Human Rights in Sri Lanka in the Post-Conflict Period

I would like to thank the committee for holding this important hearing and for inviting me to present the views of the International Crisis Group on the state of human rights in Sri Lanka. At the start of President Rajapaksa’s second six-year term, the political situation in Sri Lanka remains deeply worrying. The unique opportunity the Sri Lankan government has to build a lasting and a just peace after the defeat of the LTTE is rapidly being lost. In what follows I will offer our analysis of a number of issues of concern to the subcommittee.

1. First, with regard to the resettlement of the nearly 300,000 people displaced from their homes by the last two years of fighting, the large majority have left the military-run camps in which they were locked for months. This is good. Nonetheless, according to the most recent government figures, available from the UN, more than 20,000 people remain in the camps and another 70,000 live with host families and are not back on their own land. Those who have returned home face huge problems, including a lack of housing and other infrastructure, few economic opportunities, and difficulties farming their land and fishing off the coasts. There is little evidence that the Sri Lankan government is approaching their problems with the requisite openness, urgency and resources. This can be seen in the damaging restrictions placed on the activities of local and international humanitarian NGOs. Agencies are currently permitted to do little more than deliver tangible material goods, for which the government oftens take credit. None of the crucial post-war work of rebuilding community organisations, dealing with the psychosocial damage from the war, tracing missing persons, or attending to women’s specific needs – is officially permitted. In this context, it is important that ECHO (the European Commission’s humanitarian aid department) continues to operate in the north and east, though the work they can do there is extremely limited.

What humanitarian and development activities are allowed are closely monitored by the tens of thousands of troops deployed throughout the northern province, and all important decisions are made by the military and predominantly Sinhalese officials in Colombo, chiefly by the Presidential Task Force headed by the President’s brother Basil Rajapaksa. In this context, the growing numbers of Sinhalese moving to the north, in a process that is anything but transparent, has fed fears by Tamils that the government plans to change the ethnic make-up of the Tamil-majority north. The government’s repeated promises that all of the 70,000 or more Muslims forcibly evicted from the north by the LTTE in 1990 will be allowed to return home is good news. However, the fact that there is very little involvement by Muslim and Tamils community groups and independent politicians in the process of resettlment is sowing the seeds of renewed ethnic conflict, especially in the face of competing land claims. This is made worse by the government’s failure to establish a transparent and equitable process for negotiating land disputes in the north, of which there are already many.

2. Of the estimated 12,000 people who surrendered or were detained at the end of the war on suspicion of involvement with the LTTE, many, perhaps most, have now been released. The latest numbers we have been able to obtain – despite the lack of public registers – suggest that some 5,400 remain in detention, with 600-700 of these identified for legal prosecution. While it is positive that most seem now to have been released from arbirtary and unmonitored detention by the military, we have been receiving worrying reports that some of those who have been released to their home areas are subject to frequent and arbitary questioning by the police and military. Here, the absence of independent monitoring of either the detention or “reintegration” of suspected LTTE cadres remains very worrying. The International Committee of the Red Cross (ICRC) was ordered last month to close its remaining offices in the northern province, after previously being blocked from working in government detention camps for LTTE suspects. The ICRC’s expertise in tracing the thousands of missing people in the north and east is and will be sorely missed.

3. Since the end of the war and the active counter-insurgency campaign, there have been much fewer reports of extrajudicial killings and enforced disappearances. This is a positive change. Nonetheless, reports of abductions, disappearances and politically motivated killings do continue to be received, and the terror machine established to destroy the LTTE remains in place. There have still been no proper investigations, much less prosecutions, in any of the thousands of disappearances or more high profile political kilings from the last years of the war. The country continues to be governed under a state of emergency more than eighteen months after war’s end. Emergency regulations and the Prevention of Terrorism Act (PTA) continue to be used to detain LTTE suspects without trial and to harass and jail the Rajapaksa regime’s political opponents – whether retired general Sarath Fonseka or student activists linked to the leftist-nationalist JVP party. Many of the emergency powers the government proudly proclaimed to have removed when negotiating with the EU over GSP+ in fact continue to be applied through the PTA. Sri Lanka’s human rights crisis thus continues to affect all communities: Sinhalese, Muslim and Tamil. It is important for the EU to continue to fund the difficult and dangerous work of local human rights groups – a little money goes a long way here. Diplomatic support for human rights defenders can be invaluable, even life saving. EU member states should lend much greater and active support for asylum seekers and for emergency visas for human rights advocates and journalists under threat.

4. Democratic governance more generally has deteriorated since the end of the war. This can be seen not only in the arrest and politically motivated trials of Gen. Fonseka, but even more ominously in the passing of the 18th Amendment to the constitution, which amounts to a de facto constitutional coup. Having obtained a two-thirds majority in parliament through various questionable means, the President was able to push the change through with very little debate in parliament or serious scrutiny by the courts. The amendment removes most of the few remaining checks on his power and removes the two-term limit on holding the presidency, which gives Rajapaksa a very real chance of remaining indefinitely in power.

5. Prospects for reconciliation between ethnic communities continue to be undermined by the government’s lack of serious interest in constitutional reforms that would address the political marginalisation of Tamil-speaking people. Occasional meetings between the President and leaders of the Tamil National Alliance and the pro-government alliance of Tamil parties known as the Tamil Political Forum are positive. To date, however, there is still no sign of any structured and inclusive process of negotiations or constitutional dialogues. Indeed, President Rajapaksa has made clear – most recently in a interview with The Hindu newspaper – that his vision for “decentralisaing power” is extremely limited and is not likely to include any devolution of power to the provincial level, as long requested by Sri Lanka’s minority parties. Instead, there are signs that even the limited devolution now enshrined in the13th Amendment to the constitution could well be reduced further.

6. With respect to the Presidential commission on “Lessons Learnt and Reconciliation” – widely known as the LLRC –Crisis Group remains convinced that the process fails to meet the criteria necessary for it to contibute either to reconciliation or to legal accountability for alleged war crimes and crimes against humanity.

First of all, it is important to note that the bulk of the hearings before the commission have featured government and military officials or witnesses sympathetic to the government’s policies, none of whose presentations have been seriously challenged by commission members. There have been relatively few sittings in the north and east, and none so far in Sinhala majority areas outside Colombo. When the commission has gone to the north and east, many of those who were able to speak on the record or file written submissions reported the disappearances of their family members after being taken away by armed groups working with the government, or after being detained by the police and army. This includes numeorus LTTE leaders seen surrendering to the Sri Lankan military and not heard of since. The commission has also heard testimony confirming government shelling of hospitals and civilians, as well as reports of grave abuses of the civilian population by the LTTE. To date, the evidence presented by average citizens in the north confirms the claims made in Crisis Group’s May 2010 report on War Crimes in Sri Lanka. Unfortunately, the commission has failed to launch any investigation into attacks on civilians.

We believe the proceedings of the LLRC and the government’s political use of the commission bear out the decision by Crisis Group not to accept the commission’s invitation to testify before it. When declining their offer, we expressed our criticisms of: 1) the commission’s lack of independence; 2) its lack of witness protection; 3) the absence of any mandate to address allegations of war crimes; and 4) the lack of supportive environment, especially the institutionalised impunity and the consistent failure of previous government commissions of inquiry. We believe all these concerns remain valid.

The fact that the LLRC has provided a platform for some citizens in the north and east to testify about terrible crimes they witnessed or suffered, while positive, does not, by itself, turn the LLRC into a credible accountability or reconciliation process. There is little that could do so, given the lack of independence of the commissioners. More generally, the value of the LLRC depends on what it does in response to the information presented to it. Does it question the official version of events? Does it challenge the government's blanket denials about civilian deaths from government shelling or the execution of surrendered prisoners? Does it come up with meaningful responses to people's concerns that will significantly advance accountability or reconciliation? To date, the answer has been no, and unfortunately, we see no reason to believe this will change.

The government has made much of the commission’s interim recommendations submitted in October to President Rajapaksa. While most of the proposals have some merit, they will do little if anything to advance accountability and consist mostly of proposals that have a long history of being made by other panels and of not being implemented by successive governments. More striking is what the LLRC has not recommended: death certificates for those killed and monetary compensation for deaths and injuries and/or damaged, destroyed or looted houses and property in the north and east. These actions should be the starting point for any meaningful reconciliation process. To recommend such a policy, however, would involve challenging the government’s continued denial that any civilians were killed. Far from offering evidence that the Sri Lankan government is willing and able to address allegations of war crimes and grave human rights violations, the performance of the LLRC to date demonstrates the opposite: it shows that despite the evidence presented by its own citizens, the government continues to deny the problem or the need for legal accountability, and that an independent international investigation is more needed than ever.

7. Outside of the LLRC, the evidence continues to mount that there were grave crimes committed by both sides. The latest video released by Britain’s Channel Four, which appears to show executions of surrendered Tamils by government forces, needs thorough investigation. The comment by the new UN special rapporteur on extrajudicial killings that the incidents shown in the video should be properly investigated is encouraging, as is the fact that a copy of the video was shared with the UN Secretary-General’s panel of experts on Sri Lanka.

Unfortunately, recent activism by some elements of the Tamil diaspora in Europe – who have seized on the latest video releases to challenge the Sri Lankan government – have been marred by lack of attention to the clear evidence of large scale war crimes and atrocities committed by the LTTE, especially in the final months of fighting. The fact that large numbers gathered in London in December to protest President Rajapaksa’s alleged responsibility for war crimes while carrying the LTTE flag not only undermines the credibility of their support for human rights, it also does further damage to Tamil-Sinhala relations within Sri Lanka. Public displays of support for the LTTE anger most Sri Lankans and fuels the self-righteous rejection of international criticisms of the government’s policies. EU member states should be urging their Tamil diapora communities to examine the actions of the LTTE throughout the war and to initiate a process of reflection, across the diaspora, on the destructive effects on all communities from the LTTE’s suicidal and terror-filled brand of politics. Governments that have imposed bans on the public display of the LTTE flag should strictly enforce them.

8. The EU and its members states have an important opportunity – and responsibility – to support the work of the panel of experts appointed by the UN Secretary-General to advise him on options for accountability in Sri Lanka. In particular, the European Parliament and EU member states should urge the Secretary-General to make the panel’s report public. They should also enourage him to brief the Human Rights Council on the panel’s work and recommendations once he has received its report, which is currently expected in mid-January.

9. It is still too early to know the concrete effects of the EU’s decision to withdraw GSP+ trade benefits to Sri Lanka. The initial public data available is inconclusive. However, what is clear is that EU member states should be careful not to allow their bi-lateral trade relations with Sri Lanka to undercut the clear commitment to human rights that the EU expressed through its decision on GSP+. While not bound by the stringent human rights criteria of GSP+, EU states are nonetheless committed to respecting human rights principles in their trade policies. The careful, prolonged and transparent negotiation process the EU took with the Sri Lankan government over the implemention of the human rights obligations required to maintain GSP+ privileges was a rare example of principled international engagement with the Sri Lankan government. One can regret that the Sri Lankan government was not willing to apply its own laws and its own voluntarily adopted international obligations. One can also regret any negative impact this decision will have on Sri Lankan workers and businesses. But there is nothing the EU should regret about insisting that agreed upon human rights principles be respected.

10. Even after the conflict over GSP+ privileges, the EU still contributes a significant amount of development assistance to Sri Lanka, both directly and via its member states’ contributions to the World Bank and the Asian Development Bank (ADB). Here EU member states should be working more actively to ensure that development projects, especially in the north and east, do not help institutionalise an unjust peace or fuel new grievances and violent conflict, particularly with regard to the use and ownership of land. Unfortunately, under current conditions in the north and east, where local communities and their Tamil and Muslim political representatives have little involvement in the physical and economic reconstruction taking place, it is extremely hard for international development assistance to be “conflict sensitive” without much more active monitoring and political engagement. EU member states and institutions should be using their political and financial influence to press the World Bank and the ADB to tie the delivery of their aid to more inclusive, participatory and democratic forms of planning and implementation, especially in the north and east. More generally, the EU and its member states should be working actively with India, Japan, the United States and other donors to develop a more coordinated and principled approach to their humanitarian and development assistance, to enhance their ability to influence the Sri Lankan government to adopt more democratic and rights-friendly policies.