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

“ Moreover, following its defeat of the LTTE, the Government’s ongoing denial that immense harm was done to its citizens, including the death of tens of thousands, not only by the LTTE, but also by its own armed forces, presents a fundamental obstacle to accountability. An enabling environment that would permit a candid appraisal of the broad patterns of the past, including the root causes of the long-running ethno-nationalist conflict, does not exist at present. ”

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

“ The rationale for transitional justice is not to dwell on the past or to seek retribution. Instead, transitional justice seeks to break cycles of violence, combat impunity and denial, and acknowledge the suffering of victims by ensuring accountability for past crimes. It also seeks to address, more broadly, systemic or structural factors and injustices that predate or exist outside the conflict, but which influenced the nature of violations and experiences of conflict, including discrimination against women. ”

“ In terms of whether indiscriminate shelling may amount to murder, international jurisprudence accepts that “where a civilian population is subject to an attack such as an artillery attack, which results in civilian deaths, such deaths may appropriately be characterized as murder, when the perpetrators had knowledge of the probability that the attack would cause death.” ”

“ Addressing violations of international humanitarian or human rights law is not a matter of choice or policy; it is a duty under domestic and international law. Under international humanitarian law that applies to internal armed conflict as well as international human rights law, the credible allegations trigger a legal duty of the Government to conduct immediate and genuine investigations and, if the evidence warrants, to prosecute those most responsible. ”

“ Such practice indicates that a state emerging from a period of large-scale violations, and seeking to build sustainable peace and a better future, cannot turn its back to the past but must confront it. In post-conflict or transitional settings, States have engaged a “full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” ”

“ In contrast to the respectful approach at the Colombo hearings, the commissioners have frequently taken a curt and dismissive approach to victims who raise issues of disappearances and missing or detained persons. Often, questioning in such instances has been desultory; in other instances, when allegations are made against the conduct of security forces, commissioners seem at pains to refute any possibility that the allegations may be true, pointing to inconsistencies in the victim’s account in order to discredit it. ”

“ While Sri Lanka has a proud journalistic tradition, press freedom was circumscribed during the conflict, especially in the latter stages. While independent media continue to operate, they still face restrictions and intimidation. Many journalists who fled the country during the war because of violence and threats are still fearful and believe that it is not safe to return. Within the country, there is very limited tolerance of views critical of the Government or sympathetic to Tamil grievances. ”

“ Requirement of distinction between combatants and civilians 194. International humanitarian law provides that “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may be directed only against combatants and must not be directed against civilians” (Rule 1, ICRC Study) . Civilians are defined as “anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict”. [10] In cases of doubt as to the status of a person, that person shall be considered a civilian. ”

“ Many States Parties have implemented domestic legislation giving rise to a duty to prosecute genocide, war crimes and crimes against humanity in national courts. Increasingly, domestic criminal proceedings of a State’s own citizens for serious violations, which could amount to war crimes during an internal armed conflict, are being conducted in States as varied as Argentina, Bangladesh, Bosnia, Chile, Colombia, the Democratic Republic of Congo, Guatemala, Peru, Serbia, Rwanda and Uganda. ”

“ The Sri Lanka Tamil diaspora, with a population of close to one million scattered across the globe, has grown since the 1980’s, as large numbers of Tamils sought refuge abroad from violence and repression by the State, while others sought better economic opportunities. The diaspora has played a crucial role throughout the war, with segments providing uncritical support to the LTTE, through crucial funding and advocacy, consistently denying any wrongdoing by the LTTE throughout the conflict. ”

“ In the case of Sri Lanka, it is important to consider the mental element of this prohibition from the context of the law on individual responsibility. Most significantly, the law does not prohibit only attacks in which the attacking party’s sole intent is to kill civilians deliberately. Reasoning by analogy from the First Additional Protocol, which defines the war crime of making civilians the object of attack in international armed conflict, requires that such a prohibited attack on civilians must be undertaken “wilfully”. ”

“ Indeed, the conduct of the war by them represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace. The victory of one side has emboldened some to believe that these rules may now be disregarded in the cause of fighting terrorism. ”

“ The ease with which Tamil speakers can enter public service, in all sectors including security, should be enhanced. While the recent enlistment into the police of members of the Tamil community from the North and East can be seen as positive, great care should be taken to exclude those who committed serious human rights violations as part of paramilitary groups during the armed conflict. It is equally important to begin to recruit Tamils into the Armed Forces. ”

“ The spontaneous appearance of so many people who came forward in hearings in the North and East, particularly women, points to the urgent need for a genuine process of truth-seeking and accountability in Sri Lanka. ”

“ A mono-ethnic military representing the victorious side of a protracted ethnic conflict, and which continues to play a highly visible and assertive role in the country’s administration, even two years after the war ended, is no less than a recipe for future disharmony. ”

“ Issuance of a death certificate following an administrative process is not a substitute for a bona fide investigation into the circumstances of an individual’s death, which meets international standards. ”

“ Helping people to rebuild their lives is not only a matter of providing material benefits, however necessary this may be, and certainly the Government needs to undertake a range of measures that address the immediate plight of those whose rights were and continue to be violated; it also requires the State to take genuine steps towards accountability. ”

“ However, many people in Sri Lanka and elsewhere were deeply disturbed about the means used to achieve the victory by the country’s armed forces. They had watched for months, with increasing alarm, as hundreds of thousands of Tamil civilians became trapped between two highly determined warring factions, unable to flee, as the LTTE was forced into a small corner of the Vanni, on the north-east coast of the country. The toll of civilian casualties, both killed and wounded, rose dramatically. Civilians were caught by shelling from the Government side ”

“ However, in practice, Sri Lanka’s constitutional history evidences that judicial interventions have proved to be of little impact in deterring gross violations by the State. The weakening of the rule of law, resulting from broad emergency powers outside of judicial review, and a culture of impunity, resulting from a lack of political will to hold state officials to account, have combined to create an environment in which judicial pronouncements were routinely disregarded by the successive Governments. ”

“ Finally, the restoration of a thriving civil society is key to Sri Lanka’s transition and the effectiveness of an accountability process. Policies such as placing the registration of NGOs under the auspices of the Ministry of Defence are inappropriate. Further, it is disturbing to read reports of human rights organizations being investigated by the CID. Pressures on human rights defenders are also of concern; they should have unrestricted freedom of movement throughout the country to be able to monitor and report on human rights issues. ”

“ Members of the Tamil diaspora, through their unconditional support of the LTTE and their extreme Tamil nationalism, have effectively promoted divisions within the Sri Lankan Tamil community and, ironically, reinforced Sinhalese nationalism. A stable future in Sri Lanka demands that all of its ethnic communities, including those living abroad, recognize and respect the rights and interests of others with whom they share a common homeland. The diaspora, which is large, well educated and has considerable resources, has the potential to play a far more constructive role in Sri Lanka’s future. ”

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

“ Based on international standards and practice, however, the two concepts are clearly distinct, as accountability goes further by attaching consequences to individuals or institutions deemed responsible for a particular violation. Assignment of responsibility is important as a potential pre-condition for accountability, but it does not release a State from its obligations with regard to accountability for serious violations of human rights or international humanitarian law. ”

“ The human rights of all citizens have suffered as a result of almost three decades of war, the degradation of independent institutions and the weakening of the rule of law. As the Government prepared for its final offensive against the LTTE, there was a further erosion of human rights, and several measures led to greater limitations on the space for independent news coverage, dissent and even humanitarian action. ”

“ While recognizing a State’s right under international law to national security and to defend itself against armed attacks, the Panel emphasizes that all actions taken for those legitimate purposes must comply with the requirements of international law. The Panel firmly rejects the view that international humanitarian laws are inappropriate for certain forms of modern warfare, including those used in Sri Lanka. Indeed, discussion is needed to increase safeguards to protect civilians in situations of armed conflict. ”

“ Truth commissions can uncover patterns of violations, identify the underlying divisions and inequalities that perpetuate conflict and indicate institutional responsibilities. Truth commissions generally give emphasis to both process and product, in that they seek not only to establish these aspects of the truth, but also to give voice to victims and their experiences, including those groups who may face particular marginalization, such as women or children. ”

“ Many influential NGOs and some religious leaders have used the space offered by the LLRC to advocate on the public record their vision of what needs to happen in Sri Lanka on matters of accountability and to suggest changes for the future. The fact that large numbers of people, particularly victims, have come before the Commission confirms the need for an official space where they can raise matters related to the final stages of the war and their personal circumstances in consequence. ”