RESOURCES • PEOPLE’S STRUGGLES FOR PEACE & JUSTICE • SRI LANKA

Verdict of the People’s Tribunal on Sri Lanka

Excerpts from the Final Report

PERMANENT PEOPLE’S TRIBUNAL ON SRI LANKA

Trinity College, Dublin, Ireland | 14-16 January 2010

The Complaints

The request to conduct a Peoples’ Tribunal came from the Irish Forum for Peace in Sri Lanka, in a letter dated 19.11.09. The Forum claimed that from the time that the war began in July 2006 through April 2009, according to United Nations internal documents, air raids and the use of heavy weaponry resulted in the death of 116 people per day. British and French mainstream media reported that during the final few weeks 20,000 Tamil people were killed. There were numerous accusations that Sri Lankan security forces were guilty of violating the Geneva Conventions on warfare and of having committed gross war crimes and crimes against humanity, particularly during the last five months of the war, between January and May 2009. The charges included the bombing of civilian habitations, hospitals, and government-proclaimed ‘safety zones’ or ‘no fir e zones’ by security forces, causing innumerable deaths of civilians, doctors and aid workers. Additionally, the charges also included depriving the population of essential services such as food, water, and health facilities in war zones, and other grave crimes against humanity.

Even before the war ended, UN agencies had been voicing their concern to the Sri Lankan Government over the level of impunity surrounding human rights abuses, the continued attacks on civilians by its armed forces, and the denial of aid to the local population residing in areas formerly administered by the Liberation Tigers of Tamil Eelam (LTTE). Nonetheless, Sri Lankan security forces completely ignored these warnings and continued their deadly assault. In the immediate months after the war attention shifted to the plight of over 280,000 Sri Lankan Tamils forced to live in internment camps in the Vanni region. Densely packed in camps, with inadequate infrastructure to provide safe food, water, sanitation and health facilities, the Government announced that the internally displaced people (IDPs) would be kept there until they had been ‘screened’ for possible LTTE sympathies. In subsequent weeks, reports poured in of scores of Tamil youths disappearing from the camps, having been taken away by security forces and government-sponsored paramilitary groups. Hundreds are feared to have died.

Following the international outcry resulting from the forcible detention of Tamil people in these camps for more than 5 months, the Government announced that a significant number of them would be resettled. However, it has been reported in the BBC and other news media that a considerable number of those released were simply moved to new satellite camps in remote areas. The Sri Lankan Government has always vehemently denied all wrongdoing on the part of its forces and has dismissed all accusations as attacks on Sri Lanka’s sovereignty. It has steadfastly refused to permit the media and other organisations, both national and international, including UN bodies, to enter and to ascertain the facts by interacting with local people. In the Sri Lankan south, any call to critically examine the conduct of the war and the action of the Sri Lankan security forces in terms of internationally accepted war conventions and human rights standards, is regarded as treason.

Against this background the Permanent Peoples’ Tribunal was asked to examine the following:

1. Did widespread or systematic attacks directed against the Tamil civilian population take place in the sense that has been described by the ‘Rome Statute’ of the International Criminal Court as ‘crimes against humanity’?
2. Was there an intentional infliction of conditions of life calculated to bring about the destruction of part of the Tamil population, inter alia the deprivation of access to food and medicine, consistent with the definition of ‘extermination’ elaborated under ‘crimes against humanity’ within the Rome Statute?
3. Have Sri Lankan government forces violated the international law of war by executing war prisoners who surrendered themselves to the Sri Lankan Army? Have Sri Lankan armed forces subjected Tamils that they have captured, or those who have surrendered, to torture? Have there been outrages committed against the personal dignity of prisoners, or humiliating and degrading treatment inflicted upon them?
4. Have sexual assault and rape been used as weapons of war?
5. Have murder and disappearance of Tamil people in contravention of the Rome Statute on ‘Enforced disappearances of persons’ taken place?
6. Has there been mass deportation and detention of Tamil people in contravention of international law?
7. Have Sri Lankan armed forces committed war crimes by indiscriminately using heavy weaponry and air power in densely populated areas? Have they utilized weapons forbidden by international law, such as cluster munitions and weapons of chemical nature?
8. Have Sri Lankan government forces committed war crimes by desecrating the dead?

This Tribunal is dealing with the crimes committed by the Sri Lankan government, but not with the crimes committed by the LTTE forces in the war.

The reason for this is that humanitarian law was created to protect citizens from the State. Any crime committed by individuals or groups can be judged and punished by the State. However, crimes committed by the State usually result in impunity, as the State is not willing to judge and punish its own actions.

The category of human rights violations in international law applies specifically to the State. The action of this Tribunal is a mechanism to ratify this principle.

On the Qualifications of the Facts

Summing up the facts established before this Tribunal by reports from NGOs, victims’ testimony, eye-witnesses accounts, expert testimony and journalistic reports, we are able to distinguish three different kinds of human rights violations committed by the Sri Lankan Government from 2002 (the beginning of the CFA) to the present:

• Forced “disappearances” of targeted individuals from the Tamil population;
• Crimes committed in the re-starting of the war (2006-2009), particularly during the last months of the war :
• Bombing civilian objectives like hospitals, schools and other non-military targets;
• Bombing government-proclaimed ‘safety zones’ or ‘no fire zones’;
• Withholding of food, water, and health facilities in war zones;
• Use of heavy weaponry, banned weapons and air-raids;
• Using food and medicine as a weapon of war;
• The mistreatment, torture and execution of captured or surrendered LTTE combatants, officials and supporters;
• Torture;
• Rape and sexual violence against women;
• Deportations and forcible transfer of individuals and families;
• Desecrating the dead;
• Human rights violations in the IDP camps during and after the end of the war:
• Shooting of Tamil citizens and LTTE supporters;
• Forced disappearances;
• Rape;
• Malnutrition; and
• Lack of medical supplies.

War Crimes
The actions included under the second point above clearly constitute “war crimes” committed by the Sri Lankan Government, its security forces and aligned paramilitary forces, as defined under the Geneva Conventions and in the Rome Statute, with regard to the following sections of Article 8.

If this conflict is recognized as international in nature, the following charges would apply:

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions;

If the conflict is of a domestic character, the following charges would apply:

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii) Taking of hostages;

(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions.

So, if we analyze the conflict as either an international conflict or as an internal armed conflict, we have clearly found that war crimes were committed by the Government of Sri Lanka.

Crimes against humanity
The actions included under the points 1 (forced disappearances) and 3 (violations committed in the IDP camps during and after the war) clearly constitute “crimes against humanity”, as defined in the Rome Statute, Article 7, specifically in the following sections:

Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(k) Other inhumane acts of a similar character intentionally causing great suffering , or serious injury to body or to mental or physical health.

The possible commission of the crime of genocide
Although the charge of genocide was not included in the inquiry requested of the Tribunal, some of the organizations and persons that gave testimony insisted that it be recognized that genocide occurred, or may have occurred, against the Tamil population in Sri Lanka. There was not enough evidence presented before the Tribunal to determine that the crime of genocide be added to the charges of war crimes and crimes against humanity. Some of the facts presented should be investigated thoroughly, as possible acts of genocide. Such facts include the following:

• A possible pattern of forced “disappearances” of Tamil individuals carried out by the Sri Lankan armed forces and by paramilitary forces with the acquiescence of the State, directed against crucial members of the Tamil community (journalists, physicians, politicians) to destroy, as Lemkin said, “the grounds for the continuity of the life of the group”(in this case, the Tamil group); and
  
  
• The persistence of the situation of the Tamil population in the IDP camps; the continuity of shootings, systematic rape and forced “disappearances;” the widespread destruction of infrastructure in those parts of the country where there is a concentration of Tamils; and the lack of food, medicine and other fundamental needs for the continuity of life of the Tamil people.

Although the facts listed above are current, we have not received enough evidence to include them as charges. However, the Tribunal acknowledges the importance of continuing investigation into the possibility of genocide.

The right of any human being to be under the protection of humanitarian law
The so-called “global war on terror” has produced the idea that any act committed in such a war should be allowed as the best means to defeat a most dangerous enemy. This kind of new security paradigm has led to the justification of human rights violations against those members of the population labeled “terrorists”. It is fundamental for the verdict of this Tribunal that even considering crimes committed by the LTTE forces, the alleged “terrorists” are under the protection of humanitarian law. Neither war crimes, nor crimes against humanity (the charges that have been recognized by this Tribunal) would be justified by any act committed by the victims.

The importance of highlighting this question is that, within this new security paradigm, members of the population labelled as “terrorists”, or any other extreme qualification, would be excluded from the rest of humanity and therefore would not enjoy any protections ensured by human rights law. This assumption would deny the existence of human rights law as such.

The alleged commission of “crimes against the peace”
The last crime submitted to the Tribunal deals with the charge of “crimes against the peace”. Allegedly, the Government of Sri Lanka and some “external forces” conspired to commit a “war of aggression”. Crimes against the peace were defined in the Nuremberg Tribunal as: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances and/or (ii) participation in a common plan or conspiracy for the accomplishment of any of such acts.

The problem for this Tribunal regarding this part of the accusation is not only with the evidence provided to the Tribunal to support the charge, but also (and mainly) with the consequences of accepting such a concept as part of humanitarian law.

The idea of a crime against the peace supposes that peace exists and that one side of the conflict breaks this peaceful situation through a war of aggression.

However, in the majority of the armed conflicts that humanity have suffered, the situation can be analysed from a more subtle and complex perspective. The definition of the first offender in an armed conflict is difficult to determine and subjective. The manner in which years of oppression accumulate to a critical level may easily become the first act in a “war of aggression.”

That is the case of the years of war within Sri Lanka. The perspective through which the conflict is analysed defines who may be charged with “crimes against the peace”. That is the reason the Tribunal will not endorse specific charges in regards to such a crime.

Nevertheless, on the basis of the evidence obtained and the testimonies heard, the Tribunal acknowledges the responsibilities of the international community, inasmuch it did not take concrete steps to prevent violations of the human rights of the Tamil people, and subsequently omitted the pursuit of war crimes and crimes against humanity.

The Tribunal stresses the responsibility of the Member States of the United Nations that have not complied with their moral obligation to seek justice for the violations of human rights committed during the last period of war. After repeated pleas, and in spite of the appalling conditions experienced by Tamils, the UN Human Rights Council and the UN Security Council failed to establish an independent commission of inquiry to investigate those responsible for the atrocities committed due to political pressure exerted by certain Members.

It also highlights the conduct of the European Union in under mining the CFA of 2002. In spite of being aware of the detrimental consequences to a peace process in the making, the EU decided - under pressure from the United States and the United Kingdom - to list the TRM (Tamil Resistance Movement, which included the LTTE) as a terrorist organization in 2006. This decision allowed the Sri Lankan Government to breach the ceasefire agreement and re-start military operations leading to the massive violations listed above. It also points to the full responsibility of those governments, led by the United States, that are conducting the so-called “Global War on Terror” (GWOT) in providing political endorsement of the conduct of the Sri Lankan Government and armed forces in a war that is primarily targeted against the Tamil people.

The Tribunal also points to the direct responsibility of various countries in providing the Sri Lankan Government with weapons. Some of these weapons are banned by conventions such as the Convention on Certain Conventional Weapons (CCW), and others. In addition, some of those countries also trained Sri Lankan military forces during the ceasefire period.

Recommendations

To the Government of Sri Lanka
The PPT recommends that the government of Sri Lanka:

• Establish as a matter of urgency an independent and authoritative Truth and Justice Commission, to investigate crimes against humanity and war crimes committed by parties to the conflict in the course of the last phases of the war after the collapse of the 2002 ceasefire, and ensure the prosecution of those responsible for war crimes and crimes against humanity;
• Immediately re-establish fundamental freedoms and political rights for the Tamil people, by withdrawing the state of emergency and repealing the Prevention of Terrorism Act of 1979;
• Assure the safety and dignity of the 12,000 plus political prisoners, allowing access to International Committee of the Red Cross and legal representation according to international norms;
• Promptly ensure the protection and integrity of national and international journalists and human rights defenders, and guarantee their legitimate human rights;
• Disband all paramilitary forces and progressively reduce the presence of military forces in the Tamil areas;
• Implement a political power-sharing solution that gives the Tamil people a proactive and legitimate role in the administration and management of the Northeast, while upholding their rights to equal citizenship, participation and representation at all levels, and ensuring a free, fair, and peaceful electoral process in regard to parliamentary elections scheduled for May 2010; and
• Sign, ratify and implement the Treaty of Rome establishing the International Criminal Court. As far as the current situation in the camps and for Internally Displaced Persons, the PPT recommends:
• Allow free and unlimited access to humanitarian organizations, such as the International Committee of the Red Cross, human rights defenders and media to the refugee camps;
• Hand control of the camps from military to civilian authorities, and ensure the resettlement of Tamils in their native lands, managed by civilian authorities and overseen by international organizations with the full and active participation of the affected people;
• Ensure implementation of standards for safe returns, such as the UN Guiding Principles on Internal Displacement, and allow independent international monitoring of returnees, rehabilitation, and reconstruction activities;
• Carry out impact assessments and human audits, and set up a mechanism of accountability and compensation after a proper assessment of damages suffered by the Tamil people; and
• Address the particular condition of women, children, and separated families, allowing access to basic services, post-war rehabilitation, education, and health and psychological care, including treatment for Post-Traumatic Stress Disorder (PTSD).

To the International Community, Donor Governments and the United Nations
The Panel urges to the above that they:

• Appoint a UN special rapporteur for Sri Lanka to investigate and identify responsibilities for human rights violations, violations of humanitarian law and war crimes committed by all par ties in conflict;
• Support the establishment of an independent group of eminent persons to investigate the responsibilities of the international community in the disruption of the ceasefire agreement and subsequent war crimes and crimes against humanity and provision of the Sri Lankan Government with weapons during the ceasefire;
• Establish a field office of the UNHRC to allow for independent monitoring of the human rights situation of the Tamil people, and the implementation of Tamil rehabilitation and resettlement programmes, as well as measures aimed at reinstating fundamental rights, freedoms and the rule of law;
• Create an inter-governmental and inter-agency task force to coordinate donor agencies’ activities to support peace and reconciliation processes, landmine clearance, rehabilitation and post-war reconstruction, subject to the rights and wishes of the Tamils;
• Provide the Tamil people with means to ensure their sustainable livelihoods and meet basic human needs, and support confidence-building programs to enable inter-cultural and inter-ethnic dialogue between the Sinhala and Tamil peoples;
• Investigate the final use and proper redistribution of international emergency and development aid to Sri Lanka for tsunami relief and post-disaster reconstruction;
• Appoint a special international electoral monitoring mission for the upcoming parliamentary elections, scheduled for 2010; and
• Demand that the right to a fair and transparent trial be recognized for the 12,000 plus political prisoners currently detained in Sri Lankan prisons.

Concluding Remarks

The PPT cannot conclude its work without specifically recognizing the fundamental contribution of those eyewitnesses who had the courage to come forward to testify on facts that have touched their lives profoundly and forever. They are the most qualified representatives of the victims, whose numbers will never be known and whose suffering could never be described in full. The recognition and protection of their rights are the reasons for the existence and activities of the PPT.

The PPT is also well aware that in the current situation the rights of those that witnessed the atrocities committed in the country are vulnerable to further violations, both directly against their personal freedom and life, and through the persecution of their families.

Therefore, the PPT declares that any harm that might happen to those that testified or to their families should be considered as the exclusive responsibility of those authorities and actors addressed within our judgement. We commit ourselves to maintain a sharp attention to the safety of the witnesses who have courageously contributed to the fact-finding task of the tribunal. If anything would happen to any of them, we will hold the government of Sri Lanka responsible for that.

The PPT furthermore declares its readiness and commitment to take an active role in monitoring and promptly acting on any consequence that the witnesses might suffer due to the fact of having contributed to our work and deliberations.

Francois Houtart - Chairperson
People’s Tribunal on Sri Lanka

 

Gianni Tognoni - Secretary General

Permanent People’s Tribunal - Rome

 

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