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From R2P to RANP: Sri Lanka and ‘Responsibility After Not Protecting’
Henrietta Briscoe
7 February 2014
The Responsibility to Protect (R2P) doctrine sets out a three-fold responsibility. First, states have a primary responsibility to protect their populations from genocide, war crimes, crimes against humanity and ethnic cleansing. Second, the international community has a responsibility to assist states so that they can fulfil their R2P. Third, if the state in question ‘manifestly fails’ to fulfil its R2P then the international community has a responsibility to act in a “timely and decisive manner” on a “case by case basis”.[1] But what happens when both the host state and the international community fail to fulfil their obligations under the doctrine of R2P? I argue that the international responsibilities under R2P survive after mass atrocities have been committed and after a failure of prevention and protection. I argue that inherent to R2P is ‘RANP’ – Responsibility After Not Protecting – and I employ the example of Sri Lanka to demonstrate the value of this concept.
Sri Lanka: Placing the Conflict in Context
For some 26 years, Sri Lanka was ravaged by civil war.[2] Following independence in 1948, tensions mounted between the Buddhist Sinhala majority and the island’s minority Tamil community. From 1956 successive governments had campaigned on a Sinhala nationalist platform. What was an electoral democracy at time of Independence became the ‘tyranny of the majority’.[3] With the failure of social mechanisms to hear and address grievances, violence erupted. The Liberation Tigers of Tamil Eelam (LTTE) emerged as the self-declared representatives of the Tamil people. The conflict intensified. All attempts at resolution failed, most notably the Norwegian brokered peace process (2002 – 2006).[4] On November 19, 2005, Mahinda Rajapaksa was sworn in as President to the Sri Lankan Freedom Party Government, it was a narrow victory fought on the promise of reasserting state sovereignty on the international stage and, on the domestic front, ending the civil war. Under Rajapaksa’s presidency the forces of the LTTE were dealt with illiberally. President Rajapaksa celebrated the destruction of the LTTE, triumphal, in May of 2009.
The Failure of R2P in Sri Lanka
With the exception of Sri Lankan state denials, there is now near full acceptance that Sri Lanka was responsible for the commission of atrocities particularly in the final months of the war. The UN Panel of Experts report from March 2012 puts the civilian death toll at a minimum of 40,000.[5] The November 2012 Internal Review Panel Report, the ‘Petrie’ report, references ‘credible reports’ that civilian casualties were as many as 70,000.[6]
[…] More recently, Madeleine K. Albright and Richard S. Williamson, in their capacity as co-chairs of the Working group on the R2P, observed, “Tens of thousands of Tamil civilians died at the end of the Sri Lankan civil war with little inter-national outcry or effective UN response”.[7] Sri Lanka is thus an example of R2P “double manifest failure”: a failure to protect on the part of both the state and the international community…
The Council urged Sri Lanka to bring itself to account
Despite the overwhelming evidence of Sri Lankan state responsibility for crimes against International Humanitarian and Human Rights Law, attempts to bring the Sri Lankan state and its officials to account are frustrated on multiple levels. Domestically the state is neither willing nor able to provide justice. The UN Office of the High Commissioner for Human Rights released a damning report on the domestic ‘Lessons Learnt and Reconciliation Commission’ and the ‘National Action Plan’.[10] Since the Sri Lankan state refuses to concede that there were any civilian deaths in the final phase of the conflict, save minimal collateral damage, the findings of the report come as no surprise. Furthermore there is no independent judiciary in Sri Lanka.[11] On the international stage, Sri Lanka is not a state party to the Rome Statute and thus the International Criminal Court cannot exercise jurisdiction, at least not without a Security Council referral.[12]
Responsibility After Not Protecting (‘RANP’)           
The available measures to ‘protect’ and ‘prevent’ under the R2P are many and varied.[13] …However, despite the scope and breadth of the concept in theory, R2P has become increasingly associated with military intervention at the climax of a crisis. Thus Libya is held up as an R2P success; Syria, a current failure; Sri Lanka, a past failure. To re-engage the less kinetic aspects of the R2P, and maximise the concept’s potential utility, I argue that there is room for and need of another new acronym, namely ‘RANP’: Responsibility After Not Protecting.[15]
RANP is a concept forged entirely from within R2P. As such, it is not a new creation. But it is in need of its own title in order to impress that R2P is as alive and pertinent after a failure, after a mass atrocity, as it is at the point of commission of that atrocity. RANP demands that the international community remains fully engaged – and in diverse ways and places – in the aftermath of a crisis, in the understanding that the obligations of the R2P’s third pillar still hold. In the case of Sri Lanka, the lack of any meaningful lawful accountability for crimes, the systematic cruelty of the ‘rehabilitation’ programme of former members of the LTTE,[16] the flood of asylum boats laden with their desperate cargo,[17] all are examples testifying to the failure of R2P today, post ‘conflict’ – that is, a failure of RANP.
Some Aspects of RANP
RANP therefore demands action along the full gamut of the R2P toolbox both after a failure and in diverse sites, here and there. Some tentative suggestions for the shape that that action could take and that are pertinent to the current situation in Sri Lanka include honouring the right to political asylum, pursuing domestic suits, and the concerted application of diplomatic pressures.
1. Honouring the right to political asylum: Asylum is one area decidedly within the control of individual member states of the UN. States can protect the victims of Sri Lankan state crimes, on their own territories, but on so many occasions are failing to do so, cementing failure with failure.[19] As part of their responsibilities under RANP, states ought to not only meet their international obligations – such as the right to political asylum – but ought to exceed them…
2. Litigation: The impediments to bringing Sri Lanka to account have already been listed. But it is not enough to turn to UN bodies for justice and then turn away as the UN stumbles, waiting until the political situation is amenable, and in the meantime relinquishing all individual state responsibility in the prosecution of crimes […]Thus, simultaneously to pushing for an International Independent Investigation through the UN Human Rights Council, we ought in the meantime here in the UK and elsewhere, as part of our responsibilities (R2P and RANP), seize upon our domestic universal jurisdiction provisions as a vehicle by which to bring some, albeit limited, accountability.[20]
3. Diplomacy: Diplomatically, much more can be done, and the momentum towards an international independent inquiry into the conduct of the Sri Lankan government in the civil war, spurred forwards by David Cameron’s words after the Commonwealth Heads of Government Meeting held in Colombo November 2013, must be capitalised and built upon.[21] That Colombo did host the meeting is however a sad indictment of the Commonwealth.
As has been demonstrated in the four years since the end of the civil war in Sri Lanka, it is sadly all too easy for the United Nations and all the states that comprise it to say “we failed to protect” – past tense – and then to continue to do nothing – present tense – consigning R2P to action, over there, in a crisis and not after one. It has the potential to be so much more.
Under R2P, the International community has a collective responsibility after not protecting, RANP, if not a collective obligation.[24] It is a responsibility to be exercised here and now. Continued failure with regards to Sri Lanka serves to give confidence to those who would transgress the peremptory norms of international law, that they can do so with impunity.
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