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Letter on Sri Lanka to Permanent Representatives of Human Rights Council Member and Observer States – HRW

[HRW, Thursday, 2 February 2012 15:49 No Comment]

Call for action at the UN Human Rights Council on accountability for war time abuses in Sri Lanka

February 2, 2012

You Excellency,

We write to urge your delegation to work with other member and observer states of the United Nations Human Rights Council (HRC) to bring the issue of accountability for wartime abuses in Sri Lanka onto the agenda of the Council during its March 2012 session. Almost three years after the end of the military conflict between the Sri Lankan government and the separatist Liberation Tigers of Tamil Eelam (LTTE), the government has not kept its commitments to the people of Sri Lanka, the UN Secretary-General, and the Human Rights Council to undertake credible measures to provide justice and accountability for the widespread and serious wartime abuses.

Violations of international human rights and humanitarian law, including alleged war crimes and crimes against humanity, remain unaddressed by the Sri Lankan government, even after the long-delayed report by the government’s Lessons Learnt and Reconciliation Commission (LLRC). While containing some useful recommendations, the LLRCdisregarded the worst abuses by government forces and failed to recommend measures to hold accountablegovernment and military officials responsible for abuses.

Several UN officials, including the High Commissioner for Human Rights, Navi Pillay, and the then-Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, have called for an independent, international investigation into allegations of international human rights and humanitarian law during the conflict. Human Rights Watch and many other domestic and international nongovernmental organizations have long called for such an international investigation.

As the leading intergovernmental body devoted to the protection of human rights, it is crucial that the HRC support the steps necessary to ensure that the deaths and injuries to tens of thousands of civilians in the last months of Sri Lanka’sconflict are properly investigated,the perpetrators of abuses are brought to justice, and that victims obtain redress. We therefore urge your delegation to support a resolution at the HRC that:

  • Expresses grave concern that the government of Sri Lanka has failed to genuinely and seriously investigate crimes committed during the conflict by all parties and to provide accountability for serious abuses, in violation of its international legal obligations.

  • Calls on the HRC to adopt measures to implement the recommendations made to the Secretary-General by the Panel of Experts. This includes establishing an independent international mechanism to monitor and assess the extent to which the Sri Lankan government is carrying out an effective domestic accountability process, to conduct investigations independently into the alleged violations, and to collect and safeguard for appropriate future use information provided to it.

The issue of accountability for wartime abuses has long been a concern of the United Nations. After the defeat of the LTTE in May 2009, Sri Lankan President Mahinda Rajapaksa agreed to a statement with Secretary-General Ban Ki-moon in which he promised to address violations of international humanitarian and human rights law.[1]In May 2010, President Rajapaksa established the LLRC, which was designed to examine the circumstances that led to the breakdown of the 2002 Ceasefire Agreement and recommend action to foster reconciliation. The LLRC was not set up as a vehicle for justice and accountability. However, under increasing pressure for its failure to take act on these issues, the government extended the mandate of the LLRC to wartime abuses.  As the Panel of Experts report concluded, theLLRC’s mandate, composition, and methodology were wholly inadequate if the government were serious about justice and accountability.

After the establishment of the LLRC, the Sri Lankan authorities refused to undertake measures to provide justice and accountability for abuses, telling concerned governments and international actors to wait for the report of the LLRC. During this time, top government officials repeatedly denied that government forces committed any violations. Amidst overwhelming evidence, a few senior officials have recently conceded that government forces caused some civilian casualties, though they continue to grossly downplay the scale of civilian casualties and the security forces’ repeated use of heavy weaponry in indiscriminate and possibly deliberate attacks on civilians and hospitals. The government has not initiated any efforts to prosecute those responsible or suggested that this will happen.

A month after the establishment of the LLRC, Secretary-General Ban in June 2010 established a Panel of Experts in response to President Rajapaksa’s failure to implement his May 2009 promise for accountability. The Panel of Experts, made up of Marzuki Darusman from Indonesia, Yasmin Sooka from South Africa, and Stephen Ratner from the United States, was tasked to advise the Secretary-General on next steps for accountability in Sri Lanka.

On April 12, 2011, the Panel of Experts submittedits report to the Secretary-General. The Panelfound “credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed” by both sides to the conflict.[2]The LLRC report, issued in December 2011 after a several-months’ delay to review the Panel report, largely ignored the Panel’s detailed findings on government abuses. Although concluding that there had been civilian casualties attributable to “crossfire,” and calling for investigations into a handful of minor incidents, the LLRC largely exonerated the military’s wartime actions. stating that it was “satisfied that the military strategy that was adopted to secure theLTTE held areas was one that was carefully conceived, in which the protection of thecivilian population was given the highest priority.”

Sri Lanka has a long history of failed promises to prosecute serious human rights abuses or to act on the recommendations of numerous domestic commissions of inquiry into rights violations. For example, the 2006 Presidential Commission of Inquiry was established to investigate 16 incidents of killings, enforced disappearances, and other serious abuses by both sides to the conflict. It was a national commission plus an International Independent Group of Eminent Persons (IIGEP)—including former Indian Chief Justice P.N. Bhagwati, Bernard Kouchner, and former UN special rapporteur Nigel Rodley—which was to oversee the commission’s work to ensure independence and legitimacy. However, in April 2008 the IIGEP members withdrew because the IIGEP had "not been able to conclude … that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards."

Attached to this letter is a briefing note on the nature and scope of the violations of international human rights and humanitarian law committed in Sri Lanka during the last months of the conflict and on the conclusions of the reports of both the UN Secretary-General’s Panel of Experts and the Lessons Learnt and Reconciliation Commission.

Given the failure of the government to pursue justice and accountability, the HRC should take the lead on behalf of victims of Sri Lanka’s brutal conflict. The March 2012 session of the HRC is the appropriate time and forum for a discussion of Sri Lanka and for a resolution to create an independent international mechanism to investigateinto allegations of international human rights and humanitarian law. The failure of the Human Rights Council to respond to one of the worst episodes of human rights abuse since its creation would severely undermine the relevance and legitimacy of this body.

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