Sri Lanka - dealing with the legacy of a brutal war

This piece was first published in The Independent on 20 May 2009.

The final weeks of the civil war in Sri Lanka were marked by serious and credible allegations of war crimes on both sides. Now that the fighting is over, international attention is shifting to the need to promote reconciliation and bring some accounting for brutality against civilians.

The European Union has called for an independent investigation into any violations of the laws of war, and said that those responsible must be brought to justice.

The Sri Lankan government's first priority must be to attend to the wounded. It is a central tenet of the laws of war that the wounded and sick should be cared for, and this responsibility appears to have been utterly neglected by both sides in the final weeks of the conflict. At the same time, the huge numbers of displaced people must be provided for and treated humanely, with no reprisals against anyone suspected of having helped the rebels or defied the government's ban on reporting information from the war zone.

The laws of war also require that governments investigate reports of war crimes by their forces. The intensive shelling of the Tamil Tigers' enclave may have violated rules prohibiting disproportionate harm to civilians (though such charges can be hard to prove conclusively) and there are suggestions that the army may have deliberately targeted hospitals.

On the rebels' side, there is substantial evidence that civilians were used as human shields, violating a well-established rule of international humanitarian law. The government should allow independent human rights investigators immediate access to the area, to provide a check on the official account. The Sri Lankan government ought by rights to prosecute any army officers who committed violations, and it could also try any captured rebels against whom there is evidence of such crimes.

If the government fails to enforce accountability, the international community might step in - but the International Criminal Court would only have jurisdiction over Sri Lanka, which is not party to the court, if the UN Security Council refers the situation to it.

Ultimately, the outside world may have to decide whether its first concern is with promoting a political settlement or justice - if the Sri Lankan government makes a genuine effort to address Tamil concerns, there will be less international pressure for any war crimes trials to be held.

The author is executive director of the Crimes of War Project and a senior policy fellow with the European Council on Foreign Relations