BY Yolanda Foster – Amnesty International
Since the war ended in 2009 in Sri Lanka, there have been 2 major initiatives claiming to deal with the issue of accountability. One is domestic, the Lessons Learned & Reconciliation Commission (LLRC). The other is international – the UN Panel on Sri Lanka. I will first analyse the LLRC before turning to the Panel.
The Sri Lankan President, Mahinda Rajapaksa, established the LLRC in May 2010. It has had a number of hearings in Colombo and the north and east, concluding its sittings in January.
Thousands of victims came before the LLRC demonstrating that there is a desire for accountability within Sri Lanka but the fact remains that the LLRC had no mandate to act as an accountability mechanism. Its focus was on collecting public and expert perceptions about the root causes of ethnic conflict in Sri Lanka and recommending steps to promote communal reconciliation.
The Commission’s mandate did not require it to investigate alleged violations of human rights or humanitarian law or establish accountability for violations, and in five months of sittings these were not issues the LLRC pursued with any sustained interest. When individual testimony did include complaints of violations – such as enforced disappearances in northern Sri Lanka --
Commissioners did not probe the complaints. Recommendations by the Commission to date have been limited to problem solving, such as suggesting procedural reforms to help people to trace missing relatives, rather than investigating allegations of abuse or bringing perpetrators to justice.
Diplomats have acknowledged that Sri Lanka’s past track record on accountability was poor, that the LLRC’s mandate was unclear; that it lacked witness protection and potentially, independence. But some policymakers still claimed the LLRC might achieve some measure of success, owing in part to the Government’s strong political majority and international pressure. It is difficult however to imagine what sustains their conviction.
Domestic mechanisms could improve procedures but will not deliver justice
National commissions of inquiry have not worked as justice mechanisms in Sri Lanka; impunity for human rights violations persists despite decades of ad hoc inquiries. More than anything, the Sri Lankan government, which actively suppresses criticism and opposition, has not allowed Commissions to carry out their mandates independently. Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC) is no exception.
LLRC hearings in Colombo featured government officials and prominent citizens who were asked to comment on what went wrong with the 2002 cease-fire and how best to proceed with reconciliation. In early sessions, the Commission allowed government officials to repeat unchallenged claims that Sri Lanka followed a “zero civilian casualty policy” and that the final military offensive against the LTTE in the north was a “humanitarian mission.
Commissioners did not require officials to explain the government’s many public misrepresentations of the facts during the war. The most disturbing of these are the government’s repeated claims that there were under 100,000 civilians left in the Vanni at the beginning of 2009 when officials later conceded there were some 300,000 and that the security forces were not using heavy weapons in civilian areas when the military eventually admitted they were.
Sittings in the north and east proved to be different in tone. There, almost despite itself, the LLRC process did expose important evidence of abuse. Thousands of civilians came forward when the Commission announced it would hold hearings in former conflict areas -- some at great personal risk (most were told to submit their complaints in writing due to lack of time). Many were Tamil women seeking news of missing relatives believed to have been taken into the custody of the security forces.
For these women the LLRC was a kind of catharsis - an opportunity to share their suffering but sadly as some have told Amnesty, without real redress. Some alleged serious crimes on the part of state forces or the LTTE but the Commission showed little interest in investigating their allegations in depth. The sessions were short; commissioner’s responses to the witnesses were often perfunctory, and they asked few follow-up questions, often merely promising to forward written complaints to relevant officials.
Reports of northern proceedings describe a Commission that was ill-prepared to deal with the large numbers of civilians coming forward with complaints: timeframes to hear testimony were too short; venues sometimes lacked seating -- forcing people who had travelled long distances to testify to sit on the ground; there was inadequate Tamil translation and preference was given to more prominent community leaders giving evidence over ordinary people.
In November, people who came forward to give evidence before the Commission in Kayts Island, Jaffna, were reportedly threatened by armed men alleged to be members of the Eelam People’s Democratic Party (EPDP). In subsequent sessions there were reports that witnesses and Commissioners were photographed by members of the security forces
If the Sri Lankan government is serious about reconciliation it must be serious about truth and justice. Any mechanism claiming to address public grievances about the treatment of civilians during the war must be given adequate scope and resources to allow for individuals to receive a fair hearing and sufficient authority to ensure redress. It must also treat all witnesses in a safe and humane fashion – something that is impossible without good witness protection.
The Commission’s interim recommendations, sent to the President in September, did not reflect concern for the protection of witnesses or the gravity of the crimes some alleged. There was no recommendation aimed at bringing perpetrators of abuse to justice.
The LLRC did call for practical measures that could help families trace detainees, but none of these recommendations was new. The Commission recommended that the government take measures to speed disposal of detention cases – something that is badly needed, but in fact the Attorney General has been promising for years. It recommended that family members be informed when detainees were moved from one place to another; this should have been happening routinely.
The Commission also recommended administrative changes to allow use of one's mother tongue in business with government -- something that has long been mandated by law. In October 2010, the Sri Lankan Government announced that it would appoint an Inter-Agency Advisory Group to facilitate the implementation of these recommendations. The Inter-Agency Advisory Group said it would also consider the possibility of an assurance that private land in former conflict areas would not be used by government agencies, and the need to disarm remaining armed groups carrying illegal weapons. To Amnesty International’s knowledge no policy change has been announced on either issue.
Given the challenges facing the LLRC Amnesty does not feel there is a credible domestic process of accountability which is why we have supported the setting up of a UN Panel as a first step towards international justice.
History of the UN Panel
The United Nations General Secretary appointed a panel of experts to advise him on accountability in June 2010. The focus of the panel concerns any alleged violations of international human rights and humanitarian law during the final stages of the conflict. The panel officially began its work on 16 September 2010 and is looking into applicable international standards and comparative experience with regards to accountability processes. It is important, as we sit here at the Human Rights Council, to remember that the UNSG hopes that the panel will give the United Nations a constructive role in supporting accountability in Sri Lanka. In October 2010 the panel invited individuals and organisations to make submissions and as a result, Amnesty International understands that the Panel has received thousands of submissions despite a lack of access to Sri Lanka. Due to the high volume of submissions, the UN Panel has delayed the handover of the report until the end of March.
Domestic versus international mechanisms of accountability
There is often a tension between calling for domestic or international mechanisms of accountability and there should be debate about what is best. In most cases, Amnesty International would always prefer to support domestic processes. Given what we know, however, of the history of ad hoc Commissions in Sri Lanka we feel there is no option but to call for an international investigation. In this context we launched a global campaign to ask the United Nations to support victims in their struggle for truth and justice by setting up an independent international investigation. This campaign collected over 55,000 signatures which we delivered 2 weeks ago to the UNSG`s office.
When I travelled to New York in February, to handover the petitions, I was accompanied by Dr Manoharan. His son Ragihar was killed by the security forces in the East of Sri Lanka in January 2006. Dr Manoharan expected the Sri Lankan authorities to take action. He came forward to act as a witness. He wanted the domestic criminal justice system to show that it would hold the killers of his son to account. This system failed. In fact there was executive interference in the cover up of the Trinco 5 case, Dr Manoharan himself received threats and he was forced to flee the country to seek safety. Despite co-operating with a domestic Commission of Inquiry (2006) mandated to investigate the Trinco 5 case, Dr Manoharan still waits for the Sri Lankan state to acknowledge the security forces were complicit with the killing of his son, “an innocent one”, as he wife fondly remebers Ragihar
Victims’ families like Dr Manoharan have had to wait too long for justice in Sri Lanka. They no longer believe in the false promises of Commissions, they expect the United Nations to take some responsibility in supporting a genuine process of accountability inside Sri Lanka
In the debates between domestic and international investigation we shouldn’t lose sight of ongoing abuses. New reports of abductions, enforced disappearances and killings in northern Sri Lanka have had a profound effect on public security in that region and people’s ability to heal and rebuild; police killings of criminal suspects in other parts of the country are also on the rise.
Amnesty’s call for a genuine process of accountability is not limited to what happened in the final months of the war. We believe the people of Sri Lanka deserve the right to have a mechanism that can tackle human rights abuses if their own criminal justice system has become so degraded by years of shielding perpetrators in the context of executive interference.
In this regard, we expect the United Nations to make good on its responsibility to support international justice. The report of Ban Ki Moon’s Panel of Experts on Sri Lanka, now scheduled to be handed over at the end of March must be issued publicly. The Human Rights Council and other UN bodies should consider its findings carefully and support Sri Lankans in their struggle for truth, justice and healing.
(Yolanda Foster is Amnesty International’s chief researcher on Sri Lanka)