UN panel admits international failure in Vanni war, calls for investigations
[TamilNet, Saturday, 16 April 2011, 08:22 GMT]
"During the final stages of the war, the United Nations political
organs and bodies failed to take actions that might have protected
civilians," said the United Nations Panel on Sri Lanka in its final report to Secretary General Ban-ki Moon. The report has also admitted that the UN system knowingly failed to release the casualty figures of the civilians. Although the report didn't touch the hot topic of serious allegations against the role the UN officials and certain responsible personalities associated with world powers, it said: 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.
“[A]lthough 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,” the report said.
“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.”
The UN panel report, rightfully acknowledged the serious allegations on the Sri Lankan state.
Commenting on the report, a key Tamil National Alliance (TNA) leader told TamilNet: “However, wasting time with expecting the historically failed Sri Lankan state to come up with mature measures, would only allow the Sri Lankan state to continue with its genocidal programme to a level beyond reparation in practice.”
“The global community should not water down the international responsibility in the case of Eezham Tamils in the island,” was the opinion of the TNA politician who didn't wish to be named as he said he was already “locked” in a “hopeless process” and refused to specify what he meant by the “process”.
“Now as the report is out, the global Tamil community will have to keep a sharp and objective eye on the way how the UN system and the countries who have a moral obligation by their commitment to Human Rights and the Responsibility to Protect, to act, not only their role in the accountability process, but also to address the root causes of the conflict and protect Tamils as a nation against the still ongoing genocidal programme of the Sri Lankan state in the island of Sri Lanka,” the politician further said adding that the TNA cannot do much from the island under the prevailing circumstances.
“Even our parliamentary group leader finds himself in a deadlock situation where he has been instructed to adopt to the so-called Sri Lankan national anthem. That is the situation here,” the Tamil politician further said, urging global Tamil community to act as a whole in taking the responsibility to inspire global action against the Sri Lankan state before it becomes too late. He said that the Sri Lankan state was following the Israeli model of occupation of the traditional Tamil homeland.
Following is the text of the UN Panel report, leaked to media in Colombo, on Saturday:
Allegations found credible by the PanelThe 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 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 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.
AccountabilityAccountability 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 CommissionThe 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 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 mechanismsThe 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 accountabilityDuring 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 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 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 civiliansDuring 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.
RecommendationsIn 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: InvestigationsA. 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 accountabilityA. 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 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 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 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 measuresWhile 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 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 NationsConsidering 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.
Chronology: