New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading

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The Long Journey to Justice for Sri Lanka’s Victims (Part II)

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 Long Journey to Justice for Sri Lanka’s Victims (Part I)

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

Increased prospects for Transitional Justice after the political transition in Sri Lanka?

Since the end of the Sri Lankan armed conflict in which the Liberation Tigers of Tamil Eelam (LTTE) were destroyed by the Sri Lankan armed forces in 2009, Sri Lanka was the archetype of a hard case for Transitional Justice. The Sri Lankan government of President Mahinda Rajapaksa adopted a completely intransigent posture by failing to credibly investigate the past. Instead, it set up flawed mechanisms resembling truth commissions in an attempt to ease international pressure on accountability. Unsurprisingly, these commissions largely exonerated the government of any systematic wrongdoing. In addition, the government brutally suppressed dissent, presided over the persecution of the Tamil and Muslim minorities and attacked local human rights activists who cooperated with UN mechanisms.

In this context, human rights campaigners within the country turned to the international community. In 2010, the UN Secretary General mandated a Panel of Experts (POE) to advise him on accountability in Sri Lanka. The Panel looked into allegations of international law levelled against both sides during the final phases of the armed conflict and found credible allegations of a wide range of violations of human rights and humanitarian law by both sides, some of which amounted to war crimes and crimes against humanity. Amid growing calls for further international action, the UN Human Rights Council took the significant step in Mach 2014 of mandating an OHCHR investigation into these violations. Despite these developments, prospects for international justice for human rights abuses and related crimes that took place during the war remained slim. Indeed, China and Russia’s strong support for the Rajapaksa regime appeared to preclude the prospect of a referral by the UN Security Council to the Prosecutor of the ICC. Even at the UN Human Rights Council which mandated the ongoing investigation, there was only limited support for decisive international action on Sri Lanka.

On January 8, against all odds, the Sri Lankan President Mahinda Rajapaksa was unseated by his former Minister of Health Maithipala Sirisena, who managed to rally a wide array of political parties around the defense of rule of law, transparency and democratic values. However, no consensus on post-war justice was found within this broad ad hoc alliance. While there is enthusiastic support for robust international action on accountability within the minority Tamil community which bore the brunt of the war, representatives of the majority Sinhalese community—about 80 percent of the country’s population—are mostly opposed to international trials. This explains why Sirisena—who needed a substantial if not majority share of the Sinhalese vote to secure victory at the presidential elections—vowed to protect all citizens from international tribunals. Nevertheless, during the campaign, the Sirisena camp indicated that issues of accountability for alleged war crimes will be dealt with domestically and hinted vaguely at the need for truth commissions, apologies and forgiveness.

Continue reading