There has only been one reported conviction of Sri Lankan soldiers for the rape and murder of a Tamil woman since the conflict in Sri Lanka began, and that was in 1996. This is because people are too afraid to testify in court against the Government. When they do they are “disappeared”.
While the Sri Lankan Military say there have only been five reported incidents of sexual violence in the predominately Tamil north of the island between 2005 and 2012, Human Rights Watch have documented 62 cases since the end of the war. The similarities in the cases, the numerous rapes, anal rapes, gang rapes, sexual assaults, the beatings with hot metal rods, the cigarette burns, forced oral intercourse, waterboarding, strongly suggest that abuse by the GOSL is widespread and systematic, and not the work of ‘rogue’ soldiers.
Despite the change in Government in Sri Lanka, human rights abuses are as common as they were under the Rajapakse government.
In this context of on-going violations it is extremely difficult for the victims and their families to envisage a domestic accountability process, even with some form of international involvement, in which they could safely testify against perpetrators who are members of the security forces. The last hybrid international domestic mechanism in Sri Lanka (IIGEP (2007-2008) was an abject failure with tens of thousands of non- combatants killed since its inception and countless others tortured and sexually violated since.
The Government of Sri Lanka does not support a hybrid investigation and rejects international assistance in forming a hybrid court in Sri Lanka. Therefore the only possible course is a referral of Sri Lanka to the ICC by the UN Security Council. Ultimately If there are no convictions there will be continued impunity.
1. There has only been one reported conviction of Sri Lankan soldiers for the rape and murder of a Tamil woman since the Civil War began, and that was in 1996[1], because people are too afraid to testify in court against the Government. This is because people who speak out are victimised, as Charu Lata Hogg[2] has said before.
2. The BBC’s documentary on Sri Lanka’s Unfinished War included testimonies from 12 victims, male and female, of rape or sexual assault by the Sri Lankan security forces, each of whom has been granted asylum in a European Union country: 6 of them are in the UK, and 4 of those had documentation to prove that they were held in detention camps and independent medical reports. One of these was a man known as ‘[name redacted]’. He was forced to join the Tamil Tigers and was with them for six months at the end of the Civil War, but was detained for more than four years for ‘rehabilitation’, where he was tortured and sexually assaulted. ‘[Name redacted]’, a former rebel who was granted asylum, was captured in 2009 and badly tortured by men wearing the Sri Lankan security forces uniform. While in detention, he witnessed what was referred to as the “horrific sexual abuse of a captured woman fighter in a Colombo police station”. ‘[Name redacted]’ was a Tamil human rights worker in Sri Lanka who was forced to join the Tamil Tigers. She escaped at the end of the Civil War, and after six months was identified by an informer and detained. She said, “so many different men” raped her “many times”, and with “no hope of justice” for herself she choose to speak out in the hope of stopping the same crime being perpetrated on others in the name of ‘rehabilitation’. ‘[Name redacted]’ is the first Tamil rape survivor to talk publically about her ordeal. The number of claims of sexual violence represent the tip of the iceberg given the cultural taboo associated with having been raped. Dr Alison Callaway, a doctor who is an expert witness for the UK courts, has investigated more than 200 alleged torture cases from Sri Lanka in the past five years. She examined [name redacted] and counted more than 30 cigarette burns on her body, including her genitals, and concluded the physical and psychological evidence corroborated her story of recent rape and torture. ‘[Name redacted]’ was granted UK asylum in 2013, earlier that year she was abducted and brought to detention. Though she could not see anyone else, she could hear women screaming in Tamil. She was raped every three days by different men, sometimes in uniform and sometimes in civilian clothes, and has scars and burns from being tortured.
3. Chanel 4 released footage, ahead of the 2013 CHOGM, of LTTE journalist Issapriya being dragged crying by members of the Sri Lankan army, apparently mistaken for Prabhakaran’s daughter. While there are no visuals of her being shot, the fact that she was captured on camera while being dragged away crying and found later dead in a trench, half-naked with hands tied, proved she was killed in custody. However, the Sri Lankan military has claimed that Issapriya was killed in combat. Chanel 4 reported that she was sexually assaulted before she was killed; they also state that Issapriya’s six-month-old baby was killed in a battle in May 2009. Images of Issapriya’s dead body, with her clothing pulled up or down respectively to display her private parts, were demonstrative of the SLG’s pattern of killings, have been accepted by the UN as raising strong inferences of rape after or prior to the execution.
4. Several women’s groups in Northern Sri Lanka have reported large numbers of unwanted pregnancies among Tamil women, from rape or coercion by military members. ‘Shabiya’ a Singhalese shelter worker who wished to remain anonymous because abortion is illegal in Sri Lanka except where the mother’s life is at risk, said that they regularly bring Tamil women for “underground abortions” because they have been raped and beaten, sometimes tortured, and they are mostly women who have complained to the police after their husbands have been abducted.
5. While the Sri Lankan Military say there have only been five reported incidents of sexual violence in the predominately Tamil north of the island between 2005 and 2012, the campaign group Human Rights Watch have documented 62 cases since the end of the war. The similarities in the cases, the numerous rapes, anal rapes, gang rapes, sexual assaults, the beatings with hot metal rods, the cigarette burns, forced oral intercourse, waterboarding, strongly suggest that abuse by the SLG is widespread and systematic, and not the work of ‘rogue’ military workers as the President would have us believe (Charu Lata Hogg).
6. In December 2014[3] the UN Women UK Event in Partnership with Sri Lanka Campaign for Peace and Justice took place, involving 16 days of activism which came to a close today with International Human Rights Day. The works of an artist currently in Sri Lanka were presented. Three speakers then addressed the issue of the challenges faced by Tamil women and girls in Sri Lanka. Frances Harrison, the journalist and author of “Still Counting the Dead: Survivors of Sri Lanka’s Hidden War”, spoke about sexual violence in Sri Lanka. Natalie Samarasinghe, Executive Director of the United Nations Association, then discussed the role of the UN in ending violence against Women and Girls, the successes and failures of the UN system, and how much more work is needed. Finally, Ms Jegarajah, a Human Rights barrister from Michael Mansfield’s Chambers, then discussed whether women in occupied war zones and post conflict zones should be considered a protected group with respect to their refugee status in the United Kingdom.
7. Ms Jegarajah also represented the appellant in PP (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1828 (11 December 2014), which referred to "Country Information and Guidance Sri Lanka: Tamil Separatism" (a report from the Country Information department of the Home Office). The relevant section of this is paragraph 1.3.8 and in particular the sentences which read: "The threat of a revived LTTE is also used to justify militarisation in the north. NGOs recorded incidences of sexual abuse to Tamil men and women. Tamil women, especially ex LTTE cadres, widows and the wives of disappeared or 'surrenderees' are vulnerable to sexual harassment, exploitation or assault by army personnel or other militias." At paragraph 34 of Lady Justice Arden’s judgment, she accepted “the subsequent material that we have been shown concerning the vulnerable position of Tamil women” and at 35 that “we know from the GJ decision[4] that the Government of Sri Lanka's method of identifying LTTE sympathisers is now much more sophisticated and technically based than it used to be”.
8. Despite the change in Government in Sri Lanka, human rights abuses are as common as they were under Rajapakse’s Government.
9 On 12 February 2015 in an Open Letter to the Sri Lanka President from the clergy regarding a visit to Batticaloa: “We were also extremely disturbed to learn from one of our hosts that we visited that they had already been questioned by military intelligence officials about our visit. We were told that this type of surveillance, intimidation and harassment is commonplace, even since the election of the new government”. An article in the Tamil Guardian, on 23 Feb 2015, about Vipoosika Uthayakumar, a Tamil teenage girl, whose dead body was found with her hands tied in a well in Jaffna. The Colombo Mirror printed an article on 8 March 2015 about the gang rape of a school girl in Wanni and allegations of a cover up which are addressed promptly by Women’s Affairs Minister on her Facebook page. The Minister later orders the body of the victim exhumed on the 1st April 2015.
10. On 11 March 2015 Sri Lankan military threatened distributors of Tamil weekly, Ithu Nam Theasam saying “You will be burnt to ashes together with these papers if you continued to distribute this paper,” (TamilNet). On 29 March 2015 the Daily Mirror reported that 8 (or some reports say 5) Tamils were arrested for producing a film deemed defamatory of the military. The police said the documentary contained “scenes portraying the Sri Lanka Army as an immoral, inhumane and atrocious group.” An article published on the JDS website on 31 March 2015 by Journalists for Democracy in Sri Lanka alleged that secret torture camps are still operating in the North of Sri Lanka in Keppapulavu and Mullaitivu, despite denials from the Prime Minister that any secret camps still exist. On 8 April 2015 a Tamil journalist was detained while investigating the assault of a schoolgirl by Sri Lankan police officer (Tamil Guardian). In the Colombo Mirror on 14 May 2015 a report of an 18-year old school girl, who went missing was found murdered in an abandoned house in the islet of Punkudutivu in the Northern Jaffna peninsula.
11. On 17 May 2015 Human Rights Watch said that Sri Lanka’s promotion of Maj. Gen. Jagath Dias whose 57th Division was allegedly implicated in serious human rights abuses casts doubt on government pledges to credibly investigate war crimes. On 21 May 2015 Tamil Civil Society Forum (TCSF), in a statement said that a post-war environment of heavy militarisation, lenience towards drugs and alcohol abuse, and damaged social networks are contributing factors to rape within society. On 31 May 2015 the Sri Lankan police were blamed for shocking post-war increase of child abuse, sexual abuse and exploitation, drug addiction and crime rates in the island’s embattled northern Jaffna peninsula (Colombo Mirror).
12. On 18 June 2015 The Sri Lankan Army said that no army camp has been closed down in the Northern Province since January this year (Ada Derana). On 25 June 2015 information about abductions and the existence of secret torture camps run by the government security forces with the full knowledge of ministers and top leaders of the previous government during and after the war, were revealed during judicial proceedings in Colombo (Colombo Mirror).
13. In July 2015 a new report by the International Truth & Justice Project exposed the systematic persecution of the Tamil community through torture, rape, illegal detention and killings committed by the state authorities. The report goes as far as to identify torturers and rapists. It also pinpoints 41 detention facilities, including secret camps, where victims say they were abused after the war. It lays bare the continuation of state-organised abductions, torture and sexual violence by the security forces long after the change of government in January 2015. The report warns the international community they will fail the victims of this conflict if they do not take action. It calls upon the UN Security Council to refer its report to the Prosecutor of the International Criminal Court for further action against those who bear the greatest responsibility.
14. A new film[5] (published on YouTube on the 13th September 2015) by the International Truth and Justice Project contains interviews with two Tamils survivors, who describe how they were abducted in Sri Lanka’s notorious “white vans” this year. They do not show their faces for fear of on-going reprisals against family members still in Sri Lanka. The video contains testimonies from two from a total of eleven cases of security force torture and sexual violence that occurred in 2015 and have been documented by ITJP. All eleven victims (3 women and 8 men) are now outside Sri Lanka.
15. The UN panel of experts report refers to other instances towards the end of the war that classify as war crimes and acts against humanity, such as the widespread bombing of so-called safe zones, how makeshift hospitals in Tamil areas were systematically attacked by military forces, the 40-70,000 Tamil civilians who were killed in the final months. The government consistently denies such events, but continues to oppose any independent international investigation.
16. Dr Frank Arnold, in an interview with Frances Harrison (the BBC correspondent with Sri Lanka from 2000-20004) said in regards to the claims of torture against Tamils by the military, “My fear is that this is an organised activity and I find it hard to believe if that is true that this could be done without conniving of state authorities.” Dr Arnold has worked with over 1000 survivors of torture from various countries, but since the end of the Civil War his case load has mostly been comprised of Tamil people.
17. Torture becomes genocide once it no longer affects just a handful of people, but rather people from the same ethnic background, the same crimes against the same sorts of people. Systematic abuse is a travesty for it suggests that this is the policy of the Sri Lanka Government. In November 2013, Kirsty Brimelow, QC, Chair, Bar Human Rights Committee England and Wales told the BBC that:
“the cases… gathered are striking because they have common features in relation to how the victims are picked up, what happens to them. Particularly there is evidence of cigarettes being used to burn the victims in order to get compliance basically to carry out torture. Now the use of cigarettes has long been held to be within the definition of torture so there’s absolutely no dispute upon that. Is it systematic, is it widespread - there is plenty of evidence to tick both those boxes. What does that mean? It all equates to a crime against humanity and therefore in cases like this normally you’d be looking at them being referred to the international criminal court for further investigation.”
18. Unfortunately, as Sri Lanka is not a signatory of the Rome Statue it is almost impossible to seek justice before the ICC. When talking about Rwanda in 2004, Kofi Annan said that “we must all acknowledge our responsibility for not having done more to prevent or stop the genocide” sooner. If Ghandi is to be believed then “there is a higher court than the courts of justice and that is the court of conscience”. It is everyone’s responsibility to defend our rights, to live, to be free from torture and inhumane or degrading conditions, and all that encompasses, and if we cannot then to have faith that someone else will defend them for us. For those who do not have the ability or the availability to defend these rights, the UN, the ICC, HRW and various other bodies have raised their voice so that the whole world may hear them. People in Sri Lanka have to suffer in silence until such a time that they can escape safely, and even then, many are terrified of being returned. People on ‘stop lists’ are sent for rehabilitation, people who complain to the police are sent for rehabilitation, people who question the war crimes or give evidence regarding those allegations are sent for rehabilitation. The government insists that their detention centres offer facilities for health care, education, sports and entertainment, but from all accounts but theirs this is not so.
19. A successful grant of asylum, or a successful appeal against a refusal, is indicative that these testimonies are believed to be true: that these crimes are happening and that these people are suffering because of their ethnicity and beliefs. Yet no one has been prosecuted. No one is being punished. Those who commit egregious acts of abuse, are not being tried, are not being convicted, and that is impunity. As Kofi said, “We have little hope of preventing genocide, or reassuring those who live in fear of its recurrence, if people who have committed this most heinous of crimes are left at large, and not held to account… Anyone who embarks on genocide commits a crime against humanity. Humanity must respond by taking action in its own defence”.
20. On 11 April 2015 Observations by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mr. Pablo de Greiff, on his recent visit to Sri Lanka said:
"In the past, Sri Lanka has established numerous commissions of inquiry for mass violations. Some of these commissions have produced useful reports, including wide-ranging recommendations. Others have produced reports that have never been made public. Failed, inadequate or uneven implementation of their recommendations has been a common feature."
21. On 09 May 2015 "The 2014 Impunity Index" report jointly released by the International Federation of Journalists and the South Asia Media Solidarity Network (SAMSN) says that journalists in Sri Lanka are among the most vulnerable in South Asia, because their assailants generally go free.
22. Impunity is what often happens in Sri Lanka.
23. So what is the Government of the United Kingdom doing to hold the Government of Sri Lanka accountable?
24. The 23rd Commonwealth Heads of Government Meeting (CHOGM) was held in Colombo, Sri Lanka, from 15 to 17 November 2013. The Prime Minister of Canada Stephen Harper threatened to boycott the conference unless Sri Lanka's human rights record improves. The Foreign Affairs Committee of the British House of Commons had called on that country's Prime Minister, David Cameron, to not attend the meeting to protest Sri Lanka's human rights record. However, Cameron attended, while Harper did not attend. It was the first CHOGM not attended by Queen Elizabeth II in 40 years; however, unfortunately, Prince Charles went in her stead.
25. Given that the Sri Lankan government has taken no serious steps towards promised human rights and political reforms—and has in some respects further entrenched its authoritarian tendencies— the Prime Minister is right to stay away. Canadian non-participation can be easily dismissed by the Sri Lankan government as reflecting pressure from Canada’s large Tamil diaspora (whom Sri Lanka portrays as irredeemably nationalist and pro-LTTE). In May 2013, UK Prime Minister David Cameron has stated that he will attend the Commonwealth Summit in November despite serious divisions within the organisation over the human rights record of Sri Lanka, the host government. It was claimed that Mr Cameron had decided to make a robust stand in person against Sri Lanka’s human rights record and attacks on its democratic standards by its authoritarian president.
26. In their 2006 report, however, Amnesty International stated that "escalating political killings, child recruitment, abductions and armed clashes created a climate of fear in the east, spreading to the north by the end of the year," while also outlining concerns with violence against women, the death penalty, and "numerous reports of torture in police custody." Although Sri Lanka has not officially practiced the death penalty since 1976, well-documented cases of state-sponsored 'disappearances' and murders by non-partisan humanitarian organizations, notably Human Rights Watch, contradict official statements. In 2012, the UK charity Freedom from Torture reported that it had received 233 referrals of torture survivors from Sir Lanka for clinical treatment or other services provided by the charity.
27. The Sri Lankan government failed to advance justice for the victims of the country’s 26-year-long civil war in 2011. While Sri Lanka’s war-ravaged North and East became more open, the government deepened repression of basic freedoms, notably limiting the right to free speech. The long-awaited Lessons Learnt and Reconciliation Commission report on the fighting failed to call for investigations into well-documented allegations of violations of international humanitarian law. The government largely ignored complaints of insecurity and land grabbing. The Tamil population in the North benefitted from greater access by humanitarian and local human rights groups and the media, but inadequate steps were taken to normalize their living conditions.
28. Canada, along with Australia, raised concerns at the last Summit meeting in Australia, about the Sri Lankan government’s failure to investigate accusations of war crimes and human rights violations that occurred in the final phase of the Sri Lankan army’s successful defeat of the Tamil insurgency in 2008-09. A panel appointed by UN Secretary-General Ban Ki-Moon found credible evidence for such abuses having been committed both by the army and the Liberation Tigers of Tamil Eelam (LTTE). Upwards of 40,000 civilians were killed. Further, despite promises made to the UN by Sri Lankan President Rajapakse when the LTTE was defeated, his government has taken no credible steps towards limited devolution and minority rights guarantees for the Tamils.
29. Despite the UN report, the Sri Lankan government resisted pressure for an independent investigation of war crimes allegations, and instead appointed its own “Lessons Learned and Reconciliation Commission” in 2010. Even though the composition of this group was tilted towards government supporters, its report made recommendations for investigations of specific incidents, as well as pointing to areas where reforms were needed to ensure respect for human rights. However, the government has largely ignored even this report.
30. It is not just that President Rajapakse is resisting inquiries into past abuses, or delaying reforms regarding devolution for Tamil majority areas. His hostility towards any checks on his increasingly centralized power is manifest in many ways. Censorship is increasing. Journalists who criticize the regime are vilified and threatened, with some having been assaulted and many forced into exile. In late 2013, the Chief Justice was removed arbitrarily from office in the wake of issuing decisions that went against the government; a former legal adviser to Rajapakse’s cabinet was installed in her place.
31. Mr Rajapaksa led Sri Lanka for a decade before he was dramatically ousted as president by Mr Sirisena in January. Mr Rajapaksa remains hugely popular among large sections of the majority Sinhalese community for presiding over the crushing defeat of Tamil guerrillas in 2009 after their 37-year war for a separate homeland. He was shunned by Western governments over the brutal end to the island's ethnic conflict, and remains deeply unpopular among its Tamil and Muslim minorities. The perception that nepotism and corruption flourished during his administration also damaged his political reputation. In August 2015, Prime Minister Ranil Wickremesinghe's centre-right party (the United National Party) came into power.
32. In November 2013 David Cameron criticised the “appalling” and “chilling” crimes committed by the Sri Lankan government, and he prepared to defy the President and travel to the north of the country to meet victims of the civil war; demanding an international inquiry into war crimes believed to have been committed at the end of the civil war in 2009, when as many as 40,000 people were killed. The Prime Minister refused to boycott CHOGM despite being urged to do so by critics of the Sri Lankan government, including Ed Miliband, the then Labour leader. Mr Cameron believed that by attending the summit and visiting the north of Sri Lanka, where most of the Tamil minority is based, he would be able to “shine a light” on any human rights abuses. In response, Rajapaksa said:
“If anyone wants to complain about a human rights violation in Sri Lanka — whether it be torture, whether it be rape — we have a system. If there are any violations, we will take actions against anybody.”
33. And yet, on 30 November 2014 in the Colombo Mirror, General Secretary of the Jathika Hela Urumaya, Patali Champika Ranawaka said, “Whether it is the President, the Defence Secretary (Gotabaya Rajapaksa), the then Service Commanders – Sarath Fonseka and Karannagoda or the likes of Shavindra Silva and Presanna Silva, we will not allow any of these people to be tried before the International Criminal Court (ICC).” In December 2014 Senaratne stressed that they would, "settle our matters in our country". On 19 December 2014 Sirisena released his manifesto for presidential elections in Sinhala and English but not Tamil which clearly stated, “no international power will be allowed to ill-treat or touch a single citizen of this country on account of the campaign to defeat terrorism” (Tamil Guardian).
34. The 23rd March 2015 Security Council Report, named “Conflict Related Sexual Violence” urged the UN Security Council to take action to prevent and ensure accountability for sexual violence in conflict. It examined ongoing concerns of sexual violence since 2014 in 19 countries, including Sri Lanka. "One of the major unaddressed issues is impunity for conflict-related sexual violence," the report said on Sri Lanka. It further noted: "There are indications that abduction, arbitrary detention, torture, rape and other forms of sexual violence have increased in the post-war period" and "allegations of sexual violence by the Sri Lankan security forces against members of the Tamil community in the closing months of the war and in the post-conflict period have been extensively documented, but rarely addressed." In his recommendations, Ban Ki Moon said: "I call upon the newly elected Government of Sri Lanka to investigate allegations of sexual violence, including against national armed and security forces, and to provide multi-sectoral services for survivors, including reparations and economic empowerment programmes for women at risk, including war widows and female heads of household."
35. Following the election of President Maithripala Sirisena in January 2015 and the appointment of a new government, Sri Lanka took a number of positive steps to address human rights and democracy concerns, including establishing new institutions and undertaking legal reforms. Freedom of expression improved, with exiled journalists invited to return to the country and a number of banned websites unblocked. The democratic space has opened up with travel bans on foreign nationals visiting the north lifted, and the NGO Secretariat moved from the Ministry of Defence to the Ministry of Policy Planning and Economic Affairs. Local contacts in the north and east noted a significant reduction in surveillance by security forces with increased space for journalists and civil society activism.
36. However, challenges remained, including those related to high levels of militarisation, such as military involvement in civilian life, and the continued occupation of land by the armed forces. There were also concerns over women’s security[6] as well as reports of journalists being intimidated.
37. On the 7 March 2015 Prime Minister, Ranil Wickramasinghe, said in a long interview to Thanthi TV (The Hindu): “I said no International inquiry. If the UN Human rights commission wants an inquiry, I'm willing to talk to them.”
38. In March 2015, Mr Cameron said the Sri Lankan government had taken "encouraging steps" but added that he would call on President Sirisena to keep up the pace. President Sirisena was the acting defence minister at the end of the conflict - and has echoed his predecessor's refusal to co-operate with the UN investigation. Media reports[7] indicated that a team of senior legal experts was examining the cases of 275 political prisoners. There has been no progress on investigations into widespread disappearances that occurred during the conflict, including those of missing ex-combatants (who allegedly surrendered to Sri Lankan security forces). Tamil activists and politicians continued to allege the existence of secret detention centres[8], which authorities have denied.
39. On Sri Lanka specifically, David Cameron has a personal responsibility to push for action and, with the UK re-taking a seat on the Council this year, he has a prime opportunity to do so. The Prime Minister was praised for raising human rights concerns when he visited Sri Lanka for the Commonwealth Heads of Government Meeting (CHOGM) in November 2013. It was, however, deeply disappointing that he failed to call then for an international inquiry into alleged war crimes by both sides during the Sri Lankan civil war. The Prime Minister overlooked President Rajapaksa’s repeated failures since the war ended in 2009 to deliver an independent, credible investigation, to address human rights abuses suffered by Sri Lankans to this day, or to implement the recommendations of his own Lessons Learnt and Reconciliation Commission.
40. Paikiasothy Saravanamuttu, the executive director of Sri Lanka’s Centre for Policy Alternatives, told Al Jazeera on 12th March 2015 that Sirisena’s push for an inquiry was a departure from the previous administration, which had rejected any engagement with the Office of the United Nations High Commissioner of Human Rights. “Some will insist that only international investigation will bring justice, but I think the point needs to be made, that in order to go to an international mechanism, all domestic remedies need to be exhausted,” Saravanamuttu said. Now, it seems that even David Cameron is backing Sri Lanka’s appeal for an internal, domestic investigation. But the Prime Minister must learn from his past mistakes; he chose to go to CHOGM in 2013 – against the advice of human rights experts and world leaders – and he cannot turn his back on the people of Sri Lanka once the cameras are off.
41. In fact, in the Tamil Guardian on 07 May 2015, the Sri Lankan Foreign Minister pledged that a domestic mechanism of accountability would be in place before the UN Human Rights Council's 30th session this September. But on the 30 June 2015 Prime Minister Ranil Wickremesinghe’s United National Party reiterated in the Colombo Mirror that it would not allow any international war crime probe against former president Mahinda Rajapaksa, former defence secretary Gotabhaya Rajapaksa or former army chief Field Marshal Sarath Fonseka.
42. On the 28th July 2015, Channel 4 News was supplied with a leaked document from the United Nations which critics claim could pre-empt and undermine this September’s Human Rights Council discussion on a UN's long-awaited investigation into crimes committed at the end of Sri Lanka's 26-year civil war. The document appears to be have been created by the UN in conjunction with the Sri Lankan government, and outlines plans to set up a purely domestic inquiry into human rights violations - with technical support from the UN. Most human rights groups regard plans for an internal judicial process as unacceptable and many warn it would inevitably be seen as a "victor's court". But that council's chief minister, former Sri Lankan Supreme Court Judge CV Wigneswaran, told Channel 4 News that the UN had not even consulted them on the plan. The diplomatic shift in Governments after the 2015 election led some to re-appraise the calls for international justice. In the US some commentators, notably former ambassador to Sri Lanka Teresita C Schaffer, called for the US government to "lower its voice" on human rights in the country. But many Tamils doubt the government's ability to create an internal inquiry that will not be swayed by the views of the victors. They point to the fact that although there has been much talk of "reconciliation" from the new government, there have been few concrete changes for the Tamils of the north and east. Many thousands of Tamils taken into captivity during and in the immediate aftermath of the war are still missing and the government denies knowledge of all but 273 of them.
43. Together Against Genocide (TAG) published a statement on 16th September 2015 on the Report of the OHCHR Investigation on Sri Lanka (OISL). They note High Commissioner Zeid’s statement that the government of Sri Lanka, though cordial did not change from former President Rajapaksa’s stance on allowing access to the country to OHCHR investigators. They also point out that the next step must be for UN investigators to be granted access to the many sites of mass graves and scenes of grave crimes for forensic analysis, as well as to be able to interview witnesses within Sri Lanka. To-date the majority of witnesses who have been interviewed remain outside of Sri Lanka. As noted by High Commissioner Zeid Sri Lanka currently does not have domestic laws recognizing Crimes Against Humanity. Rather than ‘reinventing the wheel’, it must accept international standards and ratify the Rome Statute. As they stated, survivors of mass atrocities in Sri Lanka have waited too long. “We urge the Human Rights Council to now take concrete steps and a concrete timeline to deliver successful prosecutions and thus an end to impunity in Sri Lanka”.
44. In this context of on-going violations it is extremely difficult for the victims and their families to envisage a domestic accountability process, even with some form of international involvement, in which they could safely testify against perpetrators who are members of the security forces. The last hybrid international domestic mechanism in Sri Lanka (IIGEP (2007-2008) was an abject failure with tens of thousands of non- combatants killed since its failure and countless others tortured and sexually violated since. Even those witnesses abroad [who make up the vast majority of those who testified to the UN investigation (OISL) and to ITJP] cannot reveal their identities to the Sri Lankan authorities for fear of what will happen to them if their asylum applications fail, or to their families back home. The new witness protection legislation in Sri Lanka will not address these issues.
45. The Government of Sri Lanka does not support a hybrid investigation and rejects international assistance in forming a hybrid court in Sri Lanka. Therefore the only possible course is a referral of Sri Lanka to the ICC. If there are no convictions there will be no witnesses, no evidence and continued impunity.
17 September 2015
[1] BBC’s Sri Lanka: the Unfinished War 8/11/13
[2] http://www.chathamhouse.org/about-us/directory/70651 Associate at Chatham House.
[3] http://www.unwomenuk.org/un-women-uk-event-in-partnership-with-sri-lanka-campaign-for-peace-and-justice/
[4] GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC)
[5] https://youtu.be/_HxyZCHA2P8
[6] http://www.bbc.co.uk/news/world-asia-32820033
[7] http://www.ceylontoday.lk/16-87450-news-detail-deadly-blasts-hit-pakistan-churches-in-lahore.html
[8] http://asiancorrespondent.com/133600/sri-lanka-political-detainees/