Justice and Accountability for War Related Sexual Violence in Sri Lanka

by Chulani Kodikara, ‘OpenDemocracy.net,’ USA, August 15, 2016

As the testimonies of survivors of sexual violence in Sri Lanka’s long war enter the public domain and the government designs transitional justice mechanisms, is an end to impunity in sight?

Sri Lankan ethnic Tamil war survivors listen to the UN, 2013. Photo: Eranga Jayawardena/ Press Association. All rights reserved

The Sri Lankan government is currently designing transitional justice mechanisms to address human rights abuses connected to the three decade long war which ended in May 2009. But a key question is whether victims of sexual violence and rape committed in the context of the war will come forward and use these mechanisms?The silence around sexual violence has long posed a challenge to determining its nature, scale and magnitude in the context of Sri Lanka’s long war. On the one hand, this is due to the pervasive culture of shame, which deters women from speaking out. Twenty-five years ago, in Broken Palmyrah Rajini Thiranagama noted that the “loss of virginity in a young girl, even if against her will, meant that she could not aspire to marriage in our society and, if already married, there is a good chance that she will be abandoned”.The view of rape victims as “spoilt goods” has always been one of the most significant causes of under-reporting. Survivors and their families are however silenced not only by the shame of rape, but also by fear. Fear of reprisal by perpetrators or of further violence from the very institutions meant to protect them. That too remains unchanged.Writing of the post-war context, Satkunanthan notes that women’s silence on sexual violence “was possibly their way of normalizing life and switching to survival mode in the militarized and repressive post-war phase. They may also maintain silence due to fear of losing control of their stories once they are in the open”.

Throughout the 1990s and 2000s, a handful of rape complaints were made against the security forces from women who appear to have defied shame and fear in order to do so. There are also a number of other women and girls found murdered and raped, with strong circumstantial evidence implicating members of security forces or para military groups. With the exception of two (see below), none of these cases were properly investigated or perpetrators were indicted or prosecuted.

In the few cases where there was an indictment the case was never concluded. In many of these cases medical evidence was not collected in time; witnesses were harassed and intimidated, and cases were transferred from courts in the North to the South where they simply died. The case of Krishanthy Kumaraswamy (1996) and the more recent case from Visvamadu (2010) remain the only two where members of Sri Lankan security forces personnel have been prosecuted to the end and found guilty of sexual violence and murder. Impunity and lack of accountability for sexual violence has been an entrenched feature of the 30 years of war in Sri Lanka.

However, following the end of the war a UN investigation into war crimes in Sri Lanka (OISL) as well as a number of international organisations such as theInternational Truth and Justice Project, Sri Lanka, Human Rights Watch andFreedom from Torture, have together placed hundreds of survivor testimonies about sexual violence and rape, especially in detention in the public domain.

UN High Commissioner for Human Rights Navi Pillay listens to war survivors in Northern Sri Lanka, 2013. Photo: Eranga Jayawardena/Press Association. All rights reserved.

The significance of these reports in making sexual violence visible in the context of the war cannot be overstated. Incidents of sexual violence and rape are documented in graphic and horrific detail in the voices of survivors themselves. Perpetrators are identified as security forces and police personnel ranging from low-level guards to senior officers who are said to have made little or no effort to hide their identity. The places where these incidents took place include secret and known detention centres across the country. Most survivors say that they escaped after their families paid a bribe for their release from custody and all of them are now living outside of Sri Lanka.The OISL investigators were not allowed into the country and had to rely on testimony collected from a distance or from victim survivors living outside of Sri Lanka. International organizations have explicitly acknowledged that it would not have been possible to conduct research of this nature within Sri Lanka given the shame and stigma attached to being raped, the fear of reprisals from perpetrators and lack of witness protection measures.These reports are also a call for justice and accountability. They construct sexual violence as crimes under international law. They seek to establish the widespread and systematic nature of these crimes and argue that they are not isolated incidents committed by a few errant soldiers. Rather it is argued that these crimes are organized acts that by their frequency, location and nature, imply some degree of planning and centralized control going beyond specific individual perpetrators. In fact, they assert that sexual violence and rape in torture has been part of a deliberate government policy to obtain information, intimidate, humiliate, and inflict fear on persons who were with or seen as supporting the Liberation Tigers of Tamil Eelam (LTTE).Having framed sexual violence as an international crime, all of these reports call for the full array of transitional justice mechanisms including prosecutions. In calling for criminal investigations and prosecutions the reports however insist that it cannot be a purely domestic process. The OISL report for instance, calls for the establishment of a hybrid special court, which includes both international and domestic judges, prosecutors, lawyers and investigators. The case for such a mechanism is made on the grounds of deeply embedded or entrenched impunity and the absence of a credible and competent domestic mechanism to deal with such crimes.

International organisations are also now calling for Sri Lankan exiles living abroad and particularly those who have suffered sexual violence to be allowed to participate in transitional justice processes within Sri Lanka, including by giving evidence. The International Truth and Justice Project for Sri Lanka quotes an interviewee to the effect that “they would be willing to participate from abroad provided that their testimony takes place in a confidential environment in which their identities are protected”.

They are requesting the Government of Sri Lanka to explore how such a process could be put in place. They cite as best practices the Liberian example of diaspora testifying from abroad through video or audio technology, as well as the use of Rogatory Letters, which can secure such testimony. i.e., formal written requests made by one judicial body to another in a different, independent jurisdiction that a witness who resides in that jurisdiction be examined through the use of interrogatories accompanying the request.

At present, the Victim and Witness Protection Act that was passed by parliament in February 2015 makes provision for witnesses living in remote locations within Sri Lanka to provide evidence through audio-video linkages, in the presence of a public officer. Responding to criticisms that this is inadequate, cabinet has approved an amendment to the Act, to allow Sri Lankan’s living abroad to testify provided it is given at a Sri Lanka diplomatic mission.

The IJTP report however states that victims of human rights violations living abroad would not agree to having a Sri Lankan government official sitting in the room with them. Furthermore, even if testimony from abroad, gathered in accordance with international standards is made admissible, international involvement in prosecutions is a highly contested and controversial issue within Sri Lanka. The President has stated that no foreign judges will be allowed to be part of Sri Lanka’s transitional justice process. If that is the case, even if victim survivors living outside Sri Lanka are given legal standing, they may not be willing to appear before a purely domestic mechanism.

The attention to and systematic collection of evidence of war-related sexual violence in Sri Lanka and the invocation of international criminal law to address such violence has to be recognised as products of our times. These reports affirm the ascendency and hyper-visibility of rape discourses in international law, the focus of an increasing of body of critical feminist scholarship. As Fionnuala ni Aolain points out fact-finding and documentation are part of this international discourse of naming, shaming and advocacy. Yet pursuing justice for sexual violence in local contexts such as Sri Lanka is still fraught with challenges. International normative frameworks and discourses do not automatically transform or challenge local cultures of shame and fear, nor inspire victim survivors to bear witness to crimes of sexual violence committed against them. But can they contribute to transforming Sri Lanka’s legal culture to allow victim survivors living outside the country to become witnesses to crimes committed against them?

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