US-Außenministerium legt Kongress den Bericht über die Verletzungen der Menschenrechte in Sri Lankas vor
Von der LTTEwatch-Redaktion vom 5. April 2012
Washington – Das United States Department of State (Außenministerium) hat einen umfassenden Bericht des Office of Global Criminal Justice (Büro vor weltweite Kriminal Justiz) und seines Special Rappoteur Stephen Rapp vorgelegt, der kürzlich in Sri Lanka war. Der umfassende Bericht setzt sich mit Sri Lankas Rechenschaftspflicht und angeblicher Verletzungen der internationalen humanitären Gesetze während des drei Jahrzehnte langen Krieges mit den Tamil Tiger Terroristen befasst.
Der Bericht mit dem sperrigen Titel „Maßnahmen, die von der Regierung von Sri Lanka und internationalen Gremien ergriffen werden, um Ermittlung durch zuführen und Übeltäter zur Rechenschaft zu ziehen wegen Vergehen gegen das humanitären Völkerrecht und die Menschenrechte“ wurde veröffentlicht und an den Kongress überreicht; er erklärt sehr detailliert über Fragen des humanitären Völkerrechts und der internationalen Menschenrechtsnormen im Allgemeinen – und im „Fall“ Sri Lanka insbesonders.
Aus dem Büro des Rapporteurs Rapp war dazu zu vernehmen, dass der Bericht keine Anklage sei und und auch die vorgetragenen, konkreten Fälle nicht gerichtlich bewiesen seien. Der Bericht – und sein umfangreicher Hintergrund-Anhang – soll lediglich bestimmte Probleme beleuchten und hinterfragen.
In dem Bericht wird unter anderem auch der LLRC-Bericht kritisch betrachtet – der „White Flag-Fall“ müsse insbesonders untersucht werden, allein wegen der deutlichen Diskrepanzen zwischen der Bewertung des Vorfalles durch die LLRC und das Experten-Panel von UN-Generalsekretär Ban Ki Moon.
(Noch-) Außenminister G.L. Peiris sollte sich beide Texte gut durchlesen, bevor er sich mit der US-Außenministerin Hillary Clinton trifft – es scheint, dass dieser Text durchaus die Richtung zeigt, in die es für Sri Lanka und seine möglichen Kriegsverbrecher geht.
Nachfolgend, der Bericht im Original-Wortlaut, danach die Stoffsammlung zum Thema:
Report To Congress on Measures Taken by the Government of Sri Lanka and International Bodies To Investigate Incidents During the Recent Conflict in Sri Lanka, and Evaluating the Effectiveness of Such Efforts
Office of War Crimes Issues
August 11, 2010
This report is submitted pursuant to the Joint Explanatory Statement accompanying the Consolidated Appropriations Act, 2010 (P.L. 111-117), which directed “the Secretary of State to submit, not later than 180 days after enactment of this Act, a report supplementing the Secretary’s October 21, 2009, report on crimes against humanity in Sri Lanka detailing what, if any, measures have been taken by the Government of Sri Lanka and international bodies to investigate such incidents, and evaluating the effectiveness of such efforts.”
The October 2009 report to which this Statement refers compiled over 300 reports of incidents alleged to have occurred during the final months of the 25-year armed conflict between the Government of Sri Lanka (GSL) and the Liberation Tigers of Tamil Eelam (LTTE) that may constitute violations of international humanitarian law (IHL) or crimes against humanity and related harms. The October 2009 report did not, nor was it intended to, provide a comprehensive portrayal of the conflict. Instead, that report focused on alleged incidents that occurred during a period of especially intensive fighting from January through May 2009.
The categories of reported incidents detailed in the October 2009 report included allegations of forcible recruitment and unlawful use of children in armed conflict; harms to civilians and civilian objects resulting from shelling and other combat activities; killing of captives or combatants seeking to surrender; enforced disappearances; and the denial of food and medical supplies to civilian populations. Pursuant to the Congressional directive, the current report details and assesses the effectiveness of any efforts undertaken by the GSL and international bodies to investigate the aforementioned types of alleged violations of international law and related harms.
II. Executive Summary
• Since the release of the October 2009 report, the principal measures the Government of Sri Lanka has taken to investigate incidents of alleged violations of international law have been the appointment of two bodies, the “Group of Eminent Persons” and the “Commission on Lessons Learnt and Reconciliation” (LLRC). The Department of State concludes that the Group of Eminent Persons was ineffective. The LLRC is less than halfway through its six month term (it was established May 14, 2010). Initial actions taken by the Government of Sri Lanka, including aspects of the naming of commissioners and publication of terms of reference detailed in this report, have raised concerns regarding the LLRC’s mandate and its independence. Accordingly, the Department of State will continue to evaluate whether the LLRC is acting in accordance with best practices derived from broad experience as well as utilizing its powers as described in the Special Presidential Commissions of Inquiry Law of 1978.
• A three-person Panel of Experts, which the United Nations has stated is not an investigatory body, was appointed by UN Secretary General Ban Ki-moon on June 22, 2010, to advise him on the implementation of the commitment on human rights accountability made in a Joint Statement issued by Sri Lankan President Rajapaksa and UN Secretary General Ban in May 2009. Following a disruptive protest at the United Nations’ offices in Sri Lanka attributed to a senior Government of Sri Lanka official, the U.S. Government again urged the GSL to take advantage of this resource.
• Both the Government of Sri Lanka and the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions analyzed a video that purported to show Sri Lankan Army soldiers executing two bound and nude Tamil captives. The Government of Sri Lanka concluded that the video was “fake”; the UN Special Rapporteur concluded that there is strong evidence to suggest the video is authentic.
III. Relevant principles for assessing effectiveness
In evaluating the effectiveness of measures taken by the GSL and international bodies to investigate incidents detailed in the previous report submitted to Congress, the Department of State has taken into account several considerations. First, the GSL must abide by its obligations under international law, which can include subjecting to criminal processes individuals credibly alleged to have committed certain serious violations of international law. Pertinent treaties to which Sri Lanka is a party include the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), and the 1949 Geneva Conventions, Common Article 3 of which applies to non-international armed conflicts, as well as relevant customary international law obligations, which in the area of international humanitarian law include the principles of distinction and proportionality to protect innocent civilians from harm.
There are a variety of ways in which a government may undertake effective investigations and other accountability processes. While some international law conventions call for criminalization of certain human rights violations and serious violations of international humanitarian law, other routine administrative and special investigative processes, such as commissions of inquiry (CoI), can play an important role in establishing a factual record of events. However, such commissions may not be an adequate substitute for prosecutions.
Although CoIs and other investigative bodies are often implemented at the national level, in some instances governments seek international participation to bring specialized expertise into, and help foster public confidence in, so-called “hybrid” investigations. Fully internationalized processes undertaken without the relevant government’s consent have generally been pursued by the international community only when the State concerned lacks the capacity, political will, or both, to undertake an independent, credible, and effective inquiry itself.
Whether domestic, hybrid, or international, to be credible and effective, investigative processes should operate consistent with best practices derived from extensive experience. Because the principal form of investigative process instituted to date by the GSL is a CoI, the rest of this section focuses on best practices for such commissions, many of which are outlined in a statement by the United States Ambassador to the United Nations, Susan Rice, on May 10, 2010. During a press appearance with Sri Lankan External Affairs Minister G.L. Peiris during his May visit to Washington, Secretary of State Hillary Clinton welcomed President Rajapaksa’s establishment of the commission and conveyed U.S. expectations that the commission would follow established best practices as laid out by U.S. Ambassador Susan Rice.
The following discussion, which elaborates on and is consistent with the Rice and Clinton statements, is not intended to present a comprehensive list of criteria for establishing a CoI but rather to highlight several core areas that should be considered in assessing such a process.
1. Independence and Competence—A CoI should be independent, impartial and competent. It should be established in consultation with all communities affected by the subject of its inquiry and be composed of members who do not have, and are not perceived as having, an interest in the outcome of the commission’s work. The commission’s members must have the requisite expertise and competence to carry out the mandated inquiries effectively. For example, if the core allegations to be examined include violations of the laws of war, commissioners should include experts in international humanitarian law. Likewise if sexual and gender-based violence is suspected and it will therefore be important to encourage victims to provide testimony, it may be beneficial to have gender-balanced commission members and/or staff.
2. Adequate Mandate and Authority—A CoI’s mandate should be adequate to empower and direct the commission to evaluate the harms that may have occurred in light of domestic and international law. The mandate should not restrict the commission’s scope in ways that compromise its ability to perform the function for which it was established (for example, by prohibiting it from examining certain categories of individuals or types of alleged violations of international law) and should provide the necessary authority to obtain all information the commission may need to develop its findings, including the power to compel production of documents and witness testimony from State authorities, and to examine confidential information, where appropriate.
3. Witness and CoI Protection—To help ensure that commission members can act independently and that witnesses are able to testify without fear of reprisal, both members and witnesses should enjoy adequate protection and be provided security where necessary. Adequate protection may include holding closed hearings if and when necessary. Adequate protection and security are particularly important when CoIs are established in countries that have recently emerged from conflict or when State military or security services are alleged to be complicit in crimes that the commission will examine. The credibility of a CoI’s inquiry and findings will be determined in part based on the extent to which it is able to obtain relevant testimony from victims and witnesses. To this end, a witness protection program should have adequate financial and personnel resources, with an independent protection division (rather than relying on regular domestic police forces), and should be open to foreign expertise and assistance. Officials who leak information about protected witnesses should be investigated and, if appropriate, subjected to criminal proceedings.
4. Adequate Resources—CoIs should receive adequate (1) resources, including sufficient and transparent funding; (2) logistical support, including transportation, office space and office equipment; and (3) human support, including personnel with the necessary technical expertise, to carry out their work. Resource levels for a commission are often considered an indicator of the real political will of a government to address the matter that the commission was established to examine.
5. Public Report—A CoI should issue a public and timely report of its findings, including its recommendations. Although some information provided to a CoI may require confidentiality, this should not prevent the commission from issuing as complete a public version of its findings and recommendations as possible.
6. Government Response—Finally, a key indicator of a CoI’s effectiveness is whether the government responds in a timely and transparent fashion to its recommendations and undertakes prosecutions and takes other accountability measures as appropriate.
IV. Measures Taken by the GSL
Since the October 21, 2009 release of the Department of State’s “Report to Congress on Incidents during the Recent Conflict in Sri Lanka,” the principal measures the Government of Sri Lanka has taken to investigate incidents of alleged violations of international law have been the appointment of two commissions, the “Group of Eminent Persons” and the “Commission on Lessons Learnt and Reconciliation” (LLRC). The first did not produce any discernible results; the second, established in May 2010, has only recently commenced operations and is scheduled to provide its findings by November.
The only other investigative measure undertaken by the GSL that falls within the scope of this report and of which the Department of State is aware is an analysis of a video purporting to show Sri Lankan Army members engaged in the extra-judicial killing of bound captives. Sri Lankan officials have not informed the Department of State of any other investigations or prosecutions conducted in relation to the over 300 alleged incidents catalogued in its October report to Congress.
1) Group of Eminent Persons
Immediately following the release of the October 2009 Department of State report to Congress, Sri Lankan President Mahinda Rajapaksa appointed a “Group of Eminent Persons” to look into the allegations in the U.S. report and prepare a report for him with its recommendations. The group’s report was initially due to President Rajapaksa on December 31, 2009, but the due date was subsequently delayed to April 2010 and then again to July 2010. The group did not submit a report and has been subsumed by the recently-formed Commission on Lessons Learnt and Reconciliation (LLRC).
Evaluation of effectiveness
The Department of State concludes that the Group of Eminent Persons was ineffective. The Department of State received conflicting reports about the progress of the Group’s inquiry, and confirmed in May that it had not been active for months and that its mandate had been subsumed by the new commission. The Department of State is not aware of any findings or reports of the Group. The Group did not appear to investigate allegations or to make any recommendations pursuant to its mandate.
2) Lessons Learnt and Reconciliation Commission (LLRC)
On May 4, 2010, Sri Lankan Prime Minister D.M. Jayaratne informed Parliament that the GSL intended to establish a broad-based „reconciliation commission“ to cultivate ethnic unity between Sinhalese and Tamils, award compensation to war victims, and prevent future discontent among the minority population along the lines of that which led to the rise of the Eelam independence movement and the LTTE. The Ministry of Defense announced on May 6 that the new commission would “search for any violations of internationally accepted norms of conduct in such conflict situations, and the circumstances that may have led to such actions, and identify any persons or groups responsible for such acts.”
On May 15, President Rajapaksa issued a warrant to establish an eight-member commission under the Special Presidential Commissions of Inquiry Law of 1978. The warrant did not explicitly direct the commission to identify violations of internationally accepted norms in conflict situations or to identify those responsible. Instead, the Lessons Learnt and Reconciliation Commission was charged to “inquire and report on the following matters that may have taken place during the period between 21st February 2002 and 19th May 2009, namely:
i. the facts and circumstances which led to the failure of the ceasefire agreement operationalized on 21st February 2002 and the sequence of events that followed thereafter up to the 19th May 2009;
ii. whether any person, group, or institution directly or indirectly bear responsibility in this regard;
iii. the lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence;
iv. the methodology whereby restitution to any person affected by those events or their dependents or to heirs, can be effected;
v. the institutional administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of this Warrant.”
The warrant also appointed the commission members and required the commission to transmit a report to the President within six months. Since then, the Government of Sri Lanka has clarified the mandate of the LLRC in private conversations with U.S. Government officials (although it has not yet done so publicly).
On June 10, the Sri Lankan Ministry of Defense announced that President Rajapaksa had met with the members of the Commission on Lessons Learnt and Reconciliation on June 4. The Ministry’s announcement said that the President had informed commission members they had “the responsibility of acting in a forward-looking manner, through focus on restorative justice designed to further strengthen national amity.” The statement further noted that the President encouraged the members to “utilize their wide-ranging mandate to fulfill this objective, while always safeguarding the dignity of Sri Lanka.” Members were also briefed on the financial, organizational, and secretarial support in place, and were told that the facilities of the Kadirgamar Institute for International Relations and Strategic Studies in Colombo, an international affairs think tank functioning under the Ministry of Foreign Affairs, were available for their work.
Media outlets reported on July 3 that commission members held regular meetings in the month of June, initially to focus on institutional matters to make preparations for public hearings. It was also reported that the LLRC received an initial allocation of 10 million rupees, expected to commence public hearings in August, and has published notices in three languages calling for written representations to the commission by August 18 on matters related to its mandate.
Evaluation of effectiveness
While the defeat of the LTTE and the end of the civil war, coupled with the government’s sizeable electoral majority, offers the GSL an opportunity to ensure that this latest CoI effort proves more successful than past efforts, evaluating the effectiveness of the CoI should first take into account the history of failings of a series of past CoIs established in Sri Lanka. For example, a 2006 commission charged with investigating sixteen allegations of serious human rights violations ultimately partially investigated only seven of the cases and did not identify any of the perpetrators. An International Independent Group of Eminent Persons (IIGEP) invited by President Rajapaksa to observe the local commission resigned after concluding that the GSL lacked the political will to properly pursue the investigations and that the commission was not meeting international standards in areas such as witness protection, transparency, and financial commitment to the commission. The IIGEP was especially critical concerning a severe conflict of interest by the Attorney General’s office, which both represented the GSL and led questioning during hearings. The then incumbent Attorney General, who in that capacity was criticized for obstructing the IIGEP’s work, has been appointed as Chairman of the LLRC.
GSL officials have assured the Department of State that the LLRC will conduct itself according to the principles laid out by Ambassador Rice and Secretary Clinton. However, the terms of reference are ambiguous as to what types of harms they cover and whether the investigation is linked to violations of international law. While the terms of reference do not explicitly state that the LLRC will investigate alleged violations of international law, they also do not explicitly rule them out.
While the LLRC has only just begun its work, there are signs of initial activity. Terms of reference have been established, members selected, facilities provided, and funding allotted. Members have held initial meetings and announced public hearings in affected areas. Yet some initial steps have raised concerns, which the United States will continue to monitor as the LLRC moves forward in its work. These include questions concerning the independence and impartiality of some members of the commission, including the former Attorney General who served in that capacity during the 2006 CoI and is now chair of the new LLRC. His relationship to the government and his involvement in the failure of the previous commission, which also sought to investigate incidents of alleged government involvement in violations by security forces, could compromise the independence and impartiality of the LLRC.
In addition to monitoring developments, the Department of State will continue to evaluate whether the commission is acting consistent with other best practices derived from broad experience as well as utilizing its powers as described in the Special Presidential Commissions of Inquiry Law of 1978. Specific benchmarks for the commission associated with such an evaluation may include, but not be limited to, the list of criteria from Section III, namely:
• Independence and Competence:
◦ Taking steps to ensure the independence and impartiality of commission members, so that the conflicts of interest alleged regarding the conduct of past CoIs do not resurface
◦ Consulting with all communities, including the minority Tamil community, affected by the scope of the inquiry
◦ Ensuring that CoI members are identified who have the requisite expertise and competence to carry out the mandated inquiries effectively
• Adequate Mandate and Authority:
◦ Publicly clarifying the specific avenues of inquiry the CoI will pursue in the context of its broad mandate, including affirmatively stating that it will investigate the specific allegations of violations of international law from January to May 2009
◦ Using its granted powers to compel testimony if necessary
◦ Taking testimony from local government officials in the North as well as from current and former senior government and military officials
◦ Requesting and receiving documentation, including classified information, as appropriate, from federal government agencies and the military
◦ Considering information, analysis, and recommendations from various expert resources, which have become available since the Department’s October 2009 report (including the Panel of Experts appointed by the United Nations Secretary-General in June)
• Witness and CoI Protection:
◦ Establishing an effective witness protection program
◦ Holding private hearings in addition to public hearings as necessary to encourage witnesses to provide testimony
◦ Seeking testimony from persons abroad, in particular from witnesses and victims who were located in the North from January to May 2009
◦ Investigating and prosecuting, as appropriate, individuals who leak information about protected witnesses
• Adequate Resources:
◦ Obtaining adequate logistical support, including transportation, office space, and equipment
◦ Hiring investigators and other qualified support staff that include women and minorities
◦ Hiring independent lawyers not connected to government agencies that may have an interest in the outcome of the commission’s work
• Public Report: Issuing a timely public report of CoI findings and recommendations
• Government Response: The degree to which the government responds to the CoI’s recommendations
Legislation regarding witness protection was introduced in the last session of Parliament, and the GSL has said it will be re-introduced during the current parliamentary session. Immediate establishment of a viable mechanism for witness protection, irrespective of whether Parliament passes related legislation, will be crucial to the effectiveness of the LLRC. Experience in other countries has shown that absent such a program, witnesses, especially those victimized by recent conflict, are often unlikely to come forward due to fears of arrest, personal harm, or harm to their families. In Sri Lanka, those who come forward publicly to speak to or criticize government actions also run the risk of being branded LTTE sympathizers, a legitimate concern as shown by certain statements of GSL officials noted below, heightening the likelihood of reprisal. Provided other concerns noted in this section are also addressed, a credible witness protection program could serve to help build confidence among Sri Lankans in the credibility of the commission and encourage witnesses and victims to come forward, both of which are necessary conditions for the LLRC to be effective.
In addition, the extent to which the GSL consulted the Tamil community during the establishment of the commission and selection of its members is unclear. The extent to which such consultations took place or were sufficient could impact whether the LLRC adequately investigates the concerns of those communities and receives broad-based support across affected communities for its inquiry and ultimate findings and recommendations. Consultations with the Tamil community going forward on the work of the LLRC would help address any insufficient engagement with them during the establishment phase.
Public statements by senior officials, such as President Rajapaksa’s brother, Defense Secretary Gotabhaya Rajapaksa, have prompted concern that the government may limit the scope of the LLRC’s inquiries and/or access to witnesses or otherwise undermine its effectiveness and that the GSL may not be committed to complying with LLRC recommendations. During a BBC HARDtalk interview, the Defense Secretary threatened to execute former Army chief General Sarath Fonseka for treason following statements by General Fonseka that senior GSL officials may have issued orders that could be construed as war crimes and that he would be willing to testify before an international commission about the conduct of security forces. In early February 2010, the Defense Secretary stated that he would not allow “any investigations in this country. There is no reason. Nothing wrong happened.” These statements could undermine the effectiveness and credibility of the LLRC and are concerning to the United States.
V. Measures taken by international bodies
1) United Nations Secretary-General Advisory Panel
On June 22, United Nations Secretary-General Ban Ki-moon appointed a three-person Panel of Experts to advise him on the implementation of the commitment on human rights accountability made in a Joint Statement issued by President Rajapaksa and Ban during the latter’s May 2009 visit to Sri Lanka.  The panel members are Marzuki Darusman of Indonesia, Yasmin Sooka of South Africa, and Steven Ratner of the United States. The panel will 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. The Secretary-General has emphasized that the primary responsibility for investigating alleged violations during the conflict in Sri Lanka rests with the GSL. The United Nations has stated that the panel is not tasked with investigating individual allegations of misconduct. Indeed, the Secretary-General’s spokesperson noted in a statement that “the panel will be available as a resource to Sri Lankan authorities should they wish to avail themselves of its expertise in implementing the commitment.” 
The United States welcomed the appointment of the UN Panel of Experts and strongly urged the GSL to take advantage of its expertise. France, Norway, the United Kingdom, Sweden and others have similarly come out in support of international involvement with respect to moving forward with accountability in Sri Lanka, including strong statements of support for the UN Panel of Experts. Sri Lankan Minister of External Affairs G.L. Peiris, however, issued a response calling the panel “an unwarranted and unnecessary interference with a sovereign nation.” Russia and China also criticized the Secretary-General’s decision. The Sri Lankan External Affairs Minister announced that members of the panel would not be granted visas to go to Sri Lanka (were they to apply) and subsequent demonstrations – orchestrated by a Cabinet minister – at the UN compound in Colombo on July 6-9, 2010, that disrupted the normal functioning of the UN offices suggest the GSL is disinclined toward utilizing the Panel of Experts as a resource, though the United States continues to urge it to do so.
Evaluation of effectiveness
It is too soon to assess the ultimate effectiveness of the Panel of Experts. There has been initial progress, with a mandate established, members selected, and funding source determined. While it seems unlikely at this time that the GSL will utilize the panel’s expertise, it appears its mandate is such that its advisory role for the Secretary-General will not necessarily be compromised by being unable to travel to Sri Lanka for meetings with GSL officials. Additionally, if the protests at the UN compound in Colombo are indicative of a willingness by officials within the GSL to now and in the future seek to intimidate and disrupt the work of local UN officials, it would suggest a determination on the part of the GSL not to cooperate with the panel.
VI. Other investigative measures by the GSL and international bodies
1) Review of alleged extra judicial killing video:
In late August 2009, UK Channel 4 News broadcast a video that purported to show Sri Lankan Army soldiers executing two bound and nude Tamil captives. Journalists for Democracy in Sri Lanka, the original source of the video, claimed that the killings had been filmed in January 2009 by a Sri Lankan soldier using a mobile phone camera.
The GSL commissioned four experts to evaluate the authenticity of the footage, and on September 7, 2009, issued a response that set forth the experts’ conclusion that the video’s most sensational elements were fabricated. On September 15, 2009, the GSL reported to the UN Human Rights Council claiming that four separate investigations scientifically determined that the video is “fake.” The “Consolidated Response of the Government of Sri Lanka to the Telecast by Channel 4 News of the United Kingdom on 25 August 2009 of a Video of Supposed Extra-Judicial Executions in Sri Lanka” explained that the Government’s conclusion was based upon the following factors:
• The discharged weapon used in the video showed no recoil.
• The lack of audio and video synchronization showed manipulation of the video footage.
• The second victim moved unnaturally after being shot.
• Wind could be heard in audio but not seen in the video.
• The video was probably recorded on a digital camcorder, not on a mobile phone.
Philip Alston, the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions, welcomed the GSL review of the video and attention to the issue. He noted in particular the promptness of the GSL’s action, which occurred within two weeks of the information becoming available. However, Alston stated that he was not in a position to conclude that the GSL’s investigation was thorough, as he had not seen the original version of three of the four expert investigations. He also expressed concern regarding the impartiality of the GSL experts, two of whom were members of the Sri Lankan Army (the entity whose actions had been called into question).
Professor Alston commissioned a separate independent group of forensic experts to analyze the video, and in January 2010 issued a report produced by these experts. Their findings countered those of the GSL experts, and concluded that there is strong evidence to suggest the video is authentic. Specifically, they concluded:
• The discharged weapon had a visible recoil consistent with firing live ammunition.
• Audio and video can be unsynchronized based on several variables, and the synchronization in the video was well within acceptable limits.
• The second victim’s movement was entirely consistent with the way in which he apparently was shot.
• Several places in the video showed clear evidence of wind.
• The metadata retrieved from the video was consistent with multimedia files produced by mobile phones with video recording and would have been very difficult to alter.
Evaluation of effectiveness
The Department of State notes the concerns of the Special Rapporteur about possible conflicts of interest and notes that best practices would dictate that such an inquiry should have been undertaken by individuals without an interest in the outcome of the forensic analysis.
The most significant steps taken by the Government of Sri Lanka to investigate alleged crimes against humanity, violations of international law, and related harms have been its establishment of two commissions. The first, the Group of Eminent Persons, concluded its work without issuing a report and, in the judgment of the Department of State, was ineffective. The Department of State welcomed the establishment of the second body, the Lessons Learnt and Reconciliation Commission. This report notes several aspects of its constitution and mandate that are of concern. Until further steps are taken, it is too early to determine whether the LLRC will be effective. The United States encourages the Government of Sri Lanka and the LLRC to strive to act in accordance with best practices derived from broad experience and outlined in this report.
 Like the present report, the October 2009 report was prepared by the Department of State in accordance with a Congressional directive. The Joint Explanatory Statement accompanying the Supplemental Appropriations Act, 2009 (P.L. 111-32), provided in pertinent part:
The conferees direct the Secretary of State to submit a report to the Committees on Appropriations … detailing incidents during the recent conflict in Sri Lanka that may constitute violations of international humanitarian law or crimes against humanity, and, to the extent practicable, identifying the parties responsible.
 The report did not reach legal conclusions as to whether the incidents described constituted violations of IHL, crimes against humanity or other violations of international law, nor did it reach conclusions concerning whether the alleged incidents actually occurred.
 For purposes of this report, “international bodies” are defined to be United Nations agencies, offices, and entities.
 See, e.g., Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, arts. 4.1, 7.1, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987).
 In that statement, Ambassador Rice said: The U.S. Government welcomes President Rajapaksa’s announcement of his intention to establish a Commission on Lessons Learned and Reconciliation to examine key aspects of the recently ended conflict in Sri Lanka and his acknowledgment in doing so that accountability for serious violations of international humanitarian law is a crucial pillar of national reconciliation and the rule of law. Experience in other countries has shown that commissions of inquiry can play a valuable role in advancing accountability when they are appropriately constituted and enjoy broad public support. Particularly important in this regard, broad experience has shown that to be effective in advancing accountability and reconciliation, commission members should be and be perceived as independent, impartial and competent; their mandate should enable them fully to investigate serious allegations of violations and to make public recommendations; commission members and potential witnesses must enjoy adequate and effective protection; the commission must receive adequate resources to carry out its mandate; and the Government should undertake to give serious consideration to its recommendations. We hope the commission will also reflect the desires and requests of the citizens of Sri Lanka, who were the primary victims of the conflict. Being responsive to their needs will be an important measure of the commission’s success. In light of these general principles, we would welcome the Sri Lankan Government’s commitment to give the Commission on Lessons Learned and Reconciliation a mandate to probe violations of international standards during the final stages of the conflict and to identify those responsible and, we would expect, to make appropriate public recommendations based on its findings. “Statement by U.S. Ambassador Susan E. Rice on Sri Lanka’s Announcement of a Commission on Lessons Learned and Reconciliation,” USUN PRESS RELEASE # 083, May 10, 2010, http://usun.state.gov/briefing/statements/2010/141657.htm.
 For a publicly available report, see, e.g., http://in.reuters.com/article/idINIndia-48432720100512.
 Under article 2(4) of the Commissions of Inquiry Law, “It shall be lawful for the President to state in the warrant the terms of reference of the commission in general terms and it shall be competent for the commission to determine the scope of the inquiry and to select specific matters which, in the opinion of the commission, should be inquired into and reported upon”. Under article 7, the commission has power to “(a) procure and receive all such evidence, written or oral, and to examine all such persons as witnesses, as the commission may think it necessary or desirable to procure or examine; (b) to require the evidence (whether written or oral) of any witness to be given on oath or affirmation….” Article 12 relates the procedures for failure to obey summons to give evidence before a commission.” Special Presidential Commissions of Inquiry Law of 1978, http://www.commonlii.org/lk/legis/consol_act/spcoi9504.pdf.
 “Sri Lanka approves appointment of Lessons Learnt and Reconciliation,” http://www.colombopage.com/archive_10B/May 13_1273763794CH.php. “Sri Lanka’s Reconciliation Commission to hear from people in conflict-affected areas,” http://www.colombopage.com/archive_10B/Jul03_127816557CH.php.
 See statements and report of the International Independent Group of Eminent Persons at http://sitesatrisksl.wordplay.com/category/iigep.
 Some former Sri Lankan officials have made public statements. For example, on July 10, 2009 at the margins of a Non-Aligned Movement summit in Egypt, former Sri Lankan General Fonseka reportedly stated, “Our soldiers have seen in life the kind of destruction carried out by those people before they decided to come carrying a white flag. Therefore, they carried out their duties. We destroyed anyone connected with the LTTE.” (http://www.lankanewsweb.com/news/EN_2009_07_18_005.html.) On December 13, 2009 in an interview with The Sunday Leader, Fonseka said that information in the final days of the war was not conveyed to him, and he later learned that [former Senior Presidential Advisor and current Minister of Economic Development] Basil Rajapaksa conveyed to Gotabhaya Rajapaksa, who in turn spoke to Brigadier Shavendra Silva, Commander of the Army’s 58th Division, giving orders not to accommodate any LTTE leaders attempting to surrender and that “they must all be killed.” (“Gota ordered them to be shot,” The Sunday Leader, December 13, 2009.) On February 8, 2010 the BBC reported that General Fonseka was arrested at his office in Colombo, and earlier in the day he had said on the subject of war crimes, “I am definitely going to reveal what I know, what I was told and what I heard. Anyone who has committed war crimes should definitely be brought into the courts.” (“Sri Lanka election loser Sarath Fonseka arrested,” BBC News, February 8, 2010, http://news.bbc.co.uk/2/hi/south_asia/8504882.stm.) He made a similar statement on May 5, 2010 to reporters inside Parliament, “I will go out of my way to expose anyone who has committed war crimes. I will not protect anyone, from the very top to the bottom.” (Sri Lanka ex-army chief vows to expose war crimes,” AFP, May 6, 2010.)
The Department of State does not take a position on the accuracy of recent inquiries, findings, or specific recommendations of international NGOs, media outlets, or other sources. However, it is notable that since the release of the Department’s October 2009 report, new information has come to light, and potential witnesses with potentially relevant testimony have stated a willingness to provide testimony. For example, in a certified deposition, one former senior Sri Lankan Army officer has provided currently unsubstantiated background and exculpatory and inculpatory information regarding military chain of command, treatment of prisoners, avoidance of civilian targets, disappearances, and the 2006 commission of inquiry. The former officer said that government policy was to avoid churches, hospitals, and schools. He also said that colleagues had informed him that now deceased LTTE leader Prabhakaran’s twelve-year-old son was killed along with five escorts after surrendering, although he admitted he did not know whether Defense Secretary Gotabhaya Rajapaksa or General Fonseka had ordered them killed. The former officer also said that the 2006 death of five students in Trincomalee was directed by a senior superintendent of police and carried out by a special task force.
 Given the time and expense incurred by traveling to obtain information abroad, some commissions have permitted the use of written and video testimony.
 See footnote 18.
 See footnote 13.
 “Fonseka threatened with execution,” BBC, June 6, 2010.
 “Fighting impunity in Sri Lanka,” Andrew Wander, http://englishaljazeera.net/focus/2010/05/20105186355957306.
 „Ban urges Sri Lanka to normalize conditions around UN office in Colombo,“ July 9, 2010, http://www.un.org/apps/news/story.asp?NewsID=35286&cr=sri-lanka&Cr1.
 “Sri Lanka Rules out Visas for UN War Crimes Panel,” http://www.alert.net.org/thenews/newsdesk/SGE65NOAJ.htm.
 “Consolidated Response of the Government of Sri Lanka to the Telecast by Channel 4 News of the United Kingdom on
25 August 2009 of a Video of Supposed Extra-Judicial Executions in Sri Lanka,” September 7, 2009.
 “Statement by Minister Mahinda Samarasinghe at the United Nations Human Rights Council in Geneva, Switzerland,” September 15, 2009, http://mahindasamarasinghe.org/human-rights.html.
 “Sri Lanka Should Permit an Impartial Investigation into the Channel 4 Videotape, Says UN Expert,” Statement by Professor Philip Alston issued by the Office of the High Commissioner for Human Rights, September 17, 2009.
 Office of the UN High Commissioner for Human Rights, “Technical Note prepared by the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Philip Alston, in relation to the authenticity of the “Channel 4 videotape,” January 7, 2010, p. 2.
Factual Supplement to the Report to Congress on Measures Taken by the Government of Sri Lanka and International Bodies To Investigate and Hold Accountable Violators of International Humanitarian and Human Rights
Office of Global Criminal Justice /April 4, 2012
This factual supplement explains, in greater detail, issues of international humanitarian law and international human rights law addressed in the Department of State’s March 2012 Report to Congress on Measures Taken by the Government of Sri Lanka and International Bodies to Investigate and Hold Accountable Violators of International Humanitarian and Human Rights Law.
While this factual supplement draws attention to open questions regarding allegations of violations of international humanitarian law (IHL) and international human rights law (IHRL), it is not meant to be a legal determination confirming any of those allegations.
I. Legal Framework
The United States recognizes a State’s inherent right to defend itself from armed attacks, including those by non-state actors such as terrorist groups. In the context of a non-international armed conflict—that is, an armed conflict that is not between states—common article 3 of the Geneva conventions of 1949 provides basic treatment protections to all individuals not taking part in hostilities, including civilians and detained members of the Armed Forces. Its core requirements are that individuals not taking part in hostilities must be treated humanely and without “adverse distinction” based on race, religion, or similar criteria. To this end, the article prohibits murder; cruel treatment; torture; the taking of hostages; outrages upon personal dignity; and the passing of sentences without judgment by a court providing recognized guarantees. Sri Lanka is neither a party nor a signatory to the Additional Protocol II to the Geneva Conventions, which includes more detailed rules relevant to non-international conflicts than those set forth in, article 3.
As with the two previous reports, our assessment of investigations undertaken by the Government of Sri Lanka (GSL) and international bodies is mindful of Sri Lanka’s pertinent international obligations. For example, Sri Lanka is a State Party to the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the 1949 Geneva Conventions. In addition, Sri Lanka is subject to relevant customary international law obligations, which in the area of international humanitarian law include the principles of distinction and proportionality, which are intended to protect innocent civilians from harm. The principle of distinction holds that civilians and civilian objects (such as hospitals and schools) shall not be the object of direct attack, though civilians lose this immunity if they directly participate in hostilities. The principle of proportionality prohibits attacks that may cause incidental loss of life, injury, or damage to civilians that would be excessive in relation to the direct military advantage anticipated. The civilian population must not be used to shield military objectives or operations from attack, and parties must take all practicable precautions, taking into account military and humanitarian considerations, to minimize incidental death, injury and damage to civilians.
II. Efforts at Accountability
There are a variety of ways in which a government may undertake effective investigations and other accountability processes. While some international law conventions call for criminalization of certain human rights violations and serious violations of IHL, other routine administrative and special investigative processes, such as commissions of inquiry (COI), can play an important role in establishing a factual record of events. Although COIs and other investigative bodies are often implemented at the national level, in some instances governments seek international participation to bring specialized expertise into, and help foster public confidence in, so-called “hybrid” investigations. Fully internationalized processes undertaken without the relevant government’s consent have generally been pursued by the international community only when the State concerned lacks the capacity, political will, or both, to undertake an independent, credible, and effective inquiry. In the case of serious violations of IHL and human rights, including the type of atrocities alleged to have occurred in the final months of the conflict in Sri Lanka, however, such commissions do not obviate the need for criminal investigation and, if appropriate, prosecutions.
Whether domestic, international, or hybrid, investigative processes should operate consistent with best practices derived from extensive experience in order to be both credible and effective. There are several key criteria for evaluating the adequacy of a COI, including: independence and competence; adequate mandate and authority; witness and COI protection; adequate resources; a public report; and a timely and transparent government response.
A. The Panel of Experts (POE)
On June 22, 2010, UN Secretary-General Ban Ki-moon appointed a three-member Panel of Experts (POE) to advise him on the nature and scope of allegations of violations of international humanitarian and human rights law during the final stages of the conflict, and the implementation of a commitment made in a joint statement by the President of Sri Lanka and the Secretary General on May 23, 2009, to address accountability. The POE consisted of former Attorney General of Indonesia Marzuki Darusman, former South African Truth and Reconciliation Commission Commissioner Yasmin Sooka, and American law professor Steven Ratner.
The GSL strongly opposed the establishment of the POE, and described it as “an unwarranted and unnecessary interference with a sovereign nation.” The POE and GSL were unable to come to agreement regarding the modalities of a visit of the POE to the country. The POE did receive written submissions in response to a set of questions provided by the POE to the GSL, and engaged with the GSL in a face-to-face dialogue.
On April 12, 2011, the POE submitted its report to the UN Secretary General, which he then shared with the GSL. On April 13, 2011, the GSL issued a statement that decried the report as “fundamentally flawed” and “patently biased.” On April 25, 2011, the Secretary General’s office made the report public.
The report highlights a number of allegations of violations by the GSL it describes as credible, including: large-scale shelling of “No Fire Zones,” systematic shelling of hospitals, and summary execution, rape, and torture of surrendering LTTE cadres and civilians fleeing the conflict zone. The report also highlights a number of allegations against the LTTE it describes as credible, including: using civilians as a strategic buffer, forced labor (including of children), and summary executions of civilians attempting to flee the conflict zone. The serious allegations in the report regarding the conduct of both sides, if proven, would indicate violations of IHL and IHRL.
Based on its assessment that the LLRC was “deeply flawed” and did not meet international standards as an accountability mechanism, as well as other obstacles to accountability such as “triumphalism” and the eroded independence of the Attorney General and domestic courts of Sri Lanka, the POE recommended a series of steps to implement the joint commitment on accountability between the UN Secretary General and Sri Lankan President Rajapaksa. The report recommended that the GSL should immediately commence genuine investigations into alleged violations of IHL and IHRL committed by both sides in the conflict and that the GSL should issue a public, formal acknowledgment of its role in, and responsibility for, extensive civilian casualties during the final stages of the conflict. The report also recommends that the Secretary General immediately establish an independent international mechanism to monitor and assess the extent to which the GSL carries out an effective domestic accountability process, as well as to independently investigate credible allegations.
The POE was not a commission of inquiry and thus did not undertake fact-finding, nor did it reach factual conclusions regarding disputed facts or establish culpability for alleged violations. Therefore, the work of the POE did not directly result in a process to hold accountable the individuals alleged to be responsible for violations of international human rights law and international humanitarian law. However, by undertaking an assessment of the allegations against the GSL and LTTE in the public record “[i]n order to understand the accountability obligations arising from the last stages of the war…,” the POE established a strong case that such a process is needed.
The Secretary-General transmitted the POE report to the President of the U.N. Human Rights Council and the U.N. High Commissioner for Human Rights on September 12, 2011. In the announcement regarding the transmittal, the UN also announced the Secretary-General selected UN Population Fund Executive Director Thoraya Obaid to undertake the review of UN actions recommended by the POE. The UN has not completed that assessment.
B. Humanitarian Operation Factual Analysis: July 2006-May 2009
On August 1, 2011, the GSL released a report produced by the Sri Lankan Ministry of Defense entitled “The Humanitarian Operation Factual Analysis: July 2006-May 2009.” The report provides a detailed analysis of the types of atrocities committed by the LTTE, describes the organization’s structure and components, and describes the various failed negotiations with the LTTE and its failure to abide by cease-fire and other agreements with the GSL. The report also describes what it characterizes as the GSL’s “civilian rescue operation” during which it defeated the LTTE. In that context, the report outlines the military procedures used to safeguard civilian lives and protect civilian rights, including institutional frameworks, training, monitoring of alleged violations and investigations/prosecutions. The report does not, however, address any of the alleged violations of IHL or IHRL identified by the POE or available in the public domain. Moreover, while the report contains a table summarizing major offenses committed by Sri Lankan security personnel between 2005 and 2010, the table identifies no recorded offenses for the year 2009, the period during which most of the allegations in the POE report fall.
C. The Lessons Learnt and Reconciliation Commission (LLRC)
On May 15, 2010, President Rajapaksa issued a proclamation establishing an eight-member commission under the Special Commission of Inquiry Law of 1978. Pursuant to this law, the Lessons Learnt and Reconciliation Commission was charged to “inquire and report within six months on the following matters that may have taken place during the period between February 21, 2002 and May 19, 2009:
The facts and circumstances which led to the failure of the ceasefire agreement operationalized on February 21, 2002 and the sequence of events that followed thereafter up to May 19, 2009;
Whether any person, group, or institution directly or indirectly bear responsibility in this regard;
The lessons to be learned from those events and their attendant concerns, in order to ensure that there will be no recurrence;
The methodology whereby restitution to any person affected by those events or their dependents or to heirs, can be effected; and
The institutional administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future and to promote further national unity and reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of this Presidential Warrant.”
Secretary Clinton welcomed President Rajapaksa’s establishment of the commission in her press appearance with Foreign Minister G.L. Peiris during his May 2010 visit to Washington and outlined U.S. expectations that the commission would follow established best practices.
Although initially given six months to report, the GSL extended the deadline for the LLRC report twice, each time for an additional six months. The LLRC commenced public hearings on August 11, 2010, and finished in March 2011. According to the LLRC website, the Commission held 41 field visits and 149 public sittings.
In mid-September 2010, the LLRC provided the GSL a set of interim recommendations that dealt with five topical areas: detention; land issues; law and order; administration and language issues; and socioeconomic and livelihood issues. Particularly relevant to the question of accountability were the recommendations relating to detention and administration and language issues. Although the GSL established an Inter-Agency Advisory Committee (IAAC) to facilitate the implementation of the interim recommendations, LLRC’s final report notes that the GSL has not fully implemented its interim recommendations.
On December 16, 2011, the GSL publically released the LLRC’s final report. The GSL issues the entire report in English but only the executive summary in Sinhala and Tamil. The report makes significant observations and recommendations with respect to the origins of the conflict, land reforms, restitution, and other efforts to reconcile the various ethnic communities of Sri Lanka. In particular, the LLRC calls on the GSL to enact a uniform policy aimed at the resettlement of internally displaced persons (IDPs), to take steps to prevent harassment and attacks on media personnel and organizations, to ensure their freedom of movement and, to investigate alleged crimes against journalists, to prioritize compensatory relief in addition to economic development projects, and to undertake reconciliation projects to reunite the population of Sri Lanka. The report also suggests that the government investigate specific allegations of direct attacks on civilians, launch a full investigation into reports of enforced disappearances and abductions, fund an independent investigation into the veracity of the Channel 4 videos, and investigate allegations of detainee abuse, torture, and summary execution. The Commission’s findings and recommendations regarding international humanitarian and human rights law issues are examined in greater detail in Section III.
D. Assessment of the LLRC as a COI
The following sections evaluate the LLRC’s establishment, mandate, composition, and activities compared to standards outlined by the Department of State in its August 2010 report to Congress.
Independence and Competence:
The members of the LLRC included former Attorney General C. R. de Silva, former Assistant Secretary of the Ministry of Justice Karunaratne Hangawatte, former Legal Advisor at the Sri Lankan Ministry of External Affairs Rohan Perera, former Foreign Secretary and Sri Lankan Permanent Representative to the UN HMGS Palihakkara, former Secretary to the Treasury C Chanmugam, former Deputy Legal Draftsman Manohari Ramanathan, former High Court Judge M.P. Paranagama, and senior attorney at law M.T.M. Bafiq. There was no information that indicated that the GSL consulted with affected communities in selecting the commission members. Despite the high percentage of women and Tamils among those giving testimony, only one of the eight commission members was female (also the sole Tamil commissioner), and only one was from the Muslim community.
All but one of the members of the commission previously worked for the GSL, raising concerns about their independence and impartiality. Two of the commission members were senior government officials during the last months of the conflict, one of whom, Hewa M.G.S. Palihakkara, as Sri Lanka’s Permanent Representative to the UN, publicly commented on behalf of the government on events surrounding many of the allegations raised. Meanwhile, the Chairman of the LLRC served as Attorney General during the period when the 2006-2009 Presidential Commission of Inquiry to Investigate and Inquire into Serious Violations of Human Rights was in operation. That commission was charged with investigating sixteen allegations of serious human rights violations. The International Independent Group of Eminent Persons (IIGEP) identified significant concerns regarding independence of that commission due to the role of the then-Attorney General, the later-Chairman of the LLRC. These factors have fostered the perception that commission members had an interest tied to that of the government in a particular outcome of the commission’s work.
Serious concerns have also been raised regarding the process of questioning witnesses before the LLRC. The POE report describes as “non-confrontational” the line of questioning used when dealing with members of the security forces and issues related to violations of IHL. The POE report goes on to relate that in some cases, commission members appeared to lead respondents with questions that contained the answers. The POE report also claims commission members failed in some cases to pursue important lines of questioning of government officials that could have revealed specific information relating to culpability for violations of IHL and IHRL.
Adequate Mandate and Authority:
In terms of addressing accountability, the LLRC’s mandate was, at least initially, unclear. Based on the phrase, “and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of the warrant” and verbal assurances by the GSL, the United States government interpreted the LLRC mandate to be sufficiently broad to allow it to address allegations of violations of human rights law and international humanitarian law. On March 4, 2011, in response to U.S. Senate Resolution 84, the Sri Lanka Ministry of External Affairs further clarified the mandate of the LLRC, stating that the Commission’s mandate included consideration of violations of international humanitarian law and human rights law. The Ministry also stated that the Attorney General would have the power to institute criminal proceedings based on the LLRC’s findings.
Witness and COI Protection:
Sri Lanka has no witness protection laws, and there is no information that indicates that the LLRC developed a discrete program for witness protection. According to the recorded testimonies on the LLRC’s website, the commission did allow and take in camera testimony at the discretion of the witness. Meanwhile, experience in other countries has shown that, absent such a program, witnesses, especially those victimized by recent conflict, are unlikely to come forward due to fears of arrest, personal harm, or harm to their families. A number of Sri Lankans informed Department of State officers that they, or people they knew, had declined to appear before the LLRC out of fear of retribution. Additionally, those that come forward publicly in Sri Lanka also run the risk of being branded LTTE sympathizers, heightening the likelihood of reprisal. Reporting by the International Crisis Group (ICG) and other international organizations appears to confirm that some individuals who testified before the LLRC have since received threats by the military. The ICG has also described other situations in which the format of the hearings and the presence of security officials could have served to intimidate individuals appearing to provide statements. The Department of State has received credible first-hand information regarding efforts by the GSL to cause witnesses to alter the retelling of events related to international humanitarian law violation allegations, as well.
While the LLRC heard testimony a number of times and in a number of locations, those hearings may not have provided adequate opportunities for victims to testify. Although the LLRC allocated at least 56 days for sittings in Colombo and 22 days in the North and East of Sri Lanka, the State Department received several complaints from people in the North who wished to testify but were unable to do so because of the rushed sittings of the LLRC in those areas. Such persons often were told to make written submissions to the Commission, although in some cases witnesses lacked resources to do so or were illiterate. In addition, while the LLRC may have had adequate resources to conduct hearings, its staff had no investigators or lawyers with experience investigating IHL violations.
In submitting the LLRC report to Parliament, Leader of the House Nimal Siripala de Silva, on behalf of the government, stated that the proper way to respond to the report was to establish a mechanism to gather information, investigate accusations, and refer possible charges to the Attorney General. President Rajapaksa has not publicly commented on the LLRC Report. However, the GSL has informed the Department of State of three entities within the government created to respond to the LLRC. The first is a cabinet sub-committee created to address the recommendations within the LLRC report regarding demilitarization, land reform, and freedom of expression. The second group is a board of inquiry within the Sri Lankan Army (SLA) that will address demilitarization of the North and other general reforms to the military. Finally, a five-member court of inquiry led by a Major General in the SLA has been established to investigate the specific allegations of serious violations identified in the LLRC report. News reports have indicated that this court will also investigate the Channel 4 video. This court will refer any cases it finds credible to the Attorney General for prosecution. Sri Lankan officials also made clear to Department of State officials that individuals can bring additional allegations to the SLA court of inquiry or the Attorney General. The Department of State is not aware of any formal action plan to implement the LLRC’s final recommendations from November 2011 or its interim recommendations from September 2010. In its report, the LLRC expressed its fear that its recommendations would suffer the same fate as past recommendations by Sri Lankan COIs and go unanswered by the GSL. The LRRC concluded that its recommendations should be “implemented expeditiously.”
III. Evaluation of the LLRC Findings & Recommendations Regarding Accountability
A. Civilian Casualties
The LLRC report recognizes that significant civilian casualties occurred during the final stages of the conflict. In particular, the report details the testimony of witnesses reporting eight attacks by GSL Security Forces against civilians that the witnesses describe as intentional. Those allegations include: three reports of shelling civilians; two reports of the Navy targeting civilian boats; one report of the Army forcing civilians to retrieve the body of an Army soldier while under fire; one report of 35-40 civilians dying when a food line was shelled; and one report of the Army shelling 40-45 expectant mothers. Regarding these specific instances, the report states, “[T]he Commission stresses that there is a duty on the part of the State to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrong doers.” However, the Commission’s final recommendations only call for further investigation into “observation 4.359 vi. (a) and (b) and any reported cases of deliberate attacks on civilians.” The relevant sections of 4.359 to which this recommendation refers list two reported attacks by the navy and the incident involving the forced retrieval of an Army soldier’s body, meaning that the report does not ultimately recommend investigation into the other five instances reported by the Commission.
The LLRC’s recommendations fall short of fully acknowledging all credible allegations of intentional attacks on civilians by the GSL and LTTE. The LLRC report does not call for investigations into allegations of deliberate attacks on civilians in the Vanni other than the three instances briefly discussed in the report. For other civilian casualties, the report concludes that they “appear to be due to cross fire, the LTTE’s targeted and deliberate firing at civilians, as well as due to the dynamics of the conflict situation, the perils of the geographical terrain, the LTTE using civilians as human shields and the LTTE’s refusal to let hostages get out of harm’s way.” The LLRC report details the technological capabilities of the GSL to detect and distinguish civilians from the LTTE, including GPS and special reconnaissance missions into the Vanni, and concludes that the “the military strategy that was adopted to secure the LTTE-held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority.”
This conclusion, however, does not consider whether the government security forces properly used the capabilities examined in the report, whether attacks were directed at LTTE forces rather than civilians, or whether those attacks were proportional. The report also calls for a professionally-administered household survey in all parts of the island to determine the full scale and circumstances of death and injury to civilians in order to resolve the “unverified sweeping generalization of a highly speculative nature as regards casualty figures.” In late February 2012, the GSL Department of Census and Statistics published “Enumeration of Vital Events, 2011, Northern Province, Sri Lanka,” a report of a census the department conducted in June and July 2011 of households in the former conflict region. Amongst many figures on population statistics during the last five years of the conflict, the report noted 7,934 deaths in the Northern Province in 2009 due to non-natural causes, with an additional 2,635 persons reported as untraceable. These figures, however, have been widely criticized by international non-governmental organizations, such as the International Crisis Group, as misrepresentative and not in conformity with professional standards.
The handful of incidents noted in the LLRC report stands in stark contrast to the vast number of credible allegations examined in the POE report. While the GSL’s public statements indicate it maintained a policy of “zero civilian casualties” and the only civilians killings occurred during crossfire, the POE estimated that civilian casualties range from 10,000 to 40,000 for the final months of the conflict. Based on verified reports from civilians, seasoned aid workers, and doctors in the conflict zone, the POE concluded that in many cases, GSL security forces shelled areas it knew to be principally occupied by civilians. In addition, the Department of State’s 2009 Report to Congress listed 208 instances of harm to civilians or civilian objects, which strongly suggests that the LLRC’s conclusion that only three allegations of attacks against civilians deserve further investigation is a gross underestimation. These instances, as well as those allegedly perpetrated by the LTTE in both the LLRC and POE reports, merit further investigation. Hence, the notable gap between LLRC and POE findings regarding civilian casualties suggests that the GSL should establish an accountability mechanism to ensure that all allegations, not just the three identified in the LLRC report, are fully investigated.
With respect to LTTE attacks against civilians, the LLRC concluded that the LTTE was guilty of “grave violations of core Principles of IHL.” Specifically, the Commission found that LTTE cadres used civilians as human shields, shot at civilians attempting to escape to safe areas, forced civilians to provide support services, used military equipment in civilian areas, and forcibly conscripted child soldiers. The POE report found credible allegations for all of these same crimes. The LLRC report contemplates “framing charges against LTTE cadres,” but fails to make specific recommendations about investigating and prosecuting LTTE crimes. Accountability for violations of IHL and IHRL by both sides of the conflict is important to ensure justice for victims, to prevent a resurgence of violence, and for rebuilding Sri Lanka. The GSL should therefore fully investigate abuses committed by the LTTE and hold individuals accountable for such crimes.
B. Shelling of the No Fire Zones (NFZs)
At the end of the conflict with the LTTE, the GSL created a series of “No Fire Zones” (NFZs) aimed at providing civilians trapped in LTTE territory a safe haven into which government forces would not fire. On January 20, 2009, the GSL unilaterally declared the first NFZ (NFZ-1) located about 800 meters from the frontline. Even though the LTTE did not recognize any of the NFZs, the government claimed that it would continue to recognize the humanitarian spaces. Within days of establishing NFZ-1, however, government forces began shelling within the safe area, reportedly because they had taken fire from LTTE forces within NFZ-1. A pattern soon developed in which the LTTE would use NFZ-1 to fire on GSL forces, and then GSL forces would respond with heavy shelling into NFZ-1. Once it realized that NFZ-1 was not protecting civilians and was being used by the LTTE for cover, the GSL created a second NFZ (NFZ-2) on February 12, 2009. The same pattern of violence emerged in NFZ-2, however, and the government established a significantly smaller third NFZ (NFZ-3) on May 8.
The LLRC report concludes that Sri Lankan security forces did not deliberately target civilians in the NFZs. The report states that although civilian casualties occurred “in the course of crossfire,” “there appears to have been a bona fide expectation that an attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack involved.” The LLRC concluded that returning fire into the NFZs was not a violation of the IHL principles of distinction or proportionality because “Security Forces were confronted with an unprecedented situation when no other choice was possible and all ‘feasible precautions’ that were practicable in the circumstances had been taken.” According to the LLRC, making determinations about the units responsible for the contested shelling would be nearly impossible. Despite the purported impossibility of investigating shelling in the NFZs, the LLRC nonetheless concluded that the LTTE was responsible for the majority of civilian deaths in the NFZs. The LLRC did not make any recommendations to investigate who was responsible for the shelling of civilians in the NFZs, but does call for compensation to be provided to all affected parties.
Reports from the POE and the UN directly contradict the conclusions of the LLRC with respect to civilian casualties in the NFZs. The POE report concludes that credible allegations suggest that the GSL deliberately or negligently targeted civilians within the NFZs. For instance, in one incident on January 24, 2009, civilians and medical workers reported that hundreds of civilians died at a UN hub amidst intense shelling coming from government positions. LTTE cadres reportedly never fired within 500 meters of the UN hub, and because of GPS and reports to the GSL by the UN and ICRC, the government security forces were aware of the hub’s location. In other reported incidents, GSL forces shelled food distribution lines, hospitals, and IDP encampments known to the GSL. In another incident, the POE report found that 140 civilians were killed on March 26 in Ambalavanpokkanai by artillery fire from government positions. The report also states that the civilians were capable of being identified by Unmanned Aerial Vehicles (UAVs) often used by the GSL. Furthermore, the POE report states that the Sri Lankan Security Forces repeatedly used Multi-Barrel Rocket Launchers (MBRLs) and other large artillery, which are used to shell large areas of land rather than return fire on specific locations, against targets in the NFZs.
Another report done by the UNITAR Operational Satellite Applications Programme (UNOSAT) for the Panel of Experts used satellite time-series imagery to conclude that the Sri Lankan Army (SLA) established and maintained capabilities to fire substantial quantities of artillery munitions into areas heavily populated with IDPs, specifically NFZ-2 and NFZ-3. The UNOSAT report found that that the SLA repeatedly rotated the fire bearing of heavy caliber howitzers towards NFZ-2 and later NFZ-3. The report also states that the SLA erected mortar batteries along the western shore of Nanthi Lagoon without viable military targets except for locations clearly falling with NFZ-2 and NFZ-3, both of which remained populated with tens of thousands of IDPs. UNOSAT also found over ten specific air strike impact craters identified immediately adjacent to IDP tent concentrations, a functioning hospital, and within NFZ-2, contrary to denials by the Sri Lankan Air Force.
The evidence gathered by the POE and UNOSAT indicates that the LLRC report does not adequately address the responsibility for shelling in the three NFZs. While the LLRC report concludes that it is difficult to ascertain the origin of artillery attacks, the government nonetheless has a duty to investigate the alleged abuses committed by Sri Lankan armed forces in the NFZs. Experiences in other post-conflict settings in relation to the use of force demonstrate that ascertaining the origin of shelling in the NFZs is not as impracticable as the LLRC suggests. A more thorough investigation potentially could determine what violations, if any, occurred, who committed them, and the extent to which officials in the government knew about or authorized such violations.
C. Attacks Against Humanitarian Objects
The LLRC report concludes that the Sri Lankan security forces did not deliberately target hospitals and other humanitarian objects in the NFZs. For instance, the report examined an attack against the Vallipunam Hospital and IDP camp nearby on January 21, 2009, which killed over 40 civilians. The LLRC concluded that the origin of the shells could not be accurately determined, but did note that the LTTE were positioned 500 meters away from the hospital. The Commission also believed GSL statements that all patients had been moved from the Anandapuram Hospital before being fired upon by SLA forces, even though reports from aid workers and doctors indicated otherwise. Finally, the LLRC found no definitive evidence that the GSL was responsible for the shelling of Puthukkudiyiruppu Hospital (PTK). The report relies on the testimony of two doctors from PTK stating that no shells hit the hospital and that they did not know from where the shells came. On the other hand, the report also mentions the testimony of a government official being treated at PTK who testified that he and his father-in-law were injured in a direct hit to the hospital and the shell likely came from government forces.
The LLRC report nevertheless concludes, “The Commission is satisfied, on a careful consideration of all the circumstances, that shells had in fact fallen on hospitals causing damage and resulting in casualties. However, the material placed before the Commission points to a somewhat confused picture as to the precise nature of events, from the perspective of time, exact location and direction of fire.” The Commission called for “expeditious grant of appropriate redress” but only as a “humanitarian gesture” to “instill confidence in the reconciliation process.”
In contrast to the LLRC report, the POE report concludes that “Virtually every hospital in the Vanni, whether permanent or makeshift, was hit by artillery.” The Panel found that the PTK Hospital was shelled every day from January 29 to February 4 most likely by the 55th Division of the SLA. The GSL claimed that no hospitals remained in the Vanni, but the POE report found that the UN and ICRC continuously updated the government on the whereabouts of medical facilities and make-shift hospitals in the region. The POE report also mentions that testimony by government doctors from these hospitals may not be accurate because they initially claimed that government forces repeatedly fired on their facilities but later changed their stories to reflect the GSL’s position.
Ultimately, both the LLRC and POE reports indicate that much uncertainty surrounds the extent and origin of shelling against hospitals and other humanitarian objects during the finals months of the conflict. The LLRC did investigate several instances of such shelling, but its conclusion that attacks against hospitals simply represented a “confused picture” neglects the fundamental need to fully investigate potential violations of IHL. As these allegations implicate grave breaches of IHL, they merit full investigation and, if appropriate, prosecution of the responsible individuals.
D. “White Flag” Incident
The LLRC Report also fails to critically analyze or investigate the “white flag” incident, in which high level LTTE leaders were allegedly shot despite assurances from the GSL that they could safely surrender. While the circumstances surrounding the incident remain uncertain, the POE concluded that the LTTE leadership intended to surrender. However, the LLRC only mentioned the above incident in a few short paragraphs, citing testimonies from a general and a government agent dismissing the allegations. The Department of State does not take a position regarding the allegations concerning the “white flag” allegations but notes that the discrepancy between the POE and LLRC reports merits further investigation.
E. Sexual and Gender-Based Violence
The POE Report briefly discusses allegations of sexual and gender-based violence by GSL security forces during the final days of the conflict. The Panel pointed to several videos that strongly suggest that women were raped or otherwise sexually assaulted before being executed, but did not make any definitive conclusions due to a lack of evidence. The POE indicated that this lack of evidence is likely partially due to strong cultural stigmas in Sri Lanka that cause reports of sexual violence to go underreported.
The LLRC report does not address allegations of sexual and gender-based violence at the end of the war.
F. Supply of Humanitarian Relief
The LLRC acknowledges that food and medical supplies became scarce with the intensification of the conflict, but does not surmise that the GSL purposefully underestimated the number of civilians trapped in various combat zones “for the purpose of starving the civilian population as a method of combat.” The report states that amounts of food aid were determined by the government in consultation with the World Food Program (WFP) and other humanitarian organizations and, therefore, these circumstances do not “warrant any possible inference that there was a deliberate intention to downplay the number of civilians in the NFZs for the purpose of starving the civilian population as a method of combat.” However, the LLRC report also concludes that “the issue of medical supplies to civilians in the conflict areas during the final days of the conflict is a matter that requires further examination, given the humanitarian considerations involved.”
The LLRC’s characterization of the government’s role in food distribution contrasts with allegations that the POE found credible. According to the POE report, the GSL purposefully underestimated the number of civilians that remained in the conflict zone so as to justify sending less food and medical supplies into the zone (e.g. the government estimated that only 10,000 civilians remained in NFZ-3, whereas the UN estimated that 100,000 remained). The POE report also states that the Ministry of Defense systematically deprived persons in the conflict zone of humanitarian assistance by imposing extensive restrictions on convoy participants. The GSL based its restrictions on the belief that the materials would be used to benefit the LTTE, but denial of items such as surgical equipment would have increased the suffering of wounded civilians and wounded LTTE belligerents and could only have had a humanitarian purpose, according to the POE.
While the circumstances surrounding the distribution of food and medical supplies into the conflict zone remain uncertain, the civilians who perished or were otherwise harmed in the Vanni because of a lack of humanitarian aid deserve a complete investigation into this matter, and the GSL should instigate an independent and impartial investigation into the government’s possible role in depriving civilians of humanitarian relief.
G. Establishment of NFZs 2 & 3
An important question the LLRC raises but leaves unanswered is why the GSL created a second and third NFZ after becoming cognizant that the LTTE would exploit such zones to launch attacks, to which the GSL would respond, putting civilians in harm’s way. The LLRC report recognizes a pattern in which the LTTE exploited the NFZs and civilians there to attack GSL forces and then force civilians to follow them to the next NFZ. This tactic of using human shields was expressly recognized in both the LLRC and POE reports. The LLRC report concludes, “The conclusions to be drawn from these representations is that the conduct of the LTTE, in gross violation of IHL obligations on the protection of civilians, radically transformed the very character of the NFZ and made it an integral part of the LTTE’s combat operations to achieve their military objectives.” Despite its knowledge that the LTTE used NFZ-1 and the civilians therein as part of its military strategy and that the GSL would respond to attacks from the NFZ thereby harming civilians, the GSL unilaterally declared NFZ-2 on February 12, 2009 and NFZ-3 on May 8, 2009.
In its concluding statements, the LLRC expressly remarked that “The Sri Lankan experience has in fact given rise to a debate as to whether, by unilateral declaration of a No Fire Zone, the Government unwittingly provided the LTTE an opportunity to consolidate itself amongst the civilian enclave for strategic purposes.” The LLRC does not make any recommendations regarding the GSL’s decision to unilaterally create NFZs 2 and 3. Likewise, the POE report does not expressly address this issue, although the POE report does detail the creation of the NFZs and the significant civilians casualties incurred in NFZs 2 and 3. More needs to be done to investigate how and why the GSL decided to create NFZs 2 and 3 after it concluded that the LTTE used NFZ-1 as part of its military strategy and thereby endangered thousands of civilian lives.
H. Enforced Disappearances
The LLRC report states that the Commission is concerned about the number of reports alleging enforced disappearances during the conflict and after surrender or arrest. The report found credible allegations of abductions of at least 12 people in the Batticaloa district, 100 in Mannar, and 6 in Jaffna. The Commission found a “clear duty of the State to cause necessary investigations into such specific allegations and where such investigations produce evidence of any unlawful act on the part of individual members of the Army, to prosecute and punish the wrongdoers.” This impartial tone of the report’s findings on the missing turns more partisan, however, when it concludes that such investigations are necessary “to clear the good name of the Army who have by and large conducted themselves in an exemplary manner in the surrender process and when civilians were crossing over to cleared areas, which conduct should not be tarnished by the actions of a few.”
Like the LLRC report, the POE report found a number of credible allegations of enforced disappearance. The Panel reported 32 instances of alleged disappearances in May 2009 alone, many of which involved groups of people rather than individuals. The report recommended full investigation into and potential prosecution for allegations of enforced disappearance by the GSL during and immediately after the conflict. An independent and impartial investigation into reports of enforced disappearance and any resulting prosecution and punishment would bring justice and closure to those affected by missing family members, and the GSL should immediately begin the investigations called for in the LLRC report.
I. Arrest/Detention Policy
The LLRC report makes a number of important recommendations regarding the GSL’s detention policy that the government should implement as soon as possible. The report notes several instances in which LTTE detainees remain in detention without charges and in which next of kin were either not notified of a detainee’s whereabouts or not allowed to visit. The report states that all next of kin should have the right of access to detainees. The LLRC report also states that no person should be detained outside authorized places of detention and that law enforcement authorities should follow legal provisions when taking persons into custody, such as issuing a formal receipt of arrest and providing details of the place of detention. In an important recommendation, the LLRC concludes that “The failure or refusal by the Police to record an arrest, detention and transfer or to record complaints of abductions and failure to investigate the same would constitute a criminal offence and steps should be taken to prosecute such wrongdoers.” The LLRC also recommends that an “Independent Advisory Committee be appointed to monitor and examine detention and arrest of persons taken into custody under any regulations made under the Public Security Ordinance or the PTA.” All of these recommendations are important in ensuring that the rights of detainees are protected. The LLRC makes laudable recommendations about law enforcement procedures for detainees and their next of kin as well as calls for investigations into allegations of violations of those laws.
The Department of State is aware of approximately 228 detainees under investigation remaining in GSL custody and an additional 892 detainees remaining in rehabilitation facilities. The government has permitted international humanitarian organization access to some detention facilities where former LTTE combatants are detained, including the Boosa detention facility where approximately 200 detainees are held. The government does not provide access to any detention facilities operated by military intelligence, stating that none existed. International humanitarian organizations have also only been permitted to visit detainees in rehabilitation as they are released.
J. Videos Showing Evidence of Summary Executions
On May 23, 2011, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions (SR) Christof Heyns released a report to the Human Rights Council 17th session that, in part, dealt with a video aired by Channel 4 in the United Kingdom. The video in question, provided by Channel 4 on November 30, 2010, is a longer version of the video aired by Channel 4 on August 25, 2009, that purportedly depicted Sri Lankan soldiers summarily executing bound prisoners.
The matter of the original, shorter version of the video is covered in detail in the Department of State’s second report to Congress of August 2010. In summary, the GSL commissioned four experts to evaluate the authenticity of the footage, and ultimately found the footage inauthentic based on a number of factors. Philip Alston, the then-UN Special Rapporteur on extrajudicial, summary or arbitrary executions, commissioned a separate, independent group of forensic experts to analyze the video. A January 2010 report by these experts concluded that there was strong evidence to suggest the video was authentic. Then-SR Alston contended that the video necessitated an impartial investigation into the question of whether war crimes had been committed.
The extended video investigated by SR Heyns contains additional executions and shows the faces of some soldiers. SR Heyns commissioned three experts to analyze the video, including an audio and firearms expert. As a result of that analysis, SR Heyns concluded that the extended video was authentic, and that it “…provides credible evidence that serious crimes have been committed within the context of the Sri Lankan civil war, which should together with any other available evidence be examined systematically and professionally by domestic investigators, as well as by an independent, international investigational body…”
The LLRC Report directly addresses the Channel 4 videos and concludes that its authenticity cannot be verified through available forensic information. The LLRC Report raises questions about the footage’s authenticity stating that the Commission “finds that there are troubling technical and forensic questions of a serious nature that cast significant doubts about the authenticity of the video and the credibility of its content.” The Report commendably calls for the GSL to “institute an independent investigation into this issue.” While the GSL has said that the Army court of inquiry would investigate the Channel 4 videos, the State Department is not aware of any action by the GSL to implement the LLRC’s recommendation of establishing an independent investigation into the Channel 4 videos.
K. Child Soldiers
The LLRC recommends full investigations into the conscription of child soldiers by the LTTE and other political parties. Notably, the report calls for the Tamil Makkal Viduthalai Pulikal (TMVP), the GSL, and UNICEF to fully implement the 2008 Action Plan between the parties to release and reintegrate child soldiers. The LLRC also calls for large-scale projects to reintegrate, educate, and provide counseling for former child soldiers.
The LLRC report also makes an important accountability recommendation regarding the prosecution of recruiters of child soldiers: “In instances where there is prima facie evidence of conscription of children as combatants, any such alleged cases should be investigated and offenders must be brought to justice. In this regard, the complaints of alleged recruitment of children by illegal armed groups/groups affiliated with the LTTE or any political party should be investigated with a view to prosecuting the offenders to ensure that the practice would not occur in the future.”
 Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (Mar. 31, 2011), available at http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf [hereinafter POE Report].
 POE Report, para. 237-43.
 POE Report, para. 323.
 POE Report, paras. 323, 326.
 LLRC report, para. 8.305.
 LLRC report, para. 4.286.
 LLRC report, para. 4.360.
 LLRC Report, para. 4.359xii.
 LLRC Report, para. 9.4
 LLRC Report, para. 9.35.
 POE Report, para. 137.
 POE Report, p. ii.
 LLRC Report, para. 4.321 & Chapter 5.
 LLRC Report, para. 4.321.
 POE Report, pp. iii-iv.
 LLRC Report, paras. 4.321 & 9.26.
 LLRC Report, para. 4.282.
 LLRC Report, para. 4.283.
 LLRC Report, para. 9.13.
 POE Report, p. ii.
 POE Report, para. 105.
 POE Report, para. 100.
 LLRC Report, para. 4.119.
 LLRC Report, para. 4.121.
 LLRC Report, paras. 4.125-4.128.
 LLRC Report, para. 4.288.
 LLRC Report, para. 4.294.
 POE Report, para. 81.
 POE Report, para. 130.
 LLRC Report, para. 4.288.
 POE Report, paras. 170-71.
 LLRC Report, paras. 4.234-4.3.237.
 POE Report, para. 153.
 POE Report, para. 152.
 LLRC Report, para. 4.304.
 LLRC Report, para. 4.304.
 LLRC Report, para. 9.22.
 POE Report, para. 209.
 LLRC Report, para. 4.274.
 LLRC Report, para. 4.335.
 LLRC Report, paras. 9.23, 9.48 & 4.319.
 LLRC Report, para. 4.319.
 POE Report, para. 151.
 POE Report, Recommendation 2(B), p. 121.
 LLRC Report, para. 9.54.
 LLRC Report, para. 5.42.
 LLRC Report, para. 5.44.
 LLRC Report, para. 4.374e.
 LLRC Report, para. 4.377.
 LLRC Report, para. 9.77.
 LLRC Report, para. 5.96.