Arrow Down Arrow Left Arrow Right Arrow Up Camera icon set icon set Ellipsis icon set Facebook Favorite Globe Hamburger List Mail Map Marker Map Microphone Minus PDF Play Print RSS Search Share Trash Twitter Video Camera Youtube
Statement on the UN Sri Lanka Investigation Report
Statement on the UN Sri Lanka Investigation Report
Sri Lanka’s Transition to Nowhere
Sri Lanka’s Transition to Nowhere
Statement / Asia

Statement on the UN Sri Lanka Investigation Report

The release on 16 September of the long-awaited report by the UN Office of the High Commissioner for Human Rights (OHCHR) on its Sri Lanka investigation (OISL) is a dramatic advance that can help the country respond to its painful legacy of war. The report is a compelling examination of the abuses committed by all sides during the lengthy civil conflict and the steps required to pursue justice, accountability and reconciliation as part of democratic recovery. The UN Human Rights Council (HRC), which mandated the report, should demonstrate the same leadership by endorsing and supporting its conclusions and recommendations at the present session.

The report found a “horrific level of violations and abuses” between 2002 and 2011 and presents evidence of violations by government forces, pro-government paramilitaries and the separatist Tamil Tigers (LTTE) “that are among the most serious crimes of concern to the international community as a whole”. These include indiscriminate shelling, extrajudicial killings, enforced disappearances, torture and sexual violence, recruitment of children and the denial of humanitarian assistance. The report confirms accounts from victims and survivors of systematic war crimes committed during the final, brutal months of the civil war and immediate aftermath.

Particularly notable is the clear finding that the Sri Lankan criminal justice system remains incapable of conducting credible investigations and prosecutions of these sensitive matters. Arguing that “a purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises”, the report calls for establishment of a “hybrid special court, integrating international judges, prosecutors, lawyers and investigators”. This recommendation merits particular endorsement by the Human Rights Council, given that the government’s resistance to international participation in investigations, witness protection or trials invites doubts about its ability to achieve its own stated goals of justice, accountability and reconciliation and undermines the trust of survivors and witnesses whose testimony will be crucial.

The report comes two days after Foreign Minister Mangala Samaraweera acknowledged to the Council the institutional challenges Sri Lanka faces. His speech was a welcome departure from the aggressively nationalist and authoritarian policies of the former government and highlighted important points of convergence “on the fundamental need to address the disputed legacy of Sri Lanka’s brutal civil war”. The foreign minister described the ambitious proposals he laid out – including a truth and reconciliation commission, offices for missing persons and reparations, a “judicial mechanism with a special counsel” and a new constitution – as designed to respect “the right of victims to a fair remedy and … to address the problem of impunity for human rights violations suffered by all communities”. However, missing from his welcome recognition of the magnitude of the challenges was acceptance of the compelling need for outside independent international participation in this crucial judicial process, particularly in investigations, development of prosecutions, and witness protection. Such participation, as the report recommended, would add important guarantees to all concerned.

Combined with implementation of key reforms the government proposes (some of which would receive support and advice from South Africa and the International Committee of the Red Cross), effective judicial prosecution of those most responsible for the most serious crimes committed by all sides in the war would promote the genuine reconciliation necessary for a sustainable peace.

Sri Lanka has seen decades of failed investigations and prosecutions, with fewer than half a dozen successful prosecutions of (low- and mid-level) military personnel for hundreds of serious human rights cases. No senior commander has ever even been charged with a war-related crime, and the military retains significant autonomy from civilian oversight. Witnesses and rights activists in the Tamil areas of the north and east continue to be threatened. Police investigations into a few high-profile cases from the Rajapaksa era reportedly face resistance from military leadership. Legislation parliament approved for a witness- and victim-protection system in February has yet to be implemented and lacks provision for protection units independent of the police and testimony of the many witnesses outside the country.

The government’s announced commitment to discover truth, give victims justice, end impunity and reestablish impartial judicial institutions argues for it to accept substantial international participation at all stages of the truth, reconciliation and accountability processes. Reforms will also be needed to enable Sri Lanka’s legal framework to deal with the kinds of international crimes the report details. Doing so will require carrying through on the government’s promise to criminalise enforced disappearances, as well as establishing command responsibility as a form of criminal liability and incorporating war crimes and crimes against humanity into domestic law.

This agenda needs leadership from President Sirisena, Prime Minister Wickremesinghe and other top government officials, with the support of politicians and civil society leaders from all communities: Sinhalese, Tamil and Muslim. The case must be made that involvement of foreign judges and investigators is not an infringement on sovereignty, but crucial for helping all communities escape the scourge of impunity. Framed properly, this argument should resonate with the demands to restore rule of law, end politicisation of the police and judiciary and hold powerful politicians accountable for abuses of power that were central to President Sirisena’s election in January and the victory of the broad coalition that won August’s parliamentary elections.

Pursuing cases against former LTTE leaders who worked closely with the Rajapaksa government, such as K. Pathmanathan (“KP”) and V. Muralitharan (“Karuna”), and any other senior LTTE leaders who may be overseas, will be important to address Sinhalese perceptions that accountability is biased against the military. The announcement by the Tamil National Alliance (TNA) that it will use the OHCHR report to initiate “introspection into our own community’s failures and the unspeakable crimes committed in our name” is a powerful gesture that other political parties and Tamil and Sinhala diaspora groups should reciprocate.

To make the most of the opportunity to begin genuine reconciliation and accountability and prove wrong those who dismissed earlier resolutions as mainly designed to support regime change, Human Rights Council members should seek consensus on a new resolution that:

  • endorses a Sri Lankan government commitment to make the legal reforms needed to effectively prosecute international crimes, including by incorporating war crimes, crimes against humanity and command responsibility into domestic law;
     
  • endorses reforms and confidence-building measures promised in the Sri Lankan foreign minister’s 14 September speech, as well as a commitment to immediately cease all harassment of victims and activists by security forces;
     
  • mandates significant international participation in all stages of the domestic accountability processes as recommended by the OHCHR report: investigation, prosecution, trials and appeals, protection of witness and victims and preservation of evidence;
     
  • establishes a well-resourced and staffed OHCHR office in Colombo to support, in coordination with the UN Special Rapporteur on Truth and Justice, the government’s promised public consultation process and to advise on the implementation of the government’s package of transitional justice mechanisms; and
     
  • mandates formal Council review of the implementation and effectiveness of all domestic truth, reconciliation and accountability mechanisms in September 2016 and 2017, in addition to reporting by the High Commissioner in March 2016 on the government’s initial actions.
     
  • The OHCHR report, the adoption of its major recommendations by the Council and, most importantly, their acceptance by the government and strong follow-through by the president and prime minister can be a path-breaking moment in Sri Lanka’s democratic recovery and its emergence as a more stable and inclusive state.

Brussels

Op-Ed / Asia

Sri Lanka’s Transition to Nowhere

Originally published in The Diplomat Magazine

The bloom is off two years of hope that the rule of law can be restored for all and that a 60-year failure to grant Tamils a fair share of power, in the Sinhala majority island, can be rectified.
 

 

In January 2015, the shock electoral defeat of President Mahinda Rajapaksa by his former ally, Maithripala Sirisena, rescued Sri Lanka from a slide into increasingly harsh nationalist authoritarianism. The victory of a broad coalition representing Sinhalese, Tamils, and Muslims gave hope that the country could begin to address its longstanding political challenges: remedying the 60-year failure to grant Tamils a fair share of power in the Sinhala majority island and restoring for all the rule of law, damaged by decades of politicization, bitter ethnic bias, and impunity for grave abuses committed during the civil war with the Tamil Tigers.

The momentum of the early months soon slowed, as deep political dysfunctions reasserted themselves in the face of reforms meant to shake up entrenched political practices and policies. Two years on, the bloom is off. Time is running out for any reform at all. Government leaders should remember how easily they were sidelined when Rajapaksa’s triumphalist majoritarian politics held sway. For their own survival and to deliver on at least some of their big promises, they must collectively reject narrow chauvinistic politics and daily bickering and invest their remaining political capital in promoting an inclusive vision to build a more accountable political order and mitigate the risk of future conflict.

Sirisena’s first nine months as president saw real progress. With his electoral coalition, anchored around the United National Party (UNP), strengthened by the support of a large section of his – and Rajapaksa’s – Sri Lanka Freedom Party (SLFP), he won the needed two-thirds parliamentary approval for a key electoral pledge: a constitutional amendment to reduce the presidency’s enormous powers and restore the independence of oversight commissions for the police, judiciary, and human rights. The government ended censorship and intimidation of the media and partially scaled back the heavy military presence in Tamil-majority areas in the north and east of the island. The military was convinced, reluctantly, to return some of the huge swathes of private land it had seized during and after the war.

Sirisena’s election was followed in August 2015 by the narrow victory of a UNP-led coalition over a grouping led by former President Rajapaksa and including much of the new president’s Sirisena’s own SLFP. This allowed Sirisena to reassert enough control over the fractured SLFP to convince the majority of the parliamentary group to form an unprecedented national unity government with its long-time rival UNP, headed by Prime Minister Ranil Wickremesinghe. The grand coalition reaffirmed the parties’ ambitious agenda to revive the beleaguered economy, investigate alleged corruption and political murders under the previous regime, promote reconciliation and, most important, draft a new constitution. Key aims of constitutional change were to check centralization of power in presidential hands, adopt a new electoral system and expand the powers devolved to provinces to address Tamils’ long-standing demands for autonomy in the north and east.

Read the full text at The Diplomat Magazine