o te la fan?
Brussels, 1 March 2012: Sri Lanka's post-war course is threatening future violence. As its 19th session in Geneva begins this week, the UN Human Rights Council has a chance to do something about it.
Nearly three years since declaring victory over the Liberation Tigers of Tamil Eelam (LTTE), the government has weakened democratic institutions, deepened ethnic polarisation and aggravated the country's long-standing impunity for human rights violations. The former warzones in the north and east are heavily militarised and controlled from Colombo, while disappearances, killings, torture, gender-based violence and other abuses continue with impunity throughout the island. Sri Lankans who speak out about the situation risk reprisal.
There has been no progress on accountability for alleged war crimes and crimes against humanity committed by both the LTTE and government forces during the final stages of fighting in 2009, which the UN Secretary-General's panel of experts found left as many as 40,000 civilians dead. While the government's Lessons Learnt and Reconciliation Commission (LLRC) is to be commended for its forthright criticisms of certain government policies – including continuing assaults on media freedom, the militarisation of the north and the failure to implement recommendations of earlier domestic inquiries into disappearances and political killings – it fails to provide the thorough and independent investigation of the full range of alleged atrocities at the end of the war that is needed for a sustainable peace. Nor does the government's "road map for implementation" of the LLRC's recommendations, presented in its opening statement this week, promise to do so.
The government claims to need additional time to pursue accountability. Yet its narrow promises, past three years of denial, dissimulation and intimidation of critics, and decades of failure to implement the recommendations of past domestic commissions of inquiry show that what is actually needed is a dramatic change of course. The responsibility now falls on the international community to take up the issue, starting with a resolution in Geneva demanding progress 20on both reconciliation and accountability according to a strict timetable and with independent monitoring. While the international community should press for real change under that resolution, it should also be prepared – should comprehensive investigations and prosecutions, again fail to materialise – to establish the independent international inquiry that so many domestic and international actors, including the Secretary-General's panel of experts, have long been calling for.
At the current session, members of the Human Rights Council should:
1) Support a resolution on Sri Lanka that at a minimum:
a. calls on the government to implement immediately the recommendations of the LLRC report and, separately, to put in place a credible accountability process to investigate all of the grave allegations of war crimes and crimes against humanity detailed in the report of the Secretary-General's panel of experts, and to prosecute those responsible;
b. requires that the Council remain seized of the matter in its 20th session and thereafter by requesting the Secretary-General, the High Commissioner for Human Rights or another appropriate UN office to assess and to report back to the Council on the government's progress in implementing the LLRC's recommendations and carrying out investigations and prosecutions; and by requesting the government to report back to the Council on those same matters;
c. calls on the government to invite relevant special procedures to visit the country, including the Special Rapporteurs on extrajudicial, summary or arbitrary executions; on torture and other cruel, inhuman or degrading treatment or punishment; on violence against women, its causes and consequences; on the situation of human rights defenders; on the promotion and protection of the right to freedom of opinion and expression; as well as the Working Groups on enforced or involuntary disappearances and on arbitrary detention; and the new Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence of serious crimes and gross violations of h uman rights.
2) Commit to assess the government's progress at the Council's 20th session and thereafter and, if the government's efforts with respect to accountability still fall short of international standards, to establish an independent international investigation.
3) Make it clear to the government that promises of progress on human rights, reconciliation and accountability are insufficient to meet its international obligations, and that tangible, verifiable changes on the ground are what matters. Council members should seek clarification and detailed corroboration from the government on various claims of progress, including on the issues outlined below.
4) Finally, urge the Secretary-General to establish without delay the review of the UN's own actions during the final stages of the war, as recommended by the panel of experts and agreed by the Secretary-General, now nearly one year ago.
Assessing government claims and promises:
Accountability for war crimes and crimes against humanity
Government claim: In his statement at the opening of the Council's session, Mahinda Samarasinghe, the leader of the government's delegation to Geneva remarked that the LLRC "offers detailed observations and recommendations on International Humanitarian Law issues relating to the final phases of the conflict" and "endorses the position that the protection of civilian life was a key factor in the formulation of policy for carrying out military operations, and that the deliberate targeting of civilians formed no part of it", which "was and remains the position of the Government". He also claimed that:
• An "enumeration" of the number of people killed in the conflict in the north "is now complete and a detailed analysis will be made known in the near future"; while the government will "further analyse and verify the data gathered in order to arrive at definite conclusions as to civilian mortalities and casualties", a key question is closed: "the story of 'tens of thousands' of civilian deaths that supposedly occurred during the final phase of the humanitarian operation, is very clearly proved to be a gross exaggeration and a deliberate misrepresentation of fact".
• The government "is committed to a mechanism for gathering and assessing factual evidence" regarding the "several specific episodes" the LLRC viewed as warranting further investigation; and the findings of this mechanism "will be placed before the Attorney-General for a decision in respect of instituting criminal proceedings".• Military courts of inquiry – convened by the army and the navy – "have commenced investigations into specific incidents identified by the LLRC", including "the Channel 4 video footages" and "whether any deliberate and intentional attacks were made by the Army on civilians … or on any hospitals or no-fire zones"; and those courts of inquiry will make recommendations with regard to the measures that should be taken against persons responsible.
Reality: These claims and promises place only a thin veil over the government's unwillingness to conduct genuine investigations into the many credible allegations of wrongdoing by both sides at the end of the war. They also ignore the fact that, as Crisis Group has previously noted, the LLRC report works to exonerate the government and undermine its own limited calls for further inquiry – mostly by accepting at face value the largely unexamined claims of the senior government and military officials who planned and executed the war, and by rolling back well-established principles of international law.
Regarding the government's "enumeration" of those killed and missing in the north, Crisis Group's recent blog post shows how that exercise raises more questions than it answers about the final civilian toll. The government's argument that the story tens of thousands of civilians deaths is "very clearly proved" wrong, when it has not examined the many sources of information suggesting it may be right, underlines the hollowness of its approach.
Similarly, the investigative mechanism and military courts of inquiry promised are limited and devoid of independence. Both efforts appear to be focused on three specific incidents identified by the LLRC and the Channel 4 video footage, not on other critical issues highlighted by the LLRC such as the alleged disappearances of suspected LTTE cadres who had surrendered to or had been arrested by the army, or on the dozens of other allegations deemed credible by the UN panel of experts.
In terms of independence, the military is hardly the right body to examine such serious allegations against its own forces - especially when the members of the army court of inquiry are appointed by one of the senior commanders involved in planning and carrying out many of the policies whose legality has been questioned. This virtually guarantees that no senior officer or anyone in a commanding position will be found responsible for serious crimes. If the Sri Lankan military is to win back its good name, only a truly independent investigation, able to investigate all the way up the chain of command, will do.
At a minimum, a credible domestic accountability process would include: (1) unqualified public commitments to accountability – expressly from the president and the defence ministry, given the power they wield – including for all allegations deemed credible by the panel of experts; (2) establishment of a new investigative body, independent of the attorney-general, military and president, composed of non-political appointees nominated by both the government and opposition parties, and fully empowered and resourced to investigate and prosecute alleged violations; and (3) substantial progress by the government in investigating specific alleged crimes, including all instances of hospital shelling mentioned by either the LLRC or the= 0panel of experts, as well as the many alleged executions or disappearances of individuals who reportedly surrendered to government forces at the end of the war but were killed or are still missing.
Life after the lifting of the emergency
Government claim: The government routinely highlights the August 2011 lifting of the emergency regulations, which had been in force for much of the prior 30 years, as evidence of compliance with international human rights law and normalisation of life after the end of the war. Defence Secretary Gotabaya Rajapaksa recently claimed: "Even when it comes to the upholding of law and order, the role of the military has been drastically curtailed with the lifting of the emergency regulations. Day-to-day law and order activities have been completely entrusted to the police. The claim that the military is involved in every= 0aspect of day-to-day life in the current context is a gross misrepresentation of reality".
Reality: In fact, using his authority under the Public Security Ordinance – the same law under which emergency regulations were issued – the president continues to give police powers to the military in all districts of the country. The military's day-to-day involvement in making decisions about civilians' political and economic futures, especially in the north and east, is confirmed by Crisis Group's own field research and reports from local civil society groups. Despite recent promises that the "government is committed to withdrawing the security forces from all aspects of communit y life", there is no sign on the ground of that happening.
The defence secretary's claim about the effect of the lifting of the emergency regulations is particularly ironic given the decision several years ago to place the police department under his own ministry of defence. Indeed, the LLRC took up this point specifically, noting: "The Police Department is a civilian institution which is entrusted with the maintenance of law and order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State".
More generally, the lifting of the emergency has had little practical effect on life for most Sri Lankans for three reasons: (1) equally draconian and exceptional legislation remains on the books, most notably the Prevention of Terrorism Act (PTA); (2) the passage of the 18th Amendment to the Constitution in 2010 and other moves such as placing the attorney general's department under the direct control of the president have removed all checks on presidential power and abolished any remaining independence of the police, judiciary and human rights commissions; and (3) the present government has few qualms about operating extra-legally, illustrated by the continuance of "high-security zones" without any apparent legal basis and reports of "secret detention centres run by the Sri Lankan military intelligence and paramilitary groups where enforced disappearances, torture and extrajudicial killings have allegedly been perpetrated" as recently noted by the UN Committee against Torture. As a prominent commentator has said, many of the LLRC's recommendations are simply "a reiteration of the basic duty on the part of the Government to implement the existing law and the Constitution".
Continuing human rights abuses
Government claim: On the question of ongoing human rights abuses, the government's primary response is to ignore them or to point to its long-awaited National Action Plan for the Protection and Promotion of Human Rights, which it is presenting to the Human Rights Council this session.
Reality: The National Action Plan is wholly inadequate to deal with the scale and severity of human rights abuses since the end of the war. With no provisions to respond to the culture of impunity that perpetuates violations, the plan is part and parcel of the government's strategy of denial. Since the Human Rights Council last met, Sri Lankan civil society organisations have documented dozens of extrajudicial killings, abductions, disappearances and acts of torture – carried out throughout the island. Abductions and disappearances were one of the government's main instruments of counter-insurgency in the final years of the war, targeting Tamils suspected of working with the LTTE, as we ll as Sinhala and Muslim critics of the government. After coming down in the aftermath of the war, the rate of abductions and disappearances has surged again in the past few months.
Political activists and perceived opponents of the government appear to be targets, such as in the 9 December 2011 disappearance of two activists associated with the dissident faction of the JVP (more sympathetic to the plight of Tamils in the northeast) who had travelled to the northern town of Jaffna to organise a protest against enforced disappearances. Individuals who challenge government abuse are also at risk – as demonstrated by the 11 February 2012 abduction of a Tamil businessman in Colombo just days before the supreme court was due to hear his fundamental rights petition alleging unlawful arrest and detention and torture, 20stemming from his May 2009 arrest as a suspected LTTE member and 28-month detention. There also have been a number of police shootings and cases of excessive use of force against peaceful protestors in the last eight months, including on 15 February 2012 when the police Special Task Force (STF) killed a fisherman protesting against rising fuel prices in Chilaw.
All of these abuses further erode the rule of law and stifle dissent. Attacks on the media and on human rights defenders, including in the lead up to the current Human Rights Council session, only reinforce fear and distrust – and make it even more difficult for victims to trust law enforcement institutions. The crippling flaws of the National Action Plan are no doubt in part due to the fact that civil society was largely excluded from drafting the final version despite government claims that it was developed through a collaborative process.
The north and east: militarisation, displacement, detention, women's insecurity
Government claim: The government insists that it is doing everything possible to restore normalcy in the former warzones in the north and east – ending displacement, releasing detainees and reconstructing damaged infrastructure. It also claims to be "committed to withdrawing the security forces from all aspects of community life" and to be "making every effort" to address the needs of women in those areas, who are overrepresented in the population and head tens of thousands of households.&nbs p;
Reality: Conditions for most of the hundreds of thousands of Tamils and Muslims resettled in the Northern Province remain poor, with limited rebuilding and few economic opportunities. Military installations – including large newly built permanent camps – continue to displace thousands. Nearly 19,000 IDPs remain in camps or transit centres, and more than 110,000 live with host families. Their difficulties are worsened by the heavy military presence: the estimated 150,000 military personnel deployed in the north (the government failed to respond to Crisis Group's request for the official figure) monitor all activities and military leaders have a veto power on all political and development issues. The mi litary has established its own commercial enterprises and competes with northern farmers and businesses struggling to re-establish themselves. The local civilian administration has been deliberately undermined and stripped of any independence. Levels of fear and mistrust between Tamils and the military, between Tamils and Muslims, and within the Tamil community are dangerously high.
These conditions contribute to the desperate lack of security faced by women in the north and east, as detailed in Crisis Group's December 2011 report. Crisis Group continues to receive reports from the north and east that women released from "rehabilitation" camps for suspected LTTE members face harassment and sexual abuse from the police and military to whom they must regularly report. While the LLRC report does correctly identify many of the issues contributing to women's insecurity in the north and east – including that women "feel unsafe in the presence of the armed forces, and in most of the resettled areas such presence is not very reassuring to women" – it largely ignored the problem of sexual violence.
The government claims that fewer than 900 suspected LTTE cadres are still detained without charge or access to lawyers in military-run "rehabilitation centres". The government still refuses to release the names of those held in its custody, despite this being one of the LLRC's recommendations in its September 2010 interim report, following the many submissions to the LLRC about missing husbands, sons and daughters, many last seen in military custody. The government's own special census for the Northern Province reports 2,635 "untraceable" persons in 2009. Given Sri Lanka's well-documented history of enforced disappearances and extrajudicial killings, there are strong grounds to fear many of the missing are dead. Th e more than 10,000 "rehabilitated" former detainees who have been released are closely monitored and many are harassed by the military; few have any meaningful economic opportunities. Hundreds more Tamils – some held for years without charge – remain detained under the Prevention of Terrorism Act or have now been transferred for "rehabilitation".
A political settlement on devolution and minority rights
Government claim: The government says it is pursuing a "democratic, pragmatic and home grown" approach to the "national question" following a "consensus formula". It also claims to be pursuing bilateral discussions with Tamil political parties and Muslim representatives in parallel.
Reality: After nearly a year of on-and-off discussions, government negotiators abruptly ended talks with the Tamil National Alliance (TNA) in mid-January 2012. The government refuses to meet with the TNA until it nominates representatives to the all-party parliamentary select committee (PSC) the government has established as its preferred method of devising a constitutional reforms to address long-standing grievances of ethnic minorities. The TNA has said it will appoint its nominees once the government abides by its promise to agree first on the basic structure of an agreement with the TNA before beginning talks with other parties. As its critics have charged from the start, the PSC has complicated negotiations with TNA, while allowing the president to avoid committing to any proposal for constitutional reform of his own, despite his having the two-thirds majority in parliament necessary to pass amendments.
In other ways, too, the government shows little willingness to move toward a negotiated political settlement that would devolve meaningful power to the north and east. On 17 January 2012, the Indian Foreign Minister announced that President Rajapaksa had assured him of his "commitment to move towards a political settlement based on the full implementation of the 13th Amendment to the Sri Lankan Constitution, and building on it, so as to achieve meaningful devolution of powers". Two weeks later, the president denied this was true, saying that only the PSC could decide the issue. Government spokesmen have also repeatedly stated that the Northern and Eastern Provincial Councils will never be allowed to use the land and police powers formally granted to them in the constitution.
Finally, despite promising for more than two years that elections to the Northern Provincial Council would soon take place, the president has still not announced a date. In the absence of an elected council, the north is governed by a retired general appointed directly by the president. The increased concentration of power in Colombo and in the president's own family seems to indicate the government's real attitude toward sharing power.