Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka/V Sri Lanka’s Approach to Accountability

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

V. Sri Lanka’s Approach to Accountability

261. In this chapter, the Panel assesses Sri Lanka’s approach to accountability in light of applicable international standards and comparative experiences, having regard to the scope and nature of the alleged violations analysed in chapters III and IV.

A. Applicable international standards and comparative experiences

262. Many States emerging from conflict have experienced violations that are similar to those in Sri Lanka, which potentially amount to war crimes and crimes against humanity. Those experiences, from a highly differentiated group of States, have resulted in both a set of global expectations that have found their expression in international standards regarding necessary responses to such allegations and, at the same time, a range of diverse practical approaches for addressing such crimes, which are consistent with those standards.

263. Several human rights treaties, to which Sri Lanka is a party, contain obligations regarding investigation. Article 2(3) of the ICCPR requires the State to provide an effective remedy to victims of human rights violations. That treaty provision has been interpreted by the United Nations Human Rights Committee to require States to investigate all violations of the Covenant and, in the case of gross violations or those constituting international crimes, to bring the alleged perpetrator to justice.^[1] In addition, Article 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which Sri Lanka is a party, requires States to investigate and prosecute (or extradite to another State seeking to prosecute) all persons alleged to have committed the international crime of torture.

264. A recent report of independent experts presented to the Human Rights Council contains a useful list of legal standards for investigations based on decisions of the regional human rights courts under regional human rights treaties and the United Nations Human Rights Committee interpreting the ICCPR.^[2] These standards include independence, impartiality, thoroughness, effectiveness and promptness.^[3]

265. Apart from the obligations arising from these treaties, the duty to investigate derives from several other international bodies and resolutions. The General Assembly has also interpreted human rights law as including an obligation to investigate in its 2006 Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law.^[4] The Security Council too has frequently reiterated the importance of eliminating impunity for serious abuses of human dignity, including through prosecutions of war crimes and crimes against humanity, including in Resolution 1674 (2006) concerning the protection of civilians in armed conflict. It has taken the same approach regarding protection of civilians and ending impunity in country situations involving internal armed conflict.^[5] Additionally, Resolution 60/1 of the World Summit Outcome, adopted in 2005 by the unanimous consensus of participating Heads of State and Government, including Sri Lanka, reaffirms the responsibility of States to protect their populations from war, genocide, war crimes, ethnic cleansing and crimes against humanity.

266. In addition, various United Nations processes have formulated important standards and frameworks regarding accountability. Of particular significance is the 2005 Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity. Formulated by experts mandated by the United Nations Commission on Human Rights, this document lays out the core understanding that victims of crimes under international law have three basic rights: the right to the truth, the right to justice and the right to reparations, including through institutional guarantees of non-recurrence.^[6]

267. Beyond these actions by organs of the United Nations, States have increasingly refrained from amnesties for genocide, war crimes and crimes against humanity, or have used judicial or legislative measures to overturn earlier amnesties; international courts have similarly ruled that amnesties for such crimes are impermissible.^[7] This is also the policy position of the United Nations. The Government of Sri Lanka has also said that “it is our considered view that amnesties intrinsically encourage a culture of impunity and are therefore inappropriate”.^[8]

268. With respect to violations of international humanitarian law in internal armed conflict, there is now strong support in international practice and judicial precedent for a legal duty upon States to investigate and, if the evidence warrants, prosecute serious violations. In particular, an interpretation that accepts a duty to investigate such violations in international armed conflicts but not in an internal armed conflict is no longer sustainable. In the words of the ICTY: “Principles and rules of humanitarian law reflect elementary considerations of humanity widely recognized as the mandatory minimum for conduct in armed conflicts of any kind. No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.”^[9] The duty to investigate serious violations in internal armed conflict has also been endorsed unanimously by the General Assembly in Resolution 60/147. In addition, the ICRC, which occupies a special role in the interpretation of international humanitarian law, has found a duty upon States under customary international law to investigate and prosecute war crimes in internal armed conflict, based on an extensive review of state practice.^[10]

269. The legal duties and standards elaborated above are now buttressed by a generation of state practice of instituting particular mechanisms to promote accountability for serious violations of international humanitarian or human rights law. Such practice indicates that a state emerging from a period of large-scale violations, and seeking to build sustainable peace and a better future, cannot turn its back to the past but must confront it. In post-conflict or transitional settings, States have engaged a “full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”^[11] These processes and mechanisms are collectively known as transitional justice. In the words of the Secretary-General:

The challenges of post-conflict environments necessitate an approach that balances a variety of goals, including the pursuit of accountability, truth and reparation, the preservation of peace and the building of democracy and the rule of law… Where transitional justice is required, strategies must be holistic, incorporating integrated attention to individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or an appropriately conceived combination thereof.^[12]

270. The concept of transitional justice as an inter-related set of measures required to address legacies of violations has gained global acceptance.^[13] Transitional justice examines individual violations, but also goes beyond them to analyse patterns and legacies of violence, which result from complex structural injustices. Again, in the words of the Secretary-General: “By striving to address the spectrum of violations in an integrated and independent manner, transitional justice can contribute to achieving the broader objectives of prevention of further conflict, peace-building and reconciliation.”^[14]

271. The rationale for transitional justice is not to dwell on the past or to seek retribution. Instead, transitional justice seeks to break cycles of violence, combat impunity and denial, and acknowledge the suffering of victims by ensuring accountability for past crimes. It also seeks to address, more broadly, systemic or structural factors and injustices that predate or exist outside the conflict, but which influenced the nature of violations and experiences of conflict, including discrimination against women. It seeks to rebuild trust between citizens and the State and strengthen the rule of law, thereby contributing to the prevention of conflict in the future. In this sense, transitional justice is essentially forward-looking, like it was in South Africa, where the process supported a transformation from a deeply racist State to a society “based on democratic values, social justice and fundamental human rights”, as established in its Constitutional Preamble.

272. Transitional justice is a useful lens through which Sri Lanka can focus its approach to accountability. It is applicable in any post-conflict setting, including where the Government has defeated an insurgency, as was the case in Peru. In particular, Sri Lanka should seek to guarantee the rights of victims to truth, justice and reparations, all of which are based on international standards and should form an essential part of a transitional justice approach.

273. The right to truth initially evolved from the decisions of the United Nations Human Rights Committee and the jurisprudence of the Inter-American Commission and Court on Human Rights, in relation to victims of enforced disappearances and the rights of relatives to know their fate. Actions to ensure and exercise the right to truth are particularly important in situations where the truth is not fully known, where there is controversy about events as they unfolded, where denial by the State or historic revisionism have predominated or where there has been a systematic silencing of victims.

274. One means through which the right to truth has been advanced is through the establishment of truth commissions, which have been defined by the Secretary-General as “official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law committed over a number of years.”^[15] Truth commissions can uncover patterns of violations, identify the underlying divisions and inequalities that perpetuate conflict and indicate institutional responsibilities. Truth commissions generally give emphasis to both process and product, in that they seek not only to establish these aspects of the truth, but also to give voice to victims and their experiences, including those groups who may face particular marginalization, such as women or children. A recent book documents forty truth commissions from 1974-2009, including 21 in the last 10 years.^[16] Eight of these were in the Americas, one in Europe, seven in Africa, and five in Asia (many of them recently).

275. The right to justice is encapsulated in many international treaties, but radical changes in the enforcement of the right to justice occurred with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and its sister tribunal for Rwanda (ICTR) in 1994. This was strengthened by the Rome Statute of the International Criminal Court (ICC), which came into force in 2002 and currently has 114 States Parties (Sri Lanka is not yet one of them). The Rome Statute constitutes an important evolution in the international legal landscape, in prohibiting some of the worst crimes known to humankind. The principle of complementarity, under which the ICC only investigates or prosecutes where States are unwilling or unable to do so genuinely, recognizes the continued primacy of national courts in investigating and trying these crimes. Many States Parties have implemented domestic legislation giving rise to a duty to prosecute genocide, war crimes and crimes against humanity in national courts. Increasingly, domestic criminal proceedings of a State’s own citizens for serious violations, which could amount to war crimes during an internal armed conflict, are being conducted in States as varied as Argentina, Bangladesh, Bosnia, Chile, Colombia, the Democratic Republic of Congo, Guatemala, Peru, Serbia, Rwanda and Uganda.^[17] Other States created hybrid tribunals of mixed national-international composition to try war crimes and crimes against humanity, including in Kosovo (1999), Timor-Leste (2000), Sierra Leone (2002), Cambodia (2003) and Bosnia (2004).

276. The right to reparations is well-recognized in the wake of serious violations and has been implemented in a wide variety of situations, through both judicial and administrative means. Many truth commissions have recommended reparations, including commissions in Argentina, Chile, South Africa, Guatemala, Peru, Sierra Leone, Timor-Leste, Morocco and Liberia.^[18] Some courts also have the power to award reparations. Reparations serve at least three important goals:

(i) to acknowledge the wrong done to victims;

(ii) to recognize the loss and suffering of the victims, and in doing so, affirm their identity as rights-holders entitled to redress; and

(iii) to provide actual benefits to victims, whether in symbolic or material forms, even if the harm they suffered is, as such, irreparable.

277. Reparations can be provided to either individuals or communities and can take a wide variety of forms, including restitution of rights, monetary compensation, medical and psychological services, health care, educational support, return of property or compensation for loss thereof, as well as official public apologies, building museums and memorials and establishing official days of commemoration.^[19] Reparative measures of a collective nature are distinguished from general development efforts in that they must be accompanied by official recognition of rights violations. Finally, and importantly, there is an increasing awareness of the gendered aspects of reparations and the need to examine the implications of particular measures and means of implementation for both women and men.

B. The Government of Sri Lanka’s position on accountability

278. In respect of accountability, the United Nations does not support “one-size-fits-all formulas and the importation of foreign models” and bases its support on “national assessments, national participation and national needs and aspirations”.^[20] This does not, however, diminish the importance of international standards, which should be incorporated into any national model. Sri Lanka’s approach to accountability should, thus, be assessed against international standards and comparative experiences to discern how effectively it enables victims of the war to realize their rights to truth, justice and reparations.

279. The Government of Sri Lanka provided an explanation of the philosophy that frames its approach to accountability, both in written responses to questions from the Panel and in a meeting on 22 February 2011 in New York between the United Nations and a high-level delegation of the Government of Sri Lanka, headed by the Attorney-General, Mohan Peiris, at which the Panel was present.(^[21] Sri Lanka is seeking to balance accountability and reconciliation through what amounts to a two-pronged conception of accountability, described by the Attorney-General as (1) judicial proceedings against some members of the LTTE, and (2) political responsibility of successive Governments for their failure to discharge their constitutional obligation to protect Sri Lanka’s people and territory against the LTTE. Furthermore, in its written response, the Government offered these additional views:

… it is important to appreciate that the whole LLRC [Lessons Learnt and Reconciliation Commission] process is structured on the philosophy of restorative justice. It is this philosophy which would govern the consideration of civil or criminal liability. The entire endeavour requires that what happened in the past must be relegated to history, by all communities inclusive of the majority community. This must be accompanied by a manifestation of contrition on part of the wrong doer as a recognition of the supremacy of the rule of law within a democratic process.^[22]

280. The Government of Sri Lanka told the Panel that the LLRC, which is central to its approach, is not focused on individual accountability, but on a wider notion of political responsibility, by which the State has responsibility to protect its citizens. The Attorney-General explained that this aspect of the LLRC was inspired by the Iraq Inquiry (the Chilcot Inquiry) in the United Kingdom, which has a similar mandate.^[23]

281. Missing from the Government’s two-pronged conception is any notion of accountability for its own conduct in the prosecution of the war, especially during the final stages. The Government of Sri Lanka also stated that if the LLRC process gives rise to “a particular culpability” that should be further investigated, this will be referred to a “separate unit” of the Attorney-General’s office. However, the Government indicated that, to date, none of the representations made to the LLRC identified individuals or groups to whom such responsibility could be attributed. The Government said that it is “alive and sensitive to the excesses that can take place in the hands of military personnel” and that there are a few cases pending against police and military personnel.^[24] Nonetheless, this formulation does not appear to contemplate the possibility that violations were committed on a large-scale or systematic basis; if this were to be the case, then it might be inferred that the violations were based in policy, ordered or condoned at the highest levels, politically and militarily.

282. The restorative part of its approach, which the Government explains is modelled on the South African Truth and Reconciliation Commission (TRC) and examples of commissions elsewhere, refers to its decision to bring criminal charges only against some 1,500 of the “hard core LTTE”, while preferring “rehabilitation” for the remainder. In all cases “the least restrictive sentencing policies have been adopted, with a generous resort to mechanisms of non-custodial sentences.”^[25] According to the Attorney-General, a four member special committee chaired by a senior officer of the Attorney-General’s Department is reviewing cases against suspected LTTE cadre, to this end.^[26]

283. The LLRC also has power to grant restitution, although the grounds on which it would do so are not clear. The Government has repeatedly emphasized that “there are no victors and no vanquished”, that the whole nation has suffered from the conflict and that “everyone has lost and no-one has won”.^[27] It says the victims of the conflict will benefit from overall development of the conflict-affected areas and that the overall reconstruction of the North (and East) will contribute to the restoration of peace. The Sri Lankan Government points out that, in the performance of its functions, it is “showing contrition” by touching the “hearts and minds” of its people. It is spending and investing in the North and East for infrastructure, facilities and housing programmes, among other measures, “to some extent at the expense of the rest of the country”.^[28]

284. The Panel is obliged to comment on the Government’s affirmation that it has chosen a restorative rather than retributive approach and on its explanation that, in doing so, it has drawn on the experiences of South Africa as well as other countries that implemented truth commissions, but did not proceed with prosecutions. Reliance on these experiences would, in fact, lead to a different model. The South African TRC conducted a full investigation into both institutional and individual responsibilities, highlighting many of the underlying causes that allowed the continuation of apartheid for many years. It required perpetrators to come forward to provide full information on their actions and apply for individualized amnesties if their crimes were politically motivated. Also, the process was inherently victim-centred, facilitating and supporting participation by victims to report violations to the TRC and to claim reparations. This is not the case with the LLRC in Sri Lanka, as will be discussed below. In addition, in most countries where there have been truth commissions, these have not precluded criminal prosecutions; rather prosecutions have followed them, including in Argentina, Chile, Guatemala, Peru, Sierra Leone, Timor-Leste and others.

285. As an initial matter, a de facto decision not to hold accountable those who committed serious crimes on behalf of the State during the final stages of the war is a clear violation of Sri Lanka’s international obligations and is not a permissible transitional justice option. While there is some flexibility on the forms of punishment under international law, investigations and trials are not optional, and the creation of a commission such as the LLRC does not in itself fulfil the State’s duty in this case.

286. In relation to the argument on “restorative justice”, since the establishment and work of the South African TRC, the global legal landscape has changed, and there is wide recognition that amnesties for certain crimes are no longer permissible. Sri Lanka recognizes the non-applicability of amnesties, but it is not taking action on the accountability of its military and political leaders, and argues that it can opt for non-custodial measures for the LTTE cadre and that it can assign the LLRC to examine other issues of accountability. In this regard, the approach in Sri Lanka vis-à-vis the LTTE resembles some aspects of the initial draft of the Justice and Peace Law (2005) in Colombia. Reviewed by its Constitutional Court in 2006, key sections of the draft law were found to be unacceptable. In particular, non-custodial sentencing options were found incommensurate with the gravity of the crimes under consideration. In addition, the Constitutional Court required that the law be strengthened on guarantees of truth and reparations for victims.

287. Further, the suggestion that there is a choice between “restorative” and “retributive” justice is based upon a false dichotomy, since international standards require that States both ensure justice, by investigating violations and prosecuting crimes, and implement other measures for victims, including truth and reparations. Equating criminal justice with retributive justice is simply not accurate, as criminal justice has many goals beyond retribution; most importantly, it seeks to strengthen accountability by reaffirming norms and demonstrating their applicability to all citizens within a society, thereby preventing similar crimes in the future.

288. It is also necessary to emphasize that development programmes and humanitarian assistance are not to be equated with reparations. Reparations must represent an acknowledgement on behalf of the State and must be provided to people because their rights were violated, not out of humanitarian concerns, albeit the importance of the latter. The credible allegations analysed in this report suggest that the actions involved go beyond a failure to protect citizens from terrorism, as argued by the Government and could entail the direct violation by the Government of the rights of its people, on a large scale, including allegations of war crimes and crimes against humanity. The Sri Lankan Government should use reparations as a demonstration of genuine acknowledgement of violations and as redress for victims, not as a cover-up for accountability. Programmes that promote development as well as being reparative, such as community level reparations, may form part of reparations, but acknowledgement must be at the centre of the approach.^[29]

289. Finally, in many other societies, ranging from Argentina to South Africa, to Morocco and Timor-Leste, accountability, within a transitional justice framework, was promoted by an active civil society, in the context of increasing space for dialogue, consultation and activism by victims groups and human rights organizations. Currently, the climate in Sri Lanka is not favourable for such initiatives, with even simple commemoration ceremonies or other forms of memorialization prohibited. Unless the Government of Sri Lanka takes significant steps to open greater political spaces, allow for free debate and permit independent efforts to document the truth of what happened during the final stages of the war, not even the best conceived transitional justice approach will be able to make an effective contribution to accountability and respect for the rights of victims.

C. Lessons Learnt and Reconciliation Commission

290. Almost exactly a year after the conclusion of hostilities in May 2009, the President of Sri Lanka appointed a Commission on Lessons Learned and Reconciliation (LLRC), under the Commissions of Inquiry Act 1948, to examine events from the operationalization of the ceasefire agreement in 2002 through to the end of the conflict in May 2009. The establishment of the LLRC followed sustained pressure from the United Nations and the wider international community for the Sri Lankan Government to give effect to its commitment made to the Secretary-General on 23 May 2009, following his visit to the country, to take measures to address accountability issues resulting from the armed conflict.

291. The eight-member commission headed by a former Attorney-General, Mr. Chittan Ranjan de Silva, is in its own words “expected to focus on the causes of conflict, its effect on the people and promote national unity and reconciliation, so that all citizens of Sri Lanka, irrespective of ethnicity or religion, could live in dignity and a sense of freedom.”^[30] It is also “expected to identify mechanisms for restitution to the individuals whose lives have been significantly impacted by the conflict”.^[31] The LLRC, based in Colombo, began its hearings on 11 August 2010 and was originally mandated to report to the President in November 2009. It soon encountered what it described as “continuing public demand to give evidence before the Commission and the need to visit more districts and places”, and therefore the Commission requested an extension of its warrant. As a result, in November 2010 the President of Sri Lanka extended its warrant by a further six months, through 15 May 2011. There are indications that the LLRC may be extended beyond May.^[32]

292. The Government of Sri Lanka has repeatedly referred to the LLRC as the essential mechanism of its domestic response to issues arising from the armed conflict.^[33] Applying the framework provided by international standards, the Panel has assessed the extent to which the LLRC, in its form and practice to date, represents an effective accountability mechanism. In particular, it considers the LLRC’s effectiveness in addressing the fundamental issues of truth, justice and reparations.

293. From the outset, the Panel sought to engage with the LLRC, in order to better understand its process, raise issues and questions directly with the Commission and share international best practices and comparative experiences. Despite repeated attempts and protracted negotiations with the Government, it did not prove possible for the Panel to visit Sri Lanka and engage with the LLRC. Instead, therefore, on 28 January 2011, the Panel submitted a series of questions to the LLRC through diplomatic channels (Annex 2.14). By Note Verbale to the Secretary-General, dated 16 February 2010, the Permanent Mission of Sri Lanka conveyed a communication by the Presidential Secretariat, responding to a number of those questions (Annex 2.15).^[34]

294. While the Panel was not able to visit Sri Lanka and observe the LLRC’s work firsthand, it did have, in addition to the Government’s response, access to material placed in the public domain by the LLRC, notably the transcripts of hearings posted on its website, as well as material from other Government sources. It has also analysed national and international media reports as well as submissions from national and international civil society groups and accounts of persons having had direct contact with the LLRC.

295. The LLRC is not the first commission established in Sri Lanka to deal with similar issues. These commissions, including the LLRC, were created under the Commissions of Inquiry Act (1948), which was designed to provide a framework for oversight of the administration of public services and the conduct of public officials, not as a mechanism to address human rights violations, as such. Nonetheless, the Act’s general public safety and welfare clause proved to be sufficiently broad to serve as the legal basis for the creation of commissions of inquiry into human rights violations. The Act vests the president with broad powers, which have been used in the past to control commissions and seriously undermine their independence and impact.

296. Indeed, there is a troublingly consistent experience with previous commissions of inquiry created in response to calls for accountability for serious and systematic abuses of human rights. Spanning three decades and beginning with the 1977 Sansoni Commission, these commissions have almost invariably been beset by a combination of flaws that have profoundly hampered their work.^[35] Despite severe limitations, however, certain commissions have produced a measure of fact-finding and made important recommendations for accountability. Nonetheless, on the information before the Panel, in no instance over the full span of 33 years since the initial mechanism in 1977 has the follow-up from a commission’s findings and recommendations resulted in more than marginal accountability, at either individual or systemic levels. The striking lesson that can be derived from these previous processes is the lack of political will displayed by successive Governments to address the issue of accountability in a manner consistent with international standards.^[36] This past experience is relevant for assessing the extent to which the LLRC can potentially contribute to genuine accountability.

1. Mandate of the LLRC

297. The mandate provides key elements for the assessment of the LLRC’s potential to be an effective accountability mechanism. As set out in the Presidential Warrant of 15 May 2010, the LLRC is “to inquire and report on the following matters that may have taken place during the period between 21 February 2002 and 19 May 2009, namely:

(i) the facts and circumstances which led to the failure of the ceasefire agreement operationalized on 27th February 2002 and the sequence of events that followed thereafter up to the 19th of May 2009;

(ii) whether any person, group or institution directly or indirectly bear [sic] responsibility in this regard;

(iii) the lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence;

(iv) the methodology whereby restitution to any person affected by those events or their dependants or their heirs, can be effected;

(v) the institutional, administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of this Warrant.”

298. The LLRC has not clearly indicated how it interprets its mandate, nor has it issued any guidelines on this matter to those who wish to appear before it. While the LLRC is explicitly tasked to examine “the sequence of events that followed” the failure of the ceasefire agreement, the terms of its mandate do not explicitly address either accountability, in general terms, or alleged violations of international humanitarian or human rights law, specifically. Thus, it is not clear if the mandate includes investigations of violations of human rights or international humanitarian law, although these are not ruled out.

299. Because the Panel was unable to meet with the LLRC, it relied instead on the Government’s written responses, prepared by the Presidential Secretariat, to the Panel’s questions on the LLRC, as well as the views expressed to the United Nations by the Attorney-General on these matters at the 22 February meeting. The Attorney-General explained that the LLRC was, indeed, mandated to examine issues of accountability in respect of the final stages of the war, maintaining that the notion of accountability was coequal with responsibility and permitted the Commission to fully ventilate any such issues. Based on international standards and practice, however, the two concepts are clearly distinct, as accountability goes further by attaching consequences to individuals or institutions deemed responsible for a particular violation. Assignment of responsibility is important as a potential pre-condition for accountability, but it does not release a State from its obligations with regard to accountability for serious violations of human rights or international humanitarian law.^[37]

300. The Attorney-General stated that the Government drew on the experiences of the South African TRC and the Iraq Inquiry (the Chilcot Inquiry) in the United Kingdom, and that it should consider the LLRC as equivalent to these bodies. There are crucial differences, however, in both cases. As mentioned above, the South African TRC, in contrast to the LLRC, had an explicit mandate to investigate gross human rights violations, including the identity of individuals and institutions involved.^[38] It is important to note that best practices developed in other countries in similar situations included explicit mandates for their commissions to investigate violations of human rights or humanitarian law, including other examples mentioned by the Government of Sri Lanka, such as Chile and Kenya.

301. The Iraq Inquiry, on the other hand, examines the eight-year span from 2001 to 2009 of “the United Kingdom’s involvement in Iraq, including the way decisions were made and actions taken, to establish as accurately and reliably as possible what happened, and to identify lessons that can be learned.”^[39] Its mandate, which is closely paralleled by that of the LLRC, is clearly not designed to ensure individual or institutional accountability, but rather to examine political responsibilities for decisions taken during the mandated period and draw lessons for the future. The Attorney-General confirmed this understanding in his explanation that, through the LLRC, the State was taking responsibility for the failures of successive Governments over a long period to appropriately protect persons within the State’s territory. While this is an important undertaking, it is not, and cannot be understood to be, the same as fulfilling obligations of accountability for serious violations of international humanitarian and human rights law, nor does it amount to respect for victims’ rights to truth, justice and reparations.

302. Publicly the Government has been inconsistent regarding the LLRC’s mandate on matters of accountability. On the one hand, senior Sri Lankan officials have often emphasized that the LLRC is a forward-looking process aimed at reconciliation, rather than instrument of retributive accountability addressing past violations.^[40] At the same time, other statements made by Government officials suggest that the Commission is empowered to investigate certain specific incidents of alleged human rights violations.^[41] The Minister of External Affairs, G. L. Peiris, has stated publicly that the LLRC’s mandate is “wide enough” to enable it to examine individual allegations of violations of international law.^[42] On a later occasion, in a televised interview, he strongly suggested that the LLRC was the appropriate place for investigation of specific alleged war crimes.^[43]

303. Lastly, the LLRC’s temporal mandate explicitly ends on 19 May 2009, an end-point that necessarily precludes consideration by the LLRC of credible violations that occurred in the aftermath of the armed conflict, after that date.

304. In any event, the LLRC’s mandate does not satisfy international standards for clarity in the mandate of an accountability mechanism, which should explicitly refer to the power to investigate violations of international humanitarian or human rights law, committed by any party in a conflict, including the State or its agents.

2. Independence and impartiality of the Commission

305. International law requires a body investigating alleged violations of humanitarian and human rights law to be independent, impartial and competent. Independence comprises both actual independence and the public perception thereof.

306. In the case of the LLRC, at least three of its members have serious conflicts of interest that both directly compromise their ability to function with independence and impartiality, and undermine public perception of them as independent. The Chair of the Commission was Attorney-General from April 2007 to December 2008 and, accordingly, exercised the functions of chief law officer for the Government in respect of many issues directly before the LLRC. In addition, his influence over a previous commission of inquiry (Commission of Inquiry Appointed to Investigate and Inquire into Serious Violations of Human Rights which are Alleged to have Arisen in Sri Lanka since 1st August 2005), which demonstrated a serious conflict of interest, constituted a major point of public criticism by the International Independent Group of Eminent Persons (IIGEP), set up to oversee the work of that commission.^[44] A second member was Sri Lanka’s Permanent Representative to the United Nations during the final stages of the armed conflict, representing and defending the Government’s views on the evolving military and humanitarian situation. A third member was first the legal advisor of the Ministry of Foreign Affairs and then advisor on international legal affairs to the Ministry, during the period under examination by the Commission.

307. Whatever their other qualifications may be, individuals subject to such conflicts of interest are entirely inappropriate as members of a body expected to investigate impartially and contribute to accountability for alleged violations of international humanitarian and human rights law during a period in which they served as high-level officials of the Government. From any perspective, it would be virtually impossible to expect them to be capable of independently assessing the performance of the Government, in which they held pivotal positions, or of the President, who personally appointed them. Concerns in this respect are reinforced by public statements by at least one Commission member, made outside the LLRC, but during its term of operations.^[45]

308. In addition, best international practice holds that commissions of inquiry, or comparable bodies, such as truth commissions, with a role in ensuring accountability, should be constituted through a consultative stakeholder process:

[I]n accordance with criteria making clear to the public the competence and impartiality of their members, including expertise within their membership in the field of human rights and, if relevant, of humanitarian law and that they should “ensure adequate representation of women as well as of other appropriate groups whose members have been especially vulnerable to human rights violations.^[46]

309. In its written responses to the Panel’s questions of the LLRC, the Government asserted that “[t]he composition of the LLRC is representative of the multi-ethnic and pluralistic polity of Sri Lanka and it comprises persons of eminence from variouscommunities who have excelled in their chosen vocations.”^[47] In the Panel’s view, however, the membership of the LLRC does not adequately reflect the diversity of Sri Lankan society and perspectives on the conflict, nor are the backgrounds and expertise of all commissioners clearly relevant to the mandate. Only one of the eight commissioners is female, despite the disproportionately high representation of women amongst the victims of the conflict and the attention that should be given to the ways in which they have been affected. Of equal concern, only one of the commissioners – who is also the sole female commissioner – is Tamil, and only one commissioner is of Muslim background.

310. Most crucially, however, the LLRC is weighted heavily in favour of former officials with close ties to the Government. In addition to the issues of independence and impartiality already addressed, this factor can be expected to affect public perception of the LLRC and condition people’s decision to interact with it or lend credibility to its results.

311. Thus, the LLRC is seriously deficient with regard to its composition when held against international standards to ensure the independence and impartiality of accountability mechanisms. Its composition calls into question its independence and impartiality, especially regarding conduct that could implicate the Government and the security forces in the final phases of the war, and weakens its legitimacy as a body to advance accountability.

3. Other structural aspects of the LLRC

(a) Public reporting

312. Best international practice holds that the work of a commission, such as the LLRC, should culminate in the production of a report, containing both its findings and its recommendations, which may address a range of issues such as further investigations or prosecutions, exhumation of mass graves, reparations, various institutional reforms and guarantees of non-repetition. Best practice also holds that these should be made public, subject only to withholding or redaction of identifying particulars of individuals whose life or physical security may be at risk as a result of disclosure.^[48] Neither the LLRC’s warrant nor the Commissions of Inquiry Act requires publication of a final report. The history of previous commissions of inquiry in Sri Lanka shows a pattern of non-disclosure of findings and recommendations, undermining public confidence in the process, dramatically reducing the practical impact of the work undertaken and possibilities for follow-up, and making it impossible to assess whether the work of that commission responded to its mandate. While indications have been given that a copy of the LLRC’s final report is to be shared with the United Nations, most important is that it be shared with the people of Sri Lanka. Best practices would require that the LLRC give wide public distribution to all of its findings and recommendations.

(b) Absence of sufficient measures for victim and witness protection

313. International human rights law requires the State to protect both the physical security and privacy of any individual from reasonable, foreseeable risks from third parties. This standard is given explicit formulation in the context of human rights-focussed commissions of inquiry: “[e]ffective measures shall be taken to ensure the security, physical and psychological well-being, and, where requested, the privacy of victims and witnesses who provide information to the commission.”^[49] The LLRC should have a clear legal basis for its power and authority in this regard, in order to ensure certainty, predictability and confidence to those considering whether or not to testify. Accountability mechanisms exist, in large measure, to serve victims and should put them at the centre of the process. To this end, international standards provide that victims and witnesses should generally only be called upon to testify on a “strictly voluntary” basis; social work and mental health practitioners should be permitted to help victims both before and after testimony; and “expenses incurred by those giving testimony shall be borne by the State”.^[50] Commissions in other countries have offered a range of protective measures and support to victims and witnesses, ranging from guarantees of confidentiality in Guatemala and Sierra Leone, for example, to psychological support in Peru and South Africa, to a full witness protection programme, as in South Africa.

314. Neither the warrant of the LLRC, nor the Commissions of Inquiry Act, set out any particular protection measures for persons appearing; rather section 13 of the Commissions of Inquiry Act states that anyone giving testimony “shall be entitled to all the privileges to which a witness giving evidence before a court of law is entitled in respect of evidence given by him before such a court.”^[51] It has been reported that the Chairman of the LLRC has undertaken that “[a]ll facilities will be provided for anyone who is willing to give evidence before the Commission”.^[52] The Panel has been unable to confirm this assertion, and did not receive any response to its written questions on the LLRC’s practice of witness protection.

315. On the basis of the information before it, the Panel cannot conclude that international standards and best practices are being met on measures to afford specific protection and support for witnesses. This is of particular concern, given the climate of fear that has prevailed in Sri Lanka and the experience of previous commissions of inquiry, whose work was hampered by the absence of effective witness protection measures. Of particular relevance in this regard is the view of the IIGEP in 2008, which was highly critical of the failure to ensure adequate witness protection in respect of the Serious Violations Commission. The IIGEP noted that:

Perhaps more than any other factor, this impediment [of absence of a comprehensive system of witness protection and Governmental willingness and ability to implement it] inhibits any effective future pursuit of the filing of indictments, convictions, and appropriate accountability for the alleged grave human rights violations under review.^[53]

316. Given the failure to enact a bill proposed in 2008 to provide greater witness protection, there is scant legislative basis for Sri Lanka to provide the necessary protection in an appropriate case.

4. The practice of the LLRC

(a) Positive steps

317. In discharging its mandate, the LLRC has travelled outside Colombo, notably to regions most affected by the final stages of the armed conflict. It has held hearings, among other places, in Vavuniya (including Menik Farm), Kilinochchi, Mullaittivu, Omanthai (including the detention facility), Batticaloa, Trincomalee and Jaffna. The LLRC has also heard a significant number of witnesses providing direct testimony of their experiences, many of whom were victims, predominantly in its hearings outside of Colombo. The spontaneous appearance of so many people who came forward in hearings in the North and East, particularly women, points to the urgent need for a genuine process of truth-seeking and accountability in Sri Lanka.

318. While other such commissions often make recommendations when they finalize their work, the LLRC has already made interim recommendations to the Government on matters it deems to require urgent attention, including general issues regarding detention, law and order, public administration and language, land and other socio-economic and livelihood questions. The Government has established a Cabinet-approved mechanism, the Inter-Agency Advisory Committee (IAAC), headed by the Attorney-General, to facilitate what has been described as structured, inter-ministerial follow-up implementation of these recommendations.^[54]

(b) Absence of a clear approach to truth-seeking or investigation

319. A core component of accountability is seeking the truth. In principle, the LLRC’s mandate, while not explicit on the matter, does not prevent it from contributing to truthseeking on the final stages of the war, including with regard to violations of human rights and international humanitarian law and the experiences of victims. Beyond the issues already discussed, the potential contribution of the LLRC to truth-seeking is shaped by its methodology and its day-to-day practice. The credibility of its findings will also hinge, in part, on the transparency of that methodology.

320. Having reviewed the information available to it, the Panel has been unable to discern fully the overall methodology employed by the LLRC for seeking the truth or investigating violations. Truth-seeking commissions in other countries have generally combined statement taking with other forms of investigation, including the requirement and review of official military campaign records, police files and court records relevant to specific allegations as well as patterns of abuse; conducting specific investigations into matters such as illegal detention centres or the consequences of the conflict for the victims; and implementing methodologies to establish credible casualty figures. They have employed up to hundreds of staff, including statement-takers, researchers, investigators, communications professionals, gender experts, and psychologists. In the case of the LLRC, it would seem that their evidentiary work consists chiefly of receiving written submissions and assessing them for threshold relevance, on the basis of which the Commission decides whether to receive oral testimony. The Attorney-General at his meeting with the United Nations advised that the LLRC has a total of 20 staff with 4 researchers, 4 police, 4 translators and some support staff, falling far short of the resources necessary to seek the truth in respect of the exceptionally complex final stages of the war. In addition, in its practice, the LLRC appears to work comfortably with the less controversial and sensitive aspects of historical analysis of the conflict and reconciliation, yet reflects ambivalence and uncertainty regarding its role on violations committed during the final stages of the war.

321. As mentioned, the LLRC has been receiving submissions both in the form of direct testimony and written submissions. Its methodology for inviting submissions and selecting witnesses is not clear, however, and gives the impression that it may be unsystematic. With regard to victims, it is in line with international standards that testimony be voluntary in truthseeking efforts, although those who may have relevant information or were in positions of responsibility are sometimes compelled to come forward.

322. According to the LLRC’s website, as of the end of January 2011, some 148 individuals and/or organizations had given testimony over the course of public hearings in Colombo. These individuals encompassed a wide range of prominent personalities in the public sector as well as current and retired eminent persons from business, community and civic leadership, professional organizations, higher education and civil society. Typically in the Colombo hearings, a witness would deliver a lengthy prepared statement, followed by extensive, mutually-respectful dialogue with the commissioners, lasting several hours. The dominant themes of these sessions encompassed questions of future reconciliation and historical issues, notably argument as to why the ceasefire broke down. While important for understanding the broader issues, these sessions, and the high proportion of the LLRC’s time they represent, have provided only marginal insights into the final stages of the armed conflict, in particular regarding violations that may have been committed by the Government or the LTTE.

323. When dealing directly with alleged violations of international law, including the conduct of the security forces, the approach has been non-confrontational. The Secretary of Defence and five of the most senior military officials have each appeared for a brief session at the outset of the Commission’s work, despite their critically important functions and knowledge of the events of the final stages of the armed conflict. When these senior officials appeared before the Commission, only generalized allegations of violations or questions on the overall strategic approach to the final phases of the armed conflict were put to them and no specific questions were asked.^[55] Only rarely have commissioners broached specific issues, generally regarding violations that have been reported in the international press.^[56] Testimony has been accepted even when it is flatly inconsistent with the allegations as compiled by the Panel, such as the assertion that there was “zero tolerance of civilian casualties”. This suggests both a weakness in the investigative methodology as well as undue deference to senior officials, which could greatly limit the Commission’s ability to establish the truth behind serious allegations. For the Panel, the uncritical, deferential approach to the testimonies of senior military and civilian officials also raises deep questions as to the will of the LLRC to establish the facts regarding this key phase of the conflict and to raise politically sensitive issues with broad implications for the civilian and military leadership of Sri Lanka. Instead, often the LLRC seems to have served as a platform for presentation of the Government’s version of events.

324. In the LLRC’s field visits to the North and East, where the overwhelming majority of witnesses have been victims of the conflict, the approach has been quite different. Despite the importance of testimony in the conflict areas for uncovering evidence of violations and revealing the truth of victims’ experience, at the end of January 2011, the LLRC’s website records only 14 days of field visits since the beginning of the Commission’s mandate in May 2010. The time allocated for hearing witnesses with relevant testimony in the North and East has been dramatically insufficient, as large numbers of victims who wish to provide testimony have not been able to do so. The majority of these victims have been women. Despite these large numbers and that the matter has been drawn to the Commission’s attention by civil society representatives,^[57] it does not appear that the LLRC has reoriented its hearing schedules to accommodate this volume of witnesses.

325. Although the direct evidence that victims and witnesses in the North and East can and has provided on key events in the final stages of the war is central to truth-seeking, only a small fraction of the LLRC’s time has been devoted to hearing this testimony.^[58] In addition, witnesses with highly relevant testimony on violations have often been confined to short sessions of 15 to 20 minutes, and sometimes less. This is insufficient to explore fully a witness’ knowledge of the facts and issues and is not respectful of his or her dignity.

326. While in these hearings in the North and East, victims reported particular violations, such as disappearances or missing relatives,^[59] the Commission has displayed seemingly little interest in pursuing these issues. Indeed, a survey of public transcripts of testimony given by individuals having suffered personal harm reveals that, as of mid-January 2011, over 80 per cent of such victims raised issues of disappeared or missing relatives, or detention in known facilities. In most of these cases, the Commission has sought to assuage humanitarian concerns rather than address allegations of human rights violations. Often, the Commission would request witnesses to put their issues in writing, telling them the matter would be referred onwards to the authorities. When witnesses were requested to make written statements, the LLRC’s forms provided for this purpose have on occasion been provided in Sinhalese and English only.^[60]

327. On many levels, these practices are in stark contrast with best practices of truthseeking efforts elsewhere. In circumstances similar to those of Sri Lanka, even when truth commission have included an analysis of historical causes and the political failings that led to the conflict, the majority of the effort was directed toward carefully documenting and investigating the violations of international humanitarian and human rights law that had been alleged. This involved not only the use of an adequate investigative methodology, but also an allocation of time and other resources towards this priority. In places where there have been allegations of large-scale violations, truth commissions have generally had large numbers of staff to conduct investigations in support of the commission. They have usually created facilitating conditions to allow victims to give their testimony to statement-takers in private settings over the course of hours, when necessary. In Guatemala, staff were dispatched to remote areas for months to take statements from victims and other witnesses, investigate allegations and ensure that victims there could be heard. The working methodologies of the LLRC do not allow for serious truth-seeking and are not resulting in an effective investigation into violations.

(c) Lack of a victim-centred approach

328. The hearings in the North and East also indicated that the LLRC does not have a victim-centred approach. In contrast to the respectful approach at the Colombo hearings, the commissioners have frequently taken a curt and dismissive approach to victims who raise issues of disappearances and missing or detained persons. Often, questioning in such instances has been desultory; in other instances, when allegations are made against the conduct of security forces, commissioners seem at pains to refute any possibility that the allegations may be true, pointing to inconsistencies in the victim’s account in order to discredit it.^[61] On other occasions, the commissioners misdirect themselves in law on questions of human rights.^[62] The treatment of victims by the LLRC is not adequately respectful of their dignity and fails to provide them a fair opportunity to place before the LLRC their evidence of violations and accounts of their extraordinary suffering.

329. A very high proportion of the evidence provided to the LLRC during its field visits has come from women, who have recounted disappearances or detention of husbands, brothers and sons and who have pleaded with the LLRC for assistance. The high number of men killed, including in the final phases of the armed conflict, both combatants and civilians, has left a large number of women deprived of means of support and living in desperate circumstances, in situations of extreme poverty. The LLRC, which is almost entirely male itself, does not appear to have taken any steps to create a supportive environment for these women when they give testimony. Nor has the Commission otherwise sought to provide support to those travelling great distances and bearing other costs in their decision to appear.

330. Reports that the LLRC has not provided all those seeking to testify with the opportunity to do so, in particular in the North and East, suggests that the body has failed to appreciate the significance of the process for all victims and, in particular, for women victims. It is significant that large numbers of women spontaneously sought to speak publicly before the LLRC about violations of their rights and the rights of family members, in a climate in which few victims have been willing to speak due to perceived risks. The refusal by the LLRC to allow many women to testify publicly reinforces general patterns of discrimination against women, and against war-affected women, which have been exacerbated by war and must be redressed through any accountability mechanism. Best practices ensure that gender-based violations are an integral part of the inquiry and that the voices and experiences of women victims are heard, whether the mandate expressly incorporates gender, as did commission mandates in Haiti, Sierra Leone and Timor-Leste, or whether the mandates were gender neutral, as were commission mandates for commissions in Guatemala, Peru and South Africa.

331. In other contexts, special methodologies were put in place which respected the centrality of victims. Many victims were able to give statements in private, one-on-one settings, in comfortable environments. Truth commissions generally provide psychological support to victims. Public hearings in general would be carefully planned and could take hours. In Peru, Sierra Leone and South Africa, public hearings kept pace with the needs of the victims, including their emotional needs, and the environment was respectful and supportive. In Sierra Leone, where children were particularly victimized, a version of the report was produced especially for them. The process of the truth commission in these contexts was used to give prominence and show respect to the plight of victims and their experiences.

332. Finally, the failure to engage victims on the harm and injury they suffered also leaves deep doubts as to the extent to which the LLRC intends to contribute to reparations. While its mandate includes the ability to grant restitution, the Commission has neither made clear what damages are covered by its mandate nor the burden and standard of proof that victims need to demonstrate as potential beneficiaries. The result is, at this point, serious doubt as to the LLRC’s intention to address these issues.

(d) Witness intimidation and inadequate witness protection

333. In addition, on the basis of the LLRC’s transcripts of public hearings and other material before the Panel, there does not appear to be any information provided to witnesses prior to their testimony regarding the use of their testimony. In some instances, witnesses’ names are not disclosed, while in other and similar situations, they are; in others still, the witness, while not named, is rendered identifiable by the content of the testimony, such as the names of family members. This is in breach of the best practice that victims providing testimony and other witnesses should be “informed of rules that will govern disclosure of information provided by them to the commission”.^[63]

334. This deficiency in LLRC practice occurs in the context of one of the Panel’s major concerns, namely, the lack of adequate witness protection for those who want to give testimony to the LLRC. A number of reports suggest that the environment for witnesses is often intimidating and at times hostile. Although the Government, in its written responses to the Panel, has argued that “[t]he military have no role to play in the LLRC Sessions”, the Panel is aware that on occasion uniformed military officers have been seated in the hearing room, photographing witnesses and the audience. The presence of the military or intelligence personnel inside or outside of the hearings has a chilling effect on witnesses who fear possible reprisals when putting forward allegations of illegal conduct on the part of the security forces. This is true, too, of the frequent presence of Government officials at hearings during witness testimony.

335. While the Government’s written responses maintain that “no complaints have been received of any threat, intimidation or harassment against the presentation of testimony”, the Panel for its part is aware of occasions of clear attempts to discourage the testimony of witnesses. One incident of intimidation was reportedly considered of sufficient seriousness by the Commission that it asked the police to investigate.^[64] Commission sources have also been reported as recognizing the possibility of “intimidation or future repercussions”.^[65] The Panel has heard reports that include warnings to individuals not to testify, pressure on officials not to provide details of time and places of sessions in the provinces ahead of time, and intimidating presence and behaviour of persons observing the Commission.^[66]

336. The Panel has also received reports suggesting witness manipulation, giving rise to situations in which witness testimony was at odds with earlier statements by the same witnesses. This suggests the possibility that pressure was put on the witnesses to distort their testimony before the Commission. The Panel is also unable to conclude that sufficient practical measures are in place to guarantee short and long-term protection of sensitive witness material. While the Chair of the Commission has indicated publicly that, “[i]f [witnesses] choose to tell us anything in private … [then n]obody else will know what you have said and we will maintain complete secrecy as far as your identities are concerned”,(^[67] the Panel is unaware of any institutional or practical basis for honouring such undertakings, including beyond the lifetime of the LLRC.

337. The situation of witnesses before the LLRC is thus unsatisfactory, falling short of what can be reasonably expected of a serious inquiry process seeking to establish the truth about the final stages of the armed conflict. Witnesses, particularly victims of alleged violations, are frequently uninformed as to the form and expectation of their appearance before the commission. They are not prepared for the hearings and are not sufficiently protected from harassment on the basis of their testimony.

(e) Media and civil society: access and harassment

338. The media plays a critical role in ensuring transparency through reporting on the work of the LLRC. In other countries, including particularly Morocco, Peru and South Africa, the work of similar commissions was widely televised as a way to contribute to public debate on the issues at stake. While in exceptional circumstances the media may be excluded, international human rights law limits the authority of state bodies, such as the LLRC, to restrict persons’ freedom to receive and impart opinions and information.^[68] The onus is on the State to justify that any such limitation is permissible and within the bounds of necessity and proportionality set out in international law. On the basis of information before the Panel, certain media agencies have been excluded by the Ministry of Defence from attending hearings, which represents a clear interference with freedom of the press. There have also been reports of intimidation of local journalists covering the proceedings.

(f) Access and transparency of work

339. The Panel has received credible reports that the LLRC has failed to conduct all of its proceedings in a transparent manner. This shortcoming has also reportedly been acknowledged at senior levels.(^[69] Truth commissions are heavily reliant on public support for their information gathering, and working in a public and transparent manner is an essential part of a truth commission’s work. Since South Africa, almost all truth commissions have conducted public hearings and most have engaged in extensive outreach on their activities, via the radio, television, newspapers and internet, in order to raise public awareness and support.

340. This has only partially been the case with the LLRC. Beyond the basic modalities set out in the Commission’s notice of 18 June 2010, at times the process has been characterized by a lack of public information on key aspects of its operations. Posting of transcripts of public sessions began some six months into the course of its hearings. There has also been general uncertainty on, and inconsistent application of, the process to select the witnesses who participate in the public hearings. Only in the Government’s written responses to the Panel has it elaborated more fully on its methodology for selecting participants in the hearings, stating that “all those desirous of testifying before the Commission are required to submit a prior written representation, which is then vetted by the Commission with a view to ensuring that it meets the threshold requirements of evidentiary value” before a hearing date is set. The threshold requirements are not, however, identified, nor is there any information on the number or proportion of would-be witnesses that have been rejected for failure to meet this threshold. In any event, this approach does not seem to have been applied in the hearings in the North and East, suggesting differences in the treatment of different groups of witnesses.

341. Even for the disproportionately small number of sessions devoted to hearing victims, information on their locations, times and methodology has been inconsistent and often difficult for potential witnesses and members of the public to obtain. Reported failures to inform local residents, particularly about provincial hearings, have meant that many people were unaware that hearings were taking place.(^[70] The use of district and divisional officials to convey public information on behalf of the LLRC has also prejudiced the appearance of independence of the LLRC.^[71]

(g) Interim recommendations

342. Many of the LLRC’s interim recommendations have already been recommended in the past by different bodies, and could readily be implemented in full if the Government so wished. With one exception, the recommendations do not directly address urgent issues of accountability. A key recommendation proposes publication of a list of names of detainees, which could contribute to knowledge of their whereabouts, but to date, this key recommendation has not been implemented. The lack of recommendations addressing the range of accountability issues as well as the inaction on the publication of detainees suggest, at this interim stage, that the LLRC has not given priority to investigating the alleged violations. It also supports the conclusion that, contrary to the Government’s responses to the Panel, the Government is reluctant to take actions that would shed light on sensitive aspects of its conduct in the last stages and aftermath of the war.

5. Conclusions on the LLRC

343. The LLRC offers a potentially useful opportunity for the beginning of a national dialogue regarding the final stages of the war, as well as on other issues related to the conflict. Many influential NGOs and some religious leaders have used the space offered by the LLRC to advocate on the public record their vision of what needs to happen in Sri Lanka on matters of accountability and to suggest changes for the future. The fact that large numbers of people, particularly victims, have come before the Commission confirms the need for an official space where they can raise matters related to the final stages of the war and their personal circumstances in consequence. The LLRC has also been used by some senior officials in the Government, the military and Sri Lanka’s elites to promote their own approach, or to criticize the approach of previous Governments on the appropriateness of the ceasefire.

344. Because the LLRC has not yet concluded its work and filed a final report, it is not possible to make a comprehensive and final assessment. However, the Panel is able to draw some key conclusions at this point:

(a) The LLRC mandate is not tailored to the investigation of allegations of serious violations of international humanitarian and human rights law, nor of the patterns of violations and responsibility for them, but instead focuses on a wider notion of the political responsibility of past Governments in failing to protect its citizens, more closely resembling a body such as the Chilcot Inquiry than a truth commission.

(b) 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.

(c) The work and methodology of the LLRC, to date, demonstrates that it has not conducted genuine truth-seeking on what happened in the final stages of the armed conflict, nor does it seek to investigate systematically, objectively and impartially the allegations of serious violations on both sides of the war. Large numbers of people came forward in the North and the East, but only at their own initiative and in desperation; they were not encouraged to give full accounts of the violations and other harms that they had suffered as part of the process, nor was attention given to the distinct harm suffered by particular groups such as women and children.

d) The LLRC has not demonstrated an approach that treats victims with full respect for their dignity and their suffering, or that it hears victims in an appropriate and gendersensitive manner. This was particularly apparent in its hearings in the North and the East. It has not indicated how it will deal with the important issue of reparations.

(e) The LLRC has not ensured the necessary protection for witnesses, even in circumstances of actual personal risk. There is evidence that particular witnesses wereintimidated.

(f) The LLRC’s operations have been insufficiently transparent.

345. In sum, 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.

D. Sri Lanka’s justice system

346. The justice system should be the primary avenue for providing individual accountability for violations of international humanitarian and human rights law and providing an effective remedy to victims. Regardless of the outcomes of the LLRC, Sri Lanka’s legal system should play a leading role in adjudicating accountability of individuals. It is not appropriate for Sri Lanka’s criminal justice system to defer its responsibilities to investigate until the LLRC completes its work, although this has been a consistent pattern when commissions of inquiry have been established in the past. The following section examines the extent to which the Sri Lankan justice and military courts systems operate to provide accountability in respect of the last stages of the war.

1. The emergency regime and exemptions from judicial review

347. A defining feature of the Sri Lankan legal system is a series of key structural exemptions from judicial review. Firstly, the Constitution provides comprehensive immunity to the President for any act or omission, whether personal or official.^[72] Secondly, a comprehensive regime of emergency provisions in Sri Lanka overlays the general law, significantly displacing the otherwise applicable provisions of the general law and exempting wide swathes of state action from judicial scrutiny.

348. The emergency regime in Sri Lanka is underpinned by the colonial-era Public Security Ordinance No. 25 of 1947 (PSO), as amended, which is given full status of law by the Constitution. The current state of emergency was initially proclaimed in August 2005 and has remained in continuous effect to this day, as a result of monthly ratification by the Parliament.

349. Where a state of emergency has been proclaimed, the PSO also allows for the promulgation of emergency regulations where “it is expedient so to do in the interests of public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community”. Detailed and broad-ranging Emergency Regulations were promulgated in 2005 and 2006, and, while amended from time to time, remain in force today.^[73] These regulations confer broad powers regarding arrest and detention; supervision and search of persons, restriction of moments; seizure and requisitioning of property; and control of meetings, processions, publications, firearms and rights of entry. They have been widely used before, during and after the final stages of the war. In particular, parts of the 2005 Regulations, which were in effect up to May 2010 – and remain in effect today for persons detained or restricted up to that date – provided for preventive detention on the order of the Defence Secretary, for up to one year, with a further extension of six months permitted on national security grounds.^[74]

350. In addition to the Emergency Regulations, comparable powers are set out in the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA), which was amended and became a permanent regime in 1982. This Act sets out a series of offences with severe penalties (Part I), as well as powers to prohibit certain publications (Part VII). It also sets out wide powers of arrest, search, entry and seizure (Part II); provides for a regime of administratively-ordered preventive detention up to 18 months, at three month intervals;^[75] and provides for restriction orders of movement or actions, in respect of any person the Minister has reason to believe or suspect is connected with or concerned in any unlawful activity. The far-reaching provisions of the PTA have also been widely employed before, during and after the final stages of the war.

351. A defining feature of the emergency regime is the broad exclusion of resort to judicial remedies for governmental acts or omissions undertaken pursuant to it. Regarding proclamations of a state of emergency, the Constitution itself provides for a blanket ban on judicial review. The PSO sets out three distinct and very wide clauses ousting judicial scrutiny.^[76] Acts carried out “in good faith” under the PTA have similar immunity against judicial review. In addition, under this Act, both detention and restriction orders by the Defence Secretary are statutorily considered final and barred from any judicial review.^[77] Although the ouster and immunity provisions contained in the PSO explicitly apply to emergency regulations promulgated under it, the same approach is restated in the Emergency Regulations themselves.^[78]

352. None of these exclusionary clauses have been altered by the May 2010 amendments to the Emergency Regulations; rather they remain in full effect, despite their far-reaching nature. The result of the combined effect of these provisions is that victims of acts or omissions undertaken pursuant to the emergency regime, in particular those detained as suspected terrorists, are severely limited in their ability to claim their rights in court.

2. Criminal jurisdiction in the civilian courts

(a) The Attorney-General: Investigation and prosecution of offences

353. In Sri Lanka, the Attorney-General has very broad power over the investigation and prosecution of criminal offences. Investigations carried out by police and magistrates are subject to the Attorney-General’s control and direction. Likewise decisions to indict or not in cases of serious offences and the precise framing of charges and consequent prosecution lie fully within the Attorney-General’s control. The Attorney-General thus holds a central position within the criminal justice system and plays a critical role. The effective exercise of accountability within the criminal justice system requires the Attorney-General to act effectively and independently, as well as a legal framework that permits the Attorney-General to proceed. This would also apply to any cases of violations during the final stages of the war.

354. The independence of the Attorney-General’s Department has been challenged at particular points in the country’s history. It has recently been further weakened, an issue of particular relevance if that office should assume investigations into senior members of the Government or military for the final stages of the war. Following the 2010 elections, a gazette notification setting out each ministry’s functions and responsibilities removed both the Attorney-General’s Department and the Legal Draftsman’s Department, whose primary task is drafting new laws, from the Ministry of Justice where they had been previously located. As newly “unlisted” departments, these departments now fall under direct presidential control by virtue of Article 44(2) of the Constitution, and are understood to be now organizationally located in the Presidential Secretariat.^[79]

355. Past investigations and prosecutions in Sri Lanka have been highly selective and often involved abuses of power on the part of law enforcement, rather than a fair and even-handed pursuit of justice. The United Nations Human Rights Committee has gone so far as to hold that a decision of the Attorney-General not to initiate criminal proceedings against police officers responsible for death in custody was so arbitrary as to amount to a denial of justice.^[80] Investigations of allegations against state officials have often taken extraordinary amounts of time, if they are completed at all.^[81] Victims making such allegations have routinely been harassed by law enforcement personnel following filing of a complaint against state officers.^[82] Criminal inquiries and indictments have even been used to harass and intimidate critics of the Government, such as journalists and human rights defenders.^[83] Although judicial authority to oversee the Attorney-General’s powers to initiate and supervise investigations and prosecutions has been asserted in theory, the courts have been reluctant to exercise this function. There have, however, been rare instances of judicial reprimands delivered for lack of prosecutorial diligence.^[84]

(b) Inadequacies in the legal framework

356. Sri Lankan criminal law sets out many offences that cover key aspects of the conduct credibly alleged to have been committed in the final stages of the war. There are, however, key structural lacunae in Sri Lankan law that complicate the Attorney-General’s ability to investigate fully or prosecute violations that may have occurred during the last phases of the war. Sri Lankan law does not expressly provide for

(i) war crimes committed in internal armed conflict, as distinct from constituent conduct amounting to crimes under domestic law;

(ii) explicit provisions for the responsibility of military commanders or civilian superiors for commission of a crime by ordering it (although alternatives capturing aspects of that conduct may exist, such as conspiracy or instigation); and

(iii) command or superior responsibility as a mode of liability of military commanders or civilian superiors for failing to prevent or punish crimes committed by subordinates.^[85]

357. A further structural lacuna is the absence of a specific crime of enforced disappearance, especially in light of the large number of disappearances that have occurred in Sri Lanka, including during the final stages of the war. This has, in the past, resulted in recourse to ordinary penal provisions for aspects of this crime and has made it substantially more difficult to establish a prima facie case within the ambit of general criminal offences on which an indictment can proceed. Nor is there a clear legal mechanism to find state responsibility when institutional responsibility for an enforced disappearance is apparent from the available evidence, but may not be sufficient to prove individual culpability.^[86]

358. Further systemic weaknesses in the Sri Lankan criminal justice system complicate its ability to provide an effective recourse for crimes such as war crimes or crimes against humanity. Firstly, there are no legal procedures in place for the protection of victims and witnesses,^[87] although intimidation of witnesses is widespread and not limited to the Armed Forces, but extends across law enforcement agencies. Police officers accused of torture have remained in their positions despite indictments against them and are, thus, afforded an opportunity to utilize the power and influence of their positions to threaten and, on occasion, even kill witnesses in pending cases. Secondly, in breach of international law, the PTA, which is frequently employed against those suspected of having LTTE connections, explicitly places the onus on the accused to demonstrate that a confession had been coerced, increasing the likelihood that officers resort to abusive interrogations.^[88]

(c) The courts

359. There is limited publicly-accessible data available on the global approach taken recently by Sri Lanka’s criminal courts to serious criminal offences, notably those alleged to have been committed in the context of the armed conflict. As a consequence, the Panel assesses two major areas of traditional concern that are also directly relevant to its analysis of the final stages of the armed conflict, from which broader patterns can be inferred. These refer to the response of the Sri Lankan courts to the crimes of torture and enforced disappearance.

360. In Sri Lanka, delays at all stages of the judicial process, including pre-trial and trial proceedings, are the norm and are not unique to cases involving grave human rights violations. The length of investigations, often lasting over two years, coupled with allegations of threats against complainants and allegations of torture, have profoundly degraded the actual and perceived fairness of the criminal justice system.^[89] There is no explicit right under Sri Lankan law to trial within a reasonable time, and undue delays are not explicitly addressed either in the Constitution or in the criminal justice statutes.^[90] Departure from the formal rules of procedure also appears to be a common feature.^[91] The majority of prosecutions initiated against the authorities on charges of abduction, unlawful confinement or torture have been inconclusive due to lack of satisfactory evidence and unavailability of witnesses.^[92] A 2004 report identified the conviction rate during previous years for serious crimes committed in Sri Lanka as a mere four per cent,^[93] and the Panel is not aware of improvements in this area. Courts have been reluctant to award compensation in those rare cases where convictions are entered.^[94]

361. Reports of torture and cruel, inhuman or degrading treatment or punishment of detainees by the state authorities have been persistent and widespread.^[95] Torture has been found to be one of the two main causes of death in police custody (alongside summary executions) and an accepted practice in interrogation, with the majority of custodial deaths attributed to police conduct in the routine discharge of duties rather than isolated excesses by individual officers.(^[96] Allegations of widespread torture, ill-treatment and disappearances at the hands of law enforcement officials have not been investigated promptly and impartially by the State.^[97] The absence of an effective ex officio investigation mechanism with respect to cases of torture is particularly problematic and falls short of international standards.^[98]

362. By way of example regarding the treatment of very serious crimes, since the enactment of the 1994 CAT Act, which criminalizes torture, there have been 34 indictments brought by the Attorney General, with 3 convictions and 8 acquittals to date.^[99] The Attorney-General has not sought to prosecute any officer above the rank of inspector of police for torture.^[100] In cases dealing with enforced disappearances (usually charged under less serious types of offences such as abduction and kidnapping), the conviction rate indicated by available statistics is extremely low.^[101] Courts tend to acquit in these cases on seemingly technical points, such as delays in the filing of the complaint and /or incorrect framing of the indictment. In the latter case, although both the Attorney-General and the High Court have legal authority to amend such indictments, this power is not exercised authoritatively in many cases.^[102] Sentencing, when convictions are secured, tends to be unduly lenient in light of the gravity of the conduct in question.

(d) Specific criminal proceedings regarding violations during the last stages of the conflict

363. In terms of judicial proceedings against members of the LTTE, the Government has indicated to the Panel, in written answers and oral statements, that it is proceeding with criminal charges:

[Appropriately responding to the past] would entail the institution of criminal/civil charges in relevant Courts against LTTE cadres now in custody, provided that the evidence against them reaches the threshold of a prima facie case. Since August 2008, this process has been ongoing, and a substantial number of detainees concerned in the commission of serious offences have been brought before the Courts on indictments in terms of the provisions of the PTA, or offences stipulated in the Emergency Regulations, the Penal Code and other criminal statutes. What is significant is that in all such cases, the least restrictive sentencing policies have been adopted, with a generous resort to mechanisms of non-custodial sentences.

364. The Panel does not have information on how many cases constitute “a substantial number”, whether these relate to the final stages of the armed conflict or to other periods, and to what extent the charges are regular offences under the general law, rather than emergency law provisions of deeply questionable validity under international law. In addition, adopting “least restrictive sentencing” in all cases may fail to respond with the necessary severity to conduct amounting to serious violations of international humanitarian and human rights law. The Panel also notes that the Government has not instituted criminal proceedings against certain former senior leaders of the LTTE, with clear responsibilities for the past conduct and violatory practices of LTTE forces, preferring, instead, to co-opt them into its political structures and strategies. A notable exception is Subramaniam Shivathai, who went by the name of Thamilini, was the highest-ranking woman in the LTTE and was a member of the Subcommittee on Gender of the 2002 peace negotiations; she has been in Government custody without charge since her arrest from Menik Farm in May 2009.

365. The Government has also indicated that a separate unit under the Attorney-General’s office exists and has been designated to investigate culpabilities in cases that the LLRC so reports. Under this framework, and in contrast to its approach with the LTTE, the Government would appear to be deferring to the LLRC process, which is of indeterminate length, before any investigations of state officials begin. While the Government indicates that “several cases [against military personnel] have been filed”, it does not specify if these cases relate to the final stages of the armed conflict; the only case it cites in support of that statement is the “Mirusivil” trial-at-bar of four Army personnel for the abduction and murder of civilians, dating back to the year 2000. The Panel is not aware of any specific case against military personnel linked to the final stages of the war. Thus, at this time, and given that two years have passed since the end of the war, the Panel concludes that the criminal justice system has not afforded accountability for violations alleged to have been committed by civilian and military personnel of the State in the final stages of the war, while efforts to achieve formal accountability for LTTE actions have been both partial and selective.

3. Criminal jurisdiction in the Military Courts System

366. With regard to offences committed by military personnel, Sri Lanka permits the concurrent application of military and civilian jurisdictions. This overall principle is set out in the Army Act, No. 17 of 1949 (s.77), which establishes a military justice system to which military personnel are subject, as well as a series of military offences. The military justice system has jurisdiction over all civil offences as well as military offences committed by military personnel, namely regular, reserve and volunteer force personnel.^[103] As in civil law, the Army Act does not set out liability for war crimes or crimes against humanity, or address command responsibility for military personnel subject to the Act.^[104]

367. While international law does not expressly preclude military jurisdiction over conduct amounting to human rights violations committed by military personnel, international best practice indicates a clear and strong preference for civilian jurisdiction in such cases, given that they are often not effectively pursued through military justice systems and may result in impunity.^[105]

368. The Government’s written submissions to the Panel state that “[m]embers of the Armed Forces suspected of violations under the Army, Navy and Air Force Acts can be brought to justice by the mechanism of a court martial or tried in civilian courts. Several cases have been filed….” It is not clear whether any of the several cases relate to military jurisdiction or whether they involve conduct in the final stages of the war. An extremely limited number of cases since the conclusion of the armed conflict cannot amount to a serious attempt to hold military personnel accountable for violations committed in the final stages of the war. In addition, although the credible allegations deal with patterns of conduct that may have been ordered or condoned at the highest levels, there are no known cases against current or former high-ranking military (or civilian) authorities in respect of alleged human rights violations.

369. The Panel has no indication that the military justice system in Sri Lanka currently operates as an effective accountability mechanism in respect of either the credible allegations it has identified or of other violations arising in the final stages of the war.

4. Victims’ access to the courts

370. Victims in Sri Lanka can, in principle, contribute to accountability by filing actions in the courts against individuals allegedly responsible for conduct that amounts to breaches of international law. However, in practice, Sri Lanka’s constitutional history evidences that judicial interventions have proved to be of little impact in deterring gross violations by the State. The weakening of the rule of law, resulting from broad emergency powers outside of judicial review, and a culture of impunity, resulting from a lack of political will to hold state officials to account, have combined to create an environment in which judicial pronouncements were routinely disregarded by the successive Governments.

371. In recent years, the Supreme Court, at the head of Sri Lanka’s judicial system, has become increasingly politicized, with an assertive Chief Justice at the helm,^[106] pursuing a course that emphasizes the power of the State and an all-encompassing notion of sovereignty that overrides international obligations.^[107] The United Nations Human Rights Committee has found a number of Supreme Court decisions to be in breach of Sri Lanka’s obligations under the ICCPR,^[108] suggesting a shift away from earlier receptivity to international legal standards. The dismissal process for judges, the Judicial Services Commission, chaired by the Chief Justice, has also been found to operate in breach of international law.^[109] Lastly, the recent enactment of the 18th Amendment has further weakened the independence of the senior judiciary, with the President acquiring broad powers to make direct appointments of senior judges following minimal consultation with a parliamentary committee.

(a) Fundamental rights applications and other public law actions

372. Articles 17 and 126 of the Constitution together provide that a fundamental rights petition for the infringement of fundamental rights by executive action can be filed before the Supreme Court. The effectiveness of this remedy is limited, however. First, the catalogue of fundamental rights in the Constitution is not comprehensive, and the rights it does contain may be constitutionally restricted in ways that are not compatible with international law.^[110] Second, such applications are subject to stringent procedural rules: petitioners need to approach the Supreme Court within one month of the alleged violation, whatever the nature of the violation and regardless of the severity of its impact in an individual case.^[111] Third, standing for the fundamental rights remedy is limited to a person alleging the infringement of his or her own rights or to an attorney on his or her behalf, precluding a third party such as a friend or public interest litigant proceeding if, for whatever reason, the direct party cannot or will not proceed.^[112]

373. In terms of past practice for this remedy, a recent study of 52 Supreme Court fundamental rights judgments between 2000 and 2006 on torture and cruel, inhuman or degrading treatment has shown judicial response to be troublingly inconsistent.^[113] Strong decisions in favour of the victim, awarding high levels of compensation and unequivocally condemning police abuse, represent a relatively small number of judgments. Once a victim brings a fundamental rights petition, the petitioner is subjected to a legal process that is, to a considerable degree, arbitrary and unpredictable.^[114] The study also found highly uneven access to justice, in that filing such a petition requires significant financial and legal resources, as well as geographic access to Colombo, which is the only place where such petitions can be filed.^[115]

374. Even when the Supreme Court has accepted in a fundamental rights application that a petitioner was a victim of torture, this has not in turn resulted in effective criminal investigation and prosecution.^[116] In addition, when fundamental rights cases alleging abusive misconduct succeeded, there are unexplained and seemingly arbitrary variations in whether the compensation is awarded against the State or against individual officers, the amount of compensation and the inclusion of costs in the award.

375. Nonetheless, the Government’s written responses to the Panel have stated that “several fundamental rights petitions, habeas corpus and writ applications have been filed against Armed Forces personnel and Police officers”. It is not clear that any of these fundamental rights or other applications relate to the conduct of state officials in the final stages of the war; the Government has not provided individual detail on any of these cases, which would enable the Panel to undertake its own assessment. Any fundamental rights petitions filed now would be generally time-barred and thus wholly ineffective due to the procedural requirement that they be filed within a month of the alleged violation.

(b) Private civil actions

376. Regarding the conduct of the State, the Government’s written responses indicate that “civil action can be instituted against civilian officials if there are infringements”, but provide no examples thereof; the Panel, for its part, is not aware of any such instances. In respect of civil claims against LTTE members, the Government’s written submissions point out that “none of the victims of alleged violations have instituted any claims for alleged violations by the LTTE”.

(c) Habeas corpus and detainees’ access to remedies

377. Habeas corpus jurisdiction is the traditional means by which a detainee can, in principle, ensure the lawfulness of detention and procure release conditions, absent a sufficient legal basis, although it is limited in the extent to which it can address issues of detention. In Sri Lanka, the Constitution also provides for habeas corpus jurisdiction of the Court of Appeal (art. 141), granting it power to bring up before the Court and to deal with according to law, the body of any person, including any person “illegally or improperly detained in public or private custody”.^[117]

378. In more recent years, the constitutional habeas corpus remedy has proved to be of little practical value due to long delays and a range of other factors, including frequent requests for court transfers by the respondents, causing financial and logistical hardships for petitioners; dismissal of applications for minor technicalities such as errors in spelling of the name of the abductor; or on the basis of mere denial of allegations by the head of the police or army. Environmental factors also militating against succesful actions include practices of witness intimidation, a lack of public confidence in the justice system and fear of authorities implicated in an action. A survey of 844 substantive judgments and bench orders handed down by the Court of Appeal between 1994 and 2002 showed that 79 per cent of habeas corpus applications were dismissed.^[118] These cases related to enforced disappearances, which had occurred primarily during the 1980’s and early 1990’s, of persons from all sectors of Sri Lankan society, including Sinhala, Tamil and Muslim.

379. There are considerable uncertainties about the legal basis under which different categories of persons were detained during and in the aftermath of the final stages of the war. The precise legal basis for mass arbitrary detention of IDPs in closed camps remains unclear, while in the case of suspected LTTE and others, the Government has cited detention powers under the Emergency Regulations, the PTA and ordinary criminal justice laws. It is also very difficult to see how either category of detainees could engage habeas jurisdiction as a practical matter and procure necessary legal representation. Although the Government’s written responses maintain that court review of detention “does not have to be in the form of a formal petition, [but] [t]he review can be initiated by the exercise of an epistolary jurisdiction upon the mere receipt of a letter from a detainee”, it provides no instances where this has happened. Nor is the Panel aware of any attempts made by the Government to ensure all detainees were aware of such a right.

380. The Government’s responses further state that “[l]egal representation for detainees is freely available as a matter of choice and those who are unable to retain legal counsel, have been afforded the opportunity of legal aid which is funded by the State”. It is, however, not clear whether such legal aid extends to all detainees or simply those charged with crimes; in any event, such “free availability” is dramatically inconsistent with the closed nature and tight restrictions on access to the range of different detention facilities. Although the Government maintains that “several fundamental rights petitions, habeas corpus and writ applications have been filed against Armed Forces personnel and Police officers”, it has pointed to no case of a successful habeas application from any conflict-related detainee, and the Panel is not aware of any.

381. The Panel must also note that even if a detainee were to procure a court hearing, a habeas court would have great difficulty in asserting meaningful review of detention given the ouster of judicial review and mandatory detention provided for under the Emergency Regulations or the PTA.

382. Thus, on the basis of the available information before it, the Panel concludes that detainees have not had access to an effective remedy to test the lawfulness and assess the substantive justification of their detention.

E. Human Rights Commission of Sri Lanka

383. The Human Rights Commission of Sri Lanka (HRCSL), established under the Human Rights Commission of Sri Lanka Act, No. 21 of 1996, has broad formal powers to inquire into issues of violations of fundamental rights, either on its own motion or by way of complaint.^[119] The remedies it has at its disposal are focussed on fact-finding and making consequential recommendations to appropriate authorities, as well as conciliation and mediation. It is not empowered to approach courts directly as petitioners in instances of grave human rights violations or to effectively refer such matters to the appropriate court, as the relevant rules of procedure have yet to be prescribed.

384. The result is that, in the past, its recommendations have often been substantially ignored, not only by the police hierarchy, but also other Government departments and officials.^[120] In other countries, in contrast, national human rights institutions (NHRIs) have played an important role in advancing transitional justice questions. Examples include the Indonesian National Human Rights Commission (Komnas HAM), which carried out investigations into violations during the referendum in Timor-Leste in 1999, and the Afghanistan Independent Human Rights Commission, which documents past and current violations and also carried out a consultation on transitional justice in 2005.

385. For the period of 2006-2009, the HRCSL lacked constitutional legitimacy, as members were appointed by the President, bypassing the constitutional requirement of approval by the Constitutional Council, which existed at the time. In 2007, the HRCSL was downgraded from “A” to “B” status by the International Coordinating Committee of National Human Rights Institutions (ICC-NHRI), following a special review of the extent to which it met internationally-agreed standards on national human rights institutions (the “Paris Principles”).^[121] One of the issues that the ICC-NHRI noted was the HRCSL’s discontinuation of its inquiries of some 2,000 cases of disappearances in July 2006.^[122] It noted that in a state of emergency as applicable in Sri Lanka, an NHRI was expected to “conduct itself with a heightened level of vigilance and independence in the exercise of its mandate”.^[123]

386. The President failed to appoint new members to the HRCSL in April 2009, after the terms of the previous members expired. Following the enactment of the 18th Amendment of the Constitution, which vests appointment power in the President following very limited consultations, the President appointed a new Chair and four further commissioners in February 2011.^[124]

387. The Panel is not aware that the previous Commission investigated any issues of violations arising from the final stages of the war prior to its lapse in April 2009. For instance, to the Panel’s knowledge, the HRCSL was not present at Omanthai or at any of the camps or other detention centres. In principle, however, the HRCSL would have a mandate to consider, either proprio motu or upon receiving a complaint, violations arising from the final stages of the war. It remains to be seen whether the newly reconstituted Commission will do so, and whether, even if it does, the HRCSL will be assessed as satisfying international standards of independence and effectiveness in light of its previous history and experience.

388. In the “Progress Report on the Implementation of the Interim Recommendations of the LLRC” provided to the Panel, the Government argues that:

With regard to the evidence gathered by the LLRC on missing persons, it was revealed that many of the people alleged to be missing were last seen with the LTTE forces. Hence, it can be assumed that such people may have been killed in battle, either as a consequence of their acting as LTTE combatants, or due to their being fired upon by the LTTE when endeavouring to seek refuge with the Security Forces.

389. While this statement was not further substantiated in any way and seemingly seeks to foreclose the possibility that the Government itself could be responsible for the fate of some of the missing, the Government confirmed that the Sri Lanka Institute of Information Technology maintains a database of the Rehabilitation of Persons, Properties and Industries Authority (REPPIA), “as an integral part of a project that is aimed at concluding cases of missing persons”. It maintains that this project will be transferred to the HRCSL. Although the potential of this project remains to be seen, the Panel has serious reservations about the capacity of the newly-reconstituted HRCSL to advance accountability in respect of missing persons. The Panel also notes that the commissioners themselves have recognized, according to its President, that they “will have to act independently in order to serve the society” and that as “the [HRCSL] cannot be made to function effectively without an amendment to the [governing] Act, [they] have agreed in unison to make a proposal to the government regarding this”.^[125]

390. With respect to detainees, the HRCSL’s parent Act provides it with powers to monitor the welfare of detained persons and to inspect places of detention. Indeed, it requires the Commission to be notified within 48 hours of fact and place of any detention, including under emergency powers, criminalizes any officer’s wilful failure to so report, and grants the Commission authority to enter and examine such places of detention (ss.11(d) and 28). It is unclear that the HRCSL has been notified of any of the detentions arising from the last stages of the war. The new Commission should robustly exercise its mandate in this regard. This would be an especially important signal of political will given that, in the past, this obligation to report was routinely flouted, and no convictions for failure to report detention to the Commission have, to the Panel’s knowledge, ever occurred.

F. Death certification process

391. In the final months of the war in Sri Lanka, and since, many people have been deprived of the knowledge of what happened to their loved ones and continue to live in uncertainty. Many practical issues dependent on the civil status of the relatives of victims, including questions of inheritance, land rights and re-marriage, can be extremely difficult to resolve without death certification. The traditional procedures for death certification in the Births and Deaths Registration Act 1954 are ill-adapted to the circumstances of potentially tens of thousands of persons who died or went missing in the final stages of the armed conflict. The 1954 Act sets out difficult timelines for reporting and complex, formal procedures, including magistrate inquiries when the cause of death is unknown or may involve a crime. These requirements are not adjusted to the reality of many victims’ circumstances in the final stages of the war.

392. In December 2010, the Registration of Deaths (Temporary Provisions) Act, No. 19 of 2010 was passed in order to simplify the procedures for issuing death certificates. Its purpose, among others, is to provide “for the registration of deaths of persons reported missing as a result of terrorist or subversive activity or civil commotion”. In any case, the Act, in place for three years, allows the Registrar-General or the relevant District Registrar of Births and Deaths to issue a death certificate when the person is reported missing and has not been heard of for at least a year, when the person’s disappearance is attributable to such events.

393. It is not clear whether the Act’s notion of “civil commotion” extends to the last stages of the armed conflict or whether it includes persons who may have been disappeared at the hands of the Government. The Panel assumes that it does; a contrary reading precluding such coverage would be manifestly unacceptable. It is also unclear to the Panel to what extent the Government has made public this new mechanism in the affected areas, and to what practical extent there has been resort to it.

394. A significant number of victims who came before the LLRC in the North and East gave evidence that their relatives are missing. In its written submissions presented to the Panel, however, the Government stated: “[u]ntil the report and recommendations of the LLRC are made known, at this stage, we will not be in a position to invoke the provisions of the [2010 Act]”. In the Panel’s view, it is unnecessary and inappropriate to require victims otherwise entitled to death certificates to have to wait for the conclusion of the LLRC’s proceedings, particularly when there is no guarantee that the LLRC’s report will be made public.

395. While acknowledging the importance of expeditious issuance of death certificates when requested by a relative, the Panel stresses that in light of the experience in other countries, the issuance of a death certificate should not be used to distort or obscure the truth of the circumstances surrounding a death. Issuance of a death certificate following an administrative process is not a substitute for a bona fide investigation into the circumstances of an individual’s death, which meets international standards. It is also crucial to ensure that a relative’s acceptance of a death certificate does not lock the individual into a definitive legal position that precludes any further legal recourse in the future.

G. Conclusions

396. International law as well as its domestic law requires Sri Lanka to investigate and, where appropriate, prosecute credible allegations of violations of international humanitarian and human rights law, including those described in this report. The experiences of other countries, including other instances where an insurgency was militarily defeated, provide important comparative guides for how effective transitional justice mechanisms can be shaped to achieve accountability in terms of truth, justice and reparations in a context such as Sri Lanka.

397. The Government of Sri Lanka has promoted its concept of restorative justice. The result is an incomplete, partial approach to the issue of accountability, which uses the LLRC to examine the political responsibility of past Governments in failing to protect its citizens from “terrorism” and seeks to deal with some surviving LTTE members through rehabilitation or, in a relatively small number of cases, through criminal investigations. Nothing is contemplated to examine the actions of the Government of Sri Lanka in the credible allegations laid out in this report or other acts, which, if proven, would constitute serious violations of international law. Nor does the model contemplate a genuine investigation into Government policy decisions or institutional practices that may have contributed to the large numbers of civilian deaths, nor a serious examination of the underlying causes of the conflict.

398. Sri Lanka’s own domestic mechanisms have not, to date, operated to provide effective and even-handed accountability with respect to alleged violations committed in the final stages of the war. In particular:

(a) The LLRC is deeply flawed in concept and in practice. The concept is flawed because it is constructed on an unsound notion of accountability. It is flawed in practice because it does not meet international standards for independence and impartiality, treatment of victims, witness protection or transparency. In sum, it 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.

(b) Sri Lanka’s criminal justice system has been significantly weakened in recent years in its ability to deliver fair, prompt and impartial justice in respect of rights violations, notably those alleged to have been committed by state personnel. There has been a clear absence of political will to undertake such investigations and prosecutions, while the independence of the Attorney-General, as chief prosecutor, has been diminished. Sweeping emergency provisions and reluctance on the part of the judiciary and the prosecutorial authorities to intervene in favour of victims have entrenched a culture of impunity. To date, the criminal justice system has not provided accountability for the final stages of the war.

(c) Under the law, the Human Rights Commission of Sri Lanka has important investigative powers, including in respect of detainees. Given the HRCSL’s earlier downgrading for non-compliance with the Paris Principles, as well as limited capacities, the Panel has serious reservations about the ability of the recently re-established Commission to advance accountability, notably in respect of missing persons. It will need to move swiftly to demonstrate its independence and effectiveness.

(d) Although death certification can alleviate pressing humanitarian needs for relatives of victims who are seeking to reorganize their families’ lives, the issuance of death certificates after the armed conflict has been slow and cumbersome. The difficulties have persisted despite the passage of recent legislation designed to simplify procurement of such certificates. A system is needed that provides relatives who request such certification with swift and non-bureaucratic determinations, without prejudice to further legal action by relatives in the future or to the State’s independent responsibility to investigate these deaths.

399. In the Panel’s view, these four factors present significant hurdles to addressing accountability in Sri Lanka. In the next chapter, the Panel will look at wider systemic factors which amount to further obstacles to accountability.

Footnotes

1. (137) Human Rights Committee, General Comment 31(2004), paras 15, 18; Umetaliev et al. v. Kyrgyzstan, communication No. 1275/2004, views of 30 Oct. 2008, paras. 9.4-9.6; Amirov v. Russian Federation, communication No. 1447/2006, views of 2 April 2009, paras. 11.2-11.4. The Government of Sri Lanka has received repeated confirmation of its duties to investigate and prosecute as well as provide an effective remedy for human rights abuses taking place on its territory. See, e.g., Sundara Arachchige Lalith Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004 (5 September 2006); S. Jegatheeswara Sarma v. Sri Lanka, CCPR/C/78/D/950/2000 (31 July 2003). In eleven individual communications under the Optional Protocol concerning Sri Lanka, the Committee has found that Sri Lanka violated provisions of the ICCPR.
2. (138) Report of the Committee of independent experts on international humanitarian and human rights laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly Resolution 64/25, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards, A/HRC/15/50 (2010), para. 21. The report was subsequently formally welcomed and its conclusions endorsed by resolution of the United Nations Human Rights Council.
3. (139) Ibid, para. 22.
4. (140) In addition, in 2001, the General Assembly adopted by consensus its Resolution 55/89, Set of Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which reiterate the State’s duty to investigate and “severely punish” acts of torture or other cruel, inhuman, or degrading treatment or punishment, and provide a remedy and rehabilitation to the victim. These Principles also reiterate the duty on States to conduct a thorough and impartial investigation of allegations of torture and related abuses, in particular. Investigators must be independent of suspected perpetrators and must have both substantial legal powers to conduct their inquiry as well as the resources needed to make it effective. General Assembly Resolution 55/89 (1989), paras. 2-3.
5. (141) See, e.g., Security Council Resolution 1746 (2007), para. 13.
6. (142) E/CN.4/2005/102/Add.1 (2005); United Nations Commission on Human Rights Resolution 2005/66 (“taking note with appreciation of this document”).
7. (143) See, e.g., Ley de Reconciliación Nacional, Decreto No. 145-96, 18 Dec 1996 (Guatemala); Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, No. S.1767 (XXXVIII), 14 June 2005 (Argentina Supreme Court); Chumbipuma Aguirre et al v. Peru, Inter-American Court of Human Rights (Ser. C), No. 75 (2001), para. 41; Prosecutor v. Kallon and Kamara, Special Court for Sierra Leone, SCSL-2004-15-AR72(E) and SCSL-2004-15-AR72(E) (2004), para. 67-69.
8. (144) Government of Sri Lanka written submissions to the Panel in Annex 2.15.2.
9. (145) Prosecutor vs. Tadić, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995 para. 129.
10. (146) International Committee of the Red Cross, Customary International Humanitarian Law (2005), rule 158.
11. (147) Report of the Secretary-General on “The rule of law and transitional justice in conflict and post-conflict societies”, 23 August 2004 (S/2004/616) (hereafter Secretary-General’s 2004 Report), para. 8.
12. (148) Secretary-General’s 2004 Report, para. 26.
13. (149) For instance, organizations such as the African Union recognize that reconciliation cannot proceed without justice and accountability: “Justice and Reconciliation are inextricably linked and should be approached and implemented in an integrated manner ... It is, therefore, especially important that reconciliation should be seen as relevant and compatible with criminal justice processes.” African Union High Level Panel on Darfur, November 2009.
14. (150) Guidance Note of the Secretary-General, United Nations Approach to Transitional Justice, March 2010 Summary (hereafter: Secretary-General’s Guidance Note).
15. (151) Secretary-General’s 2004 Report para. 50.
16. (152) Hayner, P. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, Routledge 2nd ed. (2010).
17. (153) Comprehensive domestic prosecutions were also carried out in Rwanda, alongside the ICTR. Bangladesh recently established an International Crimes Tribunal for those involved in atrocities in its war for independence in 1971.
18. (154) For instance, Morocco instituted an “Equity and Reconciliation Commission” from 2004-2006, which had a mandate to investigate instances of imprisonment in secret detention centres, torture, disappearances and other such abuses which took place under the reign of King Hassan II, during the “years of lead” from 1946 to 1999. The Commission both recommended a wide range of security and justice sector reforms and also recommended reparations. Up to $85 million was distributed to 9,000 victims or their relatives in the 18 months following the Commission’s work, and a unique programme for community-based reparations is currently being implemented. In some of the other countries mentioned, reparations programmes are still underway; in others, truth commission recommendations on reparations have only been partially implemented.
19. (155) Guidance Note of the Secretary-General United Nations Approach to Transitional Justice March 2010 Available at http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf (accessed March 28, 2011)
20. (156) Secretary-General’s 2004 Report, Executive Summary.
21. 157) The members of the delegation included Mr. M. Peiris, the Attorney-General of Sri Lanka; Mr. C. R. Jayasinghe, the Secretary of Foreign Affairs; Mr. P. Kohona, Permanent Representative at the Mission of Sri Lanka to the United Nations; Mr. S. Silva, Deputy Permanent Representative; and Ms. S. Jayasuriya, Adviser to the Ministry of External Affairs
22. (158) Government of Sri Lanka written responses.
23. (159) Attorney-General’s oral remarks, 22 February 2011.
24. (160) Attorney-General’s oral remarks, 22 February 2011.
25. (161) Government of Sri Lanka written responses.
26. (162) Attorney-General’s oral remarks, 22 February 2011.
27. (163) Attorney-General’s oral remarks, 22 February 2011.
28. (164) Attorney-General’s oral remarks, 22 February 2011.
29. (165) There are several recent examples of community-level reparations. For instance, in Morocco, areas that suffered many cases of torture and disappearances received priority in the provision of economic opportunities and social services because these had been explicitly denied to them during the reign of King Mohammed IV. Similarly in Peru, communities that suffered most of the violations during the conflict were given priority for collective reparations, which included social services and community projects.
30. (166) http://www.llrc.lk/index.php?option=com_content&view=article&id=18&Itemid=2
31. (167) Ibid.
32. (168) Attorney-General’s remarks, 22 February 2011.
33. (169) According to the Government’s written submissions to the Panel, “[i]t is understood that the Group of Eminent Persons [earlier appointed following the publication of the 2009 Report to Congress on Incidents During the Recent Conflict in Sri Lanka, compiled by the U.S. State Department’s Office of War Crimes Issues on alleged violations of international humanitarian law or crimes against humanity] has transmitted to the LLRC the work conducted by them in relation to the Report to the US Congress.”
34. (170) The Panel must note that although it addressed questions to the LLRC via diplomatic channels, the response was compiled by the Presidential Secretariat, on the tasking of the President “in an endeavor to share with [the Panel] the Government’s understanding of the work of the LLRC”. This raises both uncertainty as to the extent to which the LLRC shares these views of its work and could reflect difficulties in the practical independence of the LLRC from the executive branch, discussed below.
35. (171) Typical flaws have included insufficient protection for victims and witnesses, political manipulation of commissions’ work, lack of transparency and inadequate human and financial resourcing.
36. (172) This same assessment of the profoundly inadequate outcomes of previous commissions has also been put to the LLRC publicly, by respected members of civil society. Cf. Submissions by the Catholic Diocese of Mannar to the LLRC on 8 January 2011 (Catholic Bishop of Mannar, Vicar General of Diocese of Mannar and the Representative of the Priests Forum of Mannar): “[w]e must express our disappointment that previous Commissions of Inquiry have failed to establish the truth into human rights violations and extrajudicial killings they were inquiring and bring justice and relief to victims and their families. … It is also disturbing that reports of these Commissions have not been made available to those who came before the Commission, victims, their families and general public.”
37. (173) For the same distinction between accountability and responsibility, see the Resolutions of the United Nations Security Council (S/RES/1970 (2011) of 26 February 2011) and the Human Rights Council (A/HRC/S-15/2 of 25 February 2011), at preambular paragraph 11 and operative paragraph 11 respectively.
38. (174) See section 4(a) of the Promotion of National Unity and Reconciliation Act, mandating the TRC to inquire into “(i) gross violations of human rights, including violations which were part of a systematic pattern of abuse; (ii) the nature, causes and extent of gross violations of human rights, including the antecedents, circumstances, factors, context, motives and perspectives which led to such violations; (iii) the identity of all persons, authorities, institutions and organisations involved in such violations; (iv) the question whether such violations were the result of deliberate planning on the part of the State or a former state or any of their organs, or of any political organisation, liberation movement or other group or individual; and (v) accountability, political or otherwise, for any such violation”.
39. (175) http://www.iraqinquiry.org.uk/faq.aspx#I01 (accessed 28 February 2011).
40. (176) See, for example, the statement of the President to the LLRC on 4 June 2010: “The Commission has therefore, the President said, the responsibility of acting in a forward looking manner, through focus on restorative justice designed to further strengthen national amity.” (http://www.priu.gov.lk/news_update/Current_Affairs/ca201006/20100604lessons_learnt_commission.htm)
41. (177) See evidence reportedly given by Sri Lanka’s Permanent Representative to the United Nations in Geneva, Ms. Kshenuka Seneviratne, in the Colombo High Court regarding an incident of alleged arbitrary killing of surrendering LTTE personnel. The Permanent Representative reportedly testified that the LLRC constituted the investigation being carried out by the Government into this alleged incident, and further that she and her colleagues believed that the Commission “will go through this report and give its response” to the alleged war crimes detailed by the International Crisis Group. (http://sundaytimes.lk/101128/News/nws_16.html)
42. (178) See colloquy between G.L. Peiris and Asia Society Executive Vice President Jamie Metzl, 27 September 2010, Asia Society, New York (available at http://asiasociety.org/video/policy-politics/sustainable-peace-srilanka-complete, from 50th minute, accessed 30 December 2010): Metzl: “… Could you describe with as much precision as possible what you see as the mandate of the LLRC and, specifically, is the LLRC empowered to investigate allegations of wrongdoing, perhaps even war crimes, by both sides, particularly at the end of the conflict in 2009? Peiris: “Yes, I will answer those questions directly. [A United States Congressional aide in a meeting the Minister had recently had] said, ‘This Commission does not have the authority to probe allegations against particular individuals for violations of human rights or international humanitarian law.’ I contested that. I said, ‘No, the mandate is wide enough to enable the Commission to do this.’ …”
43. (179) Channel 4 journalist Jonathan Miller: “Why has the Government … not allowed an independent, impartial international inquiry into these allegations [of extra-judicial killings of prisoners]?” G.L. Peiris: “Because we have put in place what we consider to be the best and the most effective and the most pragmatic mechanism”. (See video footage in http://www.channel4.com/news/sri-lanka-war-crimes-video-who-are-these-men (accessed 13 December 2010)).
44. (180) See Public Statement of the IIGEP on its final report, IIGEP-PS-006-2006, 15 April 2008.
45. (181) See, for example, the Prof. J. E. Jayasuriya Memorial Lecture “Post-Conflict Foreign Policy Challenges for Sri Lanka”. Speaking as a “practitioner”, LLRC commissioner Mr. Palihakkara asserted that “precautionary humanitarian measures [were] taken by the security forces and [there was] exercise of maximum restraint to minimize civilian casualties and other collateral damage.” Noting that “our soldiers and the political leadership provided by our President enabled the country to free itself from this manifest threat to its sovereignty and integrity”, he referred to sovereignty “rescued by our soldiers” and “so valiantly re-established by our soldiers”. He further hailed “successful preventive diplomacy at the United Nations Security Council without alienating any country to deter intervention in Sri Lanka during the anti-LTTE operation in 2009”.
46. (182) Updated Impunity Principles, Principles 7(a and c).
47. (183) In addition to the Chairperson, Mr. Chittan Ranjan de Silva, the other members of the Commission are Dr. Amrith Rohan Perera Esquire, Dr. Karunaratne Hangawatte, Mr. Chandirapal Chanmugam, Hewa Matara Gamage Siripala Palihakkara, Mrs. Manohari Ramanathan, Mr. Maxwell Parakrama Paranagama and Mr. M.T.M. Bafiq (replacing a deceased member).
48. (184) Updated Principles to Combat Impunity, Principle 13: “For security reasons or to avoid pressure on witnesses and commission members, the commission's terms of reference may stipulate that relevant portions of its inquiry shall be kept confidential. The commission’s final report, on the other hand, shall be made public in full and shall be disseminated as widely as possible.”
49. (185) Updated Principles to Combat Impunity, Principle 10.
50. (186) Ibid.
51. (187) http://www.priu.gov.lk/news_update/Current_Affairs/ca201011/20101102llrc_nearing_in_jaffna.htm (accessed Nov 4, 2010).
52. (188) Ibid.
53. (189) IIGEP-PS-005-2008, 6 March 2008, at page 3.
54. (190) http://news.lk/press-releases/cabinet-decisions/16529-press-release.
55. (191) See, for example, the questioning of Commissioner Palihakkara to the Commander of the Army, Jagath Jayasuriya, on 8 September 2007 in respect of civilian casualties generally and the use of heavy weapons and air power as elements of strategy (transcript at page 8).
56. (192) See, for example, the questioning of Chairman de Silva to Major-General Guneratne, Commmander of the 53rd Division, raising a report of the international press that “persons who were surrendering were assassinated” (transcript at page 3).
57. (193) Statement of Catholic Diocese of Mannar to the LLRC, 8 January 2010: “we are disappointed that the time allocated to listen to our people is very small.”
58. (194) August 2010: 2 days; September 2010: 3 days; October 2010: 5 days; November 2010: 3 days; December 2010: 1 day, according to the LLRC’s website accessed 31 January 2010.
59. (195) E.g. http://www.bbc.co.uk/news/world-south-asia-11686861
60. (196) http://www.nation.lk/2010/12/05/news16.htm (accessed 6 December 2010).
61. (197) See, for example, the prolonged exchange between one or more unidentified commissioners and an unidentified witness at the Commission’s 20 September 2010 hearing in Mullaittivu, where the witness claimed that Sri Lankan naval forces had fired upon a vessel of civilians at night.
62. (198) See, for example, Commissioner Palihakkara to an unidentified witness: “Since the [disappeared] child was taken by the LTTE the government finds it difficult because its [sic] not the governments [sic] responsibility….”. (Nedunkerny transcript, at page 7). As a matter of law, the State is required to undertaken an investigation as to the circumstances of such an alleged violation regardless of the identity of the perpetrators
63. (199) Updated Impunity Principles, Principle 10(d).
64. (200) In this case, the police reportedly identified the perpetrator, but limited its action to a warning, as the victim did not wish to press the charges.
65. (201) http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=12029
66. (202) See, for example, http://www.transcurrents.com/tc/2010/11/caffe_condemns_intimidation_of.html
67. 203) LLRC hearing at Vavuniya, 14 August 2010, transcript at page 1.
68. (204) See article 19 of the ICCPR.
69. 205) Minister G.L. Peiris, quoted in The Daily Mirror : “I think that what the Government should do now is make fuller information available to the international community about the work that is being done by the commission… Unfortunately not enough information is available in the public domain” (http://www.dailymirror.lk/print/index.php/opinion1/25708.html)
70. 206) http://www.nation.lk/2010/12/05/news16.htm (accessed on 6 December 2010)
71. (207) Two further technical issues decrease the transparency and accuracy of the LLRC’s work. Firstly, it has been credibly asserted to the Panel that, in spite of the Government’s written submission that “[e]fficient transcription services” exist, transcripts have frequently diverged in material respects from the actual course of the proceedings, leaving a misleading and mistaken impression on the public record as to the Commission’s work. Secondly, serious concerns have been expressed as to the quality of the interpretation of some of the evidence given in Tamil, potentially leaving both those commissioners who do not speak Tamil and the wider public with an inaccurate picture of the testimony.
72. (208) Art. 35(1). In Jaywardena v Sri Lanka, the United Nations Human Rights Committee found that death threats to an MP after criticism by the President holding this immunity amounted to violation of the ICCPR (CCPR/C/75/D/916/2000), Views dated 22 July 2002.
73. (209) The key sets of regulations are the Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2005 (EMPPR 2005) and the Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulation No. 7 of 2006 (EPPTSTAR 2006).
74. (210) For persons detained after the May 2010 amendments, preventive detention is permissible under the amended regulations for up to three months.
75. (211) Section 9(1).
76. (212) Firstly, s. 8 provides that no emergency regulation or order thereunder can be called in question in any court; secondly, s. 9 provides both a broad and narrow protection from suit in respect of anything done under an emergency regulation in that (i) no suit of any kind lies against any person for any act in good faith done in actual or supposed pursuance to the emergency regulations; and (ii) the Attorney-General’s written consent is required for any prosecution in respect of any act done under the emergency regulations; and thirdly, section 23 restates the s.9 approval and immunities provisions for action under Part III of the Ordinance.
77. (213) Sections 10 and 11(5), PTA.
78. (214) Firstly, Reg. 19(10) of the EMPPR 2005 makes clear that a preventive detention order under the Regulations shall not be called in question in any court on any ground whatsoever; secondly, Reg. 73 requires the Attorney-General’s consent to any legal proceeding in any court of law in respect of anything done or purported to be done in good faith under the Regulations; and thirdly, Reg. 19 of the 2006 Regulations provide an even wider ouster, excluding even any role for the Attorney-General, by stating that no suit lies against any public servant or person authorized by the Government to act under the Regulations, where the such person has acted in good faith and in the discharge of official duties.
79. (215) “The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister….”
80. (216) Sathasivam v Sri Lanka, CCPR/C/93/D/1436/2005, Views of 8 July 2008 (United Nations Human Rights Committee).
81. (217) See, for example, Sarma v Sri Lanka, CCPR/C/78/D/950/2000, Views dated 16 July 2003; and Banda v Sri Lanka, CCPR/C/91/D/1426/2005, Views dated 26 October 2007 (United Nations Human Rights Committee).
82. (218) See for example, Rajapakse v Sri Lanka, CCPR/C/87/D/1250/2004 (Rajapakse), decided 14 July 2006; and Gunaratna v Sri Lanka, CCPR/C/95/D/1432/2005, Views dated 17 March 2009 (United Nations Human Rights Committee).
83. (219) See, for example, Kankanamge v Sri Lanka, CCPR/C/81/D/909/2000, Views of 27 July 2004 (United Nations Human Rights Committee).
84. (220) Republic of Sri Lanka vs Suresh Gunasena and Others, Negombo High Court, HC Minutes 02.04.2008.
85. (221) The United Nations Committee against Torture has commented that “those exercising superior authority - including public officials - cannot avoid accountability or escape criminal responsibility for torture or illtreatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures.” (CAT/C/GC/2 (2008), at para. 26)
86. (222) The United Nations Working Group on Enforced or Involuntary Disappearance has concluded that the State has not been able to identify or take action in identifying those responsible for large numbers of enforced or involuntary disappearances of persons during earlier phases of the armed conflict. (E/CN.4/2000/64/Add.1 (1999), at paras. 60-61). See also CCPR/CO/79/LKA (2003), at paras. 9-10, and CAT/C/LKA/CO/2 (2005), at para. 12.
87. (223) A draft law presented to parliament in 2008 to improve witness protection has still not been passed, and is in any case deficient in key aspects, including the absence of an independent witness protection mechanism.
88. (224) S.16(2) of the PTA in conjunction with s.24 of the Evidence Ordinance. See Singarasa v Sri Lanka (CCPR/C/81/D/1033/2001), Views dated 21 July 2004 (United Nations Human Rights Committee).
89. (225) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/7/3/Add.6 (2008), at para. 51).
90. (226) Pinto-Jayawardena, K. ‘The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009, hereafter RCT Study, at pp.134-138
91. (227) Pinto-Jayawardena, K.‘Still Seeking Justice in Sri Lanka: Rule of Law, The Criminal Justice System and Commissions of Inquiry since 1977’, ICJ Report, January 2010 at p. 154-155.
92. (228) CCPR/CO/79/LKA (2003), at para. 9.
93. (229) The Eradication of Laws Delays, Committee Appointed to Recommend Amendments to the Practice and Procedure in Investigations and Courts, Final Report, 2nd April, 2004, p. 5. This was a committee established by the Ministry of Justice and headed by a former Attorney-General who functions presently as the Chairman of the LLRC.
94. (230) RCT Study, op. cit., at p.42.
95. (231) See A/HRC/7/3/Add.6 (2008).
96. 232) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (E/CN.4/2006/53/Add.5, at paras. 53-54).
97. (233) CAT/C/LKA/CO/2 (2005) para. 12.
98. (234) A/HRC/7/3/Add.6 (2008) paras. 55, 77, 91.
99. (235) A/HRC/7/3/Add.6 (2008) para. 51.
100. (236) Ibid, para. 52.
101. (237) Second periodic report of Sri Lanka to the Committee Against Torture, CAT/C/48/Add.2 (2004).
102. (238) ‘Still Seeking Justice in Sri Lanka’, op. cit., at p. 156.
103. (239) The Air Force Act, No. 41 of 1949 and the Navy Act, No. 34 of 1950 (each as amended) both also set out the principle of dual civil/service jurisdiction, as well as comparable process with respect to service-specific offences for air force and naval personnel respectively that are in principle also applicable to the final stages of the war given the engagement of those branches of the Armed Forces.
104. (240) The Geneva Conventions Act, No. 4 of 2006, which criminalizes grave breaches of the Geneva Conventions committed in international armed conflict, does not apply to the final stages of the war with the LTTE, as it was an internal armed conflict.
105. (241) Principle 29 of the Updated Principles to Combat Impunity states: “The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.
106. (242) Chief Justice S. N. Silva retired in June 2009 and has been succeeded by Justice Asoka de Silva.
107. (243) For example, in 2006 the Chief Justice ruled for the Supreme Court that the State’s act of accession to the First Optional Protocol to the ICCPR had been unconstitutional (Singarasa v. Attorney-General & Others, S.C. SpL (LA) No. 182/99, SCM15.09.2006).
108. (244) Fernando v Sri Lanka, CCPR/C/83/D/1189/2003, Views dated 31 March 2005; and Joseph et al. v Sri Lanka CCPR/C/85/D/1249/2004, Views dated 21 October 2005; and Dissanayake v Sri Lanka, CCPR/C/93/D/1373/2005, Views dated 22 July 2008 (United Nations Human Rights Committee).
109. (245) Bandaranayake v Sri Lanka, CCPR/C/93/D/1376/2005, Views dated 24 July 2008 (United Nations Human Rights Committee).
110. (246) Note the general carve-out of all pre-constitutional law in Article 16: “[a]ll existing written law and unwritten law shall be valid and operative” despite any inconsistency with fundamental rights.
111. (247) This one month limitation has been considered on its own by the United Nations Human Rights Committee to jeopardize the enforcement of human rights (CCPR/CO/79/LKA (2003) para. 7)
112. (248) Article 126(2) of the Constitution.
113. (249) Pinto-Jayawardena, K. and Kois, L.‘Sri Lanka – the Right not to be Tortured; A Critical Analysis of the Judicial Response’, Law & Society Trust, 2008.
114. (250) Ibid, at pp. 9, 14.
115. (251) Out of the petitions surveyed, ‘the majority of the cases under review emerged not only from the South, but also from within a 30-mile radius of Colombo. Of those cases that arose in the North and East, of which there was a total of eight, seven petitions were brought only after the victim-petitioners were transferred to Kalutara in the South. Thus, all but one of the 39 cases had a Southern nexus.’
116. (252) A/HRC/7/3/Add.6 (2008) para. 79.
117. (253) The same article permits the Court of Appeal to require the body of the person in question to be brought up before an appropriate Court of First Instance and to direct the judge of that court to inquire into and report on the acts of alleged imprisonment, while making necessary interim orders. Since 1990, the Provincial High Courts exercised similar powers as the Court of Appeal under the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 in respect of persons illegally detained within the province.
118. (254) LST Review, The Writ of Habeas Corpus (Part 1) – Reflecting on the State of the Legal Remedy in Sri Lanka, Bangladesh, Nepal and Pakistan, Volume 21 Issue 275 & 276 September & October 2010, pp. 1-19.
119. (255) See section 14 of the Act.
120. (256) For example, the 2003 report of the Committee on Disappearances in the Jaffna Region of the HRCSL exceptionally identified perpetrators by name, including a notorious army officer, then Commander of the Navatkuli Army Camp. However, no prosecutions followed. The Committee encountered an obstructionist attitude on the part of the military authorities, leaving it to conclude that this may be due to “mix of inefficiency, indifference and an unwillingness to cooperate for fear that incriminating evidence may be revealed.”
121. (257) This “B” status was maintained in 2009 following a further ICC-NHRI review.
122. (258) The Commissioners made the decision to stop inquiring “for the time being, unless special directions are received from the government” due to the fact that “the findings will result in payment of compensation, etc.” Consequent to public protests, the then Minister for Human Rights and Disaster Management stated that the HRCSL had the authority to inquire into such disappearance cases without any need for direction from the government. The HRCSL revoked its decision thereafter.
123. (259) ICC-NHRI, Report and Recommendations of the Sub-Committee on Accreditation, Geneva, 22 to 26 October 2007, at p. 10. See http://www.nhri.net/2007/Report_Sub-Committee_Oct2007_E.pdf
124. (260) It appears that the HRCSL Act itself has not received consequential amendment to bring it into line with the amended Constitution, making the new appointments facially in breach of the Act. The international effect of this, and the extent to which the new process of new appointments satisfies the ICC-NHRI’s requirements of (a) transparent process; (b) broad consultation throughout the selection and appointment process; (c) broad advertisement of vacancies, (d) maximizing the number of potential candidates from a wide range of societal groups; and (e) selection of members to serve in individual capacities remains to be assessed by the ICC-NHRI.
125. (261) http://www.nation.lk/2011/02/27/news1.htm (accessed 18 March 2011).