In
Sri
Lanka, UN Allowed Sabotage of its Report, Which Chides Ban Ki-moon for
Withholding Casualty Figures
By
Matthew
Russell Lee
WASHINGTON,
April
16 -- When the UN gave a copy of its long delayed Panel of
Experts' report on war crimes in Sri Lanka to the government of
Mahinda Rajapaksa while withholding it from the press and public, the
next steps were foreseeable.
First,
the
government criticized the report as “flawed” and “baseless”
while no one else could see it.
Then
portions
of
the report appeared in The
Island in Sri Lanka, with more
than a half dozen misspellings, for example “facilities” for
“facilitate” and even words repeated (“excluded excluded”)
which called and call into question its authenticity.
Most
tellingly,
they were accompanied the same day in The Island by op-eds
denouncing
the report: click here
and here.
Of
the Island's
editor, consider
this:
“Prabath
Sahabandu, editor of The Island daily, told CPJ that his paper's
pro-Rajapaksa stance was a natural fit: 'This government was
preoccupied with the war effort and we were also campaigning against
terrorism as a newspaper. On this particular issue, we saw eye to
eye. So we didn't have the problems that other newspapers had.'”
Clearly,
this is
not a run of the mill leak, such as that of the so-called Mapping
Report on Rwanda, or many sanctions reports at the UN. In these
cases, the experts who find wrongdoing sometimes leak the reports to
make it more difficult to edit or water then down.
But
what of a
government which, inexplicably given a heads-up by Secretary General
Ban Ki-moon, chooses to itself pre-criticize and leak the report?
Ban
Ki-moon's UN,
either a glutton for punishment or again wanting to do favors for
Rajapaksa, instead of immediately releasing the full report only
issued a statement calling the leak regrettable, and still offering
the government a change to have its response “published” along
with the UN's official, already scooped and undermined release of the
report.
And
this is the UN
that is supposed to investigate itself? Even as leaked, the report
says that
“During
the final stages of the war, the United Nations political organs and
bodies failed to take actions that might have protected civilians.
Moreover, although senior international officials advocated in public
and in private with the Government that it protect civilians and stop
the shelling of hospitals and United Nations or ICRC locations, in
the Panel’s view, the public use of casualty figures would have
strengthened the call for the protection of civilians while those
events in the Vanni were unfolding....
“Considering
the response of the United Nations to the plight of civilians in the
Vanni during the final stages of the war in Sri Lanka and the
aftermath.. The Secretary-General should conduct a comprehensive
review of actions by the United Nations system during the war in Sri
Lanka and the aftermath, regarding the implementation of its
humanitarian and protection mandates.”
But
how is this
Secretary General, with a chief of staff whose role in the so called
white flag killings in Sri Lanka, and who withheld his own Office for
the Coordination of Humanitarian Affairs casualty figures which were
subsequently leaked to and published by Inner City Press, to credibly
“conduct of comprehensive review” of his own behavior, and that
of his senior advisers?
With
this
recommendation, as well as by their silence as Rajapaksa blocked them
from going to Sri Lanka, and silence as Ban gave Rajapaksa the heads
up and the deflating leak occurred, the three “Experts” seem to
discredit themselves. Maybe they should “conduct of comprehensive
review” of their own behavior.
As
appeared
online, now with Inner City Press ANNOTATIONS:
Report
of
the UNSG’s panel of experts on accountability in SL
April
15,
2011, 6:24 pm
Allegations
found
credible by the Panel
The
Panel’s
determination of credible allegations reveals a very
different version of the final stages of the war than that maintained
to this day by the Government of Sri Lanka. The Government says it
pursued a "humanitarian rescue operation" with a policy of
"zero civilian casualties". In stark contrast, the Panel
found credible allegations, which if proven, indicate that a wide
range of serious violations of international humanitarian law and
international human rights law were committed both by the Government
of Sri Lanka and the LTTE, some of which would amount to war crimes
and crimes against humanity. Indeed, the conduct of the war
represented a grave assault on the entire regime of international law
designed to protect individual dignity during both war and peace.
Specially
[DOES
THIS
MEAN “SPECIFICALLY”?]
the
Panel
found credible allegations associated with the final stages of
the war. Between September 2008 and 19 May 2009, the Sri Lanka Army
advanced its military campaign into the Vanni using large-scale and
widespread shelling causing large numbers of civilian deaths. This
campaign constituted persecution of the population of the Vanni.
Around 330,000 civilians were trapped into an ever decreasing area,
fleeing the shelling but kept hostage by the LTTE. The Government
sought to intimidate and silence the media and other critics of the
war through a variety of threats and actions, including the use of
white vans to abduct and to make people disappear.
The
Government
shelled on a large scale in three consecutive No Fire
Zones, where it had encouraged the civilian population to
concentrate, even after indicating that it would cease the use of
heavy weapons. It shelled the United Nations hub, food distribution
lines and near the International Committee of the Red Cross (ICRC)
ships that were coming to pick up the wounded and their relatives
from the beaches. It shelled in spite of its knowledge of the impact,
provided by its own intelligence systems and through notification by
the United Nations, the ICRC and others. Most civilian casualties in
the final phases of the war were caused by Government shelling.
The
Government
systematically shelled hospitals on the frontlines. All
hospitals in the Vanni were hit by mortars and artillery, some of
them were hit repeatedly, despite the fact that their locations were
well-known to the Government. The Government also systematically
deprived people in the conflict zone of humanitarian aid, in the form
of food and medical supplies, particularly surgical supplies, adding
to their suffering. To this end, it purposely underestimated the
number of civilians who remained in the conflict zone. Tens of
thousands lost their lives from January to May 2009, many of whom
died anonymously in the carnage of the final few days.
The
Government
subjected victims and survivours
[IS
THIS
SOME BRITISH SPELLING OR A TYPO?]
of
the
conflict to further deprivation and suffering after they left the
conflict zone. Screening for suspected LTTE took place without any
transparency or external scrutiny. Some of those who were separated
were summarily executed, and some of the women may have been raped.
Others disappeared, as recounted by their wives and relatives during
the LLRC hearings. All IDPs were detained in closed camps. Massive
overcrowding led to terrible conditions, breaching the basic social
and economic rights of the detainees, and many lives were lost
unnecessarily. Some persons in the camps were interrogated and
subjected to torture. Suspected LTTE cadres were removed to other
facilities, with no contact with the outside world, under conditions
that made them vulnerable of further abuses.
Despite
grave
danger in the conflict zone, the LTTE refused civilians
permission to leave, using them as hostages, at times even using
their presence as a strategic human buffer between themselves and the
advancing Sri Lanka Army. It implemented a policy of forced
recruitment throughout the war, but in the final stages greatly
intensified its recruitment of people of all ages, including children
as young as fourteen. The LTTE forced civilians to dig trenches for
its own defenses, thereby contributing to blurring the distinction
between combatants and civilians and exposing civilians to additional
harm. All of this was done in a quest to pursue a war that was
clearly lost; many civilians were sacrificed on the altar of the LTTE
cause and its efforts to preserve its senior leadership.
From
February
2009 onwards, the LTTE started point-blank shooting of
civilians who attempted to escape the conflict zone, significantly
adding to the death toll in the final stages of the war. It also
fired artillery in proximity to large groups of internally displaced
persons (IDPs) and fired from, or stored military equipment near IDPs
or civilian installations such as hospitals. Throughout the final
stages of the war, the LTTE continued its policy of suicide attacks
outside the conflict zone. Even though its ability to perpetrate such
attacks was diminished compared to previous phases of the conflict,
it perpetrated a number of attacks against civilians outside the
conflict zone.
Thus,
in
conclusion, the Panel found credible allegations that comprise
five core categories of potential serious violations committed by the
Government of Sri Lanka: (i) killing of civilians through widespread
shelling; (ii) shelling of hospitals and humanitarian objects; (iii)
denial of humanitarian assistance; (iv) human rights violations
suffered by victims and survivors of the conflict, including both
IDPs and suspected LTTE cadre; and (v) human rights violations
outside the conflict zone, including against the media and other
critics of the Government.
The
Panel’s
determination of credible allegations against the LTTE
associated with the final stages of the war reveal six core
categories of potential serious violations: Ii) using civilians as a
human buffer; (ii) killing civilians attempting to flee LTTE control;
(iii) using military equipment in the proximity of civilians; (iv)
forced recruitment of children; (v) forced labour; and (vi) killing
of civilians through suicide attacks.
Accountability
Accountability
for
serious 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. These credibly alleged violations demand a
serious investigation and the prosecution of those responsible. If
proven, those most responsible, including Sri Lanka Army commanders
and senior Government officials, as well as military and civilian
LTTE leaders, would bear criminal liability for international crimes.
At
the
same time, accountability goes beyond the investigation and
prosecution of serious crimes that have been committed; rather it is
a broad process that addressed the political, legal and moral
responsibility of individuals and institutions for past violations of
human rights and dignity. Consistent with the international standards
mentioned above, accountability necessarily includes the achievement
of truth, justice and reparations for victims. Accountability also
requires an official acknowledgment by the State of its role and
responsibility in violating the rights of its citizens, when that has
occurred. In keeping with United Nations policy, the Panel does not
advocate a "one-size-fits-all" formula or the importation
of foreign models for accountability; rather it recognizes the need
for accountability processes to be defined based on national
assessments, involving broad citizen participation, needs and
aspirations. Nonetheless, any national process must still meet
international standards. Sri Lankaapproach to accountability should,
thus, be assessed against those standards and comparative experiences
to discern how effectively it allows victims of the final stages of
the war to realize their rights to truth, justice and reparations.
The
Government
has stated that it is seeking to balance reconciliation
and accountability, with an emphasis on restorative justice. The
assertion of a choice between restorative and retributive justice
presents a false dichotomy. Both are required. Moreover, in the
Panel’s view, the Government’s notion of restorative justice is
flawed because it substitutes a vague notion of the political
responsibility of past Government policies and their failure to
protect citizens from terrorism for genuine, victim-centred
accountability focused on truth, justice and reparations. A further
emphasis is clearly on the culpability of certain LTTE cadre; the
Government’s plan, in this regard, contemplates rehabilitation for
the majority and lenient sentences for the "hardcore" among
surviving LTTE cadre. The Government’s two-pronged notion of
accountability, as explained to the Panel, focusing on the
responsibility of past Governments and of the LTTE, does not envisage
a serious examination of the Government’s decisions and conduct in
prosecuting the final stages of the war or the aftermath, nor of the
violations of law that may have occurred as a result.
The
Panel
has concluded that the Government’s notion of accountability
is not in accordance with international standards. Unless the
Government genuinely addresses the allegations of violations
committed by both sides and places the rights and dignity of the
victims of the conflict at the centre of its approach to
accountability, its measures will fall dramatically short of
international expectations.
The
Lessons
Learnt and Reconciliation Commission
The
Government
has established the Lessons Learnt and Reconciliation
Commission as the cornerstone of its policy to address the past, from
the ceasefire agreement in 2002 to the end of the conflict in May
2009. The LLRC represents a potentially useful opportunity to begin a
national dialogue on Sri Lanka’s conflict; the need for such a
dialogue is illustrated by the large numbers of people, particularly
victims, who have come forward on their own initiative and brought to
speak with the Commission.
Nonetheless,
the
LLRC fails to satisfy key international standards of independence
and impartiality, as it is compromised by its composition and
deep-seated conflicts of Interests
[WHY
IS THE WORD
INTEREST CAPITALIZED? PARTICULARLY SINCE THE WORD CONFLICTS IS NOT?]
of
some
of its members. The mandate of LLRC, as well as its work and
methodology to date, are not tailored to investigating allegations of
serious violations of international humanitarian and human rights
law, or to examining the root causes of the decades-long ethnic
conflict; instead these focus strongly on the wide notion of
political responsibility mentioned above, which forms part of the
flawed and partial concept of accountability put forth by the
Government. The work to date demonstrates that the LLRC has not
conducted genuine truth-seeking about what happened in the final
stages of the armed conflict, not sought to investigate
systematically and impartially the allegations of serious violations
on both sides of the war, not employed an approach that treats
victims with full respect for their dignity and their suffering, and
not provided the necessary protection for witnesses, even in
circumstances of actual personal risk.
In
sum,
the LLRC is deeply flawed, does not meet International standards
for an effective accountability mechanism and, therefore, does not
and cannot satisfy the joint commitment of the President of Sri Lanka
and the Secretary-General to an accountability process.
Other
domestic
mechanisms
The
justice
system should play a leading role in the pursuit of
accountability, irrespective of functioning or outcomes of the LLRC.
However, based on a review of the system’s past performance and
current structure, the Panel has little confidence that it will serve
justice in the present political environment. This is due more to a
lack of political will than to lack of ability. In particular, the
independence of the Attorney-General has been weakened in recent
past, as power has been more concentrated in the Presidency.
Moreover, the continuing constitution of Emergency Regulations,
combined with the Prevention of Terrorism Act in its present form,
present a significant obstacle for the judicial system to be able to
address official wrongdoing while upholding human rights guarantees.
Equally, the Panel has seen no evidence that the military courts
system has operated as an effective accountability mechanism in
respect of the credible allegations it has identified or other crimes
committed in the final stages of the war.
Other
domestic
institutions that could play a role in achieving
accountability also demonstrate serious weaknesses. Over three
decades, commissions of inquiry have been established to examine a
number of serious human rights issues. While some have served
important fact-finding goals, overwhelmingly these commissions have
failed to result in comprehensive accountability for the violations
identified. Many commissions have failed to produce a public report
and recommendations have rarely been implemented. The Human Rights
Commission of Sri Lanka could also potentially contribute to
advancing certain aspects of accountability, but the Panel still has
serious reservations and believes that the Commission will need to
demonstrate political will and resourcefulness in following up on
cases of missing persons and in monitoring the welfare of detained
persons.
Other
obstacles
to accountability
During
the
course of its work, the Panel observed that there were several
other contemporary issues in Sri Lanka, which if left un-addressed,
will deter efforts towards genuine accountability and may undermine
prospects for durable peace in consequence. Most notably, these
include: (i) triumphalism on the part of the Government, expressed
through its discourse on having developed the means and will to
defeat "terrorism", thus ending Tamil aspirations for
political, autonomy and recognition, and its denial regarding the
human cost of its military strategy; (ii) on-going exclusionary
policies, which are particularly deleterious as political, social and
economic exclusion exclusion
[WHY
DOES
THE WORD EXCLUSION APPEAR TWICE IN A ROW?]
based
on
ethnicity, perceived or real, have been at the heart of the
conflict (iii) the continuation of wartime measures, including not
only the Emergency Regulations and the Prevention of Terrorism Act,
mentioned above, but also the continued militiarisation [SIC] of the
former conflict zone and the use of paramilitary proxies, all of
which perpetuate a climate of fear, intimidation and violence; (iv)
restrictions on the media, which are contrary to democratic
governance and limit basic citizens’ rights; and (v) the role of
the Tamil Diaspora, which provided vital moral and material support
to the LTTE over decades, and some of whom refuse to acknowledge the
LTTE’s role in the humanitarian disaster in the Vanni, creating a
further obstacle to accountability and sustainable peace.
An
environment
conducive to accountability, which 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. It would require concrete steps towards building an open
society in which human rights are respected, as well as a fundamental
shift away from triumphalism and denial towards a genuine commitment
to a political solution that recognizes Sri Lanka’s ethnic
diversity and the full and inclusive citizenship of all of its
people, including Tamils as the foundation for the country’s
future.
International
role
in the protection of civilians
During
the
final stages of the war, the United Nations political organs and
bodies failed to take actions that might have protected civilians.
Moreover, although senior international officials advocated in public
and in private with the Government that it protect civilians and stop
the shelling of hospitals and United Nations or ICRC locations, in
the Panel’s view, the public use of casualty figures would have
strengthened the call for the protection of civilians while those
events in the Vanni were unfolding. In addition, following the end of
war, the Human Rights Council may have been acting on incomplete
information when it passed its May 2009 resolution on Sri Lanka.
Recommendations
In
this
context, the Panel recommends the following measures, which it
hopes as a whole, will serve as the framework for an ongoing and
constructive engagement between the Secretary-General and the
Government of Sri Lanka on accountability. They address the various
dimensions of accountability that the Panel considers essential and
which will require complementary action by the Government of Sri
Lanka, the United Nations and other parties.
Recommendation
1:
Investigations
A.
In
light of the allegations found credible by the Panel, the
Government of Sri Lanka, in compliance with its international
obligations and with a view to initiating an effective domestic
accountability process, should immediately commence genuine
investigations into these and other alleged violations of the
international humanitarian and human rights law committed by both
sides involved in the armed conflict.
B.
The
Secretary-General should immediately proceed to establish an
independent international mechanism, whose mandate should include the
following concurrent functions:
(i)
Monitor
and assess the extent to which the Government of Sri Lanka is
carrying out an effective domestic accountability process, including
genuine investigations of the alleged violations, and periodically
advice the Secretary-General on its findings;
(ii)
Conduct
investigations independently into the alleged violations,
having regard to genuine and effective domestic investigations; and
(iii)
Collect
and safeguard for appropriate future use information provided
to it, which is relevant to accountability for the final stages of
the war, including the information gathered by the Panel and other
bodies in the United Nations system.
Recommendation
2:
Other measures to advance accountability
A.
The
Government of Sri Lanka should implement the following short-term
measures, with a focus on acknowledging the rights and dignity of all
of the victims and survivors in the Vanni:
(i)
End
all violence by the State, its organs and all paramilitary and
other groups acting as surrogates of or tolerated by, the State;
(ii)
Facilities
[DOES
THIS
MEAN “FACILITATE”?]
the
recovery
and return of human remains to their families and allow for
the performance of cultural rites for the dead;
(iii)
Provide
death certificates for the dead and missing, expeditiously
and respectfully, without charge, when requested by family members,
without compromising the right to further investigations and civil
claims;
(iv)
Provide
or facilitate psycho-social support for all survivors,
respecting their cultural values and traditional practices;
(v)
Release
all displaced persons and facilitate their return to their
former homes or provide for resettlement, according to their wishes;
and
(vi)
Continue
to provide interim relief to assist the return of all
survivors to normal life.
B.
The
Government of Sri Lanka should investigate and disclose the fate
and location of persons reported to have been forcibly disappeared.
In this regard, the Government of Sri Lanka should invite the Working
Group on Enforced and Involuntary Disappearances to visit Sri Lanka.
C.
In
light of the political situation in the country, the Government of
Sri Lanka should undertake an immediate repeal of the Emergency
regulations and modify all those provisions of the Prevention of
Terrorism Act that the inconsistent with Sri Lanka’s international
obligations, and take the following measures regarding suspected LTTE
members and all other persons held under these and other provisions:
(i)
Public
[DOES
THIS
MEAN “PUBLISH”? OR, “MAKE PUBLIC”?]
the
names
of all of those currently detained, whatever the location of
their detention, and notify them of the legal basis of their
detention;
(ii)
Allow
all detainees regular access to family members and to legal
counsel;
(iii)
Allow
all detainees to contest the substantive justification of their
detention in court;
(iv)
Charge
those for whom there is sufficient evidence of serious crimes
and release all others, allowing them to reintegrate into society
without further hindrance.
D.
The
Government of Sri Lanka should end [THE] state violence
and other practices that limit freedoms of movement, assembly and
expression, or otherwise contribute to a climate of fear.
Recommendation
3:
Longer term accountability measures
While
the
current climate is not conductive to an honest examination of the
past, in the longer term, as political spaces are allowed to open,
the following measures are needed to move towards full accountability
for actions taken during the war:
A.
Taking
into account, but distinct from the work of the LLRC, Sri
Lanka should initiate a process, with strong civil society
participation, to examine in a critical manner: the root causes of
the conflict, including ethno-nationalist extremism on both sides;
the conduct of the war and patters
[DOES
THIS
MEAN “PATTERNS”?]
of
violations;
and the corresponding institutional responsibilities.
B.
The
Government of Sri Lanka should issue a public, formal
acknowledgement of its role in and responsibility for extensive
civilian casualties in the final stages of the war.
C.
The
Government of Sri Lanka should institute a reparations programme,
in accordance with international standards, for all victims of
serious violations committed during the final stages of the war, with
special attention to women, children and particularly vulnerable
groups.
Recommendations
4:
United Nations
Considering
the
response of the United Nations to the plight of civilians in the
Vanni during the final stages of the war in Sri Lanka and the
aftermath:
A.
The
Human Rights Council should be invited to reconsider its May 2009
Special Session Resolution (A/HRC/8-11/L. 1/Rev. 2) regarding Sri
Lanka, in light of this report.
B.
The
Secretary-General should conduct a comprehensive review of
actions by the United Nations system during the war in Sri Lanka and
the aftermath, regarding the implementation of its humanitarian and
protection mandates.
The
Panel’s
report and its advice to the Secretary-General, as
encapsulated in these recommendations, are inspired by the courage
and resilience of victims of the war and civil society in Sri Lanka.
If followed, the recommendations would comprise a genuine process of
accountability that would satisfy the joint commitment and would set
Sri Lanka on the course of justice, dignity and peace.
