for Human Rights stated
that the country is “showing
signs of heading in an increasingly authoritarian direction” (see
also this International Crisis Group report).
According to the State
Department, the main targets of human rights violations are “civil society
activists, journalists, and persons viewed as sympathizers of the Liberation
Tigers of Tamil Eelam terrorist organization.” As the State Department further
explains, violence against Muslim and Christian minorities is also an
increasing concern due to “a serious escalation in the number of attacks by
extremist Buddhist groups, many with direct ties to high government
officials” (my emphasis added). In short, impunity (for war crimes) begets
impunity (for ongoing violations). And in Sri Lanka today, a climate of
impunity reigns.
But what more can the US government and members of Congress do? I was
invited to give a presentation at a congressional briefing hosted by the
Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka last week.
This post is based on my remarks, and their further refinement in light of
discussion at the briefing. [In a subsequent post, I will outline a second
aspect of my remarks: legal avenues the United States could pursue against U.S.
citizen and Sri Lanka’s Secretary of Defense to the Minister of Defense,
Gotabaya Rajapaska (for earlier coverage, see here, here & here).]
Here are my thoughts on additional steps for Congress and the Executive
Branch.
1. Further promote efforts at the United Nations
Example: H.Res.
247 and S.Res.348 are
important, bipartisan initiatives. Both pieces of draft legislation convey
support for an international investigation into the commission of war crimes
and crimes against humanity.
Additional steps:
a. New UN investigation
Key language in H.Res. 247 and S.Res.348 should be reworded to reflect
support for the recently
created UN investigation, which is an effort that the US government spearheaded in a
March 2014 UN resolution, along with other partners such as the United Kingdom
and a range of co-sponsors.
Explanation: The current wording of both the House and Senate drafts is
phrased prospectively. H.Res. 247 “calls for the establishment of a credible,
international, independent accountability mechanism to look into allegations of
war crimes, crimes against humanity, and other human rights violations.”
S.Res.348 has almost identical language. The latter also refers approvingly to
the UN Human Rights Council’s 2013 Resolution, rather than 2014 Resolution
which established the international accountability mechanism.
b. Naming names
Congress could convey support specifically for the UN investigation to
produce a list of named individuals (on both sides of the conflict) for whom
there is sufficient evidence of criminal responsibility.
Explanation: There is ample precedent for such a result. For example,
the UN’s commission of inquiry on Syria and the UN Commission on Darfur
presented sealed reports to the UN identifying suspected government officials.
The UN already conducted a significant inquiry into Sri
Lanka, and thus naming individuals who should be held responsible is one of the
next, most important steps that this new body could take.
c. Witness protection
Congress could encourage the US administration, and other governments
who have supported the UN
inquiry, to develop immigration safeguards (e.g., asylum, withholding of
deportation, special visas) and witness protection measures for individuals who
provide valuable information to the UN investigators.
Explanation: Many individuals would now like to come forward with direct
information concerning some of the most important cases of international crimes
committed in Sri Lanka. Witness protection is especially important for Sri
Lankans due to reports of “widespread harassment and intimidation targeting
human rights defenders, activists, lawyers and journalists, including reprisals
against those who engage with the United Nations human rights mechanisms” (UN
Office of High Commissioner report
2014).
d. Intelligence sharing
Congress could encourage the administration to share with the UN
investigators, as much as possible, intelligence and other information that the
US administration possesses about specific individuals’ culpability (the most
difficult evidence for the investigation team to obtain on its own).
2. Travel restrictions
It would be highly valuable for the United States to send a message of
accountability through the use of travel restrictions. An exemplary piece of
draft legislation is H.Res.587
(introduced by Rep. Rush Holt). The key part of the text states:
“Recommends that the Department of State restrict U.S. entry for anyone
responsible for war crimes and crimes against humanity.”
It deserves the support of Congress and, at the very least, all of the
Republican and Democratic cosponsors of S.Res.348 and H.Res. 247.
3. More balance in resolutions
Congressional resolutions are more effective politically, and match US
diplomatic efforts, if they recognize crimes committed on both sides of the
conflict and the need for all parties to make efforts toward reconciliation.
H.Res.587 is a
good example of this form of recognition because it also “[c]alls on members of
the Tamil National Alliance to acknowledge past relationships with the LTTE and
make a commitment to reconciliation and a long-term political solution.” I
might quibble with some of that language, and, in light of recent events, it
might be worded more affirmatively, for example, by “welcoming recent
statements by Tamil National Alliance leaders calling for accountability for both
LTTE and government crimes.” Regardless of those specific details, the
important point is that even though some constituencies oppose including that
type of language, doing so makes such efforts less vulnerable to charges of bias
and thus probably more effective.
4. Sanctions
Congress should continue its stance on the restriction of military
assistance, technology transference, and financial support through
international financial institutions for Sri Lanka.
It may be valuable for Congress to revisit such restrictions to see
whether they should be expanded especially in light of independent reports of
ongoing abuses (including in the Northern
Province and widespread
torture and sexual violence).
It is also time to consider developing other forms of pressure. The
United States is Sri Lanka’s second largest export
market; the European Union its largest. EU officials have suggested they have
no plans for economic sanctions, yet they have suspended Sri Lanka’s
preferential trade status (GSP+) on the basis of lack of accountability for war
crimes. The US should consider developing similar forms of pressure. Indeed,
even just the process of contemplating such actions could help send a message
to Sri Lanka’s political and civic leaders about the importance of
accountability.
5. Reporting to Congress
The State Department’s Office of Global Criminal Justice performed a
valuable task in the past reporting
to Congress on accountability in Sri Lanka. That function was especially important
when there was a lack of information. There is now, however, ample information.
And that particular office’s time and efforts are probably not best spent on
another report.
Instead, members of Congress should invite the UN panel for a
congressional hearing/briefing once the UN report is finalized in April 2015.
[Editor’s Note: Stay tuned for Ryan Goodman’s post: “Road Map II:
Which Laws Could Assist in the Prosecution of a US Citizen for War Crimes—The
Case of Gotabaya Rajapaksa”]
About the Author
Ryan
Goodman is co-editor-in-chief of Just Security. Ryan is the Anne and Joel
Ehrenkranz Professor of Law at New York University School of Law. You can follow him on Twitter
@rgoodlaw.