In May 2009, the Sri Lankan army defeated the Liberation Tigers of Tamil Eelam better known as the Tamil Tigers, ending 26 years of conflict. UN sources have estimated that between 80,000 and 100,000 persons died in the Sri Lankan Civil War with over 40,000 civilian casualties between 2005 and 2009 alone. Most civilian casualties were caused by Sri Lankan army shelling in the “no firing zone” (NFZ) and indiscriminate shooting by Tamil Tigers, according to a UN report.

Since hostilities ended, the families of the victims have sought accountability and justice. However, many of those involved in war crimes have been pardoned or acquitted. Lord Ahmad, UK Minister for South Asia and the Commonwealth, stated that "the victims… of Sri Lanka's brutal civil war are, a decade later, still awaiting justice for loved ones murdered or missing, and dealing with the repercussions of violence and conflict". This raises questions of the accountability of the Sri Lankan government, the sincerity of its desire for reconciliation with the Tamil people, and the impartiality of the country’s justice system.

ACCOUNTABILITY OF THE VICTORS

Determining the accountability for excessive and unwarranted violence during a conflict is decided by the victor. True from time immemorial, atrocities by victorious powers are swept under the carpet with the figures responsible for atrocities more likely to be promoted than prosecuted.

This is true of Sri Lanka , with the current President Gotabaya Rajapaksa a prime example. A former army general and defence minister from 2005 to 2015, Rajapaksa oversaw the conflict's final phase. During this period, rates of unlawful killings were at their highest level, when an estimated 40,000 Tamil civilians were killed, many women and children. There are credible reports of indiscriminate shelling by the military at this time, including in the densely populated NFZ.

 A recent United Nations Human Rights Council (UNHRC) report titled "promoting reconciliation, accountability and human rights in Sri Lanka" brought to bear the extent of these abuses. The report highlights that despite the blatant human rights violations, impunity has reigned for many of the architects. Cases which have reached the courts have been subject to delays, interference, witness intimidation, and only exceptionally have resulted in convictions. In 2015, it seemed that Sri Lanka was moving towards more accountability for the military’s actions. However, with the election of Rajapaksa in 2019, this seems an unlikely prospect. Under Rajapaksa, there has been a drift towards authoritarianism and militarism and away from reconciliation with the Tamil people. The government has rejected the findings of the UNHCR and denounced a resolution calling for further monitoring of Sri Lanka as a "pure political move". Rajapaksa himself has rejected allegations that war crimes were committed on his orders.

SWEPT UNDER THE CARPET

As well as denying any accountability for the violence, Rajapaksa has consolidated his power through sweeping constitutional changes. He now has the power to hold multiple ministries and to remove ministers at will. He also has authority over the once independent commissions that oversee elections, police, human rights, and anti-corruption efforts. Rajapaksa's rise has led to a return of fear for the Tamil communities already scarred from the civil war, who now fear increasing abuses under a new emboldened, powerful government. Nowhere is this more evident than in the new government’s disdain for accountability.

The UN High Commissioner for human rights and civil rights groups has warned that Sri Lanka could descend into violence and human rights abuses unless decisive international action is taken. Michelle Bachelet offered a stark warning that the Sri Lankan government has "closed the door" on ending impunity for past abuses and is facing a return to state repression of civil society and public institutions' militarisation. Bachelet highlighted how under Rajapaksa, Sri Lanka has demonstrated unprecedented militarisation levels, with serving and former military officials holding key positions throughout the administration. This is consistent with the chronic failures of criminal justice within the country. In response to calls for truth, justice and reconciliation, Sri Lankan governments have tended to fail to hold the perpetrators to account, instead appointing commissions of inquiry which have only proved to stall concrete action with the commissions taking months, sometimes years to complete their mandates. Families of victims of enforced disappearances from as far back as the 1980s continue to search for answers, and in the North of Sri Lanka, families have protested for over 1000 days with no answers.

The Mirusuvil massacre case best demonstrates the justice system's fragility and vulnerability in the provision of accountability. On 19 December 2000, nine individuals who were displaced from their lands in Mirusuvil returned to their properties. This included a five-year-old child and a 13-year-old child who accompanied their father. The group's sole survivor gave evidence of the killings which followed. His evidence resulted in the arrest of former Army Staff Sergeant Sunil Ratnayake and others in the army. Despite delays, and after nearly 15 years, the trial culminated in a conviction in June 2015 and was affirmed by the Supreme Court of Sri Lanka in April 2019. However, in March 2020, Ratnayake was provided with a presidential pardon for his actions. Demonstrating the apparent impunity of those close to the administration, with numerous acquittal examples in similar cases of murder and violence. The impact of this has been to entrench a sense of impunity, further exacerbating victims continuing distrust of the system.

LOOKING FORWARD

Accountability remains one of the most divisive subjects in Sri Lanka, with some arguing that seeking justice for every perceived act of unwarranted violence will prove to harm peace more than entrench it. However, it remains true that since 2009 there has been a distinct lack of justice for the Tamil minority, reinforcing claims of impunity for all those involved in the bloody final phase of the conflict. Laid bare by cases such as the Mirusuvil massacre and with the election of Rajapaksa, it seems that impunity will continue further marginalising and eroding trust for bereaved Tamil families who have lost their trust in fair justice. As a result, the prospect of sustainable peace within Sri Lanka seems an unlikely prospect. With the entrenchment of militarism under Rajapaksa, the government seems likely to remain steadfast in its rejection of accountability as a means for peace. Instead, it seems likely to follow a process of authoritarianism to quell any disquiet within the marginalised communities of Sri Lanka.

Zachary is a researcher and masters graduate in International Studies and Diplomacy from SOAS based in London. Zachary's research has focused upon prevailing human rights issues within the Asian continent, with a particular focus on South Asia. He is particularly interested in what solutions exist to ethnic and religious divisions and how the global community can be mobilised ensuring all people are guaranteed their basic human rights, regardless of class, creed and race.

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