Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka/VI Further Obstacles to Accountability

VI. Further Obstacles to Accountability
400. Fear and silence are the enemies of accountability. It is exceedingly difficult for a nation to deal with grave human rights violations of the past and more so if violations continue into the present. A process to achieve accountability needs independent institutions and an environment that permits an open discussion of what happened and of the grievances that led to and fed the armed conflict. Nowhere has it been easy to move from open belligerence to a frank dialogue among citizens with deeply divergent views. But that is what is required. The Panel observes with concern that there are a number of contemporary issues in Sri Lanka, which left unaddressed, will not only continue to impede accountability measures, but will also undermine possibilities for reconciliation and sustainable peace. This section outlines briefly some of these concerns.

A. Triumphalism and denial
401. The defeat of the LTTE by military means following almost thirty years of armed conflict understandably engendered a sense of relief in the Government and among many citizens of Sri Lanka, including Tamils who suffered due to LTTE’s destructive strategies and members of other communities. However, the Government has used its military success to create a discourse of triumphalism, which celebrates its claim to having developed the means and will to defeat “terrorism.” It is a discourse couched in terms of Sinhala majoritarianism that presents the defeat of the LTTE as the defeat of all Tamil legitimate political aspirations.

402. Moreover, the Government denies the human cost of its military strategy, claiming that it mounted a “humanitarian rescue operation” guided by a principle of “zero casualties” in the Vanni. Further, since the war ended, the Government has claimed that those who have a different analysis and who allege serious violations of international humanitarian and human rights law are misguided and prejudiced by the influence of LTTE sympathizers.

403. This report makes clear that the Panel’s view of the events leading up to the defeat of the LTTE and in the immediate aftermath is fundamentally different from that of the Government. By denying that tens of thousands of lives were lost in the Vanni, the Government sends the message that the lives of those Sri Lankans killed there, mostly Tamils, were of no value to the society. By denying that its military operations resulted in tens of thousands of civilian deaths, and intimidating and threatening those who challenge that view, the Government is effectively closing off the opportunity to open a serious, national dialogue on the recent past and the needs of the future. While recognizing that extremism and triumphalism are potent constraints, it is clear to the Panel that, in the future, Sri Lankans need to dismantle these barriers and begin a candid examination of the past.

B. Exclusionary policies based on ethnicity
404. Political, social and economic exclusion based on ethnicity, perceived or real, lies at the heart of the Sri Lanka conflict. Reconciliation in Sri Lanka requires recognition and acknowledgement of the rights of all communities, including Tamils and Muslims, as full citizens. Future policies must be inclusive to prevent the potential re-emergence of violence as a form for expressing grievances.

405. In the Government’s view, the interim recommendations of the LLRC address some important issues, including those related to land and language, among them a Land Kachcheri system and the assurance of language rights as part of a Trilingual Sri Lanka policy. Yet this appears to be contradicted by other recent policies of the Government, which risk further alienation of Tamils and others, including Muslims. For example, standing in contrast to its official position, the policy requiring the national anthem to be sung only in Sinhala sends a message of exclusion to Tamil-speakers and should be reversed. Discrimination such as this shows disregard for the rights and dignity of all citizens and represents the continuation of an exclusionary mindset. Steps should be taken to review those recent decisions that have a potentially discriminatory content.

406. Other desirable steps towards more inclusive policies include rapid dissolution of the High Security Zones and the allocation of land and housing on an equitable basis. The ease with which Tamil speakers can enter public service, in all sectors including security, should be enhanced. While the recent enlistment into the police of members of the Tamil community from the North and East can be seen as positive, great care should be taken to exclude those who committed serious human rights violations as part of paramilitary groups during the armed conflict. It is equally important to begin to recruit Tamils into the Armed Forces. A mono-ethnic military representing the victorious side of a protracted ethnic conflict, and which continues to play a highly visible and assertive role in the country’s administration, even two years after the war ended, is no less than a recipe for future disharmony.

407. The Government’s focus on economic development in the North and East is important, and economic development is a priority for the country as a whole. However, while material support is required for rebuilding the lives of conflict-affected people, these measures are no substitute for truth, justice and reparations.

C. Continuation of wartime measures
408. A number of measures introduced by the Government as part of its strategy to defeat the LTTE continue in place. Today, they amount to an impediment to the ability of all Sri Lankans, especially Tamils living in the North and East, to conduct their lives as full citizens and represent an infringement on their rights.

409. Reference has already been made to the deleterious effects of the continuation of the Emergency Regulations and the PTA, as well as the existence of the High Security Zones, within an overall militarized environment that perpetuates an abnormal civil atmosphere. These measures can only be justified for short periods when national security is genuinely imperilled and must be subject to democratic oversight, including judicial and parliamentary review. As long-term measures they restrict human rights and prevent the proper operation of the rule of law. With no oversight, they easily engender impunity.

410. In the North and East, in particular, the heavy military presence appears to have taken on a longer term character, with the building of cantonments and reported establishment of private business enterprises under military ownership or control. This development is perceived by the populace as part of a continuing counter-insurgency strategy. Significant demilitarization of former conflict zones is necessary so that civil structures can develop without intimidation. Local government should be de facto as well as de jure in the hands of a civilian administration viewed as legitimate by the local population.

411. In addition, the continued use by the State of “elite units” of the Special Task Force (STF) of the police as well as paramilitaries is of particular concern. State proxies used to intimidate citizens and perpetuate violence have no place in a free and democratic society. Moreover, the use of Tamil paramilitaries fosters and deepens ethnic divisions. The Government should have a clear policy aimed at disbanding such groups and prosecuting crimes committed by them. Its own security agencies must certainly not be involved in threatening or criminal conduct, either directly or indirectly, and those responsible should be held to account.

412. Finally, the restoration of a thriving civil society is key to Sri Lanka’s transition and the effectiveness of an accountability process. Policies such as placing the registration of NGOs under the auspices of the Ministry of Defence are inappropriate. Further, it is disturbing to read reports of human rights organizations being investigated by the CID. Pressures on human rights defenders are also of concern; they should have unrestricted freedom of movement throughout the country to be able to monitor and report on human rights issues.

D. Media restrictions
413. A free press is a vital component of a society that respects human rights and is among the conditions required for sustainable peace. While Sri Lanka has a proud journalistic tradition, press freedom was circumscribed during the conflict, especially in the latter stages. While independent media continue to operate, they still face restrictions and intimidation. Many journalists who fled the country during the war because of violence and threats are still fearful and believe that it is not safe to return. Within the country, there is very limited tolerance of views critical of the Government or sympathetic to Tamil grievances.

414. In January 2009, a high-profile journalist and government critic, Lasantha Wickrematunge, was assassinated. In August 2009, J.S. Tissainayagam, a journalist who had published criticism of the Government’s military campaign, was sentenced to 20 years of hard labour, in what was the first conviction of a journalist under the PTA. Another well known journalist and cartoonist, Prageeth Ekneligoda, also a government critic, disappeared in January 2010 and has not been heard of since. These three examples, unfortunately, reflect a much wider malaise.

415. Reporters Without Borders ranked Sri Lanka 158 of 175 countries in its 2010 Press Freedom Index, an improvement of just four places since 2009. In a statement on 30 December 2010, it condemned:


 * …the new forms of censorship and obstruction being used by the Government to prevent diverse and freely-reported media coverage of the situation in Sri Lanka. The fall in the number of physical attacks, threats and cases of imprisonment is to be welcomed, but it is worrying that the authorities are blocking the return of real editorial freedom.

416. Press freedom has at least two benchmarks in Sri Lanka. The first is that journalists be able to publish freely in Sri Lanka, which would require lifting the Emergency Regulations and making amendments to the PTA to bring it into line with international standards. The second would be met when journalists who have fled abroad feel sufficiently safe to return and practice their profession at home.

E. The Tamil diaspora
417. It is to be expected that the Sri Lankan Tamil diaspora, large parts of which provided vital moral and material support to the LTTE over decades, continues to harbour grievances about the plight of Tamils and to protest the actions of the Government during the last stages of the conflict. However, significant elements of the diaspora create a further obstacle to sustainable peace when they fail to acknowledge rights violations committed by the LTTE and its role in the humanitarian disaster in the Vanni.

418. During the last stages of the war, many in the diaspora remained silent in the face of numerous LTTE violations, including holding tens of thousands of Tamils hostage in the Vanni, using violence to prevent their escape and forcibly recruiting children into their ranks. At the end, parts of the diaspora appeared more concerned about preserving the political State of “Tamil Eelam” than about the suffering of the civilian population trapped between two fighting forces.

419. The LTTE engaged in mafia style tactics abroad, especially among expatriate Tamil communities, to generate funds for their cause. Significant parts of the Tamil diaspora, who were supportive of the LTTE, played an instrumental role in fuelling the conflict in this way. It is reported that former front organizations for the LTTE continue to operate through private businesses and to control some of the temple incomes. Activities of these organizations should be monitored. In addition, funds acquired by the LTTE from the diaspora and elsewhere, and which still exist, should be secured for the purpose of making reparations to those in the Sri Lankan Tamil community who were victims in the conflict.

420. Members of the Tamil diaspora, through their unconditional support of the LTTE and their extreme Tamil nationalism, have effectively promoted divisions within the Sri Lankan Tamil community and, ironically, reinforced Sinhalese nationalism. A stable future in Sri Lanka demands that all of its ethnic communities, including those living abroad, recognize and respect the rights and interests of others with whom they share a common homeland. The diaspora, which is large, well educated and has considerable resources, has the potential to play a far more constructive role in Sri Lanka’s future.