Breaking News: The High Commissioner for Human Rights to Investigate the Situation in Sri Lanka

The Human Rights Council on Thursday issued a resolution (with a vote of 23 for, 12 against, and 12 abstentions) asking the U.N. High Commissioner for Human Rights to “investigate, assess, and monitor” the human rights situation in Sri Lanka particularly in light of the commission human rights violations and abuses during the civil war that ended in 2009.  The resolution is discussed here; the text is here; a draft of the resolution is here.  A particular focus will be the conduct of government forces in the brutal final battle that resulted in the collapse of the Liberation Tigers of Tamil Ealam (LTTE) in May 2009.  In the last stages of an almost 40-year civil war, upwards of 40,000 civilians were killed when designated civilian areas and shrinking no-fire zones were intentionally or indiscriminately shelled.  Emblematic was the notorious “white flag incident,” when surrendering LTTE leaders and their families (who had apparently sent messages to diplomats, mediators, and journalists of their intentions to lay down their arms after being told their surrender would be accepted) were reportedly massacred by the Sri Lankan Army on May 18, 2009.   Photographs have emerged that suggest that LTTE Chief Villupillai Prabhakaran’s 12-year old son was executed after being taken into custody and given a snack.  Other trophy videos obtained by Channel 4 in Great Britain show apparent summary executions of bound and naked Tamils.  Non-governmental organizations, such as the International Crisis Group, have painstakingly documented the commission of grave crimes committed by both sides throughout the civil war.

The resolution—which was sponsored by the United States (see Secretary Kerry’s statement here) and the United Kingdom among others with over 40 co-sponsors—passed notwithstanding strong opposition from Sri Lanka itself and the abstention of India, which had supported three prior resolutions (in 2009, 2012, and 2013) on Sri Lanka before the Council that urged national investigations into abuses committed during the civil war.  The resolution empowers the Council to

undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka [between 2002-9]…

The somewhat awkward verbiage reflects that fact that some states continue to argue that:

  1.  non-state actors cannot commit human rights “violations” (because they are not treaty signatories) and
  2. the Human Rights Council has “jurisdiction” over human rights law but not international humanitarian law.

The called-for independent inquiry follows on the heels of a Panel of Experts that was appointed on June 22, 2010, by U.N. Secretary General Ban Ki Moon:

  • To advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the conflict in Sri Lanka.
  • To advise him on the implementation of the commitment on human rights accountability made in the Joint Statement issued by President Rajapaksa of Sri Lanka and the Secretary-General during the latter’s visit to Sri Lanka in May 2009.
  • To look into the modalities, applicable international standards, and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.
  • To be available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing the prior commitment.

Notably, the POE was not technically a fact-finding mission, but was rather charged with advising the Secretary-General on a range of accountability issues.  The POE, which received little cooperation from the government of Sri Lanka, released its final report on April 12, 2011.  The report, available here, concludes that there are a number of credible allegations that both the LTTE and the Government of Sri Lanka committed serious violations of international humanitarian and human rights law, some of which could amount to war crimes and crimes against humanity.  Indeed, the POE concluded that

the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.

The report noted grave discrepancies between the government’s evaluation of the war and other credible accounts, which recount the persecution of the civilian population (including through acts of rape and summary execution), violations of the principles of distinction and proportionality (such as the shelling of safe havens and hospitals), and intentionally blocked humanitarian aid. The POE also documented abuses by the LTTE, including the shooting of fleeing civilians, forced labor/recruitment, the use of human shields, and the enlistment of child soldiers. In terms of recommendations, the POE advocated that:

  • The government should commence genuine investigations into alleged violations, facilitate the return of human remains, offer psychosocial support for survivors, repeal emergency legislation, and release detainees (in both detention and “rehabilitation” facilities) or at least allow them access to counsel etc.
  • The government should initiate a genuine process to examine the root causes of the conflict and issue a formal acknowledgment of its role in abuses during the final stages of the war.
  • The government should institute a reparations program.
  • The Secretary-General should establish an independent international mechanism to monitor and assess the domestic accountability process.
  • The United Nations should also review its own conduct during the war in Sri Lanka.

The latter item concerns a range of conduct, including the controversial decision of United Nations to withdraw its staff from Sri Lanka, thus undermining its ability to provide humanitarian assistance; the U.N.’s under-reporting of violations committed by the Government; and the U.N.’s failure to hold a single meeting on the situation in Sri Lanka as the civil war was coming to a deadly close.  Following this particular recommendation, the United Nations completed a highly critical internal review headed by Charles Petrie.  The final report describes a systemic failure of the United Nations during the final stages of the civil war to carry out its mandate to protect the civilian population.

Meanwhile, Sri Lanka established its own domestic inquiry mechanism—the Lessons Learned and Reconciliation Commission (LLRC)—and charged it with investigating events between 2002 and May 2009.  The LLRC’s report, which was released on December 16, 2011, has been commended for acknowledging grievances and for making credible recommendations on the need to bring about demilitarization, protect the freedom of expression, undertake land reforms, and implement a range of rule of law and governance reforms. It also acknowledged some civilian deaths (a departure from the standard government line) and the need for some measure of accountability for acts of summary execution, disappearances, and deliberate attacks on civilians.  That said, Amnesty International described the LLRC’s inquiry as “fundamentally flawed”; the POE was also critical of the LLRC from the perspective of the latter’s impartiality, independence, mandate, methodology, and results. While the government developed a national action plan to implement the LLRC recommendations, as promised, advocates have argued that there has been little concrete progress.   The resolution from the Human Rights Council echoes these concerns, averring that:

the national plan of action and the [LLRC’s] report do not adequately address serious allegations of violation of international human rights law and international humanitarian law…

In addition, the U.S. State Department submitted several statutorily-mandated reports to the U.S. Congress (see here (2012 report), here (2012 factual supplement), here (2010), and here (2009)) identifying significant allegations of violations and the failure of the Government to implement any form of accountability.

Fast forward to Thursday’s vote.  On the eve of the vote, the members of the POE penned an op-ed reviving their call for just such an investigative mission, arguing that it would

spark new hope for reconciliation.

Indeed, members of the Human Rights Council, including the United States, have long argued that a lasting peace will remain elusive without meaningful steps to foster national reconciliation and to ensure some measure of accountability for the commission of grave crimes by all sides. Stay tuned for further coverage.  Reports of acts of retaliation against human rights defenders are already emerging.

For materials generated by the United Nations on the situation in Sri Lanka, see here. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).