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.
Human Rights Council resolution 30 on “Promoting reconciliation, accountability and human rights in Sri Lanka” was adopted on 1 October 2015. It followed the formal presentation of the report of the Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL) at the Human Rights Council (see previous blog post – The Long Journey to Justice for Sri Lanka’s Victims) (Part I)).
Resolution 30 is the first to be passed with the support of the Government of Sri Lanka, in a series of resolutions on promoting reconciliation and accountability in Sri Lanka (19/2 of 22 March 2012, 22/1 of 21 March 2013 and 25/1 of 27 March 2014). The resolution draws upon the recommendations of the OISL report that address the multi-faceted repercussions of Sri Lanka’s vicious civil war. The wide-ranging recommendations include: security sector reform; return of private land; ending military involvement in civilian activities; a political settlement on the devolution of political authority; accountability for attacks on journalists and human rights defenders; and the repeal of specific legislation such as the Prevention of Terrorism Act. Yet, resolution 30 falls short in respect of a key OISL recommendation – the establishment of an ad hoc hybrid special court. Instead, it calls for a “Sri Lankan judicial mechanism” – a problematic proposal due to Sri Lanka’s abject track record of domestic accountability. The OISL itself was born out of the absence of a credible national process of accountability.
Justice for Sri Lanka’s victims is tethered to the success or failure of this proposed judicial mechanism. Several factors will be key to its ability to deliver a “credible justice process”. Genuine and sustained political will is of paramount importance. The reform of domestic legislation to enable the prosecution of international crimes is a priority. In his oral statement on Sri Lanka on 30 September 2015, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein warned of “the total failure of domestic mechanisms to conduct credible investigations, clarify the truth of past events, ensure accountability and provide redress to victims.” The resolution envisages a role for “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”. As the specific domestic legal processes for creating the judicial mechanism remain to be determined, a framework that harnesses these professionals’ expertise and provides a buffer from political interference will be a positive starting point. The integrity and reputation of domestic personnel selected to the mechanism will be another test.
Another critical corollary to this judicial mechanism is the proper application of robust witness protection legislation. The safety and security of victims and witnesses form the bedrock of any effective judicial process. Terrified witnesses will not speak. Those who courageously testify must have their personal safety and that of their family members guaranteed. This is particularly true in the case of Sri Lanka, where authorities have wielded the threat of reprisals as a weapon to silence victims, witnesses and activists. In the course of its work, the OISL received “persistent reports” of surveillance, threats, intimidation, harassment, and interrogation by security forces from human rights defenders and potential witnesses in Sri Lanka. Witnesses feared testifying or reporting violations. They provided consistent accounts of harassment and sometimes physical abuse by the military and police. Continue reading
The much-anticipated report of the Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL) provides a momentous opportunity for Sri Lanka to atone for the atrocities of its civil war.
The OISL was set up in March 2014 pursuant to Human Rights Council resolution 25/1 [pdf] to undertake a comprehensive investigation into alleged serious violations and human rights abuses by the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). On the basis of a “reasonable grounds to believe” standard, the OISL concluded that both parties to the conflict are likely to have committed war crimes and crimes against humanity.
The 280-page report (part 1 and part 2) documents a “horrific level of violations and abuses” that are “among the most serious crimes of concern to the international community as a whole.” Sri Lankans must now sever ties with this violent past by embracing accountability and reconciliation. Implementing the OISL’s recommendations will be the first step in this journey.
The OISL focussed on a period of 9 years (2002-2011) but its report traces the complexities of Sri Lanka’s 26-year civil war: the post-independence government policies that favoured the Sinhalese majority disadvantaged by colonialism – ostensibly offering them redress but effectively marginalising and radicalising segments of the Tamil community. Tamil separatists’ calls for a separate state began in the 1970s. In 1983, after the LTTE killed government soldiers, the communal violence of “Black July” set the country firmly on the warpath, though hostilities waxed and waned thereafter. In 2006, at least 520,000 Sri Lankans were displaced by the conflict – one of the largest displacement crises in Asia. The LTTE’s crushing defeat by government forces officially ended the conflict in May 2009.
As the final battles raged in 2009, civilians sought refuge in “safe zones” or “No Fire Zones”. They were neither safe nor spared fire. Government forces repeatedly shelled hospitals, humanitarian facilities and food distribution centres in these zones, although these were not used for military purposes. In one incident in April 2009, at least 50 IDPs (including children) were killed during the deliberate shelling of a clinic distributing a rare commodity – milk powder. On its part, the LTTE constructed military fortifications adjacent to areas surrounding IDP concentrations, and beat and killed civilians trying to escape the fighting. Trapped and targeted, civilians were deprived of medical supplies and starved due to restrictions placed on humanitarian assistance and access. Almost 300,000 IDPs who survived the war were detained in military-guarded camps in appalling living conditions.
These rampant violations in the final battles were a culmination of the wide-ranging abuses that marked the hostilities. First, unlawful killings – LTTE suicide bombers being a notorious trope of this conflict. Sri Lankan forces and linked groups also engaged in the widespread killings of civilians, politicians, journalists and humanitarian workers. As of 2013, Sri Lanka recorded one of the highest numbers of humanitarian workers killed globally. Second, extreme levels of disappearances – the second highest worldwide [pdf]. The majority of victims were individuals perceived to have links with the LTTE. Men were the main targets but women bore its devastating brunt as the survivors in culled families, looking for their loved ones in the face of constant intimidation. Continue reading