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Sri Lanka’s dead and missing: the need for an accounting
Sri Lanka’s dead and missing: the need for an accounting
A Dangerous Sea Change in Sri Lanka
A Dangerous Sea Change in Sri Lanka
Commentary / Asia

Sri Lanka’s dead and missing: the need for an accounting

Nearly three years since the end of the war, there’s a growing need for an accounting of – and for – those killed and missing in the final months of fighting in northern Sri Lanka in 2009. Members of the UN Human Rights Council, opening its 19th session in Geneva today, should be ready to press the Sri Lankan government for real answers.

Instead of grappling with the many credible sources of information suggesting tens of thousands of civilians were killed between January and May 2009 – including the UN’s real-time data collection, international satellite imagery, and the government’s own population figures – the government is rewriting history on its own terms. In the lead up to the Human Rights Council session, the government released an “Enumeration of Vital Events” for the Northern Province. It finds the total death toll during the five bloody months of fighting in 2009 to be under 7,000 with another 2,500 missing, but it doesn’t differentiate between civilians and combatants or assign responsibility for any death to either the Liberation Tigers of Tamil Eelam (LTTE) or to government forces.

These findings fall far short of the UN Secretary-General’s panel of experts’ estimate that as many as 40,000 civilians died in those last months and even higher estimates based on the government’s own prior census figures. This “enumeration” also runs counter to an important recommendation of the government’s Lessons Learnt and Reconciliation Commission (LLRC) calling on the government to “conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain first-hand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of the conflict”. The LLRC made this recommendation at the end of November 2011, well after the “enumeration” project was conducted from June to August 2011.

The LLRC’s report has serious shortcomings in its treatment of allegations of war crimes and crimes against humanity by government forces, but it also acknowledges important realities, including breaking with years of government claims of “zero civilian casualties” and accepting that “considerable civilian casualties had in fact occurred during the final phase of the conflict”. While it then goes to lengths to absolve the government of responsibility for those casualties, its recommendation of a professionally designed survey could help clarify the fate of the dead and missing in the north – if done credibly and independently. Unfortunately, there are no signs of such a credible and independent process emerging.

Just days after the LLRC delivered its report to the president on 20 November, his brother, Defence Secretary Gotabaya Rajapaksa, delivered a speech to the “Inaugural National Conference on Reconciliation” in which he said that the government had “conducted a complete census” in the north, which was “in the process of finalisation”. He said a “questionnaire” had been used which included seven categories of dead or missing persons: “those who died of natural causes; those who died of accidents; those who left th[e] country through illegal means, particularly by boat to India or to South East Asia, and from there to the West; those who died whilst fighting as members of the LTTE; those who died as a result of being coerced to fight by the LTTE; those who died as a result of resisting the LTTE … ; [and deaths] that occurred due to military action”.

Without explaining how those categories were determined or what the government had done to avoid bias in its questionnaire and information gathering, the defence secretary concluded that “as a result of the census, we already know that the real number of dead and missing is far too small to provide any substance to the absurd allegations of genocide and war crimes that have been made against our military by the rump LTTE and their cronies”. On 8 February at an event hosted by the Swiss mission to the UN in New York, Sri Lanka’s permanent representative to the UN repeated the claim that the government has carried out “a comprehensive census in the Northern Province which will enable firm and verifiable conclusions to be derived at on issues involving disappearances, deaths, etc”.

The “enumeration” released soon after this statement doesn’t deliver the details promised. Instead it appears to be little more than another attempt to short-circuit what Sri Lanka’s people really need and what the global community – and even the LLRC – have been asking for: an independent, credible assessment of who and how many died and under what circumstances (i.e., who and what caused the deaths or disappearances).

The process by which this supposed count has happened is not at all clear, but the conditions under which any census would have been conducted in the north – an area under effective military occupation by a victorious army accused of the crimes in question – are not conducive to a fair and accurate count. The risk that the government has now politicised the department of census and statistics, as it already has politicised the police, judiciary and human rights commission, should be deeply worrying to Sri Lanka’s international partners.

As member states of the Human Rights Council prepare for the upcoming session, they should ask the government for a full explanation of how this purported census was conducted, what safeguards were in place to ensure independence, who (by name and by civilian or combatant) was killed or went missing and how, and whether UN agencies and independent civil society organisations will be allowed to verify the findings. Equally important, Council members should ask the government to reconcile its “enumeration” with the now-extensive information available suggesting that tens of thousands of civilians were killed in the final stages of the war, most as a result of government fire into heavily populated civilian areas.

The precise number and identities of all civilians killed in those last bloody months will likely never be known, especially if the government persists in its resistance to an independent, international inquiry. Nonetheless, several sources of information regarding civilian casualties need to be addressed – fully and transparently.

Sources of information suggesting civilian deaths in the tens of thousands

The UN’s real-time, on the ground survey of deaths and injuries

There are, first of all, the casualty figures gathered by the UN and humanitarian staff trapped in the fighting, which recorded 7,721 civilians killed and 18,479 injured between August 2008 and 13 May 2009, after which information collection became too difficult. These numbers were not estimates, but actual counts based on eyewitness sightings verified by two additional sources. The vast majority of those included in the UN count were killed between late January and late April 2009, before the escalation in fighting in the final three weeks.

The Secretary-General’s panel of experts noted strong grounds to believe these numbers understate actual casualties during that period. These include the conservative methodology used to collect the figures, suspected underreporting by UN agencies (in response to pressure from the Sri Lankan government), the location of many casualties in areas inaccessible to observers, and the fact that following 13 May, the number of civilian casualties likely increased significantly as many civilians died from their injuries with no functioning hospital or humanitarian facilities in the warzone to register casualties or treat the wounded.

The government, including the LLRC, has frequently dismissed these figures because the UN failed to publish them, without acknowledging that the UN raised them with the government in private discussions. The UN’s failure to speak out about its casualty estimates and the scale of the humanitarian crisis, and the government’s willingness to castigate the UN for even attempting to assess the civilian toll, are both matters of serious continuing concern.

Casualty estimates for the final week of fighting

Multiple eyewitnesses who were in the warzone during the final week estimate that thousands of civilians were killed in those days. Many describe walking past hundreds of bodies as they exited the final “no-fire zone” and seeing entire families buried in collapsed bunkers. A U.S. embassy cable on 18 May 2009, the day the government declared the war over, said a UN contact thought the LTTE’s claims of 25,000 civilians wounded or killed in the last few days were exaggerated, but that based on a 10 May shelter analysis and estimates of 70,000 to 80,000 people in the “no-fire zone” before the final assault, the number unaccounted for could be as high as 7,000 to 17,000. The UN contact also reportedly said the UN doubted the LTTE’s claims on the night of 17 May that it still had 1,000 to 2,000 cadres.

Contemporary population figures from senior government officials

There is also information from the government’s own officials working in the north suggesting that as many as 70,000 or even 140,000 civilians who were surveyed in the warzone just before or during the final months of fighting never made it to the government internment camps at the end of the war.

At least three separate figures need to be compared against the number of civilians in the camps as of late May 2009, which the government reported to be approximately 290,000. First, the former district secretary for Mullaitivu and current district secretary for Jaffna, Imelda Sukumar, testified to the LLRC on 4 November 2010 that there were 360,000 people caught in the fighting in the Puttumatalan “no-fire zone” established in February 2009.

Second, the UN panel of experts reported that her assistant, the former additional government agent (AGA) of Mullaitivu, and his staff who were in the “no-fire zone” counted some 330,000 people still trapped in the fighting in early February 2009. At that time, government figures showed that 35,000 were already in government camps. After the AGA advised officials in Colombo of the 330,000 figure, they wrote to him that the figure was “arbitrary and baseless” and that the government would be “reluctantly compelled” to discipline him for providing “wrong information to any source especially in regard to IDP figures”.

Finally, documents from the local government offices in Kilinochchi and Mullaitivu districts, dated 30 September and 1 October 2008, show a total population of 429,000. These figures were cited in the LLRC testimony of the Catholic Bishop of Mannar, who asked for clarification as to what happened to the more than 140,000 people apparently missing given the much smaller population corralled into government camps.

Corroborating the government’s contemporary population figures

This last estimate of the number of those still unaccounted for may seem high. Indeed, the central government has long argued that local population figures were inflated under pressure from the LTTE, in order to exaggerate the humanitarian crisis and to generate greater quantities of humanitarian supplies, which the LTTE could steal. While some inflation in the figures is possible, it is unlikely to have been large enough to explain all, or even most, of the discrepancies. There is also some corroborating evidence that argues for taking seriously even large estimates of the missing and demanding a full and independent accounting.

For example, if one takes the total population figures for residents of Kilinochchi and Mullaitivu districts from the 30 September and 1 October 2008 local government documents, they match almost exactly the central government’s estimated 2008 population figures for those districts, which can still be found on the department of census and statistics website in its estimated mid-year population by sex and district, 2000-2010.

The combined total of Kilinochchi residents counted by local officials in late 2008 was 146,700 (121,900 then living in Kilinochchi and 24,800 displaced to Mullaitivu), while the central government estimate for Kilinochchi residents was 140,000 in 2006, 143,000 in 2007 and 147,000 in 2008 (and provisionally 154,000 in 2009 and 156,000 in 2010).

Similarly, the combined total for Mullaitivu residents counted by local officials in late 2008 came to 126,350 (100,600 still living in Mullaitivu and 25,745 displaced to Kilinochchi), while the central government figures for Mullaitivu show 129,000 in 2006, 132,000 in 2007 and 135,000 in 2008 (and provisionally 154,000 in 2009 and 148,000 in 2010).

Because local government officials’ figures for Kilinochchi and Mullaitivu residents in late 2008 are almost exactly what the government had officially accepted for years, the government should explain why so many fewer people ended up in government camps in mid-2009. It should also explain why its most recent “enumeration”, which says there are now only 103,717 people in Kilinochchi and only 66,526 people in Mullaitivu – a drop of over 100,000, doesn’t raise many more questions than it answers.

A UN survey in the internment camps

Another intriguing statistic can be found in a UN Survey of 100 randomly selected shelters in zone 3 of Menik Farm in early May 2009 – prior to the worst fighting of the final two weeks. This small survey found that “22 per cent of the families” interviewed “reported that an immediate family member had died”. Extending this percentage to the approximately 90,000 families who ended up in camps after the end of the war, it suggests a minimum of 18,000 killed. Sample bias and other potential problems with this survey – including the possible inclusion of some combatants or deaths in earlier stages of the war – need to be examined, yet given the timeframe (prior to the deadliest weeks) and the possibility of multiple deaths within (or complete destruction of) some families, it could in fact be a generous minimum.

Estimates of war widows and female-headed households

Finally, there are other estimates available – including from the government – that appear to be consistent with large-scale loss of life. For example, multiple sources have claimed that there are now 40,000 “war widows” in the north. In September 2010, the ministry for child development and women’s affairs said it had lists of 40,000 war widows in the north, though it reduced this number without explanation in August 2011, to only 16,936. A separate media report cites government and donor figures of 30,000 out of 110,000 households in the former warzone that are headed by women. And a survey by the Jaffna-based Center for Women and Development reportedly estimated 40,000 female-headed households in the north, half of those in Jaffna. Not all of these women would have lost their husbands in the final months of the war, nor would all those men killed have been civilians – but many would have. And to the number of non-combatant husbands killed, one would have to add the women, children and unmarried men who died in the fighting, as well as those cases where both members of a married couple – and even whole families – were killed.

What the LLRC said about civilian casualties

The LLRC reported that the scale of civilian casualties, especially from January to May 2009, was a key question for the commission. Yet it accepted what the defence ministry told it – that “an estimate of civilian deaths was not available”. At the same time, the ministry had no problem providing an estimate of LTTE deaths – 22,247 for July 2006 to May 2009, with 4,264 confirmed by name for the period January to May 2009; or an estimate of security force deaths – 5,556 for July 2006 to May 2009.

Separately, the LLRC noted that the defence ministry had estimated the total number of LTTE cadres in the north to be 21,500. Given that approximately 11,700 suspected cadres were detained for “rehabilitation” at the end of the fighting, there are serious questions as to (1) how the government reconciles its 21,500 cadre estimate with its total of 34,000 killed or detained; (2) whether the 22,247 LTTE deaths were combatant deaths; and (2) whether the 11,700 detained for “rehabilitation” were in fact combatants. Unfortunately, the LLRC did not acknowledge, let alone answer, any of these questions.

Instead, the defence ministry told the LLRC that “it would be extremely difficult, if not impossible, to distinguish between LTTE and civilian casualties”. The LLRC expressed its “regret” at the absence of any official record or post-conflict estimate of civilian casualties while at the same time concluding that “considerable civilian casualties had in fact occurred”, but placed the blame primarily on unexplained “crossfire” and on the LTTE – just as the government and military officials who testified before it did.

The LLRC’s recommendation of a professionally designed island-wide household survey regarding civilian deaths and injuries – if done independently and credibly – could make up in part for its unwillingness to challenge the government’s narrative. Such a survey could also provide all Sri Lankans more clarity regarding how many and whose lives were lost in the war, including thousands of missing soldiers and people killed or disappeared outside of the north through decades of counter insurgency operations.

Commentary / Asia

A Dangerous Sea Change in Sri Lanka

Sri Lanka’s Rajapaksa government has initiated fundamental changes to policies on ethnic relations and the rule of law. In this excerpt from our Watch List 2020 for European policymakers, Crisis Group urges the EU to continue its pressure on Colombo to strengthen rights-respecting governance while making it clear that it will not support programs which encourage political repression or discrimination.

This commentary is part of our Watch List 2020.

Since his election on 16 November 2019, Sri Lankan President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa, have initiated fundamental changes to policies on ethnic relations, the legacy of a 26-year civil war, and the rule of law. Mahinda had previously served as Sri Lanka’s president and Gotabaya as defence minister during the brutal final phase of the country’s civil war, when troops under their command, as well as the separatist Tamil Tigers they fought, are credibly alleged to have committed grave violations of the laws of war. The new Rajapaksa government has reversed or announced its intention to abandon many key legislative achievements and policy commitments of the preceding United National Party (UNP) government, including promises on post-war reconciliation, accountability and inclusive governance made to the UN Human Rights Council and to the EU. The shift in policy, rooted in part in the ethno-nationalism of many among Sri Lanka’s Sinhala and Buddhist majority, threatens to increase ethnic and religious tensions and dangerously weaken checks on executive and state power.

The changes pose a deep challenge to EU policy in Sri Lanka, which has supported ethnic reconciliation, human rights and political stability rooted in inclusive governance – and which now finds itself at cross-purposes with the country’s leadership. Against this backdrop, the EU and member states should continue to press Colombo to honour commitments made by the prior administration to strengthen rights-respecting governance and the rule of law, while making clear that the EU will not support programs that encourage political repression or discrimination against ethnic and religious minorities. Specifically, the EU and member states should:

  • Reiterate support for the reconciliation and accountability agenda agreed to by Sri Lanka at the UN Human Rights Council (UNHRC) in Resolution 30/1 (2015) and work to build support on the council for continued UNHRC engagement beyond the resolution’s expiration in 2021.
     
  • Communicate clearly in upcoming high-level meetings with the new Sri Lankan government that the EU has begun an informal review of the Generalised Scheme of Preferences trade and tariff concessions extended to Sri Lanka (known as “GSP+”) and that continued benefits are at risk if Colombo continues on its present course.
     
  • Review funding for UN-administered Counter-Terrorism and Preventing Violent Extremism programs, avoiding support for activities with a discriminatory focus on Muslims, and avoiding any engagement with planned “deradicalisation” or “rehabilitation” programs targeted at Muslims accused of involvement in militant activities without strict human rights protections in place.
     
  • Launch a full review of all policies and programs in Sri Lanka, including development cooperation and contributions to the UN-administered Priority Peacebuilding Plan, to ensure they support efforts consistent with European conflict prevention and human rights objectives.

A New Government and a Sea Change in Policy

The results of Sri Lanka’s presidential election in November 2019 reflect a deeply polarised country. Gotabaya Rajapaksa campaigned on a Sinhala nationalist platform and won thanks to unprecedented levels of support from ethnic majority Sinhalese voters, while Tamil and Muslim voters overwhelmingly rejected him. Among Rajapaksa’s 54 ministers are only two Tamils, and, for the first time since the nation became independent in 1948, no Muslim minister at all; there is only one female minister. Citing opposition among the Sinhala majority, Rajapaksa has repeatedly rejected any further devolution of power to the provinces, including what is mandated in the current constitution, thereby neutralising a mechanism intended to give ethnic minorities greater self-governance. Past statements by Gotabaya calling the large Tamil majority in the north “unnatural” heighten fears of military- and state-supported population transfer designed to change the demographic picture.

The status of Muslims as full participants in the country’s social, political and economic life is at growing risk.

The status of Muslims as full participants in the country’s social, political and economic life is also at growing risk. Following the ISIS-inspired 2019 Easter bombings – which killed more than 260, mostly Christian worshippers, and wounded many more – Muslims, especially Muslim women, whose use of face veils was briefly banned, have faced increased social discrimination and damaging economic boycotts. Radical Buddhist militants who back – and have in past had the backing of – Gotabaya Rajapaksa, have targeted Muslims for discrimination. All Sinhala suspects arrested for anti-Muslim violence have been released, with no prosecutions likely, while hundreds of Muslims remain in custody under the Prevention of Terrorism Act, many detained following the Easter bombings on questionable grounds and some reportedly suffering physical abuse and extortion.

Following a post-election statement by Mahinda Rajapaksa that indicated a desire to weaken religious and ethnic-based parties, Rajapaksa’s allies proposed a constitutional amendment that would dilute minority representation in parliament by increasing the threshold of votes needed for parties to be represented from 5 to 12 percent. Should the government endorse the amendment and gain the two-thirds parliamentary support needed to pass it, Muslim political parties would be unlikely to obtain any seats. This would further marginalise and anger a community that already feels under siege.

The Rajapaksas have also taken dramatic steps to consolidate their family’s control of the government. A 10 December presidential decree assigned responsibility for one third of all government departments to ministries headed by one of three Rajapaksa brothers, including, aside from Gotabaya and Mahinda, Chamal Rajapaksa, Minister of Mahaweli Development, Agriculture and Trade and State Minister of Defence. Gotabaya and other officials have announced their desire to reverse prior reforms that had reined in the presidency’s power. A proposed constitutional amendment would allow the president once again to hold multiple ministerial portfolios, and unilaterally to appoint judges, the attorney general, the police chief and other senior officials, without involvement of the constitutional council.

The new government also quickly rolled back police investigations into a series of high-profile political killings and disappearances during the Mahinda Rajapaksa administration – many, according to detailed evidence submitted to courts, allegedly committed by military intelligence units at a time when Gotabaya was defence secretary. Courts have released suspects in virtually all of the so-called “emblematic cases” of serious human rights violations and political crimes. Within days of Gotabaya’s election, the new government removed the lead police investigators’ security details, transferred them to menial jobs, and denounced them as traitors. The most prominent investigator, Nishantha Silva, fled the country fearing for his safety. The government has launched a review of all prosecutions of Mahinda-era abuses, which the Rajapaksas and supporters have long called politically motivated, and announced a presidential commission to investigate police and other officials responsible for the alleged “witch hunt”.

Gotabaya and Mahinda have long argued that the UN Human Rights Council’s Resolution 30/1 (2015) – which addresses reconciliation, accountability and human rights in Sri Lanka – infringes on the country’s sovereignty and betrays its war heroes. They particularly object to the provision for a special court to investigate and prosecute alleged war crimes (something to which the UNP-led government was never fully committed). Gotabaya has made clear his government rejects the entire UN process and the commitments undertaken in that context by the previous UNP-led government. The current government’s blanket denial of any violations by the military or police requiring investigation or prosecution has returned Sri Lanka to the hardline positions of 2009-10, rolling back even the modest recognition of government excesses found in the conclusions of the 2011 Lessons Learnt and Reconciliation Commission. The Justice Ministry has announced its intention to “review” the legislation establishing the Office of Missing Persons, one of two transitional justice institutions established by the previous government; many observers expect its powers will be restricted, or the office eliminated entirely.

Recommendations to the EU and Member States

EU policies in Sri Lanka will not reverse Sinhala Buddhist majoritarianism, nor prevent the return to authoritarian rule that the Rajapaksas have already set in motion. Sinhala and Buddhist nationalism has deep roots, and challenges to Sinhala nationalism from outside Sri Lanka could further inflame nationalist sensitivities. Nonetheless, stressing the dangers posed from abandoning commitments on reconciliation and the rule of law to all Sri Lankans – and particularly about the importance of keeping open democratic space so citizens can challenge discriminatory and militarist policies, and build cross-ethnic political alliances to counter ethnic polarisation – is important. The EU, together with Sri Lanka’s other international partners, can and should also work to ensure their funding or other support does not inadvertently help implement policies that further marginalise minorities and threaten their rights – and thereby increase tensions that exacerbate the risks of violent conflict.

The EU’s first challenge will come in late February, when the Human Rights Council considers the latest update report from the UN High Commissioner on Sri Lanka’s implementation of the 2015 resolution. Should Sri Lanka put forward a resolution to formally repudiate and reverse 30/1, European members of the Council should throw their efforts into building a coalition able to win a contested vote. If Sri Lanka does not put forward such a resolution, members should reiterate their strong support for the reconciliation and accountability agenda agreed to by Sri Lanka as an essential element of the country’s long-term stability, while working toward a council coalition for follow-up action in 2021, when the current resolution expires.

The EU’s 2016 decision to reinstate GSP+ trade preferences to Sri Lanka, which gave a significant boost to its economy, was predicated on government commitments to implement a wide range of international human rights treaties. Particularly important was its promise to repeal the Prevention of Terrorism Act and replace it with new, human rights-compliant counter-terrorism legislation – a promise the new government reversed in January. The government has also rejected or appears unlikely to advance other rule of law and governance initiatives linked to GSP+ and discussed through the EU-Sri Lanka joint committee process – including prosecutions in the “emblematic cases”. After the biannual GSP+ monitoring report due in early February – which will consider only the previous government’s actions – the next report is not due until 2022. The European Commission and European External Action Service can use the leverage that GSP+ benefits provide by communicating in its next joint commission meeting and working group on governance that an informal review is already under way, and that the continuation of benefits hinges on whether the government corrects course and begins meeting commitments underlying the EU’s 2016 decision.

The EU should make clear it supports the ongoing UN human rights due diligence review of its engagement with Sri Lankan security forces.

With the return to power of a government whose senior officials are credibly alleged to have overseen grave human rights violations under the claimed rubric of counter-terrorism, the EU’s funding for UN-administered Counter-Terrorism and Preventing Violent Extremism programs needs to be carefully reviewed to ensure strict human rights protections are in place, including respect for women’s civil and religious rights as outlined in UN guidelines. The EU should make clear it supports the ongoing UN human rights due diligence review of its engagement with Sri Lankan security forces, and should avoid funding “deradicalisation” or “rehabilitation” programs targeted solely at Muslims accused of involvement in militant activities. The EU also should make clear to its implementing partners, UN Office on Drugs and Crime and UN Development Programme, that, if need be, they should redirect EU funding following a full review of their programs’ impact on conflict risk in Sri Lanka.

A full review of EU policies toward Sri Lanka and how they affect conflict risk and human rights probably will indicate that large portions of the UN-administered Peacebuilding Priority Plan (PPP) – a framework for coordinating international support to transitional justice, reconciliation and good governance, which the EU supports financially – will be difficult if not impossible to implement in the current political climate. The EU should support a full review and reframing of the PPP in light of this and should consider prioritising support to human rights defenders and independent media. The EU’s conflict review should also extend to its development cooperation. Development assistance – either directly from the EU or through multilateral institutions that receive EU financing – could unintentionally support government-sponsored population transfers designed to dilute the Tamil majority in the northern province and parts of the east.