Full Text: Evaluating the effectiveness of measures to investigate incidents during conflict in ...
Report To Congress on Measures Taken by the Government of Sri Lanka and International Bodies To Investigate Incidents During the Recent Conflict in Sri Lanka, and Evaluating the Effectiveness of Such Efforts
Office of War Crimes Issues
Report
August 11, 2010
This report is submitted pursuant to the Joint Explanatory Statement accompanying the Consolidated Appropriations Act, 2010 (P.L. 111-117), which directed “the Secretary of State to submit, not later than 180 days after enactment of this Act, a report supplementing the Secretary’s October 21, 2009, report on crimes against humanity in Sri Lanka detailing what, if any, measures have been taken by the Government of Sri Lanka and international bodies to investigate such incidents, and evaluating the effectiveness of such efforts.”
I. Background
The October 2009 report to which this Statement refers compiled over 300 reports of incidents alleged to have occurred during the final months of the 25-year armed conflict between the Government of Sri Lanka (GSL) and the Liberation Tigers of Tamil Eelam (LTTE) that may constitute violations of international humanitarian law (IHL) or crimes against humanity and related harms.[1] The October 2009 report did not, nor was it intended to, provide a comprehensive portrayal of the conflict. Instead, that report focused on alleged incidents that occurred during a period of especially intensive fighting from January through May 2009.
The categories of reported incidents detailed in the October 2009 report included allegations of forcible recruitment and unlawful use of children in armed conflict; harms to civilians and civilian objects resulting from shelling and other combat activities; killing of captives or combatants seeking to surrender; enforced disappearances; and the denial of food and medical supplies to civilian populations.[2] Pursuant to the Congressional directive, the current report details and assesses the effectiveness of any efforts undertaken by the GSL and international bodies to investigate the aforementioned types of alleged violations of international law and related harms.
II. Executive Summary
•Since the release of the October 2009 report, the principal measures the Government of Sri Lanka has taken to investigate incidents of alleged violations of international law have been the appointment of two commissions, the “Group of Eminent Persons” and the “Commission on Lessons Learnt and Reconciliation” (LLRC). The Department of State concludes that the Group of Eminent Persons was ineffective. The LLRC is less than halfway through its six month term (it was established May 14, 2010). Initial actions taken by the Government of Sri Lanka, including aspects of the naming of commissioners and publication of terms of reference detailed in this report, have raised concerns regarding the LLRC’s mandate and its independence. Accordingly, the Department of State will continue to evaluate whether the LLRC is acting in accordance with best practices derived from broad experience as well as utilizing its powers as described in the Special Presidential Commissions of Inquiry Law of 1978.
•A three-person Panel of Experts, which the United Nations has stated is not an investigatory body, was appointed by UN Secretary General Ban Ki-moon on June 22, 2010, to advise him on the implementation of the commitment on human rights accountability made in a Joint Statement issued by Sri Lankan President Rajapaksa and UN Secretary General Ban in May 2009. Following a disruptive protest at the United Nations’ offices in Sri Lanka attributed to a senior Government of Sri Lanka official, the U.S. Government again urged the GSL to take advantage of this resource.
•Both the Government of Sri Lanka and the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions analyzed a video that purported to show Sri Lankan Army soldiers executing two bound and nude Tamil captives. The Government of Sri Lanka concluded that the video was “fake”; the UN Special Rapporteur concluded that there is strong evidence to suggest the video is authentic.
III. Relevant principles for assessing effectiveness
In evaluating the effectiveness of measures taken by the GSL and international bodies[3] to investigate incidents detailed in the previous report submitted to Congress, the Department of State has taken into account several considerations. First, the GSL must abide by its obligations under international law, which can include subjecting to criminal processes individuals credibly alleged to have committed certain serious violations of international law. Pertinent treaties to which Sri Lanka is a party include the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), and the 1949 Geneva Conventions, Common Article 3 of which applies to non-international armed conflicts, as well as relevant customary international law obligations, which in the area of international humanitarian law include the principles of distinction and proportionality to protect innocent civilians from harm.
There are a variety of ways in which a government may undertake effective investigations and other accountability processes. While some international law conventions call for criminalization of certain human rights violations and serious violations of international humanitarian law,[4] other routine administrative and special investigative processes, such as commissions of inquiry (CoI), can play an important role in establishing a factual record of events. However, such commissions may not be an adequate substitute for prosecutions.
Although CoIs and other investigative bodies are often implemented at the national level, in some instances governments seek international participation to bring specialized expertise into, and help foster public confidence in, so-called “hybrid” investigations. Fully internationalized processes undertaken without the relevant government’s consent have generally been pursued by the international community only when the State concerned lacks the capacity, political will, or both, to undertake an independent, credible, and effective inquiry itself.
Whether domestic, hybrid, or international, to be credible and effective, investigative processes should operate consistent with best practices derived from extensive experience. Because the principal form of investigative process instituted to date by the GSL is a CoI, the rest of this section focuses on best practices for such commissions, many of which are outlined in a statement by the United States Ambassador to the United Nations, Susan Rice, on May 10, 2010.[5] During a press appearance with Sri Lankan External Affairs Minister G.L. Peiris during his May visit to Washington, Secretary of State Hillary Clinton welcomed President Rajapaksa’s establishment of the commission and conveyed U.S. expectations that the commission would follow established best practices as laid out by U.S. Ambassador Susan Rice.
The following discussion, which elaborates on and is consistent with the Rice and Clinton statements, is not intended to present a comprehensive list of criteria for establishing a CoI but rather to highlight several core areas that should be considered in assessing such a process.
1. Independence and Competence—A CoI should be independent, impartial and competent. It should be established in consultation with all communities affected by the subject of its inquiry and be composed of members who do not have, and are not perceived as having, an interest in the outcome of the commission’s work. The commission’s members must have the requisite expertise and competence to carry out the mandated inquiries effectively. For example, if the core allegations to be examined include violations of the laws of war, commissioners should include experts in international humanitarian law. Likewise if sexual and gender-based violence is suspected and it will therefore be important to encourage victims to provide testimony, it may be beneficial to have gender-balanced commission members and/or staff.
2. Adequate Mandate and Authority—A CoI’s mandate should be adequate to empower and direct the commission to evaluate the harms that may have occurred in light of domestic and international law. The mandate should not restrict the commission’s scope in ways that compromise its ability to perform the function for which it was established (for example, by prohibiting it from examining certain categories of individuals or types of alleged violations of international law) and should provide the necessary authority to obtain all information the commission may need to develop its findings, including the power to compel production of documents and witness testimony from State authorities, and to examine confidential information, where appropriate.
3. Witness and CoI Protection—To help ensure that commission members can act independently and that witnesses are able to testify without fear of reprisal, both members and witnesses should enjoy adequate protection and be provided security where necessary. Adequate protection may include holding closed hearings if and when necessary. Adequate protection and security are particularly important when CoIs are established in countries that have recently emerged from conflict or when State military or security services are alleged to be complicit in crimes that the commission will examine. The credibility of a CoI’s inquiry and findings will be determined in part based on the extent to which it is able to obtain relevant testimony from victims and witnesses. To this end, a witness protection program should have adequate financial and personnel resources, with an independent protection division (rather than relying on regular domestic police forces), and should be open to foreign expertise and assistance. Officials who leak information about protected witnesses should be investigated and, if appropriate, subjected to criminal proceedings.
4. Adequate Resources—CoIs should receive adequate (1) resources, including sufficient and transparent funding; (2) logistical support, including transportation, office space and office equipment; and (3) human support, including personnel with the necessary technical expertise, to carry out their work. Resource levels for a commission are often considered an indicator of the real political will of a government to address the matter that the commission was established to examine.
5. Public Report—A CoI should issue a public and timely report of its findings, including its recommendations. Although some information provided to a CoI may require confidentiality, this should not prevent the commission from issuing as complete a public version of its findings and recommendations as possible.
6. Government Response—Finally, a key indicator of a CoI’s effectiveness is whether the government responds in a timely and transparent fashion to its recommendations and undertakes prosecutions and takes other accountability measures as appropriate.
IV. Measures Taken by the GSL
Since the October 21, 2009 release of the Department of State’s “Report to Congress on Incidents during the Recent Conflict in Sri Lanka,” the principal measures the Government of Sri Lanka has taken to investigate incidents of alleged violations of international law have been the appointment of two commissions, the “Group of Eminent Persons” and the “Commission on Lessons Learnt and Reconciliation” (LLRC). The first did not produce any discernible results; the second, established in May 2010, has only recently commenced operations and is scheduled to provide its findings by November.
The only other investigative measure undertaken by the GSL that falls within the scope of this report and of which the Department of State is aware is an analysis of a video purporting to show Sri Lankan Army members engaged in the extra-judicial killing of bound captives. Sri Lankan officials have not informed the Department of State of any other investigations or prosecutions conducted in relation to the over 300 alleged incidents catalogued in its October report to Congress.
1) Group of Eminent Persons
Overview
Immediately following the release of the October 2009 Department of State report to Congress, Sri Lankan President Mahinda Rajapaksa appointed a “Group of Eminent Persons” to look into the allegations in the U.S. report and prepare a report for him with its recommendations. The group’s report was initially due to President Rajapaksa on December 31, 2009, but the due date was subsequently delayed to April 2010 and then again to July 2010. The group did not submit a report and has been subsumed by the recently-formed Commission on Lessons Learnt and Reconciliation (LLRC).
Evaluation of effectiveness
The Department of State concludes that the Group of Eminent Persons was ineffective. The Department of State received conflicting reports about the progress of the Group’s inquiry,[6] and confirmed in May that it had not been active for months and that its mandate had been subsumed by the new commission. The Department of State is not aware of any findings or reports of the Group. The Group did not appear to investigate allegations or to make any recommendations pursuant to its mandate.
2) Lessons Learnt and Reconciliation Commission (LLRC)
Overview
On May 4, 2010, Sri Lankan Prime Minister D.M. Jayaratne informed Parliament that the GSL intended to establish a broad-based "reconciliation commission" to cultivate ethnic unity between Sinhalese and Tamils, award compensation to war victims, and prevent future discontent among the minority population along the lines of that which led to the rise of the Eelam independence movement and the LTTE. The Ministry of Defense announced on May 6 that the new commission would “search for any violations of internationally accepted norms of conduct in such conflict situations, and the circumstances that may have led to such actions, and identify any persons or groups responsible for such acts.”[7]
On May 15, President Rajapaksa issued a warrant to establish an eight-member commission under the Special Presidential Commissions of Inquiry Law of 1978.[8] The warrant did not explicitly direct the commission to identify violations of internationally accepted norms in conflict situations or to identify those responsible. Instead, the Lessons Learnt and Reconciliation Commission was charged to “inquire and report on the following matters that may have taken place during the period between 21st February 2002 and 19th May 2009, namely:
i. the facts and circumstances which led to the failure of the ceasefire agreement operationalized on 21st February 2002 and the sequence of events that followed thereafter up to the 19th May 2009;
ii. whether any person, group, or institution directly or indirectly bear responsibility in this regard;
iii. the lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence;
iv. the methodology whereby restitution to any person affected by those events or their dependents or to heirs, can be effected;
v. the institutional administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of this Warrant.”[9]
The warrant also appointed the commission members and required the commission to transmit a report to the President within six months. Since then, the Government of Sri Lanka has clarified the mandate of the LLRC in private conversations with U.S. Government officials (although it has not yet done so publicly).
On June 10, the Sri Lankan Ministry of Defense announced that President Rajapaksa had met with the members of the Commission on Lessons Learnt and Reconciliation on June 4. The Ministry’s announcement said that the President had informed commission members they had “the responsibility of acting in a forward-looking manner, through focus on restorative justice designed to further strengthen national amity.” The statement further noted that the President encouraged the members to “utilize their wide-ranging mandate to fulfill this objective, while always safeguarding the dignity of Sri Lanka.” Members were also briefed on the financial, organizational, and secretarial support in place, and were told that the facilities of the Kadirgamar Institute for International Relations and Strategic Studies in Colombo, an international affairs think tank functioning under the Ministry of Foreign Affairs, were available for their work.[10]
Media outlets reported on July 3 that commission members held regular meetings in the month of June, initially to focus on institutional matters to make preparations for public hearings. It was also reported that the LLRC received an initial allocation of 10 million rupees, expected to commence public hearings in August, and has published notices in three languages calling for written representations to the commission by August 18 on matters related to its mandate.[11]
Evaluation of effectiveness
While the defeat of the LTTE and the end of the civil war, coupled with the government’s sizeable electoral majority, offers the GSL an opportunity to ensure that this latest CoI effort proves more successful than past efforts, evaluating the effectiveness of the CoI should first take into account the history of failings of a series of past CoIs established in Sri Lanka. For example, a 2006 commission charged with investigating sixteen allegations of serious human rights violations ultimately partially investigated only seven of the cases and did not identify any of the perpetrators. An International Independent Group of Eminent Persons (IIGEP) invited by President Rajapaksa to observe the local commission resigned after concluding that the GSL lacked the political will to properly pursue the investigations and that the commission was not meeting international standards in areas such as witness protection, transparency, and financial commitment to the commission. The IIGEP was especially critical concerning a severe conflict of interest by the Attorney General’s office, which both represented the GSL and led questioning during hearings.[12] The then incumbent Attorney General, who in that capacity was criticized for obstructing the IIGEP’s work, has been appointed as Chairman of the LLRC.
GSL officials have assured the Department of State that the LLRC will conduct itself according to the principles laid out by Ambassador Rice and Secretary Clinton. However, the terms of reference are ambiguous as to what types of harms they cover and whether the investigation is linked to violations of international law. While the terms of reference do not explicitly state that the LLRC will investigate alleged violations of international law, they also do not explicitly rule them out.
While the LLRC has only just begun its work, there are signs of initial activity. Terms of reference have been established, members selected, facilities provided, and funding allotted. Members have held initial meetings and announced public hearings in affected areas. Yet some initial steps have raised concerns, which the United States will continue to monitor as the LLRC moves forward in its work. These include questions concerning the independence and impartiality of some members of the commission, including the former Attorney General who served in that capacity during the 2006 CoI and is now chair of the new LLRC. His relationship to the government and his involvement in the failure of the previous commission, which also sought to investigate incidents of alleged government involvement in violations by security forces, could compromise the independence and impartiality of the LLRC.
In addition to monitoring developments, the Department of State will continue to evaluate whether the commission is acting consistent with other best practices derived from broad experience as well as utilizing its powers as described in the Special Presidential Commissions of Inquiry Law of 1978. Specific benchmarks for the commission associated with such an evaluation may include, but not be limited to, the list of criteria from Section III, namely:
•Independence and Competence:
•Taking steps to ensure the independence and impartiality of commission members, so that the conflicts of interest alleged regarding the conduct of past CoIs do not resurface
•Consulting with all communities, including the minority Tamil community, affected by the scope of the inquiry
•Ensuring that CoI members are identified who have the requisite expertise and competence to carry out the mandated inquiries effectively
•Adequate Mandate and Authority:
•Publicly clarifying the specific avenues of inquiry the CoI will pursue in the context of its broad mandate, including affirmatively stating that it will investigate the specific allegations of violations of international law from January to May 2009
•Using its granted powers to compel testimony if necessary
•Taking testimony from local government officials in the North as well as from current and former senior government and military officials[13]
•Requesting and receiving documentation, including classified information, as appropriate, from federal government agencies and the military
•Considering information, analysis, and recommendations from various expert resources, which have become available since the Department’s October 2009 report (including the Panel of Experts appointed by the United Nations Secretary-General in June)[14]
•Witness and CoI Protection:
•Establishing an effective witness protection program
•Holding private hearings in addition to public hearings as necessary to encourage witnesses to provide testimony
•Seeking testimony from persons abroad,[15] in particular from witnesses and victims who were located in the North from January to May 2009
•Investigating and prosecuting, as appropriate, individuals who leak information about protected witnesses
•Adequate Resources:
•Obtaining adequate logistical support, including transportation, office space, and equipment
•Hiring investigators and other qualified support staff that include women and minorities
•Hiring independent lawyers not connected to government agencies that may have an interest in the outcome of the commission’s work
•Public Report: Issuing a timely public report of CoI findings and recommendations
•Government Response: The degree to which the government responds to the CoI’s recommendations
Legislation regarding witness protection was introduced in the last session of Parliament, and the GSL has said it will be re-introduced during the current parliamentary session. Immediate establishment of a viable mechanism for witness protection, irrespective of whether Parliament passes related legislation, will be crucial to the effectiveness of the LLRC. Experience in other countries has shown that absent such a program, witnesses, especially those victimized by recent conflict, are often unlikely to come forward due to fears of arrest, personal harm, or harm to their families. In Sri Lanka, those who come forward publicly to speak to or criticize government actions also run the risk of being branded LTTE sympathizers, a legitimate concern as shown by certain statements of GSL officials noted below,[16] heightening the likelihood of reprisal. Provided other concerns noted in this section are also addressed, a credible witness protection program could serve to help build confidence among Sri Lankans in the credibility of the commission and encourage witnesses and victims to come forward, both of which are necessary conditions for the LLRC to be effective.
In addition, the extent to which the GSL consulted the Tamil community during the establishment of the commission and selection of its members is unclear. The extent to which such consultations took place or were sufficient could impact whether the LLRC adequately investigates the concerns of those communities and receives broad-based support across affected communities for its inquiry and ultimate findings and recommendations. Consultations with the Tamil community going forward on the work of the LLRC would help address any insufficient engagement with them during the establishment phase.
Public statements by senior officials, such as President Rajapaksa’s brother, Defense Secretary Gotabhaya Rajapaksa, have prompted concern that the government may limit the scope of the LLRC’s inquiries and/or access to witnesses or otherwise undermine its effectiveness and that the GSL may not be committed to complying with LLRC recommendations. During a BBC HARDtalk interview, the Defense Secretary threatened to execute former Army chief General Sarath Fonseka for treason following statements by General Fonseka that senior GSL officials may have issued orders that could be construed as war crimes[17] and that he would be willing to testify before an international commission about the conduct of security forces.[18] In early February 2010, the Defense Secretary stated that he would not allow “any investigations in this country. There is no reason. Nothing wrong happened.”[19] These statements could undermine the effectiveness and credibility of the LLRC and are concerning to the United States.
V. Measures taken by international bodies
1) United Nations Secretary-General Advisory Panel
Overview
On June 22, United Nations Secretary-General Ban Ki-moon appointed a three-person Panel of Experts to advise him on the implementation of the commitment on human rights accountability made in a Joint Statement issued by President Rajapaksa and Ban during the latter’s May 2009 visit to Sri Lanka. [20] The panel members are Marzuki Darusman of Indonesia, Yasmin Sooka of South Africa, and Steven Ratner of the United States. The panel will look into the modalities, applicable international standards, and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka. The Secretary-General has emphasized that the primary responsibility for investigating alleged violations during the conflict in Sri Lanka rests with the GSL. The United Nations has stated that the panel is not tasked with investigating individual allegations of misconduct.[21] Indeed, the Secretary-General’s spokesperson noted in a statement that “the panel will be available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing the commitment.” [22]
The United States welcomed the appointment of the UN Panel of Experts and strongly urged the GSL to take advantage of its expertise. France, Norway, the United Kingdom, Sweden and others have similarly come out in support of international involvement with respect to moving forward with accountability in Sri Lanka, including strong statements of support for the UN Panel of Experts. Sri Lankan Minister of External Affairs G.L. Peiris, however, issued a response calling the panel “an unwarranted and unnecessary interference with a sovereign nation.”[23] Russia and China also criticized the Secretary-General’s decision. The Sri Lankan External Affairs Minister announced that members of the panel would not be granted visas to go to Sri Lanka (were they to apply)[24] and subsequent demonstrations – orchestrated by a Cabinet minister – at the UN compound in Colombo on July 6-9, 2010, that disrupted the normal functioning of the UN offices suggest the GSL is disinclined toward utilizing the Panel of Experts as a resource, though the United States continues to urge it to do so.
Evaluation of effectiveness
It is too soon to assess the ultimate effectiveness of the Panel of Experts. There has been initial progress, with a mandate established, members selected, and funding source determined. While it seems unlikely at this time that the GSL will utilize the panel’s expertise, it appears its mandate is such that its advisory role for the Secretary-General will not necessarily be compromised by being unable to travel to Sri Lanka for meetings with GSL officials. Additionally, if the protests at the UN compound in Colombo are indicative of a willingness by officials within the GSL to now and in the future seek to intimidate and disrupt the work of local UN officials, it would suggest a determination on the part of the GSL not to cooperate with the panel.
VI. Other investigative measures by the GSL and international bodies
1) Review of alleged extra judicial killing video:
Overview
In late August 2009, UK Channel 4 News broadcast a video that purported to show Sri Lankan Army soldiers executing two bound and nude Tamil captives. Journalists for Democracy in Sri Lanka, the original source of the video, claimed that the killings had been filmed in January 2009 by a Sri Lankan soldier using a mobile phone camera.
The GSL commissioned four experts to evaluate the authenticity of the footage, and on September 7, 2009, issued a response that set forth the experts’ conclusion that the video’s most sensational elements were fabricated.[25] On September 15, 2009, the GSL reported to the UN Human Rights Council claiming that four separate investigations scientifically determined that the video is “fake.”[26] The “Consolidated Response of the Government of Sri Lanka to the Telecast by Channel 4 News of the United Kingdom on 25 August 2009 of a Video of Supposed Extra-Judicial Executions in Sri Lanka” explained that the Government’s conclusion was based upon the following factors:
•The discharged weapon used in the video showed no recoil.
•The lack of audio and video synchronization showed manipulation of the video footage.
•The second victim moved unnaturally after being shot.
•Wind could be heard in audio but not seen in the video.
•The video was probably recorded on a digital camcorder, not on a mobile phone.
Philip Alston, the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions, welcomed the GSL review of the video and attention to the issue. He noted in particular the promptness of the GSL’s action, which occurred within two weeks of the information becoming available. However, Alston stated that he was not in a position to conclude that the GSL’s investigation was thorough, as he had not seen the original version of three of the four expert investigations. He also expressed concern regarding the impartiality of the GSL experts, two of whom were members of the Sri Lankan Army (the entity whose actions had been called into question).[27]
Professor Alston commissioned a separate independent group of forensic experts to analyze the video, and in January 2010 issued a report produced by these experts. Their findings countered those of the GSL experts, and concluded that there is strong evidence to suggest the video is authentic. Specifically, they concluded:
•The discharged weapon had a visible recoil consistent with firing live ammunition.
•Audio and video can be unsynchronized based on several variables, and the synchronization in the video was well within acceptable limits.
•The second victim’s movement was entirely consistent with the way in which he apparently was shot.
•Several places in the video showed clear evidence of wind.
•The metadata retrieved from the video was consistent with multimedia files produced by mobile phones with video recording and would have been very difficult to alter.[28]
Evaluation of effectiveness
The Department of State notes the concerns of the Special Rapporteur about possible conflicts of interest and notes that best practices would dictate that such an inquiry should have been undertaken by individuals without an interest in the outcome of the forensic analysis.
VII. Conclusion
The most significant steps taken by the Government of Sri Lanka to investigate alleged crimes against humanity, violations of international law, and related harms have been its establishment of two commissions. The first, the Group of Eminent Persons, concluded its work without issuing a report and, in the judgment of the Department of State, was ineffective. The Department of State welcomed the establishment of the second body, the Lessons Learnt and Reconciliation Commission. This report notes several aspects of its constitution and mandate that are of concern. Until further steps are taken, it is too early to determine whether the LLRC will be effective. The United States encourages the Government of Sri Lanka and the LLRC to strive to act in accordance with best practices derived from broad experience and outlined in this report.
[1] Like the present report, the October 2009 report was prepared by the Department of State in accordance with a Congressional directive. The Joint Explanatory Statement accompanying the Supplemental Appropriations Act, 2009 (P.L. 111-32), provided in pertinent part:
The conferees direct the Secretary of State to submit a report to the Committees on Appropriations … detailing incidents during the recent conflict in Sri Lanka that may constitute violations of international humanitarian law or crimes against humanity, and, to the extent practicable, identifying the parties responsible.
[2] The report did not reach legal conclusions as to whether the incidents described constituted violations of IHL, crimes against humanity or other violations of international law, nor did it reach conclusions concerning whether the alleged incidents actually occurred.
[3] For purposes of this report, “international bodies” are defined to be United Nations agencies, offices, and entities.
[4] See, e.g., Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, arts. 4.1, 7.1, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987).
[5] In that statement, Ambassador Rice said:
The U.S. Government welcomes President Rajapaksa’s announcement of his intention to establish a Commission on Lessons Learned and Reconciliation to examine key aspects of the recently ended conflict in Sri Lanka and his acknowledgment in doing so that accountability for serious violations of international humanitarian law is a crucial pillar of national reconciliation and the rule of law. Experience in other countries has shown that commissions of inquiry can play a valuable role in advancing accountability when they are appropriately constituted and enjoy broad public support. Particularly important in this regard, broad experience has shown that to be effective in advancing accountability and reconciliation, commission members should be and be perceived as independent, impartial and competent; their mandate should enable them fully to investigate serious allegations of violations and to make public recommendations; commission members and potential witnesses must enjoy adequate and effective protection; the commission must receive adequate resources to carry out its mandate; and the Government should undertake to give serious consideration to its recommendations. We hope the commission will also reflect the desires and requests of the citizens of Sri Lanka, who were the primary victims of the conflict. Being responsive to their needs will be an important measure of the commission’s success. In light of these general principles, we would welcome the Sri Lankan Government's commitment to give the Commission on Lessons Learned and Reconciliation a mandate to probe violations of international standards during the final stages of the conflict and to identify those responsible and, we would expect, to make appropriate public recommendations based on its findings.
“Statement by U.S. Ambassador Susan E. Rice on Sri Lanka’s Announcement of a Commission on Lessons Learned and Reconciliation,” USUN PRESS RELEASE # 083, May 10, 2010, http://usun.state.gov/briefing/statements/2010/141657.htm.
[6] For a publicly available report, see, e.g., http://in.reuters.com/article/idINIndia-48432720100512.
[7] http://www.defence.lk/new.asp?fname=2100506_04.
[8] Under article 2(4) of the Commissions of Inquiry Law, “It shall be lawful for the President to state in the warrant the terms of reference of the commission in general terms and it shall be competent for the commission to determine the scope of the inquiry and to select specific matters which, in the opinion of the commission, should be inquired into and reported upon”. Under article 7, the commission has power to “(a) procure and receive all such evidence, written or oral, and to examine all such persons as witnesses, as the commission may think it necessary or desirable to procure or examine; (b) to require the evidence (whether written or oral) of any witness to be given on oath or affirmation….” Article 12 relates the procedures for failure to obey summons to give evidence before a commission.” Special Presidential Commissions of Inquiry Law of 1978, http://www.commonlii.org/lk/legis/consol_act/spcoi9504.pdf.
[9] http://www.defence.lk/new.asp?fname=20100517_07.
[10] http://www.defence.lk/new.asp?fname=20100605_05.
[11] “Sri Lanka approves appointment of Lessons Learnt and Reconciliation,” http://www.colombopage.com/archive_10B/May 13_1273763794CH.php. “Sri Lanka’s Reconciliation Commission to hear from people in conflict-affected areas,” http://www.colombopage.com/archive_10B/Jul03_127816557CH.php.
[12] See statements and report of the International Independent Group of Eminent Persons at http://sitesatrisksl.wordplay.com/category/iigep.
[13] Some former Sri Lankan officials have made public statements. For example, on July 10, 2009 at the margins of a Non-Aligned Movement summit in Egypt, former Sri Lankan General Fonseka reportedly stated, “Our soldiers have seen in life the kind of destruction carried out by those people before they decided to come carrying a white flag. Therefore, they carried out their duties. We destroyed anyone connected with the LTTE.” (http://www.lankanewsweb.com/news/EN_2009_07_18_005.html.) On December 13, 2009 in an interview with The Sunday Leader, Fonseka said that information in the final days of the war was not conveyed to him, and he later learned that [former Senior Presidential Advisor and current Minister of Economic Development] Basil Rajapaksa conveyed to Gotabhaya Rajapaksa, who in turn spoke to Brigadier Shavendra Silva, Commander of the Army’s 58th Division, giving orders not to accommodate any LTTE leaders attempting to surrender and that “they must all be killed.” (“Gota ordered them to be shot,” The Sunday Leader, December 13, 2009.) On February 8, 2010 the BBC reported that General Fonseka was arrested at his office in Colombo, and earlier in the day he had said on the subject of war crimes, “I am definitely going to reveal what I know, what I was told and what I heard. Anyone who has committed war crimes should definitely be brought into the courts.” (“Sri Lanka election loser Sarath Fonseka arrested,” BBC News, February 8, 2010, http://news.bbc.co.uk/2/hi/south_asia/8504882.stm.) He made a similar statement on May 5, 2010 to reporters inside Parliament, “I will go out of my way to expose anyone who has committed war crimes. I will not protect anyone, from the very top to the bottom.” (Sri Lanka ex-army chief vows to expose war crimes,” AFP, May 6, 2010.)
[14]The Department of State does not take a position on the accuracy of recent inquiries, findings, or specific recommendations of international NGOs, media outlets, or other sources. However, it is notable that since the release of the Department’s October 2009 report, new information has come to light, and potential witnesses with potentially relevant testimony have stated a willingness to provide testimony. For example, in a certified deposition, one former senior Sri Lankan Army officer has provided currently unsubstantiated background and exculpatory and inculpatory information regarding military chain of command, treatment of prisoners, avoidance of civilian targets, disappearances, and the 2006 commission of inquiry. The former officer said that government policy was to avoid churches, hospitals, and schools. He also said that colleagues had informed him that now deceased LTTE leader Prabhakaran’s twelve-year-old son was killed along with five escorts after surrendering, although he admitted he did not know whether Defense Secretary Gotabhaya Rajapaksa or General Fonseka had ordered them killed. The former officer also said that the 2006 death of five students in Trincomalee was directed by a senior superintendent of police and carried out by a special task force.
[15] Given the time and expense incurred by traveling to obtain information abroad, some commissions have permitted the use of written and video testimony.
[16] See footnote 18.
[17] See footnote 13.
[18] “Fonseka threatened with execution,” BBC, June 6, 2010.
[19] “Fighting impunity in Sri Lanka,” Andrew Wander, http://englishaljazeera.net/focus/2010/05/20105186355957306.
[20] http://www.un.org/News/Press/docs/2009/sg2151.doc.htm.
[21] "Ban urges Sri Lanka to normalize conditions around UN office in Colombo," July 9, 2010, http://www.un.org/apps/news/story.asp?NewsID=35286&cr=sri-lanka&Cr1.
[22] http://www.un.org/apps/news/printnews.asp?nid=35099.
[23] http://xinhuanet.com/english2010/world/2010-06/24/c_13367689.htm.
[24] “Sri Lanka Rules out Visas for UN War Crimes Panel,” www.alert.net.org/thenews/newsdesk/SGE65NOAJ.htm.
[25] “Consolidated Response of the Government of Sri Lanka to the Telecast by Channel 4 News of the United Kingdom on 25 August 2009 of a Video of Supposed Extra-Judicial Executions in Sri Lanka,” September 7, 2009.
[26] “Statement by Minister Mahinda Samarasinghe at the United Nations Human Rights Council in Geneva, Switzerland,” September 15, 2009, http://mahindasamarasinghe.org/human-rights.html.
[27] “Sri Lanka Should Permit an Impartial Investigation into the Channel 4 Videotape, Says UN Expert,” Statement by Professor Philip Alston issued by the Office of the High Commissioner for Human Rights, September 17, 2009.
[28] Office of the UN High Commissioner for Human Rights, “Technical Note prepared by the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Philip Alston, in relation to the authenticity of the “Channel 4 videotape,” January 7, 2010, p. 2.
