by Neville Ladduwahetty, Courtesy The Island

At the 60th Session of the UNHRC held in September 2025, Foreign Minister of Sri Lanka Vijitha Herath stated: We sincerely believe that external action will only serve to create divisions, thereby jeopardising the genuine and tangible national processes that have already been set in motion”. In keeping with that concept The Government is committed to advance accountability through credible domestic processes by establishing an independent public prosecutor’s office”.

In fact, establishing such an office may involve amendments to existing Constitutional and Legal provisions depending on what specific acts have been violated by individuals or by groups. For instance, the statement by the Foreign Minister states: We are also committed to ensuring that any person alleged to have committed any unlawful act is investigated, prosecuted and brought before courts through an independent national process, irrespective of their social status, background or any other ground”. This commitment is too vague in scope. On the other hand, if accountability is limited to unlawful acts” associated with Sri Lanka’s Armed Conflict, the scope of amendments needed would be more specific. The material presented below is limited to unlawful acts” relating to the Armed Conflict.

UNLAWFUL ACTS relating to ARMED CONFLICT

With the Security Forces representing the Government of Sri Lanka and the LTTE representing the Tamil Community were engaged in an Armed Conflict as citizens of Sri Lanka, each party to the Conflict should be held accountable by the same laws.

The only International Laws ratified by Sri Lanka are the 4 Geneva Conventions. Although these 4 Conventions were ratified in October 1959, they were incorporated into Domestic Law ONLY in 2006 by Act No. 4 of 2006. However, the provisions of this Act have NOT been in operation, since no Minister has signed it as required by the Act, that states: 1. (1) This Act may be cited as the Geneva Conventions Act, No. 4 of 2006 and shall come into operation on such date as the Minister may by Order published in the Gazette appoint (hereinafter referred to as the appointed date”).

(2) Different dates may be appointed for the different Parts of the Act to come into operation”. Therefore, provisions of Act No. 4 of 2006 are not applicable to address accountability related issues.

The only other International Law incorporated into Domestic Law is Act No. 56 of 2007 relating to provisions in the International Covenant on Civil and Political Rights. Article 3 (1) states: No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. This provision by itself justifies the LTTE to be held accountable for waging war against the State of Sri Lanka.

Furthermore, Sri Lanka has not ratified any other International Law including Protocols I and II Additional to the 4 Geneva Conventions. Therefore, no Domestic Law relating to Protocol II Additional to the 4 Geneva Convention exists.

Consequently, the scope of any accountability exercise should be limited to the provisions of Sri Lanka’s Penal Code and other laws such as the Army, Navy and Air Force Acts. Since the Armed Conflict initiated by the LTTE was an OFFENCE AGAINST THE STATE according to CHAPTER VI of the Penal Code to create the State of Tamil Eelam, accountability for unlawful acts” committed by the LTTE or the Security Forces have to be on the basis of the Penal Code.

Therefore, it is imperative that the independent public prosecutor’s Office the Government is committed to set up is guided by the Legal provisions of Sri Lanka’s Penal Code when it undertakes the accountability exercise.

The Penal Code has no provision for War Crimes, Crimes against Humanity or Command Responsibility. However, although such provisions exist in Internationally recognized instruments, they are not relevant to accountability issues relating to parties to Sri Lanka’s Armed Conflict since International Laws do not automatically become Domestic Laws because Sri Lanka’s Dual Legal System requires such laws to be expressly incorporated into Domestic Law through Legislation for one to be enforceable in local Courts as in the case of Act No. 4 of 2006 and Act No. 56 of 20007.

CHALLENGES to the ACCOUNTABILITY EXERCISE

The Government expressed its commitment to ensuring that any person alleged to have committed any unlawful act is investigated, prosecuted and brought before courts through an independent national process, irrespective of their social status, background or any other ground”. Despite such commitments, the stark reality is that individual commanders or former leaders of the LTTE who strategized, planned and implemented operations to carry out war against the State of Sri Lanka cannot be brought before a court of law because, either they claim not to exist or cannot be located.

This however, is not the case with the circumstances of the Security Forces that were associated with the conflict. A significant number of them along with their high ranking military officers and political leaders survived. Some of them have already been sanctioned on account of alleged war crimes based on alleged existing evidence, despite such provisions not being part of the Penal Code. Even if prosecuted by a Court of Law for violations committed under the Penal Code, their numbers would be considerably more, by virtue of the simple fact that they exist and furthermore can be located and produced before a Court of Law. Such an outcome would be inevitable if the government proceeds with its plan to investigate and prosecute perpetrators of crimes in the name of Justice for the victims of such crimes. This would be the outcome of the Retributive Process the Government is committed to pursue – a process that would seriously polarize the communities thus, jeopardizing the genuine and tangible national processes that have already been set in motion” by the Government as the justification for a Domestic Process to address accountability.

Retribution in the name of justice ignores the fact that it is directed at none other than those who gave their full measure of devotion to protect the State and make the country whole, thereby ensuring security to millions who endured insecurity of such a degree that families would not travel together and parents would anxiously await the return of children from school because of possible terror attacks. Therefore, whether it is an external or domestic mechanism, any form of accountability exercise would be a blowback to reconciliation.

CONCLUSION

Two conclusions could be reached from the material presented above. The first is that the Legal Framework for an accountability exercise in Sri Lanka should be Sri Lanka’s Penal Code. The second is that International Laws or other Instruments relating to Armed Conflicts, whether ratified or not, are NOT applicable to Sri Lanka’s accountability exercise if such Laws have not been incorporated into Domestic Law. The reason being, Sri Lanka’s Dual Legal System prevents such recognition.

The statement by the Foreign Minister at the 60th Session of the UNHRC states: As President Dissanayaka has reiterated, we are firmly and genuinely committed to working towards a country that respects and celebrates the diversity of its people with no division or discrimination, and we are resolved not to leave room for a resurgence of racism or extremism”.

Continuing, the statement states: We are also committed to ensuring that any person alleged to have committed any unlawful act is investigated, prosecuted and brought before courts through an independent national process, irrespective of their social status, background or any other ground”. If such a commitment applies to those who participated in Sri Lanka’s Armed Conflict, the consequences of accountability would contradict the intentions stated by the President cited above, namely, to creating a nation that respects and celebrates diversity of its people etc. etc. because LTTE leadership and the High Command cannot be brought before a Court of Law since they do not exist and/or be located, while the possibility exists for members of the Security Forces to be investigated and prosecuted simply because they exist and can be located to be produced before a Court of Law. Since this disparity is seriously discriminatory, the accountability exercise proposed by the Government would create the environment to polarise communities further – a prospect that contradicts the President’s stated intentions of a people with no division or discrimination”,

Therefore, the government should revisit its stand on what constitutes Justice. Is it to be Retributive or Restorative? If it is to Investigate and Prosecute with an Independent Public Prosecutor, it is NOT Justice for the reasons cited above. On the other hand, Restorative Justice is not new to Sri Lanka, considering that out of more than eleven thousand LTTE cadres who surrendered or were detained… 595 former LTTE child soldiers were rehabilitated … and reunited with their families … while a further 6130 were rehabilitated by 2011” (p.82, Ministry of Defence).

With such a history, the government should seriously explore all possibilities of Restorative Justice, starting with a blanket Amnesty for ALL associated with the Insurrections and the Armed Conflict and extending it beyond to restore the livelihood and the wellbeing of the survivors in ALL communities.

by Neville Ladduwahetty ✍️