European Center for Constitutional and Human Rights – Study on Criminal Accountability in Sri Lanka as of January 2009, June 2010

The decades-long conflict between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) greatly intensified in early 2009. In the last few months of this conflict there have been widespread allegations of massive human rights and international humanitarian law violations.Numbers and reports of violations widely vary. As of May 2009 more than 40,000 civilians were reported dead and almost 300,000 were reported as being interned in camps. By not sparing any civilian, both the Sri Lankan government‘s military strategy to fight the LTTE in northern Sri Lanka as well as the LTTE‘s counterstrategy, constitutes not only a violation of international law and standards, but also amounts to criminal conduct.

Many attacks on civilians show a specific pattern. Hospitals were continuously shelled in the conflict zone. Human Rights Watch lists thirty hospitals as being shelled during a period of less than four months. Other shelling hit declared no-fire-zones, where women, children and the elderly gathered for shelter. On the 9th and 10th of May 2009, a small beach area near Mullaitivu, a declared no-fire-zone,was attacked while 50,000 residence gathered, leaving hundreds of civilians dead in a single attack.

Prisoners, surrendered as well as captured persons were shot on the spot or simple disappeared. The infamous white-van-syndrome stands as a symbol of disappearances, in many instances, a white arrived, a person was forced to enter and was never seen again. Around a dozen senior LTTE-leaders were killed between 16th and 18th of May 2009, despite security guarantees at their surrender.

The populations of entire villages were forced to move to camps with harshly restricted exit, devastating conditions and no access for international observers. Civilians in such camps are routinely subjected to: sexual violence against women and girls, mistreatment as well as refusal of humanitarian aid, food, water, means of sanitation and medical supplies. Around forty camps were constructed in the northern region, Manik Farm being the largest. Here at Manik Farm, the shortage of water and sanitation are especially dire causing the deaths of many weak and elderly people.

These acts amount to numerous crimes under international law, which is applicable to the conflict in Sri Lanka. Severe human rights violations amount to crimes against humanity, including: murder, extermination, deportation, severe deprivation of physical liberty, sexual violence, persecution and enforced disappearances. Grave breaches of international humanitarian law and the Geneva Conventions constitute war crimes. War crimes are defined inter alia as violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, outrages upon personal dignity, the taking of hostages, executions, gender crimes and displacement of the civilian population, as well as attacks intentionally directed against the civilian population, humanitarian aid workers and operations, hospitals and churches.

Criminal accountability is not only established by the direct perpetrator of the crime, but also by persons commanding, planning and overseeing attacks as well as those who fail to investigate and prosecute war crimes. The entire military chain of command, as well as the role of the civil administration must be investigated. The crimes listed above are some of the most serious crimes under international law and sentences can amount to life-long imprisonment.

International observers still do not have access to large portions of northern Sri Lanka. The former conflict zone is completely under control of the Sri Lankan military. The displacement of the civilian population is inappropriate. Homes are being destroyed, people from other regions are resettling the evacuated villages, cultural heritage, as well as, religious symbols are intentionally being destroyed,while the Tamil language is disappearing.

Within Sri Lanka numerous commissions of inquiry failed to investigate these findings during the last decade. At this time there are no genuine (independent, effective, prompt, gender- sensitive and impartial) investigations or fact-finding missions established. There is no sign of improvement regarding national efforts to investigate these facts. Moreover, there have been attempts to destroy important evidence of these conditions.

International investigations or fact-finding missions need to be mandated by a competent international body. The International Criminal Court lacks jurisdiction, but could be activated if the United Nations Security Council refers the situation of Sri Lanka. The United Nations Human Rights Council was blocked by many states supporting the Sri Lankan government in its decision on Sri Lanka in May 2009. Positions of governments might slightly change, depending on new facts on crimes committed and public pressure. The United Nations Security Council failed to address the conflict in early 2009.

Today, the Security Council does not regard the situation as a threat to peace, thus it is not a matter of concern. The on-going devastation in northern Sri Lanka might lead to a change in the Security Council‘s view, because of the lack of a transition process, from war to peace after the conclusion of a conflict, constitutes a further threat to future peace.

The United Nations Secretary General established a three person expert panel to advise him regarding possible further steps to curtail the violence. The panel needs all of the support available to enact further steps. Both the United Nations Special Rapporteur on extrajudicial killings and the United Nations Special Rapporteur on torture are already concerned with single issues in this conflict, and would therefore provide an ideal mechanism to focus on specific patterns of incidents. Further, other Special Rapporteurs as well as the Special Representative on sexual violence in conflicts should take up single issues of the conflict Only a few months after the conflict, important evidence has been lost and the international community and public forgets the countless civilian whose deaths spot the northern Sri Lankan region after one of the most merciless military campaigns in the new century. The Sri Lankan government attempts to install their regime without the fear of being brought to justice. Repression against the opposition and free media occur on a daily basis. More than a hundred thousand, of mostly Tamil civilians, are spread around the globe or left behind, without a home in their own country.

The few steps taken by the UN Secretary General as well as by UN Special Rapporteurs need to be supported to move towards an independent fact-finding commission. Victims and witnesses who were able to leave the country can give their account of what has happened. Fearless human rights workers and journalists in Sri Lanka need the international support to be able to report from this region. Thus,evidence can be secured step by step. As is the case in many other countries, even many years after a conflict, perpetrators of the most serious crimes are held accountable.

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