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Prosecutorial Vs. Victim-based approaches to accountability

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UNHRC

by Neville Ladduwahetty

A report in The Island (May 20, 2024) states that the UN human rights office has “criticised the Sri Lankan government’s failure to acknowledge and hold accountable the perpetrators of tens of thousands of enforced disappearances … Authors of the report also accuse the Liberation Tigers of Tamil Eelam of “engaging in abductions” which were described as “tantamount” to enforced disappearances” (May 20, 2024). Continuing, the report adds that the UN. The High Commissioner for Human Rights had stated: “Accountability must be addressed. We need to see institutional reform for reconciliation to succeed”.

In the meantime, the Secretary General of Amnesty International (AI) had “called for Sri Lanka to be referred to the UN Security Council and subjected to international war crimes inquiry when she participated to pay tribute to those who perished at Mullivaikkal. While the call for Sri Lanka to be referred to the Security Council may have pleased those who came to pay tribute, the reality is that such a referral would inevitably be vetoed. However, the fact remains that AI along with the UN Human Rights is advocating a prosecutorial approach to Accountability.

For instance, the Nuremberg Trial was strictly prosecutorial. In contrast, the Marshall Aid Plan was Victim based. While the objective of the former was to seek justice for the victims by prosecuting the perpetrators of the crimes, it was the latter that enabled Germany to recover and join the community of nations as a powerful and respected member.

The question that divides scholars and others who pursue accountability is; which approach to adopt. Should it be prosecutorial or victim based? While some, such as the UN report cited above advocate a prosecutorial approach for the sake of justice, others such as the High Commissioner are non-committal as to which approach to adopt. Yet, others want some aspects of both approaches. Therefore, the first question to be addressed is which approach to adopt, taking into account the particularities of the Sri Lankan society and the background that led to the armed conflict.

ESTABLISHING the CONTEXT

At a fundamental level, the raison d’etre for the armed conflict was the deep sense of grievance felt by the Tamil community; a circumstance they believed could only be overcome by resorting to an armed conflict to establish a separate state for themselves. For those representing the State of Sri Lanka, their bounden duty was to protect and preserve the territorial integrity of their cherished unitary state in keeping with Article 3 of Protocol II that state: “Nothing in the Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government by all legitimate means to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”. The only means by which these vastly contending positions could be resolved was through an armed conflict; a fact recognized by the UN Human Rights Commission in paragraph 182 and 183 of their OISL report of 2015.

Pargraph 182 states: “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict bound to respect the guarantees pertaining to the treatment of civilians ….”

Paragraph 183 states: “In addition, the government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable in non-international armed conflict”.

Therefore, if both the Sri Lankan State and the LTTE “are bound alike” by the relevant rules of customary international law applicable in non-international armed conflict”, why is all the attention to address accountability ONLY fixated on the Sri Lankan State and none on the LTTE. Since most of those who perished in Mullivaikkal were victims of the policy adopted by the LTTE to take civilians hostage, and continue to endanger the security of hundreds of thousands taken hostage by continuing to engage in hostilities, should NOT the LTTE also be held accountable? This being the case, would the evidence gathering that is currently being undertaken by the UNHRC in order to exercise Universal Jurisdiction, also apply to policies such as hostage taking and shooting escapees?

PROSECUTORIAL APPROACH

Judging from the attention given ONLY to the government of Sri Lanka by the UNHRC and by entities such as AI, the outcome of any judicial processes would be skewed, which means NO justice, despite the fact that the Sri Lankan Government and the LTTE “are bound alike” by relevant rules of customary international law as in common Article 3 and Protocol II; a fact confirmed below.

INTERNATIONAL COURT OF JUSTICE, Judgment of 27 June 1986,
(NICARAGUA v. UNITED STATES OF AMERICA), MERITS
Judgment – para. 215 to 292

“The conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is “not of an international character”. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked for in the provisions of Article 3 of each of the four Conventions of August 12, 1949, the text of which, identical in each Convention, expressly refers to conflict not having an international character” (ICJ Judgment, Nicaragua v. U.S para 215 – 292)

“In the Military and Paramilitary Activities in and against Nicaragua, the International Court of Justice observed that the acts of the Contras, fighting against the Nicaraguan Government, were governed by the law applicable to armed conflict not of an international character i.e. Common Article 3. Similarly, in the Tublada case, the Inter-American Commission considered”: Common Article 3’s mandatory provisions expressly bind and apply equally to both parties in internal conflicts, i.e. government and dissident forces. Moreover, the obligation to apply Common Article 3 is absolute for both parties and independent of the obligation of the other. Therefore, both the MTP attackers [the armed opposition group fighting in the conflict under consideration] and the Argentina armed forces had the same duties under humanitarian law” (Zegveld, Accountability of Armed Opposition Groups in International Law, p.21, ICJ Judgment Nicaragua v. US para 119 and Case No. 11/137).

Judging from the ICJ opinions cited above, it is certain that not only violations by the Sri Lanka Government but also violations perpetrated by the LTTE should be reviewed in the course of a Judicial Trial, since they are “bound alike”. Therefore, although violations by the Government forces and LTTE would be judged by Common Article 3, the fact remains that the leadership of the LTTE who ordered the taking of 300,000 plus civilians, hostage is not among the living or has disappeared, and cannot be subjected to a trial despite the fact that the act of taking civilians hostage amount to a war crime and a crime against humanity. Thus, the exercise of gathering evidence against Government perpetrators pales in significance compared with endangering the security of 300,000 plus civilians that were taken hostage. Despite this, a prosecutorial process would mean a skewed outcome of any trial because of the strong possibility that violations perpetrated by the Sri Lankan Government would dominate the trial.

Thus, while a few of those associated with the LTTE would have to face prosecution, the majority cannot be located or identified since they have acquired new identities and are domiciled in foreign countries. Also, others who were in positions to exercise command responsibility, but are no longer among the living cannot be prosecuted for the crimes committed, e.g. taking 300,000 civilians hostage and killing those who attempted to escape.

Under circumstances where it would be next to impossible to identify and prosecute former members of the LTTE because they are dispersed primarily in the West with fresh identities, a prosecutorial approach would lead to an asymmetric outcome resulting in the polarization of the two communities to a degree that could give cause for instability and even resumption of hostilities since the numbers associated with successive Governments who could be identified and prosecuted would significantly be more.

Furthermore, while it would be possible to identify those associated with the Government responsible for command, it is NOT possible to identify the leaders of the LTTE who were responsible because they are no longer among the living.

The net effect of such an asymmetric outcome following a prosecutorial process would permanently damage the efforts advocated and undertaken to bring about reconciliation.by successive Governments. For the UNHRC to include the provision in several of its Resolutions that “a credible justice process should include independent judicial and prosecutorial institutions….”, is because their perception is based on the premise that prosecuting the guilty would foster reconciliation.

While such a premise may be applicable to normal law and order situations, it is NOT applicable to Sri Lanka’s armed conflict that spanned three decades involving two communities if the prosecutorial process causes disproportionate outcomes as referred to above. Furthermore, if the outcome is such that more from the Sinhala majority community is prosecuted than from the minority Tamil community for whatever reason, the consequences would be to seriously setback the reconciliation processes; an outcome that defeats what the UNHRC hopes to achieve.

VICTIM BASED APPROACH

The real possibility of such serious outcomes, requires that the scope of the investigation is limited to such a degree that legal prosecution is not possible in the context of Sri Lanka. However, the scope of the investigation could be such that it is possible to establish the body of evidence associated with a particular incident There is strong evidence that the security forces targeted temporary hospitals despite being aware of their location. However, there is also counter evidence that the LTTE directed artillery fire from such locations and moved their ordinance soon after, thus tempting the security forces to target these make-shift hospitals. The investigation would then be limited to what each party to the conflict did in a given situation and not go beyond as to who was culpable to warrant prosecution under the relevant laws. Investigations would thus be a record of actions taken by respective parties to the conflict without delving further to establish which party was responsible for which violation of which laws, Human Rights or Humanitarian.

While this concept takes root, the leadership of both communities should jointly develop mechanisms to address the needs of victims and take joint responsibility for their implementation, instead of depending solely on the elected Government for Reconciliation to be effective and unity restored.

 CONCLUSION

 In light of the hard reality associated with prosecutorial processes cited above, and the ruling by the International Court of Justice in the case. Nicaragua v. U.S the “acts of the Contras fighting against the Nicaraguan Government were governed by the law applicable to armed conflict not of an international character i.e. Common Article 3…”. Therefore, the approach should be to limit investigations, not with the intent of prosecution because it would be skewed for reasons cited above. but with the intent of recording the events that occurred during the armed conflict, and which party to the armed conflict could be identified with the respective violations with a view to use this body of evidence to institute reforms to prevent recurrence.

It is indeed a matter of serious concern that successive Sri Lankan Governments have failed to acknowledge that the Sri Lankan Security Forces and the LTTE are bound alike by the laws applicable to the armed conflict in Sri Lanka. This has seriously dented addressing issues of accountability in a balanced manner.

At the end of such investigations the present leadership of the parties to the conflict should acknowledge the serious omissions and commissions committed by both parties and move on by declaring the broadest possible amnesty to all who were associated with the conflict as stated in Section 5 of Article 6 of the Additional protocol II of 1977.

Article 6 Section 5 States: “At the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”.

Since such amnesties and pardons have been instituted starting with the release of child soldiers and nearly 11,000 plus former LTTE combatants and more recently the release of prisoners, the practice has been in operation from time to time. This process would have gained momentum if not for the clamour for prosecutorial processes locally and resolutions of UNHRC that are tantamount to External intervention. The need therefore, is to regularize this practice and bring closure to an issue whose time has come.



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Addressing human rights needs multi-pronged approach

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Volker Türk

by Jehan Perera

The ongoing 63rd session of the United Nations Human Rights Council, which runs from September 7 to October 7, 2026, in Geneva is important to Sri Lanka. Its outcome will send a signal to other international actors, including the European Union, as to whether Sri Lanka’s reform policy is on track. The written update on Sri Lanka, prepared by the Office of the United Nations High Commissioner for Human Rights under High Commissioner Volker Türk and presented by Deputy High Commissioner Nada Al-Nashif, has taken a more holistic approach to the government’s performance over the past year. It acknowledged the progress Sri Lanka has made under the NPP government in relation to accountability for financial fraud and other economic crimes. At the same time, the High Commissioner’s update made clear that progress in relation to economic crime cannot be equated with progress in relation to accountability for grave human rights violations committed during the armed conflict and in other periods of political violence.

The government may have felt sufficiently confident that its response to the High Commissioner’s update could be handled by its representative in Geneva and did not require the attendance of Foreign Minister Vijitha Herath. Sri Lanka’s representative Sumith Dassanayake called for a fundamental review of country-specific mandates within the UN Human Rights Council. Sri Lanka has been facing repeated scrutiny in the form of successive UNHRC resolutions from 2012 onwards. Ambassador Dassanayake argued that such mandates should not continue indefinitely and must be regularly assessed against measurable objectives and tangible outcomes. This may reflect confidence that its record of reform is beginning to receive recognition internationally. The reports and statements at the Human Rights Council acknowledged progress in the government’s efforts to address corruption and economic crime.

The government’s anti-corruption drive has included investigations into allegations involving individuals who held the highest political offices in the country. The arrest of former President Ranil Wickremesinghe in connection with alleged misuse of public funds, and the investigation into the controversial SriLankan Airlines Airbus transaction involving former President Mahinda Rajapaksa’s son, are examples of the reach of these investigations. The arrest of SLPP National Organiser and Member of Parliament Namal Rajapaksa in connection with allegations relating to the Airbus purchase scandal has also demonstrated that the government is willing to pursue cases involving politically powerful figures.

Wide Range

The ongoing investigations appear to encompass a wide range of parliamentarians and government members, both past and present. They suggest that accountability for corruption is not being confined to lower-level officials or to individuals who lack political influence. This is precisely the kind of accountability that the public has long demanded and that previous governments have too often failed to deliver. The government is also reaching into the upper levels of the military hierarchies of the past. The case in which 11 young men, most of them Tamil, disappeared after being abducted in Colombo between 2008 and 2009 involved allegations that some families were asked to pay ransoms. The investigation into this case has reached senior military figures. The willingness to pursue such cases is important because it challenges the assumption that those who exercised power during the war are beyond the reach of the law. Such cases would provide a practical test of whether the government’s commitment to accountability for economic crimes is part of a broader commitment to the rule of law.

Success in prosecuting corruption cannot substitute for justice for those who were unlawfully killed, disappeared, tortured or otherwise victimised. The UN report noted that there had been no recognition or accountability for crimes under international law, gross human rights violations and serious violations of international humanitarian law committed by all parties during the war. The government has yet to establish a credible and effective process to address the many cases of enforced disappearance, extrajudicial killing, torture and other serious violations. The government needs to take the international commitments it has inherited on human rights issues seriously. It needs to adopt a multi-pronged approach and go beyond focusing primarily on financial and corruption-related accountability.

Need Action

As a member of the international community, Sri Lanka has a responsibility to abide by the commitments it has made. It cannot selectively uphold international obligations postponing those that are politically difficult. Also, as a small country, Sri Lanka has a self-interest in ensuring the survival of international law, which is all that it has to protect it from the depredations of the bigger international actors. The erosion of international law by powerful states makes it all the more important that smaller states uphold the principles on which the international system is based. Sri Lanka cannot credibly appeal to international law when it is threatened from outside while disregarding its own obligations within. Sri Lanka also needs to win the confidence of its own population that it is committed to justice and equality for all. Public opinion polls and community-level research have disclosed that ethnic and religious minorities are appreciative of the sense of greater security they enjoy under the present government from ethnic or religious extremists.

But a sense of security is not the same as the fulfilment of rights. As far as the Tamil people are concerned, the government has yet to deliver on several of its specific promises. These include the long-standing problems of missing persons, the release of political prisoners who have been members of Tamil militant organisations, and the return of land taken over for military purposes during the war. The issue of Buddhist statues and archaeological sites found on their properties which are then taken from their control continue to trouble them especially as they see no signs of resolution of those disputes. The issue of pastureland in the east of the country in Mylathamadu is particularly concerning to them as they see orders by successive presidents, both President Ranil Wickremesinghe and President Anura Kumara Dissanayake, being disregarded on the ground. The Mylathamadu pastureland dispute is where traditional Tamil dairy farmers have engaged in multi-year protests against the ongoing encroachment of their ancestral grazing lands by Sinhalese crop cultivators relocated under government development schemes.

The government’s failure to hold Provincial Council elections is particularly troubling. The provincial council system is the only one that can provide the Tamil people and other ethnic minorities the opportunity to wield political power and exercise a measure of self-determination in the areas in which they are the numerical majority. The continued postponement of Provincial Council elections therefore has consequences that go beyond an ordinary electoral delay. It deprives communities of an important constitutional avenue for democratic participation and power-sharing. The ethnic and religious minorities appreciate what the government is doing in the larger national interest, but they must not be made to feel that their special concerns are being ignored. The government cannot resolve Sri Lanka’s entire legacy of rights violations overnight. But it does need to demonstrate that it is willing to move forward on multiple fronts, not only on a few.

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The emptying university: why are academics leaving?

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by Hasini Lecamwasam

Brain drain in Sri Lanka is at an all-time high. The latest Human Flight and Brain Drain Index for 2024 shows that we are 16th of 175 countries on this count, and first in South Asia. That this is a crisis goes without saying. Brain drain affects all sectors, and is a huge strain on the resources of a developing country. Particularly in Sri Lanka, where considerable public investment is made in the moulding of professionals through the system of free education, this amounts to transferring the resources of poorer countries to richer ones with top migration destinations. It is, therefore, important to consider the push and pull factors behind skilled outmigration, specifically from the public university system of Sri Lanka, a key focus of the Kuppi column.

From frustration to exit

Several bitter realities in our crumbling public university system act as push factors in the migration decisions of academics. Many essays on this column have, over several years, attempted to highlight numerous aspects of this erosion. Perhaps, primary among them is the lack of adequate funding, which has debilitating ramifications for the system: very little investment is made in the up-keep of infrastructure (and even less in its expansion), resulting in serious constraints in accommodating growing batches of students and the wellbeing of the staff (particularly in regional universities); research funding is negligible, severely curtailing academics’ ability to effectively discharge their primary duty of teaching which should ideally be informed by their research (and the research of others, access to which is also, unfortunately, mediated by funding); a funding crunch also means a slash in (or greater constraints on) recruitments, increasing the workloads of academics, currently in service, and eating into the quality of their teaching and research.

What recruitments are done frustrate those with any faith in merit. As many of our interventions in this column have shown, recruitment processes are characterised by archaic selection criteria that place very little weight on a candidate’s postgraduate growth and the advantages of interdisciplinary training. Added to this is the general preference for ‘culturally compliant’ candidates who would not rock the boat too much. The combined effect is that those with the capacity and spirit to try out innovations in education are discouraged from joining or staying on in the public university system. Some, or many, of them may instead seek appointments abroad.

A thread that binds all of these problems together is pervasive hierarchy which, again, many interventions on this column have sought to highlight. It is the interest in preserving hierarchy that leads to the preference for alumni in recruitment processes. Hierarchy within universities can be particularly frustrating for younger faculty and women, who typically have to bear the brunt of the workload of their senior, often male, colleagues. In a context of funding, and, therefore, recruitment, restrictions, this translates into a disproportionate burden being placed on junior (usually female) faculty, seriously hindering their prospects of growing into successful academics due to the time constraints within which they have to operate. Junior academics, therefore, are more likely to look to educational institutions abroad for what they hope would be a different work culture that respects them more.

Ideological ruses

On top of these structural frustrations are also the workings of neoliberal ideology. For one, the nature of relations between the global metropole and peripheral countries like Sri Lanka largely dictates what is desirable and what is not. The apparent lifestyles of Western countries – from food to clothing, housing, appliances, and so on – have continued to lure people from the periphery with the promise of a ‘better’ life, alongside better career advancement opportunities. This, of course, masks much of the struggle that goes on behind the scenes to survive in Western societies. For instance, in most cases highly attractive public infrastructure such as roads, public transport, clean air, quality control of food, and so on belie the astronomical privatised costs of healthcare and education. Health insurance is usually mandatory and steep in most high-income settings, while even subsidised education (for which eligibility criteria are strict) creates a serious dent in household earnings. Of course, the happy images of glossy trams and gleeful international travellers don’t convey this.

A second ideological ruse is the myth of greater opportunities and recognition abroad. While there is no denying that local skilled sectors – be it higher education, health, civil service, or private white-collar positions – are replete with issues that inhibit merit-based professional advancement, the notion that things are fundamentally different in Western countries stems from an uninformed optimism. As is now increasingly known and discussed, Western labour markets are notoriously racialised, and equivalent skills are rarely treated as such. Instead, it is usually demanded that skilled migrants clear certain formal examinations in their host countries. In fields like medicine, this is followed by an interview that may also be racially prejudiced. Once these initial steps are cleared, remuneration reverts to square one irrespective of experience accumulated abroad, not to mention the many subtle aggressions, rejections, and trials one has to go through in the negotiation of everyday life. In the many cases where professional qualifications are used as leverage for a move abroad, sights are set on a better future for one’s children, which again is informed by the misplaced faith in greater opportunities and a lack of awareness of the factors outlined above. Needless to say, in the global swing to the Right, things have become even more challenging. In such a context, considering the few rare cases where skilled migrants live extremely comfortable lives as the norm becomes a dangerous misconception.

The two ideological pull factors mentioned above are complemented by a push factor, which has to do with a highly classed understanding of what a white-collar professional is due in their society. Many of these aspirations are clearly articulated in academic trade union action demanding separate quotas for school entry, increased fuel allowances, winning back the presently stalled vehicle permit scheme, salary hikes, and so on. While working people have every right to agitate for better material conditions, insofar as it remains unconnected to a broader movement for improving the conditions of the lot of the working class, it remains self-serving and very much within the class logic of capitalist society. Since these demands are articulated as a means of maintaining distinction, it is clear that they are not envisaged as part of a class movement. The frustration of not having these needs for distinction satisfied may push some to seek greener pastures abroad, at least financially, (perhaps as a means of social mobility based on it), only to be disappointed on most occasions.

What is to be done?

Addressing the systemic push factors listed above requires, first and foremost, greater allocations for free public higher education. This would immediately translate into more recruitments and less work per academic, and better research and teaching in the long haul. An increase in funding would also ideally lead to greater infrastructural investments, especially including improving the living conditions of those who work in regional universities amid untold hardships. Next, fairer, more creative, and, therefore, more effective recruitment policies are badly needed to attract talented individuals to university positions. Rather than carving out a ‘special category’ for academics to achieve this purpose, which is informed by a classed logic, this needs to be done through fundamental reforms in recruitment processes. Third, a persistent attack on the entrenched hierarchy within universities through internal reform is much called for. Reforming recruitment practices will go a long way towards addressing this. Measures should also be taken to introduce more stringent policies against SGBV (not to mention ragging, even though it is not directly connected to brain drain). Such measures would create a safer, fairer, and more attractive workplace, which would give more reasons for people to stay.

On top of greater allocations, we also need a transformation of our aspirations themselves if this situation is to change. That necessitates a kind of education capable of questioning the ‘paradise’ conception of Western societies, and lays bare their colonial material and ideological dimensions, in both their historical and contemporary manifestations. These colonial understandings of the ‘good life’, moreover, have devastating ecological implications for the planet, not to mention social justice. An education with the ability to transform this mindset would hopefully prove to be more than a mere path to social mobility, rather being a tool of social emancipation that renders mobility moot.

(Hasini Lecamwasam is with the Department of Political Science, University of Peradeniya)

Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.

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Friends favourite Suzi Croner returns for Oktoberfest 2026

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Charming audiences in Switzerland as Suzi Flückiger, Sri Lanka’s own Suzi Croner is coming home… for a very special occasion.

The bubbly former frontline vocalist of 90s band Friends will take the stage at a popular venue in Colombo for Oktoberfest 2026.

Known in Europe for her country and classic hits, Suzi has remained a much-loved name back home. This will be a rare chance for local fans to see her live and celebrate the voice behind so many Friends memories.

Oktoberfest 2026 in Colombo promises an evening of live music, traditional Bavarian food and beer, colourful dirndls and lederhosen, folk dancing, and plenty of community cheer.

Suzi Croner (Flückiger)

Against this lively backdrop, Suzi will take the stage for a special solo set, featuring her own pre-recorded music. She performed at the event last year too, as a solo artiste, but a German band providing the music.

This year, however she says, it’s a different scene.

“The novel attraction will be the dancers from Germany — all girls, clad in German outfits,” Suzi said. She added that the event will also highlight the activities generally connected with Oktoberfest, which should generate a lot of fun and excitement for those who join her in Colombo next month.

Suzi has become a much-in-demand artiste in Europe, and has even performed Down Under, in Melbourne.

In Switzerland, where she has been based for the past 42 years, she continues to charm audiences with country and classic hits, performing at private events and community nights across Europe.

“My weekends are generally loaded with my work as a singer,” she said. “And I also play tennis three times a week, because I need to keep fit to entertain my audience in an active way.”

Her repertoire is made up mainly of Swiss, German and English songs.

And true to form, Suzi loves springing surprises.

“So watch out when you join me at Oktoberfest 2026, in Colombo!” she said.

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