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An interesting situation in respect of the much talked about report released on Wednesday on an investigation by the Office of the UN High Commissioner for Human Rights (OHCHR) in to the alleged war crimes committed during the final stages of the Sri Lankan conflict is that both Sinhalese as well as Tamil nationalists seem to be happy over some of the findings and recommendations of it while being critical of some others. 

Rejection by the reports the notion of “genocide” with regard to the Sri Lankan context must have disappointed the Tamil nationalists including those among the Diaspora who have been accusing the Sri Lankan security forces of carrying out genocide against Tamils. 

This also comes in the wake of a recent resolution adopted by the Northern Provincial Council asserting that genocide been taken place in Sri Lanka during the war, which was a milestone in Tamil nationalists’ efforts to create world opinion in favour of their allegation.

The stand taken by UN High Commissioner for Human Rights Prince Zeid Ra’ad Al Hussein after the probe carried out by his office on Sri Lanka that no genocide had taken place in the country during the war is no doubt a remarkable achievement gained by the Sri Lankan government as well as the security forces. 

It would have been an enormous embarrassment for the Sri Lankan government, irrespective of the regime change that took place in January, had the report concluded otherwise. However, the narrow-minded sections of the former regime might have been disappointed over this observation by the UN Human Rights Chief since they had lost a huge issue which they would have made a huge fuss over. On the other hand, the recommendation by the Office of the High Commissioner for Human Rights to create a ‘hybrid court’ including international judges as well as lawyers to further investigate the excesses by both sides of the war would have disappointed the leaders of the government who soon after the new government came to power after the January 8 Presidential Election mooted and promoted the idea of creating a domestic mechanism to look into the accountability issue with regard to the war. 



The recommendation also goes against the wishes of the Tamil political parties and the groups, local as well as international- that have long been agitating for the penalising of Sri Lankan leaders over war-related issues through an international mechanism.

In fact the recommendation for a hybrid court process comes as a result of an international investigation process, the probe initiated by the OHCHR based on the US sponsored third resolution adopted at the UNHRC sessions in March 2014.

The first and the second US sponsored resolutions passed by the world’s human rights body in the previous two years provided for a domestic mechanism as recommended by Sri Lanka’s own Lessons Learnt and Reconciliation Commission (LLRC). Had the Sri Lankan authorities implemented their own Commission’s recommendations in 2011 the country could have averted much of the international pressure.

The domestic mechanism is not something agreed upon only by the new rulers of the United National Front for Good Governance (UNFGG) government. It was the former President Mahinda Rajapaksa who first agreed to such a process in a joint communiqué with the UN Secretary General Ban ki-moon, who visited Sri Lanka within the first week after the end of the war. 

Then it was suggested interestingly by the leaders of the Jathika Hela Urumaya (JHU). JHU General Secretary Patali Champika Ranawaka in one of his columns Doramadalawa in the Sunday Lankadeepa in 2011 stressed the need for an investigation on excesses during the war. 

The General Secretary of the Pivithuru Hela Urumaya, Udaya Gammanpila, who was a front liners then in the JHU now proposes an Indemnity Act in order to protect the security forces personnel in the event of an accountability probe, which is an admission of excesses by the troops. 

Also the argument by National Freedom Front leader Wimal Weerawansa that a domestic mechanism would justify the penalising of the security forces personnel by the international players too points to an admission of culpability. 

In fact what the OHCHR has done is that it has attempted to strike a balance between the thus far stand of the UNHRC as well as the clamour by the Tamil and human rights groups on an international mechanism on the one hand and the new Sri Lankan government’s stance that it would resolve the accountability issue through a domestic mechanism on the other. 

The rationale behind the idea as stated by Prince Hussein is that the Sri Lankan justice system was not up to the task of dealing with such grave violations in the light of the Sri Lankan judiciary being highly corrupt. 

It is not clear as to how the Sri Lankan authorities who stood for the idea of a domestic mechanism would counter this point as even some of the local groups such as the Sri Lankan Chapter of Transparency International claims every year that the Sri Lankan Police, Judiciary and the educational sector top the list of corrupt institutions. In spite of the legal basis and degree of involvement by local and international players within the proposed hybrid court process being yet to be explained, one could surmise that if the parties agreed upon it, the international players might get the upper hand in the process, given the bargaining powers of Sri Lanka and the backers of the hybrid process. 

Also the Sri Lankan authorities would face a tough challenge locally in agreeing or going ahead with the process as the whole accountability issue has been extremely politicized in the North as well as the South. Many southern groups and persons including former President Mahinda Rajapaksa who accused the security forces of carrying out large-scale extra judicial killings during the two insurrections by the Janatha Vimukthi Peramuna (JVP) are surprisingly of the view that the same forces had adopted a “zero casualty policy” in the northern and the eastern battle fields, while the Tamil groups seem to be totally blind to one of the largest human shields in history created by the LTTE during the last stages of the war. 

This indicates the degree of politicisation of a human tragedy that affected both sides of the ethnic divide as well as others for over three decades.

The allegation by the southern nationalists, that the Western powers adopt a double standards in the issue of human rights and follow a high-handed policy towards the smaller nations is not unfounded. 

But that is the reality and that is why 

Sri Lanka had to appoint many commissions and President Rajapaksa also had to sign the aforesaid communiqué. 

The country cannot totally reject this reality, though unfair. But the leaders have to be prudent enough to deal with them in order to minimize harm.