United Nations

In 2010, UN Secretary General, Ban Ki-Moon, appointed a panel of 3 top international lawyers to look into the war crimes allegations and advise the UN on how to render Sri Lanka accountable if the allegations were found to be credible. They filed their report last week and large extracts of the same were leaked in Sri-Lanka’s pro-government newspaper ‘Island’.

The UN Panel found the allegations of war crimes and crimes against humanity made against the Sri Lankan government credible and avers that tens of thousands of Tamil civilians died between January and May 2009 as a result of the Government’s intentional shelling of civilian areas.

It is to be noted that SPEAK was the first law organization to submit to this panel; we submitted several options as solutions available to the UN under international law.

As indicated earlier in September 2010, SPEAK, in collaboration with UNROW, submitted a proposal to the United Nation’s Panel of Experts that referenced the indisputable evidence of Sri Lankan security forces’ responsibility for war crimes, crimes against humanity, and genocide against the Tamil civilian population during the 25-year civil war.

In addition, the proposal called for the establishment of an international criminal tribunal, as the Sri Lankan government’s specious post-war accountability efforts have been inadequate and ineffective.

In December 2010, SPEAK submitted a second report to the Panel offering evidence regarding the Sri Lankan government’s atrocities and its willful failure to hold those responsible accountable.  Letters have also been delivered to UN Secretary-General Ban Ki-Moon requesting that he expands the mandate of the Panel of Experts on Sri Lanka to cover the abuses that took place since the end of the war, including current abuses. SPEAK also requested the creation of a protection mechanism to safeguard the Tamil people in the island of Sri Lanka.

Report 1: September 2010

In June 2010, the U.N. Secretary-General established a three-person panel to advise him on the Sri Lankan government’s efforts to implement its May 2009 commitment to human rights accountability, where the Sri Lankan government and the U.N. Secretary-General issued a joint statement wherein the government committed to addressing alleged violations of international human rights law and humanitarian law.

In September 2010, SPEAK, in collaboration with UNROW, on behalf of the Tamil civilians who are victims of war crimes committed during the final phase of conflict, and as representatives of the international human rights community, submitted a proposal to the United Nation’s Panel of Experts that referenced the indisputable evidence of Sri Lankan security forces’ responsibility for war crimes, crimes against humanity, and genocide against the Tamil civilian population during the 25-year civil war. The purpose of this proposal was to assist the work of the UN panel of experts, to emphasize the importance of proper and effective accountability measures, and to, as was done for the setting up of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), urge the UN for the establishment of an international criminal tribunal to ensure justice for the victims of grave international crimes and to help restore access to the protection of law.

The report set out a brief introduction and background to the current situation in Sri Lanka – that an estimated 80,000– 100,000 people were killed during the war, and millions more are still displaced and living in diaspora around the world - and stressed the importance of establishing an accurate account of the conflict; that investigating allegations of human rights violations, and holding wrongdoers criminally accountable are all crucial to providing victims with justice and the nation and international community with vital answers.

There is indisputable evidence that Sri Lankan security forces are responsible for war crimes, crimes against humanity, and genocide against its ethnic Tamil civilian population. The testimony and reports of victims, eyewitnesses, journalists, and non-governmental organizations establish the responsibility of Sri Lankan security forces in the willful and deliberate bombing of civilian hospitals, schools, and other non- military buildings; the bombing of government- proclaimed ―safety or ―no-fire zones in which civilians were known to have taken refuge; intentional attacks on civilians; rape and other acts of sexual violence; and deprivations of food and medical supplies. Both through the statements and concerted actions of officials, the Sri Lankan government has demonstrated its unwillingness to address war crimes, crimes against humanity, and genocide,        or to receive support         in accountability initiatives. The government’s lack of cooperation despite international attention to human rights abuses in Sri Lanka has not abated since the end of the conflict. For example, the Foreign Minister has expressly          refused           to         act upon recommendations of well-respected non- governmental organizations, such as Amnesty International, Human Rights Watch, and the International Crisis Group, regarding war crimes investigations, stating that the government would only consider yielding to the United Nations. The United Nation’s efforts to assist Sri Lanka in addressing allegations of human rights violations have been similarly rebuffed

As for its specious efforts, the Sri Lankan government has demonstrated an interest only in prosecuting members of the Liberation Tigers of Tamil Eelam, while failing to express any interest in holding its own state security forces responsible for the willful and deliberate targeted killing of tens of thousands of Tamil civilians. The Sri Lankan government’s Lessons Learnt and Reconciliation Commission (LLRC), established at the close of the civil war, does not provide any of the requisite safeguards to ensure a fair tribunal, resulting in a system that heavily favors the Sri Lankan military officials while marginalizing the rights of the Tamil population. Moreover, the Sri Lankan government has opposed and obstructed the efforts of a U.N.-appointed panel established to aid fair and impartial accountability.

The United Nations can draw from a wealth of precedents to establish accountability mechanisms for Sri Lanka that satisfy the interests of international peace, stability, and justice. Currently, the Sri Lankan government is forcing the U.N. panel to work from a position of compromise. The Sri Lankan government’s obstructionism is unacceptable. Furthermore, even if the U.N. panel is able to provide its advice, the painful reality is that the Sri Lankan government has no political will to implement the U.N. panel’s recommendations.

The civilian population lacks the political capital and resources to remedy the situation. The civilians need for truth, justice, and redress will continue to be marginalized without outside intervention. Marginalization and impunity for human rights violations may once again lead to unrest in the country and will impede justice and accountability.

True accountability will not emerge from yet another report illustrating the dearth of appropriate accountability proceedings in Sri Lanka. The Tamil people need and deserve far more. The U.N. panel has an opportunity to use its position to recuperate the fundamental principles of international human rights and humanitarian law.

In light of Sri Lanka’s obligations under the Convention (IV) Relative to the Protection of Civilian Persons in Time of War and the Convention on the Prevention and Punishment of the Crime of Genocide, as well as the government’s continued failure to implement accountability procedures, we urged the U.N. panel to strongly recommend the prompt establishment of an international tribunal, or an equally effective accountability mechanism, with the power to prosecute persons most responsible for perpetrating international crimes.

Our report set out, among other things, that the tribunal must have the following features:

  1. An appropriate mandate to address grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity, with special attention to alleged violations occurring between January 2009 and May 2009.
  2. Independent judges, prosecutors, and lawyers who have expertise in international law and who can ensure that the accountability process is fair, impartial, and divorced from lopsided politics favoring any one group or sheltering criminal state actors from prosecution.
  3. Unimpeded access to evidence within the custody of the Sri Lankan government including access to witnesses among security forces or the Sri Lankan government.
  4. Special protections for witnesses, including measures to protect or obscure the identities of witnesses who fear for their safety and measures to facilitate travel to the forum. Most importantly, other U.N. member states should be approached to arrange for the safe travel and return of witnesses living in diasporas to ensure that they will be given re-entry into the country in which they are currently residing.
  5. Access to independent counsel with resources to provide adequate representation.
  6. An obligation to publish a record of all hearings, court proceedings, and decisions that will be available to the public.
  7. An obligation to regularly report to the Secretary-General on the status of the tribunal.
  8. An obligation to guarantee the access of U.N. monitors to ensure the transparency of all proceedings.
  9. Rules of evidence and procedure developed in consultation with experts in international law and consistent with international norms of due process.

Report 2: December 2010

In December 2010, SPEAK submitted a second report to the Panel offering evidence regarding the Sri Lankan government’s atrocities and its willful failure to hold those responsible accountable.  Letters have also been delivered to UN Secretary-General Ban Ki-Moon requesting that he expand the mandate of the Panel of Experts on Sri Lanka to cover the abuses that took place since the end of the war, including current abuses.  SPEAK also requested the creation of a protection mechanism to safeguard the Tamil people in the island of Sri Lanka.

Since the September 2010 proposal, additional evidence had surfaced regarding the Sri Lankan government’s atrocities and failure to hold those responsible accountable.  The report was based on research conducted by a humanitarian mission to Tamil Nadu, India, from December 6 to 14, 2010, where representatives from SPEAK and UNROW conducted over 25 interviews with representatives of local nongovernmental and humanitarian organizations, local and cultural and political leaders, civilians, refugees that have been affected by the conflict.  The interviews were conducted in English or through a Tamil-English translator.  At certain times during the mission, telephone interviews were conducted with civilians residing in Sri Lanka, who are unable to leave because of government intervention and/or a lack of resources.

The mission focused on interviewing eyewitnesses to international law violations during September 2008 to present.  In addition, the mission sought information from individuals who had access to displaced persons in the Vavuniya camps and its hospital.

Credible witness accounts and evidence gathered by UNROW and SPEAK provide grounds to believe that Sri Lankan security forces intentionally and repeatedly shelled civilians, hospitals, and humanitarian operations during the last phase of the civil war. Evidence demonstrates that the Sri Lankan military forces have committed numerous indiscriminate and disproportionate attacks consisting of artillery bombardment and aerial bombing.  These include attacks on government-proclaimed “safe zones” and on clearly marked hospitals, schools, and food distribution centers.  Further, the evidence supports allegations of a massive genocide campaign against the Tamil civilian population at the hands of security forces who were required, but failed, to protect the civilian population.

1. Attacks on civilians in government-designated “no-fire zones”

Many of the civilian deaths have occurred in areas that the Sri Lankan government has declared as “safe zones”.  For example, on January 21, 2009, Sri Lankan armed forces unilaterally declared “No Fire Zones” (“NFZ”) or “safe zone” for civilians in the Mullativu district.  Interviews with witnesses found repeated stories regarding the shelling of civilians in several government-declared NFZs, demonstrating a government strategy that combined the use of weapons with unreliable food delivery and obstructed medical care for civilians in the Vanni.  Towards the end of the conflict, as a result of the forced movement of civilians into the NFZs, the concentration of civilians became greater and the casualties from each shelling incident increased exponentially.

Remarkably, every witness recounted the heavy military bombardment of civilian NFZs in the Vanni.  Credible evidence suggests that there was intentional heavy shelling in the areas of Suthanthira Puram, Valipuram, Thevipuram, Thevipuram East, Iranaipalai, Maththalan, Puttumathtalan, Valaingar Madam, Iraddaivaikkal, and Vella Mullivaikkal.  Such intentional shelling of the civilian population, especially in areas where civilians were directed to seek shelter and were told they would be safe, is an egregious violation of international norms and law.

2. Attacks on humanitarian food distribution center

The government significantly limited food and medicine distributions to hundreds of thousands of displaced civilians, resulting in severe shortages. Moreover, humanitarian operations came under fire from the Sri Lankan security forces, killing and wounding civilians, including many women and children, and destroying critical humanitarian supplies. The Sri Lankan government eventually ordered all humanitarian operations to leave the Vanni in September 2008.

3. Attacks on civilian hospitals

In the final months of the war, civilians were subject to dozens of attacks on hospitals and makeshift medical centers. In response to demands for explanations as to why these attacks occurred, the government either denied these incidents entirely or claimed that the LTTE was using the facilities for military purposes, rendering the facilities legitimate targets. Hospitals have a protected status under international humanitarian law, unless the facilities are used to commit hostile acts outside their humanitarian function. The Sri Lankan government has never offered credible evidence to demonstrate that active LTTE combatants were using the hospital as guerilla military bases and violated international law by shelling these civilian posts.

These eyewitness accounts indicate that the Sri Lankan government committed war crimes, crimes against humanity, and genocide against the Tamil civilian population. The government has repeatedly demonstrated its unwillingness to investigate these crimes, as well as its unwillingness to hold its own officials accountable. The Sri Lankan government has historically failed, and continues to fail, to effectively investigate war crimes, crimes against humanity, and genocide in its country. Since Sri Lanka gained independence in 1948, the government has been accused of a number of human rights abuses by the international community. During this time, Sri Lanka has established ten investigatory commissions in an attempt to deflect international accusations and criticisms.[i] None of these investigatory commissions have yielded any significant findings, demonstrating that the Sri Lankan government has not historically held itself accountable for its actions.

When the Sri Lankan civil war ended in 2009, the government initially established two investigatory bodies, the Group of Eminent Persons and the Lessons Learnt and Reconciliation Commission (“LLRC” or “the Commission”). The U.S. State Department considered the Group of Eminent Persons ineffective, as the group missed several deadlines, did not produce any significant results, and did not publish any reports.[ii] The LLRC eventually subsumed the Group of Eminent Persons and is now the primary investigatory tribunal through which Sri Lanka conducts its limited investigation. Like the Group of Eminent Persons, the LLRC has demonstrated deficiencies.

Against this solid record of past failure, Sri Lanka’s current efforts to account for past events deserve greater scrutiny by the United Nations. This is not a question of condemning a domestic process before it has had time to complete its mandate—an argument put forth repeatedly by the government—or of interference with state sovereignty. Rather, Sri Lanka’s consistent pattern of failed accountability commissions must be viewed from the lens of reality: no government will effectively investigate itself for war crimes allegations. Indeed, a U.S. State Department diplomat admitted:

There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power. In Sri Lanka this is further complicated by the fact that responsibility for many of the alleged crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa and his brothers and opposition candidate General Fonseka.[iii]

Accountability is essential to the restoration of peace in Sri Lanka. Twenty-five years of bloodshed and impunity are stark indicators of the need for an independent criminal tribunal to render justice to civilians. The international community must acknowledge that the Sri Lankan government’s systematic denial of its misconduct during and after the war demonstrate the failure of domestic accountability. The emphasis on accountability is not a strategy to dismantle the present government or to seek vengeance; rather, it is an acknowledgement that civilian suffering must not be dismissed and must instead be viewed apolitically.

The LLRC’s mandate is limited to investigate the final phase of the civil war. However, the U.N. Panel, which advises the LLRC, must remain mindful of both the U.N. Charter and international human rights law, irrespective of national sovereignty. Sixty-two years after the writing of the Universal Declarations on Human Rights, and after numerous war crimes trials have taken place in international and ad-hoc courts, the international community must continue to hold perpetrators of mass human rights violations accountable. If the United Nations does not act quickly to address the well documented and credibly supported allegations of international law violations perpetrated against the civilian population in Sri Lanka between September 2008 and the present, there is little hope of restoring peace and stability.

Evidence in the present submission demonstrates shocking illustrations of the Sri Lankan government’s systematic violations of norms and principles of international human rights and humanitarian laws. This submission’s call for accountability, however, is not an automatic demand for the prosecutions of government officials, especially those who have not directly or indirectly participated in the alleged atrocities. Accountability should be effectuated objectively without prejudice to the government or military of Sri Lanka. The evidence should be reviewed and scrutinized and that alone will indicate if the allegations are undeniably supported and if violations of international law have occurred.

The advent of the U.N. Panel heralds a new era, as the war against a culture of impunity has begun. To ensure justice and deter future atrocities, the United Nations must assert itself and execute its mandate to its fullest capacity. It is therefore submitted that an independent criminal tribunal is the only viable means to achieve accountability.

In 2011, SPEAK intensified its lobbying campaign directed at the US Department of State and Justice, and focused on the deportation of former Sri Lankan military generals presently in the US under US laws designed to remove suspected war criminals within its borders, a letter from UNROW Impact Litigation Clinic and SPEAK, dated 18th May 2011, addressed to Janice L. Jacobs, Assistant Secretary for Consular Affairs, U.S. Department of State, was sent requesting the revocation of the diplomatic visa of Brigadier Shavendra Silva, the Deputy Permanent Representative to the United Nations for Sri Lanka.

According to media reports as well as the Report of the UN Secretary General’s Panel of Experts on Accountability in Sri Lanka, there is credible evidence suggesting Mr. Silva, who was the commander of the 58th Division of the Sri Lankan Army that was operating in the northeast of Sri Lanka during the final stages of the conflict, was involved in the commission of Genocide, Crimes Against Humanity and War Crimes. Our letter made big headlines and was widely received by the media, including Sri Lankan newspapers.

In January 2012, SPEAK formed a coalition of leading human rights groups to condemn the appointment of Silva to the U.N. Secretary-General’s Special Advisory Group on Peacekeeping. The coalition included UNROW Human Rights and Environmental Initiative, the Center for Justice & Accountability, the Center for Constitutional Rights, the European Center for Constitutional and Human Rights Groups, the Society for Threatened Peoples, and TRIAL (Swiss Association Against Impunity). Subsequently, in response to complaints about Silva’s appointment, the chairwoman of the Special Advisory Group announced that Silva’s presence in the group was inappropriate.

In March, as an accredited guest of a Tamil UNESCO group, SPEAK attended the 2012 Human Rights Council sessions. For ten days SPEAK lobbied the members of the Human Rights Council and lobbied for votes to pass the war crimes accountability resolution. The lobbying effort was successful and the resolution overwhelmingly passed. The week’s activities ended with the world premiere movie screening of the Channel 4 documentary “Sri Lanka Killing Fields” followed by a human rights panel discussion.

In October it was reported that Sri Lanka intended to deploy suspected war criminal, General Shavendra Silva, to South Africa to take up the post of deputy ambassador. In anticipation of this move SPEAK collaborated with the Southern African Litigation Centre, in consultation with the Foundation for Human Rights and a number of Solidarity Groups in South Africa, including the Tamil Federation of Gauteng and the South African Tamil Federation, and prepared and submitted a briefing paper to South African President Jacob Zuma, outlining the legal implications of recognizing General Silva. The President is the person constitutionally mandated, in terms of section 84(2)(h) of the Constitution, to either receive and recognize foreign diplomats or to decline the sending state’s request.