Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka/I Mandate, Composition and Programme of Work

by UN's Secretary-General's Panel of Experts on Accountability in Sri Lanka

I. Mandate, Composition and Programme of Work

A. Formation of the Panel

5. On 22 June 2010, the Secretary-General announced the appointment of this Panel of Experts to advise him on the issue of accountability with regard to alleged violations of international humanitarian and human rights law during the final stages of the armed conflict in Sri Lanka. The Panel’s Terms of Reference were established as follows:

In the Joint Statement of the Secretary-General and the President of Sri Lanka issued at the conclusion of the Secretary-General’s visit in the country on 23 May 2009, the Secretary-General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). The President of Sri Lanka undertook to take measures to address these grievances. At this time and against this background:

1. The Secretary-General has decided to establish a panel of experts to advise him on the implementation of the said commitment with respect to the final stages of the war.

2. The purpose of the Panel shall be to advise the Secretary-General on the modalities, applicable international standards and comparative experience relevant to the fulfilment of the joint commitment to an accountability process, having regard to the nature and scope of alleged violations.

3. It shall be composed of three members having appropriate and relevant experience. The Panel shall develop its own working modalities and be assisted by a Secretariat with the support of OHCHR.

4. The Panel shall submit its report to the Secretary-General within four months of the commencement of its work.

5. The Panel shall be funded from the Secretary-General’s unforeseen budget.

6. The Secretary-General appointed as members of the Panel Marzuki Darusman (Indonesia), Chair; Steven Ratner (United States); and Yasmin Sooka (South Africa). The Panel formally commenced its work on 16 September 2010.^[1]

B. The mandate of the Panel

1. The overall task of the Panel

7. The role of the Panel is to provide advice to the Secretary-General on the measures that Sri Lanka has thus far taken and should, in the future take, to give effect to the joint statement of 23 May 2009 between the Secretary-General and the President of Sri Lanka, with specific regard to accountability, in light of the actual nature and scope of all allegations.^[2] Thus, the Panel has focused extensively on the modalities, standards and comparative experiences regarding accountability for violations of international humanitarian and human rights law, including for distinct violations against groups with particular vulnerabilities, such as women and children. It has sought to provide as complete a picture as possible of the current approach of States and international organizations to this issue. It has also examined Sri Lanka’s domestic mechanisms relevant or potentially relevant to accountability to determine whether they fulfil Sri Lanka’s domestic and international obligations and the extent to which they reflect best international practices. Finally, the Panel has considered current policies of the Government related to accountability for final stages of the war. These policies include the creation of the Lessons Learnt and Reconciliation Commission (LLRC).

8. The Panel views accountability as a broad process for ascertaining the political, legal and moral responsibility of institutions and individuals for past violations of human rights and dignity; accountability necessarily includes the achievement of truth, justice, and reparations for victims and is integral to a larger dynamic aimed at achieving sustainable peace in a State after conflict. Later in this report, the Panel elaborates on the components of accountability, as well as the views of the Government of Sri Lanka concerning accountability.

9. Accountability standards and mechanisms cannot be examined in a vacuum, and the Panel’s Terms of Reference state that its advice to the Secretary-General should “hav[e] regard to the nature and scope of alleged violations”. The “nature and scope” refers to both the extent and the legal qualifications of the allegations. This provision thus required the Panel to gather information from a variety of sources in order to characterize the extent of the allegations, appraise them legally and provide the best possible advice to the Secretary-General regarding the implementation of the joint statement with regard to accountability. The Panel has not conducted fact-finding as that term is understood in United Nations practice, as it does not reach factual conclusions regarding disputed facts, nor did it carry out a formal investigation that draws conclusions regarding legal liability or culpability of States, non-state actors, or individuals.^[3]

10. Based on the Panel’s assessment of the allegations and the various modalities for accountability, the Panel has offered a set of recommendations for use by the Secretary-General in pursuit of accountability in Sri Lanka. The report is based on information and materials available to the Panel during the timeframe of its work.

11. From the inception of its work, the Secretary-General and United Nations senior officials made clear to the Panel that, although it reported to, and would ultimately provide advice to, the Secretary-General, it had the authority to work independently in the implementation of its mandate. Moreover, officials of the United Nations made clear the Panel’s independence to the Government of Sri Lanka on subsequent occasions.

2. The temporal mandate of the Panel

12. The Terms of Reference require the Panel to advise the Secretary-General about the implementation of the joint statement regarding the “final stages of the war”. The Panel focused on the period from September 2008 through May 2009, which encompasses the most intense and violent phase of the war during which many of the most serious violations of international law are alleged to have taken place. September 2008 corresponds to the beginning of the Government’s final military offensive on the LTTE de facto capital of Kilinochchi. It also coincides with the end of international observation of the war due to the Government’s declaration that it could no longer ensure the security of international staff working for international organizations in the Vanni. May 2009 corresponds to the end of the fighting and the military defeat of the LTTE.

13. In order to provide context, the Panel at times discusses issues that predate the final stages as defined above. In addition, the Panel is aware of allegations of violations of humanitarian and human rights law that began before the end of, or are closely connected with, the final stages of the war and which have continued – in some cases up to the present day – past the cessation of actual hostilities. The Panel does not address allegations of ongoing violations that lack a close nexus to the armed conflict, in particular those in other parts of Sri Lanka.

3. The subject matter of the alleged violations

14. The Terms of Reference refer to allegations of violations of international humanitarian and human rights law. Regarding humanitarian law, the Panel addresses the applicable conventional norms set out in the Geneva Conventions and the corresponding norms of customary international law, concerning treatment of persons not or no longer taking part in hostilities and the means and methods of warfare. As for human rights law, the Panel considers both political and civil rights and economic, social and cultural rights, with a focus on the international human rights treaties ratified by Sri Lanka. In doing so, the Panel recalls the mutually reinforcing Security Council Resolutions relating to the effects of armed conflict on women and children and recognizing the consequent impact these have on durable peace and reconciliation.^[4] Insofar as Sri Lanka’s domestic law incorporates international humanitarian and human rights law as well as other laws related to accountability, Sri Lankan law and relevant institutions are discussed as well. Finally, the Panel addresses allegations of violations by the primary actors in the war, that is, the Government and the LTTE.

C. Programme of work

15. The Terms of Reference states that the Panel will develop its own modalities and will be supported by a secretariat. In the two months prior to the formal commencement of its work in mid-September 2010, a secretariat was assembled from professionals working within the United Nations system. In addition, the Panel drew on a small number of external consultants to provide it with advice not otherwise available. The Panel was also aided by a pre-existing Reference Group consisting of representatives of relevant departments within the United Nations Secretariat.

16. The Panel’s programme of work was organized in two phases. In the first phase, the Panel gathered a variety of information regarding the armed conflict in Sri Lanka from individuals and institutions with expertise or experience related to its mandate. Some of this information came in written form, consisting of both public documents – e.g., governmental, United Nations or reports of non-governmental organizations (NGOs) – and material conveyed confidentially to the Panel. Other information was gathered through numerous meetings of the Panel and its secretariat. The Panel met with officials of the United Nations and international organizations as well as representatives of Governments and NGOs and individuals directly affected by the events of the final stages of the war. In the second phase of its work, the Panel drafted this report. The report was written in a manner that makes it suitable for publication.

17. In terms of outreach to the broader public, the Panel made a general invitation for written submissions from interested organizations and individuals. On 21 October 2010, the Panel’s Chief of Staff wrote to the Permanent Representative of Sri Lanka to advise him of this decision, enclosing a copy of the notice and noting that it would be posted on the United Nations website. The English notice was posted on 27 October 2010, and Sinhala and Tamil versions were subsequently posted. The initial deadline of 15 December 2010 set for these submissions was subsequently extended to 31 December 2010. As of 31 December 2010, the Panel had received over 4,000 submissions from more than 2,300 senders.

18. A significant number of the submissions contained allegations relating to particular kinds of violations or to particular time periods during the final stages, and individual complaints of specific violations of human rights or humanitarian law. Documentary information, comprised of lists of incidents or victims, photographs and videos, was also received. A limited number of unbiased analytical submissions provided analyses of general information, trends or specific aspects of the situation. General information, including media reports, web links and historical accounts, forwarded to the Panel from publicly available sources, also accounted for a portion of submissions. Lastly, appeals urging the Panel to act or to make specific recommendations, but containing neither fact-based information nor analysis, accounted for a large number of submissions received.

19. Submissions could not be individually verified by the Panel and, therefore, were not used as a direct source to meet the Panel’s threshold of credibility for the allegations (see chapter III.A). In some cases, however, submissions helped to corroborate other sources of information. The large number of submissions received, including about incidents predating the Panel’s temporal mandate, underscores the urgent need to address the past, not only in terms of the final stages of the war, but also, more broadly.

D. Interaction with the Government of Sri Lanka

20. Since its inception, the Panel wished to engage with the Government of Sri Lanka to discuss the implementation of its mandate and to learn more about the Government’s perspectives on how it is addressing the accountability issues. Indeed, the Secretary-General stated to both the Panel and the Government his hope that the Panel could serve as a resource for the Government. The Panel consistently maintained the position that, in particular, it would be valuable to engage with the LLRC, as the Government has referred to it publicly as a home grown accountability mechanism. At the same time, the Panel considered that other domestic institutions have an important role vis-à-vis accountability and sought to engage with these as well, through the Government. The Panel’s efforts to engage with the Government of the Sri Lanka and the LLRC are described in detail in Annex 2.

21. As that account demonstrates, the Panel made repeated efforts, orally and in writing, from early September 2010 until near the completion of its mandate, to engage with the Government of Sri Lanka. The Panel and United Nations officials repeatedly made clear to the Government the scope of its mandate as an advisory panel to the Secretary-General, including that it was not engaged in any investigation. After several months of lack of communication with the Panel, the Government invited the Panel to Sri Lanka, only to reverse its position effectively, when it did not discuss with the Panel the modalities of such a visit. The Panel notes that it reiterated its willingness to visit the country even after the Government insisted in a letter in December 2010 that the Panel could only make “representations” to the LLRC. Yet the Government rejected this overture in a note in early January 2011 and never pursued the visit thereafter. Instead, it responded in writing to the Panel’s questions, which were transmitted at the end of January, regarding the LLRC and other domestic mechanisms, and sent a small delegation to New York that did not include any members of the LLRC.

22. The Panel regrets that the Government of Sri Lanka did not permit the Panel to visit the country and meet with the LLRC and the range of Government officials involved in accountability questions. While a visit to Sri Lanka was not essential to its work, it would have provided an opportunity for the Panel to meet both the LLRC and Government officials, hear their perspectives more directly and share its expertise with them (although the Panel was able to ascertain official views in other ways). While the Panel welcomes the written responses and appreciates the opportunity to have a face-to-face dialogue with Sri Lankan officials, it was not the type of engagement that the Panel had sought.

E. Confidentiality of the Panel's records

23. In some instances, the Panel received written and oral material on the condition of an assurance of absolute confidentiality in the subsequent use of the information. The Office of Legal Affairs (OLA) confirmed through formal legal advice that the provisions set out in the Secretary-General’s Bulletin on “Information sensitivity, classification and handling” (ST/SGB/2007/6) could be applied to its records. This Bulletin provides for classification of a document as “strictly confidential” with correspondingly strict limits on any access for a period of 20 years, following which a declassification review may be undertaken that weighs the equities involved in retention or release. Moreover, OLA confirmed that, where necessary and appropriate for the Panel’s work, the Panel could give an undertaking of absolute confidentiality in the subsequent use. As a result, nearly all of the Panel’s substantive records will be classified as “strictly confidential” with, in some cases, additional protections regarding future use.

---

1. In light of intervening developments, the timeframe for the Panel’s report was subsequently extended to the end of March 2011.
2. The full text of the Joint Statement may be found in Annex 1.
3. See Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, General Assembly Resolution, A/RES/46/59 (1991); United Nations Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (1992), pp. 24-33.
4. See Security Council Resolutions 1325 (2000), 1612 (2005), 1674 (2006), 1820 (2008), 1882 (2009) and 1888 (2009).