September 14, 2011


[Government claim: On 25 August 2011, the president announced the government would not renew the emergency regulations (ERs), which have been in force for much of the last 30 years. He claimed the country can now “function democratically under the ordinary law”.  The ERs, promulgated under the Public Security Ordinance No. 25 of 1947 (as amended), lapsed on 31 August. ]

1. Post-war progress? Assessing government claims 

More than two years after the end of Sri Lanka’s civil war, the political situation in the country remains deeply worrying. The unique opportunity the government has to build a lasting and just peace after the defeat of the Liberation Tigers of Tamil Eelam (LTTE) is being lost. The government  has not taken credible steps to ensure accountability for the grave allegations of war crimes and crimes against humanity identified in the April 2011 report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka. Nor has the government pursued policies to reconcile the country’s ethnic communities after decades of political violence and conflict. Instead, its post-war agenda has been to further centralise power, expand the role of the military, undermine local civilian authorities, and politicise the institutions that should uphold the rule of law and combat impunity. As argued in Crisis Group’s most recent report, the risk of an eventual return to violence is growing again.
There are strong grounds to question the government’s claims of progress on crucial post-war issues such as the state of emergency and repressive anti-terrorism laws, militarisation and insecurity, resettlement of internally displaced persons (IDPs), reintegration of alleged ex-combatants, and a political settlement on devolution and minority rights. As demonstrated in the following brief assessment of those issues, much of what the government tells the international community and its own people does not reflect reality on the ground. This reinforces the need to press the government to allow visits from relevant special procedures, including the Working Group on Enforced and Involuntary Disappearances and the special rapporteurs or representatives on extrajudicial executions, torture, violence against women, the protection of human rights while countering terrorism, the human rights of IDPs, and children and armed conflict.
State of emergency and anti-terrorism laws
Government claim: On 25 August 2011, the president announced the government would not renew the emergency regulations (ERs), which have been in force for much of the last 30 years. He claimed the country can now “function democratically under the ordinary law”.  The ERs, promulgated under the Public Security Ordinance No. 25 of 1947 (as amended), lapsed on 31 August. 
Reality: Far from reverting to “the ordinary law”, the government has now extended some of the most controversial powers under the ERs by issuing parallel regulations under the similarly repressive Prevention of Terrorism Act No. 48 of 1970 (as amended) (PTA). These include the continuance of militarised high-security zones (HSZs) and the detention (without charge or access to legal counsel) of thousands of LTTE suspects, including the remaining 3,000 of those detained for “rehabilitation” at the end of the war – nearly all of whom already have been held beyond the ERs’ two-year maximum. The new PTA regulations, which the government made public belatedly in September, are to be replaced with permanent legislation in due course, including an “omnibus empowering provision that enables the secretary of defense or the president to pass regulations as it is deemed necessary”.
The PTA itself allows arrest for a broad range of offences including causing “mischief” to public property, causing “religious, racial or communal disharmony or feelings of ill-will”, and interfering with “any board or other fixture” in a public place.  It also makes confessions to police admissible as evidence which encourages already endemic torture, permits detention without charge for up to eighteen months (more than the expired ERs), and grants government officials immunity for acts done in good faith and pursuant to any direction or order under the PTA. Hundreds of PTA detainees have been held for years. In short, the expiration of the ERs has brought little change in law or practice. The most potent emergency powers, which have long encouraged abuse and impunity, remain intact.
Militarisation and insecurity
Government claim: The government has embarked on what it calls a “comprehensive programme of socio economic development in the former theatre of conflict”. While it claims HSZs are being reduced in the north and east, the military’s role in development (as well as in other government and commercial projects across the island) is widely acknowledged. In terms of post-war security, the president recently commented: “From the time when terrorist activities ended in May 2009 until today there have been no reports of any terrorist activities, other than the imaginary ‘Grease Demon’ … We are proud to mention that our government has succeeded in protecting law and order and peace through rules and regulations approved by Parliament based on the Constitution”.
Reality: The actual security situation for the minority Tamil and Muslim communities in the north and east, and for some segments of the majority Sinhalese, is much more precarious. There is deep distrust of the police and army. The “Grease Devil” controversy, which the president blithely dismisses, has in fact resulted in vigilante attacks on and some killings of alleged “grease devils” believed responsible for a spate of attacks on women, particularly in the heavily militarised north and east but also in the central highlands and the south. Civilians have launched violent protests against the security forces, suspecting them of harbouring attackers, while the forces have often responded with arbitrary arrests and excessive use of force, killing and badly injuring protestors. Instead of restoring law and order by investigating the reported incidents and arresting those responsible, the police and military have reacted defensively, displaying the same “with us or against us” mentality that defined the final years of the war. Indeed, Defence Secretary Gotabaya Rajapaksa has made it clear that anyone who challenges the military will be dealt with as “terrorists”, even now.
This most recent violence is occurring against a backdrop of an increasingly permanent military presence in the north and east. The predominantly male, Sinhalese soldiers control nearly all aspects of daily life for the Tamil-speaking residents, a disproportionate number of whom are female and vulnerable. Much of the militarisation is informal, with new de facto HSZs being established as others are being shut down, large areas of the north accessible only to the military, and soldiers taking on a range of commercial activities.  There is no plan for security sector reform on the horizon. While the government claims its development activities are promoting reconciliation, they are in fact increasing ethnic polarisation and distrust.   
Resettlement of IDPs
Government claim: Regarding the nearly 300,000 Tamil IDPs held in camps at the end of the war in 2009, the president told parliament on 25 August 2011 that “we have now resettled all but 8,000 in their former places of living”.
Reality: This is not true. As of 31 July over 60,000 of those “resettled” IDPs were still in temporary settings – living with host communities or in transit situations. Even for those who have returned home, many still rely on food assistance from international donors, and most are living in makeshift shelters. The central government and the military control all humanitarian and development activities in the formerly LTTE-held areas and continue to restrict the activities of local and international humanitarian groups. Another 7,000 IDPs are still in the Manik Farm camps, which the government is quickly closing, moving the residents out but not to their places of origin because those are still closely guarded by the military and reportedly not open to returns because of uncleared landmines. Critically, there are another 100,000 IDPs who were forced from their homes before 2009 – including tens of thousands of Muslims expelled from the north by the LTTE in 1990 – still in camps, with host families or in transit situations. Those IDPs are rarely if ever mentioned by the government. 
Rehabilitation and reintegration of ex-combatants
Government claim: For well over a year, the government has been promoting as a “success” its “rehabilitation” and “reintegration” of the thousands of suspected LTTE cadres detained at the end of the war in 2009. As of 7 September 2011, it claimed that nearly 8,000 had been released while another 3,000 were still in rehabilitation centres.
Reality: There is plenty of reason to doubt that these efforts have effectively “neutralised” former combatants, promoted reconciliation or reduced the risk of a new outbreak of violence. First, these individuals have been detained for rehabilitation without access to counsel or basic rights such as habeas corpus, and many for longer than (or reasons not allowed under) the governing ERs. Second, there is no independent procedure in place to determine whether those detained and later “reintegrated” have any history of perpetrating human rights abuses or are in fact ex-combatants. Indeed, many were not combatants while others participated in forced recruitment of children and other LTTE crimes. Third, reports confirm that after release many former detainees are regularly re-arrested, harassed or forced to act as informants by the military. There is no system of independent monitoring of their treatment or protection.  Finally, thousands of individuals have been missing since the war’s end, with many last seen in military custody – as numerous eyewitnesses have testified to the Lessons Learnt and Reconciliation Commission (LLRC).  To date, the government has launched no credible investigations into these cases and refuses even to make available to family members the names and locations of those detained for rehabilitation.
Political settlement on devolution and minority rights  
Government claim: The president and other senior government officials have frequently expressed their commitment to finding a political solution to the ethnic conflict through negotiations with Tamil and other minority political representatives. At various points they have expressed their willingness to develop “a devolution package, building upon the 13th Amendment”, including in a joint statement with the Indian government on 17 May 2011. The government has pointed to its ten rounds of talks with the Tamil National Alliance (TNA) as evidence of its commitment to a negotiated settlement. In late August, the government began the process of establishing a Parliamentary Select Committee (PSC) that would be tasked with developing “political and constitutional measures to enhance the unity of the people of Sri Lanka, further empower the people to work as a nation, and enable the people to take decisions”. The PSC will have 31 members representing all political parties in parliament, most of whom are part of the government’s large coalition.
Reality: Numerous statements and actions cast doubt on the Sri Lankan government’s commitment to serious negotiations designed to devolve power to the north and east. Most recently, the defence secretary and president’s brother, Gotabaya Rajapaksa, who has de-facto veto power over any government policies relating to security issues, announced that “The existing constitution is more than enough for us to live together…. I mean now the LTTE is gone, I don’t think there is any requirement…. Devolution wise I think we have done enough, I don’t think there is a necessity to go beyond that”. Prior to this, on 4 August 2011, the TNA announced it was suspending talks until the government responded to TNA proposals with its own written positions on such crucial matters as its preferred structure of governance and division of powers between centre and provinces.
The government has refused to state any clear position; the president has instead announced his intention to defer the decision on the contours of a political solution to the PSC.  All major opposition parties – the TNA, the United National Party and the Janatha Vimukthi Peramuna (JVP) – have expressed doubts about the utility of the PSC, and their participation on the committee remains in doubt. Despite the PSC being given a six-month mandate, past experience with such initiatives suggests discussions in the PSC could take years. Sceptics point to the All Party Representative Conference (APRC) established by President Rajapaksa in 2006 with the mandate to agree on constitutional reforms for “maximum devolution” within a united Sri Lanka. Despite nearly three years of negotiations that reportedly produced a draft set of constitutional reforms that had the broad agreement of both government and minority parties, the APRC’s report to the president has never been made public and its valuable work has been shelved.
Finally, widespread scepticism within Sri Lanka about the government’s willingness to devolve power is also based on the highly authoritarian, centralised and militarised way in which the Rajapaksa regime governs the whole country. Since the end of the war in May 2009, power has been further centralised in the hands of the president, his brothers and the military, both through the eighteenth amendment to the constitution in September 2010 and other administrative changes.

2. What should be done?

In the current 18th session of the UN Human Rights Council, member states should:
(a) note the May 2009 Special Session Resolution (A/HRC/S-11/L.1/Rev. 2) regarding Sri Lanka, the panel of experts report, and the Secretary-General’s 25 April 2011 commitment to monitor domestic accountability efforts;
(b) note the government’s insistence at the last session that it is working toward “truth, justice and reparation” including through its Lessons Learnt and Reconciliation Commission (LLRC), whose report to President Rajapaksa is due in November 2011; and
(c) call for full discussion of these initiatives and any progress towards accountability at the March 2012 session, inviting submissions from the government and Secretary-General in advance.
Council members should be prepared in March 2012 to endorse an international inquiry into allegations of crimes by both sides in Sri Lanka’s civil war, unless the government implements a credible accountability process before then. That would require at a minimum:
(a) unqualified public commitments to accountability – expressly from the president and the defence ministry, given the power they wield – including for the allegations of international humanitarian and human rights law violations deemed credible by the panel of experts;
(b) establishment by the government of a new investigative body, independent of the attorney-general, composed of non-political appointees nominated by both the government and opposition parties and fully empowered and resourced to investigate and prosecute alleged violations; and
(c) substantial progress by the government in investigating specific alleged crimes, including the deadly February 2009 shelling of PTK hospital and the alleged executions of LTTE commander “Colonel” Ramesh and LTTE news reader Isaipiriya in May 2009; such progress should include interviewing the units and commanders implicated , reviewing relevant written, photographic and video evidence from government and other sources,  and making public the government’s findings about the events leading to, and the legality of, those killings.
In its most recent report, Reconciliation in Sri Lanka: Harder than Ever (18 July 2011), Crisis Group made the following additional recommendations:
To the Government of Sri Lanka:
1. Immediately revisit policies that are exacerbating minority grievances:
a) end the state of emergency and revise anti-terrorism legislation to comply with international law;
b) make available to family members the names and locations of all individuals detained for suspected involvement in the LTTE;
c) issue accurate death certificates or declarations of absence for those who were killed or went missing in the conflict, without compromising the rights of family members to seek further information or remedies;
d) allow public and open mourning of the deceased, including the establishment of memorials, and assist in the recovery of human remains;
e) permit all displaced persons and returnees full freedom of movement and assembly, expedite the opening of remaining restricted areas in the north and empower local officials and civil society actors to mediate land disputes in a transparent, credible process;
f) reduce restrictions on and improve access for humanitarian and civil society actors, allowing them to increase levels of assistance, including in areas such as psycho-social support and gender-based violence, and determine priorities with input from local communities;
g) return land, houses, vehicles and other property seized by the military and implement a single scheme for compensating victims of all ethnic groups with equal payments and a transparent process; and
h) remove the military from civilian activities, reduce its security role and take immediate action to end all harassment of and attacks on Tamil women by military personnel.
2. Deliver on promises to provider greater autonomy for the north and east:
a) expedite elections for the Northern Provincial Council;
b) decentralise decision-making on economic development, giving local government leaders control over resources and projects; and
c) commit publicly to the goal of reaching a political settlement on devolution in talks with the Tamil National Alliance (TNA), which should be followed by a process that includes independent representatives of Muslims in the north and east to finalise a settlement acceptable to all communities in those regions.
3. Create the conditions needed to pursue meaningful reconciliation among all ethnic communities:
a) acknowledge that the war with the LTTE was not only a war against a ruthless terrorist organisation but also part of a larger ethnic conflict driven by grievances and prejudices of all communities;
b) recognise that a broad, inclusive national reconciliation process, including a truth commission to examine the injustices suffered by all communities, will be needed to sustain peace;
c) end all attacks on and threats against journalists and civil society actors, and stop using state media resources to perpetuate false narratives of the past and present;
d) reverse the consolidation of power in the presidency and military, including by proposing legislation to repeal the Eighteenth Amendment to the constitution and restore constitutional limits on the president’s term in office and power over the attorney general and judiciary, as well as commissions on human rights, police, elections, corruption, finance and public service; and by removing from military control all oversight of non-governmental organisations (NGOs) and decision-making on economic development;
e) break with Sri Lanka’s long history of impunity, including by making public the reports of all presidential commissions of inquiry into human rights abuses, especially those established by President Rajapaksa, and by implementing credible accountability processes for past and present abuses; and
f) request that the LLRC complete its report as soon as possible and release it to the public.
To Sri Lanka’s International Partners, including India, Japan, the U.S., UK, EU and UN:
4. Encourage the conditions needed for longer-term reconciliation and to reduce the risk of a return to violence:
a) endorse and urge swift implementation of the recommendations of the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka (see Appendix B), including the establishment of a complementary international inquiry into alleged war crimes and crimes against humanity (see Recommendations 5a and b);
b) evaluate all aid and engagement in light of the risks of a return to conflict and insist on the highest levels of transparency, external monitoring and non-discriminatory community participation in setting priorities;
c) highlight consistently the issues that affect all communities, including growing authoritarianism, militarisation, emergency laws, weak rule of law, impunity, corruption and repression of dissent;
d) review military-military ties and suspend assistance until there is a credible investigation of the alleged violations of international humanitarian and human rights law identified by the UN panel of experts; and
e) convene a high-level meeting of donors and other development partners, including the World Bank and Asian Development Bank, before the end of 2011 to agree upon and ratify with the government a strong set of principles for the delivery and monitoring of assistance; those principles should incorporate a) to d) above and emphasise the need for the government to commit its own funds to benefit its war-affected populations; in advance of the meeting, the government should be required to propose an assistance strategy and timeline for demilitarisation and return to civilian administration in the north and east.
To the UN and Member States:
5. Support processes to establish accurate accountings of past and present violations of international law:
a) work to establish an international inquiry – pursuant to any lawful authority including the Secretary-General’s or the UN Human Rights Council’s – into the credible allegations of war crimes and crimes against humanity by both the LTTE and government forces, unless the government demonstrates convincingly by the end of 2011 that it is willing and able to hold accountable those responsible for alleged crimes;
b) ensure that the international inquiry is complementary to any credible domestic accountability mechanism that may emerge by, for example: focusing sequentially on certain incidents or categories of crimes and shifting to the next set of incidents or crimes only when the inquiry is complete or parallel domestic processes with respect to those incidents or crimes are proven to meet international standards; the international inquiry could start with alleged attacks on hospitals and humanitarian operations by government forces and child recruitment and suicide attacks by the LTTE;
c) use all available mechanisms – including the involvement of the Office of the High Commissioner for Human Rights, the UN Human Rights Council, the Working Group on Enforced or Involuntary Disappearances and UN special rapporteurs or representatives on extrajudicial executions, torture, violence against women, the protection of human rights while countering terrorism, the human rights of internally displaced persons (IDPs), and children and armed conflict – to press the government to end impunity, improve the situation for current and former IDPs and detainees and open up access for humanitarian and development actors;
d)   follow through on commitments to review UN conduct during the war, as recommended by the panel of experts; but separately from any review immediately revisit the UN’s failed policy in Sri Lanka of holding back on public criticism to maintain humanitarian access; and
e) review Sri Lanka’s contributions to UN peacekeeping operations and refrain from accepting the participation of its troops until there is a credible investigation of the allegations against the military in the UN panel of experts report.
To Tamil Diaspora Groups:
6. Help create the conditions needed to pursue meaningful reconciliation among all ethnic communities:
a) renounce the LTTE’s brutality against Sinhalese, Muslims and Tamils and repression of dissent within the Tamil community;
b) acknowledge that the LTTE shares responsibility for the suffering and massive loss of Tamil life in the north in the final stages of the conflict; and
c) support and cooperate with the investigation and prosecution of alleged war crimes and crimes against humanity by the LTTE throughout the conflict.
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@ International Crisis Group: Working to Prevent Conflict Worldwide

    3 . Crisis Group resources

    For Crisis Group resources on the civil war and its aftermath, see:

    Select previous Crisis Group Sri Lanka reports: