Sri Lanka: Government Promises, Ground Realities

In other ways, too, the government shows little willingness to move toward a negotiated political settlement that would devolve meaningful power to the north and east.

(BRUSSELS) - Sri Lanka’s post-war course is threatening future violence. As its 19^th session in Geneva begins this week, the UN Human Rights Council has a chance to do something about it.

Nearly three years since declaring victory over the Liberation Tigers of Tamil Eelam (LTTE), the government has weakened democratic institutions, deepened ethnic polarisation and aggravated the country’s long-standing impunity for human rights violations. The former warzones in the north and east are heavily militarised and controlled from Colombo, while disappearances, killings, torture, gender-based violence and other abuses continue with impunity throughout the island. Sri Lankans who speak out about the situation risk reprisal.

There has been no progress on accountability for alleged war crimes and crimes against humanity committed by both the LTTE and government forces during the final stages of fighting in 2009, which the UN Secretary-General’s panel of experts found left as many as 40,000 civilians dead. While the government’s Lessons Learnt and Reconciliation Commission (LLRC) is to be commended for its forthright criticisms of certain government policies – including continuing assaults on media freedom, the militarisation of the north and the failure to implement recommendations of earlier domestic inquiries into disappearances and political killings – it fails to provide the thorough and independent investigation of the full range of alleged atrocities at the end of the war that is needed for a sustainable peace. Nor does the government’s “road map for implementation” of the LLRC’s recommendations, presented in its opening statement this week, promise to do so.

The government claims to need additional time to pursue accountability. Yet its narrow promises, past three years of denial, dissimulation and intimidation of critics, and decades of failure to implement the recommendations of past domestic commissions of inquiry show that what is actually needed is a dramatic change of course. The responsibility now falls on the international community to take up the issue, starting with a resolution in Geneva demanding progress on both reconciliation and accountability according to a strict timetable and with independent monitoring. While the international community should press for real change under that resolution, it should also be prepared – should comprehensive investigations and prosecutions, again fail to materialise – to establish the independent international inquiry that so many domestic and international actors, including the Secretary-General’s panel of experts, have long been calling for.

a. calls on the government to implement immediately the recommendations of the LLRC report and, separately, to put in place a credible accountability process to investigate all of the grave allegations of war crimes and crimes against humanity detailed in the report of the Secretary-General’s panel of experts, and to prosecute those responsible;

b. requires that the Council remain seized of the matter in its 20^th session and thereafter by requesting the Secretary-General, the High Commissioner for Human Rights or another appropriate UN office to assess and to report back to the Council on the government’s progress in implementing the LLRC’s recommendations and carrying out investigations and prosecutions; and by requesting the government to report back to the Council on those same matters;

c. calls on the government to invite relevant special procedures to visit the country, including the Special Rapporteurs on extrajudicial, summary or arbitrary executions; on torture and other cruel, inhuman or degrading treatment or punishment; on violence against women, its causes and consequences; on the situation of human rights defenders; on the promotion and protection of the right to freedom of opinion and expression; as well as the Working Groups on enforced or involuntary disappearances and on arbitrary detention; and the new Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence of serious crimes and gross violations of human rights.

2) Commit to assess the government’s progress at the Council’s 20^th session and thereafter and, if the government’s efforts with respect to accountability still fall short of international standards, to establish an independent international investigation.

3) Make it clear to the government that promises of progress on human rights, reconciliation and accountability are insufficient to meet its international obligations, and that tangible, verifiable changes on the ground are what matters. Council members should seek clarification and detailed corroboration from the government on various claims of progress, including on the issues outlined below.

4) Finally, urge the Secretary-General to establish without delay the review of the UN’s own actions during the final stages of the war, as recommended by the panel of experts and agreed by the Secretary-General, now nearly one year ago.

Assessing government claims and promises:

Accountability for war crimes and crimes against humanity

Government claim: In his statement at the opening of the Council’s session, Mahinda Samarasinghe, the leader of the government’s delegation to Geneva remarked that the LLRC “offers detailed observations and recommendations on International Humanitarian Law issues relating to the final phases of the conflict” and “endorses the position that the protection of civilian life was a key factor in the formulation of policy for carrying out military operations, and that the deliberate targeting of civilians formed no part of it”, which “was and remains the position of the Government”. He also claimed that:

• An “enumeration” of the number of people killed in the conflict in the north “is now complete and a detailed analysis will be made known in the near future”; while the government will “further analyse and verify the data gathered in order to arrive at definite conclusions as to civilian mortalities and casualties”, a key question is closed: “the story of ‘tens of thousands’ of civilian deaths that supposedly occurred during the final phase of the humanitarian operation, is very clearly proved to be a gross exaggeration and a deliberate misrepresentation of fact”.

• The government “is committed to a mechanism for gathering and assessing factual evidence” regarding the “several specific episodes” the LLRC viewed as warranting further investigation; and the findings of this mechanism “will be placed before the Attorney-General for a decision in respect of instituting criminal proceedings”.

• Military courts of inquiry – convened by the army and the navy – “have commenced investigations into specific incidents identified by the LLRC”, including “the Channel 4 video footages” and “whether any deliberate and intentional attacks were made by the Army on civilians … or on any hospitals or no-fire zones”; and those courts of inquiry will make recommendations with regard to the measures that should be taken against persons responsible.

Reality: These claims and promises place only a thin veil over the government’s unwillingness to conduct genuine investigations into the many credible allegations of wrongdoing by both sides at the end of the war. They also ignore the fact that, as Crisis Group has previously noted, the LLRC report works to exonerate the government and undermine its own limited calls for further inquiry – mostly by accepting at face value the largely unexamined claims of the senior government and military officials who planned and executed the war, and by rolling back well-established principles of international law.

Regarding the government’s “enumeration” of those killed and missing in the north, Crisis Group’s recent blog post shows how that exercise raises more questions than it answers about the final civilian toll. The government’s argument that the story tens of thousands of civilians deaths is “very clearly proved” wrong, when it has not examined the many sources of information suggesting it may be right, underlines the hollowness of its approach.

Similarly, the investigative mechanism and military courts of inquiry promised are limited and devoid of independence. Both efforts appear to be focused on three specific incidents identified by the LLRC and the Channel 4 video footage, not on other critical issues highlighted by the LLRC such as the alleged disappearances of suspected LTTE cadres who had surrendered to or had been arrested by the army, or on the dozens of other allegations deemed credible by the UN panel of experts.

In terms of independence, the military is hardly the right body to examine such serious allegations against its own forces - especially when the members of the army court of inquiry are appointed by one of the senior commanders involved in planning and carrying out many of the policies whose legality has been questioned. This virtually guarantees that no senior officer or anyone in a commanding position will be found responsible for serious crimes. If the Sri Lankan military is to win back its good name, only a truly independent investigation, able to investigate all the way up the chain of command, will do.