Transitional Justice in the Asia-Pacific (11 page)

On 30 April 1998, the President established a nationwide commission whose mandate was to investigate the reports of disappearances that the previous three commissions had been unable to address or resolve.
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Again, the commission faced heavy criticism for its limited mandate. Although it did not address complaints before January 1988, it investigated complaints that continued to be received until just prior to the dates when the previous commissions had completed their work. All told, the commissions of inquiry set up under President Kumaratunga identified about 20,000 cases of disappearances, although advocates suggest the number may be several
times that.
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In 2006, another Presidential
Commission of Inquiry (COI) was established by President
Rajapaksa to investigate a series of high-profile assassinations and killings. An attendant international
monitoring body, the
International Independent Group of Eminent Persons, was also created, but this group disbanded after finding that the commission did not meet international standards, given the conflicts of interest of several members, and the limited mandate, which did not provide for investigations into serious violations of international human rights law and international humanitarian law
.
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Critics charge that the creation of both bodies was simply a response to donor pressure rather than a sincere attempt to address abuses.
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The commission was mandated to investigate sixteen serious incidents of human rights abuses since August 2005 and examine the adequacy of investigations to date and recommend criminal prosecutions be initiated by the Attorney-General if necessary. The COI began operations in 2007 but was not renewed in 2009; at that time it had investigated seven of the incidents, but its final report was not made public.
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Critics, including the international experts group, raised concerns that the appointment of legal officers by the Attorney-General to assist the commission constituted a conflict of interest, given that the COI would be considering the adequacy of prior investigations by the Attorney-General's office.
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In 2007, the President of the COI reported that some 2,000 disappearances had been reported to his office, but he also claimed that most had subsequently been ‘found’, a claim refuted by credible civil society organizations
.
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The
national Human Rights Commission, which was created in 1996 to inquire into complaints regarding procedures of government bodies, faced persistent criticism regarding its strength and independence.
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The commission was criticized by human rights activists from the outset as weak, particularly because it could address only the ‘fundamental rights’ enshrined in the Sri Lankan constitution, not the far broader rights enshrined in the International Convention on Civil and Political Rights, and only had the power to make recommendations, not to enforce compliance.
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Its work has continued to be limited by the lack of cooperation by both the government and the LTTE, and in recent years, as discussed below, its independence has been undermined by executive interference
.
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A number of prosecutions for human rights abuses by the security forces took place in 1995, with the arrests of eighteen members of the
security forces and seven civilian informants; ten of those arrested were members of the Special Task Force (STF), a security body in the police that performed military functions and that had acted with particular impunity. A total of twenty-two STF members were arrested in 1995 but were released on bail and soon after resumed police duties; the case has been delayed several times by the failure of the prosecution to appear at court proceedings.
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Further prosecutions for abuses in the north against Tamils took place in 1998 and 1999. In one key case, six soldiers and a reserve police officer were convicted and sentenced to be executed for killings committed in September 1996.
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In other cases of abuses involving the security forces, however, many of those charged remained free and in some cases remained on active duty. Five senior police officers were forced to go on leave in connection with charges of torture and extrajudicial execution at a government detention center at the Batalanda Housing Estate.
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In February 1999, in a case involving the disappearance of thirty-two schoolboys in Embilipitiya, seven of the nine persons accused, all but one security personnel, were convicted and sentenced to about ten years in prison.
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Although these prosecutions marked a break with earlier patterns of impunity, they were quite limited compared to the scope of abuses.
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NGOs report continuing and extensive police involvement in abductions, for which impunity largely reigns. From 2001 onwards, most cases involving abuse by the security forces continued from year
to year without proceedings. However, in 2003 there were five persons sentenced to death for the extrajudicial killings of twenty-seven Tamil men in the Bindunuwema camp; twenty-three others were acquitted and the sentences of those convicted were commuted; in the same year a small number of torture victims were able to claim civil compensation. In 2004 there were two convictions for torture.
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In 2005, convictions were secured for a number of individuals accused of murdering a judge and his bodyguards, and four defendants were acquitted in the aforementioned killings in the Bindunuwema camp. Several cases against police officers did not proceed, and the officers remained on duty. Outstanding prosecutions remained pending in 2006.
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Although in 2007 the police inspector general acknowledged that thirty-one police officers had been arrested for human rights violations, details of dates, abuses, and subsequent proceedings were not made available
.
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The current government has claimed to want reconciliation, while blocking all attempts at investigation and failing to acknowledge its own abuses. However, this does not mean that at some point more genuine reconciliation efforts through apologies and other measures would be impossible. In 2002 and 2004, former president
Kumaratunga offered apologies for the anti-Tamil riots of 1983, which helped to spark the war, and called for reconciliation, referring to the riots as ‘one of the most shameful crimes
ever perpetrated on this nation’.
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The 2004 apology was accompanied by the offer of compensation, which was rejected by the LTTE and vanished in the return to conflict
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Despite the range of accountability measures which occurred in the 1990s, it would be incorrect to say that Sri Lanka has experienced transitional or post-conflict justice – there was no regime change other than democratic electoral change of leadership, nor had the conflict ended when these measures were undertaken. It is notable, however, that these measures occurred alongside progressive degradation of human rights and rule of law. Even as the regime reinitiated negotiations with the LTTE and opened investigations and a number of trials, it engaged in a two-track strategy which also escalated the conflict, with a sharp rise in disappearances in 1996 and 1997 in Jaffna as a result of increased military operations.
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President Kumaratunga consolidated greater power through the imposition of emergency regulations and the
Prevention of Terrorism Act, which involved roadblocks and routine harassment and imprisonment of citizens, as well as extrajudicial killing, torture, and disappearance of civilians, particularly Tamils.
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In 2003, Kumaratunga sparked a cabinet crisis by divesting the Information, Interior, and Defence ministers of their powers. Diplomatic efforts by both India and the United States to resolve the crisis failed, and the President dissolved
Parliament. She called new elections in April 2004 which brought her party back to power.

Disappearances in particular rose sharply after 2005, with
Human Rights Watch reporting 1,500 civilian disappearances from 2005 to 2007 alone.
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The resumption of open hostilities in 2006 was accompanied by widespread attacks on civilians by both the government and the LTTE, and with the government's support of the Karuna faction, which splintered from the LTTE, attacks on civilians were particularly brutal.
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Despite allegations of widespread torture, prosecutions for abuses by the security forces appear to have ended, there is no independent system to monitor or address violations, and thus security forces enjoy impunity.
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The Human Rights Commission and the National Police Commission, two bodies which are ostensibly autonomous and which would provide oversight, have had their independence undermined by unconstitutional moves by President Kumaratunga,
and then President
Rajapakse, to directly appoint commissioners.
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Despite receiving extensive communications, the Human Rights Commission ceased issuing public reports in 2006.
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In 2006, two senior members of the Judicial Service Commission, responsible for judges of the high court, resigned ‘as a matter of conscience’ while independent regional NGO the
Asian Human Rights Commission denounced executive interference in the judiciary and independent commissions.
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Following an attempted assassination of the
minister of defence in 2006, emergency regulations were strengthened, allowing arrest without warrant and detention of civilians without charge for up to twelve months.
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The monitoring committee set up in 2007 on Abductions and Disappearances has not reported on its findings, and its head has resisted discussions of disappearances in the country, claiming that Sri Lanka was unfairly being singled out. President Rajapakse has referred to disappearance figures as inaccurate and ‘just numbers’, claiming that these are simply people who have ‘gone [on] their honeymoon without the knowledge of their household.’
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The country has also failed to implement recommendations of the UN Human Rights Committee or of the Committee Against Torture, drawing further criticism.
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Widespread impunity for police torture was cited by some as an indicator of the decline of the rule of law.
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In October 2010, the eighteenth Amendment to the Constitution was passed, eliminating restrictions on term limits of the President and replacing a constitutional council with a parliamentary council over which the president would exercise control. The constitutional council's powers, over independent commissions on bribery, police, elections, and the judiciary, were transferred to the executive presidency. This further weakened the independence of the Human Rights Commission, to which Rajapakse appointed a former inspector general of the police and a former government analyst in 2011
.
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Ongoing abuses by the government, including civilian killings, enforced disappearances, and abuses of antiterrorism and emergency legislation, intensified in the final stages of the conflict, from January to May 2009, as did abuses by the LTTE. The government was responsible for shelling hospitals filled with civilian victims, increased disappearances, and extrajudicial executions of civilians and of combatants seeking to surrender, and for blocking humanitarian assistance to civilians in the war zone, as well as trapping civilians in detention camps in very poor conditions, as extensively documented by several respected international NGOs, the U.S. and UK governments, and eventually a UN panel.
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The UN expert report suggested that at as many as 40,000 civilians had been killed in the final stages of the conflict.
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The
International Crisis Group, an international NGO which ordinarily focuses solely upon conflict and its resolution, issued its first-ever report detailing alleged war crimes in the country and suggesting that the government's brutal approach to concluding the conflict was viewed as the ‘Sri Lankan solution’ by other governments engaged in protracted armed conflicts.
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This ‘solution’ involves the invocation of a terrorist threat as a justification for a brutal military crackdown and apparent indifference to the consequences for the civilian population, notwithstanding international criticism.

These abuses earned criticism from
UN Special Rapporteur on Extrajudicial Killings
Philip Alston, particularly in relation to a leaked video showing Sri Lankan soldiers executing unarmed civilians. He called for the opening of an investigation into war crimes, prompting accusations from the government that he was biased.
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Sri Lanka was penalized for abuses with the loss of its seat on the UN Human Rights Council in 2008.
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However, this condemnation softened only one year later. Notwithstanding evidence of widespread abuses in the final stages of the conflict, the UN Human Rights Council, rather than condemning these or even expressing concern, passed a resolution on 27 May 2009 commending the government and ignoring widespread international calls for investigation into abuses.
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President Rajapakse has alternately rejected allegations that there have been widespread disappearances or blamed the LTTE.
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