UNHRC Cannot Rely On Sri Lanka To Prosecute Its Armed Forces – Part III

By Usha S Sri-Skanda Rajah –

Usha S Sri-Skanda-Rajah

As the search for justice for victims of the Tamil genocide continues.

– While the application of ‘universal jurisdiction’ by individual states to prosecute war criminals must be pursued rigorously, the way forward for member states of the UN Human Rights Council is to lobby the UN Security Council for an ICC referral or for the establishment of an international special criminal tribunal for Sri Lanka.

This is part 3 of a series of articles showing the UN Human Rights Council (UNHRC) cannot rely anymore on the Sri Lankan government to prosecute members of its armed forces and senior political leaders – those responsible for, “some of the worst crimes in the 21st century.” The way forward for member states of the UN Human Rights Council is to lobby the UN Security Council for an ICC referral.

 While part 1 argues the case that prolonged reliance on Sri Lanka to prosecute its war criminals is unsustainable, Part 2 makes it more crystal clear that those prosecutions would not be forthcoming, by examining among other, the role played by Sri Lanka’s current president, the plethora of Sri Lanka’s lies, the phenomena of double talk, its sworn loyalty to its armed forces as well as its flawed ‘war on terror’ narrative in addition to the never ending triumphalism mentality, the volatile political situation in Sri Lanka, the probability that President Sirisena running for a second term in 2020, is likely to team up with Gotabaya Rajapaksa as his prime minister – the former defense secretary, alleged architect of the genocidal war and war time atrocities, presumably with the backing of China. (Since writing Part 1, Sirisena has voted against the ‘No Confidence Motion’ against Prime Minister Ranil Wickremesinghe, he was initially expected to vote for it – the fact he chickened out was looked upon as a betrayal and a hammer blow to the Mahinda Rajapksa crowd). Albeit there’s no denying the current chaotic political scene in Sri Lanka only exacerbates the issue, supporting the contention that Sri Lanka cannot be relied upon to prosecute its armed forces. More catastrophic political developments in the cards as the presidential elections draws near in 2020 would only further impede the search for justice for the victims of the Tamil genocide…

Part 3 goes to the core commitments that Sri Lanka is supposed to deliver that needs fulfilling, shining a light on serious ongoing violations and exposing its inherent and open bias towards the security forces and the protection it offers them, which together reinforce the argument at the very heart of these series of articles – that the UNHRC cannot rely anymore on the Sri Lankan government to prosecute members of its armed forces and senior political leaders. 

Scrutinizing Sri Lanka’s implementation of Resolutions 30/1 and 34/L1 and its rather spurious claims of compliance through the prism of some damning reports, among other, the report released by the Sri Lanka Monitoring and Accountability Panel (MAP), a must read, parts of which is discussed in part 1, it is clear, it didn’t need rocket science for member states to pick up on Sri Lanka’s ‘dithering’, ‘procrastination’ and ‘bad faith’ – brought home by some disturbing findings from the International Truth and Justice Project (ITJP), Amnesty International (AI), Human Rights Watch (HRW) the Sri Lanka Campaign (SLC), Freedom from Torture. Aljazeera and UN mandate holders, among other.

Fact Checking Reveal Extent of Non-Compliance, Deceptions and Cunning:

Yet again Sri Lanka has failed to deliver on its transitional justice commitments; failed to take concrete action to prosecute perpetrators of ongoing violations including torture and sexual violence. And only by fact checking everyone of those commitments Sri Lanka signed up to, with the real situation on the ground, the extent of Sri Lanka’s non-compliance, deception, lies, its  dubious and cunning approach to accountability; its calculated indifference, indeed its attempts to escape from establishing a hybrid court – is revealed. The Mid-Term Report on Sri Lanka prepared by the Transnational Government of Tamil Eelam (TGTE) together with its rebuttal to the statement made by Sri Lanka’s foreign minister to the UNHRC, says it all – with respect to the implementation of it commitments, Sri Lanka gets a failing grade. TGTE’s findings are an expose on Sri Lanka’s attempts to con its way out of the situation with all talk and no action.    

 In Part 1, we drew attention to the 3rd Spot report, released by MAP, a panel of experts in the field “established to provide independent monitoring, advice, and recommendations on the progress of transitional justice in Sri Lanka.” The 34 page report, captioned: ‘How the International Community’s Passivity Has Enabled Further Mass Atrocities in Sri Lanka: the Case of Ongoing Illegal Detention, Torture, and Sexual Violence’, serves as a continuing indictment on Sri Lanka. Expressing a lack of confidence in Sri Lanka’s ability to address impunity, MAP urges the UNHRC, “to lobby the UN Security Council to refer the Sri Lanka situation to the International Criminal Court, as a statement of support to the victims and human-rights defenders seeking accountability in Sri Lanka.”

MAP’s Catalogue of Sri Lanka’s Serious Ongoing Violations:

MAP lists, “serious crimes, the Sri Lankan security forces continue to commit – including illegal detention, torture and sexual violence – with impunity,” catalogued by “credible observers”, crimes, which it attributes to, “seemingly, the failure of the international community to hold Sri Lanka to account for past crimes,” that has, it says, “encouraged the continuation of such violations.”

Map laid out its concerns citing many reports and statistics: for one the report filed by the UN Working Group on Arbitrary detention, which points to the Prevention of Terrorism Act (PTA) “as one of the key enablers of arbitrary detention for over four decades.” Further, sharing both the findings of the Sri Lanka Campaign on surveillance and the stats provided by Sri Lanka’s Human Rights Commission on unlawful arrests and torture by police where, “in the first three quarters of 2017, the Human Rights Commission of Sri Lanka received 5614 complaints, 1174 of them related to unlawful arrest and torture by police,” MAP surmises how the heavy handedness of the security services has had an impact on the community, leaving , “many Tamils fearing they might be abducted, arbitrarily detained, tortured, sexually abused or killed as security forces continue ‘surveillance, harassment and intimidation’.”  MAP believes and has always warned: “the right choices will help foster accountability and reconciliation in Sri Lanka, while the wrong ones will not only waste an opportunity to deliver meaningful justice to victims, but also undermine stability for years to come.”

Sri Lanka’s Attempt Yet Again to Manipulate Casualty Figures:

MAP also points to Sri Lanka’s attempt yet again to manipulate the casualty figures, using Sri Lanka’s long time friend and ally Lord Naseby – who typically called on the UN to reduce the estimated 40,000 figure to 7000 or 8000 – an improvement, I say, on Sri Lanka’s earlier “zero casualties” narrative, not forgetting how it hid actual casualty numbers at the height of the war to mislead the UN hierarchy. While Sirisena unashamedly thanked Naseby for his part in Sri Lanka’s shenanigans, the attempt to distort numbers didn’t convince those it was meant to persuade: “While much was made by the Sri Lankan press about the call for a revision of the number of casualties, the attempt was ‘summarily dismissed by the British government via its High Commissioner in Colombo’. Lord Nasby’s bias was plain for everyone to see.”

Sri Lanka’s Highest Prosecuting Official Appears for Army Officer in an ‘Enforced Disappearance’ case:      

A disturbing development, that illustrates our position that Sri Lanka’s justice system is partial and biased towards the armed forces and cannot be relied upon, contrary to Sri Lanka’s foreign minister’s claim, relates to the case MAP had reported in its 3rd Spot Report, pertaining to 24 Tamils youths arrested in Navatkuly by security forces and disappeared in 1996. The Jaffna High Court had earlier summoned the Sri Lanka Army Commander Lieutenant General Mahesh Senanayake along with two other state officials over the 24 young men’s disappearances in a case filed by their parents, “the relatives have claimed that the 24 had gone missing since July 1996 when security forces had arrested them.”

Later the lawyers appearing for the petitioners, in a written submission to the court, objected to Sri Lanka’s Attorney General appearing for the 1st respondent Major General Duminda Kepetiwolana of the Sri Lanka Army. They argued that by doing so the AG, “would be violating the duties and obligations of the State under (both) domestic and international law for prosecuting the crimes of enforces disappearance.” One of the lawyers for the petitioners later tweeted his disappointment that, “the Attorney General had thought fit to appear for an official against whom there is compelling material relating to his involvement in enforced disappearances,” which led him to observe: “The gap between Sri Lanka’s Geneva posturing and the realities on the ground is remarkably clear if it wasn’t before.”

President Sirisena and Revisionism:

The AG’s appearance on behalf of the army, shows both Sri Lanka’s chief prosecuting official using his position prejudicial to his duties and obligations to prosecute ‘Enforced Disappearance’ cases and the justice system’s inherent and open bias towards the army which ties in nicely with Sirisena’s revisionist policy as described by MAP, “who first used the Navatkuli Disappearance case to support his preferred narrative that only a few rogue troops were responsible for crimes committed during the war.. at the behest of politicians,” and later to his flat denial, “to any accusations of any crimes committed by government forces: ‘Some people are incorrectly defining that we have been accused of international war crimes. At no point has the Human Rights Council said that we have committed international war crimes. There is clearly no such thing.” This in itself should open the eyes of the UNHRC, if it hadn’t before.

UPR: Judicial Mechanism with Foreign Participation Did Not Enjoy Sri Lanka’s Support:

Going back to November 2017 and Sri Lanka’s Periodic Review, the UNHRC would have had a sense of how far Sri Lanka was prepared to go in terms of its transitional justice commitments in relation to, “establishing a judicial mechanism with the participation of foreign investigators, prosecutors and judges.” MAP explains: ‘Notably, among the 53 UPR recommendations that did not enjoy Sri Lanka’s full support were proposals to end military involvement in civilian functions, returning lands to civilian owners, and establishing a judicial mechanism with the participation of foreign investigators, prosecutors and judges..The GSL did however pledge to ratify the OPCAT, repeal and replace the PTA, and fulfill commitments under Resolution 30/1.  Given the GSL’s obstructionist behavior to date, whether and when such pledges are converted into concrete action remain open questions.’ 

Findings of Ongoing Torture Violence, Arbitrary Detention and Impunity:

It’s just been reported by the Tamil Guardian that, Sri Lanka has failed to respond to a report by United Nations Committee on Torture (CAT). Obviously Sri Lanka is protecting Sisira Mendis, the deputy Inspector General of Sri Lanka’s Criminal Investigations Department (CID) at the center of this report who is known for presided over a ‘ notorious torture site’, at the 4th floor of the CID head quarters in Colombo, where it is alleged widespread torture, including sexual violence is perpetrated :The UN CAT report called for information on the establishment of a judicial mechanism” to investigate torture and information on the role of a former head of the Criminal Investigations Department. Sri Lanka was given until December 2017 to respond to the report which was issued after the state was discussed at the 59th session of the UN Cat in 2016.” Yasmin Sooka of ITJPsl said she was stunned when she learned Mendis was part of the Sri Lankan delegation. Frances Harrison from ITJPsl asking why Mendis wasn’t at least vetted as promised by Sri Lanka under Resolution 30/1 believed, “it was an enormous insult to his alleged victims and is in clear breach of Sri Lanka’s obligations under the Convention Against Torture.”

Alarmingly, “In 2016, Sri Lanka was – for the fifth successive year – the top country of origin for torture survivors referred to the organisation,“ according Ann Hannah of Freedom from Torture.

The arrest by the CID of Major General Amal Karunasekara for the alleged abduction and assault of journalist Keith Noyahr in 2008, illustrates the sullied past of some members of Sri Lanka’s armed forces who also seemed to have played a major role in the genocidal war in which tens of thousands of Tamils were killed by government shelling of designated ‘No Fire Zones’. Major General Karunasekara was Intelligence Chief during the war (responsible for signing papers showing the demarcation of ‘No Fire Zones’) and was also the former Chief of Staff who we learn had previously led the 1st contingent to Haiti in 2004 but was never questioned over Sri Lankan troops sexually violating kid in 2004-7.

Revisiting some disturbing findings of human rights defenders indicate the Security Services were continuing to engage in its normal activities of torture, sexual violence, arbitrary detention, forced confessions, going beyond Rajapaksa’s to Sirisena’s time.

In March 2017, the ITJPsl released a “case study” on another one of Sri Lanka’s ‘notorious torture sites’ known as ‘Joseph Camp’, based on 46 detailed testimonies from survivors and a wealth of supporting documentation: “The report documents horrifying physical and sexual abuse by the military and interrogation rooms equipped with manacles, chains, pulleys and other instruments of torture.

At the end of the civil war in May 2009, the camp was used to interrogate and torture large numbers of people suspected to be members of the Liberation Tigers of Tamil Eelam or LTTE and it was still being used as recently as December 2016 for illegal detention and torture.” Instead of being held accountable for these serious crimes, one of the commanders of the site, “Jagath Jayasuriya was made Army Commander in July 2009 and after the change of government in 2015, he was given a diplomatic posting to Brazil from where he was also accredited to Argentina, Chile, Peru, and Colombia and Surinam.” Later the General fled Brazil returning to Sri Lanka, to avoid arrest for alleged war crimes under the application of ‘universal jurisdiction’.

Consistent Lack of the Vetting Process:

Sri Lanka has consistently failed to vet members of the armed forces sent on foreign assignments as was the case with Jagath Dias, Jagath Jayasuriya, Priyanka Fernando and  Shavendra Silva to name a few. Recently the Chair of the Sri Lanka Human Rights Commission complained about the deployment of peace keeping troops to Lebanon without proper vetting, which she said, “was a complete violation of the agreement with the Human Rights Commission.” The scandal surrounding Sri Lankan peace keepers who allegedly led a sex ring in Haiti while on duty there which was “white washed” by Jagath Jayasuriya, the man, appointed to investigate, is widely known. 

Sexual Violence Against Women and Impunity:

The ITPJsl also identified six alleged perpetrators of rape and torture in the Sri Lankan military which it shared with the UN Committee for the Elimination of Discrimination against Women (CEDAW), “ITJP’s submission, just made public, is based on detailed testimony from 55 women describing torture, horrific sexual assaults and in three cases prolonged sexual slavery while held in state custody..7 of them under the new government – crimes Sirisena had failed to investigate,” according ITPJ’s executive director Yasmin Sooka:

“President Sirisena and his government have failed in their duty to investigate credible allegations that there was a deliberate policy of using sexual violence to inflict torture..This makes the Sirisena Government complicit in the continuation of the violations through its failure to investigate and hold those responsible accountable.”

PTA Used Disproportionately Against Tamils:

HRW in January this year in a 46-page report titled, “Locked Up Without Evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act (PTA),” documented previous and ongoing abuses committed under the PTA, including torture and sexual abuse, forced confessions, and systematic denials of due process.” It quoted what Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said after his July 2017 visit to the country: “The use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds.” He noted that the PTA was used “disproportionately against members of the Tamil community,” and that the community “has borne the brunt of the state’s well-oiled torture apparatus.”

According to HRW, “the many detained under the PTA said that they were tortured to extract confessions or intelligence. Of the 17 individuals whose cases are detailed in this report, 11 reported beatings and torture. A senior judge responsible for handling PTA cases said in July 2017 that he was forced to exclude confession evidence in over 90 percent of the cases he had heard in 2017 because it had been obtained through the use or threat of force.”

Ongoing Surveillance Targeting the Tamil Community:

The Sri Lanka Campaign, in its Feb 22nd report, “interviewing 27 war affected individuals and human rights activists..looked at the ongoing use of ‘surveillance, harassment and intimidation’ against war-affected individuals and human rights activists by various security agencies.”     

The Sri Lanka Campaign thinks, “much remains to be done in order for the government to break with the country’s legacy of authoritarianism,” and opines, “the findings reinforce the view that the climate of fear that was once pervasive in Sri Lanka has not lifted evenly or consistently over the past three years, with Tamils living in war-affected areas continuing to bear the brunt of oppressive state practices.” 

Pablo de Greiff Recommends a Comprehensive Transitional Justice Policy:

Pablo de Greiff, Special Special Rapporteur on Promotion of Truth, Justice, Reparations and Non-recurrence speaking at the General Debate on the 37th session expressed dissatisfaction  that Sri Lanka “has still not fully resolved the urgent issues he highlighted  in November 2015 which needed immediate attention, stressing the urgency of the matter in light of violent attacks against the Muslim community 2 weeks ago,” and recommends Sri Lanka adheres to a “fully comprehensive transitional justice policy” that includes the four pillars  of transitional justice. De Greiff’s pointed message to Sri Lanka and the island’s people will be discussed in part 4 of this series.

OMP A Conundrum: 

It was as if Sri Lanka scrambled to confirm appointments to the ‘Office of Missing Persons’ (OMP) announcing it only on 28, February 2018, nearly 20 months after the adoption of the legislation, just before the 37th session. Contrary to Marapana, the OMP was not fully operational at the time he made the claim. The head of the OMP is Sirisena’s counsel who argued to extend his presidential term of office and was not one of the names first mentioned by the ‘Constitutional Council’. Also, “the inclusion of military personnel and the presence of only two Tamil commissioners,” is not sitting well with members of the Tamil Civil Society. Many questions remain unanswered, the suspicion being Sri Lanka’s forcibly disappeared could be still be languishing in secret camps. The ITJPsl hoping the OMP’s first task would be the 17/18 May 2009 surrendee disappearances, the largest single group that needs addressing.

It’s not known what will be gained by the OMP since it’s not a prosecutorial body as such, “its findings will not give rise to civil or criminal liability” and the immunity and confidentiality clauses in the OMP Act would “impede” the presentation of evidence in a future war crimes court. Although the OMP has said, “it has the discretion (emphasis on discretion) to refer violations of criminal law to the prosecutorial authority and it is up to the investigating or prosecutorial authority to investigate afresh.”

Whether families of persons forcibly disappeared would get closure, remains to be seen. The president is yet to keep his promise to provide a list of names of the disappeared; both the president and the prime minister have dismissed the existence of secret camps; the PM even remarking they could be dead. Families have been particular about the difference between the disappeared and the missing: As opposed to just simply ‘missing’ the cases involving Tamils fit the legal definition of ‘enforced disappearances’: the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Sri Lanka Gets a Failing Grade from the TGTE – Complete Omission of any Accountability Process is the Elephant in the Room:

The TGTE led by Rudrakumaran, warning of the futility of giving Sri Lanka any extensions to implement Resolution 30/1, was proved right, its ‘Mid-Term Report Card’, serving as an excellent overview of the situation as it stands, relating to the progress made thus far by Sri Lanka, vis a vis its transitional justice commitments. Not surprisingly, Sri Lanka got a failing grade for most of the 25 commitments it was assessed on – this evaluation capable of withstanding any outside scrutiny. And in a hard hitting point by point rebuttal to the statement made by Sri Lanka’s Minister of Foreign Affairs to the UNHRC, Rudrakumaran, demolished Sri Lanka’s so called “achievements” as “meager in relation to the mountain of expectations of the Human Rights Council” pointing, “to the complete omission of the accountability process in the speech as the elephant in the room.”

Out of the 25 commitments: One commitment merited a P, three commitments merited P (dubious), nine commitments merited straight Fs, two merited Fs (cunning) and ten commitments received Fs (atrocious).

Some of the failing grades are listed below:

F (atrocious): OISL

F: Establishment of Truth Commission

F (cunning) Establishment of Office of Missing Persons

F (atrocious): Establishment of Office of Reparations

F: Mechanisms to have the freedom to obtain assistance from international partners

F (atrocious): Process of accountability for abuses by all sides to the conflict

F (atrocious): Uphold the rule of law and build confidence in the justice system

F (atrocious): Establishment of a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and international humanitarian law, with the participation in that judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.

F (atrocious): Reform of domestic Law to enable trial and punishment for serious human rights law violations

F: Review of ‘Witness and Victim Protection law’; protection of victims, witnesses, prosecutors, investigators and judges

F (atrocious): Introduce effective security sector reforms to vet and remove known violators of human rights from the military. Increase incentives for the protection of human rights and issue instructions on the prohibition of human rights violations.

F (atrocious): Return of the land to its rightful owners

F (atrocious): End Military involvement in civilian activities and the restoration of normalcy in civilian life.

F: Investigate all alleged attacks on Civil Society

F: Review of Public Security Ordinance Act

F: Review and Repeal of the Prevention of Terrorism Act.

F: Criminalize Enforced Disappearances

F (cunning): Issue certificates of absence to families of the disappeared

F (atrocious): Preserve all existing records and documents

F: Take constitutional measures for a devolved political settlement

F (atrocious): Address all sexual and gender based violence and torture

UNHRC Must Tell Sri Lanka to Stop Playing Games, Present a Concrete Plan – HRW:

Interestingly HRW’s Jon Fisher’s words ring true, at this moment, when it, “called on the UNHRC to ensure Sri Lanka stops playing games and delivers on its commitments including accountability involving international judges, prosecutors and investigators”: The Human Rights Council needs to make it clear to the Sri Lankan government that it expects it to stop playing games and start delivering on its commitments. The Sri Lankan government needs to move beyond pre-session PR and present a meaningful concrete plan to deliver results for the victims who have been awaiting justice for far too long.”

Is Sri Lanka capable of delivering meaningful justice to the victims? A Synopsis:

While the use of torture and sexual violence, by the Sri Lankan security forces remains “endemic and routine”; while the goings on in secret torture sites like Joseph camp is eye- opening; while the PTA that’s “disproportionately used against the Tamil community” and still in force is akin to authoritarian states; while the continued arbitrary deprivations of liberty of political prisoners without charge, including convictions that cannot stand based on forced confessions under the draconian PTA is still ongoing – the Tamil community  bearing the brunt of it; while impunity for ongoing violations shows the culture is never going to end; while suspected war criminals get full protection of the justice system and enjoy privileges and plum jobs and are being shielded by the highest prosecuting authority even as allegations of prior criminal behavior surface; while surveillance operations by Sri Lanka’s security forces carried out against Tamils continue; while Sri Lanka’s refusal to provide answers to questions posed by families of the forcibly disappeared Tamils is telling, while the failure to return land owned by Tamils that’s commandeered by the armed forces is deplorable; while the recent remarks by the Army Commander that land returned could be taken back illustrates the extent of arbitrary rule, control and enslavement tactics employed by the army against Tamils, going to the root of the problem; While Sri Lanka’s ingrained bias towards the armed forces and against Tamils, destroys trust in the justice system; notwithstanding Sri Lanka’s deafening silence on the creation of a hybrid court, it would be highly unseemly for the UNHRC to carry on hoping Sri Lanka could be relied upon to prosecute its armed forces and senior political leaders.

Sri Lanka hasn’t got the Ability to be an Impartial Adjudicator:

Sri Lanka cannot be seen as having the necessary confidence building tools either as an impartial adjudicator or a prosecutor, or as having the ability to addressing grave violations of international human rights and humanitarian law without fear for favour or as having the climate conducive to furthering its criminal justice commitments.

All signs point to the unassailable truth that Sri Lanka cannot deliver “meaningful justice to victims”. Definitively, the UNHRC cannot rely anymore on the Sri Lankan government to prosecute members of its armed forces and senior political leaders. The way forward for member states of the UN Human Rights Council is to lobby the UN Security Council for an ICC referral or for the establishment of an international special criminal tribunal for Sri Lanka.

To be continued..

Usha S Sri-Skanda-Rajah – Senator, TGTE