Justice, Truth and Reconciliation for the Tamils in Sri Lanka

The latest development in the decades-old tragedy of the Tamils in Sri Lanka was the one-day hartal last Sunday in the whole of the entire northern province of Sri Lanka, an area mainly inhabited by Tamils, which was brought to a standstill in support of about 300 Tamil prisoners in Sri Lanka who had renewed their hunger strike for the immediate release of all prisoners of war and political prisoners involved in the Tamil war of independence.

All private and public activities, except for medical services, came to a standstill. Students did not attend schools. Roads remained deserted except for the army and police.

The 300 Tamil political prisoners had suspended their hunger strike launched on Oct. 13 demanding freedom for all prisoners at the request of Tamil National Alliance members of parliament, who had urged them to give the government more time to respond to their demand for freedom.

The "War of independence" refers to the armed campaign by the Liberation Tigers of Tamil Eelam for an independent Tamil homeland in the north and east of the island of Sri Lanka. The LTTE was defeated in 2009, but alleged LTTE members are still being held in prison, many of them detained without trial. Some have been detained for up to 20 years.

The Northern Provincial Council chief minister C.V. Wigneswaran met the Sri Lankan president Maithripala Sirisena on November 11 to request a general amnesty for prisoners of war and political prisoners, but Sirisena rejected his request.

All the commissions of inquiry in the past over gross human rights violations in Sri Lanka and efforts to bring about national reconciliation between the Singhalese and Tamils have all come to nought because of the lack of a political will to do what is right by the Sri Lanka authorities, as illustrated by the following history:

Investigative Commissions

1. Human Rights Commission of Sri Lanka

a. After a change of leadership in 2006, the Human Rights Commission did not pursue its work on enforced disappearances in any meaningful way

b. The decision to stop working on disappearance cases, and the manner in which the Chair and other members were appointed, led to the October 2007 decision of the International Coordination Committee of National Institutions for the Promotion and Protection of Human Rights to downgrade the Commission to its current “B-status”, citing that “it is not clear whether the actual practice of the Commission remains balanced, objective and non-political, particularly with regard to the discontinuation of follow-up to 2000 cases of disappearances in July 2006”

2. Commissions of inquiry to investigate enforced disappearances

Many were criticised for their lack of independence and transparency, and their recommendations, when made publicly available, were never followed up in a systematic manner.

a. Some of the commissions drew up lists of alleged perpetrators. However, for the most part, only in a small number of cases did the investigations lead to convictions of those responsible

3. Presidential Commissions (1991, 1992, 1993)

The final reports and recommendations of these commissions have never been made public

4. The Zonal Commissions (1994) and the All Island Commission (1998)

While the Commissions did not resolve all cases of disappearances or lead to the prosecution of many of those responsible, they did nevertheless collect extensive material about disappearance cases, structures and individuals allegedly involved

5. Presidential Commission on Abductions, Disappearances, and Killings (September 2006) and its follow-on Commission (May 2007)

The unpublished findings of the Commission, reviewed by OISL, confirm the lack of credibility and independence of the investigation. In stating that cases of disappearances were used as a tool of political propaganda against the Government, the Commission downplayed the phenomenon (OHCHR Report)

a. The Commission also attributed lack of proper investigation to police inexperience with domestic legal provisions relating to the maintenance of law and order such as Penal code provisions, the Emergency Regulations and the Constitution (OHCHR Report)

b. At the top of the list of recommendations in the report was to bring legal action against those “who made complaints to the Police of abductions or disappearances knowing very well where the person concerned was at the time. (OHCHR Report)

6. Presidential Commission of Inquiry appointed to investigate and inquire into alleged serious violations of Human Rights arising since 1 August 2005 (Udalgama Commissions)
7. Lessons Learned and Reconciliation Commission (Sri Lanka)

In spite of these important findings, there has been considerable concern expressed about the work of the Commission and, in OISL‟s assessment, has so far failed to conduct a comprehensive, independent and transparent inquiry

a. The expansion of the mandate of the COI in July 2014 to include investigations into broader violations related to the conflict, and particularly focused on LTTE abuses, raised strong concerns among human rights organizations and family members of disappeared persons that this would detract from the Commission‟s ability to deliver on its primary responsibility: to assist families of the disappeared

8. The Presidential Commission to Investigate Complaints Regarding Missing Persons (2013) (Paranagama)
9. International mechanisms: the role of the Working Group on Enforced or Involuntary Disappearances (WGEID)

However, the Government failed to implement crucial recommendations made by the Working Group, such as the establishment of an independent body with the task of investigating all cases of disappearances which had occurred since 1995; the setting up of a central register of detainees as provided for in article 10(3) of the Declaration and that the prohibition on enforced disappearances should be included as fundamental right in the Constitution of Sri Lanka

10. United Nations Human Rights Office report in September 2015 which accused both sides of atrocities, especially during the final stages of the war in 2009, where 40,000 Tamils were estimated to have been killed in the final army offensive.

The United Nations called for a special court to try war crimes committed during the Sri Lankan army's long conflict with Tamil Tiger rebels.

In response, Sri Lanka promised a local inquiry but will not allow the proposed court, which would have foreign judges.

During the whole period of the civil war from 1983, the whole justice process in Sri Lanka was highly flawed, compounded by a lack of political will to stop the carnage and human rights violations, and their failures could be seen by the following incidents:

• lack of independent oversight of appointments to the judiciary, as well as to the Human Rights Commission and other bodies;
Appointments to commissions and senior public posts from then on were made by the President (as they had been before 2002) without external oversight, and contributed to the control of the Executive over rule of law institutions and their politicization
• undue delay in cases languishing in the courts for many years without progress;

• Such cases rarely get beyond the initial phases of opening a case at the level of the Magistrate‟s court, and limited police investigations, such as a visit to the crime scene and sometimes recording evidence. At these early stages, Judicial Medical Officers also might intervene, including carrying out autopsies and assessing forensic evidence in relation to torture and other non-fatal incidents. Witnesses told OISL that magistrates are very reluctant to investigate crimes involving security forces beyond these steps, and rarely proceed any further
• Reprisals against judicial and other professionals who try to prosecute human rights-related cases involving State officials are also an impediment to progress in such cases. The case of the magistrate who tried to investigate the disappearance of Father Brown and other cases, and of magistrate threatened in the context of investigations into the killing of five ACF workers illustrate this pattern
• Challenges in the delivery of judicial accountability appear to be exacerbated when the suspects belong to the security forces. The LLRC stressed the need for a de-politicised judiciary and police investigations. In several of the cases documented by OISL, members of the security forces obstructed and/or interfered with investigations. Security forces have sought to pressurise relatives of victims into signing documents admitting that the victims were terrorists, or pressured the authorities to replace Judicial Medical Officers responsible for conducting autopsies (see the case of the Trincomalee Five outlined below)

• However, other international crimes, notably war crimes, crimes against humanity, and the crime of enforced disappearance, have yet to be defined under domestic law. A legal framework suited to fostering accountability for international crimes must also include an array of modes of liability, and in particular the command or superior responsibility
• In terms of investigations, effective prosecution strategies for large-scale crimes must focus on the planners and organizers of crimes, rather than those of lower rank or responsibility.
• Effective prosecution strategies for large-scale crimes focus on their systemic nature and their planners and organizers, formal and informal/shadow chain of command, rather than those of lower rank or responsibility. Such investigations require not only crime-base reconstruction, but also analysis of the practices of military or paramilitary organizations and of their organizational structures (formal and informal); the general socio-historical context of the events; the local context and dynamics of violence; of public and classified evidence. They seek to identify patterns that, by their frequency, location and nature, imply some degree of planning and centralized control and can be crucial in determining individual criminal responsibility at multiple levels, beyond those who executed the crimes.
• Even sophisticated legal systems like Sri Lanka‟s – that may be well suited to deal with ordinary crimes – may lack the capacity to effectively address international crimes. Most domestic investigators are not trained in using the different skills and forms of analysis required. Most domestic courts are not familiar with the international criminal jurisprudence that has evolved, and may have no experience of dealing with complex criminal trials involving crimes under international law
• This challenge is even greater in a fragile, post-armed conflict environment where the criminal justice system remains vulnerable to interference and influence by powerful political, security and military actors. Other countries have shown the constraints of prosecutions which take place in a highly politicised environment, the most common complaint being that they are driven by political considerations, revenge or victors justice

The future lies in concrete and meaningful steps in Sri Lanka supported by the international community which upholds justice, truth and reconciliation.

As stated in the Declaration made by Penang Society for Advancement of Tamils Conference in Penang last year, the United Nations and the international community must “recognize the traditional homeland, the existence of Tamil nation and the rights of Tamils to self-determination” and an “UN monitored referendum for a sovereign Tamil Eelam should be conducted among Eelam Tamils of North and East in the island of Sri Lanka and amongst the Diaspora Tamils".

The international community must continue to put pressure on Sri Lanka government and the United Nations to ensure that no efforts are spared until the Tamils in Sri Lanka are restored justice and human rights and that the truth and reconciliation process initiated under international auspices is allowed to be completed justly and meaningfully.

Towards this objective, international forums and conferences like the present one must continue to be held to apply international pressure for the true end of the decades-old civil war in Sri Lanka and the achievement of justice, truth and reconciliation of the Tamils in Sri Lanka.