The UN Report on Accountability in Sri Lanka: Substance and Reactions

The Economic and Political Weekly, Vol 46 No. 24 June 11 - June 17, 2011

The Panel of Experts on Accountability in Sri Lanka was set up on 22 June 2010 by UN Secretary-General Ban Ki-moon. It had three members: Marzuki Darusman of Indonesia (Chair), Steven Ratner of the US, and Yasmin Sooka of South Africa. It did not engage in fact-finding or investigation, but analysed information from a variety of sources, assessed which of the allegations against both sides in the conflict were credible, and appraised them legally. The report was submitted on 31 March 2011 [1]. It was shared with the Government of Sri Lanka (GoSL) on 12 April, but released to the public only on 25 April in order to give the government a chance to read the report and formulate a response which could be released simultaneously. This invitation was apparently not accepted.

Allegations Against the Government of Sri Lanka and the LTTE

The report, or at least its executive summary, deserves to be read in full by all those concerned about accountability and reconciliation in Sri Lanka. The panel regarded as credible allegations that between September 2008 and May 2009, the Sri Lanka Army used widespread shelling on three consecutive No-Fire Zones (where it had encouraged civilians to congregate), the United Nations hub, food distribution lines, the vicinity of International Committee of the Red Cross ships picking up the wounded, and hospitals, thereby causing tens of thousands of civilian deaths; that it systematically deprived people in the conflict zone of food and medical supplies; and that it sought to silence critics in a variety of ways, including white van abductions and disappearances. After leaving the conflict zone, survivors were subjected to further suffering, including being detained in closed camps where terrible overcrowding and unsanitary conditions led to unnecessary loss of life, and interrogation and torture. Screening of internally displaced persons (IDPs) took place without any transparency or external scrutiny, and those suspected of being members of the Liberation Tigers of Tamil Eelam (LTTE) were taken away to other facilities without contact with the outside world, making them vulnerable to abuse.

For its part, the LTTE held civilians as hostages and used them as human shields, greatly intensified its policy of forcible conscription of adults and children towards the end of the war, and forced civilians to dig trenches and build other defences, thereby blurring the distinction between combatants and civilians and exposing civilians to additional harm. From February 2009 onwards, it shot civilians who attempted to escape the war zone, fired artillery in close proximity to large groups of IDPs, fired from or stored military equipment near IDPs and civilian institutions such as hospitals, and continued its policy of carrying out suicide attacks on civilians outside the conflict zone.

The panel found credible allegations comprising five core categories of violations committed by the GoSL: (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 attacks on the media and other critics of the government. It also listed credible allegations comprising six core categories of violations committed by the LTTE: (i) using civilians as a human buffer; (ii) killing civilians attempting to flee LTTE control; (iii) using military equipment in the proximity of civilians (thus provoking deadly shelling of these areas); (iv) forced recruitment of children; (v) forced labor; and (vi) killing of civilians through suicide attacks.

Putting together the allegations against the GoSL and the LTTE, one gets a picture of the hell endured by the civilians of the Vanni in the last stages of the war that conforms with the testimony of survivors and earlier reports by human rights defenders [2]. It would seem that responsibility for the deaths of those who could not flee – the very old and very young, the sick, injured and disabled, those caring for them, and those who died because the government blocked food and medical aid from reaching them – falls squarely on the shoulders of the GoSL. Similarly, the LTTE is clearly responsible for the deaths of the civilians it shot. But the vast majority of the victims consisted of civilians who would have fled to safety if they had not been held forcibly by the LTTE, or did not have relatives being held forcibly by the LTTE. They would not have died if the government had not shelled, so the government is responsible for their deaths. But they would not have died in the shelling if the LTTE had not forced them to remain where the shells were falling, so the LTTE is equally responsible for their deaths. In other words, the vast majority died as a result of the combination of government and LTTE violations.

The panel continues by stating that ‘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.’ It criticises the government’s notion of accountability, which focuses on the responsibility of past governments and the LTTE ‘but 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,’ and concludes that ‘the Government’s notion of accountability is not in accordance with international standards’.

The report also comments on the Lessons Learnt and Reconciliation Commission (LLRC) set up by the government in the aftermath of the war. On the positive side, it says, ‘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 sought to speak with the Commission.’ Nonetheless, it says, the LLRC fails to satisfy key international standards of independence and impartiality: some members have deep-seated conflicts of interest; it has not conducted genuine truth-seeking about what happened in the final stages of the conflict; it has not sought to investigate impartially allegations of violations by both parties; victims have not been treated with full respect for their dignity and suffering; and witnesses have not been protected despite serious threats to their safety. Hence it cannot pursue an accountability process effectively.

The justice system too cannot pursue accountability due to lack of independence of the Attorney-General due to concentration of power in the president, and the continued imposition of Emergency Regulations and the Prevention of Terrorism Act (PTA). These are some of the obstacles to accountability. Others listed by the panel are: (i) triumphalism on the part of the government; (ii) ongoing exclusionary policies; (iii) the continued militarisation of the former war zone and use of paramilitary proxies, thus perpetuating a climate of fear, intimidation and violence; and (iv) restrictions on the media. The role of the pro-LTTE diaspora, which provided vital moral and material support to the LTTE over decades and now refuses to acknowledge the LTTE’s role in the disaster in the Vanni, is also seen as an obstacle to accountability and sustainable peace.

Finally, the panel notes the failure of UN bodies to protect civilians in the final stages of the war. While their capacity to do so might have been limited, they could at least have publicised casualty figures, thus putting more pressure on the government to refrain from targeting civilians.

The panel’s Recommendation 1 is for investigations by the government and the UN into alleged violations. Recommendation 2 includes an end to violence by the state, its organs, and paramilitaries; the return of human remains to their families to allow them to perform rites for the dead; providing death certificates for the dead without charge; providing psychosocial support for the survivors; facilitating the return of all displaced persons to their former homes; interim relief for survivors to enable them to return to normal life; investigating and disclosing the fate and location of persons reported to have been forcibly disappeared; and repeal of Emergency Regulations and the PTA. Regarding LTTE suspects being held, it recommends that the government publish their names, notify them of the legal basis of their detention, give them access to family members and legal counsel, allow them to contest their detention in court, and release those against whom there is insufficient evidence. Finally, the GoSL should ‘end state violence and other practices that limit freedoms of movement, assembly and expression, or otherwise contribute to a climate of fear.’

Recommendation 3 is for longer-term accountability measures, including a process with strong civil society participation to examine the root causes of the conflict, a public acknowledgement by the government of its role in extensive civilian casualties, and reparations for all victims of serious violations committed during the final stages of the war, with special attention to vulnerable groups like women and children. Finally, Recommendation 4 is for the UN Human Rights Council to reconsider its Resolution on Sri Lanka of May 2009, and for the Secretary-General to review the actions of UN bodies during and after the war.

Reactions to the Report

The government’s reaction to the report was predictably negative, given that it had refused to cooperate with the panel. Having clung to the preposterous claim that it had carried out the action against the LTTE with ‘zero civilian casualties’, it could not very well concede that any of the allegations made in the report had any substance. (If it had made a more realistic claim, for example that it had done its best to avoid civilian casualties but that some had been unavoidable, it would have found it easier to deal with international concerns.) On the other hand, it finally seems to have dawned on the government that denying everything was simply not going to have any credibility except among those who were completely steeped in government propaganda and cut off from any alternative sources of information. Hence the utterly incoherent, dithering and absurd reaction: first promising a response, then refusing to respond, funding expensive advertisements against the report, forcibly collecting signatures against it in Jaffna, lamenting the double standards of the UN in allowing powerful nations to get away with murder while poor little Sri Lanka was being picked upon (as though that justified the ghastly crimes committed by the Sri Lankan state against its own people), and most astonishingly, given the report’s serious allegations against the LTTE, that it was biased towards the LTTE! [3]

Pro-LTTE diaspora organisations, on the other hand, welcomed the report and called on the international community to pursue an investigation of war crimes with a view to prosecution of the perpetrators. [4] However, they were silent about the role of the LTTE in the carnage at the end of the war, and their own complicity in providing vital moral and material support to the LTTE over decades. Even as the massacre of civilians was occurring, the anguished pleas of Tamil dissidents to the LTTE, calling on it to let the people escape to safety, were drowned out by the LTTE’s flag-waving diaspora supporters, who endorsed its every move. Refusal to acknowledge the role of the LTTE in the slaughter reveals a notion of ‘accountability’ that is the very opposite of what is being advocated by the report.

By contrast with both these positions, progressive groups of Sri Lankans both within the country and in the diaspora have welcomed the report in all its complexity. For example the Friday Forum, a multi-ethnic group of concerned citizens in Sri Lanka, issued a press release stating, among other things: ‘We think that it is extremely important that Sri Lanka as a member of the international community and the United Nations, engages in an effective and non-confrontational response to the Report with the international community… The Government should in addition address, as a matter of urgency, the issues of good governance specifically referred to in the Report. These matters have been frequently raised in the country after the end of the internal armed conflict in May 2009 as a crucial aspect of reconciliation, rehabilitation, restorative justice, and creating the context for a sustainable peace.’ It went on to list the need for various measures, including a credible enquiry into human rights violations, repeal of Emergency Regulations and the PTA, demilitarisation, support for IDPs, a political process to address the aspirations of all citizens for good governance, equality and justice, and freedom of expression. Thus the report was seen as reiterating demands that citizens were already making as being critical for reconciliation and peace.

A similar response comes from dissident dialogues, an online magazine run by a multi-ethnic group of Sri Lankans within Sri Lanka and abroad, and facilitated by the Sri Lanka Democracy Forum. Its editorial for the May 2011 issue observes: ‘The UN Panel Report merely underlines Sri Lanka’s obligations to its own citizens in accordance with international standards that Sri Lanka has signed up to. These are not obligations to the international community, and under international law Sri Lankan citizens have the right to hold the government to account. These obligations are about delivering accountability, justice, reparations and humanitarian support on the ground, through appropriate measures taken domestically. The government cannot expect to deflect this by dismissing it as some imperialist design. Arguments that countries like the US are not being held accountable with regard to their involvement in Iraq and Afghanistan are no consolation to Sri Lankan citizens who lost everything in the war, and such an attitude will not aid long-term reconciliation domestically.’

It also takes the LTTE and its supporters to task: ‘On the other hand, the LTTE and their backers share the same culpability, if not more. As predicted by many dissenting activists and human rights defenders, the path was already well drawn, and the writing was on the wall signalling that the LTTE would take the Tamil people along on a suicidal mission to their ultimate destruction. The LTTE’s fascist logic saw no future for the Tamils beyond its demise. If they would not stand and die with them, they would not be allowed to flee to safety and live. The Tamil-nationalist diaspora community worldwide is now remembering the slaughter of the innocents in Mullivaikkal. But it is totally silent on the UN Panel Report’s conclusions on the LTTE and its backers in the diaspora. It has not shown the ability for reflection and introspection on why things went so horribly wrong, and it does not have the courage to acknowledge its own involvement and record.’ [5]

Conclusion

The strength of the UN panel report is that it provides an authoritative account of what happened at the end of the war, but does not focus on war crimes alone. Indeed, by recommending that in the long term the government should acknowledge its role in extensive civilian casualties, it implies that pursuing an international war crimes investigation at present may not be feasible nor even desirable, given that the principle witnesses (the survivors) are completely at the mercy of perpetrators in the government and security forces. But even an acknowledgement of responsibility at some point in the future depends on regime change in Sri Lanka. The most legitimate way in which this can be achieved is by voting out the present regime at the next elections, which would require people from all communities to work together to achieve this end.

The report itself suggests issues on which joint action could be undertaken. For example, militarisation, alongside Emergency Regulations and the PTA that allow the security forces to commit crimes with impunity, threaten all communities, and have been used in the past to slaughter tens of thousands of Sinhalese; restoring the rule of law would benefit everyone. Similarly, restoring democratic rights like freedom of association, expression and peaceful assembly would benefit people of all communities. There are numerous ongoing struggles – for example, against so-called ‘leadership training’ whereby university entrants are compelled to do military service, against changes in the pension system, and against eviction of rural and urban residents in the pursuit of ‘development’ projects – where solidarity at a grassroots level can be built up through joint struggle. Such activities would be essential if accountability, reconciliation and peace are ever to be achieved.