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War crimes whitewashed: Why human rights groups reject Sri Lanka’s reconciliation commission

By Louise Arbour, Kenneth Roth, Salil Shetty

While we would welcome the opportunity to appear before a genuine, credible effort to pursue accountability and reconciliation in Sri Lanka, the Lessons Learnt and Reconciliation Commission (LLRC) falls far short of such an effort. It not only fails to meet basic international standards for independent and impartial inquiries, but it is proceeding against a backdrop of government failure to address impunity and continuing human rights abuses. Our three organisations believe that the persistence of these and other destructive trends indicates that currently Sri Lanka’s government and justice system cannot or will not uphold the rule of law and respect basic rights.

We have highlighted our concerns in a number of reports. Of particular relevance are Crisis Group’s May 2010 report “War Crimes in Sri Lanka” and its June 2009 report “Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights”; Human Rights Watch’s February 2010 report “Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka” and its February 2009 report “War on the Displaced: Sri Lankan Army and LTTE Abuses against Civilians in the Vanni”; and Amnesty International’s June 2009 report “Twenty Years of Make Believe: Sri Lanka’s Commissions of Inquiry” and its August 2009 “Unlock the Camps in Sri Lanka: Safety and Dignity for the Displaced Now”. Unfortunately, Sri Lanka has made no progress since the end of the war in addressing our concerns detailed in these reports.

In addition to these broader failings of the government, we believe that the LLRC is deeply flawed in structure and practice. Of particular concern are the following:

Inadequate mandate

Nothing in the LLRC’s mandate requires it to investigate the many credible allegations that both the government security forces and the Liberation Tigers of Tamil Eelam (LTTE) committed serious violations of international humanitarian and human rights law during the civil war, especially in the final months, including summary executions, torture, attacks on civilians and civilian objects, and other war crimes. The need to investigate them thoroughly and impartially is especially urgent given the government’s efforts to promote its methods of warfare abroad as being protective of the civilian population, when the facts demonstrate otherwise.

Nor has the LLRC shown any genuine interest in investigating such allegations. Instead, it has allowed government officials to repeat unchallenged what they have been saying without basis for months: that the government strictly followed a “zero civilian casualty policy”. Indeed, during the testimony of Defence Secretary Gotabaya Rajapaksa on 17 August 2010, the primary intervention of the Commission chairman, CR de Silva, was to prompt the secretary to provide the Commission with a February 14 2009 letter from the International Committee of the Red Cross (ICRC) thanking the Navy for assisting in a medical evacuation.

While highlighting that one letter, the chairman and his colleagues failed to ask the defence secretary about any of the ICRC’s numerous public statements between January and the end of May 2009 raising concerns about excessive civilian casualties, violations of international humanitarian law and insufficient humanitarian access.

The Commission also has not required officials to explain the government’s public misrepresentations during the war. Particularly disturbing are the government’s repeated claims that there were under 100,000 civilians left in the Vanni at the beginning of 2009 when officials later conceded there were some 300,000, and that Sri Lankan forces were not using heavy weapons in civilian areas when the military eventually admitted they were.

Lack of independence

A fundamental requirement for any commission of this type is that its members are independent. The membership of the LLRC is far from that. To start, both chairman de Silva and member HMGS Palihakkara were senior government representatives during the final year of the war. They publicly defended the conduct of the government and military against allegations of war crimes.

Indeed during two widely reported incidents " the shelling of the first “no-fire zone” declared by the government in late January and the shelling of Puthukkudiyiruppu (PTK) hospital in February " Palihakkara, then Sri Lanka’s representative to the UN, told CNN that government forces had confirmed that even though the LTTE was firing out from the “no-fire zone”, the government was not returning fire; and that the military had confirmed they knew the coordinates of PTK hospital and they had not fired on it.

Beyond his public defence of government conduct during the war, there is also evidence that as attorney general, CR de Silva actively undermined the independence of the 2006-2009 Presidential Commission of Inquiry that was tasked with investigating allegations of serious human rights violations by the security forces.

Most other members of the LLRC have some history of working for the Sri Lankan government. None is known for taking independent political positions, and many have publicly declared their allegiance to the president and government.

Absence of witness protection

Equally worrying is the absence of any provisions for the protection of witnesses who may wish to testify before the Commission. Sri Lanka has never had a functioning witness protection system, nor has the Commission established any ad hoc procedures for witness protection.

The lack of witness protection is particularly crippling in the current atmosphere in Sri Lanka in which government officials label as “traitors” persons making allegations that government forces might have committed violations of international law. Only a brave few have testified before the LLRC about war crimes in the north despite that threat.

Moreover, even though the war is over, the country is still operating under a state of emergency, with laws that criminalise political speech and where there is no meaningful investigation of attacks on government critics. This clearly undermines the Commission’s ability to conduct credible investigations of alleged violations of international or national law. Until effective protection of witnesses can be guaranteed, no organisation or individual can responsibly disclose confidential information to the Commission.

Past commission failures

Our decision to decline the LLRC’s invitation to testify also stems from Sri Lanka’s long history of failed and politicised commissions of inquiry. Amnesty International’s report, “Twenty Years of Make-Believe: Sri Lanka’s Commissions of Inquiry”, documents the failure of successive Sri Lankan governments to provide accountability for violations, including enforced disappearances, unlawful killings and torture.

Today Sri Lanka has no credible domestic mechanisms able to respond effectively to serious human rights violations. The Sri Lankan Human Rights Commission lacks independence and has itself acknowledged its lack of capacity to deal with investigations into enforced disappearances. At the international level, Sri Lanka has 5,749 outstanding cases being reviewed by the UN Working Group on Enforced and Involuntary Disappearances, several hundred of which have been reported since the beginning of 2006.

Should a genuine and credible process eventually be established " featuring truly independent commission members, effective powers of witness protection, and a mandate to explore the full range of alleged violations of national and international law; and backed up by government action to end impunity and ensure that police and courts launch effective and impartial prosecutions " we all would be pleased to appear.

Louise Arbour is president and CEO of International Crisis Group; Kenneth Roth is executive director of Human Rights Watch; Salil Shetty is secretary general of Amnesty International. [courtesy: nationmultimedia.com]

19 Comments

Can these three eminent Human Rights protectors answer the following question?

1 How may children both male and female under the age 18 have bee trained to kill fellow Srilankans since May 2009?

2 How many parents have been denied their basic human right of sending their children to school for a education ,by forcibly taking them away for training as cadres for a guerilla group?

3. How many poor parents have been denied their human right of keeping their valuable jewelery by forcing them to hand them over to the Insurgents?

4 How many poor Tamil women and Men have been killed in the North and the South since May 2009?

5. How many have gained their basic Human Right of living on their own land with their children, ?

6 How many Srilankans of Christian and other faiths have been denied the basic human right of visiting their places of worship?

If you acknowledge these human rights issues as strongly as you protect the human rights of major Human rights abusers around the World who conduct insurgencies against democratically elected governments in the poor parts of the world using the poor, and the vulnerable, then you can have some credibility.


Until then you are just trouble makers who occupy high positions and live the five star lives by creating human rights issues which are only one sided to appeal to your support bases.

Posted by: Anonymous | November 9, 2010 04:57 PM

They make many of the same points here that I made in response to Kalana Senratna's article. I have faith in Arbour's tenacity.

Posted by: Expatriate | November 9, 2010 06:27 PM

ICJ, HRW and AI are correct in their assessment of the LLRC. The LLRC is an attempt by the Rajapaksa regime to be seen to be doing something about the war crimes charges but the real agenda is to attempt to deflect the accusations and provide the regime’s friends such as the Indian government and Ban-Ky Moon, contrived findings that they can hold up to excuse the regime’s horrific war crimes.

The real agenda was exposed a couple of weeks ago when the regime said that they will implement the Commission’s recommendations in full. Implement the Commission’s recommendations in full when the Commission is still sitting? Still taking evidence? Obviously the recommendations have already been decided. I hope full publicity is given to this slip to expose the real agenda of the LLRC.

Posted by: Kaz | November 9, 2010 07:37 PM

What a tongue-in-cheek response by these whiners who wish to have their cake and eat it as well !

They set themselves up as arbiters and approvers of Commissions and refuse to appear before any that they claim "does not meet with their approval"

What a crock !

Posted by: Anonymous | November 9, 2010 10:34 PM

Thanks, Madam Arbour, for bring few flaws and lackings in the system to the deaf ears of International community.there are many more to be brought forward to the light, such as war criminals and how they were rewarded by SL government. How people in SriLanka are living in fear of death.

Big thanks for being bold and fighting for marginalized people.

Posted by: Ravi | November 9, 2010 10:34 PM


If HRW, ICG and Amnesty applied their standards through time, I dare say there Europe would be part of the reight and the Pacific, China & India would be rule by the Japanese empereor- no evil would ever be challenged because no army in the world could ever live up to the impossibly high standard of the brow beating autocracts in their ivory towers in New York.

These organisations have lost touch and are no longer relavent, at best they represent the lofty utopian liberal ideals of the first world- unfortunately the real world in which Sri Lankans live (and indeed the much of the rest of the world) is nothing like the utopian , liberal world they envisage.

Under ICG rules the nazis would be free to overun the world, and Japnanese would be free to run amok through Chin and the pacific simply becuase to challenge them would require force and the armies could not guarantee that no innocent people would die.

Well do ICG &HRW for hilighting the idiocy of extending your moronic ideals to real life situations !!!

Posted by: Gamini | November 9, 2010 11:43 PM

Thank you for not participating in the LLRC. The only purpose of this commission is to whitewash the Govt.

There is no freedom and justice in this country for the people.

The people have a right to know what happened I hope your 3 organizations will continue to put pressure for
an international war crimes inquiry.

Posted by: chandi | November 10, 2010 01:40 AM

Anonymous having read your comments to various topics on this web. You have exposed your small mindedness with parochial thinking. get out of it and become judicious on these subjects before putting down your rubbish with ignorance. for you ignorance is bliss. same goes to many including you Gamini. Please read what was said in 2008 report by the IIGEP's on the last CoI appointed by Rajapaska. The war turned the focus on the broader issues related to international humanitarian norms and international human rights law in today's internal and international law. the purpose of international systems is to encourage states to honour obligations towards its own citizens. It is ironic not to see what the sinhala polity is, elements of sinhala extremism that fuelled and exacerbated this confilict in the first place. still educated people like you haven't seen the day light.

Posted by: Dr.Easwaran | November 10, 2010 03:55 AM


Hi Anonymous......

I started counting to answer your 'how many'?

But have to stop because cannot find over 40,000 Tamils!!!!

:-)

Posted by: aratai | November 10, 2010 08:22 AM

Thank god, there few good souls in the world who are willing to speak against crimes against humanity.

I think some of our singala nationalist do not realise Sri Lanka is not USA . As you can see the same way you discriminate against Tamils, because you are majority.
World powers can discriminate against sri lanka for being tiny 3rd world country. Do not complain about it. Just have to take it like Tamils do against you totalitarian rule.

Rajapaksa might go running there and here like some hot shot world leader, but he is a wanted criminal and try ing his best to hide his war crimes.


shelling of the safe zone, killing of surrendered young men, rape of tamil women, and starving the Tamil children will not go unpunished.


By the way its not LTTE which preventing war crime investigations, its only sri lankan government which making a big issue. LTTE is already terrorist organisation is'tit ? why do they expect it be obey the rules ? its sri lanka which has signed up UN rules. Not
the LTTE.

Now that LLRC is in full swing all the truth is coming out. There must be infough witness the prosecute every president of sri lankan for last 30 years for war crimes.


Posted by: xsrilankan | November 10, 2010 10:00 AM

Here we go again the day the sinhala extremist stop talking about the LTTE then SRI lanka will have real recounciliation The LTTE is finished no more but the Government is alive and well so if they want the world to paticipate in the commsion they have to set it up to world standards .
When you export things you cant export to your standards it is to your buyers standards same is the commission you want the world to accept then it has to be their standard otherwise it will be like all the previous commissions

Namo Namo matha.

Nathen

Posted by: nathen | November 10, 2010 12:06 PM

Thank you to Louis and others for this unbiased excellent analysis. Please don't get bothered by these racist,majoritan supremacist's barkings. If they were not there and Srilanka had been a true democracy and rule of law without any discrimination neigther LTTE nor its war would have been even started. And who knows VP may have been Srilankan Army General.Premadasa or Lalith Athulamudali or even Gamani D may be the Priminister/President of Srilanka.And Mahinda would be squating in the back benches.

Posted by: Mahes | November 10, 2010 02:09 PM

Thank you to Louis and others for this unbiased excellent analysis. Please don't get bothered by these racist,majoritan supremacist's barkings. If they were not there and Srilanka had been a true democracy and rule of law without any discrimination neigther LTTE nor its war would have been even started. And who knows VP may have been Srilankan Army General.Premadasa or Lalith Athulamudali or even Gamani D may be the Priminister/President of Srilanka.And Mahinda would be squating in the back benches.I may be siting under the mango tree in Srilanka playing or checking their school work with my grand children. or siping palmera Toddy. and enjoying my hard earned retirement.

Posted by: Mahes | November 10, 2010 02:19 PM

The LTTE terror is replaced by much worst srilankan state terror. Tamils currently living under military occupation are undergoing torture and rape on a systematic basis. Those sinhalese who claim to have “liberated” Tamils are well aware of this reality and they enjoy sinhala colonization of "liberated" areas. This is the reason behind not permitting the international investigation since these Tamils living under the horror of sinhala state terror will expose them in an impartial and independent enquiry by third parties.

Posted by: Tamil Soul | November 10, 2010 03:45 PM


war crime should be investigated.
no justice to common man in srilanka.

Powerless people need someone to bring these atrocity to light.
This is very important process to move forward and reconciliation.

With God help, people find some justice to their loved ones.

Thank you for your service to humanity. god bless you.

Ramu

Posted by: ramu | November 10, 2010 05:17 PM

*** But have to stop because cannot find over 40,000 Tamils!!!! ***

Check the MERCHANT SHIPS who are smuggling people to Canada, Australia, and Uk... you'll find most of them there... only watch out for FALSE PASSPORTS...

Posted by: Devinda Fernando | November 11, 2010 01:21 AM

When Louis Arbor and the like have the gumption to ask for War Crimes tribunals against their own countries, perhaps we can swallow the swill they are producing

Until then, the IIGEP, ICJ etc is merely engaged in selective colonial justice

Posted by: Anonymous | November 11, 2010 01:35 PM


All for international inquiry and war crimes investigation, but gong chronologically we start with the US and the other invaders and occupiers of Iraq & Afghanistan- the recent wikileaks documents should provide ample fodder for a war crime prosecution !

But how naive of me, we all know that Human rights laws only apply to third world countries such as Sri Lanka - the coalition of the willing (US, Aust, UK EU et al) with their drone attacks on innocent Afghan villages, water boarding of prisoners uses of mercenary death squads and undisclosed prisons in Iraq are of course above any such standards !

How these idealistic fools can issue such garbage with a straight face is beyond contempt - they want western countries led by US who for the last seven years have been responsible for countless human right abuses against the innocent civilians in Iraq and Afghanistan to prosecute Sri Lanka for war crimes- Hipocrates would be turning in his grave.

Posted by: Gamini | November 12, 2010 09:24 AM

I started counting to answer your 'how many'?

But have to stop because cannot find over 40,000 Tamils!!!!

Aratai
------------------------------------------------
Aratai,
I have learnt through contacts in the Sri lankan army. Unofficially ofcourse,
that close to 100,000 civilians were murdered in the latter stages. Forget 40,000.
This tallies with an Indian friend i know. Who told me that the Indian army was also on the battlefield testing chemical and other weapons on the Sri Lankan Tamil guinea pigs. Unofficial reports from some Indian army guys also comes to 1 lakh of people.
Its impossible to keep secrets. People like to gossip. These military men would get in serious trouble if their government knew they were exposing secrets. So dont expect them to risk giving truthful official statement. Sarath Fonseka was thrown in jail for boasting that he will expose the war crimes he was instructed to committ.
It seems that the human rights organisations, international community, global tamils etc have all UNDERESTIMATED the death toll
so far.
Many still die from starvation and illness to this day.
Sri Lanka will never heal. It is on its way to hell. I have been all around the Island (except Mullaitivu) and i can see the reality of military oppression. Even in the 'Most free part of Lanka' which is colombo, the military presence is shocking at times. Its becoming part of the national symbol. Man with an AK 47. I think they should make Buddha statues with the Buddha holding an AK 47 also.

Posted by: john | November 13, 2010 05:42 PM

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