Under fire

ON May 19, 2009, soon after President Mahinda Rajapaksa declared that Sri Lankan forces had defeated the Liberation Tigers of Tamil Eelam (LTTE), spontaneous celebrations broke out all over the island, barring the Tamil-dominated North. We have liberated the whole country from LTTE terrorism, he said, addressing the country's Parliament in Tamil and declaring the following day a national holiday to celebrate the armed forces. We all must now live as equals in this free country, he said.

Joy, relief and a sense of triumph marked every engagement of the Sri Lankan state since the guns fell silent in the last theatre of battle, Mullaithivu.

Just as Sri Lanka makes elaborate preparations to celebrate the second anniversary of its victory over the LTTE, three separate reports/analyses have brought to life ghosts of what now looks like a distant past. All the three the Human Rights Watch's (HRW) April 7 account of those who disappeared during the war; the United States' State Department Report, which was released on April 8; and, the last and most significant one, the Report of the United Nations Secretary-General's Panel of Experts on Accountability in Sri Lanka, which was submitted to Secretary-General Ban Ki-moon on April 12 and released on April 25 hold both the LTTE and the Government of Sri Lanka responsible for the death of innumerable civilians caught in the conflict during the last stages of the war.

HRW's concern

The HRW wanted the Sri Lankan government to account for everyone who was taken into custody at the end of the conflict in May 2009. The Sri Lankan government needs to respond to all allegations of disappearances with more than a ritual blanket denial, said Brad Adams, Asia director at HRW. Family members of those who have disappeared have the right to know if their loved ones are alive or dead. The HRW report compiled cases that it had investigated and demanded that the government respond.

The Sri Lankan government, and a largely obliging media, dismissed the HRW analysis, and raised counter-questions on the HRW's role in other regions of the world where many Western nations have allegedly committed human rights excesses.

The U.S. State Department's view

The U.S. State Department report for 2010 is more comprehensive and damning:

The [Sri Lankan] government and its agents continued to be responsible for serious human rights problems. Security forces committed arbitrary and unlawful killings, although the number of extrajudicial killings declined. Disappearances continued to be a problem, although the total also declined. Many independent observers cited a continued climate of fear among minority populations, in a large part based on past incidents.

Security forces tortured and abused detainees; poor prison conditions remained a problem; and authorities arbitrarily arrested and detained citizens. Repercussions of the nearly 30-year war against the LTTE continued to have an effect on human rights, despite the defeat of the LTTE in May 2009. In an effort to prevent any violent separatist resurgence, the government continued to search for and detain persons it suspected of being LTTE sympathisers or operatives. Official impunity was a problem; there were no public indications or reports that civilian or military courts convicted any military or police members for human rights abuses.

The government established a post-war Lessons Learnt and Reconciliation Commission (LLRC). Denial of fair public trial remained a problem; the judiciary was subject to executive influence; and the government infringed on citizens' privacy rights. Authorities harassed journalists critical of the government. Infringement of freedom of movement was lower than in the previous year, and citizens were able to travel almost anywhere in the island; in practice police and military checkpoints were still a frequent sight in Colombo and elsewhere, and numerous High Security Zones (HSZs) and other areas remained off limits to citizens. Discrimination against persons with disabilities, persons with HIV/AIDS, and the ethnic Tamil minority continued, and a disproportionate number of victims of human rights violations were Tamils, it said.

This report too evoked the same kind of response from the government and the media as did the HRW compilation total ridicule.

U.N. Report

It is against this background that the U.N. Report of the Panel of Experts needs to be viewed. It is the most comprehensive document so far on the war. The panel's report states that both government forces and the LTTE conducted military operations with flagrant disregard for the protection, rights, welfare and lives of civilians and failed to respect the norms of international law during the final months of the war. It has five findings against the Government of Sri Lanka and six against the LTTE.

The panel found credible allegations that comprise five core categories of potential serious violations committed by the Government of Sri Lanka: (i) killing of civilians through widespread shelling; (ii) shelling of hospitals and humanitarian objects; (iii) denial of humanitarian assistance; (iv) human rights violations suffered by victims and survivors of the conflict, including both IDPs [internally displaced people] and suspected LTTE cadre; and (v) human rights violations outside the conflict zone, including against the media and other critics of the government.

The Panel's determination of credible allegations against the LTTE associated with the final stages of the war reveal six core categories of potential serious violations: (i) using civilians as a human buffer; (ii) killing civilians attempting to flee LTTE control; (iii) using military equipment in the proximity of civilians; (iv) forced recruitment of children; (v) forced labour; and (vi) killing of civilians through suicide attacks.

Ban Ki-moon announced the appointment of a three-member Panel of Experts on June 22, 2010, to advise him on the implementation of the joint commitment of the President of Sri Lanka and the Secretary-General to an accountability process. Earlier, a meeting held on May 23, 2009 (not March 23 as the first line of the report says), between Ban Ki-moon and Rajapaksa had underlined the importance of the accountability process.

The Panel of Experts, consisting of three internationally recognised experts in international law (Marzuki Darusman of Indonesia, Yasmin Sooka of South Africa and Steven Ratner of the U.S.), examined reports, documents and other written accounts by the various agencies, departments, funds, offices and programmes of the United Nations and other intergovernmental organisations, [non-governmental organisations] and individuals, such as journalists and experts on Sri Lanka, as well as satellite imagery, photographs, and video materials. It reviewed submissions received (as many as 4,000) in response to notifications on the U.N. website, and it consulted a number of individuals with expertise on or experience related to the armed conflict. The panel studied primary sources which it deemed as relevant and trustworthy. These primary sources were corroborated by other kinds of information, both direct and indirect.

The panel's attempts to engage with the Sri Lankan government were rejected. The government responded in writing to questions but did not permit the panel to visit the country and meet with government officials and witnesses to abuses. (An attempt was made to allow the panel to visit in February 2011 after Attorney General Mohan Peiris and Foreign Secretary Romesh Jayasinghe met the panel and others in New York. By then, it was apparently too late for the panel to visit Sri Lanka.)

The panel said that its finding stands in stark contrast to the position of the government, which continues to hold that it conducted a humanitarian rescue operation' with a policy of zero civilian casualties'. The report concludes: Most civilian casualties in the final phases of the war were caused by government shelling. President Rajapaksa and Defence Secretary Gotabaya Rajapaksa, have repeatedly denied that government forces caused civilian casualties.

The panel found that the LLRC is deeply flawed, does not meet international standards of 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. The panel noted that the government's approach to accountability, which focusses exclusively on abuses by the LTTE, lacks any notion of accountability for its own conduct in the prosecution of the war.

The panel recommended that the Sri Lankan government open genuine investigations and that the Secretary-General immediately proceed to establish an independent international mechanism to conduct investigations into the alleged violations.

The U.N. report says: The Secretary-General is carefully reviewing the report's conclusions and recommendations with regard to events that took place during the final stages of the conflict, including its assessment that there are a number of allegations of serious violations of international humanitarian and human rights law committed by both the LTTE and the Government of Sri Lanka, some of which could amount to war crimes and crimes against humanity.

The panel's first recommendation is that the Government of Sri Lanka should respond to the serious allegations by initiating an effective accountability process, beginning with genuine investigations. The Secretary-General has consistently held the view that Sri Lanka should, first and foremost, assume responsibility for ensuring accountability for the alleged violations. This and a number of other short- and medium-term recommendations that the panel proposed in regard to steps that could be undertaken by the Government of Sri Lanka have now been shared with the government. He encourages the Sri Lankan authorities to respond constructively.

The Secretary-General has decided that he will respond positively to the panel's recommendation for a review of the U.N. actions regarding the implementation of its humanitarian and protection mandates during the war in Sri Lanka particularly in the last stages. The exact modality of such a review will be determined after consultations with relevant agencies, funds and programmes. In regard to the recommendation that he establish an international investigation mechanism, the Secretary-General is advised that this will require host country consent or a decision from member-states through an appropriate intergovernmental forum. The monitoring and repository functions it was suggested this mechanism undertake will continue to be performed by the U.N. Secretariat.

The Secretary-General trusts that the Government of Sri Lanka will continue to respect the work of the U.N. and its agencies as well as its obligations to the safety of U.N. staff in Colombo. He regrets the inflammatory tone of some of the recent public statements emanating from Sri Lanka.

The U.N. report has a factual error. The report (para 170) says Basil Rajapaksa, the Development Minister, is the country's Defence Secretary. Gotabaya Rajapaksa is the Defence Secretary. (Both Basil and Gotabaya are Mahinda Rajapaksa's brothers.)

For the Sri Lankans, perhaps, the U.N. report will be the most important document from the international community in recent history. At no other time in the history of Sri Lanka has the U.N. appointed such a panel or issued a report of this nature. Different U.N. agencies have made reports on various issues, but these cannot compare with the political and social importance of this report.

Amnesty International has called on the U.N. to launch an independent international investigation into alleged crimes, which include the killing of more than 10,000 civilians; the LTTE's use of civilians as human shields and conscription of child soldiers; the Sri Lanka Army's shelling of areas densely populated by civilians; and severe deprivation of food, water and medical care for people trapped by fighting.

The Sri Lankan government has protested against the appointment of the U.N. panel as uncalled for and unwarranted, and has refused to cooperate fully.

The panel's work on accountability issues in Sri Lanka should mark the beginning, not the end, of a process of accounting for violations, said Sam Zarifi, Amnesty International's Asia-Pacific Director. For decades, the LTTE systematically targeted civilians, launched suicide attacks at buses and railway stations, assassinated politicians and critics, and recruited child soldiers. Sri Lankan government forces and their armed affiliates also acted with impunity, engaging in extrajudicial killings, enforced disappearances and torture of those suspected of having links with the LTTE.

Rights violations with impunity had been the rule throughout Sri Lanka's long civil war. The way to turn a new page in the country's history and restore public confidence is to deliver truth and justice, said Sam Zarifi.

Sri Lanka showed a look-who-is-talking-attitude to the State Department report. It strongly rejected the U.N. report, calling it illegal, biased, baseless and unilateral in its official news portal. President Rajapaksa called for demonstrations on May 1 to show solidarity with the armed forces. The government has begun a diplomatic campaign to put pressure on the U.N. not to act on the panel's recommendations.

The government is unhappy with the contents and the release of the report. Its Ministry of External Affairs said that the government reiterated its position that the Darusman Report was fundamentally flawed in many respects and that among other deficiencies, the Report was based on biased material presented without any verification.

Following the end of conflict, the Government of Sri Lanka, has given the highest priority to post-conflict reconciliation, rehabilitation, reconstruction and development. The government is in the process of addressing these challenges and has recorded significant success on many fronts, including in the resettlement of internally displaced persons, restoring livelihood in conflict affected areas, release of former child soldiers recruited by terrorists, rehabilitation of detainees, de-mining, restoring democratic processes in the North and East as well as in the reconstruction of housing and infrastructure. We are moving gradually and confidently forward along a process that will consolidate national unity and progress.

The public release of the report at this stage is divisive, and disrupts our efforts to reinforce peace, security and stability in Sri Lanka. It feeds into the political agendas of interested parties.

The Government of Sri Lanka however notes that the Secretary-General has correctly acknowledged the primacy of domestic responsibility in this regard. The government has put in place, of its own accord, a domestic mechanism dealing with a range of issues relevant to the conflict with a view to promoting reconciliation and confidence among people. U.N. member states have welcomed this measure. Furthermore, the government has established an Inter-Agency Committee consisting of seven key Ministries in order to proceed with the interim recommendations of the domestic mechanism, the LLRC. The objective of the government is to provide urgent relief and to engender a sense of confidence among the people affected by the conflict and give impetus to the reconciliation process. The areas in which action has already commenced relate to land issues, law and order, administration and language issues as well as socio-economic and livelihood issues. These actions have been initiated as a follow-up to the matters identified through the LLRC, deriving from testimony received from affected civilians in the country including from former conflict areas. The conclusions of the externally constituted Darusman Panel' working from New York should not take precedence over the conclusions, still awaited, of the domestic process.

The Darusman Report' refers to many issues which are alleged to have occurred in Sri Lanka and which are currently subject to a domestic process. This material can be looked at by the LLRC should it wish to do so, depending on its own assessment of the contents.

The report aside, it is the Sri Lankan government's intransigent stand on access to the Northern Province that feeds the suspicion that the government has a lot to hide. Journalists, including this correspondent, have been waiting for months to visit the North but the Media Centre for National Security (MCNS) has not responded to their requests. When the BBC correspondent raised the issue with Rajapaksa in a monthly breakfast meeting with journalists in March, the President assured them that there was no problem in accessing the North and that he would sort out the issue. He summoned the head of the MCNS even before the meeting with journalists concluded and asked him to facilitate the visit. But the oral order from the President is yet to be carried out.

Business houses too have problems accessing the North. In 2010, the Defence Ministry issued permits for Colombo-based businesses, which were valid for six months. This period was later reduced to three months. Now, according to a banker, they have to apply for a permit every month to visit their offices in Jaffna and elsewhere in the North.

The next steps

On April 28, Foreign Minister G.L. Peiris called a meeting of heads of all diplomatic missions in Colombo and briefed them about the Sri Lankan point of view on the U.N. report. He essentially told the international community that the recommendations and findings of the U.N. panel would be taken into consideration by the LLRC in seamless continuity a phrase first used by Attorney General Mohan Peiris in his meeting with Ban Ki-moon earlier this year.

A Sri Lankan delegation is expected to visit New Delhi shortly to get India on board. With Ban Ki-moon making it clear that the U.N. General Assembly will have to work out the next steps in accountability if Sri Lanka is reluctant to allow an international investigation, Sri Lanka will have some relief until June, when the U.N. Human Rights Commission meets. About two years ago, the U.N. body had passed a resolution moved by Sri Lanka on the human rights situation in the country. But now, the contours that make up the U.N. body have changed beyond recognition. And, there is no veto power for any member. The decision of the body will prove vital.