The serious shortcomings of the 388-page report, which was posted on a government website on December 16, 2011, highlight the need for an international investigative mechanism into the conflict as recommended by the United Nations Secretary-General’s Panel of Experts in April.
The LLRC report was long awaited, but provided little new information or recommendations on accountability that could not have already been put into effect by the government, Human Rights Watch said. While the UN Panel of Experts recommended the establishment of an independent international mechanism to conduct investigations into the alleged violations, the LLRC report provides no realistic pathway for holding accountable military and government officials implicated in serious abuses.
“Governments and UN bodies have held back for the past 18 months to allow the Sri Lankan commission to make progress on accountability,” said Brad Adams, Asia director at Human Rights Watch. “The commission’s failure to provide a road map for investigating and prosecuting wartime perpetrators shows the dire need for an independent, international commission.”
The LLRC’s findings, largely exonerating government forces for laws-of-war violations, stand in stark contrast to those by the UN Panel of Experts, the UN special envoy on extrajudicial executions, and other independent organizations. The UN Panel of Experts concluded that both government forces and the separatist Liberation Tigers of Tamil Eelam (LTTE) conducted military operations “with flagrant disregard for the protection, rights, welfare and lives of civilians and failed to respect the norms of international law.”
The LLRC report does sweep aside Sri Lankan government claims that its forces committed no civilian casualties during the final stages of the conflict with the LTTE, which ended in May 2009. In the face of overwhelming evidence, the LLRC concluded that there were “considerable civilian casualties” during the final stages of the fighting and that hospitals had been shelled “causing damage and resulting in casualties.” However, the report largely exonerates the government, blaming the casualties, either directly or indirectly, on the LTTE, Human Rights Watch said.
“It is important that a government-appointed body has laid to rest the bizarre claims of the government that its forces caused no civilian casualties,” Adams said. “Yet the commission shockingly fails to call for any criminal investigations into artillery shelling of crowded areas in which tens of thousands of civilians died.”
The LLRC report failed to examine the use of heavy artillery against civilian areas as possible indiscriminate attacks in violation of the laws of war, Human Rights Watch said. While summarily rejecting that the military’s attacks either deliberately targeted civilians or caused disproportionate civilian harm, the LLRC did not even consider whether any attacks failed to discriminate between civilians and combatants, a major finding by the UN panel and Human Rights Watch.
The report lists only five incidents of shelling for further investigation in which government forces were implicated. It simply dismisses the widely reported shelling of hospitals by noting that civilian witnesses could not pinpoint who was responsible for the attacks, or excuses the attacks on the grounds that LTTE forces were nearby.
While the report strongly condemns the LTTE for abuses previously reported by Human Rights Watch and others, the LLRC consistently seeks to justify wrongdoing by government forces by blaming the LTTE. The report states, for example, that “account must also be taken of the fact that military operations had to be conducted against an enemy who had no qualms in resorting to a combat strategy which paid little heed to the safety of the civilian population and in fact made the civilian population very much a part of such strategy.” While the LTTE committed horrendous abuses during the fighting, statements such as this fail to recognize that violations by one party to a conflict do not justify violations by the other, Human Rights Watch said.
Among the many omissions, the LLRC report does not examine allegations that government forces executed several LTTE leaders who attempted to surrender to the government during the last days of the war in what has been called the “white flag” incident. The report limits its analysis of the so-called Channel 4 video, which appears to show government soldiers executing handcuffed and blindfolded prisoners, to a technical discussion of the video’s authenticity without mentioning the government’s admission that its forces killed a young woman visible in the footage.
Sexual violence is not discussed in the report, a likely product of the nature of the commission’s proceedings, which did not provide for witness protection. The report also does not mention torture or ill-treatment of detainees, the illegal, several-months-long detention of 300,000 people displaced by the fighting, or the denial of due process rights to more than 10,000 alleged LTTE members whom the government detained in so-called rehabilitation centers.
The report includes evidence of enforced disappearances allegedly committed by government security forces. While the LLRC recommends investigations and possible prosecutions, similar recommendations have been made by earlier government appointed commission with little effect, Human Rights Watch said. Other recommendations on a range of human rights issues, while positive, have repeatedly been made to the government in the past. The LLRC even made a call for its own interim recommendations to be carried out, which the government has not done.
Several governments, including the US and the UK, have said that they will support the establishment of an international investigation unless the Sri Lankan government demonstrates progress on accountability for wartime abuses. The LLRC report has often been cited as a crucial test of the government’s commitment to accountability. During a trip to Sri Lanka in September 2011, for example, US Assistant Secretary of State Robert Blake said, referring to the LLRC, “There will be pressure if it’s not a credible process [leading to accountability], there will be pressure for some sort of alternative mechanism.”
“It is clear that justice for conflict-related abuses is not going to happen within Sri Lanka’s domestic institutions,” Adams said. “The government has been playing for time by appointing the LLRC. That time has now run out.”