Featured image courtesy Global Risk Insights
Major General Shavendra Silva faces credible allegations of violating international humanitarian law and human rights. During the last stages of the war in 2009, he was the Commanding Officer of the 58th Division which is accused of direct attack on civilian targets including hospitals and food distribution queues, of being responsible for the disappearance of several persons associated with the LTTE who surrendered in the last days of the conflict, and the summary execution of senior LTTE personnel along with their family during the ‘white flag incident’. On an international platform, these allegations were most recently documented by the Report of the Office of the High Commissioner of Human Rights (OHCHR) Investigation on Sri Lanka in 2015, based on independent investigation and extensive witness testimony.
Despite all this, on 9 January 2019, Major General Silva was promoted by President Sirisena to the second highest position in the military – Chief of Defence Staff. This has drawn intense criticism from civil society and victim groups. However, it is not surprising.
For years, Sri Lankan State institutions have allowed and contributed to a culture of impunity. Individuals who should be investigated for allegations of corruption and serious crime, are often promoted and given increased access to power and resources. Major General Silva’s most recent promotion is only the latest in a series of such troubling promotions. In his own career, in 2017 he was appointed Adjutant General of the Sri Lankan army. In this role, oversight of the army’s compliance with human rights and international humanitarian law was placed within his purview. Prior to this, under the former regime, he was one of Sri Lanka’s representatives at the UN.
This alarming pattern of rewarding alleged criminals within the military also takes place on a lower stratum, tied to internal corruption. There are recent allegations that senior navy officers implicated in the ‘Navy 11’ cases were given promotions, on the recommendation of Chief of Defense Staff Admiral Ravindra Wijeguneratne, who is himself also implicated in this case. These were reportedly questioned by the CID, but there seems to be no further progress.
It is widely accepted by legal and political academics and practitioners, that accountability is necessary for deterrence and rule of law, non-recurrence, victim empowerment and reconciliation. It follows from this, that accountability significantly contributes to political and economic stability, strong international relations with liberal states and functioning democracy.
Despite this, Sri Lanka is yet to credibly investigate and prosecute allegations of mass atrocity crimes committed by both sides of the conflict during the war. Much of this is because of the general political opposition to accountability, and more specifically, to a special court with the involvement of international judges and trials under international law, as required by HRC Resolution 30/1. Although it will take time and continued advocacy, this must remain a priority demand in Sri Lanka’s transitional justice process.
In the meantime, however, vetting, which is another crucial accountability process, has been de-prioritised in transitional justice advocacy. Vetting is the removal of defence personnel or civil servants who are found to have violated human rights or be lacking in integrity or capacity.
There are several reasons for why vetting is important in Sri Lanka, especially in light of the ongoing transitional justice process. Firstly, it contributes a punitive element. Although vetted individuals are not sent to prison or required to pay compensation, as is often the case following prosecutions, they lose their positions in State institutions. Along with that, they lose their income, social standing and power. Secondly, vetting offenders reinforces the rule of law. In a context of long-standing impunity, vetting marks a change in institutional standards and outlook, warning future offenders that they will be held accountable for their actions in accordance with existing legislation and guidelines. Thirdly, vetting can contribute much to non-recurrence. When former offenders are no longer present in State institutions, and when those institutions signal an end to impunity and a commitment to compliance with domestic and international law, the chances of renewed human rights violations and corruption significantly drop. Fourthly, vetting can significantly contribute to reconciliation and renewed trust in the State. In contexts where victim groups are wary and resentful of the State, the removal of alleged perpetrators from their positions signals an acknowledgement of past wrongs, and State institutions’ commitment to reform and non-recurrence.
Vetting is also vital to Sri Lanka’s Transitional Justice (TJ) process. For TJ to be successful, various State institutions – including security sector institutions – must be supportive of the process and refrain from interfering with or obstructing the implementation of TJ measures and policies. For example, with respect to truth-seeking and criminal investigations, crucial information can only be obtained from the military. Failure to devise and implement vetting measures will not only result in such information being withheld, but also in the persistence of threats and intimidation to victims and witnesses, preventing them from participating in the TJ process. This pattern of threats and refusals to cooperate with investigations by the military is already evident in ongoing high-profile cases including Prageeth Ekneligoda and the Navy 11, highlighting the immediate need for a vetting process. If alleged perpetrators of human rights violation and crimes are given access to victims and witnesses of their crimes under the pretext of ‘protection,’ it will be the greatest mockery of victim trust and the transitional justice process as a whole.
One of the greatest accusations regarding the accountability processes in Sri Lanka is that they are ‘political witch hunts’ on the basis of personal, party or political affiliations. The Sri Lankan government, and institutions setting up a vetting process, must ensure that there is no factual basis for such accusations. On the contrary, the UN’s ‘Vetting: An operational framework’, specifies that vetting must be carried out by an independent commission – especially with respect to security institutions. They recommend a structured process, clear criteria, and objective assessment on the basis of such criteria. In accordance with the rules of due process, individuals who are to be vetted out of an institution are to have reasonable notice of the case, the right to contest the case, and to appeal an adverse decision to a higher tribunal or court.
Vetting does not only contribute to transitional justice, but enables a broader return to rule of law and functioning democracy. As such, the call for vetting cannot solely come from private institutions, but must instead be a prioritised call from the public. During the political coup in 2018, we saw unprecedented public engagement on issues of accountability and rule of law. Significantly, this included the immense outcry from the public and civil society following the transfer order issued to OIC Nishantha Silva which was soon cancelled. This was a rare instance where public lobby seemed to play a defining part in changing an Executive order, and the internal behaviour of a Sri Lankan State institution. This lesson on the effectiveness of public participation and democracy must not be lost on us when advocating for a vetting process.
Corruption and human rights violations carried out by some individuals in State institutions and the security sector cast a damning shadow on Sri Lankan State infrastructure as a whole – domestically and internationally. With regards to transitional justice, as long as alleged perpetrators of mass atrocity crimes remain in their positions, or worse, are celebrated and promoted despite their crimes, no mechanism will be able to act independently and legitimately. They will be unable to provide a space for victims and witnesses to openly testify and participate. A credible vetting process must become and remain a priority demand of diplomats, reformist policy makers, civil society, media, victim groups and the general public. Else, its absence will be a serious barrier to genuine reconciliation, rule of law or institutional reform.
Editor’s Note: Also read ‘Of Patriots and Traitors’ and ‘Sorting Bad Apples: Is Lustration the Answer to Sri Lanka’s Military Impunity?‘