Panelists at a discussion hosted by the American Society of International Law and American University Washington College of Law UNROW Human Rights Impact Litigation Clinic hosted an event on accountability in Sri Lanka that criticised the on-going impunity, and stressed the need for justice and accountability.
The event, which took place on January 22nd comprised of a panel, moderated by Jennifer Leonard, the Deputy Director and Washington Advocacy Director of International Crisis Group. Panelists included Juan Mendez, UN Special Rapporteur on Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment, Yasmin Sooka, one of the experts appointed by the UN Secretary General to serve on the UN Panel of Experts, and Frances Harrison, former BBC foreign correspondent and author of 'Still Counting the Dead'.
Highlighting the impunity for atrocities committed in 2008-09, and ongoing violations in Sri Lanka, Mendez spoke of a referral of Sri Lanka to the International Criminal Court, which has jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide, and stated, "an ICC referral is probably the only way to break the cycle of impunity."
"But if we can't get the Human Rights Council to do a strong resolution on Sri Lanka, I'm very sceptical we could get the UN Security Council to do a referral," he said, adding, "it should be tried. In the meantime, special procedures mandate holders and I try creative solutions to get Sri Lanka to live up to its obligations."
Speaking about cases of torture in Sri Lanka that he had taken official action upon in his capacity as Special Rapporteur, Mendez detailed one such case involving the rape of a Tamil internally displaced woman and said that the Sri Lankan government had failed to respond to his request for an independent probe into this allegation.
Highlighting other cases he had pursued, regarding deaths in custody, Mendez said that the Sri Lankan government had responded to his inquiries with claims of cardiac arrests, etc, and he did not see serious, impartial investigations into these deaths, which he pointed out was what standard international law requires of deaths in custody.
Reiterating that Sri Lanka must respect international law and participate in international procedures that help states fulfill their obligations under international law, he drew attention to 10 outstanding requests to visit Sri Lanka by UN special procedures mandate holders, such as special rapporteurs.
Panelist Yasmin Sooka discussed her work with the UN Panel of Experts, and described how Sri Lanka had asked international organisations to leave Vanni in September 2008 in order "to avoid international scrutiny of what happened on the battlefield."
Refuting the Sri Lankan government's claims that it had conducted the war scrupulously, with no civilian casualties and that it was an asymmetric conflict therefore laws of war do not apply, Sooka stressed that the Geneva Conventions did apply to this conflict, and that they were violated by both the government and the LTTE.
Detailing how the government deliberately denied medical aid and arranged food aid for artificially deflated numbers of people than were in the 'No Fire Zone', she said, "so of course people were starving."
"I have never seen such awful footage and documented suffering as in this conflict," she added.
Describing the repeated displacements of individuals within successive "No Fire Zones," she spoke of how Tamils were compelled to leave sick relatives or people who were killed, behind. "You can imagine the continued trauma for survivors remembering that," said Sooka.
"[Survivors were then put] into one of the largest concentration camps created in this decade: Manik Farm," she added, concluding it was a "grave assault on international humanitarian law."
"Conditions in the war zone were awful; conditions in the camp were awful as well. There are documented human rights violations committed after the end of the war."
Discussing the role of UN agencies on the ground, Sooka said "they were part of fudging the figures. There is a remaining question to address: how many civilians were killed? In our report, we said 40,000... The Petrie [internal review of UN action in Sri Lanka] said 70,000. The Bishop of Mannar says 150,000 people are still unaccounted for. This is shocking."
Criticising Sri Lanka's "total impunity" she said, "there have been no investigations, no attempt to deal with violations at the end of war and ongoing violations" and pointed out there is "yet to be an effort to devolve real power to the Northern Provincial Council. On the political front and dealing with accountability - there has been no action."
Sooka said there have been media releases that South Africa offered to help set up a Truth and Reconciliation Commission in Sri Lanka. Sooka stated that in South Africa, the TRC was only one mechanism in a plethora of mechanisms of reconciliation, truth-seeking, political solutions including a new constitution, etc.
"This is a very different situation from what Sri Lanka finds itself in -- it is a victor and we see victor's justice. We haven't seen victims' right to truth, justice, institutional reform. How do we know a TRC is anything more than an effort to evade accountability?"
Asking "how do member states act to realise their own obligations under international law when Sri Lanka doesn't" Sooka asserted,
"if the international community doesn't intervene in March 2014, many people will ask whether international human rights mechanisms work. If you look at Syria, the Central African Republic, South Sudan - why do governments believe their citizens are fodder and their lives are so cheap? Because there's ongoing impunity."
Panelist Frances Harrison discussed her work collecting testimonials for "Still Counting the Dead", and spoke of how war survivors described themselves as the "living dead" who could not comprehend why they had survived.
"One Catholic nun said she had never confronted evil on the scale they saw in Sri Lanka," said Harrison.
Highlighting the "organised and systematic abuse by security forces in Sri Lanka," she said she personally knows of 14 men and women who were raped and sexually abused in Sri Lanka in 2013 itself, after being abducted and taken to detention centres, where they could hear other Tamils screaming, but were in separate cells and could never see another prisoner. The victims had "very tenuous links to the LTTE" she said.
In some instances, Harrison said torture and sexual violence would be used to elicit information or to coerce them into signing a document that they could not read. However, sometimes they were assaulted when there was no translator present - thus there was no attempt to get information, Harrison surmised. In other instances, the rapes started after signing a statement.
"These cases of sexual abuse are very directly linked to impunity for what happened at the end of the war. This is an ongoing issue,"
"It is shocking that we don't know how many people were killed,”
“It’s extraordinary that we don’t value human life enough to be able know how many were killed, even rounded to the nearest 10,000.”