UN Human Rights Council should investigate into the conflict in Sri Lanka

Revisiting Sri Lanka's bloody war

MARZUKI DARUSMAN, STEVEN RATNER and YASMIN SOOKA , IHT , March 3, 2012 Saturday

ABSTRACT

The U.N. Human Rights Council should create an investigative body to get at the truth of the conflict's final stages.

FULL TEXT

Even as attention is riveted on the bloodshed in Syria, another conflict, far more deadly, is belatedly attracting the notice it deserves.

Beginning this week, the U.N. Human Rights Council in Geneva has returned to an issue that has haunted it since 2009 - the bloody finish to Sri Lanka's civil war. That conflict ended on a stretch of beach in the country's northeast, as the remaining fighters of the Tamil Tigers and tens of thousands of traumatized civilians were surrounded by and surrendered to the Sri Lankan Army.

Sri Lankans and many abroad rejoiced at the defeat of a force that had routinely deployed terrorist tactics. But even as the government's military campaign was under way, it became clear that the cost in civilian lives from its attacks on the Tigers was enormous. Right after the war, the Human Rights Council, to the shock of many observers, passed a resolution praising Sri Lanka's conduct of the war. Sri Lanka's president, Mahinda Rajapaksa, promised Secretary General Ban Ki-moon at the time that he would address the question of accountability for violations against civilians.

When, a year later, the government had done nothing to carry out Rajapaksa's commitment, the secretary general asked the three of us to study the allegations of atrocities during the last stages of the war and Sri Lanka's response. In our report, we found credible evidence that both sides had systematically flouted the laws of war, leading to as many as 40,000 deaths - many multiples more than caused by the strife in Libya or Syria.

The bulk of that total was attributable to deliberate, indiscriminate, or disproportionate governmental attacks on civilians, through massive shelling and aerial bombardment, including on clearly marked hospitals.

Rather than tackling these allegations head-on through a truth commission or criminal investigations, Sri Lanka created a ''Lessons Learnt and Reconciliation Commission,'' whose mandate, composition and methods all cast serious doubt on its willingness to uncover what really happened in those fateful months.

When the commission issued its final report last November, it ignored or played down our report's conclusions and characterized civilian deaths as stemming from the army's response to Tamil Tiger shelling or cross-fire - as sporadic, exceptional and mostly inevitable in the heat of battle.

When it came time to proposing next steps for the government, it called for investigations by the same entities - the army and the attorney general - who have a track record of ignoring governmental abuses for decades.

The report had some welcome elements, too. It recognized some of the root causes of the war, as well as the responsibility of both the government and Tigers for civilian casualties. And it endorsed our view that Sri Lanka had a duty to provide truth, justice and reparations to victims; release detainees; and protect the state's besieged journalists.

Yet the fact is that numerous recommendations of prior commissions of inquiry have not been implemented by the government.

The Human Rights Council's members are currently looking at a draft resolution, circulating at the initiative of the United States, to demand action from Sri Lanka on uncovering the truth and achieving some real accountability. The United States deserves a great deal of credit for trying to get the council to move on this issue. It is time for the council to correct its embarrassing decision from 2009.

Yet such a demand is not enough. Given Sri Lanka's unwillingness to take concrete steps, the best way to get to the truth is for the council to create an independent investigative body to determine the facts and identify those responsible, as we recommended in our report.

For Sri Lanka to experience a true peace, rather than simply the peace of the victor, truth and accountability are essential. This is the lesson from states as varied as South Africa, Sierra Leone and Argentina. The lack of much outside interest in the bloodshed while it happened cannot be an excuse for continuing to ignore the situation. The international community must now assume its duty to ensure that Sri Lanka fulfills its responsibilities to all its people and to the rest of the world.

NOTES: is a former attorney-general of Indonesia. Steven Ratneris a law professor at the University of Michigan. Yasmin Sookais the executive director of the Foundation for Human Rights in South Africa.

US court (D.D.C.) dismisses lawsuit under TVPA against Sri Lanka president based on personal immunity

http://www.lawfareblog.com/2012/03/tvpa-lawsuit-against-sri-lanka-president-dismissed-after-administration-submits-delayed-suggestion-of-immunity/

TVPA Lawsuit Against Sri Lanka President Dismissed, after Administration Submits Delayed Suggestion of Immunity

by John Bellinger

On February 29, Judge Kollar-Kotelly of the District Court for the District of Columbia dismissed a lawsuit brought under the Torture Victim Protection Act against President Rajapaksa of Sri Lanka, based on a Suggestion of Immunity filed on January 13 by the Obama Administration. 

The suit against Rajipaksa was filed in January 2011 by families of individuals allegedly killed during the civil war in Sri Lanka by Sri Lankan security services under his command responsibility. 

the Administration’s delay in recognizing the immunity of a sitting head of state

The Administration delayed filing its Suggestion of Immunity for more than nine months after receiving a request for immunity from the Sri Lankan Government.  The Administration did not file until after Judge Kollar-Kotelly formally requested the views of the U.S. Government.

On January 13, 2012, the Department of Justice filed a Suggestion of Immunity (DO- not State Dept) asserting that “President Rajapaksa, as the sitting head of a foreign state, enjoys head of state immunity from the jurisdiction of U.S. courts in light of his current status.

President Rajapaksa is entitled to immunity from the jurisdiction of this Court over this suit.”  The Justice Department’s filing attached a letter from State Department Legal Adviser Harold Koh stating that the “Department of State recognizes and allows the immunity of President Rajapaksa as a sitting head of state from the jurisdiction of the United States District Court in this suit.”  Judge Kollar-Kotelly held that the Suggestion of Immunity was binding on the Court.

The Administration’s Suggestion of Immunity for Rajapaksa is consistent with longstanding State Department practice.  However, the Administration’s delay in recognizing the immunity of a sitting head of state is unusual and may be another indication that Obama Administration officials want to appear to be more supportive of human rights litigation in U.S. courts against foreign government officials. 

This is the second time the Administration has delayed in asserting immunity for a sitting head of a foreign state.  Last year, in an Alien Tort Statute case, the Administration waited for more than a year after receiving a formal request for immunity from the Rwandan government before filing a Suggestion of Immunity for Rwandan President Paul Kagame. 

A policy of delaying recognition of the immunities of foreign government officials in U.S. courts is likely to be viewed by other countries as inconsistent with international law norms and could have adverse reciprocal implications for U.S. government officials (including Obama Administration officials) who may be sued in foreign courts (for example, for drone strikes). 

(Disclosure: The Sri Lankan government consulted me for advice in this matter.)

http://www.bbc.co.uk/news/world-asia-17218697

US court dismisses lawsuit against Sri Lanka president

1 March 2012  

in her ruling she said that the dismissal was in "no way a reflection of the merits of plaintiffs' claims or defendant's defences"

The plaintiffs included families of students shot dead in the town of Trincomalee six years ago, and relatives of aid workers for a French organisation killed near there in August 2006.

No-one has been prosecuted over the two sets of killings.

The plaintiffs say they were killed by the security forces under Mr Rajapaksa's control but the government has sought to implicate the Tamil Tigers.

Also taking part in the lawsuit were relatives of a family killed as the military crushed the Tamil Tigers in 2009.

They allege the four people died in naval firing on displaced civilians in the government-declared no-fire zone.

Panel of experts finds credible reports of war crimes during Sri Lanka conflict – UN

http://www.npwj.org/ICC/Impunity-not-option-Sri-Lanka-crimes.html

Impunity not an option for Sri Lanka crimes

Brussels, Rome – 29 April 2011

The Panel of Experts established in June 2010 to advise Secretary-General Ban Ki-moon on accountability issues with respect to the conflict in Sri Lanka, comprised of Marzuki Darusman (Indonesia), Yasmin Sooka (South Africa) and Steven Ratner (United States), issued its report this week.  The panel has found credible reports of war crimes committed by both the Government and Tamil rebels and calls for genuine investigations into the allegations, first and foremost by the Sri Lanka authorities.

Statement by Alison Smith, Legal Counsel of No Peace Without Justice:

“No Peace Without Justice and the Transnational Nonviolent Radical Party welcome the report of the Panel of Experts as an important step in shedding light could be shed on the events in the final stages of the conflict in Sri Lanka.

“The report issued by the Panel of Experts finds that there are credible allegations of violations committed by both sides to the conflict, all of which require investigation and some form of accountability, be it through criminal prosecutions or other means, depending on the nature and severity of the violations. NPWJ and the NRPTT are satisfied that the methodology of information-gathering for the report, while –as the report acknowledges- falling short of fact-finding or investigations, resulted in a credible report, on the basis of which further investigations should be carried out so that individual responsibility can be determined.

“The obligation to put an end to impunity for these violations clearly rests with the Government of Sri Lanka, particularly since one side of the conflict was completely annihilated, all combatants killed and the leadership completely eliminated, while the other side is fully in control. While the Government of Sri Lanka has consistently objected to any international enquiry, this has not been matched by action by the Government to undertake credible or genuine investigations of those events itself.

“NPWJ and the NRPTT call on the Government of Sri Lanka to fulfill the recommendations of the Panel of Experts and respond to these serious allegations by initiating an effective accountability process beginning with genuine investigations. In this respect, there must be full investigations of the forces under the control of or associated with the Government, which appear to have committed the majority of violations, as well as the bloodiest, during the final stages of the conflict.

“Sri Lanka’s lack of action and apparent reluctance to do so to date, however, places a serious question mark over its willingness to end the impunity that currently exists for these very serious violations. If, therefore, Sri Lanka gives no concrete and realistic indication that it takes its responsibility seriously, the European Union and other members of the international community should support the establishment of a credible international investigation mechanism with a stronger mandate than the Secretary-General’s Panel of Experts through an appropriate intergovernmental forum. It is only through accountability and justice, by building a shared history and acknowledging the full truth of the civil war that Sri Lanka's deeply fractured society will be able to move beyond the conflict to a state of reconciliation and peace.”

http://www.un.org/apps/news/story.asp?NewsID=38187&Cr=sri+lanka&Cr1

Panel of experts finds credible reports of war crimes during Sri Lanka conflict – UN

Report

http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf

esp. II. Historical and political background to the conflict