IIGEP observations on Presidential Commission of Inquiry into HR Violations

April 14th, 2008

Public Statement by The International Independent Group of Eminent Persons (IIGEP):

As you may be aware, the IIGEP is in Sri Lanka at the invitation of the President to observe the work of the Presidential Commission of Inquiry into 16 cases of human rights violations and killings. The IIGEP is further mandated to make recommendations to the Commission for corrective action, and to report to the President of Sri Lanka whether the investigations and inquiries conducted by the Commission are in accordance with international norms and standards.

This Public Statement outlines the IIGEP’s observations on the work of the Commission since the end of February 2007 and until the middle of March 2008. It further summarises the reasons why the Members of the IIGEP took a decision to conclude their work at the end of March 2008.

The IIGEP’s public release of information is governed by paragraph 11 of the Presidential Letter of Invitation which requires the IIGEP to publish the objections raised by the Commission of Inquiry and the Attorney General to the IIGEP’s public statements.

In view of this requirement, please find attached the responses of the Chairman of the Commission and the Attorney General to the contents of the IIGEP’s Public Statement:

PDF Files:

- In Full: IIGEP Public Statement

- Response by Chairman of the Commission

- Response by Attorney General
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Summary of IIGEP Statement:

The 11-member IIGEP said: “Summary executions, massacres, disappearances, wanton destruction of property, and forcible transfers of populations can never be justified. No efforts should be spared to uncover responsibility, including recognition of command responsibility, for such actions.”

The public report gave following reasons for IIGEP’s decision to terminate the mission “with profound regret that more could not have been achieved.”:

1. A conflict of interest in the proceedings before the Commission
2. Lack of effective victim and witness protection
3. Lack of transparency and timeliness in the proceedings
4. Lack of full co-operation by State bodies
5. Lack of financial independence of the Commission

The IIGEP has decided that it will terminate its observation role at the end of March 2008 and close its operations in Sri Lanka by the end of April 2008. It has taken this decision after due consideration and for fundamental reasons. The President of Sri Lanka invited the IIGEP to observe the proceedings of the Commission of Inquiry, to offer recommendations for corrective action, and to assess the conduct of the Commission’s proceedings in the light of international norms and standards. “Despite their best efforts, the Eminent Persons have concluded that they have accomplished all that is possible within the constraints of the prevailing situation. They have thus decided, with deep regret, to end their activities,” the IIGEP statement said.

“The IIGEP has repeatedly drawn attention to the defects above-mentioned and others in the proceedings of the Commission in its three-monthly interim reports to the President, its public statements, and directly to the Commissioners. These critiques and suggestions have been largely disregarded. The IIGEP noted, however, that the Commission has attempted to limit the role of the Attorney General by employing counsel from the Unofficial Bar as lead counsel in two cases (the Trinco 5 and Pottuvil cases).

“This small success, however, has hardly outweighed the atmosphere of confrontation and disagreement towards the IIGEP engendered by organs of Government and – at least in official correspondence – by the Commission. The uncooperative atmosphere has rendered the task of the IIGEP, which approached its work in a spirit of co-operation and, at first, with optimism, disquieting and unpleasant. There seems to the IIGEP to be an absence of political and institutional will on the part of the Government to pursue with vigour the cases under review with the intention of identifying the perpetrators or at least uncovering the systemic failures and obstructions to justice that rendered the original investigations ineffective.

“All Members of the IIGEP are keenly aware of the security situation presently prevailing in Sri Lanka. The Government is faced with an insurgency in which the Liberation Tigers of Tamil Eelam (LTTE) conduct their hostilities through ruthless methods, not sparing the civilian population. Sections of popular opinion suggest that human rights and respect for the rule of law should take second place to measures necessary to repel these hostilities. The IIGEP rejects this opinion. There is no conflict or incompatibility between the successful conduct of military and security operations on the one hand, and respect for the rights of citizens on the other. Indeed it should be emphasised that respect for human rights, and the conduct of military operations in strict accordance with international humanitarian law, are powerful weapons in the struggle against dissident forces and terrorism in that they help to earn the trust and support of the civilian population. Moreover, they are essential to morale and promote a culture of professionalism and self-respect within the police and armed forces.

“To the extent that emergency conditions may require special state measures derogating from certain peacetime rights, these must be publicly announced, enacted in law, and justified in terms of necessity and proportionality. Summary executions, massacres, disappearances, wanton destruction of property, and forcible transfers of populations can never be justified. No efforts should be spared to uncover responsibility, including recognition of command responsibility, for such actions. The IIGEP has, however, found an absence of will on the part of the Government of Sri Lanka in the present Inquiry to investigate cases with vigour, where the conduct of its own forces has been called into question.”

The IIGEP made following particular recommendations:

1. That the President should ensure that all State bodies comply with international norms and standards and his directive to provide full disclosure of information and cooperation to the Commission.

2. The Government should respect and implement the internationally agreed doctrine of command responsibility as part of the law of Sri Lanka, whereby superiors of those who have committed criminal acts may also be held responsible.

3. The Government of Sri Lanka should establish, as a priority, a workable, effective and permanent system of victim and witness protection. The Commission should endeavour to train the staff of its victim and witness protection unit in order to provide the optimum level of security and assistance to potential witnesses. The IIGEP also calls for the establishment of a facility whereby essential witnesses, who have left Sri Lanka, and who can continue to give first hand evidence as to some of the events under examination by the Commission, can give their oral evidence to the Commission by video-links under conditions of complete safety. In this respect, international support to the Commission has proven critical.

4. The Commission of Inquiry should include in the course of its inquiries an examination of the reasons for systemic failures and past impunity in relation to the cases under review, and consider the making of recommendations for the eventual appointment of independent special prosecutors in cases in which the security forces have been involved in serious human rights violations.

5. The Government of Sri Lanka should provide the immediate and necessary financial resources to the Commission of Inquiry,and place adequate funds at its disposal, to enable it to fulfil its mandate.

6. The Government of Sri Lanka should not entrench the role of the Attorney General as counsel assisting the Commission of Inquiry through legislation.

The IIGEP was fully formed in February 2007, when the President of Sri Lanka invited 11 persons from a number of countries to observe the work of the Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (”the Commission”), which was established in November 2006. The Serious Violations referred to in the Warrant establishing the Commission were 15 cases dating from 1 August 2005 until 16 October 2006. A 16th case was later added.

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