The Investigation Report issued by the Office of the United Nation’s High Commissioner for Human Rights (OHCHR) dated 16th September 2015, is the most comprehensive report on human rights issued by any international or national agency to date. It is comprehensive and balanced. If implemented it could lead to considerable positive developments in Sri Lanka. This 261 page report sums up some of the most serious problems relating to the rule of law and the administration of justice that have arisen over a considerable period of time. Although the period relevant to the Report is from 2002-2011, it in fact reflects the development over four decades, on the collapse of law and democracy in all related institutions. The report also presents detailed recommendations for the pursuit of reconciliation and administration of justice in Sri Lanka.
Subject matter of the report centres on violations of international human rights law, international humanitarian law, and international criminal law. These violations are analysed in detail with a long list of basic themes. They include unlawful killings, allegations of extra judicial executions in the final phase of the armed conflict, violations relating to the deprivation of liberty, enforced disappearances, torture and other forms of cruel and inhuman degrading treatment, sexual and gender based violence, abduction of adults and forced recruitment, recruitment of and the use of children in hostilities, control of movement, denial of humanitarian assistance, screening and the deprivation of liberty of internally displaced persons. What makes the report most relevant is the examination of the manner in which justice is dispensed and accountability ensured. A critical exposure of failures of administration of justice at all levels, and the failure to ensure accountability at all levels, is a valuable contribution to the impasse that the country is facing.
The report, while giving details of individual instances of crime, establishes the patterns of occurrence of these crimes, thereby pointing to the systemic factors that have made these crimes possible. It brings up the issue of command responsibility. It points to the planning of these crimes, and the prevention of investigations into these crimes. They are not merely violations of individual perpetrators, but by persons who bear responsibility at each level, including the highest political echelons.
In the same manner, the report has looked into the accountability of state security forces. It examines the responsibility of the LTTE and other relevant groups, from the point of view of accountability as to crimes committed by them. This demonstrates that the report has kept to its scope on violations of international human rights law, international humanitarian law, and international criminal law only. Whoever has committed these crimes are made accountable for these crimes.
What comes out clearly from this report is that although its immediate scope is the commission of crimes by security forces and the LTTE, it reveals a situation that exists in Sri Lanka which goes far beyond the conflict between the government and the LTTE. The violations of international human rights law, international humanitarian law and international criminal law, are equally relevant to earlier instances such as the 1987 (Janatha Vimukthi Peramuna), JVP uprising and its repression as well as the second uprising of the JVP from the 1988 to 1991. In both these instances a similar or more extensive list of crimes, could have been recorded. Apart from what is specific to the conflict with the LTTE, is that this report points to a pattern of commission of crimes, which has repeated itself many times in the past. So, from the point of view of overcoming the recurrence of such patterns, this report can be of the greatest value.
The recommendations proposed for ensuring accountability, can provide renewed opportunities. They will help to address the larger problem affecting the collapse of institutions of justice and the failure of good governance, due to the lack of enforcement of accountability. For example, the talk of hybrid courts, bringing in judges, prosecutors and lawyers and other legal experts from commonwealth and other jurisdictions is a necessity. It will deal with the specific issues of the recent conflict but also re-establish the independence of the judicial institutions. It can create credibility for the Attorney General’s Department, in the modernisation of the Sri Lanka’s policing system and the upgrading of the quality of discipline in the armed forces.
A wave of some barbaric crimes, such as the cruel rape and murder of the child Seya Sadewmi, created a massive, popular protest-some even calling for reintroduction of the death penalty. What such demands demonstrate is the widespread frustration that prevailed throughout Sri Lanka in the failure of the administration of justice and in the enforcement of the law. Re-introducing the death sentence is of course no solution to this colossal problem. However, strict enforcement of the recommendations that have been put forward by the international community through this Report and the proposed resolution, can go a long way in reconstructing basic institutions of justice and accountability.
