On September 16, 2015, the UN Office of the High Commissioner for Human Rights, released a report on the human rights violations, including unlawful killings, enforced disappearances, and gender-based violence, committed by the Liberation Tigers of Tamil Eelam (LTTE) and Sri Lankan government forces from 2002-2011. See Office of the United Nations High Commissioner for Human Rights, Report of the OHCHR Investigation on Sri Lanka (OISL), 16 September 2015 (hereinafter Report). The report concludes with a number of recommendations, including those of a general nature as well as more specific ones regarding institutional reforms, justice, truth and the right to know, reparations, and suggestions directed at the United Nations and Member States. See id. at 248-251.
Shortly before the release of the report, Sri Lankan foreign minister Mangala Samaraweera announced that Sri Lanka plans to establish an independent Commission for Truth, Justice, Reconciliation, and Non-recurrence to address the human rights violations that occurred during its civil war. The UN High Commissioner for Human Rights rejected this solution, and urged instead the creation of a hybrid special court, emphasizing that “a purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fueled by decades of violations, malpractice and broken promises.” [UN News Centre; Human Rights Watch; NY Times: UN Urges Sri Lanka to Establish Court]
Background of the Civil War in Sri Lanka
After Sri Lanka gained independence in 1948, various government policies were put into place that favored the Sinhalese majority while marginalizing the Tamil minority. In response, the Tamil New Tigers, which then became the Liberation Tigers of Tamil Eelam (LTTE) in 1976, emerged and committed atrocities against Tamil parties and militant organizations, including the killing of 3,000 Tamils, the destruction of their properties and businesses, and the expulsion of Muslim and Sinhalese communities.
As part of this conflict, both government forces and rival Tamil groups committed serious human rights violations, including torture, arbitrary detention, and enforced disappearances. After almost two decades of conflict, Sri Lanka and the LTTE signed a ceasefire agreement in February 2002.
However, the hostilities resumed after the Minister of Foreign Affairs, Lakshman Kadirgamar, a Tamil politician, was allegedly assassinated by the LTTE, leading to the declaration of a state of emergency which allowed the Secretary of Defense to order, and for the military and police to carry out, arrests and administrative detentions. There was an increase in targeted killings, government abductions and disappearances, LTTE attacks on civilian trains and buses, and military clashes. By the middle of 2006, the 2002 ceasefire agreement had largely broken down.
Hostilities, including the use of artillery, rockets, and air strikes that impacted civilians continued, including attacks that the OHCHR Investigation on Sri Lanka (OISL) considers potential war crimes. By the end of 2006, at least 520,000 people had been internally displaced which made it “one of the largest displacement crises in Asia in both absolute terms and in proportion to the population.” See Report at 76.
At the beginning of 2008, the government withdrew from the ceasefire agreement, leading to increased insecurity and violence.
Subsequently, in May 2009, senior LTTE officials expressed their intent to surrender. Those with suspected connections to the LTTE, including children, were arbitrarily detained, and others were likely summarily executed or forcibly disappeared. Close to 300,000 internally displaced persons (IDPS) were forced to live in closed camps.
Elections took place in 2010 in which President Rajapaksa and the ruling coalition won. [The Guardian] Following the election, human rights violations such as harassment of human rights defenders, interference with judicial independence, and the placement of restrictions on freedom of expression continued.
In May 2010, the government established the Lessons Learned and Reconciliation Commission (LLRC) to investigate the failed ceasefire agreement, to recommend steps to prevent a recurrence of similar violations, and to promote unity and reconciliation.
Additionally, in June 2010, the UN Secretary General appointed an independent Panel of Experts to draft a report containing recommendations as to how to advance accountability for the abuses committed during the conflict. See Report. at 47-49, 54, 61, 63-64, 70, 70, 76-77, 94-96, 99, 103.
Report by the UN Office of the High Commissioner for Human Rights
In March 2014, the Human Rights Council adopted Resolution 25/1, which tasked the Office of the High Commissioner for Human Rights (OHCHR) with investigating the human rights abuses committed by the LTTE and the government of Sri Lanka from 2002-2011, which is the time frame addressed by the Lessons Learned and Reconciliation Commission (LLRC). Investigators reviewed government publications, reports from international and Sri-Lankan NGOs and civil society, the report of the LLRC and other commissions, audio-visual material, satellite images, and reports from UN Special Procedures and treaty bodies. The investigation also: reviewed documentation from the UN Secretary General’s Panel of Experts, which examined the nature and scope of human rights violations in Sri Lanka with respect to international law; examined documentation from the Sri Lanka Monitoring Mission (SLLM); conducted interviews with witnesses; and posted a call for submissions on the OHCHR website in 2014 and received 1,985 submissions, many of which concerned human rights violations allegedly committed by the LTTE. According to the report, the investigation was conducted in accordance with the legal frameworks of international human rights law, international humanitarian law, and international criminal law.
The report notes challenges include the following: the lack of cooperation from the former government; the inability to speak with the senior leadership of the LTTE because they had been killed; threats and harassment of potential witnesses that deterred their participation; and the possibility of re-traumatizing victims which led, in some situations, to the decision to not interview them. See Report at paras. 17-46, 171.
Human Rights Violations Committed in Sri Lanka (2002-2011)
The report discusses the human rights abuses allegedly committed by the LTTE and government forces between 2002 and 2011, including the following: unlawful killing of humanitarian workers, politicians, journalists, Muslims, students, and civilians; extrajudicial killings; torture; sexual and gender-based violence, including rape and sexual harassment; unlawful arrests; arbitrary detention; enforced disappearances; threats and harassment of victims’ relatives and human rights defenders; and the abduction and forcible recruitment of adults and children. Also according to the report, domestic UN and NGO offices, hospitals, churches, and food distribution centers were attacked despite being located in “no fire zones” and the LTTE restricted the freedom of movement of civilians and humanitarian workers and their dependents. Additionally, the report notes that the government: restricted humanitarian assistance to civilians in LTTE-controlled territories, which deprived people of water, food, and access to emergency medical care and deprived internally displaced persons of their liberty by detaining them in squalid closed camps that were guarded by the military. See id. at paras. 209-1174.
Obstacles to Justice and Accountability
The report notes that Sri Lanka has failed to hold perpetrators accountable for human rights violations that were committed before and during the time frame addressed by this report, discussing a number of obstacles to justice and accountability. These include reprisals against victims and witnesses; a culture of impunity; the lack of a victim and witness protection program; undue delays in judicial proceedings; and the lack of domestic laws criminalizing international crimes, such as war crimes, crimes against humanity, and enforced disappearances. The report goes on to explain that while the government has taken measures to provide compensation on an ad hoc basis, it has not sufficiently addressed issues such as land restitution; resettlement; the needs of women, children, and the elderly; and medical and psychosocial support for victims. Additionally, the report notes the importance of both sides to the conflict acknowledging their wrongdoing. See id. at paras. 1175-1264.
The report concludes by emphasizing that violations of both international human rights and humanitarian law took place both during the armed conflict as well as, more broadly, both before and during the course of the time period covered by the mandate of OISL (2002-2011). See id. at para. 1265.
The report concludes with recommendations directed at the government of Sri Lanka, while also emphasizing the important role that the international community should play in supporting this process of addressing the violations that have been committed. See id. at para. 1281.
- Develop a comprehensive transitional justice policy to address human rights violations that occurred during the last 30 years.
- Create an executive group to develop a plan and oversee the implementation of recommendations in this report and other relevant reports.
- Invite the Office of the High Commissioner for Human Rights (OHCHR) to monitor the human rights situation in Sri Lanka.
- Begin consultations on transitional justice, including by inviting the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to participate in this process.
- Cooperate with the Special Procedures of the Human Rights Council, including inviting the Special Representative of the Secretary-General on conflict-related sexual violence, the Special Representative of the Secretary-General on Children and Armed Conflict, the Special Rapporteurs on extrajudicial killings and torture, and the Working Group on Arbitrary Detention for country visits.
- Ensure the Constitutional Council is operational to appoint members to institutions such as the Human Rights Commission of Sri Lanka.
- Review laws to strengthen the Human Rights Commission’s independence and authority to refer cases to the courts.
- Seek the Supreme Court’s review of its decision in the case of Nallaratnam Singarasa v. Attorney General to affirm that international human rights treaties are applicable in domestic law.
- Permit the UN Human Rights Committee to hear individual complaints.
- Issue clear instructions to the military and security forces informing them that torture, rape, sexual violence, and other human rights violations are prohibited and that offenders will be punished.
- End surveillance, harassment, and reprisals against civil society actors, human rights defenders, and journalists.
- Develop a plan regarding reform of the security sector.
- Develop a procedure in accordance with due process to remove officers, in cases where there are reasonable grounds to believe they were involved in human rights abuses.
- Vet Sri Lankan security forces with respect to human rights violations to ensure that they do not participate in UN peacekeeping forces.
- Identify and disarm groups affiliated with political parties.
- Repeal and reformulate the Prevention of Terrorism Act (PTA) in accordance with international law.
- Review the Victim and Witness Protection Act to create a robust system, and ensure that this system contains special protections for children and victims of sexual violence. Adopt legislation criminalizing war crimes, crimes against humanity, genocide, and enforced disappearances; these crimes should not carry a statute of limitation.
- Recognize command liability and superior responsibility as types of criminal liability.
- Ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), the Additional Protocols to the Geneva Conventions, and the Rome Statute of the International Criminal Court (ICC).
- Enact legislation to establish an ad hoc hybrid special court, with international judges, prosecutors, lawyers, and investigators, which can try war crimes and crimes against humanity, and is equipped with an independent investigative and prosecutorial component, a defense office, and a witness and victim protection program.
- Review cases submitted to the Disappearance Investigation Unit and the Missing Persons Unit.
- Ensure that all persons with perceived or known connections to the LTTE (at least 11,000 individuals) are registered and rehabilitated.
- Review cases concerning detainees held in accordance with the PTA and release or try them; also review the cases of individuals who have been convicted under the PTA, especially in cases in which their confessions were obtained under torture.
Truth / Right to Know:
- Transfer cases from the Presidential Commission on Missing Persons to an independent and credible institution. Such an institution should be created with input from families with disappeared relatives.
- Create a database of all detainees so that relatives can learn about where their family members are detained.
- Publish a complete list of all detention centers and shut down those that are unofficial.
- Publish unpublished reports from domestic human rights related institutions.
- Create a mechanism to preserve existing documentation of human rights violations.
- Establish a national reparations policy. This policy should be created by consulting with victims and their families, and should address the needs of all victims, including women and children.
- Develop and strengthen psychosocial support programs for victims.
- Amend laws to permit judicial review in cases where people received death certificates for missing individuals so they can legally pursue the search for information about the missing.
- Create sustainable solutions for internally displaced persons, including land restitution, resettlement, and support for their livelihoods.
Recommendations to the UN and Member States:
- Provide technical and financial assistance to develop transitional justice mechanisms in accordance with international standards.
- Use rigorous vetting procedures with respect to individuals who have been identified for peacekeeping, military exchanges, and training programs.
- When possible, investigate and prosecute crimes such as torture, war crimes, and crimes against humanity.
- Adhere to the policy of non-refoulement (that prohibits a State from transferring and deporting individuals to countries where their life, personal integrity, or freedom may be in danger) with respect to Tamils whose rights have been violated.
- For countries with a large Tamil population, assess the need for psychosocial support for victims and develop services accordingly.
- Monitor human rights developments, accountability, and reconciliation through the Human Rights Council.
See Report at 248-252.
Sri Lanka’s Plan to Establish a Truth and Reconciliation Commission
Two days before the UN released its report, Mr. Mangala Samaraweera, Sri Lanka’s foreign minister, announced before the UN Human Rights Council, Sri Lanka’s plan to create a Commission for Truth, Justice, Reconciliation and Non-Recurrence to address human rights violations committed during its 26-year-long civil war. He noted that the commission would have a dual structure consisting of a Compassionate Council composed of religious dignitaries, who would represent all the major religions in the country, and another structure composed of commissioners. Additionally, he stated that South Africa would advise Sri Lanka in establishing this commission given its own experience with a Truth and Reconciliation Commission to address violations committed during the apartheid era.
Furthermore, he noted that Sri Lanka plans to establish an Office on Missing Persons based on the principle of the families’ right to know, with the expertise of the International Committee for the Red Cross (ICRC) and in accordance with international standards.
Response from the High Commissioner for Human Rights to Sri Lanka’s Proposal
The report, while commending Sri Lanka for proposing a domestic truth and reconciliation commission to address the human rights violations committed during its civil war, states that Sri Lanka’s criminal justice system is not able to conduct an “independent and credible investigation” or “hold accountable those responsible for such violations.” The report notes in detail the issues affecting justice and accountability in Sri Lanka, including reprisals against victims and witnesses; the lack of a victim and witness protection program; undue delays and impunity in judicial proceedings; and the lack of domestic laws criminalizing international crimes, such as war crimes, crimes against humanity, and enforced disappearances.
Therefore, the High Commissioner recommends instead that Sri Lanka establish a hybrid special court, which would incorporate international judges, prosecutors, lawyers, and investigators. This commission would have the authority to try war crimes and crimes against humanity, and would be equipped with an independent investigative and prosecutorial mechanism, defense office, and witness and victim protection program. The High Commissioner emphasizes that a hybrid special court is a necessary aspect of giving Sri Lankans, particularly victims, confidence that the process is independent and impartial. See Report at 1175-1264, 1278.