Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka/VII Conclusions

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

VII. Conclusions

1. Nature and scope of the allegations

421. Both parties to the armed conflict in Sri Lanka conducted military operations with flagrant disregard for the protection, rights, welfare and lives of civilians and failed to respect the norms of international law. There is a reasonable basis to believe that large-scale violations of international humanitarian and human rights law were committed by both sides. As a direct consequence, up to tens of thousands of Sri Lankan civilians were killed and hundreds of thousands suffered immensely, including through the loss of loved ones, serious injuries, displacement and loss of homes and livelihoods. In the aftermath of the armed conflict, many were forced to endure further hardships and humiliation.

422. The credible allegations involving conduct by the Government of Sri Lanka fall into five core categories of potential serious violations of international humanitarian and human rights law:

(i) killing of civilians through widespread shelling;

(ii) shelling of hospitals and humanitarian objects;

(iii) denial of humanitarian assistance;

(iv) human rights violations suffered by victims and survivors of the conflict, including both internally displaced persons (IDPs) and suspected LTTE cadre; and

(v) human rights violations outside the conflict zone, including against the media and other critics of the Government.

The credible allegations involving conduct by the LTTE associated with the final stages of the war reveal six core categories of potential serious violations:

(i) using civilians as a human buffer;

(ii) killing civilians attempting to flee LTTE control;

(iii) using military equipment in the proximity of civilians;

(iv) forced recruitment of children;

(v) forced labour; and

(vi) killing of civilians through suicide attacks.

423. The Panel’s assessment of what happened during the final stages of the war, and therefore the political, legal and moral obligations that follow, stands in stark contrast to the position of the Government, which continues to hold that it conducted a “humanitarian rescue operation” with a policy of “zero civilian casualties” and, therefore, has no responsibility for any wrongdoing.

2. Legal evaluation of the allegations

424. If proven, these credible allegations on both sides would amount to serious violations of international humanitarian and human rights law; many would amount to war crimes and crimes against humanity. Criminal responsibility would extend to both individuals who commit acts and to military commanders and civilian superiors. The credible allegations also point to numerous crimes under Sri Lankan law.

425. Addressing violations of international humanitarian or human rights law is not a matter of choice or policy; it is a duty under domestic and international law. Under international humanitarian law that applies to internal armed conflict as well as international human rights law, the credible allegations trigger a legal duty of the Government to conduct immediate and genuine investigations and, if the evidence warrants, to prosecute those most responsible.

3. Asymmetrical warfare and protection of civilians

426. The Government of Sri Lanka has sought to promote its military strategy as a successful means of defeating terrorism and has suggested that the “asymmetrical” nature of the war rendered some codes of international humanitarian law inapplicable, or at least in need of review. During the conflict, the LTTE also suggested that it was beyond the reach of international humanitarian law. While recognizing a State’s right under international law to national security and to defend itself against armed attacks, the Panel emphasizes that all actions taken for those legitimate purposes must comply with the requirements of international law. The Panel firmly rejects the view that international humanitarian laws are inappropriate for certain forms of modern warfare, including those used in Sri Lanka. Indeed, discussion is needed to increase safeguards to protect civilians in situations of armed conflict.

427. In this regard, during the final stages of the war, the United Nations political organs and bodies failed to take actions that might have protected civilians. Moreover, although senior international officials advocated in public and in private with the Government that it protect civilians and stop the shelling of hospitals and United Nations or ICRC locations, in the Panel’s view, the public use of casualty figures would have strengthened the call for the protection of civilians while those events in the Vanni were unfolding.

4. Ongoing violations by the Government

428. Nearly two years after the end of the fighting, the root causes of the ethno-nationalist conflict between the Sinhalese and Tamil populations of Sri Lanka remain largely unaddressed and human rights violations continue. There are consistent reports of such activities, some committed by agents of the State or state-sponsored paramilitaries; these include arbitrary detention without trial, abductions and disappearances, killings, attacks on the media and other threatening conduct. In this context, victims and survivors of the armed conflict in the Vanni have been unable to return to a normal life. An end to this violence, and the climate of fear that accompanies it, is critical to the creation of an environment conducive to accountability. Sri Lanka’s poor record in relation to enforced disappearances over a period of decades, up to the present time, has drawn deep expressions of concern from international bodies and requires immediate and serious attention.

5. Accountability based on international standards

429. In line with international standards, accountability includes, but goes beyond the investigation and prosecution of serious crimes. It is a broad process for ascertaining the political, legal and moral responsibility of individuals and institutions for past violations of human rights and dignity. Accountability is integral to a larger dynamic aimed at building sustainable peace based on respect for all human rights and a restoration of full citizenship to all members of the society. Consistent with international standards and best practices, accountability necessarily includes the achievement of truth, justice and reparations for victims. Accountability also requires an official acknowledgement by the State of its role and responsibility in violating the rights of its citizens, when that has occurred. In keeping with United Nations policy, the Panel does not advocate a “one-size-fits-all” formula or the importation of foreign models for accountability; rather it recognizes the need for accountability processes to be defined based on national assessments, involving broad citizen participation, needs and aspirations. Nonetheless, any national process must still meet international standards.

430. In formulating its advice on accountability, the Panel has given priority to the rights and needs of the thousands of victims who have suffered at the hands of both parties in the protracted armed conflict in Sri Lanka. Women, children and the elderly usually bear the brunt of suffering and loss in wars, and Sri Lanka is no exception, particularly during the final stages.

6. The Government’s concept of accountability

431. The Government has stated that it is seeking to balance reconciliation and accountability, with an emphasis on restorative justice. The assertion of a choice between restorative and retributive justice presents a false dichotomy. Both are required. Moreover, in the Panel’s view, the Government’s notion of restorative justice is flawed because it substitutes a vague notion of the political responsibility of past Government policies and their failure to protect citizens from terrorism for genuine, victim-centred accountability focused on truth, justice and reparations.

432. The Sri Lankan Government’s approach to accountability does not envisage an examination of its decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of international humanitarian and human rights law that may have occurred as a result. It does not envisage the identification of persons responsible for wrongdoing, nor that they be held to account. While the Government has acknowledged that excesses by military or police may have taken place and that a few cases are pending, it is not clear that any of these cases correspond to the serious allegations in this report, regarding Government conduct. Rather the Government is concentrating narrowly on the culpability of LTTE cadre, invoking rehabilitation for the majority and lenient sentences for the “hard core” as a model of “restorative justice”. Therefore, the Panel has concluded that the Government’s notion of accountability is not in accordance with international standards. Unless the Government addresses the allegations of violations committed by both sides and places the rights and dignity of the victims of the armed conflict at the centre of its approach to accountability, its measures will fall dramatically short of international expectations.

433. Helping people to rebuild their lives is not only a matter of providing material benefits, however necessary this may be, and certainly the Government needs to undertake a range of measures that address the immediate plight of those whose rights were and continue to be violated; it also requires the State to take genuine steps towards accountability.

7. Lessons Learnt and Reconciliation Commission

434. The Government has established the Lessons Learnt and Reconciliation Commission as the cornerstone of its policy to address the past, from the ceasefire agreement of 2002 to the end of the conflict in May 2009. The LLRC represents a potentially useful opportunity to begin a national dialogue on the legacy of Sri Lanka’s conflict; the need for such a dialogue is illustrated by the large numbers of people, particularly victims, who have sought spontaneously to speak with the Commission.

435. Nonetheless, the LLRC fails to satisfy key international standards of independence and impartiality, compromised by the composition of the Commission and deep-seated conflicts of interests of some of its members. The mandate of the LLRC, as well as its work and methodology, to date, are not tailored to investigating allegations of serious violations of international humanitarian and human rights law, or to examining the root causes of the decades-long ethnic conflict; instead these focus strongly on the wider notion of political responsibility mentioned above, which forms part of the flawed and partial concept of accountability put forth by the Government. The work to date demonstrates that the LLRC has:

not conducted genuine truth-seeking on what happened in the final stages of the armed conflict;

not sought to investigate systematically and impartially the allegations of serious violations on both sides of the war;

not employed an approach that treats victims with full respect for their dignity and their suffering;

and not provided the necessary protection for witnesses, even in circumstances of actual personal risk.

436. Moreover, for three decades numerous commissions of inquiry have been established to examine a number of serious human rights issues. While some have served important factfinding goals, overwhelmingly these commissions have failed to result in comprehensive accountability for the violations identified. Many commissions have failed to produce a public report and recommendations have rarely been implemented.

437. The LLRC has provided an opportunity for Sri Lankans to air some of their concerns and, taken together, its interim and forthcoming final recommendations may result in improvements in the living conditions of some of those affected by the armed conflict. However, the LLRC is deeply flawed, does not meet international standards for an effective accountability mechanism and, therefore, does not and cannot satisfy the joint commitment of the President of Sri Lanka and the Secretary-General to an accountability process. A new approach is required, both to ensure genuine investigations of specific allegations of violations by the LTTE and the Government, and to undertake a broad examination of the past, with a focus on the root causes of the conflict.

8. The Sri Lankan justice system and Human Rights Commission

438. The justice system should play a leading role in the pursuit of accountability, irrespective of the functioning or outcomes of the LLRC. However, based on a review of the system’s past performance and current structure, the Panel has little confidence that it will serve justice in the existing political environment. The Attorney-General holds a central position within the criminal justice system, controlling both investigations and prosecution, but the independence of the Attorney-General has been weakened in recent years. Investigations and prosecutions have frequently been arbitrary and slow, and criminal inquiries have been used to harass and intimidate many critics and victims of the Government’s actions. At present, the criminal justice system is ineffective in combating a culture of impunity. This is due much more to a lack of political will than to lack of capacity. Sri Lanka has a well-established legal infrastructure and educated professionals who are capable of upholding justice, but this requires an enabling environment that is currently lacking. The continuing imposition of Emergency Regulations combined with the Prevention of Terrorism Act in its current form, present significant immediate obstacles for the justice system to be able to address wrongdoing while upholding human rights guarantees.

439. Equally, the Panel has seen no evidence that the military courts system has operated as an effective accountability mechanism in respect of the credible allegations it has identified or other crimes committed in the final stages of the war.

440. The Human Rights Commission of Sri Lanka could potentially contribute to advancing accountability, but the Panel still has serious reservations and believes that the Commission will need to demonstrate political will and resourcefulness in following up on cases of missing persons and in monitoring the welfare of detained persons.

9. The way forward

441. Sri Lanka’s efforts, nearly two years after the end of the war, fall dramatically short of international standards on accountability and fail to satisfy either the joint commitment of the President of Sri Lanka and the Secretary-General, or Sri Lanka’s legal duties. The Government of Sri Lanka has not discharged its responsibilities to conduct a genuine investigation, nor has it shown signs of an intention to do so. In such situations, as aptly stated in the Report of the Secretary-General on the Protection of Civilians in Armed Conflict, “[I]t is imperative that international steps to ensure accountability not be held hostage to unnecessarily slow or otherwise ineffective national efforts.” Thus, while the Sri Lankan authorities should immediately embark on a genuine investigation of the alleged violations in this report, the Panel considers that an independent and complementary international approach is imperative.

442. The Government’s current approach to accountability does not correspond to basic international standards that emphasize truth, justice and reparations for victims. Moreover, following its defeat of the LTTE, the Government’s ongoing denial that immense harm was done to its citizens, including the death of tens of thousands, not only by the LTTE, but also by its own armed forces, presents a fundamental obstacle to accountability. An enabling environment that would permit a candid appraisal of the broad patterns of the past, including the root causes of the long-running ethno-nationalist conflict, does not exist at present. It would require concrete steps towards building an open society in which human rights are respected, as well as a fundamental shift away from the Government’s triumphalist posture, towards a genuine commitment to a political solution that recognizes Sri Lanka’s ethnic diversity and the full and inclusive citizenship of all of its people, as the foundation for the country’s future.