DAIS Model United Nations th November 1 st December. Deputy President of the Human Rights Commission

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1 Forum: Issue: Human Rights Commission Human rights violations during the Sri Lankan civil war Student Officer: Aditya Deshpande Position: Deputy President of the Human Rights Commission Introduction Sri Lanka was involved in a 26 year long civil war (that began in 1983), arising from ethnic tensions between the Sinhalese majority and the Tamil (Hindu) minority, in the northeastern part of the country. The conflict was brought to an end in May 2009, when government forces seized the last area controlled by the Tamil Tiger rebels (specifically the LTTE or the Liberation of Tamil Tigers Eelam). The war resulted in the deaths of between and Sri Lankans, with the military operations of both parties involved said to have had flagrant disregard for the protection, rights, welfare and lives of civilians and have failed to respect the norms of international law. 1 Both the LTTE and the armed forces of the government of Sri Lanka have allegedly committed atrocities against the rights of the Sri Lankan people (which include the shelling of hospitals and primary health centres containing civilians, the rape and torture of detainees, the usage of civilians as human shields and the deprivation of the right to liberty and the right to freedom of movement). While the Sri Lankan government has made an effort to conduct an inquiry into the happenings of the civil war (in the form of its Lessons Learnt and Reconciliation Committee - LLRC), its efforts were deemed inadequate since the report prepared by the LLRC did not address the issue of violation of international law 2. Furthermore, the Sri Lankan government has allegedly not implemented all of the recommendations of the committee. The apparent unwillingness of the Sri Lankan government to tackle the issue, has brought it to the attention of the international community, with the United States, along with several other nations and prominent human rights groups all urging the United Nations to call for an investigation. The relevance and urgency of this matter, (which is also very pertinent to nations like Belarus and Congo which have experienced similar situations) makes it a must on the agenda of the UNHRC. 1 Report published in 2011 by a panel of experts directed by UN Secretary General Ban Ki Moon 2 Human Rights Watch World Report 2013: Sri Lanka Research Report Page 1 of 11

2 Definition of Key Terms Human Rights Basic rights that fundamentally and inherently belong to each individual 3 Human Rights Violations Criminal law violations relating to genocide, torture, war crimes, the use or recruitment of child soldiers as well as sexual abuse, political, racial, or religious persecution, and other inhumane acts which are part of a widespread or systematic practice of atrocities. 4 Civil War A war between factions or regions of the same country. 5 Background Information The Sri Lankan civil war The ethnic tensions between the two major communities of Sri Lanka have colonial origins. The perceived favouritism of the British towards the Hindu Tamil population led to resentment among the Buddhist Sinhalese community. Initial communal tensions worsened during the Sri Lankans struggle for independence, causing a divide in the Ceylon National Congress. The rejection of both the Donoughmore Constitution and the Mahavamsa scriptures by the newly formed Tamil political faction led to the first Sinhala-Tamil riots in Repressive acts against the Tamil community (such as the Citizenship Act of 1948 and the Sinhala-Only Act 1956) along with countless anti-tamil, Sinhala-Tamil riots led to great bitterness among the Tamil community, and to the formation of the LTTE in years later, when the LTTE attacked and killed 13 Sri Lankan servicemen (on July 23 rd 1983), the civil war began a gruesome affair characterised by guerrilla warfare on the part of the LTTE (including suicide bombings and kidnappings) and indiscriminate air bombings by the Sri Lankan government. One of the largest civil wars in the South Asian region, the Sri Lankan civil war resulted in the loss of lives over a period of 26 years. The casualty rate or the number of lives lost per year - in the period alone (a 3 legal- dictionary.thefreedictionary.com 4 Barron s Law Dictionary 5 thefreedictionary.com Research Report Page 2 of 11

3 period during which the intensity of the war was reduced as a result of both the Tsunami that struck the region in 2006 and a ceasefire declared in 2002) was approximately In the more intense periods of the conflict ( for instance) the casualty rate was as high as Human rights abuses In the period during and after Sri Lanka s 26 year old civil war, the fundamental human rights of the nation s people have said to have been grossly violated. Human rights violations were reportedly committed by both parties involved. The LTTE (an organisation credited with the creation of suicide bombings ) were allegedly responsible for politically motivated killings, arbitrary arrests, torture, harassment, abduction, disappearances, extortion, and detention. The separatist group (designated a terrorist organisation) is also purportedly guilty of the use of children as soldiers. Members of the group would, according to accounts of victims, forcibly recruit children from their homes, threatening their parents with death in the case of non-compliance. There were also several reported abductions of children from their homes, for use as child soldiers. The usage of minors in the armed operations of the LTTE was so extensive that their average age of recruitment was 15 years. In addition to the above, the Tamil Tigers have also been accused of preventing government activities in the northern and eastern parts of the island, denying the Sri Lankan people in these regions their right to elect a government and killing candidates that stood for election. The Sri Lankan government (specifically the Sri Lankan armed forces) have similarly been accused of the discriminatory arrest and detention of Tamils, the torture of political prisoners and the bombing of Tamil majority civilian areas (including those containing hospitals and primary healthcare centres). In the post-war period, the government has further been said to have arrested and illegally detained reporters and activists that spoke up against it. Reports prepared by human rights organisations like Amnesty International and the Human Rights Watch contain first-hand accounts of political activists that had been tortured and held captive by the Sri Lankan police or the armed forces under the Prevention of Terrorism Act. The most prominent instance of such abuse is the account of Poddala Jayantha, an outspoken critic of the Sri Lankan government s actions during the war, and an advocate of an investigation into the matter who was (in a manner that Amnesty International claims was a norm in post-war Sri Lanka) kidnapped in 2009 (by men that allegedly worked for the government) and tortured in a white van. - They cut my hair and put it into my mouth, then gagged me [ ] they struck both my legs, breaking one at the ankle. They used a piece of Research Report Page 3 of 11

4 wood to smash the fingers on my right hand until they bled. They said, This will stop you from writing. 6 In the course of the civil war, both parties involved have thus either directly or indirectly violated various articles of the United Nations Universal Declaration of Human Rights, including articles 3, 4, 5, 7, 9, 13 and 19. Each of the aforementioned violations is punishable as per the Rome Statute of the International Criminal Court (which will be discussed below). Civil war and accountability Accountability of rebels/ non-government forces Tribunals set up in Yugoslavia and Rwanda have established that rebels (such as the LTTE in the case of the Sri Lankan war) may be charged with breaches of the law or the customs of war, or of Article 3 to the 1949 Geneva Conventions (which protects non-combatants, among others), or crimes against humanity (murder, torture, rape) or genocide. While such tribunals are limited by the geographical area in which they were set up, they have been instrumental in setting an international precedent regarding the liability of non-government forces for breaches of international humanitarian law during a non-international armed conflict. The Rome Statute of the International Criminal Court makes war criminals, belonging both to the government and to non-government forces liable to the ICC for the crime of genocide, crimes against humanity and the crime of aggression when committed as a part of a widespread or systematic attack on the civilian population. The statute applies to all states that are party to it, and any state that accepts the jurisdiction of the ICC, thus imposing without geographical limitations accountability for the violation of human rights in war. Furthermore, criminals accused of violating human rights may also be tried in a special court established in conjunction to the state in question, precedent for which has been established in Sierra Leone in the year Accountability of the state Members of the national government involved in any manner in the violation of human rights are accountable to the people of the nation, the victims of the violations, as well as the international community, and should in keeping with the 6 Research Report Page 4 of 11

5 statutes of international criminal law, following an investigation into their actions, be tried and prosecuted in a manner similar to the one stated above. While it is indeed more difficult for a government to bring members of its own forces to trial for the violation of human rights, this is an essential part of any nation s human rights policy, especially when the country is in (or emerging from) civil strife. The government is obliged to especially ensure that law enforcement and security authorities or organizations are fully accountable, especially in law, in the discharge of their duties 7. Immunity from prosecution or any other form of impunity granted to former or current members of the government negates the very purpose of a policy promoting human rights. It is also of equal importance that the government investigates all allegations made regarding the violations of human rights, and on finding these allegations to be true, make necessary amends. The government in question is obligated to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. 8 Major Countries and Organisations Involved United States of America The United States of America (USA) has been outspoken on the issue of human rights violations in various countries around the globe (and more recently in Sri Lanka) their self-proclaimed role of protector of democracy and liberty making them a major player in any such situation. Though the USA had no involvement in the Sri Lankan civil war, its association with the human rights crisis in the region began in 2007 when it cut off military aid to the Sri Lankan government, and labelled the LTTE to be a terrorist organisation. Furthermore, the USA were also the primary sponsors of a resolution passed by the UNHRC in 2013 that called upon the Sri Lankan government to implement the recommendations of the LLRC and conduct a more credible and independent investigation into allegations of the violation of international human rights law 9. Sri Lanka 7 UN General Assembly resolution 33/173 (1978) 8 International Covenant on Civil and Political Rights 9 A/HRC/22/L.1/Rev.1 Research Report Page 5 of 11

6 The epicentre of this issue, Sri Lanka and its government led by President Mahinda Rajapaksa is the most important country in committee. All decisions and recommendations made in the committee, and all resolutions passed will have a direct effect on the nation and its people. In the event of investigations being conducted into the matter by either an external body or an independent internal body, if the allegations are proven to be true, it could lead to the stepping down of prominent officials in the both Sri Lankan government and armed forces. The government may even have to be replaced which may result in further political turmoil in the region. Heavy reparations would have to be paid to the victims of the human rights abuses which would cast an economic strain on the nation. The EU (primarily Spain, Italy, Switzerland and the United Kingdom) Major members of the EU have voted against Sri Lanka on previous resolutions regarding the issue, in keeping with their policy in favour of foreign intervention (in the case of a violation of international humanitarian law). However the EU itself feels that outside intervention must be kept at a minimum. 10 The countries mentioned in parenthesis were previously donors to the Sri Lankan government (with the UK providing vast amounts of financial aid to the nation) and also cosponsored the resolution submitted by the USA in the UNHRC in Representatives from said countries were also said to have had visited Sri Lanka multiple times in the period after the war and there have been talks of EU member nations (predominantly France) backing a US-led initiative of a coalition humanitarian task force to investigate and act on Sri Lanka s humanitarian crisis. India A neighbour and ally of Sri Lanka (who even deployed its forces in the country to aid the Sri Lankan government in combatting the Tamil extremist groups) who voted against Sri Lanka on the 2013 UNHRC resolution. India is a major player in the region and is also the only foreign nation that has been directly involved in the Sri Lankan civil war. India s large Tamil population makes the Sri Lanka issue a significant influence on Indian politics. Consequently, the opinion of the Indian government on the matter will have a great impact on the actions of both the international community and its Sri Lankan counterpart. China and Russia Both strong advocates against foreign intervention, China and Russia have spoken out in support of Sri Lanka on multiple occasions. China was the primary supplier of 10 Research Report Page 6 of 11

7 weapons and financial aid to the Rajapaksa government during the war, and has undertaken several joint infrastructure projects in Sri Lanka with its government. This vested economic interest as well as China s prominent position in both Global and South Asian politics make it a crucial part of the debate. Amnesty International Amnesty International is a global movement of more than 3 million supporters, members and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. Along with the Human Rights Watch and various other humanitarian relief organisations, Amnesty International has been instrumental in reporting on the events of the Sri Lankan civil war, bringing the stories of victims and survivors of human rights abuse to the international community, and facilitating the aid of people in war stricken areas. Iran, Mexico, Belarus and Congo - nations that are against foreign intervention (or have experienced similar situations themselves) Timeline of events Date Description of event 1976 Liberation Tigers of Tamil Eelam (LTTE) formed as tensions increase in Tamil-dominated areas of north and east soldiers killed in LTTE ambush, sparking anti-tamil riots leading to the deaths of several hundred Tamils. Start of what Tigers call "First Eelam War" LTTE comes to an agreement with the Sri Lankan government and declares a cease fire 1990 Ceasefire breaks down and war erupts between the Tamil Tigers and the Sri Lankan government. Thousands of women and child soldiers are "recruited" by the LTTE 2002 Cease fire brokered by the Norwegian government 2006 Sri Lankan Government accuses LTTE of having carried out a suicide bombing that injured the army chief, retaliates with air strikes against the rebels. As of May 2006, nearly people are killed, 1 million displaced. Research Report Page 7 of 11

8 2009, May Government declares Tamil Tigers defeated after army forces overrun last patch of rebel-held territory in the northeast. Military says rebel leader Velupillai Prabhakaran was killed in the fighting. Tamil Tiger statement says the group will lay down its arms. 2011, April UN says both sides in the Sri Lankan civil war committed atrocities against civilians and calls for an international investigation into possible war crimes. Sri Lanka says the report is biased. 2011, August President Rajapaksa promises, on behalf of his government, to allow 40 year old emergency laws to expire. However, critics say that the introduction of new legislation that allows the detention of people suspected of terror offences without charge continues the state of emergency in a new guise. 2012, November Government dismisses a UN report accusing it of having intimidated UN staff investigating human rights abuses towards the end of the civil war. 2013, March UNHRC passes a resolution urging Sri Lanka to conduct "independent and credible investigation" into alleged war crimes during Tamil Tiger insurgency. 2013, April Amnesty International accuses Sri Lanka of intensifying crackdown on dissent. The organisation urges the Commonwealth not to hold its next summit - due in November there unless the human rights situation improves. Sri Lanka rejects the allegations, saying that a rehabilitation process is under way. Relevant UN Treaties and Events Rome Statute of the International Criminal Court, 1 st July 2002 (A/CONF.183/9) Promoting reconciliation and accountability in Sri Lanka, 22 nd March 2012 (A/HRC/19/L.2) Report of the Working Group on the Universal Periodic Review - Sri Lanka, 18 th December 2012 (A/HRC/22/16) Research Report Page 8 of 11

9 Report of the United Nations High Commissioner for Human Rights on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka, 11 th February 2013 (A/HRC/22/38) Promoting reconciliation and accountability in Sri Lanka, 18 th March 2013 (A/HRC/22/L.1/Rev.1) Previous attempts to resolve the issue The resolution promoting reconciliation and accountability in Sri Lanka (following which the Sri Lankan government formed the Lessons Learnt and Reconciliation Committee) and its revised version that was passed in 2013 both attempted to resolve the Sri Lankan human rights crisis, demanding investigations to be conducted regarding war crimes during the civil strife. However due to conflicting views on the matter in the international sphere (especially regarding the steps to be taken) and the seeming reluctance of the Sri Lankan government in investigating the deeds of members of its own forces, the solution proposed in the resolution may very likely not yield the results desired. Possible Solutions An objective, transparent, non-selective, constructive, non-confrontational and nonpoliticised review of Sri Lanka s human rights record, conducted by a UN body or a UN authorised body Agreement of the Sri Lankan government to conduct an investigation of the issue under supervision from a UN representative Agreement of the Sri Lankan government to an investigation of the issue by representatives of either a local intergovernmental body (such as the South Asian Association for Regional Co-operation) or a UN appointed body Discussion of the issue at a local level involving only those parties that were involved (either directly or indirectly) in the Sri Lankan civil war, so as to alleviate concerns of foreign intervention The creation of an advisory panel, within the HRC, to inspect human rights violations in particular regions or nations (which could lead to the resolution of similar situations in Mexico and Belarus) which would be composed only of nations (or other major entities) involved in the matter Multilateral talks between the Sri Lankan government, the opposition parties in the country and the representatives of the Tamil population across the globe Research Report Page 9 of 11

10 The recommendation of the imposition of a fine on the Sri Lankan government (if and when rights violations are proven) in addition to the arrest of major Army leaders involved in the same Bibliography untreaty.un.org research.un.org blishingeffectiveaccountabilitymechanisms definitions.uslegal.com organizations/sri- lankan- conflict/p of- the- un- human- rights- council- resolution- against- sri- lanka html Appendix i. Report of the Secretary General s panel of experts on accountability in Sri Lanka A report detailing the modalities, applicable international standards and Research Report Page 10 of 11

11 comparative experience applicable to the accountability process with reference to the violations of human rights and international humanitarian law in the course of the Sri Lankan civil war. ii. Body of Principles for The Protection of All Persons A UN General Assembly Resolution (resolution number A/RES/43/173) providing guidelines for the arrest and treatments of persons suspected or convicted of violation of the law iii. The Geneva Convention (Common Article 3) A guide to the expected treatment of the wounded and the non-combatants in an armed conflict. Article 3 applies specifically to conflicts not of an international character, i.e. to civil war and specifies the minimum provisions that the parties involved in the conflict are bound to apply iv. The International Covenant on Civil and Political Rights v. The Rome Statute of the International Criminal Court Research Report Page 11 of 11