8 May 2011,
by Dr. Kay S. Kumaran, United States Tamil Political Action Council (USTPAC)
USTPAC recently released the following report, entitled “The Track Record of Sri Lankan Commissions and the Need for an International Investigation of War Crimes.”
Releasing the Report by the USTPAC’s War Crime Prosecution Committee said “the Tamil people are clearly the victims of violence and injustice by the Government of Sri Lanka for the last 60 years and they deserve justice. Only an impartial international investigation can bring justice to the Tamils and avoid repetition of the same.” Further adding, “Although the war ended, the conflict has not. An international investigation can be the first step towards ending the conflict and bringing permanent peace to Sri Lanka.”
The USTPAC has been working on highlighting the oppressive conditions of the Tamil people by the government of Sri Lanka and the need for a political solution:
2. HUMAN RIGHTS.
3. COMMISSIONS FROM 1977 TO 2010.
3.2 The Sansoni Commission, 1977.
3.3 The Kokkaddicholai Commission, 1991.
3.4 The Presidential Truth Commission on Ethnic Violence, 2001.
3.5 Presidential Commission of Inquiry 2006.
3.6 The Lessons Learnt and Reconciliation Commission, 2010.
4. CONCLUSIONS AND RECOMMENDATIONS.
References and End Notes.
The island of Sri Lanka is known by various names. Ceylon, Pearl of the Indian Ocean, Eelam, Ilankai are some of them. The majority inhabitants of this island can be divided into two linguistic groups, the Sinhalese and the Tamils. Both have lived in the island for more than 2,000 years developing their own heritage in different parts of the island. Most of the Tamils lived predominantly in the North and East of the island, while a majority of the Sinhalese lived in the South, West, and in the Central part of the island. Now, the Sinhalese are the majority with seventy percent of the population, and the Tamils are numerically the minority with twenty percent of the population. The rest of the ten percent consists of the Moors (mostly Tamil speaking Muslims) and of the Burghers (Descendants of the Dutch, Portuguese, and the British who spoke English). Historically, the Tamils and the Sinhalese lived in their independent kingdoms and had their own kings, languages, customs, culture, and legal systems. However, the governmental structure changed with the unification of all the kingdoms into one country by the British, who ruled it for nearly 150 years.
In 1948, Ceylon (renamed Sri Lanka in 1972) became independent with a parliamentary system of government, having a bicameral legislature. After independence, the majority Sinhalese members of the legislature made Sinhala the official language and started to discriminate against the minority Tamils in every aspect of life: education; government jobs, including police/army recruitments (>95% are Sinhalese); and industrial development in the North and East. Also, government sponsored colonization in the North and in the East changed the demography of the Tamil area. Since then, the Tamils have been treated as second-class citizens and, throughout their peaceful struggle for equal rights spanning thirty years, have suffered through several pogroms in the years 1958, 1960, 1972, 1977 and 1983. The late eighties saw the emergence of armed resistance by the Tamils. The predominant Tamil resistance group, the Liberation Tigers of Tamil Eelam (LTTE) was militarily defeated by the Sri Lankan forces in May 2009. This Sri Lankan offensive in the Tamil North created a humanitarian catastrophe culminating in the death of more than 40,000 Tamils.
In each and every pogrom, the human rights of the Tamils were violated. The Tamils were arbitrarily arrested; they were not equal before the law; they were afraid to express their conscience; and they could not enjoy their religion, culture, and language in a manner they wanted. Even now the Tamils’ rights are continuing to be violated. In many of the pogroms, the government in power at the time of the incident was either involved in the violation of the rights or turned a blind eye when the rights were violated. Very often, the government in the opposition is the one which appoints a commission to inquire into human rights violations of the previous administration when it assumes power after periodic elections held once in five years. In other instances, a commission is appointed to circumvent international criticism.
During the past thirty-five years, eleven commissions have been appointed to investigate human rights violations. Out of the eleven, four did not submit a report either because their mandate was not extended or because the Commissioners resigned. In case the commission submitted a report, the report was shelved without publishing it and the government did not act upon it. The reports rarely criticized the government in power or its agents.
This report is written to encourage the creation of an International Commission to investigate the mass killing of an estimated 40,000 Tamils in 2009 and the war crimes committed by the Sri Lankan forces during the civil war. To substantiate the recommendation, an objective analysis of the past Sri Lankan commissions of inquiry is necessary. Thus, the author has analyzed five commissions appointed by the Sri Lankan government during the past thirty-five years to inquire into human rights violations: Sansoni Commission of 1977; Kokkaddicholai Commission of 1991; the 2001 Presidential Truth Commission of Ethnic Violence; the 2006 Presidential Commission of Inquiry; and the 2010 Lessons Learnt and Reconciliation Commission.
The Sansoni Commission heard testimony regarding two events where the Tamils’ rights were violated: the first event is where the Police attacked the attendees of the fourth conference of the International Association of Tamil Research (IATR) in 1972 (death of ten Tamil civilians), and the second event was the riots against Tamils during the period August 13, 1977 to September 15, 1977 (killing over 500 Tamils). The Commission, which had only one Commissioner, former Chief Justice of the Sri Lanka Supreme Court, Mr. M.C. Sansoni, gave more weight to the Police testimony than to the lay witnesses. The Attorney General acted both as an investigator for the commission and as a counselor for the accused government employees. At the end of the inquiry, no one was prosecuted.
The Kokkaddicholai Commission (1991) investigated the death of sixty seven civilians and the disappearance of another fifty six civilians, all of them Tamils. It heard testimony against seventeen soldiers and an officer of the army as being allegedly responsible for the deaths and disappearances. The soldiers were charged for extrajudicial killings and kidnappings. Although the actions of the soldiers were beyond their military duties, the commission recommended that they be tried by a military tribunal. The military tribunal acquitted all the soldiers and punished the officer for dereliction of his duties.
Eighteen years after the pogrom of 1983, also known as Black July, the President appointed the Presidential Commission for Ethnic Violence in 2001. It was during Black July that more than 3,000 Tamils died due to planned violence against the Tamils by the government agents, including a cabinet Minister. After the riots, several Tamils in the Western and Southern part of Sri Lanka were shipped to Jaffna in the North. It also started the migration of Tamils as refugees to India, and several countries in the West including Germany, Canada, the United Kingdom, and Australia. Thus, there were hardly any witnesses to testify: they had either died or migrated to a foreign country. Not a single prosecution resulted from this exercise. The backing of the Government during the 1983 riots cannot be better illustrated than the statement made by the then President, J. R. Jayewardene, to Ian Ward of the London Daily Telegraph: “I am not worried about the opinion of the Jaffna (Tamil) people now. . . The more you put pressure on the North, the happier the Sinhala people will be here. . . [R]eally, if I starve the Tamils out, the Sinhala people will be happy”
The current President of Sri Lanka invited eleven eminent persons from Australia to the United States of America to observe and guide the 2006 Presidential Commission of Inquiry. These eleven eminent persons, hailing from India, Indonesia, USA, Netherlands, Bangladesh, France, Canada, Cyprus, UK, Australia, and Japan, were known as the International Independent Group of Eminent Persons (IIGEP). They were invited especially to ensure that the commission’s work met international standards. Out of the sixteen cases included in the mandate, the two principal cases investigated by the commission are the killing of five students in Trincomalee, allegedly by the security forces, and the death of sixteen workers of the international nongovernmental organization Action Contre la Faim (ACF) in Mutur. Both cities are located in the Eastern part of Sri Lanka, and all the victims are Tamils.
After observing the commission for fourteen months, the IIGEP publicly stated that the Sri Lankan government does not have the political will to pursue the truth. It also identified the following five factors as incompatible with international standards: (a) the dual role played by the Attorney General’s Office, defending and investigating the accused; (b) lack of witness protection, before, during, and after the testimony; (c) the in-camera proceedings and inadequate protection for whistle blowers; (d) lack of cooperation by the government entities to provide information; and (e) the Commission’s lack of financial independence to carry out its duties. After releasing the above statement, the IIGEP terminated its activities. Later, some of the Commissioners resigned, and the sole Tamil Commissioner was forced to resign by the government. The government did not extend the Commission’s mandate, and the commission never published its report.
The last commission discussed in the report is the ongoing Lessons Learnt and Reconciliation Commission (LLRC) appointed by the Sri Lankan President on May 15, 2010. The goal of the President was to prevent the appointment of an International Commission by the United Nations to inquire into the alleged human rights violations during the last stages of the war between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan military. Indiscriminate bombing of civilians and hospitals, killing of surrendering fighters, and arbitrary detention of civilians are some of the human rights violations, and all of them were committed against Tamils. Another goal of the President was to find fault with the previous government that initiated a peace process with Tamil rebels.
The LLRC’s mandate did not have any provisions for the investigation of human rights violations. The United States Department of State is skeptical of the composition of the Commission because the Chairman of the Commission was the former Attorney General who was criticized by the IIGEP for his actions in the 2006 Presidential Commission of Inquiry. Although the Sri Lankan government stated that the commission is similar to the Truth and Reconciliation Commission of South Africa, Arch Bishop Desmond Tutu, a member of that commission, refuted the government’s claim. He stated that the past Sri Lankan Commissions have done nothing to show that they were successful in dealing with human rights violations, and the new commission also will not reveal the truth.
In summary, the history of the Sri Lankan Commissions reveals the following:
(a) The Politicians put pressure on the Commissioners;
(b) The Attorney General plays a dual role, investigating and counseling the accused;
(c) There is no witness protection before, during, and after the testimony;
(d) There is lack of protection for whistleblowers;
(e) The commissions are not financially independent;
(f) The Commissioners are former long-term employees of the government;
(g) The composition of the commission does not represent the citizens or the victims; and
(h) The government does not act upon the Commissions’ recommendations.
Thus, there is hardly any chance that the present commission, LLRC, will investigate human rights violations, let alone war crimes, when it does not even have a mandate to inquire into rights violations. The only solution is for the United Nations to appoint an International Commission to inquire into the human rights violations and war crimes committed during the final stages of the war during which an estimated 40,000 Tamils died.
During the past thirty-five years, the Sri Lankan government has appointed several commissions to inquire into various human rights abuses and violations of humanitarian law. During the tenure of the commissions, many Commissioners resigned due to direct or indirect threats from the security forces and the government. The reports of many of these commissions have never been made public. Several of the witnesses who testified in these commissions have fled the country due to government threats. Some witnesses either refused to testify or, if they had testified, refused to continue testifying because they were photographed, videotaped, and intimidated by the security forces [i]
There is ample reason to believe that the recent Lessons Learnt and Reconciliation Commission appointed by the Sri Lankan President Rajapaksa was formed to resist the appointment of an Independent International Commission by the United Nations to inquire into the final stages of the civil war between the Sri Lankan Government and the Liberation Tigers of Tamil Eelam (LTTE) in May 2009. [ii] Although the commission was to have public hearings, international news reporters were often not allowed; [iii] if reporters were allowed, the local reporting was biased to prevent harassment from the government. [iv] They did not report any testimony that would challenge the government. [v]
During the period under discussion, two political parties from the Southern part of Sri Lanka were in power; the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP). The majority of the elected members in both parties came from the Sinhala Community, which supported both the SLFP and the UNP. Both parties have been accused of human rights violations. Irrespective of the party in power, the commissions appointed by the government served the political ideology of the government in power and were never independent.
As the objective of this paper is to inquire into the functioning of the commissions with respect to human rights violations, the first section identifies and defines the basic human rights under examination. The next section describes the various incidents which resulted in the violations of the aforementioned rights, the appointment of the particular commissions, and the final outcomes of the Commissions. It appears that these ad hoc commissions were formed to resist international pressure, to deceive the international community and receive trade benefits, and to avoid economic sanctions. Finally, the paper concludes that as long as there is no political will in the Sri Lankan government to address the consequences of human rights violations, an Independent International Commission is necessary to investigate the human rights violations which occurred during the final stages of the war between the Sri Lankan government and the LTTE when an estimated 40,000 civilians were killed.
2. HUMAN RIGHTS
Human rights are inalienable and cannot be taken away without due process of law.
“Human rights” is the concept of liberty, individually and collectively, free from abuse and misuse by political power. The General Assembly of the United Nations adopted the Universal Declaration of Human Rights on December 10, 1948, and proclaimed all human beings to be “born free and equal in dignity and rights.” The United Nations outlined the following important rights: equality before the law; protection against arbitrary arrest; freedom of thought, conscience and religion; freedom of opinion and expression. While the declaration is not a treaty, and the rights are not legally enforceable, it has obtained a legal status which was not originally intended by the member nations.
Subsequent to the Declaration of Human Rights, 132 countries signed “The International Covenant on Civil and Political Rights and Optional Protocol (ICCPR), and Sri Lanka is a signatory to the Protocol. The Covenant, in addition to the rights identified in the Universal Declaration, recognizes additional rights, such as the right to self determination and the right of ethnic, religious, or linguistic minorities to enjoy their own culture, to profess and practice their own religion and to use their own language. The Protocol also established a Human Rights Committee (HRC) consisting of eighteen members to review whether or not the states which signed the covenant have taken measures to adopt the recognized rights. The HRC can also resolve disputes between two states. The states which signed the Optional Protocol also agreed that the HRC can act upon complaints by individuals who claim that they are victims and that a state is not honoring its obligations. Although eighty-five countries signed the above first operational protocol, Sri Lanka did not sign it. It also did not sign the second protocol, which bans the death penalty. [vi] For additional information on the treaties and instruments on human rights, the reader is referred to the following website maintained by the Office of the United Nations High Commissioner for Human Rights.
The human rights topics that are important to this paper are the following:
Torture or other cruel, inhuman or degrading treatment or punishment;
Enforced disappearances and kidnapping;
Arbitrary and summary executions;
Protection of civilians during war.
3. COMMISSIONS FROM 1977 to 2010
A commission is “a formal written warrant or authority granting certain powers or privileges and authorizing or commanding the performance of certain acts or duties.” [vii] The Sri Lankan President has the authority to establish Special Presidential Commissions of Inquiry under law. [viii] Although the legislation of setting up these Commissions has evolved since the Commissions of Inquiry Act No. 17 of 1948, we need not engage in a discourse about the evolution here because the goal of this report is to inquire into the merits of the Commissions established by the President to investigate human rights with particular attention to Tamil citizens’ rights.
The timeline on page 11 shows the various commissions established by the President of Sri Lanka. Each of the boxes shows the name of the commission and the date on which the commission was established. The period during which the commission was functioning is also shown in the figure. Although twelve commissions are shown in the figure, only seven commissions have completed their work and submitted a report. While the Lessons Learnt and Reconciliation Commission’s (LLRC) work is ongoing, the other three either did not submit a report or did not finish their work.
The following is a summary of these commissions’ effort:
(a) The political pressure on the Commissioner, M. C. Sansoni, was so powerful that the sole Commissioner was unable to make independent conclusions because he relied on state evidence, rejected independent eye witnesses’ testimony and fell in line with the majority political will.
(b) The Commission appointed to inquire into the shooting and attack by the Sri Lanka Air Force which injured the staff of Medecins Sans Frontieres (MSF) on May 3, 1991, concluded that the Air Force (Government) was not at fault even though the testimony of the injured staff of MSF and the radio recordings showed otherwise.
(c) Contrary to International Law, the Commission appointed to inquire into the killings of civilians on June 12, 1991, by the Kokkaddicholai Army Camp soldiers, recommended a military tribunal to inquire into the extrajudicial killings.
(d) The Presidential Commissions of 1991, 1992, and 1993, specially appointed to deflect international criticism on Sri Lanka’s human rights violations, held their inquiries in secret and never published any reports.
(e) The three Commissions appointed in 1993, each to inquire into disappearances in three different geographical regions, found that at least in 1681 cases out of 27,526 complaints, identities of the missing persons could be established. The government interfered into the proceedings of the Commission, and it did not follow through with the recommendations.
(f) The 1998 All Island Disappearances Commission found that 4,473 cases of missing persons could be proved as government sponsored abductions/kidnappings and that Senior Officers of the Armed Forces who committed these human rights violations continued to serve in the military establishment without being indicted.
(g) The Presidential Truth Commission on Ethnic Violence (1981-84), appointed on July 23, 2001, after eighteen years of the massacre of more than 1,300 Tamils, did not serve any purpose because the Commission’s recommendations were ignored, and the Commission did not come up with any mechanism to address accountability
(h) The Presidential Commission appointed in 2006 that was supposed to be an international independent commission later became a commission consisting of local professionals with observers from a group of International Independent Group of Eminent Persons (IIGEP). It was slow; it selectively chose cases to suit the political needs; it did not provide any witness protection; and it dissolved as several members resigned from the Commission.
(i) The Commission appointed in 1995 to inquire into the torture chamber in Batalanda implicated Senior Police Officers, but the President manipulated the Commission’s findings to suit her political ambitions.
Except for the Lessons Learnt and Reconciliation Commission (LLRC), the rest of the Commissions’ effectiveness has been well documented in two recent publications: “Post-War Justice in Sri Lanka – Rule of Law, The Criminal Justice System and Commissions of Inquiry” by Kishali Pinto Jayawardena, International Commission of Jurists (2010) and “Twenty Years of Make-Believe Commissions of Inquiry” by Amnesty International (2009). The first publication covers extensively the effectiveness of the first ten commissions in the Timeline, while the second publication covers the effectiveness of the eleventh commission established on November 02, 2006.
The rest of this chapter describes the effectiveness of the following five Commissions dealing with human rights violations of minority Tamils in Sri Lanka:
The Presidential Truth Commission on Ethnic Violence;
Presidential Commission of Inquiry 2006; and
The Lessons Learnt and Reconciliation Commission (LLRC).
Although the first four commissions’ work has already been analyzed by the aforementioned reports, new perspectives are identified in this report. Further, it is important to investigate the functioning of the LLRC with the following criteria that are essential to the success of a reconciliation commission which is attempting to heal the wounds of the affected Tamils:
(a) The mandate of the Commission;
(b) Independence of the Commission Members;
(c) The representation of the Commission Members;
(d) Providing protection to witnesses;
(e) Resources available to the Commission;
(f) Publication of the report; and
(g) The government’s response to the report