Human Rights Watch is calling for a United Nations commission of inquiry to investigate violations of international humanitarian law by both Sri Lankan government forces and the Liberation Tigers of Tamil Eelam during the recent fighting. This Q & A addresses various issues relating to accountability for crimes in violation of international law.

Introduction

For more than 25 years the government of Sri Lanka has been involved in an armed conflict with the separatist Liberation Tigers of Tamil Eelam (LTTE). This conflict has been marked by numerous human rights abuses by both sides, which Human Rights Watch has long reported on. A ceasefire that began in February 2002 effectively ended with the resumption of major military operations in mid-2006. Since then, LTTE forces have slowly retreated to an enclave in the northeast coast of the island, forcing large numbers of ethnic Tamil civilians along with them. Since January 2009, fighting in this enclave has intensified, with the LTTE using the civilian population as human shields and government forces firing heavy artillery indiscriminately into populated areas.

The government's prohibition on the media, human rights groups and most humanitarian agencies from the conflict area has sharply reduced information on the situation. However, first-hand accounts and photographs from Sri Lankans trapped in the government-declared "no-fire zone" paint a grim picture of death from combat, malnutrition, and inadequate medical care. The UN estimates that about 6,400 civilians have died from the fighting since January and that some 13,000 more have been wounded. Government advances and the outflow of tens of thousands of civilians in recent days suggest that the conventional war against the LTTE is nearing its end.

Civilians have paid a heavy price in this conflict, especially in recent weeks. Human Rights Watch has investigated a range of alleged serious violations of international humanitarian law (the laws of war) committed by Sri Lanka and the LTTE since the beginning of 2009. By government forces these include: the indiscriminate use of weapons such as heavy artillery in densely populated areas; and enforced disappearances of suspected LTTE fighters. By LTTE forces they include: using civilians as human shields or otherwise placing them at unnecessary risk; deliberately firing on civilians seeking to flee the conflict zone; and the use of child soldiers. 

All parties to an armed conflict-both states and non-state armed groups-are responsible for complying with the requirements of international humanitarian law (also called the laws of war). That is, each party must respect and ensure respect for the laws of war by its armed forces and other persons or groups acting on its orders or under its direction or control. This obligation does not depend on reciprocity-parties to a conflict must respect the requirements whether or not the opposing side abides by it. It also does not depend on the reason for which the respective parties go to war, whether by a state ("fighting terrorism") or an armed group ("ethnic homeland"). And all parties to an armed conflict must be held to the same standards, regardless of any disparity in the harm caused by alleged violations.

A party to an armed conflict is responsible for serious violations of the laws of war committed by its armed forces and persons or entities acting under its authority, direction or control. That responsibility, whether by a state or non-state actor, entails a requirement to make full reparations for the loss or injury caused; reparations can take the form of restitution (reestablishment of the prior situation), compensation (financial payment) or satisfaction (such as a formal apology or other action) to another state, entity or individuals. As discussed below, states also have an obligation to hold accountable individuals under their control who are responsible for serious violations of the laws of war.

What international law applies to the armed conflict in Sri Lanka?

The armed conflict between Sri Lanka and the LTTE is governed by international treaties and the rules of customary international humanitarian law. Customary humanitarian law, based on established state practice, binds all parties to an armed conflict, whether states such as Sri Lanka or non-state armed groups such as the LTTE, and concerns the conduct of hostilities. Relevant treaty law includes Common Article 3 to the Geneva Conventions of 1949, which sets forth minimum standards for the treatment of persons within a party's control.

Why is accountability important?

Holding individuals accountable for serious violations of the laws of war is important because it may deter future violations, promote respect for the law, and provide avenues of redress for the victims. Armed forces that hold offending individuals accountable under these laws promote discipline and professionalism within their forces, maintain responsible command, and improve relations with the civilian population. States and non-state armed groups that fail to establish such accountability undermine their standing in conflict areas and globally, and increase the likelihood of international action being taken against them. Such accountability is also necessary for the victims of laws of war violations and their families who seek justice for their plight.

What are the obligations of states generally to ensure respect for the laws of war?

All states, whether or not a party to the conflict, have a responsibility under the Geneva Conventions of 1949 to exert their influence, to the degree possible, to stop violations of international humanitarian law. Such action can be taken unilaterally or as part of multilateral measures, such as collectively imposed sanctions against a state, an armed group, or certain individuals. 

Who is primarily responsible for ensuring accountability of individuals who have committed laws-of-war violations?

Ensuring justice for serious violations is, in the first instance, the responsibility of the states whose nationals are implicated in the violations. States have an obligation to investigate serious violations that implicate members of their forces or other persons under their jurisdiction. The state must ensure that military or domestic courts or other institutions impartially investigate whether serious violations occurred, identifying and prosecuting the individuals responsible for those violations in accordance with international fair-trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds.

While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards.

When are violations of international humanitarian law considered war crimes?

Individuals who commit serious violations of international humanitarian law with criminal intent - that is, intentionally or recklessly - are responsible for war crimes. War crimes include a wide array of offenses, among them deliberate, indiscriminate, and disproportionate attacks harming civilians, using human shields, and committing torture, enforced disappearances and summary executions Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, or aiding and abetting a war crime.

Responsibility also may fall on persons who plan or instigate the commission of a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.

Have Sri Lanka and the LTTE met their past obligations to hold accountable individuals responsible for serious violations of the laws of war?

All too often, states whose citizens are implicated in serious violations in the laws of war lack the will or capacity to investigate and prosecute these crimes. Human Rights Watch has reported on this failure in a number of contexts, for instance with respect to Ethiopian forces in Somalia, US forces in Iraq and Afghanistan, Israeli forces in Gaza, and Russian forces in Chechnya.

Sri Lanka's long civil war has been characterized by a climate of impunity for perpetrators of serious human rights violations. Very few members of the security forces have been prosecuted, let alone successfully convicted, for often horrendous crimes. In response to domestic and international criticism, the Sri Lankan government has over the years established various special commissions to investigate allegations of abuses. These include, among others, eight separate presidential commissions of inquiry established between 1991 and 1998 specifically devoted to investigating enforced disappearances; a commission of inquiry into the alleged establishment and maintenance of an unlawful detention and torture facility in 1995; a commission of inquiry into the killing of 27 Tamil inmates of the Bindunuwewa Rehabilitation Centre on in October 2000; and in 2001, the Presidential Truth Commission on Ethnic Violence covering events of 1981-1984. The Sri Lankan Human Rights Commission also appointed a special committee to investigate reported enforced disappearances in Jaffna between 1990 and 1998. These Commissions investigated tens of thousands of complaints. The "disappearance" commissions alone received nearly 30,000 complaints (including some duplicates) and recorded evidence in over 20,000 of these cases; another 16,305 cases remain uninvestigated. They identified thousands of alleged perpetrators and recommended legal action, along with reparations to victims and legal reforms to prevent future violations.

Reports of most of these commissions were published, and although some families received monetary compensation, most recommendations made by these commissions were never implemented. There were few prosecutions of those named in the reports, and even fewer convictions. Hundreds of security personnel indicted as result of commission findings were returned to active duty by the Inspector General of Police in 2001.

During the administration of current President Mahinda Rajapaksa there has been a surge in abuses by both government security forces and the LTTE, including laws of war violations such as the murder of 17 aid workers in August 2006. This has created pressure for new investigatory bodies. Set up with much fanfare in November 2006 to examine 16 high-profile cases, the Presidential Commission of Inquiry with international participation has held public hearing in only four cases, and none of the commission's findings have been released to the public. Other special bodies set up in recent years have likewise brought few results and no prosecutions.

Human Rights Watch is unaware of any efforts by the LTTE to investigate and appropriately punish individuals within its ranks who have violated international law. Its long history of serious abuses, including numerous attacks on civilians, strongly indicates that it has not.

What other mechanisms are available when states fail to investigate these violations?

Historically, states that failed to conduct investigations into serious violations of the laws of war compounded the problem of impunity by invoking the principle of sovereignty when any other authority sought to examine the matter. However, significant and important advances over the past two decades in international criminal law have made the prospect of accountability more of a reality, even in the absence of willingness on the part of states to ensure such accountability.

The treaty creating the International Criminal Court (ICC), which was adopted in 1998 and went into effect in 2002, empowers the court to investigate and prosecute individuals alleged to be responsible for war crimes, crimes against humanity, and genocide when states are unwilling or are unable to do so. The ICC can undertake a criminal investigation and prosecution if the suspected perpetrators are citizens of a state that is party to the ICC treaty, if the alleged violations are committed in the territory of a state that is party to the ICC treaty, or if a state that is not a party to the treaty asks the ICC to become involved in violations committed on its territory. Sri Lanka is not a party to the ICC. However, the ICC can assume jurisdiction if the UN Security Council refers a situation to the court, as it did in 2005 when it referred the situation of Darfur to the court even though Sudan had not ratified the ICC treaty. Security Council action, as in all cases, depends on a positive vote by nine of the 15 council members and no negative vote, or veto, by any of the five permanent members.

As discussed below, the UN Security Council, the UN Human Rights Council, and the UN secretary-general could also set up international commissions of inquiry to investigate alleged laws-of-war violations and recommend whether criminal investigation and prosecution of certain persons would be appropriate.

Certain categories of grave crimes in violation of international law, such as war crimes and torture, are also subject to universal jurisdiction, meaning that any state may authorize a tribunal to try offenders. Certain treaties, such as the Geneva Conventions and the Convention Against Torture, require states parties to undertake a criminal investigation and, if warranted, prosecution of suspected offenders who are under that state's jurisdiction, even if temporarily-that is, even if the crime has been committed by a foreign national against another foreign national, in a foreign country. The concept of universal jurisdiction enables states to fulfill this responsibility. It also enables states to try those responsible for other crimes, such as genocide or crimes against humanity.

Can the UN Security Council investigate alleged laws of war violations committed during the conflict in Sri Lanka?

Given the poor record of Sri Lanka with regard to conducting impartial and timely investigations into serious violations of the laws of war by its security forces, Human Rights Watch is calling upon the UN Security Council to establish a commission of inquiry to investigate alleged violations by all sides in connection with the recent fighting in the Vanni. This would be similar to commissions of inquiry that the Security Council has authorized with respect to other conflicts, such as in Darfur or the former Yugoslavia. The Darfur commission led to the above-mentioned referral to the ICC; the Yugoslav one led to the establishment of the International Criminal Tribunal for the former Yugoslavia. Reports prepared by these commissions, made up of international experts, included fact-finding on abuses and recommendations to ensure accountability.  

Under the UN Charter, the Security Council has the greatest stature and authority to establish an investigative mechanism. Given that the Security Council has not previously addressed matters related to accountability in Sri Lanka, it may be necessary to explore other avenues to justice, such as a commission of inquiry established by UN Secretary-General Ban Ki-moon, or an investigation authorized by the UN Human Rights Council, such as the recently created independent international fact-finding mission to Gaza. Any such international inquiry, to be credible, must be able and ready to investigate alleged abuses by all parties to the conflict.

Could another international tribunal investigate and prosecute individuals implicated in serious crimes committed in Sri Lanka?

Other existing international or mixed international/national criminal tribunals - including those established to prosecute crimes committed in Cambodia, Lebanon, the former Yugoslavia, Rwanda, and Sierra Leone - have no jurisdiction over crimes committed in Sri Lanka. Their mandates are limited to certain crimes in particular geographic areas by UN Security Council resolution or by agreement between the United Nations and the country where the crimes were committed. Were the Security Council to undertake prosecutions by a tribunal outside of the ICC, it would have to establish a new ad hoc court.

Could the International Court of Justice play a role?

The International Court of Justice has the authority only to adjudicate disputes between states, and only with the consent of the governments involved. It may also give advisory opinions on legal questions requested by the UN General Assembly or the Security Council, and on activity-related legal questions from authorized UN organs and agencies, such as the World Health Organization. The International Court of Justice has no jurisdiction to investigate or prosecute individuals.

Can persons suspected of serious violations of the laws of war be prosecuted in other countries?

National courts can and should play a role in combating impunity for grave violations of international human rights and humanitarian law. The "grave breaches" provisions of the Geneva Conventions as well as the Convention against Torture mandate the exercise of universal jurisdiction. "Universal jurisdiction" refers to the competence of a national court to try a person suspected of a serious international crime such as war crimes, crimes against humanity, torture, or genocide.

Many countries have laws that would permit them to exercise universal jurisdiction and prosecute such serious crimes. The practice has lagged behind the laws, out of concern about the potential politicization of the authority as well as issues of resources required to conduct such investigations and prosecutions. There has been a steady rise in the number of cases prosecuted under universal jurisdiction laws in the past decade, particularly in Western Europe. The successful prosecution in national courts - including in France, the United Kingdom, the Netherlands, Spain, Belgium, and Norway - of international crimes committed in countries as varied as Mauritania, Afghanistan, the Democratic Republic of Congo, Rwanda, and Bosnia and Herzegovina shows that universal jurisdiction is becoming a reality. Universal jurisdiction also is gradually becoming assimilated into the functioning of criminal law systems in some countries.

Isn't there a double standard when it comes to international justice, with prosecutions only of individuals from states with less political clout?

Many people have criticized the UN Security Council for focusing its international justice efforts on African and Arab parties. Perpetrators of serious crimes in violation of international law should be held to account irrespective of nationality. Nevertheless, the objective landscape of international justice has been uneven. States, often acting through the UN Security Council, have decided when to establish international criminal tribunals and what mandates to provide. Political considerations have been a factor, and the scope of the institutions they have created has not matched the extent of grave crimes committed. Despite this selectivity, these institutions have contributed to establishing accountability at least in respect to the conflicts that fall within their mandate. That is the right thing to do because a victim of a serious violation of the laws of war should not be told she will be denied her day in court simply because another victim's plight was ignored. That said, Human Rights Watch strives to extend accountability efforts for the worst crimes wherever they occur.