The Upcoming HRC Resolution on Sri Lanka

by Gibson Bateman, ‘International Policy Digest,’ New York, February 28, 2013

India has already come out and announced that it too will support the resolution –taking a bit of drama out of the whole affair. But it’s also quite revealing because it shows how much the administration of President Mahinda Rajapaksa has overplayed its hand. Let us not forget that less than a year ago, Delhi was reminding people that itwouldn’t support any country-specific resolution at the HRC. Now it looks like Delhi will have supported two in a twelve-month span.

Along with the major international organizations like International Crisis Group (ICG) and Human Rights Watch (HRW), there are probably a few Western countries – though not necessarily the US – that are pushing for something stronger than the draft resolution in its current form.  In spite the circumstances, the Government of Sri Lanka (GoSL) is still sticking with its (untrue) story – saying that they are doing all they can to implement the LLRC recommendations and comply with the previous HRC resolution. Unfortunately, the problems with the GoSL’s most recent progress report on the LLRC recommendations start on the first page of the first sentence.

As per the document published on February 26th:

The Ministry has established a Steering Committee of eight members to streamline and coordinate the implementation of LLRC recommendations carried out by the Armed Forces and the Police. The Committee is authorized to summon any member of the Armed Forces and the Police or any other relevant agency to discuss any specific issue and furnish any information that may be required with regard to any matter that comes under the purview of the Ministry Steering Committee.

Maybe the Steering Committee will not play a major role or perhaps the military will select some truly impartial individuals to be a part of the committee – though the latter is highly unlikely.

My sense is that most people concerned about Sri Lanka’s democratic deficiencies are hoping for security personnel to be less involved in the implementation of the LLRC recommendations.

The implementing and monitoring agencies the GoSL likes to rely upon – including the Ministry of Defence (MOD), the Ministry of Justice (MoJ) and the Attorney-General’s Department (AGD) are not unbiased actors. On the contrary, they’re often the most consistent violators of democratic principles and the norms of responsible governance – including the crimes they are supposed to be investigating impartially. Yet GoSL appears unwilling to compromise on this issue and, instead, is still emphasizing that it will rely heavily on institutions like the MoD to implement the LLRC recommendations.

The problems continue with the first two recommendations that are mentioned in the document, recommendations 9.9 and 9.37, call for an examination of war deaths and injuries for civilians and accountability for perpetrators. Yet, under the “Progress” heading the GoSL has cited the Court of Inquiry (CoI) by the Sri Lankan Army. (Again, there are obvious conceptual and practical problems with the Sri Lankan Army examining itself).

The distortions and inconsistencies continue from there. More generally, the document itself is vague and noncommittal. Due to GoSL inaction, the regime is forced to highlight many of the things that it will do, as opposed to what it’s already accomplished. Though the GoSL has also woven in blatant lies with talk about the military’s withdrawal from civilian affairs (including its use of private lands) being a case in point. On page eight for recommendations 9.171, 9.227, under the “Progress” heading, the GoSL has noted that these recommendations have been “completed.” The GoSL goes on to note that “Civilian administration is fully functional with government officials at the district, divisional and grassroots levels appointed and discharging their functions.”

What tripe. Bottom line: this is not a progress report to be taken seriously.

Events in Geneva

Some people have suggested that the US might just be talking about a weak resolution because they want to set the bar low and make sure they aren’t embarrassed in Geneva. While possible, it’s very unlikely that that’s what’s actually happening.

Striking a cord of even more unbridled optimism, a colleague recently suggested that the US is still keen on accountability and human rights in Sri Lanka, but that they don’t want to seem too pushy for obvious reasons. And, along these lines, the US might have its eyes set on a resolution with real teeth the following year – in 2014.

I could not disagree more strongly with this line of thinking.

The fact that the US has already sponsored one resolution is mildly incredible. The passage of two resolutions would be historic. Do people honestly believe that three US sponsored resolutions on Sri Lanka – in a span of three years – should be expected?

Putting the question of accountability aside for a moment, the GoSL was given a chance to implement (at least) some of the recommendations prescribed in the LLRC without interference. It failed to do that. Then the GoSL was given a chance to comply with HRC Resolution. It failed to do that too.

Ultimately, change must come from within, but if international pressure is going to work at all, the people concerned need to turn up the heat – and they need to do that now. The administration of Barack Obama’s pivot to Asia is irreversible – but it’s an initiative solidly grounded in security concerns and economics – not human rights. There will be no human rights pivot to Asia during a second Obama administration – which is yet another reason to wish that someone else would lead the way this March in Geneva.

UN Human Rights Commissioner Report on SL

by UN High Commissioner for Human Rights, February 11, 2013

“In this regard, she reaffirms her long-standing call for an independent and credible international investigation into alleged violations of international human rights and humanitarian law, which could also monitor any domestic accountability process.”

Report of the Office of the United Nations High Commissioner for Human Rights on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka

OHCHR report Feb 11 2013

Summary
The Lessons Learnt and Reconciliation Commission made significant and far reaching
recommendations towards reconciliation and strengthening the rule of law in Sri
Lanka, despite its limitations. In order to define areas of possible advice and assistance by
the Office of the United Nations High Commissioner for Human Rights and the special
procedures pursuant to Human Rights Council resolution 19/2, the present report examines
the recommendations of the Commission and the plans of the Government of Sri Lanka to
implement them, and to address alleged violations of international law. To date, the
Government has made commitments on only selected recommendations of the
Commission, and has not adequately engaged civil society in support of a more
consultative and inclusive reconciliation process. The Government has made significant
progress in rebuilding infrastructure; and while the majority of internally displaced persons
have been resettled, considerable work lies ahead in the areas of justice, reconciliation and
resumption of livelihoods. The steps taken to investigate further allegations of serious
violations of human rights have also been inconclusive, and lack the independence and
impartiality required to inspire confidence. Meanwhile, continuing reports of extrajudicial
killings, abductions and enforced disappearance in the past year highlight the urgency of
action to combat impunity. It is against this background that possible areas of technical
assistance are identified, and recommendations are made.

Conclusion and recommendations
61. Achieving reconciliation following decades of violence and mistrust is challenging in any context, but is only possible through a genuine, consultative and inclusive process that addresses the grievances of all those affected by the conflict, in an environment where the rule of law and human rights for all are respected.
62. While the Lessons Learnt and Reconciliation Commission had some limitations, it nonetheless made significant and far-reaching recommendations for reconciliation and strengthening the rule of law. This was widely heralded by prominent community figures, religious leaders and civil society in Sri Lanka eager to join hands in a genuinely consultative and inclusive reconciliation process. The Government therefore has a unique opportunity to build upon the Commission’s work and findings to move towards a more all-encompassing and comprehensive policy on accountability and reconciliation. Unfortunately, however, the Government has made commitments to only some of the Commission’s recommendations, and has not adequately engaged
A/HRC/22/38
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civil society to support this process. The steps taken by the Government to investigate allegations of serious violations of human rights further have also been inconclusive, and lack the independence and impartiality required to inspire confidence.
63. The High Commissioner recommends that the Government of Sri Lanka:
(a) Give positive consideration to the offers of assistance made in her letter dated 26 November 2012, in particular expertise in:
(i) The establishment of a truth-seeking mechanism as an integral part of a more comprehensive and inclusive approach to transitional justice;
(ii) Criminal and forensic investigations to review relevant case files and advise on additional lines of inquiry to resolve outstanding cases in accordance with international standards;
(iii) Drafting laws dealing with witness and victim protection, the right to information, the criminalization of enforced disappearances and the revision of existing laws to bring them into line with the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
(iv) Strengthening and ensuring the independence of national institutions;
(v) The development of a national reparations policy in line with international standards;
(b) Invite special procedures mandate holders with outstanding requests to make country visits, particularly those who have offered assistance pursuant to Human Rights Council resolution 19/2;
(c) Hold public and inclusive consultations on the national plan of action for implementation of the recommendations of the Lessons Learnt and Reconciliation Commission with a view to revising and expanding its scope and clarifying commitments and responsibilities;
(d) Revisit and implement the Commission’s recommendation on appointing a special commissioner of investigation into disappearances, and extend tracing programmes to include all missing persons;
(e) Open proceedings of military courts of inquiry and future trials of LTTE detainees to independent observers to increase public confidence, and allow proceedings to be evaluated in line with international standards;
(f) Publish the final report of the presidential commission of inquiry 2006 to allow the evidence gathered to be evaluated and accept international assistance to resolve outstanding cases;
(g) Take further steps in demilitarization and devolution to involve minority communities fully in decision-making processes;
(h) Engage civil society and minority community representatives in dialogue on appropriate forms of commemoration and memorialization that will advance inclusion and reconciliation.
64. The High Commissioner noted the views expressed by many stakeholders in Sri Lanka, including prominent community leaders, that the attention paid by the Human Rights Council to issues of accountability and reconciliation in Sri Lanka had helped to create space for debate, and catalyzed positive steps forward, however limited at this stage. The High Commissioner encourages the Council to continue its engagement and build on this momentum. In this regard, she reaffirms her long-standing call for
A/HRC/22/38
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an independent and credible international investigation into alleged violations of international human rights and humanitarian law, which could also monitor any domestic accountability process.

HRW: Rape of Tamil Detainees

“The Sri Lankan security forces have committed untold numbers of rapes of Tamil men and women in custody,” said Brad Adams, Asia director at Human Rights Watch. “These are not just wartime atrocities but continue to the present, putting every Tamil man and woman arrested for suspected LTTE involvement at serious risk.”

Map Sri Lanka 2013Sri Lanka: Rape of Tamil Detainees

Politically Motivated Sexual Assaults in Custody Continue Since Conflict

(London) – Sri Lankan security forces have been using rape and other forms of sexual violence to torture suspected members or supporters of the Liberation Tigers of Tamil Eelam (LTTE), Human Rights Watch said in a report released today. While widespread rape in custody occurred during the armed conflict that ended in May 2009, Human Rights Watch found that politically motivated sexual violence by the military and police continues to the present.

The 141-page report, “‘We Will Teach You a Lesson’: Sexual Violence against Tamils by Sri Lankan Security Forces,” provides detailed accounts of 75 cases of alleged rape and sexual abuse that occurred from 2006-2012 in both official and secret detention centers throughout Sri Lanka. In the cases documented by Human Rights Watch, men and women reported being raped on multiple days, often by several people, with the army, police, and pro-government paramilitary groups frequently participating.

“The Sri Lankan security forces have committed untold numbers of rapes of Tamil men and women in custody,” said Brad Adams, Asia director at Human Rights Watch. “These are not just wartime atrocities but continue to the present, putting every Tamil man and woman arrested for suspected LTTE involvement at serious risk.”

Most of the rape victims spoke to Human Rights Watch outside of Sri Lanka, and corroborated their accounts with medical and legal reports. All suffered torture and ill-treatment beyond the sexual violence. Because Human Rights Watch was not able to openly conduct research in Sri Lanka or interview people still in custody, these cases likely represent only a tiny fraction of custodial rape in political cases.

Many of the cases followed a pattern of an individual being abducted from home by unidentified men, taken to a detention center, and abusively interrogated about alleged LTTE activities, Human Rights Watch said. A 23-year-old man who had recently returned from abroad said he was abducted, held without charge, and then raped on three consecutive days until he signed a confession. A woman, 32, said she was detained by two plainclothes men who stripped and photographed her naked.

“They told me to confess about everything,” she told Human Rights Watch. “I refused to confess as I thought they would kill me. I was beaten up and tortured continuously. On the second day, a man came to my room and raped me. I was raped by different men on at least three days. I can’t remember how many times.”

Rape and other sexual violence of detained men and women by the security forces during and ever since the armed conflict suggests that sexual abuse has been a key element of the broader use of torture and ill-treatment against suspected LTTE members and supporters, Human Rights Watch said. This torture is intended to obtain “confessions” of involvement in LTTE activities, information on others including spouses and relatives, and, it appears, to instill terror in the broader Tamil population to discourage involvement with the LTTE.

The victims also described being beaten, hung by their arms, partially asphyxiated, and burned with cigarettes. None of those who spoke to Human Rights Watch had access to legal counsel, family members, or doctors while they were detained. Most said that they signed a confession in the hope that the abuse would stop, though the torture, including rape, often continued. The individuals interviewed were not formally released but rather allowed to “escape” after a relative paid the authorities a bribe.

“Two officials held my arms back [while] a third official held my penis and inserted a metal rod inside,” said a man who had surrendered to government forces in May 2009. “They inserted small metal balls inside my penis. These had to be surgically removed after I escaped from the country.” A medical report corroborates his account.

Women and men who alleged rape told Human Rights Watch that they had generally kept silent about their abuse, fearing social stigmatization and reprisals from perpetrators if they reported the crime. The reluctance to report sexual abuse also stems from institutional barriers imposed by the Sri Lankan government to block effective reporting and investigation of rape cases.

“The government has hindered medical and psychological treatment for rape victims,” Adams said. “In the largely Tamil areas in the north, the army has effectively prohibited local and international organizations from providing services for sexual violence survivors.”

No member of the security forces has been prosecuted, let alone convicted, for rape in custody in the final years of the conflict or since the war’s end, Human Rights Watch said.

Interviewees told Human Rights Watch that military and police personnel seldom made any effort to disguise being members of state security forces. These included the military, military intelligence and the police, including specialized units such as the Criminal Investigation Department (CID) and Terrorism Investigation Department (TID). Victims frequently reported that members of several state agencies would together conduct abusive interrogations. They also identified the specific camps and detention sites where the abuse occurred.

Human Rights Watch said that the cases suggest that the use of sexual violence was not just a local occurrence or actions of rogue security force personnel, but a widespread practice that was known or should have been known by higher-level officials. The cases reported to Human Rights Watch were not just in battleground areas of northern Sri Lanka, but occurred in military camps and police stations in the capital, Colombo, and other locations in the south and east far from any fighting. These included the notorious fourth floor of the CID headquarters and the sixth floor of TID headquarters in Colombo.

Acts of rape and other sexual violence committed as part of armed conflict are war crimes. The Sri Lankan government has an obligation not only to prevent such violations, but also to investigate credible allegations of abuse and prosecute those responsible. Officials who knew or should have known of such abuses and failed to take action are criminally liable as a matter of command responsibility.

In February, the United Nations Human Rights Council will be examining whether the Sri Lankan government adequately followed up on it commitments in a March 2012 resolution to provide justice and accountability for wartime abuses. The council should direct the UN High Commissioner for Human Rights to conduct an independent international investigation, Human Rights Watch said.

“The government’s response to allegations of sexual violence by its security forces have been dismissive, deeming them as ‘fake’ or ‘pro-LTTE propaganda,’” Adams said. “It’s not clear who in the government knew about these horrific crimes. But the government’s failure to take action against these ongoing abuses is further evidence of the need for an international investigation.”

Accounts From “We Will Teach You a Lesson”:
All initials are pseudonyms and bear no relation to the person’s actual name.

Case of JH
JH, a 23-year-old Tamil man studying in the United Kingdom, returned to Colombo in August 2012 for family reasons. A month later, while returning home from work, a white van pulled up and several men jumped out. Telling him he was needed for an investigation, they blindfolded him and drove him for over an hour to an unknown site. He told Human Rights Watch:

They removed my blindfold [and] I found myself in a room where four other men were present. I was tied to a chair and questioned about my links to the LTTE and the reason for my recent travel abroad. They stripped me and started beating me. I was beaten with electric wires, burned with cigarettes and suffocated with a petrol-infused polythene bag. Later that night, I was left in a smaller room. I was raped on three consecutive days. The first night, one man came alone and anally raped me. The second and third night, two men came to my room. They anally raped me and also forced me to have oral sex with them. I signed a confession admitting my links with the LTTE after the rapes.

Case of TJ
TJ, 19, returned to Sri Lanka after completing his studies in the UK. One evening in August 2012, TJ was returning home after visiting a friend in Vavuniya when a white van stopped near him and around five or six men in civilian clothes jumped out. They forced TJ inside the van, blindfolded him, and drove him to an unknown destination. He told Human Rights Watch:

They removed my blindfold and I found myself in a room. There were five men and one of them was in a military uniform. They started questioning me about my work with the LTTE in the UK. They asked me about my connections with the LTTE abroad. I did not respond and they started torturing me. First, I was slapped and punched. Then they began to torture me severely. I was beaten with batons, burned with cigarettes, and my head was submerged in a barrel of water. I was stripped naked during interrogation.

The beatings and torture continued the next day. I was only given some water in the morning. The next night, I was given my clothes and left in a small, dark room. One person entered my room that night. It was dark, I couldn’t see him. He banged my head against the wall, pushed my face against the wall and raped me

Case of GD
In November 2011, GD, a 31-year-old Tamil woman, was at her house in a Colombo suburb when four men in civilian clothes arrived. GD told Human Rights Watch they introduced themselves as CID officials and asked to inspect ID cards of all family members at her home. She said that they confiscated the ID card of her husband, who was abroad, and asked her to accompany them for questioning. She said:

I was taken to the fourth floor of the CID office in Colombo and kept in a room. I was not given any food or water. The next day, the officials, who included a uniformed armed official, photographed me, took my fingerprints, and made me sign on a blank sheet of paper. They told me that they had all my husband’s details and kept asking me to disclose his whereabouts. When I told them my husband was abroad, they continued to accuse him of supporting the LTTE. I was beaten with many objects. I was burned with a cigarette during questioning. I was slapped around and beaten with a sand-filled pipe. Throughout the beatings, they asked me for my husband’s details. I was raped one night. Two men came to my room in civilian clothes. They ripped my clothes and both raped me. They spoke Sinhala so I could not understand anything. It was dark so I couldn’t see their faces clearly.

Case of DS
DS’s father owned a photocopy shop in Jaffna and helped the LTTE by printing propaganda leaflets and distributing them. In 2005, when he was 13, the LTTE forcibly took him away for 10 days of compulsory military training. After returning to Jaffna, he worked for the LTTE by distributing pamphlets and participating in LTTE cultural festivals. In November 2009, when he was 17, a joint team of police and army officials arrested him when he was returning from school. He was blindfolded and taken to an unknown detention site. DS told Human Rights Watch:

They asked me to tell them all about my activities with the LTTE. They said that if I told them everything about my work, they would let me go. I refused to admit to anything. Then they started beating me. I was stomped with boots and punched. They then forced me to undress completely. I was hung upside down and burned with cigarettes. I was beaten with sand-filled pipes and wires. The officials beat the soles of my feet with rubber and forced a petrol-infused plastic bag on my head and tried to asphyxiate me.

One officer performed sexual acts in front of me. He then raped me. I lost consciousness. I was bleeding heavily from my anus. There was no toilet and I had to use a plastic bag. The officials who were questioning me did not let me sleep. They did not give me any food for the first two or three days. They fingerprinted and photographed me. I finally signed a confession document in Sinhala and admitted to everything they said.