Transitional Justice in the Asia-Pacific (12 page)
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Lessons Learnt and Reconciliation Commission
In May 2009, President Rajapaksa promised that the government would investigate allegations of war crimes. The government created a domestic commission of inquiry, the Lessons Learnt and Reconciliation
Commission (LLRC), in May 2010, partly in response to demands for accountability. Its mandate was to report on events between 21 February 2002 and 19 May 2009 and to identify those responsible for the breakdown of the 2002 ceasefire as well as a method for reparations. The LLRC was also tasked with identifying administrative and legislative measures needed to prevent recurrence of conflict and to promote national unity and reconciliation. According to the UN commission of experts, the LLRC did not meet international standards for an accountability process. Specifically, the UN commission found that the LLRC was compromised by conflicts of interest of various members, a failure to engage in what it termed ‘genuine truth-telling’ about abuses which took place in the final stages of the conflict and failure to engage in proper investigation of abuses by both sides of the conflict.
67
Human rights advocates have strongly criticized the LLRC because it was not mandated to address and not interested in addressing accountability for serious abuses such as war crimes or crimes against humanity. Its mandate was to focus on the root causes of conflict and methods for promoting reconciliation only. The commission had no mandate to investigate allegations of international humanitarian law, nor to impose accountability. Further, the commission came under severe criticism as being subject to government interference and therefore not indepen-dent.
68
Its chair,
C.R. de Silva, was the Attorney General under Rajapaksa, and was charged with implementing the Prevention
of Terrorism Act and accused of tolerating and covering up police abuses. Many who sought to testify before the commission claimed that the commissioners appeared unsympathetic and uninterested, and witnesses were subject to threats and intimidation.
69
The significant turnout of individuals wishing to testify amongst the affected populations even at the flawed LLRC indicates a demand for an accounting of abuses and for accountability. Despite the LLRC's many shortcomings, large numbers of civilians did present testimony across the country, and thousands in former conflict areas in the north and east presented detailed testimony about abuses. According to
Amnesty International, the commission was not prepared for the turnout, lacking adequate facilities and Tamil translation. Further, despite some reports of threats to witnesses, the commission's mandate did not include witness protection.
70
In its hearings, which were held around the country and concluded in January 2011, the LLRC did not investigate allegations of violations of international humanitarian law; hearings in Colombo largely included government officials and others who focused exclusively on the limited topics of the mandate – the causes of conflict and modes of reconciliation. When the commission was presented with testimony of violations such as disappearances in the north, it did not investigate them further. The recommendations of the commission have offered what one expert at Amnesty International terms ‘problem solving’ proposals, such as technical reforms to trace the disappeared, rather than to investigate abuses or punish perpetrators.
71
An expert at the
International Center for Transitional Justice characterized the commission as simply another in a long line of commissions of inquiry in Sri Lanka and elsewhere, ostensibly designed to reach the truth about past abuses, which in operation would do the reverse.
72
The report of the commission was released in mid-December 2011, amid criticism that it had sought to minimize government responsibility, although its report did identify extensive harm to civilians whom it categorized as caught in the crossfire. Independent international
observers raised concerns that the report failed to apply international humanitarian law standards and relied upon testimony of government officials and of Tamil doctors detained under terrorism legislation
.
73
for Accountability outside Sri Lanka
The
UN Panel on Sri Lanka
In June 2010, following international calls for accountability, the United Nations convened a panel of experts to investigate alleged violations of international human rights and humanitarian law in the final stages of the conflict.
74
It began work formally on 16 September, delivering its report on 12 April 2011 to the UN Secretary-General. The government of Sri Lanka sought at first to prevent the public dissemination of the report, claiming its release would damage reconciliation, and then proceeded to denigrate it, referring to the panel as a non-panel and denouncing the report as flawed and biased.
75
The final report of the panel of experts, which was denied access to the country, found ‘credible evidence’ of serious violations of international humanitarian and international human rights law.
76
The report found
that tens of thousands of people had died between January and May 2009 during the final government offensive. The report identifies violations by both the government and the LTTE and indicates that if the allegations were proven, both government officials and LTTE leaders could face criminal charges. It also criticizes the domestic commission of inquiry as flawed and calls for an international mechanism
.
Criminal Justice?
Following the ICG report, there have been repeated calls for war crimes trials for Sri Lanka, including the creation of an ad hoc international criminal tribunal. Sri Lanka is not a state party to
the International Criminal Court (ICC) Statute and thus would not be subject to the jurisdiction of that court in the absence of a referral by the United Nations Security Council. The UN High Commissioner for Human Rights,
Navanethem Pillay, called for war crimes trials in May 2011, and was condemned by the Sri Lankan government, while at the UN Human Rights Council, Pakistan, China, Russia and others sought to halt debate about war crimes.
77
Given the resistance of two permanent, veto-wielding members of the UN Security Council to even discussing government abuses at the Human Rights Council, it is extremely unlikely that either would permit a referral to the ICC.
78
This would not of course bar the possibility of a specialized international tribunal, such as those created for Rwanda and the former Yugoslavia, or even a hybrid body, such as that created for Sierra Leone, Cambodia, and other countries, although again political will could prove problematic.
79
The prospects for international criminal
justice appear limited given the resistance of the government and the protection of it by powerful states such as Russia and China and the relatively limited pressure applied by the United States, the European Union, or Japan.
80
Criminal accountability is not the only option to address abuses in Sri Lanka. Another option is civil accountability under the
Alien Tort Claims Act in the United States. Such accountability has been imposed since 1980 for violations of the law of nations committed by foreigners outside the United States around the world.
81
In September 2011, a civil case was filed in a federal district court in New York under the Alien Tort Claims Act and
Torture Victims Protection Act, claiming that General
Shavendra Silva, the acting permanent representative of Sri Lanka to the United Nations, was responsible for torture and other crimes as a commander of the fifty-eighth division of the army in the final stages of the conflict
.
82
Clearly, at this point in time, with a government apparently uninterested in accountability and without significant pressure from powerful states, the prospects for a thorough accounting, whether through trials or a full and genuine commission of inquiry, domestically or at a formal international level, are slim. The consolidation of power in the hands of the Rajapaksa family, including through the eighteenth amendment to the
constitution, make accountability unlikely in the near term.
83
However there is clearly a demand for some form of justice in Sri Lanka, emanating from within the country as well as from international NGOs and the United Nations. Certainly the turnout to testify at the LLRC illustrates the demand, if not for legal justice, at least to be heard, on the part of many in the population, including in the north.
Perhaps the most troubling implication is for post-conflict justice more generally, as the experience of Sri Lanka illustrates the possibility that a democratic country which has held several trials and numerous commissions of inquiry for past abuses may simultaneously experience a decline in the quality of rule of law driven by executive consolidation of power. For scholars and practitioners who have sought to link accountability and rule of law in conflict-affected countries, the implications seem unfortunately evident: failures of the rule of law and constitutional reforms centralizing power may emerge alongside or despite accountability measures including both trials and commissions of inquiry, and at the same time that such consolidation of power may contribute to future constraints upon accountability, even in a country with a reasonably longstanding history of democratic rule, such as Sri Lanka. The experience of Sri Lanka suggests that, rather than promote human rights and democracy in the future, past accountability measures may do little to constrain state violence, and that the state may engage in serious international crimes well after those past accountability measures and robustly resist demands for genuine accountability for those crimes. The prospects for true peace and reconciliation in the country are, to say the least, not heartening. In the absence of a thorough domestic investigation, the argument for an international investigative mechanism, as recommended by the UN panel of experts, the International Crisis Group, and Human Rights Watch, seems the most viable next step, although prospects for such a mechanism are, at the time of this writing, unclear
.
84
1
United Nations
,
Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka
(31 March 2011), p. 41. REDRESS Trust, ‘Comments and Recommendations to the Secretary-General's Panel of Experts on the Issue of Accountability with Regard to Alleged Violations of International Human Rights and Humanitarian Law during the Final Stages of the Conflict in Sri Lanka’ (15 December 2010), at
www.redress.org
; Anonymous, ‘Against the Grain: Pursuing a Transitional Justice Agenda in Postwar Sri Lanka,’
International Journal of Transitional Justice
Vol.
5
) (2011).
2
Tricia
Olsen
, Leigh
Payne
, and Andrew
Reiter
,
Transitional Justice in Balance: Comparing Processes, Weighing Efficacy
(Washington, DC: United States Institute of Peace Press, 2010); Kathryn
Sikkink
,
The Justice Cascade: How Human Rights Prosecutions Are Changing the World
(New York: Norton, 2011).
3
Sumantra
Bose
,
States, Nations, Sovereignty
(New Delhi: Sage Publications, 1994), pp. 46, 68–72; Bruce
Matthews
, ‘Devolution of Power in Sri Lanka,’
The Round Table
, No. 330 (1994), p. 223.
4
Steven
Kemper
, ‘J.R. Jayewardene, Righteousness, and
Realpolitik
,’ in Jonathan
Spencer
, ed.,
Sri Lanka: History and the Roots of Conflict
(London: Routledge, 1990), pp. 191, 200–201.
5
Bose, States, Nations, Sovereignty, pp. 74, 94.
6
Prevention of Terrorism Act,
Gazette
(1979), No. 48, and Prevention of Terrorism, Amendment to the Prevention of Terrorism Act,
Gazette
(19 March 1982), pt. 2, supp.
Bose
,
States, Nations, Sovereignty
, pp. 74, 79; S.J. Tambiah, in
Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy
(Chicago: University of Chicago Press, 1991), pp. 42–45, argues that the Act has progressively generated the very militancy and separatist sentiments it was meant to repress.
7
See Sarath
Kumara
, ‘Sri Lankan President Offers Empty Apology for 1983 Pogrom,’
World Socialist Web Site
(6 August 2004), at
http://www.wsws.org/articles/2004/aug2004/sril-a06.shtml
. Accessed 13 June 2013.
8
Bose,
States, Nations, Sovereignty
, p. 73; S.J.
Tambiah
,
Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy
(Chicago: University of Chicago Press, 1991), pp. 15, 22; S.J.
Tambiah
,
Leveling Crowds: Ethnonationalist Conflict and Collective Violence in South Asia
(Berkeley: University of California Press, 1996),
[
pp. 94–100; Robert A.
Denemark
, “
Democracy and the World System: The Political Economy of Sri Lanka's Vicious Electoral Cycle
,” in Chronis
Polychroniou
, ed.,
Perspectives and Issues in International Political Economy
(Westport: Praeger Publishers, 1992), p. 206
]
; Marshall R.
Singer
, ‘Sri Lanka's Ethnic Conflict: Have Bombs Shattered Hopes for Peace?’
Asian Survey
, Vol.
36
, No. 11 (1996), p. 1149.
9
Austin
,
Democracy and Violence in India and Sri Lanka
(London: Chatham House, 1995), p. 74.
10
Tambiah,
Sri Lanka
, pp. 16–26.
11
Sri Lanka Democracy Forum, ‘Submission to the Universal Periodic Review of Sri Lanka.’
12
International Crisis Group
, ‘Reconciliation in Sri Lanka: Harder than Ever,’
Asia Report
No. 209 (18 July 2011), pp. 17–18, at
http://www.wsws.org/articles/2004/aug2004/sril-a06.shtml
.
13
Charu Lata Hogg, ‘Sri Lanka: Prospects for Reform and Reconciliation,’ Chatham House Asia Programme Paper ASP PP 2011/06 (October 2011); International Crisis Group, ‘Reconciliation in Sri Lanka.’
14
International Crisis Group, ‘Reconciliation in Sri Lanka,’ p. 19.
15
Kishali
Pinto-Jayewardena
,
Still Seeking Justice in Sri Lanka: Rule of Law, the Criminal Justice System and Commissions of Inquiry since 1977
(Bangkok: International Commission of Jurists, 2010).
16
Pinto-Jayewardena,
Still Seeking justice in Sri Lanka
, pp. 95–99; Anonymous, ‘Against the Grain: Pursuing a Transitional Justice Agenda in Postwar Sri Lanka,’
International Journal of Transitional Justice
, Vol.
5
, No. 1 (2011), pp. 31–51.
17
John F.
Burns
, ‘Sri Lankans Hear Details of Decade of Slaughter,’
New York Times
(21 May 1995).
Special Commissions of Inquiry
,
Gazette of the Democratic Socialist Republic of Sri Lanka
(23 September 1994), pt. 2, supp. The underlying legal basis for the commissions can be found in the Commissions of Inquiry Act,
Gazette
, (1948), no. 17 and Special Presidential Commissions of Inquiry Act,
Gazette
, (1978), law no. 7, amended by Act,
Gazette
, (1978), no. 4.
18
Gaston
de Rosayro
and Matthew
Chance
, ‘Military Officers to Probe Cases of ‘Disappearances,’
South China Morning Post
(16 December 1996), p. 15.
19
‘Sri Lanka: Amnesty International Welcomes News that Reports of Commissions Will Be Made Public,’ (4 September 1997), available at
http://humanrights.tqn.com/b1AIasa372397.htm
(accessed 15 May 2012); ‘News in Brief: Sri Lanka's Disappeared,’
The Guardian
(4 September 1997), p. 12. John F.
Burns
, ‘Unable to Beat Rebels, Sri Lanka Eases Stance,’
The New York Times
(5 November 1997), p. A3.
20
‘Sri Lanka: Human Rights Developments,’
Human Rights Watch World Report 1999
, available at
http://www.hrw.org/hrw/worldreport99/asia/srilanka.html
(accessed 15 May 2012); Amnesty International, ‘Sri Lanka: Time for Truth and Justice,’ (April 1995), AI Index 37/04/95, pp. 13–14. This earlier commission spanned the period between January 1991 and January 1993, see Permanent Mission of Sri Lanka, ‘Situation Report,’ (Colombo, Sri Lanka/Geneva: Permanent Mission, 1993), p. 8, a statement of the human rights situation to the UN HRC.
21
In particular, human rights advocates were concerned about the exclusion of disappearances of Tamils from the east in 1984 to 1988 and disappearances after the government re-took Jaffna in mid-1996. ‘Sri Lanka: Human Rights Developments,’ available at
http://www.hrw.org/hrw/worldreport99/asia/srilanka.html
(accessed 15 May 2012); see also Inform, ‘Lobby Document: UN Commission on Human Rights, 1995,’ (Colombo, Sri Lanka: Inform, 1995), p. 3. The civil rights movement argued that the commissions should examine incidents since 1984; Inform argues that the commissions should examine events since 1979, the year that the Prevention of Terrorism Act entered into force; Civil Rights Movement, ‘The Investigation of ‘Disappearances’ in Sri Lanka,’ (Colombo, Sri Lanka: Civil Rights Movement, 1998); see also Imran
Vittachi
, ‘That Time of Terror,’
Sunday Times
(15 March 1998), pp. 1, 10. Author's interview with the chair of the southern commission and the island-wide commission, Manouri Muttetuwegama, 15 February 1999, Colombo.
22
The reports of the three commissions into disappearances are:
Final Report of the Commission of Inquiry into the Involuntary Removal of Persons in the Central, Northwestern and Uva Provinces, Sessional Paper No. VI
(Colombo, Sri Lanka: Department of Government Printing, 1997);
Final Report of the Commission of Inquiry into the Involuntary Removal or Disappearances of Persons in the Northern and Eastern Provinces, Sessional Paper No. VII
(Colombo, Sri Lanka: Department of Government Printing, 1997); and
Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern, and Sabaragamuwa Provinces, Sessional Paper No. V
(Colombo, Sri Lanka: Department of Government Printing, 1997). Additional reports addressed a number of high-profile political killings, including that of the President's husband. See
Report of the Presidential Commission of Inquiry into the Assassination of Mr. Vijaya Kumaratunga
(Colombo, Sri Lanka: Department of Government Printing, 1996) and
Report of the Special Presidential Commission of Inquiry Regarding the Assassination of the Late Lalith Athulathmudali PC and Connected Events
(Colombo, Sri Lanka: Department of Government Publications, 1997). One observer has said that the manner of setting up the commissions was ‘clumsy’ and that not enough human rights experts were consulted; in addition many complainants felt let down because before some of the commissions they were not treated with compassion. Author's interview, not for attribution, Colombo, Sri Lanka, 9 February 1999.
23
Final Report…Northern and Eastern Provinces
, p. 57. Thus, while the commission received 537 complaints it investigated only around 100, of which half were of disappearances of soldiers. To be sure, a significant number of Tamils have left
Jaffna
, in addition to being ‘disappeared’; the population fell from 850,000 to 500,000 between 1981 and 1997, see University Teachers for Human Rights (Jaffna),
Information Bulletin
(24 August 1997), p. 1.
24
Final Report…Northern and Eastern Provinces
, pp. 94–97;
Final Report…Western, Southern, and Sabaragamuwa Provinces
, pp. 12, 29. The latter commission submitted a list of those implicated under separate cover to the President. See Mario
Gomez
,
Emerging Trends in Public Law
(Colombo: Vijitha Yapa Bookshop, 1998), pp. 246–247 and 257–258.
25
The mandate is reprinted in
Final Report…Western, Southern, and Sabaragumawa Provinces
, pp. 179–181.
26
These are, respectively,
Final Report…Western, Southern and Sabaragawuma Provinces
;
Final Report…Northern and Eastern Provinces
; and
Final Report…Central, Northwestern, North Central and Uva Provinces
.
27
‘By Her Excellency Chandrika Bandaranaike Kumaratunga, President of the Democratic Socialist Republic of Sri Lanka,’ Ref. No. SP/6/N/214/97 (photocopy on file with current author).
28
Human Rights Watch, ‘Recurring Nightmare.’
29
Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka
, p. 7.
30
Sujith
Xavier
, ‘Sri Lankan Presidential Commission of Inquiry (2007): Did It Amount to a Fair Hearing?’
Mexican Yearbook of International Law
, Vol.
10
, (2010), (online version; not properly numbered). International Crisis Group, ‘Reconciliation in Sri Lanka,’ pp. 5–6.
31
Amnesty International, ‘Sri Lanka: Presidential Commission of Inquiry Fails Citizens,’ (17 June 2009), at
http://www.amnesty.org/en/for-media/press-releases/sri-lankapresidential-commission-inquiry-fails-citizens-20090617
(accessed 31 May 2011).
32
Xavier, ‘Sri Lankan Presidential Commission of Inquiry’ (2007).
33
Human Rights Watch, ‘Recurring Nightmare.’
34
Parliament of the Democratic Socialist Republic of Sri Lanka
, ‘Human Rights Commission of Sri Lanka Act, No. 21 of 1996,’
Gazette
, pt.
2
(23 August 1996), p. 4, art. 10. For a brief history of the bill, see Mario
Gomez
, ‘Sri Lanka's New Human Rights Commission,’
Rights Link
, Vol.
1
, No. 1 (1997), p. 5; Mario
Gomez
, ‘The Sri Lankan Human Rights Commission,’
Law and Society Trust Review
, Vol.
9
, No. 13 (1998), p. 31; Mario
Gomez
, ‘Sri Lanka's New Human Rights Commission,’
Human Rights Quarterly
, Vol.
20
, No. 2 (1998), pp. 281–302.
35
Author's interview with Manouri Muttetuwegama, chair of the island-wide commission and of the previous southern commission, 15 February 1999, Colombo, Sri Lanka.
36
Sri Lanka Democracy Forum, ‘Submission to the Universal Periodic Review of Sri Lanka.’
37
Amnesty International, ‘Sri Lanka: Amnesty International Welcomes Government Action to Stop Death Squad Activities,’ (1 September 1995), AI Index ASA 37/17/95, reports that the head of the STF was rumoured to have been suspended by the president; U.S. Department of State,
Sri Lanka Country Report on Human Rights Practices for 1997
, available at
http://www.state.gov/www/global/human_rights/1997_hrp_report/srilanka.htm
, p. 4 (accessed 15 May 2012).