Earlier Accountability Mechanisms Numerous Commissions of Inquiry
It bears remembering that Sri Lanka has conducted numerous inquiries into abuses and disappearances and even prosecuted a small number of perpetrators, even as the war raged during the 1990s. This is not to overstate the success or impact of previous efforts, and these earlier commissions have been criticized for limited mandates and the absence of a clear connection between their work and judicial proceedings. Nonetheless a brief review of these activities is in order, lest excessive credence be given either to claims that Sri Lanka is not capable of accountability, or that it would necessarily undermine stability or reconciliation.
In 2000, the Batalanda Commission issued a report on allegations regarding torture and abuse at the Batalanda housing estate which implicated a senior superintendent of police and leading politicians, but its recommendations were not implemented. Similarly, in 2002, a Presidential truth commission on Ethnic Violence covering 1981 to 1984 examined the causes and consequences of ethnic violence in the country. Although some analysts consider it a useful historical document, its recommendations were also not taken up, and it appears to have had little public impact. When President Kumaratunga was elected in 1994, she sought to follow through on electoral promises to address past abuses, creating a number of new mechanisms to investigate disappearances and political assassinations, including that of her own husband. She created small regional commissions, which encountered resistance from the military and police, who denied knowledge of abuses. Other steps towards protection of human rights included plans to have senior military officers investigate claims of disappearances in the north and east, and the creation of a Human Rights Commission under the president’s direct supervision to monitor complaints of human rights violations by the military, police, and other state bodies.18 In September 1997, the final reports of the three regional commissions of inquiry were handed over to the president, and it was announced that their contents would be made public. In September 1997, the government publicly acknowledged that 16,000 to 17,000 people had disappeared during the crackdown on the JVP and promised to prosecute the perpetrators. One military commander in Jaffna made an unusual public promise to guard against future
The reports covered political violence by both parties to the conflict around the country dating back to 1988. The commissions apparently inherited some 5,000 complaints from an earlier (1991) commission to inquiry into ‘involuntary removal’ of persons.20 A key concern of human rights advocates was that they did not inquire into violence before 1988 or after the Kumaratunga administration came into power.21 The reports
- 18 Gaston de Rosayro and Matthew Chance, ‘Military Officers to Probe Cases of ‘Disappearances,’ South China Morning Post (16 December 1996), p. 15.
- 19 ‘Sri Lanka: Amnesty International Welcomes News that Reports of Commissions Will Be Made Public,’ (4 September 1997), available at http://humanrights.tqn.com/ b1AIasa372397.htm (accessed 15 May 2012);‘News in Brief: Sri Lanka’s Disappeared,’ The Guardian (4 September 1997), p. 12. John F. Burns, ‘Unable to Beat Rebels, Sri Lanka Eases Stance,’ The New York Times (5 November 1997), p. A3.
- 20 ‘Sri Lanka: Human Rights Developments,’ Human Rights Watch World Report 1999, available at http://www.hrw.org/hrw/worldreport99/asia/srilanka.html (accessed 15 May 2012);Amnesty International, ‘Sri Lanka: Time for Truth and Justice,’ (April 1995), AI Index 37/04/95, pp. 13-14. This earlier commission spanned the period between January 1991 and January 1993, see Permanent Mission of Sri Lanka, ‘Situation Report,’ (Colombo, Sri Lanka/Geneva: Permanent Mission, 1993), p. 8, a statement of the human rights situation to the UN HRC.
- 21 In particular, human rights advocates were concerned about the exclusion of disappearances of Tamils from the east in 1984 to 1988 and disappearances after the government re-took Jaffna in mid-1996. ‘Sri Lanka: Human Rights Developments,’ available at http://www.hrw.org/hrw/worldreport99/asia/srilanka.html (accessed 15 May 2012);see also Inform, ‘Lobby Document: UN Commission on Human Rights, 1995,’ (Colombo, Sri Lanka: Inform, 1995), p. 3. The civil rights movement argued that the commissions should examine incidents since 1984; Inform argues that the commissions should examine events since 1979, the year that the Prevention of Terrorism Act entered into force; Civil Rights Movement, ‘The Investigation of ‘Disappearances’ in Sri Lanka,’ (Colombo, Sri Lanka: Civil Rights Movement, 1998);see also Imran Vittachi, ‘That Time of Terror,’ Sunday Times (15 March 1998), pp. 1, 10. Author’s interview were extensive, although the degree of investigation varied significantly by region.22 Although the mandates were the same, some named names, but others did not. Thus, for example, the commission investigating disappearances in the north and east had considerably less information, largely due to the security situation at the time it began its work. In particular, in Jaffna, the LTTE stronghold, the situation was such that the commission could not go to the region and investigate complaints, but instead invited Tamils residing outside the region to come to the capital and file with the commission at the ministry of justice.23 There was no consistency among reports regarding identification of perpetrators. Although the report for the northern and eastern provinces provided a list of victims and individuals alleged to be perpetrators, the other two commissions did not; the
with the chair of the southern commission and the island-wide commission, Manouri Muttetuwegama, 15 February 1999, Colombo.
- 22 The reports of the three commissions into disappearances are: Final Report of the Commission of Inquiry into the Involuntary Removal of Persons in the Central, Northwestern and Uva Provinces, Sessional Paper No. VI (Colombo, Sri Lanka: Department of Government Printing, 1997); Final Report of the Commission of Inquiry into the Involuntary Removal or Disappearances of Persons in the Northern and Eastern Provinces, Sessional Paper No. VII (Colombo, Sri Lanka: Department of Government Printing, 1997);and Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern, and Sabaragamuwa Provinces, Sessional Paper No. V (Colombo, Sri Lanka: Department of Government Printing, 1997). Additional reports addressed a number of high-profile political killings, including that of the President’s husband. See Report of the Presidential Commission of Inquiry into the Assassination of Mr. Vijaya Kumaratunga (Colombo, Sri Lanka: Department of Government Printing, 1996) and Report of the Special Presidential Commission of Inquiry Regarding the Assassination of the Late Lalith Athulathmudali PC and Connected Events (Colombo, Sri Lanka: Department of Government Publications, 1997). One observer has said that the manner of setting up the commissions was ‘clumsy’ and that not enough human rights experts were consulted; in addition many complainants felt let down because before some of the commissions they were not treated with compassion. Author’s interview, not for attribution, Colombo, Sri Lanka, 9 February 1999.
- 23 Final Report... Northern and Eastern Provinces, p. 57. Thus, while the commission received 537 complaints it investigated only around 100, of which half were of disappearances of soldiers. To be sure, a significant number of Tamils have left Jaffna, in addition to being ‘disappeared’;the population fell from 850,000 to 500,000 between 1981 and 1997, see University Teachers for Human Rights (Jaffna), Information Bulletin (24 August 1997), p. 1.
report for the western and southern region explicitly ruled out such a list, citing the need for confidentiality pending further investigations.24
Finally, the commissions did not all address the same period of time. Although the mandates for all referred to the investigation of disappearances ‘at any time after January 1,1988’,25 one report addressed disappearances through 1991, another through 1996, and one was less clear about its cut-off.26 Nonetheless, the initial accusations by human rights advocates that the commissions would be loath to examine any abuses under the Kumaratunga administration appear to have been somewhat excessive, although the record after 1994 is spotty.
On 30 April 1998, the President established a nationwide commission whose mandate was to investigate the reports of disappearances that the previous three commissions had been unable to address or resolve.27 Again, the commission faced heavy criticism for its limited mandate. Although it did not address complaints before January 1988, it investigated complaints that continued to be received until just prior to the dates when the previous commissions had completed their work. All told, the commissions of inquiry set up under President Kumaratunga identified about 20,000 cases of disappearances, although advocates suggest the number may be several times that.28
In 2006, another Presidential Commission of Inquiry (COI) was established by President Rajapaksa to investigate a series of high-profile assassinations and killings. An attendant international monitoring body, the
- 24 Final Report... Northern and Eastern Provinces, pp. 94—97; Final Report... Western, Southern, and Sabaragamuwa Provinces, pp. 12, 29. The latter commission submitted a list of those implicated under separate cover to the President. See Mario Gomez, Emerging Trends in Public Law (Colombo: Vijitha Yapa Bookshop, 1998), pp. 246247 and 257-258.
- 25 The mandate is reprinted in Final Report . . . Western, Southern, and Sabaragumawa Provinces, pp. 179-181.
- 26 These are, respectively, Final Report... Western, Southern and Sabaragawuma Provinces; Final Report... Northern and Eastern Provinces; and Final Report... Central, Northwestern, North Central and Uva Provinces.
- 27 ‘By Her Excellency Chandrika Bandaranaike Kumaratunga, President of the Democratic Socialist Republic of Sri Lanka,’ Ref. No. SP/6/N/214/97 (photocopy on file with current author).
- 28 Human Rights Watch, ‘Recurring Nightmare.’
International Independent Group of Eminent Persons, was also created, but this group disbanded after finding that the commission did not meet international standards, given the conflicts of interest of several members, and the limited mandate, which did not provide for investigations into serious violations of international human rights law and international humanitarian law. Critics charge that the creation of both bodies was simply a response to donor pressure rather than a sincere attempt to address abuses. The commission was mandated to investigate sixteen serious incidents of human rights abuses since August 2005 and examine the adequacy of investigations to date and recommend criminal prosecutions be initiated by the Attorney-General if necessary. The COI began operations in 2007 but was not renewed in 2009; at that time it had investigated seven of the incidents, but its final report was not made public. Critics, including the international experts group, raised concerns that the appointment of legal officers by the Attorney-General to assist the commission constituted a conflict of interest, given that the COI would be considering the adequacy of prior investigations by the Attorney-General’s office. In 2007, the President of the COI reported that some 2,000 disappearances had been reported to his office, but he also claimed that most had subsequently been ‘found’, a claim refuted by credible civil society organizations.
The national Human Rights Commission, which was created in 1996 to inquire into complaints regarding procedures of government bodies, faced persistent criticism regarding its strength and independence.
The commission was criticized by human rights activists from the outset as weak, particularly because it could address only the ‘fundamental rights’ enshrined in the Sri Lankan constitution, not the far broader rights enshrined in the International Convention on Civil and Political Rights, and only had the power to make recommendations, not to enforce compliance.35 Its work has continued to be limited by the lack of cooperation by both the government and the LTTE, and in recent years, as discussed below, its independence has been undermined by executive interference.36
-  Kishali Pinto-Jayewardena, Still Seeking Justice in Sri Lanka: Rule of Law, the Criminal Justice System and Commissions of Inquiry since 1977 (Bangkok: InternationalCommission of Jurists, 2010).
-  Pinto-Jayewardena, Still Seeking justice in Sri Lanka, pp. 95-99;Anonymous, ‘Againstthe Grain: Pursuing a Transitional Justice Agenda in Postwar Sri Lanka,’ InternationalJournal of Transitional Justice, Vol. 5, No. 1 (2011), pp. 31-51.
-  John F. Burns, ‘Sri Lankans Hear Details of Decade of Slaughter,’ New York Times(21 May 1995). Special Commissions of Inquiry, Gazette of the Democratic SocialistRepublic of Sri Lanka (23 September 1994), pt. 2, supp. The underlying legal basisfor the commissions can be found in the Commissions of Inquiry Act, Gazette (1948),no. 17 and Special Presidential Commissions of Inquiry Act, Gazette (1978), law no. 7,amended by Act, Gazette (1978), no. 4.
-  Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, p. 7.
-  Sujith Xavier, ‘Sri Lankan Presidential Commission of Inquiry (2007): Did It Amountto a Fair Hearing?’ Mexican Yearbook of International Law, Vol. 10, (2010), (onlineversion;not properly numbered). International Crisis Group, ‘Reconciliation inSri Lanka,’ pp. 5-6.
-  Amnesty International, ‘Sri Lanka: Presidential Commission of Inquiry Fails Citizens,’ (17 June 2009), at http://www.amnesty.org/en/for-media/press-releases/sri-lanka-presidential-commission-inquiry-fails-citizens-20090617 (accessed 31 May 2011).
-  Xavier, ‘Sri Lankan Presidential Commission of Inquiry’ (2007).
-  Human Rights Watch, ‘Recurring Nightmare.’
-  Parliament of the Democratic Socialist Republic of Sri Lanka, ‘Human Rights Commission of Sri Lanka Act, No. 21 of 1996,’ Gazette, pt. 2 (23 August 1996), p. 4, art. 10.