Pressure Amounting to Nothing? Sustaining the Fight Against Impunity in Sri Lanka¹

Gudrun Dewey
Project Officer, Police Programme International, CHRI

he resignation of four civil society members from the Government Advisory Panel on Human Rights at the start of October was a demonstration of the continued outrage and hopelessness felt by Sri Lankans in the face of a government that has consistently refused to initiate a functioning system of justice and accountability in the face of widespread killings and disappearances that have been committed by its police and security forces since the late 1970s.² It was also another signal to the international community that the Government must be condemned for continuing to hide behind an empty commitment to human rights and accountability institutions when in reality it allows for abuses to continue with impunity.

The Advisory Panel

The Advisory Panel was created in 2006. It comprised ten members appointed from local civil society by Minister for Disaster Management and Human Rights Mahinda Samarasinghe. Their broad aspiration was to have “constructive engagement with the government with regard to the human rights situation”,³ issuing recommendations for specific investigations and prosecutions of police and security officers involved in extra-judicial killings, detentions, abductions and disappearances.

However, the Panel has proved to be a Government smokescreen. One of the central criticisms raised by the resigning members of the Panel was that the Government had done little to act on its recommendations. In rebuttal, Minister Samarasinghe claims the Government had acted, primarily through re-issuing presidential directives to police in relation to detentions and allowing visits to police stations. However, there is no evidence that these reissued directives have been complied with any more than the original, identical directives.

On resignation, former Panel member Dr Saravanamuttu, stated that “the Government was not serious on protecting human rights or eliminating the culture of impunity, so we wrote to the Minister saying we were giving up our positions with immediate effect.”⁴ Minister Samarasinghe is reported to have commented, “[t]he whole idea of having a committee was to give the opportunity to civil society leaders to sit together with others and discuss issues face to face.”⁵ In reality however, the Government paid no more than lip service to the idea and refused to take heed of the Panel’s recommendations.

Sri Lanka: violence and violations

A frightening number of extra-judicial killings, enforced disappearances and other human rights abuses have been committed in the protracted conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Government. Violent conflict resumed following the disintegration of the ceasefire agreement in early 2006 seeing the reenactment of hard line emergency laws, over 1,500 reported killings, the displacement of more than 250,000 and the disappearance of thousands more⁶

President Mahinda Rajapaksa, alongside his brother Gotabhaya, the Defence Secretary, continue to use the military as a primary tool to resolve the conflict with the LTTE. This conflict has been made particularly brutal due to the illegitimate use of anti-terrorism powers. Anti-terrorism police have extraordinary powers to arrest and detain people without charge for up to a year and in spite of repeated requests, they have released no list of detainees.⁷ In a visit to Sri Lanka this October, UN Special Rapporteur on Torture concluded that the torture of detainees was widely practiced by the police and in particular by the anti-terrorism division, the Terrorist Investigation Department (TID).⁸

Accountability on paper, not in practice

Although the UN and human rights organisations agree that wide ranging human rights abuses are being committed, the Government continues to deny many of the violations are taking place and waives criticism by referring to the treaties it has signed and the range of national commissions and oversight bodies it has established. However most of these mechanisms have come to nothing, many lacking in enforcement power, independence or the political will required for them to function as they should.

Sri Lanka has expressed its international commitment to human rights. One example of this was through implementing its obligations under the UN Convention Against Torture by enacting the Convention Against Torture Act of Sri Lanka (Act No. 22 of 1994). This Act allows for the Attorney General to investigate allegations of torture, file indictments and makes torture a punishable offence with a minimum of seven years imprisonment. In spite of this torture still continues. After his visit last month, the UN Special Rapporteur on Torture reported that torture is frequently employed in Sri Lankan detention facilities and the National Human Rights Commission (HRC) receives a high number of complaints. Despite this, in the thirteen years Sri Lanka’s Convention Against Torture Act has been in force, there have only been three convictions and a handful of cases filed against the police. The Special Rapporteur reflected that the Convention Against Torture Act is not effectively supported by the HRC and that there is an urgent need for an independent human rights body to carry out independent surprise visits to detention facilities. ⁹

Lack of independence is a central failure of Sri Lanka’s national human rights institutions. The 2002 17th amendment to Sri Lanka’s Constitution pledged the removal of political interference from national institutions, including the Human Rights Committee (HRC) and the National Police Commission (NPC). It aimed to create a politically neutral ten-member Constitutional Council to oversee the appointment and disciplinary control of these bodies. However, the Council is not functioning. It has only had four members since 2005. The President is mandated to appoint the remaining members from five nominated by the Prime Minister and Opposition, while the minority parties are to nominate one member, something they failed to do. Instead of appointing the tenth member to form a functioning Council, President Rajapaksa maintains that the council is not operational and, accordingly, he has directly appointed members to the commissions. This unconstitutional system of appointment has severely jeopardised any potential independence of the Commissions and their ability to impartially investigate state related human rights abuses.

On its face, the HRC has great potential. It has eleven offices across Sri Lanka and is mandated with investigative and protective powers to report human rights violations, visit police stations and detention centres, and issue summons to the Government to address issues of concern. It can also act as an educational body on human rights and make recommendations to the Government relating to compliance with international law.¹⁰ Unfortunately, it has never fulfilled the expectations that accompanied its creation in 1997. It is both poorly funded and lacks independence from the Government.¹¹

A similar situation confronts the National Police Commission (NPC). When formed in 2002 it was required to form a procedure for investigating and redressing complaints against the police force, which remains drastically in need of an enforced disciplinary mechanism. The biggest obstacle to its effectiveness is that the Inspector General of Police has acted as its head since 2006. Again, he was appointed directly by the President.

Another accountability mechanism has come in the form of a Commission of Inquiry (CoI). Formed in 2006, the CoI was mandated to investigate sixteen specific human rights violations going back as far as 2005.¹² Yet in the style of other commissions, it has no independence and although an established Independent Group of Eminent Persons (IIGEP) oversees it, in reality the oversight has proved ineffective as the group is only vested with limited powers to observe and report to the President.¹³

The challenges facing civil society

Faced with these challenges, there is much frustration felt by many human rights defenders on Sri Lanka’s local stage, be they lawyers, activists or civil society. There are many local actors who possess the knowledge of the country, the politics, the conflict and the commission system. They are committed advocates for the restoration of the rule of law, they witness the violations and write eloquently on the issues and see nothing changing as a result. They see the problems in the commissions and know what needs to be done, they live under President Rajapaksa and experience the disenchantment and insecurity of unaccountable security forces first hand. Yet like those that sat on the Government Advisory Panel, they are disenfranchised.

International interventions

A recent visit by the UN High Commissioner for Human Rights Louise Arbour, has cast the international focus back to Sri Lanka with her observations of “weakness of the rule of law and the presence of impunity.” Arbour was convinced that human rights abuses will not end without more vigorous investigations, prosecutions and convictions, and proposed the establishment of a UN Human Rights Monitoring Mission to kick-start this process.¹⁴

International monitoring missions have been implemented throughout Asia with the aim of investigating human rights abuses and bringing the perpetrators to justice. In July, Human Rights Watch testified to the UN Human Rights Council it’s belief that a UN mission “could make a real difference”.¹⁵ Yet despite all the calls, experience shows international monitor cannot function without significant support from the local population, civil society and most crucially, a green light from the Government. As for the opinion of international intervention of those working locally, one view is that there is a need to “remedy our own ills and use international support constructively and carefully for that purpose.”¹⁶ Yet, as the International Crisis group has reflected, “given the failure of domestic institutions to protect the civilian population, it is hard to see what alternative might be conceived that would produce a significant improvement in the human rights situation. At the very least the Office of the United Nations High Commissioner for Human Rights should be more active in pushing the government for serious change.”¹⁷ Minister Samrasinghe, speaking for the Sri Lankan Government, maintains that there is no need for the formation of an independent body or an intervention. He denies findings that torture is widely practiced by the police and military, and while he agrees that there is a problem, he argues it only relates to poor funding and staffing and that the only way for the UN to help is to “strengthen the local capacity.”¹⁸ Days before Arbour’s visit, the Government justified its decision to reject Arbour’s suggested UN mission on the basis that it had adequate human rights institutions in place. Considering one of those bodies it cited was the now resigned Advisory Panel, how much longer can the Government hide behind these superficial measures?

Looking to the future

Following the resignation of the Government Advisory Panel, the Sri Lankan Government must come under further condemnation for failing yet again to allow an accountability mechanism to work. It cannot continue to hide behind the treaties it has ratified or the institutions it has created that only pay lip service to the protection of human rights. Nor can it justify the abuses committed by the police and military as necessary side effects of a fight against terrorism. The Government must engage with local civil society on more than just a superficial level, while also allowing for international monitoring to bring political neutrality to an accountability system that presently has none.

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1 Thank you to Alan Keenan and Kishali Pinto-Jayawardena for sharing their reflections.
2 The members that resigned are Nimalka Fernando, Sunila Abeysekera, Rohan Edirisinha and Dr Paikiasothy Saravanamuttu.
3 Nimalka Fernando in interview with A Vamanan (17 October 2007) “International Monitors a Must” The Morning Leader (Canada).
4 (15 October 2007) “HR panel falls apart following Arbour visit” http://www.lankanewspapers.com/news/2007/10/20363.html
5 Ibid.
6 International Crisis Group (14 June 2007)
Sri Lanka's Human Rights Crisis: Crisis Group Asia Report No 135
7 Human Rights Watch (6 August 2007) Human Rights Under Seige http://hrw.org/reports/2007/srilanka0807/srilanka0807web.pdf
8 United Nations (29 October 2007) Special Rapporteur on Torture Concludes Visit to Sri Lanka , Press Release:
http://www.unhchr.ch/huricane/huricane.nsf/view01/F493C88D3AFDCDBEC1257383006CD8BB?opendocument
9 United Nations (29 October 2007)
Special Rapporteur on Torture Concludes Visit to Sri Lanka , Press Release: http://www.unhchr.ch/huricane/huricane.nsf/view01/F493C88D3AFDCDBEC1257383006CD8BB?opendocument
10 Established by Human Rights Commission Act, No. 21 (1996)
11 The current head of the HRC is Minister Samarasinghe, who was personally appointed by the President in April 2006. Note that the HRC is currently due for accreditation review by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), which will look at its compliance of appointment procedures with the Paris Principles, and “whether the actual practice of the Commission remains balanced, objective and non-political, particularly with regard to the discontinuation of follow-up to 2000 cases of disappearances in July 2006”: See (March 2007) ICC Sub-Committee on Accreditation Report, p. 8.
2 CoI website: www.pchrv.gov.lk/Index.htm.
13 See further Kishali Pinto-Jayawardena (Summer 2007) “ ‘Cosmetic ’ Commissions and the Rule of Law in Sri Lanka”, CHRI Newsletter
14 High Commissioner for Human Rights, Press Statement on Conclusion of Visit to Sri Lanka (13 October 2007):
http://www.ohchr.org/english/press/newsFrameset-2.htm . Arbour is due to present her findings before the Human Rights Council on 10 Dec. 2007.
15 See Human Rights Watch (26 July 2007) “The UN Human Rights Council: Testimony Delivered to the US Senate Foreign Relations Committee”:
http://hrw.org/english/docs/2007/07/26/usint16521_txt.htm.
16 Kishali Pinto-Jayawardena (21 October 2007) “Focus on Rights: Blind refusal to see the realities for what they are”
The Sunday Times (Sri Lanka).
17 International Crisis Group (14 June 2007) Sri Lanka’s Human Rights Crisis: Crisis Group Asia Report No 135, p. 31.
18 Tamil Eelam News Services (31 October 2007) “Sri Lanka Denies Nowak’s UN Report on Torture”:
http://www.tamileelamnews.com/news/publish/tns_8857.shtm