In April 2009, we travelled together as foreign ministers to Sri Lanka, as 25 years of fighting between the Sri Lankan government and the Tamil Tigers neared its end.
The remaining fighters were trapped in the northern most part of the country — along with large numbers of civilians. U.N. estimates put the numbers of civilians there in the last few months of the war at over 300,000.
Our purpose was simple: to draw attention to the human suffering, to call for humanitarian aid and workers to be allowed in, and to call for the fighting to stop.
We visited refugee camps that had been created to house Tamil refugees from Jaffna. Their stories were brutal and shocking. Random shelling in areas of fighting — including after the government had announced an end to fighting. Men and boys taken away from refugee camps — and now out of contact. Tamil life treated as fourth or fifth class. If foreign policy is about anything, it should be about stopping this kind of inhumanity.
When we met President Mahinda Rajapaksa and members of his government, we argued that his government had legal obligations to its people, whatever the heinous tactics of the Tamil Tigers.
We also urged a recognition that to win the peace, President Rajapaksa needed to reach out to Tamil minorities to make real the constitutional pledges of equal treatment for all Sri Lankans.
Restrictions on journalism meant that there was a war without witness in Sri Lanka. But in March 2009 the U.N. secretary general, Ban Ki Moon, visited Sri Lanka and wrenched from President Rajapaksa a commitment to independent investigation of alleged human rights abuses.
The agreement was subsequently denied by the president, but in 2010 the secretary general set up his own independent Panel of Experts on Accountability in Sri Lanka. The damning report, compiled by three leading and independent figures, was published on March 31, 2011.
It reports that tens of thousands of people lost their lives in the space of three months at the beginning of 2009, most as a result of government shelling. The government shelled on a large scale in three no-fire zones. It shelled the U.N. hub and food distribution lines. It “systematically shelled hospitals on the frontlines.” Meanwhile the Liberation Tigers of Tamil Eelam, or L.T.T.E., refused civilians permission to leave, using them as hostages, and shooting point blank those who attempted to escape.
The panel of experts found credible allegations of serious violations of international law by the Sri Lankan government and the L.T.T.E., some of which amount to war crimes and crimes against humanity. It says that the conduct of the war represented a “grave assault on the entire regime of international law.” It says the Sri Lankan government’s Lessons Learnt and Reconciliation Commission fails standards of impartiality and independence, is deeply flawed, and does not satisfy the joint commitment of the Sri Lankan president and the U.N. secretary general to an accountability process.
The report constitutes a serious test for the Sri Lankan government. Will it realize the error of brushing wrongdoing under the carpet? Will it recognize that the continued detentions under “state of emergency” laws undermine Sri Lanka’s claims to a normal place in the international community? Will it recognize that the continued failure to resettle Tamils in an equitable way, and give them economic opportunities as well as social rights, is a dangerous cancer at the heart of Sri Lanka’s future?
But the report is also a test for the U.N. system and the wider world community. In 2005 the U.N. unanimously embraced the doctrine of “Responsibility to Protect.” It must not be honored in the breach rather than in the observance.
The U.N. report calls for the secretary general to take further action, including establishing an independent, international mechanism to monitor Sri Lanka’s reconciliation efforts, and to conduct independent investigations into alleged violations. The U.N. human rights commissioner, Navi Pillay, supported this at the opening session of the Human Rights Council this year.
It seems to us essential that this process is taken forward. As the report says, accountability is a duty under domestic and international law, and those responsible, including Sri Lanka Army commanders and senior government officials, would bear criminal liability for international crimes.
The integrity of the international system in addressing human rights abuses is rightly under scrutiny as never before. And when peaceful, diplomatic initiatives to hold accountable those who abuse human rights run into the sand, they only fuel the arguments of those who want to take the law into their own hands. So this decision about the handling of this report matters for Sri Lanka but it also matters more widely.
Kofi Annan has said that the international community cannot be selective in its approach to upholding the rule of law. We therefore call on our governments to set a deadline, soon, for satisfactory response from the Sri Lankan government, and if it is not forthcoming to initiate the international arrangements recommended by the report.
Reports like the one compiled for the secretary general must not stand on the shelf. They must be the basis of action. Or the law becomes an ass.
David Miliband and Bernard Kouchner, foreign ministers, respectively, of Britain and France from 2007 to 2010.