A Chance for Justice in Sri Lanka?

Sri Lanka must deal with the deep and languishing divisions created by past human right abuses. A policy of impunity does the opposite and would be a grave mistake. Impunity is pernicious and suggests that atrocities can be condoned. They cannot.
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Mahinda Rajapaksa's defeat in Sri Lanka's 2015 presidential election evoked, for me, some harrowing images and a glimpse at a path to justice.

An estimated 40,000 civilians died in the final weeks of Sri Lanka's 26-year civil war, as government forces battled the Liberation Tigers of Tamil Eelam, commonly known as the Tamil Tigers. While no court has held a formal investigation, it is alleged that government forces committed war crimes and crimes against humanity. In 2010, London's Channel 4 News produced an extraordinary investigative documentary into the killings, and asked me to comment on the international legal implications of the footage. The video was the most graphic evidence of war crimes that I had seen. It appeared to show Sri Lankan government troops executing civilians: a soldier casually shot a bound and blindfolded prisoner as he lay amongst the bodies of Tamil prisoners; another executed a prisoner with a close-range shot to the head. In another frame, a soldier sexually brutalized a woman naked and either dead or unconscious on the ground.

One year later, a UN panel of experts confirmed what I believe I witnessed in that video: undisputed evidence of serious violations of international humanitarian and human rights law. There are indications of torture, and of widespread indiscriminate shelling causing large numbers of civilian deaths. There are allegations that government forces used cluster bombs, white phosphorus, and other chemical substances against civilians. These and other findings constitute credible evidence that Sri Lankan government forces committed war crimes and crimes against humanity.

The UN Office of the High Commissioner for Human Rights Investigation in Sri Lanka (OISL) is finalizing its report, due to be published in March. The report will undoubtedly mirror the earlier UN investigation.

While President, Mr. Rajapaksa consistently refused to investigate alleged atrocities committed by his soldiers, and he himself was immune under the Sri Lankan constitution. Also, under international law, a Head of State has immunity ratione personae, or personal immunity, from virtually all lawsuits in foreign national courts.

Personal immunity only applies, however, while a leader holds office. An ex-Head of State cannot claim personal immunity.

The 2015 presidential election result finally creates the opportunity to bring Mr. Rajapaksa to justice for atrocities committed by Sri Lankan government forces, its agents, and paramilitary forces.

Mr. Rajapaksa will argue that he retains immunity for acts carried out in the line of military duty as Head of State. This claim would be based on immunity ratione materiae, or functional immunity, which does not attach to the office of Head of State but to the type of acts performed in that capacity. The principle of functional immunity is based on the notion that a Head of State should not have to compromise his or her decisions for fear of criminal or civil legal action. But, would such immunity cover alleged international crimes while performing official presidential duties? Emphatically, "No."

Despite a few odd and contradictory court decisions, war crimes, genocide, torture, or crimes against humanity can never be seen as "official acts" and, consequently, should never be protected under functional immunity. It is unthinkable to imagine that such nefarious crimes might be considered protected acts carried out by a Head of State.

Unfortunately, the newly elected President, Maithripala Sirisena has indicated that Mr. Rajapaksa and other senior military commanders will not face domestic prosecution. President Sirisena indeed seems willing to broker a deal with the very leaders who committed crimes. Decisions like these are often premised on a misguided belief that, in post-conflict environments, it is necessary to choose between justice and peace. But this is a false choice. Sri Lanka must deal with the deep and languishing divisions created by past human right abuses. A policy of impunity does the opposite and would be a grave mistake. Impunity is pernicious and suggests that atrocities can be condoned. They cannot. How can there be reconciliation in a community where criminals retain political legitimacy and immunity from prosecution?

International pressure is vitally important in this instance, and should be guided by the principle of universal jurisdiction.

Universal jurisdiction is the principle etched in law that every country has an interest in and responsibility to bring to justice perpetrators of the most abhorrent crimes -- no matter where those crimes were committed, and regardless of the perpetrators' nationality. The underlying premise is that certain offenses strike at the core of mankind and betray the law of nations itself. International law neither negates nor limits the jurisdiction of states with respect to such crimes, but instead gives effect to state interdictions to bring the assailants to trial. Universal jurisdiction empowers domestic courts to enforce international law.

Enforcing international legal norms -- absolutely fundamental to protecting human rights and supporting peace and stability -- must be a priority for the international community. Leaders of all nations must reject impunity, embrace the principle of universal jurisdiction, and clearly state that the alleged perpetrators will be arrested if they cross international borders. Accountability for atrocities committed in Sri Lanka can offer the country a chance to heal. More important, it will give voice to more than 40,000 victims who perished, brutally, in those last weeks of war.

Dr. Mark Ellis is Executive Director of the International Bar Association, London

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