Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka/II Historical and Political Background to the Conflict

II. Historical and Political Background to the Conflict
24. After almost three decades of brutal armed conflict, on 19 May 2009, the Government of Sri Lanka declared its victory over the Liberation Tigers of Tamil Eelam (LTTE). The final stages of the war gave rise to numerous allegations of violations of international humanitarian law and international human rights law, about which the Panel has been tasked to advise the Secretary-General. It is not the role of the Panel to dissect the complex and contested political history of Sri Lanka. Nonetheless, in order to place the final stages of the war in its relevant political and social context, the Panel found it necessary to consider some elements of the history of the conflict.

25. The Democratic Socialist Republic of Sri Lanka is an island State situated in the Indian Ocean, 18 miles off the south-eastern coast of India. Sri Lanka is an ethnically, linguistically and religiously diverse country of 21 million people, of which 74 per cent are Sinhalese, speak Sinhala and are overwhelmingly Buddhist; 18 per cent are Tamil, speak Tamil and are mostly Hindu (comprised of Sri Lankan Tamils and Indian Tamils, 13 per cent and 5 per cent respectively); 7 per cent are Muslim, comprised of Moors and Malays who practice Islam and are largely Tamil-speaking; and 1 per cent belong to small ethnic communities including the Burghers and Veddahs, among others. Christians account for a small percentage of some communities.

26. Sri Lanka gained independence from the British in 1948, after four centuries of colonization, first by the Portuguese, then the Dutch and finally the British. Sri Lanka has been governed, since independence, by an elite group comprised of members of different ethnic communities, within a majoritarian Sinhala State, in which Sinhalese dominate. Strong indicators of democracy, including universal franchise, a multi-party system and a vibrant electoral process, combined with important human development achievements, such as high literacy rates both for men and women and low infant mortality, contrast sharply with Sri Lanka’s long history of war.

A. Ethnicity and politics
27. The armed conflict in Sri Lanka was the violent reflection of deepening divides along political and ethnic lines. It played out as a struggle for the existence of the Sinhalese and Tamil peoples.

1. The rise of ethno-nationalism
28. After independence, political elites tended to prioritize short-term political gains, appealing to communal and ethnic sentiments, over long-term policies, which could have built an inclusive state that adequately represented the multicultural nature of the citizenry. Because of these dynamics and divisions, the formation of a unifying national identity has been greatly hampered. Meanwhile, Sinhala-Buddhist nationalism gained traction, asserting a privileged place for the Sinhalese as the protectors of Sri Lanka, as the sacred home of Buddhism. These factors resulted in devastating and enduring consequences for the nature of the state, governance and inter-ethnic relations in Sri Lanka.

29. By the 1970’s, young Sinhalese from the south, disillusioned by exclusion on class grounds, on the one hand, and young Tamils from the north, disillusioned by exclusion on ethnic grounds, on the other, reacted separately to the emerging State, turning to militancy and launching armed revolts against the State. The State treated these movements primarily as a threat to national security, rather than addressing the underlying political issues, meeting challenges to state power with repression, including disappearances, unlawful killings and torture.

30. In the wake of discriminatory state policies and anti-Tamil violence in the 1950s, the Tamil struggle for rights, which began as Gandhian-style non-violent protests, increasingly gave rise to Tamil militancy and armed revolt, with a central demand for a separate State. A number of Tamil politico-militant groups, including the LTTE, emerged in the 1970’s, as the discourse shifted from accommodation to separatism. Violent repression of Tamils by Sinhala nationalists increased in intensity, alongside increasing attacks by Tamil armed groups against the security forces. Elements in the Government encouraged, or in some cases sponsored, episodes of anti-Tamil violence in 1977, 1979, 1981 and 1983. This violence culminated in the 1983 anti-Tamil attacks, which were the most extensive. Sinhalese mobs were transported in Government buses and used official voter registration lists to identify and target Tamils. Thousands of deaths resulted, together with large-scale displacement, destruction of Tamil property and migration of Tamils abroad. The Government asserted that the attacks occurred in response to the LTTE’s killing of 13 Sri Lankan soldiers in the northern district of Jaffna. Thus, 1983 is commonly regarded as the start of the war between the Government and the LTTE, although violence by both sides predates that year.

2. The Liberation Tigers of Tamil Eelam (LTTE)
31. As repression of Tamils intensified after the 1983 communal riots, the Tamil community became increasingly militarized and the number and ranks of militant groups swelled, taking advantage of the conducive environment for training and organizing in Tamil Nadu. The LTTE began as a Tamil liberation movement and eventually became the most disciplined and most nationalist of the Tamil militant groups, emerging as the dominant force espousing a separatist agenda in the mid-1980s. During this period, the LTTE adopted increasingly violent tactics, using violence to silence other Tamil groups, while asserting itself as the self-appointed, sole representative of the Tamil people. Its elusive leader, Velupillai Prabhakaran, demanded absolute loyalty and sacrifice and cultivated a cult-like following. Internal dissent was not tolerated; those suspected of working or cooperating with the Government were labelled traitors and often killed. LTTE violence directed against Tamils caused deep fear and suspicion within the Tamil community.

32. The LTTE pioneered modern suicide bombing, which it used against military, political and civilian targets. LTTE suicide bombers, both men and women, were responsible for the deaths of Indian Prime Minister Rajiv Gandhi (1991) and Sri Lankan President Ranasinghe Premadasa (1993) as well as numerous Sri Lankan ministers and members of parliament, and moderate Tamil political leaders. It also carried out suicide attacks, often with large numbers of civilian casualties, on economic and religious targets. The LTTE pursued exclusionary politics, expelling Muslims from their homes in the north in 1990 and massacring Sinhalese and Muslims living in villages bordering areas it controlled. Violence, threats and fear were increasingly used by the LTTE to control the Tamil population. The LTTE was also known for its forced recruitment and use of child soldiers, including boys and girls. Its tactics led to the organization’s proscription in numerous countries, including Canada, the European Union, India, the United Kingdom and the United States; its proscription intensified after 11 September 2001.

33. From the 1990s until May 2009, the LTTE controlled large parts of northern and eastern Sri Lanka, the exact contours of which shifted over time as Government forces and the LTTE vied for territorial control. It operated and sought to project itself as a de facto State. To this end, the LTTE developed a well-structured international strategy and, in the territory it controlled, established its own police, jails, courts, immigration department, banks and some social services. It also developed a sophisticated military, with ground, air and naval capacities, and used both guerrilla and conventional tactics, supported by an extensive intelligence apparatus.

34. The Sri Lanka Tamil diaspora, with a population of close to one million scattered across the globe, has grown since the 1980’s, as large numbers of Tamils sought refuge abroad from violence and repression by the State, while others sought better economic opportunities. The diaspora has played a crucial role throughout the war, with segments providing uncritical support to the LTTE, through crucial funding and advocacy, consistently denying any wrongdoing by the LTTE throughout the conflict. Not all support has been voluntary, however. The LTTE extended its tactics, including extortion, beyond the shores of Sri Lanka, into countries with large numbers of Sri Lankan Tamil refugees, using these to impose its narrative of the Tamil aspiration for a homeland and the means for achieving it. It was also intolerant of any criticism and allowed no space for the voices of victims of LTTE violence.

B. Erosion of the rule of law and human rights
35. Sri Lanka’s 1978 Constitution asserts the unitary nature of the State and vests extensive, centralized powers in an executive president, who serves as Head of State, Head of Government and Commander-in-Chief of the Armed Forces; in addition the President may head any ministry at his or her discretion. Currently, President Mahinda Rajapaksa heads five ministries: Defence, Finance and Planning, Ports and Aviation, Transport, and Highways. The Constitution also establishes presidential powers to appoint the heads and judges of the Supreme Court and Court of Appeals. Further, there are no restrictions on presidential appointments of close family members, and in drawing on such options, the current Government has faced criticism of nepotism.

36. Extended periods under emergency rule, using constitutionally-permitted emergency regulations, further strengthened presidential powers, as have the increased politicization of state institutions, including the judiciary, and the weakening of independent checks and balances. Emergency rule has been in place from 1983 until 2001, with a brief hiatus in 1989, and again from 2005 to the present. Among other things, the Emergency Regulations currently in force, along with the 1979 Prevention of Terrorism Act, provide extraordinary powers to the State and limit jurisdiction of the courts to check abuses of power and rights violations. Other laws also greatly weakened the State’s duty to pursue serious violations of rights, in particular the Indemnity Act, No. 20 of 1982 (applicable between August 1977 and 16 December 1988). This measure barred legal proceedings against any minister, civilian or military official, or person acting under their direction in respect of any act, whether legal or illegal, undertaken in good faith to enforce the law or otherwise serve the public interest. By formalizing impunity, the Indemnity Act set a dangerous precedent.

37. These measures helped to create an enabling environment for human rights violations to occur, including disappearances, unlawful killings and torture, which have gone largely unpunished, despite formal legal and constitutional protections against such abuses.12 Gender-based violence, including rape, sexual harassment and sexual exploitation, has also occurred despite legal protection. A number of presidential commissions of inquiry into the persistent pattern of enforced disappearances and other grave violations of human rights have, in some cases, served important fact-finding functions. None, however, has led to justice for victims or addressed the systematic nature of violations. In this sense, then, commissions of inquiry have not been an effective tool for combating impunity, establishing the truth or achieving justice.

38. Efforts to strengthen state institutions and ensure their independence led to the passage of the 17th Amendment in 2001. Aimed at providing a constitutional check on presidential power, it created an independent constitutional council to oversee appointments to commissions on police, elections, human rights, bribery, finance and public service. In addition, the Council was to approve appointments of high judicial officials, the Judicial Service Commission and the Attorney-General, among others. The amendment proved to be relatively ineffective, however, as recent presidents were able to disregard it without serious consequence. In September 2010, Parliament approved the 18th Amendment, which nullified the 17th Amendment, eliminating its measures for independent checks and balances, and abolished presidential term limits.

39. The human rights of all citizens have suffered as a result of almost three decades of war, the degradation of independent institutions and the weakening of the rule of law. As the Government prepared for its final offensive against the LTTE, there was a further erosion of human rights, and several measures led to greater limitations on the space for independent news coverage, dissent and even humanitarian action. Beginning in 2006, the Defence Secretary issued increasingly restrictive guidelines for journalists reporting on military operations, making it an offence to depict operations in negative terms. Further pressures on the media, including a number of high profile assaults, disappearances and killings, led to greater self-censorship. Threats directed at local activists and journalists emanated from unidentified sources, causing some to leave the country. An increase in visa denials and revocations kept international staff and NGOs insecure and, in some cases, may have compromised their positions.

C. Towards the final stages of the war
40. At least three additional factors were significant in setting the scene for what would become the final stages of the war.

41. The first was a short-lived peace process, which commenced in 2000, when the Government of Sri Lanka and the LTTE requested Norway to serve as facilitator. The Parties agreed to a Ceasefire Agreement (CFA) in February 2002 and undertook a number of confidence building measures, including through the creation of a Sub-Committee on Gender to engage women from the LTTE and women from the South appointed in the process, before beginning face-to-face talks. The process was supported by the international community through the Tokyo Conference on Reconstruction and Development (2003), which monitored political progress through the Tokyo Co-Chairs (European Union, Japan, Norway and the United States). The Sri Lanka Monitoring Mission (SLMM), an autonomous international organization created by the Parties to the CFA, monitored on-the-ground violations until January 2008, when the Government disbanded it and formally abrogated the CFA. The LTTE had unilaterally abrogated the CFA in April 2003. After that, and with renewed hostilities in 2006, the CFA largely existed in name only, but its continued formal existence ensured the on-going international presence of the SLMM.

42. Thus, this peace process soon joined the list of earlier peace-making efforts that failed to resolve the protracted conflict due to extremism on both sides, which remained the driving force for continued ethnic polarization and intolerance. Ultra Sinhalese nationalists protested from the beginning against the signing of the CFA; in addition, the LTTE decision to abrogate the agreement in April 2003 and its unilateral proposal to establish an Interim Self-Governing Authority in the north-east further intensified Sinhala-nationalist protests and galvanized a deeply nationalist coalition of political parties – the United People’s Freedom Alliance (UPFA). The UPFA narrowly won the 2005 elections, led by current President Rajapaksa, and provided the political support for the prosecution of the final war.

43. Secondly, in March 2004, the LTTE’s Eastern Commander, Vinayagamoorthy Muralitharan, commonly known as Colonel Karuna, broke away from the LTTE, taking with him some 5,000 combatants. He later established the Tamil Makkal Viduthalai Palikal (TMVP), a registered political party, which maintains a paramilitary section and became a member of the ruling UPFA. The breakaway had a devastating impact on the LTTE. Given Karuna’s place in the LTTE leadership, he had deep knowledge of the highly secretive organization, which the Government used effectively in preparing for the final offensive. In addition, the TMVP paramilitary forces, as well as members of other former Tamil militant groups, who were disaffected from the LTTE, were deployed by the Government in the military campaigns against the LTTE and used in intelligence operations among Tamil civilians.

44. Thirdly, international factors were also important. Initiatives by the United States and other Western Governments to collaborate with frontline States fighting terrorist organizations and their trans-national networks, as part of the “global war on terror”, had serious implications for the LTTE. Already listed by many countries as a terrorist organization, the LTTE was increasingly isolated, both domestically and internationally. Its assassination in 2005 of Sri Lanka’s Foreign Minister, who was Tamil, may have dealt a final blow to the organization’s international image. The Government of Sri Lanka worked within this environment to forge partnerships with other States in its final offensive against the LTTE.

45. After the 2005 elections, both the Government and the LTTE had promised to honourthe terms of the CFA; nonetheless, both Parties continued their military provocations until a full-scale armed confrontation began again in August 2006. When the LTTE closed the sluice gates to the Mavil Oya reservoir, which provided irrigation water for thousands of farmers in the Government-controlled area of the Eastern Province, the Government deployed thousands of troops in an offensive to wrest the Eastern Province from the LTTE. Aided by the Karuna faction, the Government took full control of the Eastern Province in July 2007, for the first time in nearly two decades.

46. The military victory by Government forces in the Eastern Province and, by January 2008, in some parts of the Northern Province, left the LTTE only in control of large parts of the Vanni region. Specifically, of the four districts in the Vanni region, the LTTE was in full control of Kilinochchi, which was its de facto capital, and Mullaittivu. It also controlled the northern part of Vavuniya, north-western Mannar, and small strips in the Jaffna peninsula.

47. Encouraged by the military victory in the Eastern Province, and after nearly two years of strategic preparations, the Government declared a full military operation on 16 January 2008. The United Nations Secretary-General, the Tokyo Co-Chairs and other Member States warned that the Government’s decision to abrogate the CFA and pursue a military solution would have devastating consequences, while at the same time recognizing the Government’s right to undertake counter-terrorism operations on its territory. By mid-February 2008, as the LTTE accelerated suicide attacks across the island, the impact of the war on civilians outside the embattled areas had reached alarming proportions. Aerial bombardment and deep penetration operations of Government forces were also increasingly affecting civilians within the embattled areas. In September 2008, the Government began its final military offensive, moving against Kilinochchi.