UN Chief powerless to pursue war crimes charges in Sri Lanka

UNITED NATIONS (IPS): UN Secretary-General Ban Ki-moon admitted Monday he is not empowered to establish an international war crimes tribunal to probe the “serious violations” of international humanitarian and human rights law committed during the concluding stages of the decades-long conflict in Sri Lanka in May 2009.

Ban has been advised this will require host country consent – in this case the consent of the Sri Lankan Government – or a decision by member states through an appropriate intergovernmental forum such as the General Assembly, the Security Council or the Human Rights Council.



Still, the Secretary-General says he has “consistently held the view that Sri Lanka should, first and foremost, assume responsibility for ensuring accountability for the alleged violations.”

The Sri Lanka Government is not likely to give its consent to any investigations of war crimes charges.

As a result, it will be left to one of the three intergovernmental bodies to decide on any course of action or act on the recommendations of the panel.

The three-member panel, which submitted its 196-page report to Ban last week, recommended he “should immediately proceed to establish an independent international mechanism” to investigate allegations of violations both by the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE).

The panel declared that some of allegations “amount to war crimes and crimes against humanity”.

The report provides details of these allegations – including photographs and satellite imagery of civilian targets bombed during the conflict – which have been vehemently denied by the Sri Lankan Government.

The LTTE, which has also been subject to severe criticism by the panel, is accused of executing civilians tantamount to war crimes.

“The conduct of war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace,” the report said.

The Government made an unsuccessful attempt last week to convince the Secretary-General not to release the report, even though large portions of it were leaked to the Sri Lankan media.

A statement attributed to the U.N. spokesperson said: “The decision to release the report was made as a matter of transparency and in the broader public interest.”

A copy of the report was shared with the Sri Lankan Government, through its Permanent Mission to the United Nations, on 12 April.

Although Ban indicated his willingness to publicise the Government’s response alongside the report, Sri Lanka did not avail itself of this opportunity.

“The Government has not responded to this offer which nonetheless still stands,” UN Spokesperson Martin Nesirky said Monday.

One of the first recommendations of the panel was to call on the Sri Lankan Government to respond to the “serious allegations” of war crimes “by initiating an effective accountability process beginning with genuine investigations”.

Asked for his comments, Sri Lanka’s Permanent Representative to the United Nations Ambassador Palitha Kohona told IPS, “It is disappointing that a report made to the Secretary-General, funded from his emergency fund, and not authorised by any legislative organ of the United Nations should have been made public in this fashion.”

He pointed out that the Secretary-General had also consistently said the panel would only provide advice to him.

“The publication of this report in this manner, considering that it has strayed way outside its mandate, is also an unfair interference in the work of the Lessons Learned and Reconciliation Commission (LLRC) in Sri Lanka,” Kohona said.

The LLRC, which was appointed by the Government to probe some of the allegations, has not completed its own investigations.

But human rights groups have criticised the LLRC as lacking credibility.

The panel says the LLRC “fails to satisfy key international standards of independence and impartiality, as it is compromised by its composition and deep-seated conflicts of interests of some of its members.”

In a statement released here, the Secretary-General said he will respond positively to the panel’s recommendation for a review of the United Nations actions regarding the implementation of its humanitarian and protection mandates during the war in Sri Lanka particularly in the last stages.

The exact modality of such a review will be determined after consultations with relevant UN agencies, funds and programmes.

Responding to reports that the Sri Lankan Government was encouraging mass protests against the United Nations during an upcoming May Day rally next week, Ban said he trusts the Government of Sri Lanka will continue to respect the work of the UN and its agencies as well as its obligations to the safety of UN staff in Colombo.

“He regrets the inflammatory tone of some of the recent public statements emanating from Sri Lanka,” the statement added.

“The Secretary-General sincerely hopes that this advisory report will make a contribution to full accountability and justice so that the Sri Lankan Government and people will be able to proceed towards national reconciliation and peace,” it added.

The three-member panel comprised Marzuki Darusman of Indonesia (chair), Yasmin Sooka of South Africa and Steven Ratner of the United States.

The panel, which began its work last September, was created by Ban to advise him on “accountability issues” with respect to the concluding stages of a bloody three-decades-old conflict, which ended in May 2009.

The Sri Lankan Government repeatedly took the position the UN charter does not provide the Secretary-General the legitimate right to appoint a panel of experts to probe human rights violations.

The creation of the panel was also not authorised by the Human Rights Council, the General Assembly or the Security Council.

The Government successfully battled a ruthless terrorist organisation, the LTTE, which was fighting for a separate nation state in the north and the east of the war-ravaged country.