by International Crisis Group, Brussels, February 28, 2014

This briefing note draws on Crisis Group’s extensive reporting on post-war political developments in Sri Lanka, as well as recent interviews with a range of Sri Lankan stakeholders. Read all our published reports on Sri Lanka.

Overview

The government of Sri Lanka (GoSL) has failed to comply with two successive Human Rights Council (HRC) resolutions. Failure is most obvious with respect to accountability for alleged war crimes and crimes against humanity in the final phase of the civil war, but also by the lack of devolution of power, ongoing militarisation of the north and east, and deepening authoritarianism throughout the country. Decisive HRC action now is required in light of GoSL’s repeated failures to undertake the necessary steps alone; it is necessary also in order to decrease the risk of a return to deadly conflict in Sri Lanka.

The HRC should adopt a strong resolution on Sri Lanka, establishing an international commission of inquiry to investigate credible allegations of violations of international human rights and humanitarian law committed by the Liberation Tigers of Tamil Eelam (LTTE) and Sri Lankan government forces, establish the facts and circumstances that may amount to such violations, and identify those responsible. The commission also should be empowered to investigate continuing rights violations stemming from those events, including alleged abuse of detainees, enforced disappearances and sexual violence.

The resolution should request the Office of the High Commissioner for Human Rights (OHCHR) and relevant special procedures mandate holders, many of whom have been denied access by GoSL, to provide the commission with the technical and logistical support needed and to monitor and report back to the HRC on any progress made by the GoSL in implementing the relevant resolutions.

I. Failure to comply with 2013 HRC resolution

The March 2013 HRC resolution called for action by the Sri Lankan state to abide by its own previous commitments and international obligations, including by implementing “the constructive recommendations” of its Lessons Learnt and Reconciliation Commission (LLRC) and “conduct[ing] an independent and credible investigation into allegations of violations of international human rights law and international humanitarian law”.

Rejecting the HRC resolution, the GoSL claims to be pursuing reconciliation and accountability through its National Plan of Action (NPoA). In fact, however, the GoSL has ignored the LLRC’s core recommendations, which focused on reestablishing the rule of law, restoring checks on executive and military power, launching independent investigations into human rights violations, restoring civil administration to the Tamil-speaking majority north, and pursuing a lasting political settlement.

a. No independent institutions or investigations

The government has failed – despite widespread public demands and the LLRC recommendations – to restore the independence of key oversight bodies, including police, human rights and public service commissions. Sri Lanka’s human rights commission has lost all semblance of independence, failing to carry out effective investigations into any serious human rights abuses.

The government effectively nullified what remained of the judiciary’s independence in January 2013 through the impeachment of chief justice Shiranee Bandaranayake. A series of arbitrary actions and political statements by the replacement chief justice, former presidential advisor Mohan Peiris, has further weakened the institution and confidence in it.

The government has made no meaningful progress in investigating or prosecuting any of the high-profile cases specifically cited by the LLRC. For example:

• there have been no arrests for the 2006 massacre of 17 ACF aid workers;
• there have been no indictments in the “Trinco 5” students’ murder: 12 police officers arrested at the magistrate’s court level in 2013 remain free on bail;
• the government refuses to release the 2009 report of the Udalagama commission which looked into both the ACF and Trinco 5 cases, despite the LLRC’s recommendation that it do so;
• there have been no successful investigations or prosecutions into any of the many murders and violent attacks on journalists under the current government.

Continual announcements of new commissions provide thin cover for the government’s failure to implement the key recommendations of a half-dozen previous commissions on enforced disappearances, as called for by the LLRC. Reports from eyewitnesses to the actual functioning of the newest commission on missing and disappeared persons appointed by President Rajapaksa in August 2013 indicate the military is actively involved in its work, including in the initial registration of complaints from families of the disappeared. Hearings have been marred by translations from Tamil deemed inadequate and biased; and the commission’s credibility and impartiality have been compromised by apparent conflicts of interests involving government lawyers working for it.

Despite NPoA claims of cooperation with the UN Working Group on Enforced or Involuntary Disappearances (WGEID), the GoSL has in fact denied WGEID’s repeated requests for country visits. Police have prevented families of the disappeared from travelling to Colombo to engage in public protest or petition the UN. Finally, the government has still not presented to parliament its witness and victims protection bill – repeatedly promised since 2006 – nor a law criminalising disappearances, as promised during High Commissioner Navi Pillay’s visit to Sri Lanka in August 2013, fundamentally compromising domestic inquiries.

b. No progress on accountability for war crimes and crimes against humanity

Impunity is most evident with regard to the credible allegations of serious violations of international humanitarian and human rights law by both sides at the end of the war, detailed in the 31 March 2011 Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka. Although the GoSL-established LLRC is touted as having fulfilled this need, in fact the LLRC was never mandated to investigate such allegations. As a result, the LLRC only cited a handful of cases, suggesting that the government should investigate.

GoSL has conducted no independent investigations into the alleged crimes committed by its forces, including where photographic and video evidence of alleged extrajudicial killings and sexual violence exists. The report of the army court of inquiry appointed in 2012 – which the government claims exonerated the military of any responsibility for civilian deaths – has still not been released; its methodology remains unknown. Almost no information has been shared about the second military court of inquiry that reportedly is investigating the allegations of post-war extrajudicial killings. No suspects have been named; none have been detained.

The government points to its new census of war deaths and damage as an important step in its reconciliation program and as satisfying one of the major LLRC recommendations. The design and implementation of the census, however, suggest it is principally intended to help strengthen the government’s position at the HRC.The methodology of the survey, which allows reporting of deaths and injuries only from those within a narrowly defined “nuclear family”, will mean many deaths are not counted. The census will not record the deaths of families killed in their entirety, nor of families who have since left Sri Lanka – and it will not be accepted as a credible and independent accounting by those affected.

c. Violence against religious minorities

2013 and early 2014 have seen an alarming trend of new forms of communal violence. Radical Buddhist nationalist groups continue their regular violent attacks against Muslims and Christians and their places of worship. Despite the HRC’s concern in 2013 at “reports of … discrimination on the basis of religion or belief”, the police have failed to prevent or arrest any but a handful of those responsible for the more than one hundred such attacks in that time period. This feeds the widespread belief that the violence has the blessing of the government.

d. No political progress in militarised Northern Province

The GoSL points to the establishment of the northern provincial council (NPC) as demonstrating its commitment to the devolution of power called for by the LLRC and HRC. Since the September 2013 election, however, the government has refused to allow the NPC to establish an effective administration. The Northern Province’s governor, an ex-general appointed by and working for the president, has blocked NPC attempts to appoint key officials and constitute needed administrative departments within its constitutional powers.

The HRC further called for the government to “reach a political settlement on the devolution of power to the provinces”. The government insists this should be done through a parliamentary select committee (PSC) it controls; the Tamil National Alliance (TNA) and all other opposition parties reject this position.

There has been no significant or verifiable reduction in the numbers of troopsstationed in the north and east or in the military’s regular interference in civilian affairs in both provinces. Despite government claims that “civilian administration is now fully restored in the former theatres of conflict”, the military – both directly and through the Presidential Task Force (PTF) – actively monitors the civilian population and controls development there.

While the military has returned some land to civilian owners in Jaffna and other parts of the north, larger amounts are still occupied by the military and other government bodies. There is still no transparent or equitable process to challenge government seizures of land or to mediate competing land claims, as recommended by the LLRC and called for by the HRC.

II. The need for a robust international investigation and accounting

The government’s refusal to conduct a credible, independent inquiry into alleged violations of international humanitarian and human rights law, especially in the context of its deliberate dismantling of domestic rule of law institutions underpins arguments for the HRC to establish an international commission of inquiry.

Such a commission would:

• challenge Sri Lanka’s institutionalised impunity, a necessary step for long-term democratic stability;
• establish a more complete record of the scale of civilian suffering at the end of the war, grounded in an inter-governmental mandate less easily dismissed by GoSL and its supporters;
• establish the facts and circumstances of the LTTE’s abuses and crimes in a form that is harder for Tamils and Tamil organisations to deny, thus discouraging continued romanticisation of the LTTE;
• reassure survivors of war-time abuses, most affected by the systemic failings of the UN in 2008 and 2009, that they have not been abandoned by the international community, thus undercutting more radical demands by some Tamil diaspora organisations.

The commission of inquiry’s mandate should include the following:

• to investigate all alleged violations of international humanitarian and human rights law committed from September 2008 through May 2009 by Sri Lankan government forces and fighters of the Liberation Tigers of Tamil Eelam (LTTE);
• to establish the facts and circumstances that may amount to such violations;
• to identify those responsible with a view to ensuring accountability;
• to investigate continuing consequences of the events of 2008-2009, such as alleged abuse of detainees, enforced disappearances, sexual violence and the continued heavy militarisation of the northern and eastern provinces, much of which appears designed to destroy evidence and intimidate potential witnesses; and
• to present its report to the 28th session of the HRC, at which time the report should be transmitted to the UN General Assembly and Secretary-General.

The commission also will need support and assistance, whether through OHCHR or otherwise:

• to provide witness protection, including such travel and other assistance needed to facilitate appearance and to ensure safety before, during and after any cooperation with the commission;
• to preserve evidence of alleged crimes with a view to making such evidence available to any prosecuting authority with jurisdiction and with sufficient witness protection and other safeguards in place to ensure a credible process.

The High Commissioner also should be mandated to report back to the HRC on any progress made by the GoSL in implementing outstanding resolutions.

III. A truth and reconciliation commission? Not yet

Following South African President Zuma’s November 2013 meeting with President Rajapaksa, senior Sri Lankan officials have suggested they are considering the possibility of establishing a truth and reconciliation commission (TRC). This is not an appropriate mechanism to address Sri Lanka’s challenges in the current context described above.

Critically, the achievements of the South African TRC depended on its being part of a larger democratic transition, managed by the post-Apartheid government, with wide-ranging legal and institutional changes that increased political space, guaranteed new rights, and placed checks on the security forces and executive power. In contrast, post-war Sri Lanka is moving in a dangerous, anti-democratic direction, with reduced space for free expression and criticism of state policies, continued rights abuses, and weakened democratic and independent institutions. A well-designed TRC could eventually be a useful complement to – but not replacement for – investigations and prosecutions. Truth and accountability, as in South Africa’s TRC, must go together.

Conclusion

An international commission of inquiry will not solve all of Sri Lanka’s problems. However, progress on accountability and the other key concerns cited in the 2013 HRC resolution remain critical if Sri Lanka is to repair its democratic institutions, protect the rights of Sri Lankans belonging to all communities, devolve power to the north and east and build a new sustainable multi-ethnic and multi-religious future.