Victims’ interminable wait for justice in Sri Lanka

On 23 March 2017, the Human Rights Council (HRC) passed Resolution 34/1 on promoting reconciliation, accountability and human rights in Sri Lanka – the latest in a series of resolutions addressing the aftermath of the ethnic conflict between the Government of Sri Lanka (GoSL) and the Liberation Tigers of Tamil Eelam (LTTE). It follows Resolution 30/1 of October 2015 that provides a roadmap for judicial and non-judicial measures to promote post-conflict accountability and reconciliation in Sri Lanka. The first to be co-sponsored by Sri Lanka, Resolution 30/1 was heralded as an opportunity for Sri Lanka to reset its human rights record and embark on a post-conflict journey towards justice, reconciliation and non-recurrence.

Resolution 30/1 sought to implement the recommendations set out in the 2015 report of the UN Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL), which documented the “horrific level of violations and abuses” in the Sri Lankan civil war. (See my previous blogs “The Long Journey to Justice for Sri Lanka’s Victims” Part I and Part II for a discussion on the OISL report and Resolution 30/1 respectively). Resolution 34/1 rolls over Resolution 30/1 due to the lack of progress in fulfilling the latter.

Where do we stand, seventeen months after Resolution 30/1 and almost eight years after the official end to the conflict? In March 2017, reporting back to the HRC on the implementation of Resolution 30/1, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein noted that the GoSL has been “worryingly slow” in fulfilling its transitional justice commitments and that “the structures set up and measures taken during the period under review were inadequate to ensure real progress.” For instance, in August 2016, Parliament adopted legislation for the establishment of an Office of Missing Persons to investigate the tens of thousands of missing persons – a key transitional justice measure given that Sri Lanka records one of the highest rates of disappearances in the world. However, the legislation is yet to be operationalised.

Another key recommendation – establishing a “Sri Lankan judicial mechanism” with international actors – has been ignored despite being a cornerstone of Resolution 30/1 in securing accountability and justice for victims. International presence in an accountability process was intended to mitigate deep-seated mistrust in purely domestic mechanisms by providing impartiality and credibility. As noted by the UN High Commissioner for Human Rights in 2015, there has been “a total failure of domestic mechanisms to conduct credible investigations, clarify the truth of past events, ensure accountability and provide redress to victims.” Despite the GoSL’s commitments, President Sirisena, in January 2016, excluded any foreign involvement in an accountability mechanism – a position that has been maintained by other senior government officials including the Prime Minister.

There is also a systemic unwillingness to prosecute perpetrators within the state security forces. Instead, those implicated in war crimes are protected and even rewarded. As noted by a civil society actor during the HRC session, the President recently declared that no member of the armed forces would be charged in court. Just days later, disregarding the pledges made at the HRC, Major-General Shavendra Silva, commander of a unit allegedly implicated in war crimes during the final stages of the conflict was appointed chief administrative officer of the army.

Sri Lankan demonstrators outside the UN Palais Des Nations, Geneva, 22 March 2017

The absence of an accountability process is an affront to victims and risks derailing Sri Lanka’s transitional justice agenda. Accountability for past atrocities lays the foundation for reconciliation and non-recurrence. Immunity on the other hand breeds impunity. In his  report on Sri Lanka published in 2017, the UN Special Rapporteur on torture Juan Mendez, noted a culture of torture in Sri Lanka that had been reinforced by decades of impunity. Mendez also highlighted credible reports that “white van abductions” – a longstanding practice of kidnapping individuals who then disappear into clandestine detention and torture sites – continued under the current government in 2015 and 2016. The UN Committee against Torture (UN CAT) noted in 2016 that it was deeply concerned that torture was “a common practice” routinely inflicted by the police.

The attendance of National Intelligence Chief Sisira Mendis at the UN CAT session in November 2016 illustrates this entrenched impunity. He had been the Deputy Inspector General of the Criminal Investigation Department (CID) that ran the “4th floor” at the police headquarters in Colombo – a torture centre containing rooms with specialised torture instruments. Sri Lankans use the term “the 4th floor” as a shorthand to describe torture. The OISL report specifically names Mendis and implicates his subordinates in widespread allegations of torture and sexual violence. The UN CAT expressed alarmed at Mendis’ presence as a member of the Sri Lankan delegation – representing the country’s record on torture in circumstances where he had been in charge of a notorious torture site.

A severely deficient victims and witness protection framework exacerbates Sri Lanka’ systemic impunity. State security forces (Terrorism Investigation Department (TID), CID and police) that stand accused of widespread violations (torture, sexual violence, enforced disappearances and abductions) staff the bodies tasked with protecting victims and witnesses, thus critically undermining the independence and impartiality of the system. As expressed by a civil society actor at the HRC, “perpetrators cannot provide justice”.

For example, the Victims of Crime and Witnesses Assistance and Protection Division is under police oversight. Although he is named as an alleged torturer in the 2008 Report on Sri Lanka, by Manfred Nowak then UN Special Rapporteur on torture, the GOSL has appointed Nandana Munasinghe to the National Authority for the Protection of Victims of Crime and Witnesses. Munasinghe’s former subordinates in the TID and CID are also accused of systematic human rights abuses. Finally, no Tamil member has been appointed to the National Authority although many of the victims and witnesses are Tamil. In the context of an ethnic conflict, this omission strikes at the heart of any genuine attempt to build bridges between the Tamil and Singhalese communities.

While there have been positive developments following Resolution 30/1, some of these are marred by limited tangible outcomes. Sri Lanka’s engagement with the international human rights machinery reflects a marked shift in the GoSL’s prior stance, but this has not generated concomitant progress in strengthening the rule of law and securing human rights. For instance, while there has been constitutional reform on the issue of land restitution, widespread military occupation of private land remains a deeply destructive daily reality affecting the predominantly Tamil communities in the North and East of the country. The detailed 2017 report of the GoSL-mandated Consultation Task Force on Reconciliation Mechanisms – that conducted wide-ranging and independent consultations with over 7,000 citizens – was dismissed as unreliable by the Minister of Justice (who expressed “no confidence” in its findings).

Resolution 34/1 highlights the “need for further significant progress.” It gives the GoSL more time to fulfil its commitments but lacks clear benchmarks and timelines in tethering the GoSL to verifiable achievements. How do we secure the GoSL’s commitments by the next reporting period in two years? Heightened scrutiny, tireless monitoring, and campaigning are critical. Genuine and sustained political will is essential. Equally important is a fundamental change in approach to one that is grounded in an acknowledgment that the only way for sustained peace is an unwavering commitment to deliver justice to victims of all communities. The growing despair amongst victims requires urgent redress.

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