UN Panel Report on Accountability in Sri Lanka

The three member Panel of Experts appointed by the UN Secretary General Ban Ki Moon to advise him about human rights violations during the last phase of the civil war in Sri Lanka submitted its report on April 12, 2011 in New York.1 Before the report was made public, the Sri Lankan media published a leaked version of it and strongly denounced the efforts of the UN Panel. Millions of Sri Lankans have signed a petition against the UN Panel report and almost all the Sinhala parties have vehemently condemned the report.

The report indicates serious violations of international humanitarian law and international human rights law by both the Government of Sri Lanka (GOSL) and the LTTE. It recommends an independent international investigation for the war crimes committed by both parties.

Major Findings of the Panel 2

The panel is highly critical of both the GOSL and the LTTE. It has identified five core categories of potential serious violations committed by the GOSL, and six categories of violations by the LTTE during the final stages of the war.

The violations by GOSL include: (i) killing of civilians through widespread shelling; (ii) shelling of hospitals and humanitarian objects; (iii) denial of humanitarian assistance; (iv) violations suffered by victims and survivors of the conflict, including both internally displaced persons (IDPs) and suspected LTTE cadres; and (v) violations outside the conflict zone, including against the media and other critics of the Government.

The violations by the LTTE include: (i) 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.

The panel also criticized the United Nations for failure to take preventive action during the last phase of the war, which could have protected the civilians.

While the GOSL has been reiterating that it will address the problem and design a homegrown political solution instead of an imported solution, the UN Panel too does not recommend the imposition of a foreign model for accountability. It “recognizes the need for accountability process to be defined based on national assessments, involving broad citizen participation, needs and aspiration.” But it also underlines that any such model must meet international standards. It regards the Lesson Learnt and Reconciliation Commission (LLRC) as “deeply flawed”, which does not meet “International standards for an effective accountability mechanism”. In response to the GOSL’s statement that it is seeking to balance reconciliation with an emphasis on restorative justice, the Panel has held that “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-centered accountability focused on truth, justice and reparations.”

The panel has expressed serious doubts and reservations about Sri Lanka’s justice system and the working of the state human rights commission. 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, and the panel doubts whether the Human Rights Commission of Sri Lanka will ever demonstrate political will and resourcefulness to follow up cases of missing persons and monitor the welfare of detained persons.

The panel holds that the following factors have undermined the prospects for durable peace in the country: (i) triumphalism on the part of the Government, expressed in its discourse on the state having developed the means and will to defeat terrorism, thus disregarding the human cost of its military strategy and Tamil aspirations for political autonomy; (ii) on-going exclusionary policies, which are particularly deleterious as political, social and economic exclusion based on ethnicity, perceived or real, have been at the heart of the conflict; (iii) the continuation of war-time measures such as emergency regulations, prevention of terrorism act, continued militarization of the former conflict zone and the use of paramilitary proxies; (iv) restrictions on the media; (v) the role of the Tamil Diaspora, which provided vital moral and material support for the LTTE over decades, and some of whom refuse to acknowledge the LTTE’s role in the humanitarian disaster in the Vanni, thus creating a further obstacle for accountability and sustainable peace.

The Panel has recommended that the GOSL immediately commence genuine investigations into the alleged violations of the international humanitarian and human rights law committed by both the Government and the LTTE. It has suggested to the UN Secretary General the establishment of an independent international mechanism to monitor and assess the investigation conducted by the GOSL and simultaneously conduct independent investigations. The panel also recommends measures to advance accountability.

Methodology used

The methodology adopted by the panel to get the number of death and casualty was quite rigorous. The panel dismissed any reported incident or figure if it could not be verified by three sources. It rejected figures emanating from sources that could be perceived as biased, such as Tamil Net, and also from Government sources outside Vanni. An internal “Crisis Operations Group” was formed to collect reliable information regarding civilian casualties and other humanitarian concerns. The figures from the Regional Director of Health Services were taken as the baseline, and reports from National Staff of the United Nations and NGOs inside Vanni, the ICRC, and other sources were used to cross-check and verify the baseline.

Responses from Sri Lanka 3

The Sri Lankan Government and Sinhala parties like the JVP, JHU, and National Freedom Front (Breakaway group of JVP) have all reacted sharply to the report. The Government has dismissed the report as being fundamentally flawed, biased and baseless because it has used unconfirmed and unsubstantiated details and figures in its analyses. President Mahinda Rajapaksa even called for a mass protest against the report on May Day.

Sinhala parties like the JVP, JHU and the Sinhala media have condemned the report and held the GOSL responsible for such a loss of face at the international level. They have looked at the whole episode as an attempt by the UN Secretary General to interfere in the internal affairs of Sri Lanka. They have argued that it is a diplomatic failure and the government has not made adequate efforts to avert such a possibility. The opposition United National Party (UNP), on the other hand, has welcomed the report conditionally. It has argued that to reject the report is tantamount to saying that the LTTE was innocent. It has stated that it is ready to support the government, if the latter made a determined effort to restore democracy and repeal the draconian laws used by the state to stifle dissent. The Deputy Director of the UNP, Sajith Premadasa, has called for evolving a national consensus to avoid the possibility of Sri Lankan security forces being taken to an international war tribunal by the UN.

Mano Ganeshan, the leader of the Democratic People’s Front (representing the Tamil population of Colombo), has said that the Sri Lankan government and Tamil leadership should come together to deal with the situation. However, the Tamil National Alliance (TNA) has welcomed the report. According to the TNA, the report confirms the truth of what happened to the unarmed Tamil civilians during the course of the Eelam War 4.

Response of the International Community

Both Russia and China were mildly critical of the UN report. Russia was one of the first countries to express its views on the report. Its ambassador to Sri Lanka Vladimir P. Mikhaylov said that the United Nations had a responsibility to assist Sri Lanka to heal its wounds, rather than worsen the situation (through such reports). He was appreciative of GOSL efforts and was of the opinion that the Lankan leaders served their people well and took steps to safeguard their interests. China urged the international community not to complicate the issue and believed that the GOSL and the Lankan people will properly handle problems confronting them.

The Foreign Minister of Oman, Abdullah, was also critical of the report and said that it was inappropriate to embark on any course of action which would have the effect of impeding the reconciliation process and the forging of a national consciousness, soon after Sri Lanka had emerged from a painful conflict. He said that it was important to await the report of the local mechanism which Sri Lanka had set up and consider the report objectively. The reaction from France was that the investigation should be left to the Sri Lankan authorities, which is something they should do to “improve the reconciliation processes.”4 India has not yet reacted to the report.

Future Course of Action for GOSL

The GOSL has decided to write to Secretary General Ban Ki-moon updating him about the accomplishments made by it in the post war period. External Affairs Minister G.L. Peiris is likely to visit India on May 16 and China on May 24 as part of his government’s “vigorous” campaign to engage the international community and present its point of view. Prof. Peiris has said that he and other government representatives would meet representatives of non-aligned members in Indonesia on May 26 and 27 to discuss this matter.

In his remarks to Parliament on April 3, 2011, Prof. Peiris stated that the defeat of the LTTE has brought stability and tranquility not only to Sri Lanka but to the entire South Asia region. Unlike Cambodia where the end of war led to a period of deep turbulence, Sri Lanka is witnessing a period of peace and prosperity. He also outlined that the sea lanes in the region were much safer now, which can boost transnational commerce. Unlike in some other parts of the world, there was no outflow of refugees from Sri Lanka. The High Security Zones in the North have shrunk in size, and thousands of ex-LTTE combatants, mostly child-soldiers, have been reintegrated into society. Among these, 140 sat for the G.C.E. Advanced Level Examination and two of them have even qualified for the Medical College. He also stated emphatically that the government has revived the economy in the North.

It is true that after the defeat of the LTTE there has been no case of major violence in Sri Lanka. But to think that the ethnic problem will be automatically resolved with the end of the LTTE is not a correct argument. A genuine reconciliation process is the need of the hour to win the hearts of the Tamil people. But unfortunately, the political will to carry out this essential task is lacking because of the dearth of trust towards the Tamils and the TNA. The government has initiated a dialogue with the TNA half-heartedly; it is talking to them, but does not trust them. The way the government is dealing with the TNA on the issues of illegal detainees, militarization of the former war zone areas, cases of disappearance or the issue of devolution, only validates the report of the UN’s Panel of Experts.

• 1. The three members of the panel were Marzuki Darusman (Indonesia), Chair; Yasmin Sooka (South Africa); and Steven Ratner (United States).
• 2. For the full report, see “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka,” March 31, 2011, at http://www.un.org/News/dh/infocus/Sri_Lnka/POE_Report_Full.pdf.
• 3. Information gathered from Sri Lankan Media: The Daily Mirror, The Island, Sri Lankan Government website www.priu.gov.lk, www.mea.gov.lk.
• 4. The statement was made by the Permanent Representative of France Gérard Araud, who took over the UN Security Council presidency for May 2011. He was responding to a question about what France thinks should be done about the UN Panel of Experts report.