May 20, 2010

Even prior to the end of Sri Lanka's armed conflict in May 2009, Human Rights Watch has called upon the United Nations to establish an independent international investigation into violations of international humanitarian law by both Sri Lankan government forces and the Liberation Tigers of Tamil Eelam. This Q & A addresses various issues relating to accountability for crimes in violation of international law.

Introduction

For more than 25 years the government of Sri Lanka was involved in an armed conflict with the separatist Liberation Tigers of Tamil Eelam (LTTE). This conflict was marked by numerous human rights abuses by both sides, which Human Rights Watch has long reported on. A ceasefire that began in February 2002 effectively ended with the resumption of major military operations in mid-2006. The LTTE forces slowly retreated to an enclave in the northeast coast of the island, forcing large numbers of ethnic Tamil civilians along with them. Starting in January 2009, fighting in the enclave intensified, with the LTTE using the civilian population as human shields and government forces firing heavy artillery indiscriminately into populated areas. The government forces continued their advance, finally cornering the LTTE, including its top leadership, into a tiny strip of land on the coast. On May 18, the fighting ended with the LTTE's defeat and most of the LTTE leadership killed.

The government's prohibition on the media, human rights groups, and most humanitarian agencies from the conflict area sharply reduced information on the situation at the time. However, Human Rights Watch and others have since gathered first-hand accounts and photographs from Sri Lankans trapped in the war zone, which paint a grim picture of death from combat, malnutrition, and inadequate medical care. Civilians paid an especially heavy price in this conflict, particularly during the last five months from January to May 2009. It is unclear how many people died during these months, but the UN has conservatively estimated that at least 7,000 civilians died and 13,000 were injured. Human Rights Watch has investigated a range of alleged serious violations of international humanitarian law (the laws of war) committed by Sri Lanka and the LTTE since the beginning of 2009. Abuses by government forces included: the indiscriminate use of weapons such as heavy artillery in densely populated areas, including declared No Fire Zones; repeated shelling of civilians, hospitals, and humanitarian facilities; enforced disappearances of suspected LTTE fighters; and extrajudicial executions. Abuses by LTTE forces included: using civilians as human shields or otherwise placing them at unnecessary risk; deliberately firing on civilians seeking to flee the conflict zone; and the use of child soldiers.

All parties to an armed conflict-both states and non-state armed groups-are responsible for complying with the requirements of international humanitarian law. That is, each party must respect and ensure respect for the laws of war by its armed forces and other persons or groups acting on its orders or under its direction or control. This obligation does not depend on reciprocity-parties to a conflict must respect the requirements whether or not the opposing side abides by it. It also does not depend on the reason for which the respective parties go to war, whether by a state ("fighting terrorism") or an armed group ("ethnic homeland"). And all parties to an armed conflict must be held to the same standards, regardless of any disparity in the harm caused by alleged violations.

A party to an armed conflict is responsible for serious violations of the laws of war committed by its armed forces and persons or entities acting under its authority, direction, or control. That responsibility, whether by a state or non-state actor, entails a requirement to make full reparations for the loss or injury caused; reparations can take the form of restitution (reestablishment of the prior situation), compensation (financial payment), or satisfaction (such as a formal apology or other action) to another state, entity, or individuals. As discussed below, states also have an obligation to hold accountable individuals under their control who are responsible for serious violations of the laws of war.

What international law applies to the armed conflict in Sri Lanka?

The armed conflict between Sri Lanka and the LTTE is governed by international treaties and the rules of customary international humanitarian law. Customary humanitarian law, based on established state practice, binds all parties to an armed conflict, whether states such as Sri Lanka or non-state armed groups such as the LTTE, and concerns the conduct of hostilities. Relevant treaty law includes Common Article 3 to the Geneva Conventions of 1949, which sets forth minimum standards for the treatment of persons within a party's control.

Why is accountability important?

Holding individuals accountable for serious violations of the laws of war is important because it may deter future violations, promote respect for the law, and provide avenues of redress for the victims. Armed forces that hold offending individuals accountable under these laws promote discipline and professionalism within their forces, maintain responsible command, and improve relations with the civilian population. States and non-state armed groups that fail to establish such accountability undermine their standing in conflict areas and globally, and increase the likelihood of international action being taken against them. Such accountability is also necessary for the victims of laws of war violations and their families who seek justice for their plight.

What are the obligations of states generally to ensure respect for the laws of war?

All states, whether or not a party to the conflict, have a responsibility under the Geneva Conventions of 1949 to exert their influence, to the degree possible, to stop violations of international humanitarian law. Such action can be taken unilaterally or as part of multilateral measures, such as collectively imposed sanctions against a state, an armed group, or certain individuals.

Who is primarily responsible for ensuring accountability of individuals who have committed laws-of-war violations?

Ensuring justice for serious violations is, in the first instance, the responsibility of the states whose nationals are implicated in the violations. States have an obligation to investigate serious violations that implicate members of their forces or other persons under their jurisdiction. The state must ensure that military or domestic courts or other institutions impartially investigate whether serious violations occurred, identifying, and prosecuting the individuals responsible for those violations in accordance with international fair-trial standards, and imposing punishments on individuals found guilty that are commensurate with their deeds.

While non-state armed groups do not have the same legal obligation to prosecute violators of the laws of war within their ranks, they are nonetheless responsible for ensuring compliance with the laws of war and have a responsibility when they do conduct trials to do so in accordance with international fair trial standards.

When are violations of international humanitarian law considered war crimes?

Individuals who commit serious violations of international humanitarian law with criminal intent-that is, intentionally or recklessly-are responsible for war crimes. War crimes include a wide array of offenses, among them deliberate, indiscriminate, and disproportionate attacks harming civilians, using human shields, and committing torture, enforced disappearances and summary executions. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, or aiding and abetting a war crime.

Responsibility also may fall on persons who plan or instigate the commission of a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.

Is the Sri Lankan government meeting its obligation to investigate allegations of laws-of-war violations?

All too often, states whose citizens are implicated in serious violations in the laws of war lack the will or capacity to investigate and prosecute these crimes. Human Rights Watch has reported on this failure in a number of contexts, for instance with respect to Ethiopian forces in Somalia, US forces in Iraq and Afghanistan, Israeli forces in Gaza, and Russian forces in Chechnya.

In the year since the conflict ended the Sri Lankan government has failed to undertake any meaningful investigation of laws-of-war violations. It has established two ad hoc inquiries, but both lack the mandate to conduct proper investigations.

In response to an October US State Department report detailing hundreds of allegations of laws-of-war violations, the Sri Lankan government established a committee of experts to examine the allegations contained in the report. The committee has missed two deadlines, and in April 2010, the chairman of the committee conceded that they have no investigatory powers, which has hampered the inquiry.

Faced with increasing criticism over the lack of investigation, President Mahinda Rajapaksa appointed a second ad hoc inquiry since the end of the conflict, an eight-member commission of inquiry called the Lessons Learnt and Reconciliation Commission (LLRC), on May 17, 2010. Tasked with examining the failure of the 2002 ceasefire and the "sequence of events" thereafter, the commission does not have the mandate to investigate alleged violations of the laws of war.

The mandate of the LLRC also suffers from shortcomings that have plagued the work of previous Sri Lankan commissions (see below) and make it unlikely that the commission will be able to accomplish its limited mandate. For example, there is no proper victims and witness protection program in place, which will make people critical of the government reluctant to give testimony.

The appointment of Chitta Ranjan de Silva as chairman also raises questions whether the commission will be able to objectively accomplish its mandate. De Silva previously served as attorney general and he has been criticized for his interference with the 2006 Presidential Commission of Inquiry (see below).

Is it possible for victims, civil society, and media in Sri Lanka to demand that Sri Lanka meets its obligation to investigate these allegations?

Throughout the decades-long conflict, successive Sri Lankan governments and the LTTE have both attacked civil society actors and media critical of their actions. With the renewal of major military operations in 2006, media and civil society came under increased pressure. Several journalists critical of the government and the LTTE were killed, subjected to enforced disappearances, threatened or assaulted.

Attacks on and intimidation of government critics have continued since the conflict ended. In August 2009, the government prosecuted a journalist critical of the government; after a trial in which questionable evidence was introduced, he was sentenced to 20 years in prison for his journalistic activities. Although he has been paroled and the government has recently said that he will be pardoned, the conviction sent a strong signal to other journalists and civil society activists. As a result, dozens of journalists and civil society activists have the left Sri Lanka in the last couple years, undermining Sri Lanka's once vibrant civil society.

Sri Lankan authorities insist that government forces conducted a "civilian rescue operation" during the last months of the conflict. High-ranking government officials, including President Rajapaksa, have on several occasions stated that government forces did not commit any violations and that no civilians died at the hands of government forces. This narrative of the conflict's final months became an important part of President Rajapaksa's successful re-election bid in January 2009.

As a result, it is particularly risky in Sri Lanka to allege that government forces committed laws-of-war violations or that high-ranking officials were implicated in war crimes. On May 6, Sri Lanka's defense secretary, Gotabhaya Rajapaksa, said in an interview that anybody who cooperates with the international community to undermine the sovereignty of Sri Lanka is a traitor and deserves capital punishment. It was apparent that the comment was directed towards retired General Sarath Fonseka, who during his campaign for president against Rajapaksa said that he would be willing to testify about war crimes committed during the conflict. The Sri Lankan authorities have filed criminal charges against Fonseka accusing him of inciting unrest when he accused Gotabhaya Rajapaksa of committing war crimes. In another example of the government's intolerance of any challenges to the official narrative of the war, Sri Lankan security forces prevented residents of the northern city of Jaffna from gathering to commemorate the victims of the war on the first anniversary of its end, May 18, 2010.

Have Sri Lanka and the LTTE met their past obligations to hold accountable individuals responsible for serious violations of the laws of war?

Sri Lanka's long civil war has been characterized by a climate of impunity for perpetrators of serious human rights violations. Very few members of the security forces have been prosecuted, let alone successfully convicted, for horrendous crimes. In response to domestic and international criticism, the Sri Lankan government has over the years established various special commissions to investigate allegations of abuses. These include, among others, eight separate presidential commissions of inquiry established between 1991 and 1998 specifically devoted to investigating enforced disappearances; a commission of inquiry into the alleged establishment and maintenance of an unlawful detention and torture facility in 1995; a commission of inquiry into the killing of 27 Tamil inmates of the Bindunuwewa Rehabilitation Centre on in October 2000; and in 2001, the Presidential Truth Commission on Ethnic Violence covering events of 1981-1984. The Sri Lankan Human Rights Commission also appointed a special committee to investigate reported enforced disappearances in Jaffna between 1990 and 1998. These Commissions investigated tens of thousands of complaints. The "disappearance" commissions alone received nearly 30,000 complaints (including some duplicates) and recorded evidence in over 20,000 of these cases; another 16,305 cases remain uninvestigated. They identified thousands of alleged perpetrators and recommended legal action, along with reparations to victims and legal reforms to prevent future violations.

Reports of most of these commissions were published, and although some families received monetary compensation, most recommendations made by these commissions were never implemented. There were few prosecutions of those named in the reports, and even fewer convictions. Hundreds of security personnel indicted as result of commission findings were returned to active duty by the Inspector General of Police in 2001.

During President Rajapaksa's first term there was a surge in abuses by both government security forces and the LTTE, including laws of war violations such as the murder of 17 aid workers in August 2006, which created pressure to set up new investigatory bodies. In November 2006, Rajapaksa established with much fanfare the Presidential Commission of Inquiry, which was tasked with examining 16 high-profile cases that implicated both sides. As with previous commissions, however, the commission was a failure. A group of international experts, appointed to ensure the investigation was being conducted according to international norms and standards, resigned in 2008 because it had "not been able to conclude...that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards." The international experts cited the inappropriate role of the attorney general in the work of the commission, the lack of a victim and witness protection program and lack of political will to investigate the cases among the reasons for their resignation.

In June 2009, Rajapaksa dissolved the Presidential Commission of Inquiry, even though it had conducted investigations in just 7 of its 16 mandated cases. The president has not published its report.

What other mechanisms are available when states fail to investigate these violations?

Historically, states that failed to conduct investigations into serious violations of the laws of war compounded the problem of impunity by invoking the principle of sovereignty when any other authority sought to examine the matter. However, significant and important advances over the past two decades in international criminal law have made the prospect of accountability more of a reality, even in the absence of willingness on the part of states to ensure such accountability.

The treaty creating the International Criminal Court (ICC), which was adopted in 1998 and went into effect in 2002, empowers the court to investigate and prosecute individuals alleged to be responsible for war crimes, crimes against humanity, and genocide when states are unwilling or are unable to do so. The ICC can undertake a criminal investigation and prosecution if the suspected perpetrators are citizens of a state that is party to the ICC treaty, if the alleged violations are committed in the territory of a state that is party to the ICC treaty, or if a state that is not a party to the treaty asks the ICC to become involved in violations committed on its territory. Sri Lanka is not a party to the ICC. However, the ICC can assume jurisdiction if the UN Security Council refers a situation to the court, as it did in 2005 when it referred the situation of Darfur to the court even though Sudan had not ratified the ICC treaty. Security Council action, as in all cases, depends on a positive vote by nine of the 15 council members and no negative vote, or veto, by any of the five permanent members.

As discussed below, the UN Security Council, the UN Human Rights Council and the UN secretary-general could also set up international investigation into alleged laws-of-war violations and recommend whether criminal investigation and prosecution of certain persons would be appropriate.

Certain categories of grave crimes in violation of international law, such as war crimes and torture, are also subject to universal jurisdiction, meaning that any state may authorize a tribunal to try offenders. Certain treaties, such as the Geneva Conventions and the Convention Against Torture, require states parties to undertake a criminal investigation and, if warranted, prosecution of suspected offenders who are under that state's jurisdiction, even if temporarily-that is, even if the crime has been committed by a foreign national against another foreign national, in a foreign country. The concept of universal jurisdiction enables states to fulfill this responsibility. It also enables states to try those responsible for other crimes, such as genocide or crimes against humanity.

Can the UN investigate alleged laws of war violations committed during the conflict in Sri Lanka?

Given the poor record of Sri Lanka with regard to conducting impartial and timely investigations into serious violations of the laws of war by its security forces, Human Rights Watch has long called upon the UN to establish an independent international investigation into alleged violations by all sides in connection with the fighting in the Vanni.

Such an investigation could be authorized by the UN Security Council, the UN Human Rights Council, or by the UN secretary-general. The Security Council has authorized similar investigations with respect to other conflicts, such as in Darfur or the former Yugoslavia. The Darfur commission led to the above-mentioned referral to the ICC; the Yugoslav one led to the establishment of the International Criminal Tribunal for the former Yugoslavia. Reports prepared by these commissions, made up of international experts, included fact-finding on abuses and recommendations to ensure accountability.

Under the UN Charter, the Security Council has the greatest stature and authority to establish an investigative mechanism. Given that the Security Council has not previously addressed matters related to accountability in Sri Lanka, it may be necessary to explore other avenues to justice.

The UN Human Rights Council has previously authorized similar investigations, such as the independent international fact-finding mission to Gaza. To date, the Human Rights Council has shown little interest in promoting accountability for serious violations of international human rights and humanitarian law in Sri Lanka, despite the widespread abuses.

Just days after the conflict ended, in May 2009, President Rajapaksa promised UN Secretary-General Ban Ki-moon that this government would address allegations of laws-of-war violations. One year later the government has failed to honor that promise.

On March 5, 2010, Secretary-General Ban told President Rajapaksa that he intended to establish a Panel of Experts to advise him on next steps for accountability in Sri Lanka. The Sri Lankan government responded with a concerted campaign to discourage Ban from carrying out his plans. More than two months later, Ban had yet to appoint the advisory panel.

The UN secretary-general has created international investigations on previous occasions, such as the commission of inquiry that investigated the September 2009 massacre in Guinea.

Could another international tribunal investigate and prosecute individuals implicated in serious crimes committed in Sri Lanka?

Other existing international or mixed international/national criminal tribunals - including those established to prosecute crimes committed in Cambodia, Lebanon, the former Yugoslavia, Rwanda, and Sierra Leone-have no jurisdiction over crimes committed in Sri Lanka. Their mandates are limited to certain crimes in particular geographic areas by UN Security Council resolution or by agreement between the United Nations and the country where the crimes were committed. Were the Security Council to undertake prosecutions by a tribunal outside of the ICC, it would have to establish a new ad hoc court.

Could the International Court of Justice play a role?

The International Court of Justice has the authority only to adjudicate disputes between states, and only with the consent of the governments involved. It may also give advisory opinions on legal questions requested by the UN General Assembly or the Security Council, and on activity-related legal questions from authorized UN organs and agencies, such as the World Health Organization. The International Court of Justice has no jurisdiction to investigate or prosecute individuals.

Can persons suspected of serious violations of the laws of war be prosecuted in other countries?

National courts can and should play a role in combating impunity for grave violations of international human rights and humanitarian law. In the case of certain high-level Sri Lankan officials such as Defense Secretary Gotabhaya Rajapaksa, US courts have jurisdiction over certain offenses because they have dual citizenship with the United States. US courts might also have jurisdiction over Sarath Fonseka, the former army chief who is a US permanent resident, for certain offenses.

National courts can play a role even where there is no direct link to the alleged crime. The "grave breaches" provisions of the Geneva Conventions as well as the Convention against Torture mandate the exercise of universal jurisdiction. "Universal jurisdiction" refers to the competence of a national court to try a person suspected of a serious international crime such as war crimes, crimes against humanity, torture, or genocide.

Many countries have laws that would permit them to exercise universal jurisdiction and prosecute such serious crimes. The practice has lagged behind the laws, out of concern about the potential politicization of the authority as well as issues of resources required to conduct such investigations and prosecutions. There has been a steady rise in the number of cases prosecuted under universal jurisdiction laws in the past decade, particularly in Western Europe. The successful prosecution in national courts-including in France, the United Kingdom, the Netherlands, Spain, Belgium, and Norway-of international crimes committed in countries as varied as Mauritania, Afghanistan, the Democratic Republic of Congo, Rwanda, and Bosnia and Herzegovina shows that universal jurisdiction is becoming a reality. Universal jurisdiction also is gradually becoming assimilated into the functioning of criminal law systems in some countries.

Isn't there a double standard when it comes to international justice, with prosecutions only of individuals from states with less political clout?Many people have criticized the UN Security Council for focusing its international justice efforts on African and Arab parties. Perpetrators of serious crimes in violation of international law should be held to account irrespective of nationality. Nevertheless, the objective landscape of international justice has been uneven. States, often acting through the UN Security Council, have decided when to establish international criminal tribunals and what mandates to provide. Political considerations have been a factor, and the scope of the institutions they have created has not matched the extent of grave crimes committed. Despite this selectivity, these institutions have contributed to establishing accountability at least in respect to the conflicts that fall within their mandate. That is the right thing to do because a victim of a serious violation of the laws of war should not be told she will be denied her day in court simply because another victim's plight was ignored. That said, Human Rights Watch strives to extend accountability efforts for the worst crimes wherever they occur.

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