HRW: “Why Can’t We Go Home?”

Military Occupation of Land in Sri Lanka

by Human Rights Watch, New York, October 9, 2018

https://www.hrw.org/report/2018/10/09/why-cant-we-go-home/military-occupation-land-sri-lanka

Summary

Military occupation of public and private property is a cruel legacy of the nearly three-decade civil war in Sri Lanka that ended in May 2009. Over the years, many Sri Lankans, particularly in the embattled north and the east, were displaced because of the conflict, often several times over.

Government forces occupied territory to set up military camps, or bases, for operations, and demarcated certain areas as High Security Zones (HSZs), thwarting their return. Over the course of the war, the separatist forces of the Liberation Tigers of Tamil Eelam (LTTE) had de-facto administrative control over large areas covering several districts and were also involved in forcibly displacing people, including a mass eviction of the Muslim community. Those displaced due to the conflict faced loss of their homes and livelihood, poor living conditions, including in squalid conditions at displacement camps.

By the end of the war, the military was in control of vast swaths of land, including the areas previously held by the defeated LTTE. While the administration of President Mahinda Rajapaksa took some steps to release land back to original owners, the military retained control over large areas and made use of it for both military and non-military purposes. The military consolidated its position and control, including shifting from de facto occupation to legal acquisition. It not only established barracks, but has used the land for agriculture, tourism, and other commercial ventures.

The current president, Maithripala Sirisena, came to power in 2015 on a platform of reform. His victory, followed by parliamentary elections in which pro-reform forces were further strengthened, raised the hopes of communities, mostly Tamil and to a lesser extent Muslim, whose land was occupied by the security forces.

In October 2015, at the United Nations Human Rights Council (UNHRC), Sri Lanka cosponsored a resolution in which it pledged to address longstanding issues relating to the conflict, including prompt return of occupied land. The government has since stated that it has returned nearly 80 to 85 percent of the land held since the war ended and will only retain control in areas needed for national security reasons. But there has been no transparency in the process and many affected communities dispute these claims.

While the government has released land in a number of sites across the north and east, in other sites the process has been delayed. In at least one location, the Sirisena government has actually moved backward, allowing the military to acquire land in a conflict-affected area, a practice under the Rajapaksa government that many observers hoped had ended.

In Mullikulam, discussed above, residents with the support of clergy and local activists had been campaigning for the return of their land since the war ended in 2009. Instead, the navy consolidated its presence, declaring the village the headquarters for their north-west command. The election of a new government in 2015 gave them hope. But when their land was not returned, in March 2017, they began holding demonstrations outside the navy camp located on their properties. In July 2018, the navy made yet another promise to release their lands “soon,” but it is yet to happen, and protests continue.

It is now nearly four years since the Sirisena administration took office, and discontent has risen among affected communities over continuing military occupation of land and additional acquisitions—often without adequate consultation, due process of law, or compensation for those displaced. In many parts of the country, those contesting these land seizures have been holding protests as they see little substantive progress. To a large degree, the earlier landowners remain vulnerable to the whims of the military and their decisions on whether to release land.

This report, based on 110 interviews conducted between June 2017 and August 2018, details cases of land occupation by security forces both during and after the armed conflict. It identifies failures of transparency and due process, lack of proper mapping of these occupations, inadequate support to affected individuals and communities, and ongoing delays in providing appropriate reparations to address the harms. It also examines evidence that the military is using some lands for commercial profit rather than national security, and in some cases has damaged or destroyed property prior to returning the land to owners. We conclude that, despite early progress in returning land and some positive commitments, the Sirisena government has since adopted an arbitrary and piecemeal approach. The failure to initiate a transparent process means that it has done far too little to address the rights violations and provide remedies to those who have suffered or continue to suffer from military land occupation and its consequences.

Land Occupation by State Security Forces

Nearly a decade after the war, the Sri Lankan army, navy, and air force, as well as the police, continue to occupy private land that is owned and was used by civilians, and state land intended for non-military purposes. These occupations range from large areas that cut across multiple administrative divisions, to smaller areas encompassing several properties and even, in some cases, an individual house or farm. Private land includes homes, business establishments, cultivable areas, and other properties. Security forces also continue to occupy or control access to religious buildings, schools, communal wells, beaches, and arable lands that have long been used by communities, sometimes over generations, but where ownership lies with the state.

Military occupation of land is among the primary contributors to continuing displacement: according to the government, as of 2017, nearly 40,000 people remained internally displaced in the country, a majority from Jaffna.

In some instances, the local civilian administration agrees that there are no reasonable grounds for continued occupation but have been unable to enforce reform because of obstruction by the military. In others, district officials assert that the civilians who lived or used the land lack legal titles or proof of ownership. Contested land ownership is not merely a legal and administrative issue but reflects a wider problem: a failure of Sri Lankan authorities to fully consider the consequences of the conflict for the country’s many affected populations. During the war, normal land administration was suspended. In addition, the land documents of many families who were forcibly displaced were destroyed, damaged, or lost. In some cases, other civilians occupied their land.

In several cases, even after residents were informed that their property had been released, they have found security forces unwilling to leave, or still occupying a portion of the area, leaving some families displaced. Partial land release, with security forces camped close by, causes practical problems over access to water or roads, and increases fear of surveillance or harassment by soldiers. The government’s failure to act on pledges of releases have increased distrust and suspicions between local communities and the authorities.

In some cases, different state agencies have exchanged control over properties without releasing land back to civilian owners. For instance, after the war ended, 23 families in Pallimunai on Mannar were initially promised that their land and homes would be returned by the local police who were in occupation of these properties. Instead, the navy took over control of the land from the police, without any explanation, and have remained in control. The residents are blocked from returning by the navy, which has refused to vacate their properties. Residents have fought their case in court. Helena Perera, one of the residents said:

The police told us that they were leaving and that we could to return to our homes. A police officer standing nearby, told us again, in front of the navy, that we can go back home. However, a navy high-up told us that they would only leave if the president [then Rajapaksa], were to order them to do so. And that until then, they would continue to live on our land. We’ve been made refugees in our own village.

In some areas that the military occupied during the war, the state has moved to formally acquire the land in the post-war period, including under the Sirisena-led administration. While it is apparent that the military has commenced acquisition of some such lands with consideration for the due process rights of former residents, its slow or stalled progress in releasing additional lands has intensified fear that it is biding its time and seeks to consolidate its hold.

Post-Conflict Occupation of Land

Military occupations of land occur frequently during armed conflicts. However, in Sri Lanka, the security forces have occupied new land even after the end of the war and the defeat of the LTTE, expanding their role and presence in civilian activities, including infrastructure development, tourism, and administration.

For instance, on July 17, 2010, a year after the war ended, a group of masked men, armed with clubs and assault weapons, entered the village of Ragamwela, Panama, in southeastern Ampara district. They burned down seven huts, assaulted villagers, and forcibly evicted residents in a midnight attack. Although the villagers filed a complaint with the police, no action had been taken at time of writing. Instead, when the residents tried to return to their land after the attack, the local police blocked them.

The navy and air force both established camps in the area and began construction of a resort and an international conference center. In this case, the villagers were largely from Sri Lanka’s majority Sinhalese ethnic community who had been were forcibly displaced by the military after the war had ended.

Human Rights Watch has documented other cases of land grabs following the war, including in the Eastern Province, which the security forces claimed to have “liberated” entirely in July 2007. In November 2009, the security forces cut civilian access to the mosque in Karamalaiootru, in Trincomalee. On November 5, 2011, military personnel came into the village of Ashraf Nagar and demanded that all its occupants vacate. In all such cases the security forces created military camps or otherwise established a presence on the land.

“Land Grabs” for Profit

While the government typically defends the military occupation of land as important for national security, in most cases that rationale is suspect. The use of the land for tourism or agriculture points to the real interest rooted in commercial gain. In at least four sites included in this report, land occupied by the military under the pretext of national security is being utilized for commercial purposes.

Residents of Panama have alleged that military occupation of land there was not for national security at all but purely for tourism and generating revenue. During the Rajapaksa administration, the air force, which occupied 365 acres in the area, commenced the construction of an international conference center, and has been building beach-front chalets for tourists. The navy, which had been occupying about 300 acres, including residential and cultivation lands belonging to the people of Ulpassa, Egodayaya, and Horakanda since the end of 2009, have built a tourist resort, Lagoon Cabanas.

Flaws in the Release, Resettlement, and Reparation Processes

In instances where land has been released, there are continuing problems for returnees. The lack of adequate resettlement assistance has been a critical challenge. For war-affected internally displaced persons the state generally offers a package that includes a resettlement allowance, cooked food, and cash for land clearance. Other assistance such as permanent housing and livelihood aid depends on specific criteria set out by the state, humanitarian agencies, or donors.

However, Human Rights Watch found that in practice there is no uniform application of this policy. Some returnee families did not receive the full resettlement package when they returned to their lands formerly occupied by the military. In some cases, people who initially resettled from IDP camps and ended up in another form of displacement—living with friends and relatives, in rented properties, or even in IDP camps closer to their original properties, because their land was still under military occupation—were denied assistance when their land was eventually released.

Partial releases pose a problem for returnee communities as some land is released, while the military retains control of neighboring land without looking at boundaries and community infrastructure. For instance, Nadeswara College in Kankesanthurai (KKS), Jaffna district, was released in May 2016, but two of the school buildings remain under police occupation, as do many of the nearby houses and the school’s potable water well. Partly as a result, school attendance is still significantly lower than prior to the outbreak of the war, and the school is facing serious challenges in restoring full services.

Residents in different parts of north and east Sri Lanka have complained that the military destroyed property during occupation or immediately prior to release. In Pallimunai, Francis Rita Roche, who is part of a court case seeking the release of her house, says she watched the navy demolish her house on January 22, 2015:

My nephew had seen them [the navy] removing my roof tiles and alerted me. I rushed there and watched from outside the barbed wire fence, as they razed my house to the ground. My hopes and dreams of returning to my home someday, were crushed before my eyes.

Human Rights Watch also documented the destruction of Hindu temples, a mosque, a Buddhist temple, and a church that took place during the post-war period when these sites were still occupied by the security forces.

In some cases, instead of returning people to their original settlements, the previous government decided to relocate families. The haphazard manner of most of these relocations, implemented with little or no consultation with displaced communities, violated international standards. In addition, it has resulted in these populations being removed from the official IDP figures, creating a new problem of “hidden displacement.”

During the final months of the war, Tamil residents in the Vanni were forced to vacate their lands and retreat with the LTTE ahead of the advancing military. At the end of the war, the military transported many of these villagers, who had ended up as human shields during the fighting, to a large camp called Menik Farm, where they were detained. Under international pressure civilians held there were gradually released and families started returning to their homes. Menik Farm was eventually shut down in 2012. At that time, however, activists estimated that about 26,000 people remained displaced because the military had retained control over their land. They were later forcibly relocated.

For instance, Keppapulavu was home to 138 families prior to their displacement in 2008. When Menik Farm was shut down in September 2012, the former residents of Keppapulavu, with little advance notice or information, were transported by the military to a plot of land in Sooripuram, neighboring their former village, and told this would be their new home. The lack of due process and the minimal standards observed in the relocation fall far short of the standards set forth in the UN Guiding Principles on Internal Displacement and other international frameworks. Arumugam Villayutham Pillai, the Hindu priest of the Murugan Kovil of Keppapulavu said, the government had not prepared properly for the relocation:

We were one of the last groups from Menik Farm to be resettled. It was on September 24, 2012. There was UN pressure to close the camps. We were brought in trucks to Vattappalai school. We spent the night in the school. Then the elders were brought to a piece of land and told that we could not go home, that we would live there. Our belongings were then dropped in the area. It was like a jungle.

Need for Justice and Reparations

Although all three major ethnic communities in the country—Tamils, Muslims, and the Sinhalese—are affected by military occupation of land in the north and east, the vast majority of cases impact the Tamil community. The military occupation of land is a significant stumbling block to post-war normalization and reconciliation, heightening concerns that the Sinhalese-dominated state is seeking to diminish the rights of minorities through continued militarization and territorial aggrandizement. The scale of military presence and its involvement in multiple activities of civilian life is thus a key challenge in post-war Sri Lanka.

Both Sri Lankan and international law make clear that land occupation by security forces can be appropriate when necessary to serve legitimate security imperatives and when the rights of those affected are respected. Many members of affected communities have filed legal challenges, alleging lack of due process in the land acquisition process and pointing to discrepancies between the official stated purpose of military land occupations and actual uses of the land.

Although affected communities have focused on securing release of their lands and are demanding minimal assistance from the government, there is also a need to ensure justice and appropriate reparations for those harmed by the land occupations. The government has proposed an Office of Reparations, but it is yet to be seen if this institution will address the issue of military occupation of land.

In general, the government needs to improve both the quality and quantity of land releases, ensuring that more affected individuals and communities get their land back and that flaws in returns are addressed. The government’s approach seems at best ad hoc, and decisions are too often left to the discretion of the security forces, without a serious effort to systematically map and review military use of land as well as the status of release and reparations initiatives.

One indicator of lack of transparency is the lack of aggregated data on military occupation of land. As the UN high commissioner for human rights noted in his report on the implementation of UN Human Rights Council Resolution 30/1 and 30/4 in January 2018, “The full extent of land under military occupation claimed by civilians remains in question.” Although the government has provided statistics for occupation, its figures remain contested, a situation compounded by the fact that some land is claimed by other state agencies, such as the forest department and the Sri Lanka Ports Authority.

Continuing land protests, court cases, and the advocacy efforts of affected communities all highlight the urgency of dealing with military land occupation. The government should publicly commit to releasing all private and public lands currently occupied by the military unless specifically required for strategic state purposes, act promptly to fulfill that commitment, and provide meaningful compensation or other redress for those harmed to date by such occupations. Such actions are important in their own right and as an essential step toward ensuring lasting peace and justice in Sri Lanka…

Recommendations

To the Government of Sri Lanka including the President and Prime Minister

  • Publicly commit to releasing all private and public lands that are currently occupied by the military unless specifically required for strategic state purposes. New land acquisitions by the military must demonstrate a strategic state purpose and the absence of alternate land that can be used for the said purpose.
  • Ensure pledges on land returns are time bound and transparent to deter unnecessary delays in implementation, and to strengthen public trust and confidence.
  • Remove the authority of state security forces as the primary arbiter on land occupation and instead ensure a public and transparent process.
  • Conduct an immediate review and mapping to ascertain current occupation by the security forces and assess civilian claims of ownership or use of the land. This review should include both lands privately owned and public lands such as schools, hospitals, grazing lands, and beaches. This review should be conducted by either by an independent body such as the Human Rights Commission or a multi-stakeholder mechanism including representatives from the military, district level administrations, and civil society.
  • Establish an independent body composed of stakeholder representatives to visit areas occupied by the security forces to determine the impact of continued military presence including checkpoints and access to farms, residences, schools, places of worship, and other facilities used for civilian activities.
  • Ensure that legal processes of land acquisition are strictly adhered to, including providing affected communities appropriate notification in all languages.
  • Where relocations are necessary, ensure the security forces identify suitable alternate land in full consultation with the affected community.
  • Implement the National Involuntary Resettlement Policy (NIRP) and the National Policy on Durable Solutions for Conflict Affected Persons in the event of relocations.
  • Ensure the basic needs of relocated communities are addressed, including with regard to housing, livelihoods, and access to basic services.

To the Office of Reparations

  • Ensure that the issue of military land occupation and loss of property are included as grievances for which individual and collective reparations can be considered. This should include long-term occupation and usage without rent and destruction to buildings, infrastructure, and land.
  • Follow up with state authorities to ensure that land released by the military is handed over to civilian owners along with proper documentation.
  • Call for legal and policy reforms relating to land to ensure restitution and other forms of reparations can be effectively implemented.
  • Ensure that recommendations from the Consultation Task Force, which reflect the views of displaced communities and domestic and international experts, are incorporated into the reparations office’s policies and plans.
  • Ensure the reparations policy addresses:
    • Loss of and damage to property and possessions (including livelihood equipment);
    • Loss of livelihood income over the time of displacement, e.g., paddy and crop harvests, fishing, cattle rearing, etc.;
    • Loss of rent from private entities for lease of land for commercial purposes, e.g., telecommunication towers.

To the Military

  • Ensure that in areas where release of land is being undertaken in a phased manner, full properties are released, and access to roads, infrastructure, and sources of livelihood are provided.
  • Ensure that lands and properties are released back to the public in proper and usable condition and that there is no deliberate damage or destruction prior to release.
  • Investigate and take action against any military personnel who damage or destroy property, including disciplinary measures and, where appropriate, criminal prosecution.
  • Comply with the government’s commitment to cease military involvement in commercial ventures including, but not limited to, hotels, resorts, shops, restaurants, farms, pre-school teaching, and natural resource extraction (e.g., illegal sand mining) in the north and east.

To Law Enforcement Authorities

  • Promptly and impartially investigate allegations of post-war destruction of buildings, such as houses and places of religious worship, in areas held by the security forces. All those responsible, regardless of rank, should be appropriately prosecuted.
  • Investigate all allegations of harassment and intimidation by security force personnel of people advocating the release of occupied land, including residents, and community and civil society activists.

To the Ministry of Lands

  • Establish a process for addressing unresolved land claims and disputes, including complex land disputes involving different ethnic communities and multiple state agencies. A process for mediating and resolving such disputes should ensure that district level actors, affected communities, state agencies, civil society leaders, and politicians are involved, so as to reach sustainable solutions.
  • Coordinate with key state agencies, including ministries of resettlement and defense, departments of forests and wildlife conservation, and the Mahaweli Authority, to examine land claims, while giving priority to claims made by displaced communities.
  • Address the situation of the landless, including those currently displaced and originally from areas occupied by the military.

To the Ministry of Rehabilitation, Resettlement, Northern Development, and Hindu Religious Affairs

  • Ensure implementation of the “National Policy on Durable Solutions for Conflict Affected Persons” passed by the Cabinet in 2016.
  • Ensure that basic resettlement assistance to all persons returning to their lands, or being relocated, includes payment for land clearance, rations, and a basic allowance, in a systematic and consistent manner.
  • Ensure assistance for sustainable housing to all those returning to their lands or being relocated including cost of materials and labor.
  • Address community infrastructure needs including ensuring drinking and portable water, electricity, roads, public transport, and access to schools and health centers.
  • Attempt as far as possible to restore original lands in the areas occupied by the security forces even in cases where persons have been provided houses in relocation sites.

To Private Companies and Investors

  • Verify the status of the land, including previous ownership, before investing in new projects on land provided by the state, particularly where the land was occupied by the military.
  • Review ownership of land before paying rent to the military for the use of land, and in case of occupation of private lands by the security forces, ensure payment to legal civilian owners.

To Foreign Governments and Financial Institutions

  • Encourage the Sri Lankan government to carry out a mapping of lands held by the military that involves the participation of the public.
  • Call upon the government to rapidly continue the process of land release.
  • Press the government to take steps to implement UN Human Rights Council Resolution 30/1, including to release lands held by the military.
  • Appraise plans for land acquisition for development projects to ensure no or minimum displacement of communities.
  • Evaluate projects to ensure that no projects are for the profit of the military and exclude communities.
  • Insist upon ensuring rehabilitation and compensation before funding housing or tourism development projects, in compliance with the NIRP.

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