Factual Supplement to the Report to
Congress on Measures Taken by the Government of Sri Lanka and
International Bodies To Investigate and Hold Accountable Violators of
International Humanitarian and Human Rights Law
This factual supplement explains, in greater
detail, issues of international humanitarian law and international human
rights law addressed in the Department of State’s March 2012 Report to
Congress on Measures Taken by the Government of Sri Lanka and
International Bodies to Investigate and Hold Accountable Violators of
International Humanitarian and Human Rights Law. While this factual
supplement draws attention to open questions regarding allegations of
violations of international humanitarian law (IHL) and international
human rights law (IHRL), it is not meant to be a legal determination
confirming any of those allegations.
I. Legal Framework
The United States recognizes a State’s inherent right to defend
itself from armed attacks, including those by non-state actors such as
terrorist groups. In the context of a non-international armed
conflict—that is, an armed conflict that is not between states—common
article 3 of the Geneva conventions of 1949 provides basic treatment
protections to all individuals not taking part in hostilities, including
civilians and detained members of the Armed Forces. Its core
requirements are that individuals not taking part in hostilities must be
treated humanely and without “adverse distinction” based on race,
religion, or similar criteria. To this end, the article prohibits
murder; cruel treatment; torture; the taking of hostages; outrages upon
personal dignity; and the passing of sentences without judgment by a
court providing recognized guarantees. Sri Lanka is neither a party nor a
signatory to the Additional Protocol II to the Geneva Conventions,
which includes more detailed rules relevant to non-international
conflicts than those set forth in, article 3.
As with the two previous reports, our assessment of investigations
undertaken by the Government of Sri Lanka (GSL) and international bodies
is mindful of Sri Lanka’s pertinent international obligations. For
example, Sri Lanka is a State Party to the International Covenant on
Civil and Political Rights, the Convention against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, and the 1949
Geneva Conventions. In addition, Sri Lanka is subject to relevant
customary international law obligations, which in the area of
international humanitarian law include the principles of distinction and
proportionality, which are intended to protect innocent civilians from
harm. The principle of distinction holds that civilians and civilian
objects (such as hospitals and schools) shall not be the object of
direct attack, though civilians lose this immunity if they directly
participate in hostilities. The principle of proportionality prohibits
attacks that may cause incidental loss of life, injury, or damage to
civilians that would be excessive in relation to the direct military
advantage anticipated. The civilian population must not be used to
shield military objectives or operations from attack, and parties must
take all practicable precautions, taking into account military and
humanitarian considerations, to minimize incidental death, injury and
damage to civilians.
II. Efforts at Accountability
There are a variety of ways in which a government may undertake
effective investigations and other accountability processes. While some
international law conventions call for criminalization of certain human
rights violations and serious violations of IHL, other routine
administrative and special investigative processes, such as commissions
of inquiry (COI), can play an important role in establishing a factual
record of events. Although COIs and other investigative bodies are often
implemented at the national level, in some instances governments seek
international participation to bring specialized expertise into, and
help foster public confidence in, so-called “hybrid” investigations.
Fully internationalized processes undertaken without the relevant
government’s consent have generally been pursued by the international
community only when the State concerned lacks the capacity, political
will, or both, to undertake an independent, credible, and effective
inquiry. In the case of serious violations of IHL and human rights,
including the type of atrocities alleged to have occurred in the final
months of the conflict in Sri Lanka, however, such commissions do not
obviate the need for criminal investigation and, if appropriate,
prosecutions.
Whether domestic, international, or hybrid, investigative processes
should operate consistent with best practices derived from extensive
experience in order to be both credible and effective. There are several
key criteria for evaluating the adequacy of a COI, including:
independence and competence; adequate mandate and authority; witness and
COI protection; adequate resources; a public report; and a timely and
transparent government response.
A. The Panel of Experts (POE)
On June 22, 2010, UN Secretary-General Ban Ki-moon appointed a
three-member Panel of Experts (POE) to advise him on the nature and
scope of allegations of violations of international humanitarian and
human rights law during the final stages of the conflict, and the
implementation of a commitment made in a joint statement by the
President of Sri Lanka and the Secretary General on May 23, 2009, to
address accountability. The POE consisted of former Attorney General of
Indonesia Marzuki Darusman, former South African Truth and
Reconciliation Commission Commissioner Yasmin Sooka, and American law
professor Steven Ratner.
The GSL strongly opposed the establishment of the POE, and described
it as “an unwarranted and unnecessary interference with a sovereign
nation.” The POE and GSL were unable to come to agreement regarding the
modalities of a visit of the POE to the country. The POE did receive
written submissions in response to a set of questions provided by the
POE to the GSL, and engaged with the GSL in a face-to-face dialogue.
On April 12, 2011, the POE submitted its report to the UN Secretary General, which he then shared with the GSL.
[1]
On April 13, 2011, the GSL issued a statement that decried the report
as “fundamentally flawed” and “patently biased.” On April 25, 2011, the
Secretary General’s office made the report public.
The report highlights a number of allegations of violations by the
GSL it describes as credible, including: large-scale shelling of “No
Fire Zones,” systematic shelling of hospitals, and summary execution,
rape, and torture of surrendering LTTE cadres and civilians fleeing the
conflict zone. The report also highlights a number of allegations
against the LTTE it describes as credible, including: using civilians as
a strategic buffer, forced labor (including of children), and summary
executions of civilians attempting to flee the conflict zone.
[2]
The serious allegations in the report regarding the conduct of both
sides, if proven, would indicate violations of IHL and IHRL.
Based on its assessment that the LLRC was “deeply flawed” and did not
meet international standards as an accountability mechanism, as well as
other obstacles to accountability such as “triumphalism” and the eroded
independence of the Attorney General and domestic courts of Sri Lanka,
the POE recommended a series of steps to implement the joint commitment
on accountability between the UN Secretary General and Sri Lankan
President Rajapaksa. The report recommended that the GSL should
immediately commence genuine investigations into alleged violations of
IHL and IHRL committed by both sides in the conflict and that the GSL
should issue a public, formal acknowledgment of its role in, and
responsibility for, extensive civilian casualties during the final
stages of the conflict. The report also recommends that the Secretary
General immediately establish an independent international mechanism to
monitor and assess the extent to which the GSL carries out an effective
domestic accountability process, as well as to independently investigate
credible allegations.
The POE was not a commission of inquiry and thus did not undertake
fact-finding, nor did it reach factual conclusions regarding disputed
facts or establish culpability for alleged violations. Therefore, the
work of the POE did not directly result in a process to hold accountable
the individuals alleged to be responsible for violations of
international human rights law and international humanitarian law.
However, by undertaking an assessment of the allegations against the GSL
and LTTE in the public record “[i]n order to understand the
accountability obligations arising from the last stages of the war…,”
the POE established a strong case that such a process is needed.
The Secretary-General transmitted the POE report to the President of
the U.N. Human Rights Council and the U.N. High Commissioner for Human
Rights on September 12, 2011. In the announcement regarding the
transmittal, the UN also announced the Secretary-General selected UN
Population Fund Executive Director Thoraya Obaid to undertake the review
of UN actions recommended by the POE. The UN has not completed that
assessment.
B. Humanitarian Operation Factual Analysis: July 2006-May 2009
On August 1, 2011, the GSL released a report produced by the Sri
Lankan Ministry of Defense entitled “The Humanitarian Operation Factual
Analysis: July 2006-May 2009.” The report provides a detailed analysis
of the types of atrocities committed by the LTTE, describes the
organization’s structure and components, and describes the various
failed negotiations with the LTTE and its failure to abide by cease-fire
and other agreements with the GSL. The report also describes what it
characterizes as the GSL’s “civilian rescue operation” during which it
defeated the LTTE. In that context, the report outlines the military
procedures used to safeguard civilian lives and protect civilian rights,
including institutional frameworks, training, monitoring of alleged
violations and investigations/prosecutions. The report does not,
however, address any of the alleged violations of IHL or IHRL identified
by the POE or available in the public domain. Moreover, while the
report contains a table summarizing major offenses committed by Sri
Lankan security personnel between 2005 and 2010, the table identifies no
recorded offenses for the year 2009, the period during which most of
the allegations in the POE report fall.
C. The Lessons Learnt and Reconciliation Commission (LLRC)
On May 15, 2010, President Rajapaksa issued a proclamation
establishing an eight-member commission under the Special Commission of
Inquiry Law of 1978. Pursuant to this law, the Lessons Learnt and
Reconciliation Commission was charged to “inquire and report within six
months on the following matters that may have taken place during the
period between February 21, 2002 and May 19, 2009:
-
The facts and circumstances which led to the failure of the ceasefire
agreement operationalized on February 21, 2002 and the sequence of
events that followed thereafter up to May 19, 2009;
-
Whether any person, group, or institution directly or indirectly bear responsibility in this regard;
-
The lessons to be learned from those events and their attendant concerns, in order to ensure that there will be no recurrence;
-
The methodology whereby restitution to any person affected by those
events or their dependents or to heirs, can be effected; and
-
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 Presidential Warrant.”
Secretary Clinton welcomed President Rajapaksa’s establishment of the
commission in her press appearance with Foreign Minister G.L. Peiris
during his May 2010 visit to Washington and outlined U.S. expectations
that the commission would follow established best practices.
Although initially given six months to report, the GSL extended the
deadline for the LLRC report twice, each time for an additional six
months. The LLRC commenced public hearings on August 11, 2010, and
finished in March 2011. According to the LLRC website, the Commission
held 41 field visits and 149 public sittings.
In mid-September 2010, the LLRC provided the GSL a set of interim
recommendations that dealt with five topical areas: detention; land
issues; law and order; administration and language issues; and
socioeconomic and livelihood issues. Particularly relevant to the
question of accountability were the recommendations relating to
detention and administration and language issues. Although the GSL
established an Inter-Agency Advisory Committee (IAAC) to facilitate the
implementation of the interim recommendations, LLRC’s final report notes
that the GSL has not fully implemented its interim recommendations.
On December 16, 2011, the GSL publically released the LLRC’s final
report. The GSL issues the entire report in English but only the
executive summary in Sinhala and Tamil. The report makes significant
observations and recommendations with respect to the origins of the
conflict, land reforms, restitution, and other efforts to reconcile the
various ethnic communities of Sri Lanka. In particular, the LLRC calls
on the GSL to enact a uniform policy aimed at the resettlement of
internally displaced persons (IDPs), to take steps to prevent harassment
and attacks on media personnel and organizations, to ensure their
freedom of movement and, to investigate alleged crimes against
journalists, to prioritize compensatory relief in addition to economic
development projects, and to undertake reconciliation projects to
reunite the population of Sri Lanka. The report also suggests that the
government investigate specific allegations of direct attacks on
civilians, launch a full investigation into reports of enforced
disappearances and abductions, fund an independent investigation into
the veracity of the Channel 4 videos, and investigate allegations of
detainee abuse, torture, and summary execution. The Commission’s
findings and recommendations regarding international humanitarian and
human rights law issues are examined in greater detail in Section III.
D. Assessment of the LLRC as a COI
The following sections evaluate the LLRC’s establishment, mandate,
composition, and activities compared to standards outlined by the
Department of State in its August 2010 report to Congress.
[3]
Independence and Competence:
The members of the LLRC included former Attorney General C. R. de
Silva, former Assistant Secretary of the Ministry of Justice Karunaratne
Hangawatte, former Legal Advisor at the Sri Lankan Ministry of External
Affairs Rohan Perera, former Foreign Secretary and Sri Lankan Permanent
Representative to the UN HMGS Palihakkara, former Secretary to the
Treasury C Chanmugam, former Deputy Legal Draftsman Manohari Ramanathan,
former High Court Judge M.P. Paranagama, and senior attorney at law
M.T.M. Bafiq. There was no information that indicated that the GSL
consulted with affected communities in selecting the commission members.
Despite the high percentage of women and Tamils among those giving
testimony, only one of the eight commission members was female (also the
sole Tamil commissioner), and only one was from the Muslim community.
All but one of the members of the commission previously worked for
the GSL, raising concerns about their independence and impartiality. Two
of the commission members were senior government officials during the
last months of the conflict, one of whom, Hewa M.G.S. Palihakkara, as
Sri Lanka’s Permanent Representative to the UN, publicly commented on
behalf of the government on events surrounding many of the allegations
raised. Meanwhile, the Chairman of the LLRC served as Attorney General
during the period when the 2006-2009 Presidential Commission of Inquiry
to Investigate and Inquire into Serious Violations of Human Rights was
in operation. That commission was charged with investigating sixteen
allegations of serious human rights violations. The International
Independent Group of Eminent Persons (IIGEP) identified significant
concerns regarding independence of that commission due to the role of
the then-Attorney General, the later-Chairman of the LLRC. These factors
have fostered the perception that commission members had an interest
tied to that of the government in a particular outcome of the
commission’s work.
Serious concerns have also been raised regarding the process of
questioning witnesses before the LLRC. The POE report describes as
“non-confrontational” the line of questioning used when dealing with
members of the security forces and issues related to violations of IHL.
[4]
The POE report goes on to relate that in some cases, commission members
appeared to lead respondents with questions that contained the answers.
The POE report also claims commission members failed in some cases to
pursue important lines of questioning of government officials that could
have revealed specific information relating to culpability for
violations of IHL and IHRL.
[5]
Adequate Mandate and Authority:
In terms of addressing accountability, the LLRC’s mandate was, at
least initially, unclear. Based on the phrase, “and to make any such
other recommendations with reference to any of the matters that have
been inquired into under the terms of the warrant” and verbal assurances
by the GSL, the United States government interpreted the LLRC mandate
to be sufficiently broad to allow it to address allegations of
violations of human rights law and international humanitarian law. On
March 4, 2011, in response to U.S. Senate Resolution 84, the Sri Lanka
Ministry of External Affairs further clarified the mandate of the LLRC,
stating that the Commission’s mandate included consideration of
violations of international humanitarian law and human rights law. The
Ministry also stated that the Attorney General would have the power to
institute criminal proceedings based on the LLRC’s findings.
Witness and COI Protection:
Sri Lanka has no witness protection laws, and there is no information
that indicates that the LLRC developed a discrete program for witness
protection. According to the recorded testimonies on the LLRC’s website,
the commission did allow and take
in camera testimony at the
discretion of the witness. Meanwhile, experience in other countries has
shown that, absent such a program, witnesses, especially those
victimized by recent conflict, are unlikely to come forward due to fears
of arrest, personal harm, or harm to their families. A number of Sri
Lankans informed Department of State officers that they, or people they
knew, had declined to appear before the LLRC out of fear of retribution.
Additionally, those that come forward publicly in Sri Lanka also run
the risk of being branded LTTE sympathizers, heightening the likelihood
of reprisal. Reporting by the International Crisis Group (ICG) and other
international organizations appears to confirm that some individuals
who testified before the LLRC have since received threats by the
military. The ICG has also described other situations in which the
format of the hearings and the presence of security officials could have
served to intimidate individuals appearing to provide statements. The
Department of State has received credible first-hand information
regarding efforts by the GSL to cause witnesses to alter the retelling
of events related to international humanitarian law violation
allegations, as well.
Adequate Resources:
While the LLRC heard testimony a number of times and in a number of
locations, those hearings may not have provided adequate opportunities
for victims to testify. Although the LLRC allocated at least 56 days for
sittings in Colombo and 22 days in the North and East of Sri Lanka, the
State Department received several complaints from people in the North
who wished to testify but were unable to do so because of the rushed
sittings of the LLRC in those areas. Such persons often were told to
make written submissions to the Commission, although in some cases
witnesses lacked resources to do so or were illiterate. In addition,
while the LLRC may have had adequate resources to conduct hearings, its
staff had no investigators or lawyers with experience investigating IHL
violations.
Government Response:
In submitting the LLRC report to Parliament, Leader of the House
Nimal Siripala de Silva, on behalf of the government, stated that the
proper way to respond to the report was to establish a mechanism to
gather information, investigate accusations, and refer possible charges
to the Attorney General. President Rajapaksa has not publicly commented
on the LLRC Report. However, the GSL has informed the Department of
State of three entities within the government created to respond to the
LLRC. The first is a cabinet sub-committee created to address the
recommendations within the LLRC report regarding demilitarization, land
reform, and freedom of expression. The second group is a board of
inquiry within the Sri Lankan Army (SLA) that will address
demilitarization of the North and other general reforms to the military.
Finally, a five-member court of inquiry led by a Major General in the
SLA has been established to investigate the specific allegations of
serious violations identified in the LLRC report. News reports have
indicated that this court will also investigate the Channel 4 video.
This court will refer any cases it finds credible to the Attorney
General for prosecution. Sri Lankan officials also made clear to
Department of State officials that individuals can bring additional
allegations to the SLA court of inquiry or the Attorney General. The
Department of State is not aware of any formal action plan to implement
the LLRC’s final recommendations from November 2011 or its interim
recommendations from September 2010. In its report, the LLRC expressed
its fear that its recommendations would suffer the same fate as past
recommendations by Sri Lankan COIs and go unanswered by the GSL. The
LRRC concluded that its recommendations should be “implemented
expeditiously.”
[6]
III. Evaluation of the LLRC Findings & Recommendations Regarding Accountability
A. Civilian Casualties
The LLRC report recognizes that significant civilian casualties
occurred during the final stages of the conflict. In particular, the
report details the testimony of witnesses reporting eight attacks by GSL
Security Forces against civilians that the witnesses describe as
intentional. Those allegations include: three reports of shelling
civilians; two reports of the Navy targeting civilian boats; one report
of the Army forcing civilians to retrieve the body of an Army soldier
while under fire; one report of 35-40 civilians dying when a food line
was shelled; and one report of the Army shelling 40-45 expectant
mothers. Regarding these specific instances, the report states, “[T]he
Commission stresses that there is a duty on the part of the State to
ascertain more fully, the circumstances under which such incidents could
have occurred, and if such investigations disclose wrongful conduct, to
prosecute and punish the wrong doers.”
[7]
However, the Commission’s final recommendations only call for further
investigation into “observation 4.359 vi. (a) and (b) and any reported
cases of deliberate attacks on civilians.”
[8]
The relevant sections of 4.359 to which this recommendation refers list
two reported attacks by the navy and the incident involving the forced
retrieval of an Army soldier’s body, meaning that the report does not
ultimately recommend investigation into the other five instances
reported by the Commission.
The LLRC’s recommendations fall short of fully acknowledging all
credible allegations of intentional attacks on civilians by the GSL and
LTTE. The LLRC report does not call for investigations into allegations
of deliberate attacks on civilians in the Vanni other than the three
instances briefly discussed in the report. For other civilian
casualties, the report concludes that they “appear to be due to cross
fire, the LTTE’s targeted and deliberate firing at civilians, as well as
due to the dynamics of the conflict situation, the perils of the
geographical terrain, the LTTE using civilians as human shields and the
LTTE’s refusal to let hostages get out of harm’s way.”
[9]
The LLRC report details the technological capabilities of the GSL to
detect and distinguish civilians from the LTTE, including GPS and
special reconnaissance missions into the Vanni, and concludes that the
“the military strategy that was adopted to secure the LTTE-held areas
was one that was carefully conceived, in which the protection of the
civilian population was given the highest priority.”
[10]
This conclusion, however, does not consider whether the government
security forces properly used the capabilities examined in the report,
whether attacks were directed at LTTE forces rather than civilians, or
whether those attacks were proportional. The report also calls for a
professionally-administered household survey in all parts of the island
to determine the full scale and circumstances of death and injury to
civilians in order to resolve the “unverified sweeping generalization of
a highly speculative nature as regards casualty figures.”
[11]
In late February 2012, the GSL Department of Census and Statistics
published “Enumeration of Vital Events, 2011, Northern Province, Sri
Lanka,” a report of a census the department conducted in June and July
2011 of households in the former conflict region. Amongst many figures
on population statistics during the last five years of the conflict, the
report noted 7,934 deaths in the Northern Province in 2009 due to
non-natural causes, with an additional 2,635 persons reported as
untraceable. These figures, however, have been widely criticized by
international non-governmental organizations, such as the International
Crisis Group, as misrepresentative and not in conformity with
professional standards.
The handful of incidents noted in the LLRC report stands in stark
contrast to the vast number of credible allegations examined in the POE
report. While the GSL’s public statements indicate it maintained a
policy of “zero civilian casualties” and the only civilians killings
occurred during crossfire, the POE estimated that civilian casualties
range from 10,000 to 40,000 for the final months of the conflict.
[12]
Based on verified reports from civilians, seasoned aid workers, and
doctors in the conflict zone, the POE concluded that in many cases, GSL
security forces shelled areas it knew to be principally occupied by
civilians.
[13]
In addition, the Department of State’s 2009 Report to Congress listed
208 instances of harm to civilians or civilian objects, which strongly
suggests that the LLRC’s conclusion that only three allegations of
attacks against civilians deserve further investigation is a gross
underestimation. These instances, as well as those allegedly perpetrated
by the LTTE in both the LLRC and POE reports, merit further
investigation. Hence, the notable gap between LLRC and POE findings
regarding civilian casualties suggests that the GSL should establish an
accountability mechanism to ensure that all allegations, not just the
three identified in the LLRC report, are fully investigated.
With respect to LTTE attacks against civilians, the LLRC concluded
that the LTTE was guilty of “grave violations of core Principles of
IHL.”
[14]
Specifically, the Commission found that LTTE cadres used civilians as
human shields, shot at civilians attempting to escape to safe areas,
forced civilians to provide support services, used military equipment in
civilian areas, and forcibly conscripted child soldiers.
[15] The POE report found credible allegations for all of these same crimes.
[16]
The LLRC report contemplates “framing charges against LTTE cadres,” but
fails to make specific recommendations about investigating and
prosecuting LTTE crimes.
[17]
Accountability for violations of IHL and IHRL by both sides of the
conflict is important to ensure justice for victims, to prevent a
resurgence of violence, and for rebuilding Sri Lanka. The GSL should
therefore fully investigate abuses committed by the LTTE and hold
individuals accountable for such crimes.
B. Shelling of the No Fire Zones (NFZs)
At the end of the conflict with the LTTE, the GSL created a series of
“No Fire Zones” (NFZs) aimed at providing civilians trapped in LTTE
territory a safe haven into which government forces would not fire. On
January 20, 2009, the GSL unilaterally declared the first NFZ (NFZ-1)
located about 800 meters from the frontline. Even though the LTTE did
not recognize any of the NFZs, the government claimed that it would
continue to recognize the humanitarian spaces. Within days of
establishing NFZ-1, however, government forces began shelling within the
safe area, reportedly because they had taken fire from LTTE forces
within NFZ-1. A pattern soon developed in which the LTTE would use NFZ-1
to fire on GSL forces, and then GSL forces would respond with heavy
shelling into NFZ-1. Once it realized that NFZ-1 was not protecting
civilians and was being used by the LTTE for cover, the GSL created a
second NFZ (NFZ-2) on February 12, 2009. The same pattern of violence
emerged in NFZ-2, however, and the government established a
significantly smaller third NFZ (NFZ-3) on May 8.
The LLRC report concludes that Sri Lankan security forces did not
deliberately target civilians in the NFZs. The report states that
although civilian casualties occurred “in the course of crossfire,”
“there appears to have been a
bona fide expectation that an
attack on LTTE gun positions would make a relevant and proportional
contribution to the objective of the military attack involved.”
[18]
The LLRC concluded that returning fire into the NFZs was not a
violation of the IHL principles of distinction or proportionality
because “Security Forces were confronted with an unprecedented situation
when no other choice was possible and all ‘feasible precautions’ that
were practicable in the circumstances had been taken.”
[19] According to the LLRC, making determinations about the units responsible for the contested shelling would be nearly impossible.
[20]
Despite the purported impossibility of investigating shelling in the
NFZs, the LLRC nonetheless concluded that the LTTE was responsible for
the majority of civilian deaths in the NFZs. The LLRC did not make any
recommendations to investigate who was responsible for the shelling of
civilians in the NFZs, but does call for compensation to be provided to
all affected parties.
Reports from the POE and the UN directly contradict the conclusions
of the LLRC with respect to civilian casualties in the NFZs. The POE
report concludes that credible allegations suggest that the GSL
deliberately or negligently targeted civilians within the NFZs.
[21]
For instance, in one incident on January 24, 2009, civilians and
medical workers reported that hundreds of civilians died at a UN hub
amidst intense shelling coming from government positions. LTTE cadres
reportedly never fired within 500 meters of the UN hub, and because of
GPS and reports to the GSL by the UN and ICRC, the government security
forces were aware of the hub’s location. In other reported incidents,
GSL forces shelled food distribution lines, hospitals, and IDP
encampments known to the GSL.
[22]
In another incident, the POE report found that 140 civilians were
killed on March 26 in Ambalavanpokkanai by artillery fire from
government positions.
[23]
The report also states that the civilians were capable of being
identified by Unmanned Aerial Vehicles (UAVs) often used by the GSL.
Furthermore, the POE report states that the Sri Lankan Security Forces
repeatedly used Multi-Barrel Rocket Launchers (MBRLs) and other large
artillery, which are used to shell large areas of land rather than
return fire on specific locations, against targets in the NFZs.
[24]
Another report done by the UNITAR Operational Satellite Applications
Programme (UNOSAT) for the Panel of Experts used satellite time-series
imagery to conclude that the Sri Lankan Army (SLA) established and
maintained capabilities to fire substantial quantities of artillery
munitions into areas heavily populated with IDPs, specifically NFZ-2 and
NFZ-3. The UNOSAT report found that that the SLA repeatedly rotated the
fire bearing of heavy caliber howitzers towards NFZ-2 and later NFZ-3.
The report also states that the SLA erected mortar batteries along the
western shore of Nanthi Lagoon without viable military targets except
for locations clearly falling with NFZ-2 and NFZ-3, both of which
remained populated with tens of thousands of IDPs. UNOSAT also found
over ten specific air strike impact craters identified immediately
adjacent to IDP tent concentrations, a functioning hospital, and within
NFZ-2, contrary to denials by the Sri Lankan Air Force.
The evidence gathered by the POE and UNOSAT indicates that the LLRC
report does not adequately address the responsibility for shelling in
the three NFZs. While the LLRC report concludes that it is difficult to
ascertain the origin of artillery attacks, the government nonetheless
has a duty to investigate the alleged abuses committed by Sri Lankan
armed forces in the NFZs. Experiences in other post-conflict settings in
relation to the use of force demonstrate that ascertaining the origin
of shelling in the NFZs is not as impracticable as the LLRC suggests. A
more thorough investigation potentially could determine what violations,
if any, occurred, who committed them, and the extent to which officials
in the government knew about or authorized such violations.
C. Attacks Against Humanitarian Objects
The LLRC report concludes that the Sri Lankan security forces did not
deliberately target hospitals and other humanitarian objects in the
NFZs. For instance, the report examined an attack against the Vallipunam
Hospital and IDP camp nearby on January 21, 2009, which killed over 40
civilians. The LLRC concluded that the origin of the shells could not be
accurately determined, but did note that the LTTE were positioned 500
meters away from the hospital.
[25]
The Commission also believed GSL statements that all patients had been
moved from the Anandapuram Hospital before being fired upon by SLA
forces, even though reports from aid workers and doctors indicated
otherwise.
[26]
Finally, the LLRC found no definitive evidence that the GSL was
responsible for the shelling of Puthukkudiyiruppu Hospital (PTK). The
report relies on the testimony of two doctors from PTK stating that no
shells hit the hospital and that they did not know from where the shells
came. On the other hand, the report also mentions the testimony of a
government official being treated at PTK who testified that he and his
father-in-law were injured in a direct hit to the hospital and the shell
likely came from government forces.
[27]
The LLRC report nevertheless concludes, “The Commission is satisfied,
on a careful consideration of all the circumstances, that shells had in
fact fallen on hospitals causing damage and resulting in casualties.
However, the material placed before the Commission points to a somewhat
confused picture as to the precise nature of events, from the
perspective of time, exact location and direction of fire.”
[28]
The Commission called for “expeditious grant of appropriate redress”
but only as a “humanitarian gesture” to “instill confidence in the
reconciliation process.”
[29]
In contrast to the LLRC report, the POE report concludes that
“Virtually every hospital in the Vanni, whether permanent or makeshift,
was hit by artillery.”
[30] The Panel found that the PTK Hospital was shelled every day from January 29 to February 4 most likely by the 55
th
Division of the SLA. The GSL claimed that no hospitals remained in the
Vanni, but the POE report found that the UN and ICRC continuously
updated the government on the whereabouts of medical facilities and
make-shift hospitals in the region. The POE report also mentions that
testimony by government doctors from these hospitals may not be accurate
because they initially claimed that government forces repeatedly fired
on their facilities but later changed their stories to reflect the GSL’s
position.
[31]
Ultimately, both the LLRC and POE reports indicate that much
uncertainty surrounds the extent and origin of shelling against
hospitals and other humanitarian objects during the finals months of the
conflict. The LLRC did investigate several instances of such shelling,
but its conclusion that attacks against hospitals simply represented a
“confused picture” neglects the fundamental need to fully investigate
potential violations of IHL.
[32]
As these allegations implicate grave breaches of IHL, they merit full
investigation and, if appropriate, prosecution of the responsible
individuals.
D. “White Flag” Incident
The LLRC Report also fails to critically analyze or investigate the
“white flag” incident, in which high level LTTE leaders were allegedly
shot despite assurances from the GSL that they could safely surrender.
While the circumstances surrounding the incident remain uncertain, the
POE concluded that the LTTE leadership intended to surrender.
[33]
However, the LLRC only mentioned the above incident in a few short
paragraphs, citing testimonies from a general and a government agent
dismissing the allegations.
[34]
The Department of State does not take a position regarding the
allegations concerning the “white flag” allegations but notes that the
discrepancy between the POE and LLRC reports merits further
investigation.
E. Sexual and Gender-Based Violence
The POE Report briefly discusses allegations of sexual and
gender-based violence by GSL security forces during the final days of
the conflict. The Panel pointed to several videos that strongly suggest
that women were raped or otherwise sexually assaulted before being
executed, but did not make any definitive conclusions due to a lack of
evidence.
[35]
The POE indicated that this lack of evidence is likely partially due to
strong cultural stigmas in Sri Lanka that cause reports of sexual
violence to go underreported.
[36]
The LLRC report does not address allegations of sexual and gender-based violence at the end of the war.
F. Supply of Humanitarian Relief
The LLRC acknowledges that food and medical supplies became scarce
with the intensification of the conflict, but does not surmise that the
GSL purposefully underestimated the number of civilians trapped in
various combat zones “for the purpose of starving the civilian
population as a method of combat.”
[37]
The report states that amounts of food aid were determined by the
government in consultation with the World Food Program (WFP) and other
humanitarian organizations and, therefore, these circumstances do not
“warrant any possible inference that there was a deliberate intention to
downplay the number of civilians in the NFZs for the purpose of
starving the civilian population as a method of combat.”
[38]
However, the LLRC report also concludes that “the issue of medical
supplies to civilians in the conflict areas during the final days of the
conflict is a matter that requires further examination, given the
humanitarian considerations involved.”
[39]
The LLRC’s characterization of the government’s role in food
distribution contrasts with allegations that the POE found credible.
According to the POE report, the GSL purposefully underestimated the
number of civilians that remained in the conflict zone so as to justify
sending less food and medical supplies into the zone (e.g. the
government estimated that only 10,000 civilians remained in NFZ-3,
whereas the UN estimated that 100,000 remained). The POE report also
states that the Ministry of Defense systematically deprived persons in
the conflict zone of humanitarian assistance by imposing extensive
restrictions on convoy participants.
[40]
The GSL based its restrictions on the belief that the materials would
be used to benefit the LTTE, but denial of items such as surgical
equipment would have increased the suffering of wounded civilians and
wounded LTTE belligerents and could only have had a humanitarian
purpose, according to the POE.
While the circumstances surrounding the distribution of food and
medical supplies into the conflict zone remain uncertain, the civilians
who perished or were otherwise harmed in the Vanni because of a lack of
humanitarian aid deserve a complete investigation into this matter, and
the GSL should instigate an independent and impartial investigation into
the government’s possible role in depriving civilians of humanitarian
relief.
G. Establishment of NFZs 2 & 3
An important question the LLRC raises but leaves unanswered is why
the GSL created a second and third NFZ after becoming cognizant that the
LTTE would exploit such zones to launch attacks, to which the GSL would
respond, putting civilians in harm’s way. The LLRC report recognizes a
pattern in which the LTTE exploited the NFZs and civilians there to
attack GSL forces and then force civilians to follow them to the next
NFZ. This tactic of using human shields was expressly recognized in both
the LLRC and POE reports. The LLRC report concludes, “The conclusions
to be drawn from these representations is that the conduct of the LTTE,
in gross violation of IHL obligations on the protection of civilians,
radically transformed the very character of the NFZ and made it an
integral part of the LTTE’s combat operations to achieve their military
objectives.”
[41]
Despite its knowledge that the LTTE used NFZ-1 and the civilians
therein as part of its military strategy and that the GSL would respond
to attacks from the NFZ thereby harming civilians, the GSL unilaterally
declared NFZ-2 on February 12, 2009 and NFZ-3 on May 8, 2009.
In its concluding statements, the LLRC expressly remarked that “The
Sri Lankan experience has in fact given rise to a debate as to whether,
by unilateral declaration of a No Fire Zone, the Government unwittingly
provided the LTTE an opportunity to consolidate itself amongst the
civilian enclave for strategic purposes.”
[42]
The LLRC does not make any recommendations regarding the GSL’s decision
to unilaterally create NFZs 2 and 3. Likewise, the POE report does not
expressly address this issue, although the POE report does detail the
creation of the NFZs and the significant civilians casualties incurred
in NFZs 2 and 3. More needs to be done to investigate how and why the
GSL decided to create NFZs 2 and 3 after it concluded that the LTTE used
NFZ-1 as part of its military strategy and thereby endangered thousands
of civilian lives.
H. Enforced Disappearances
The LLRC report states that the Commission is concerned about the
number of reports alleging enforced disappearances during the conflict
and after surrender or arrest. The report found credible allegations of
abductions of at least 12 people in the Batticaloa district, 100 in
Mannar, and 6 in Jaffna. The Commission found a “clear duty of the State
to cause necessary investigations into such specific allegations and
where such investigations produce evidence of any unlawful act on the
part of individual members of the Army, to prosecute and punish the
wrongdoers.”
[43]
This impartial tone of the report's findings on the missing turns more
partisan, however, when it concludes that such investigations are
necessary “to clear the good name of the Army who have by and large
conducted themselves in an exemplary manner in the surrender process and
when civilians were crossing over to cleared areas, which conduct
should not be tarnished by the actions of a few.”
[44]
Like the LLRC report, the POE report found a number of credible
allegations of enforced disappearance. The Panel reported 32 instances
of alleged disappearances in May 2009 alone, many of which involved
groups of people rather than individuals.
[45]
The report recommended full investigation into and potential
prosecution for allegations of enforced disappearance by the GSL during
and immediately after the conflict.
[46]
An independent and impartial investigation into reports of enforced
disappearance and any resulting prosecution and punishment would bring
justice and closure to those affected by missing family members, and the
GSL should immediately begin the investigations called for in the LLRC
report.
I. Arrest/Detention Policy
The LLRC report makes a number of important recommendations regarding
the GSL’s detention policy that the government should implement as soon
as possible. The report notes several instances in which LTTE detainees
remain in detention without charges and in which next of kin were
either not notified of a detainee’s whereabouts or not allowed to visit.
The report states that all next of kin should have the right of access
to detainees. The LLRC report also states that no person should be
detained outside authorized places of detention and that law enforcement
authorities should follow legal provisions when taking persons into
custody, such as issuing a formal receipt of arrest and providing
details of the place of detention.
[47]
In an important recommendation, the LLRC concludes that “The failure or
refusal by the Police to record an arrest, detention and transfer or to
record complaints of abductions and failure to investigate the same
would constitute a criminal offence and steps should be taken to
prosecute such wrongdoers.”
[48]
The LLRC also recommends that an “Independent Advisory Committee be
appointed to monitor and examine detention and arrest of persons taken
into custody under any regulations made under the Public Security
Ordinance or the PTA.”
[49]
All of these recommendations are important in ensuring that the rights
of detainees are protected. The LLRC makes laudable recommendations
about law enforcement procedures for detainees and their next of kin as
well as calls for investigations into allegations of violations of those
laws.
The Department of State is aware of approximately 228 detainees under
investigation remaining in GSL custody and an additional 892 detainees
remaining in rehabilitation facilities. The government has permitted
international humanitarian organization access to some detention
facilities where former LTTE combatants are detained, including the
Boosa detention facility where approximately 200 detainees are held. The
government does not provide access to any detention facilities operated
by military intelligence, stating that none existed. International
humanitarian organizations have also only been permitted to visit
detainees in rehabilitation as they are released.
J. Videos Showing Evidence of Summary Executions
On May 23, 2011, the UN Special Rapporteur on extrajudicial, summary
or arbitrary executions (SR) Christof Heyns released a report to the
Human Rights Council 17
th session that, in part, dealt with a
video aired by Channel 4 in the United Kingdom. The video in question,
provided by Channel 4 on November 30, 2010, is a longer version of the
video aired by Channel 4 on August 25, 2009, that purportedly depicted
Sri Lankan soldiers summarily executing bound prisoners.
The matter of the original, shorter version of the video is covered
in detail in the Department of State’s second report to Congress of
August 2010. In summary, the GSL commissioned four experts to evaluate
the authenticity of the footage, and ultimately found the footage
inauthentic based on a number of factors. Philip Alston, the then-UN
Special Rapporteur on extrajudicial, summary or arbitrary executions,
commissioned a separate, independent group of forensic experts to
analyze the video. A January 2010 report by these experts concluded that
there was strong evidence to suggest the video was authentic. Then-SR
Alston contended that the video necessitated an impartial investigation
into the question of whether war crimes had been committed.
The extended video investigated by SR Heyns contains additional
executions and shows the faces of some soldiers. SR Heyns commissioned
three experts to analyze the video, including an audio and firearms
expert. As a result of that analysis, SR Heyns concluded that the
extended video was authentic, and that it “…provides credible evidence
that serious crimes have been committed within the context of the Sri
Lankan civil war, which should together with any other available
evidence be examined systematically and professionally by domestic
investigators, as well as by an independent, international
investigational body…”
The LLRC Report directly addresses the Channel 4 videos and concludes
that its authenticity cannot be verified through available forensic
information. The LLRC Report raises questions about the footage’s
authenticity stating that the Commission “finds that there are troubling
technical and forensic questions of a serious nature that cast
significant doubts about the authenticity of the video and the
credibility of its content.”
[50] The Report commendably calls for the GSL to “institute an independent investigation into this issue.”
[51]
While the GSL has said that the Army court of inquiry would investigate
the Channel 4 videos, the State Department is not aware of any action
by the GSL to implement the LLRC’s recommendation of establishing an
independent investigation into the Channel 4 videos.
K. Child Soldiers
The LLRC recommends full investigations into the conscription of
child soldiers by the LTTE and other political parties. Notably, the
report calls for the Tamil Makkal Viduthalai Pulikal (TMVP), the GSL,
and UNICEF to fully implement the 2008 Action Plan between the parties
to release and reintegrate child soldiers. The LLRC also calls for
large-scale projects to reintegrate, educate, and provide counseling for
former child soldiers.
[52]
The LLRC report also makes an important accountability recommendation
regarding the prosecution of recruiters of child soldiers: “In
instances where there is
prima facie evidence of conscription of
children as combatants, any such alleged cases should be investigated
and offenders must be brought to justice. In this regard, the complaints
of alleged recruitment of children by illegal armed groups/groups
affiliated with the LTTE or any political party should be investigated
with a view to prosecuting the offenders to ensure that the practice
would not occur in the future.”
[53]
[1]
Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (Mar. 31, 2011),
available at http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf [hereinafter POE Report].
[2] POE Report, para. 237-43.
[3]
http://www.state.gov/j/gcj/srilanka/releases/145884.htm.
[4] POE Report, para. 323.
[5] POE Report, paras. 323, 326.
[6] LLRC report, para. 8.305.
[7] LLRC report, para. 4.286.
[8] LLRC report, para. 4.360.
[9] LLRC Report, para. 4.359xii.
[10] LLRC Report, para. 9.4
[11] LLRC Report, para. 9.35.
[12] POE Report, para. 137.
[13] POE Report, p. ii.
[14] LLRC Report, para. 4.321 & Chapter 5.
[15] LLRC Report, para. 4.321.
[16] POE Report, pp. iii-iv.
[17] LLRC Report, paras. 4.321 & 9.26.
[18] LLRC Report, para. 4.282.
[19] LLRC Report, para. 4.283.
[20] LLRC Report, para. 9.13.
[21] POE Report, p. ii.
[22]
Id.
[23] POE Report, para. 105.
[24] POE Report, para. 100.
[25] LLRC Report, para. 4.119.
[26] LLRC Report, para. 4.121.
[27] LLRC Report, paras. 4.125-4.128.
[28] LLRC Report, para. 4.288.
[29] LLRC Report, para. 4.294.
[30] POE Report, para. 81.
[31] POE Report, para. 130.
[32] LLRC Report, para. 4.288.
[33] POE Report, paras. 170-71.
[34] LLRC Report, paras. 4.234-4.3.237.
[35] POE Report, para. 153.
[36] POE Report, para. 152.
[37] LLRC Report, para. 4.304.
[38] LLRC Report, para. 4.304.
[39] LLRC Report, para. 9.22.
[40] POE Report, para. 209.
[41] LLRC Report, para. 4.274.
[42] LLRC Report, para. 4.335.
[43] LLRC Report, paras. 9.23, 9.48 & 4.319.
[44] LLRC Report, para. 4.319.
[45] POE Report, para. 151.
[46] POE Report, Recommendation 2(B), p. 121.
[47] LLRC Report, para. 9.54.
[48] LLRC Report, para. 5.42.
[49] LLRC Report, para. 5.44.
[50] LLRC Report, para. 4.374e.
[51] LLRC Report, para. 4.377.
[52] LLRC Report, para. 9.77.
[53] LLRC Report, para. 5.96.
“The
Executive President could overrule any laws or acts adopted by
parliament. Such is the authority and power vested in him. Even in the
Mahinda Chinthana it has been clearly stated that the Executive
Presidency will be abolished. This was even stated by former President
Chandrika Kumaratunga,” Sobitha Thera observed.
