By Jake Flanagin

When the General Assembly of the United Nations meets at the end of September, it will vote on whether or not an independent body should investigate alleged war crimes committed by the government of Sri Lanka during its 26-year civil conflict.

The government of the newly elected president Maithripala Sirisena has insisted that a domestic truth and reconciliation commission—not unlike that instituted in post-apartheid South Africa—will be sufficient; but others disagree.

“It is, I believe, an inescapable reality that Sri Lanka’s criminal justice system is not yet ready to handle these types of crimes,” said Zeid Raad Hussein, the UN’s human rights commissioner, at a news conference in Geneva. “A purely domestic court procedure will simply not succeed in overcoming the widespread and justifiable suspicions fueled by decades of violence, malpractice and broken promises.”

It’s true: Wounds are still fresh in Sri Lanka. The civil war, based in ethnic conflict between the island nation’s mainly Buddhist Sinhalese majority and largely Hindu Tamil minority, spanned decades and killed thousands. It centered on intermittent insurgency by the secessionist-nationalist movement known as the Liberation Tigers of the Tamil Eelam (LTTE, aka “the Tamil Tigers”), which aimed to establish a sovereign, ethnic-Tamil homeland on the island.

Tensions between the two groups stretch back to the end of British rule in 1948, when Sri Lanka was known as Ceylon. Prior to independence, the British colonial government reportedly favored Tamils (some of whom were brought over from southern India to work the island’s lucrative tea plantations) over the indigenous Sinhalese, stoking resentment among the latter. When the Sinhalese inevitably rose to power in postcolonial Ceylon, they changed the country’s name, made Buddhism the state religion, and instituted Sinhala as the official language. Tamils were actively disenfranchised.

In response to this systemic exclusion, the LTTE was formed in 1976 under the leadership of Velupillai Prabhakaran. The campaign for a Tamil homeland erupted into real violence in 1983, when a band of LTTE insurgents ambushed a Sri Lankan military convoy, killing 13 soldiers and sparking nationwide riots in which more than 2,500 Tamils died.

In subsequent decades, the LTTE grew into a fully fledged terrorist organization, carrying out suicide bombings and forcibly recruiting child soldiers. They effectively occupied and administered a northern eighth of the island, just south of the Jaffna Peninsula, though laid claim to the entirety of the northern, eastern, and western coasts.

Norway attempted to broker a ceasefire agreement between the LTTE and the Sri Lankan government in 2002, but talks fell through the following year. A thin truce was brokered following the 2004 Indian Ocean earthquake and tsunami, however, which killed more than 30,000 Sri Lankans and precipitated a short period of peace.

That peace was shattered in 2005 with the assassination of Sri Lanka’s foreign minister, Lakshman Kadirgamar, by an LTTE sniper in Colombo—Sri Lanka’s largest city. Karidgamar, despite being ethnically Tamil himself, was largely responsible for getting the US State Department to recognize the LTTE as a terrorist organization, and this was supposedly the motivation behind the attack. Over the next two years, both Sri Lankan and LTTE forces regularly exchanged fire; though civilians bore the brunt of the violence.

In Jan. 2008, the Sri Lankan government withdrew from the ceasefire agreement, and launched a campaign to eradicate the LTTE from the country entirely. In 2009, it declared the LTTE defunct and the conflict over. “We have liberated the whole country from LTTE terrorism,” said Mahinda Rajapaksa. “Our intention was to save the Tamil people from the cruel grip of the LTTE. We all must now live as equals in this free country.”

To human-rights advocates both in Sri Lanka and abroad, Rajapaksa’s words rang hollow, however. Proclamations of commitment to interethnic equality mean little when your own government also stands accused of gross human-rights violations carried out in the midst of conflict.

According to Amnesty International (pdf), throughout the civil war, “Sri Lankan military artillery repeatedly hit government-designated civilian ‘no fire zones’ and hospitals, killing medical workers and civilians who appeared to be used as human shields by the LTTE.” Sri Lankan army personnel are also alleged to have killed and forcibly disappeared civilians and former LTTE operatives who had surrendered in what became a kind of Dirty War against ethnic Tamils in the early 2000s.

“Tamils suspected of links to the [LTTE] continued to be arrested and detained under the Prevention of Terrorism Act (PTA) instead of ordinary criminal law,” according to Amnesty. “The PTA permits extended administrative detention, and shifts the burden of proof to a detainee alleging torture or other ill-treatment. It also restricts freedoms of expression and association and has been used to detain critics.”

“Sexual violence was reported against both male and female detainees,” Amnesty notes. “Victims reported torture of both adult and juvenile detainees; these included individuals arrested in the context of security operations as well as suspects in ordinary criminal cases.”

In Mar. 2014, the United Nations Human Rights Council requested that the Office of the High Commissioner for Human Rights (OHCHR) investigate these violations of international law committed by both the LTTE and Sri Lankan government, with special regards to the latter, as impunity for members of the Sri Lankan political and military elite linked to human-rights abuses has persisted despite official promises to ensure accountability.

Amnesty International has called for particular scrutiny into the cases of five students extrajudicially executed in Trincomalee by Sri Lankan security forces in Jan. 2006, the killing of 17 aid workers in Muttur in Aug. 2006, the murder of newspaper editor Lasantha Wickrematunge in Jan. 2009, and the disappearances of political activists Lalith Weeraraj and Kugan Muruganandan in Jaffna in 2011.

Incidents such as these have demonstrated the need for an independent, impartial investigation. And it’s worth noting that despite an apparent commitment to reform, Sirisena’s government is overlooking continued human-rights abuses carried out by official actors against the Tamil minority. The Prevention of Terrorism Act (PTA), which allows authorities to summarily detain suspects at their discretion, has yet to be repealed, and is reportedly still in use. And its penal code has yet to recognize the crime of enforced disappearance.

(Quartz)

Sri Lanka yesterday expressed confidence that prominent nations, including India, would back its proposal for a domestic mechanism to probe alleged war crimes during the conflict with LTTE, notwithstanding UNHRC's recommendation for a hybrid court with international judges.

"The resolution to be brought tomorrow will be for a domestic mechanism. We have the support coming from China, Russia and India they all agree for the local mechanism," Cabinet spokesman Rajitha Senaratne told reporters on the eve of consultations with stakeholders on the resolution.

Senaratne, who is also the Health Minister, was referring to the pro-Sri Lanka resolution to be sponsored by the US later this month at the UN Human Rights Council sessions in Geneva.

In a blow to Sri Lanka's insistence on a purely domestic probe, a UNHRC report last week asked Sri Lankan government to set up a hybrid special court, integrating international judges, prosecutors, lawyers and investigators to probe the horrific war crimes during the civil war with LTTE that ended in 2009.

Sri Lanka's Tamil minority say they lack trust in a local inquiry into the war, in which more than 100,000 people died.

Asked about former President Mahinda Rajapaksa's statement that the government must reject the UNHRC report, Senaratne said that he can only reject if he was still at the helm of the government.

"He rejected everything connected to the UN but went to address the General Assembly every year," the Minister said.

The US sponsored three successive resolutions at the UN Human Rights Council since 2012, the last of which in 2014 proposed an international investigation. Rajapaksa then as the President rejected the resolution claiming it was an attack on Sri Lanka's sovereignty.

India in 2012 and 2013 voted for the US-sponsored resolution, but last year it abstained from voting on the resolution that sought an international investigation into Sri Lanka's alleged war crimes.

Rajapaksa had refused to cooperate with the investigation and did not permit the investigators to arrive in the country.

In a major shift Washington last month announced it would support Colombo's plans for a domestic inquiry, which is also supported by India.

Since Rajapaksa's defeat in presidential polls in January, President Maithripala Sirisena's government has adopted a policy of closer cooperation with the UN mechanism and turned around Sri Lanka's international relations for the better.

Sirisena's government, which came to power strongly backed by the Tamils, has vowed to punish war criminals of the conflict fought under the command of his predecessor, Rajapaksa, who ruled Sri Lanka for nearly 10 years.

Rights groups claim that the Sri Lankan military killed 40,000 civilians in the final months of the three decade-long brutal ethnic conflict with the LTTE.

(Outlook)

Former Sri Lankan Foreign Minister Prof.G.L.Peiris has said that the report of the UN High Commissioner of Human Rights on “war crimes” in Lanka has soft pedaled the LTTE’s using civilians as a human shield, when it is a war crime under international humanitarian law.

He charged that the Lankan government has not forcefully presented to the UN Human Rights Council (UNHRC) the existing prohibitions against the use of civilians as shields in civil wars. The findings of the Maxwell Paranagama Commission on civilian deaths in Eelam War IV was also not conveyed, Peiris told Express.

The UN report pilloried the government forces which had rescued 300,000 Tamil civilians held hostage by the LTTE. But it let the LTTE, the hostage taker, off the hook.

The report does chide the LTTE for using human shields, but its final word is that the government cannot blame the LTTE for the loss of civilian lives.

“The duty to respect international humanitarian law does not depend on the conduct of the opposing party, and is not conditioned on reciprocity,” the report  says.

Law On Human Shields

The Geneva Convention of 1949 described the use of human shields as “cruel and barbaric”.  In his paper on the human shield, Michael N.Schmitt, Professor of International Law at the US Naval War College, says that violation of the human shield prohibition constitutes a war crime.  

The Additional Protocols to the Geneva Convention say that warring parties   shall not direct the movement of the civilian population in order to attempt to shield military objectives from attacks or shield military operations. The presence or movement of the civilian population shall not be used to render certain points or areas immune to military operations, they say.

Art 58 of the Additional Protocol I, says that parties to a conflict are obliged to remove the civilian population and civilian objects under their control from the vicinity of military operations. It also prohibits locating military objectives within or near densely populated areas. The LTTE brazenly violated these provisions in the final phase of the war.

(The New Indian Express)

Former Ambassador and political scientist Dr. Dayan Jayatilleka said that while UNHRC Chief Prince Zeid is playing the role of the ‘bad cop’ with regard to Sri Lanka, the US is playing the role of the ‘good cop.’

In a special interview with veteran journalist Michael Gregson, Jayatilleka said that while Zeid is urging a hybrid court, the US is apparently coming to the rescue saying a domestic mechanism with international component. Jayatilleka added that this is an old known tactic of the US. However, the Sri Lankan government seems to be going along with this, he argued. Sri Lanka's support for the US proposal will prevent countries which are against such a systems from taking any step against it, Jayatilleka also said.

Commenting on the OHCHR Investigation on Sri Lanka (OISL) report, Jayatilleka said that the government should have rejected it for suggesting a hybrid court. He argued that Sri Lanka has been singled out, as shown by some of the comments made by the UN High Commissioner for Human Rights.

Sri Lanka has a proud and robust tradition of jurisprudence and the country has produced eminent figures in law. Meanwhile, several former soldiers have been given death sentence for crimes committed during the war. Therefore, the country has the capability of investigating the matter on its own, Jayatilleka added.

He also maintained that every society takes its time to investigate past events. In Spain, certain matters relating to the Civil War cannot be investigated even now, he added. Bangladesh is probing the 1971 War of Independence only now. Certain Latin American countries took its time to investigate their ‘dirty wars.’ Even the UK is reluctant to probe events in Northern Ireland since it will harm reconciliation there. All governments should reserve its sovereign right to investigate past events, Jayatilleka said.

The Office of the United Nations High Commissioner for Human Rights (OHCHR) has defended the findings of its report on alleged war crimes in Sri Lanka, which drew criticism from several quarters for its “silence” on genocide in the island nation.

Responding to a question sent by The Hindu in this regard, Ravina Shamdasani, spokesperson for the High Commissioner, stated via email: “This [the U.N. report] does not preclude such a finding [that genocide was committed] being made as a result of further criminal investigations, including by the hybrid court that we recommend.”

“The crime of genocide requires specific objective and subjective elements. On the basis of the information we were able to gather, we did not come to the conclusion that these elements were met,” she said.

In February, Sri Lanka’s Northern Provincial Council passed a resolution, blaming successive governments in the country of committing “genocide” against Tamils.

The spokesperson pointed out that given the circumstances in which the investigation was carried out, the OHCHR was able to conduct “a comprehensive investigation”, with over 3,000 written submissions, interviews in 11 countries, photos, videos, and satellite imagery with expert analysis.

However, criticising the report on different counts, including that of relying on the testimony of people whose identity has been kept confidential, former Foreign Minister of Sri Lanka, G.L. Peiris, argued that the “purported evidence, on which critical findings are based, is shrouded in secrecy”.

“There is, consequently, a breach of the requirements of fairness and transparency even at the basic level.”

He contended that Sri Lanka had every opportunity to use well-established principles of international humanitarian and human rights law, applied with “reasonable uniformity in precedents” across the globe, to make a cogent case for the protection of the military personnel. “Sadly, we seem to be treading instead a different path fraught with the greatest danger.”

(The Hindu)

The Janatha Vimukthi Peramuna will reveal its stance on the OHCHR Investigation on Sri Lanka (OISL) report released recently by the UNHRC Chief Zeid Ra'ad Al Hussain today.

JVP National Organizer Bimal Ratnayake told Asian Mirror yesterday that the party will reveal its position at a press conference today.

He added that the JVP believes in justice for the victims of the war, and recalled that the party had suggested the then President Mahinda Rajapaksa to establish a Truth Commission back in 2009.

However, the intervention of the US has to be viewed with caution, Rathnayake also said. During the past few decades, US intervention has damaged the rights of the citizens of the countries it has intervened in, rather than realizing justice for the victims, he argued.

Until now, the JVP has been silent over the OISL report. When asked about it at a recent press conference, party leader Anura Kumara Dissanayake said that the JVP will respond at a separate press conference.

Head of the Sri Lanka mission in Geneva, Ambassador Ravinatha Aryasinha, raised serious objections and concerns over the first draft text of the resolution on Sri Lanka which is to be tabled during the 30th session of the UN Human Rights Council (UNHRC).

In his opening statement to the first informal consultation on the draft resolution on Sri Lanka today in Geneva, he said that the text is reparative, judgmental and prescriptive and not in keeping with the spirit of the process of reconciliation and reform underway in Sri Lanka.

He pointed out that Sri Lanka was ready to work together with the UNHRC, in a clear departure from its earlier position. He added that the government has taken a totally different course after January 8. However, the US draft resolution does not help Sri Lanka in seeking out this new path, he pointed out. 

“Many paragraphs in the current draft are in fact counterproductive to the reconciliation efforts of the Government and have the tendency to polarize communities, vitiate the atmosphere on the ground that is being carefully nurtured towards reconciliation and pace building and restrict the space required for consultation,” Aryasinha said.

Justice Maxwell Paranagama, Chairman of the Sri Lankan Commission on missing persons and war crimes, has said that the death toll in the final phase of Eelam War IV was not 40,000, as claimed in the 2011 report of the Panel of Experts appointed by the UN Secretary General  Ban Ki-moon, but probably a little above 7,000.

Paranagama told Express here on Sunday, that while investigations by his panel could not come to any precise figure of deaths, it was “certainly not 40,000” as stated in the UN panel report. Even that report was not definitive, only saying  that 40,000 may have been killed.

“The Department of Statistics which had done a house to house survey in the conflict zone, and the reports sent out by the various foreign embassies suggest a  death toll of 7,700 or thereabouts. Our commission could not arrive at any precise figure, but we think 40,000 was certainly an overestimation,” Paranagama said.

UNHRC Kept In Dark

Meanwhile, some former diplomats, ministers and human rights activists have written to President Maithripala Sirisena asking him to find out why the final Paranagama report, submitted to him on August 15, was not tabled at the on-going session of the UN Human Rights Council (UNHRC).

The Paranagama panel had been advised on international humanitarian law by a international team comprising Sir Desmond de Silva, Prof.David Crane, Sir Geoffrey Nice, and Maj.Gen.John Holms. In July 2015, the Sirisena government had even appointed a Special Investigating Team to expedite investigations into some cases reported to the said panel.

The petitioners pointed out that the most recent investigative report of the Office of the UN High Commissioner for Human Rights had said that the Paranagama report was not been given to it. If the report had been submitted, it would have had an impact on the thinking of the UNHRC. Since the Lankan Foreign Minister Mangala Samaraweera has promised to release the Paranagama report, the  petitioners asked President Sirisena to have it placed before the UNHRC, without delay.

(The New Indian Express)

The Sri Lanka Freedom Party appointed a special committee to study the OHCHR Investigation on Sri Lanka (OISL) report which was released on September 16, the party General Secretary Duminda Dissanayake told media.

He said that this decision was taken yesterday evening at a Central Committee meeting of the SLFP.

The report of the committee is expected within the next few weeks.

Dissanayake also made it clear that the party came to a decision to protect all those who fought to defeat terrorism.

UPFA Parliamentarian and National Freedom Front leader Wimal Weerawansa said that he has requested a parliamentary debate on the recently released OHCHR Investigation on Sri Lanka (OISL) report.

The UNHRC Chief Prince Zeid Ra'ad Al Hussain released the report on September 16. While it has been praised in many quarters, strong opposition to the report is being shown by some opposition politicians and other prominent figures in the country.

Weerawansa said that he has already made a request for a debate from the Speaker.