2. Sri Lanka

1. The human rights situation

10. I visited Sri Lanka in November/December 2005 and met with government officials, members of civil society and representatives of the Liberation Tigers of Tamil Eelam (LTTE).10 The conflict in Sri Lanka is complex, but its outline may be briefly summarized.11 LTTE began fighting the Government in the late 1970s with the aim of establishing a State of Tamil Eelam in the north and east of the island. In February 2002, the Government and LTTE had signed the Ceasefire Agreement (CFA) brokered by the Government of Norway.

In March 2004 the LTTE Eastern Province commander, Colonel Karuna, split with the LTTE leadership, initially taking with him perhaps one fourth of the LTTE cadres. The "Karuna group" has since killed many LTTE cadres and supporters. Attacks on government forces that occurred during my visit placed CFA under unprecedented stress. Three weeks later the Sri Lanka Monitoring Mission warned that "war may not be far away", and subsequent events have only intensified this perception. 12 At times like this, it is often argued that respect for human rights must await the emergence of political or military solutions. My findings suggest, however, that many of the killings taking place in Sri Lanka are best characterized as human rights violations and best addressed through human rights implementation and monitoring.

11. Civilians are not simply "caught in the crossfire" of this conflict: rather, it involves the intentional targeting of both combatants and civilians, and attacks on both have increased sharply since my visit. From 2002 to 2005, when compliance with CFA was fairly strong, relatively few people were killed each year. As of August 2006, the rate of killing has increased dramatically and some estimates predict a toll of at least 1,200 persons in 2006 if current trends persist. While a full-scale war has thus far been averted, a historical perspective reveals the distinct possibility of further escalation. Up until February 2002, the conflict-related death toll in Sri Lanka was roughly 60,000 people. It would be truly tragic if the past were reprised, especially because the current violence has no potential to lay the groundwork for a future political settlement.

12. The conflict between the Government and LTTE is ultimately a struggle for legitimacy, not territory. The conflict has no military solution, and mere adjustment of the facts on the ground will not fundamentally change either party's position in future negotiations. The hopes of LTTE for autonomy or independence rest on persuading the domestic and international communities that this would be the best solution in human rights terms. However, LTTE has a record of using killings to deter civilians from exercising the freedoms of expression, movement, association, and participation in public affairs. 13 As it stands, no outside observer could wish rule by LTTE on the entire Tamil community, much less on the Sinhalese and the Muslims. 14

13. The Government should not, however, interpret the widespread proscription of LTTE as a terrorist organization as an endorsement of its own record. 15 Neither its past nor its present conduct would justify great faith in its ability to respect equally the rights of all citizens. Indeed, it is an enduring scandal that there have been virtually no convictions of government officials for killing Tamils,16 and many Tamils doubt that the rule of law will protect their lives.

14. A resolution of this conflict that would merit the international community's endorsement will require the Government, LTTE, or both, to demonstrate genuine respect for human rights. This is reinforced by the notion, endorsed by the General Assembly, that there is a "responsibility to protect". 17

15. The strategic importance of achieving and maintaining international legitimacy grounded in respect for human rights is not completely lost on either the Government or LTTE. Indeed, the discourse of human rights is central to the parties' own understandings of the conflict's origins and conduct. Many Tamils, whether or not supportive of LTTE, view the massacres of July 1983 as a legitimate cause for the militarization of Tamil nationalism.

16. When seeking international legitimacy, parties to a conflict can either respect human rights and humanitarian law or can cover up abuses. The conflict in Sri Lanka exhibits aspects of both strategies. Both main parties have shown some restraint, committing human rights abuses that are less pervasive and barbaric than those seen in some recent conflicts. On the other hand, both also violate human rights and humanitarian law while attempting to avoid the loss of legitimacy by committing abuses in a manner that permits them maximum deniability. In Sri Lanka, no one claims responsibility for any violence short of a pitched battle. Indeed, proxies,18 the subversion of accountability mechanisms and disinformation are used to undermine efforts by objective observers to reach compelling conclusions as to responsibility for particular abuses. It is the possibility of employing a strategy of deniability in order to simulate respect for human rights that must be foreclosed so as to pressure the Government and LTTE to seek legitimacy through actual respect for human rights.

17. Precisely because the struggle for legitimacy, including international legitimacy, is so central to this conflict, the international community is exceptionally well positioned to contribute to its amelioration and, ultimately, to its resolution. Thus the critical need is for international human rights monitoring that would definitively identify those responsible for abuses. Effective monitoring would stand a real chance of inducing genuine rather than simulated respect for human rights. Such respect - worthwhile in its own right - would, in turn, also create an environment in which the country's communities might be able to envision a future in which they did not fear peace as well as war.

2. The urgent need for international human rights monitoring

18. When I visited Sri Lanka, there was a near universal consensus that more effective human rights monitoring was required, but there was considerable disagreement regarding the appropriate mechanism for achieving this.19 It was generally understood that no domestic mechanism could respond effectively to conflict-related killings, and that remains the case today. Most interlocutors from civil society thought that a United Nations monitoring mission would be the most effective mechanism, in light of the Organization's established expertise in human rights monitoring and lack of political involvement in the peace process. In contrast, government officials and representatives of LTTE expressed their shared preference for strengthening the Sri Lanka Monitoring Mission (SLMM), the body established by CFA to monitor ceasefire compliance, rather than introducing an additional monitoring mechanism focused on human rights compliance.

19. My conclusion at that time was that SLMM could be strengthened in ways that would permit it to provide relatively effective human rights monitoring.20 The institutional capacity of SLMM to play this role was subsequently demonstrated in at least some measure. Following my visit, the Government of Norway and SLMM took various actions that represented a real attempt to play a more effective role in responding to human rights violations. In March 2006, Major General Ulf Henricsson of Sweden was appointed Head of Mission of SLMM, reducing Norway's conflict of interest between providing accountability for violations and advancing the peace process. In April 2006, SLMM began to exhibit a greater concern with violence directed against civilians, referring for the first time to the "extrajudicial killings of civilians".21 The creativity of the Government of Norway and the increasing assertiveness of SLMM on behalf of human rights are truly commendable; however, for reasons beyond their control, the insufficiency of SLMM to meet the need for human rights monitoring in Sri Lanka is now evident. SLMM was never going to be a perfect human rights monitoring mechanism, but today even the opportunity for it to serve as a "second best" option may be passing.

20. The fundamental reason for SLMM is that it exists at the mercy of the parties. At the time of writing, CFA remains in force. However, the Government or LTTE could elect to unilaterally terminate CFA at any time, thus withdrawing the mandate of SLMM.22 Regardless whether CFA comes to be terminated, the ability of SLMM to conduct monitoring has been gravely undermined. In particular, SLMM has been severely weakened by the decision of LTTE to insist on the withdrawal of monitors who are nationals of EU member States, thereby cutting the SLMM's strength by two thirds.

21. In my report, I observed that, "From a human rights perspective, the goal of strengthening SLMM's human rights role is clearly not sufficient in itself in the medium-term. For pragmatic reasons it seems to be the best interim measure, but before long significantly more will be needed. If the ceasefire fails, and that now appears to be an all too real possibility, the SLMM's role will be in question and there will be an urgent and pressing need to establish a full-fledged international

human rights monitoring mission."23 That time has come. There is today an urgent need for an international human rights monitoring mission for Sri Lanka.

22. It is thus appropriate to reiterate some of the requirements for effective monitoring in the particular situation of Sri Lanka today:

• The details of alleged incidents, the results of investigation, and the basis for the monitoring mission's determination of responsibility should be made public (even if information is redacted to protect individuals).

• The investigative process should be designed to prioritize the protection of witnesses against intimidation and violence.

• The mandate of the monitoring mission should not be geographically limited, inasmuch as conflict-related human rights violations occur throughout the country.

• Because a key purpose of monitoring is to limit the possibility of conducting deniable human rights abuses, the monitoring mission should command a high level of investigative and forensic capacity. This requires, inter alia, persons with police training, persons with medical training, and Sinhala and Tamil interpreters.

• The monitoring mission should be independent of any peace process. Two implications of this are that:

- Regardless whether CFA remains in force, the monitoring mission should not be called upon to investigate violations of CFA. The distinction between violations of human rights and humanitarian law, on the one hand, and of violations of a ceasefire agreement, on the other, must be preserved;

- The monitoring mission should report to a neutral body.

23. This list should not be considered remotely comprehensive. In particular, the design of any monitoring mission must draw upon the lessons learned from past initiatives. The intention of this list is simply to highlight certain requirements for effective monitoring that are specific to Sri Lanka in light of the dynamics and logic of human rights abuse in that country. The United Nations would be well situated to establish a mission fulfilling these requirements.

3. The undermining of independent oversight bodies

24. While my report was critical of the Government's near-complete failure to prosecute or even discipline members of the security forces who commit extrajudicial executions, I credited the Government with taking an important step towards accountability by constitutionally guaranteeing the independence of key oversight bodies, including the National Human Rights Commission (HRC) and the National Police Commission (NPC). I reported that, however, the constitutionally granted authority of NPC to reform the police force had already been challenged by the Inspector General of Police (IGP) and that NPC had received relatively little support from other political actors in this turf war. I noted that, "While most members of civil society and Government that I talked with had favourable impressions of NPC's efforts thus far, some also feared that, in struggling to insulate the police from politics, it would fall victim to politics itself".24 Since my visit, HRC and NPC have both fallen victim to politics.

25. The very concept of a body designed to oversee the conduct of the executive branch of Government is that it be independent of that branch. The mechanism for appointments to HRC and NPC laid out in the Seventeenth Amendment to the Constitution was designed to ensure such independence. Under its provisions, there are two stages of appointments. First, various political actors, including parties in opposition, are permitted to select members of the Constitutional Council. The Constitutional Council, in turn, selects the members of various bodies, including HRC and NPC.

26. The Constitutional Council has not operated since a controversy over who has the authority to select one of its members erupted in March 2005. When the terms of the commissioners of NPC and HRC ended, in November 2005 and April 2006, respectively, those bodies became defunct. The President has subsequently selected and appointed individuals to HRC and NPC, circumventing the procedure specified by the Seventeenth Amendment.

27. Numerous domestic actors have argued that for the Constitutional Council to carry out its duties despite the failure to appoint one of its members would comply with the constitutional procedure. It is not, however, my place to try to resolve a domestic constitutional crisis. But it does seem essential to stress the incompatibility of the current "solution" with international standards.25 There is no worse means by which to ensure an oversight body's independence from the executive than for the executive to directly appoint its members. Similarly, the appointment of a Cabinet-level Minister for Disaster Management and Human Rights cannot, despite some clear achievements on the part of the Minister, be considered to substitute for independent human rights oversight.

4. The role of the diaspora

28. In my report, I argued that the Sri Lankan diaspora has a responsibility to use its considerable political and financial influence and funding to promote and to insist upon respect for human rights, and the report recommended that Governments with a significant diaspora population "should enter into serious dialogue with those communities in light of the findings in this report".26

29. I have since taken steps to stimulate such a dialogue. At the time of writing, I have had my report translated into Tamil and I hope that a Sinhala translation will be completed by the time this report comes before the General Assembly.27 In August 2006, I spoke at a public meeting in London attended by a broad cross section of the diaspora and was heartened by the range of questions and comments that I received.....

IV. Recommendations

65. The General Assembly should appeal to all States that have so far failed to respond meaningfully to the requests for visits made by the Special Rapporteur to take appropriate action. In particular, the eight members of the Human Rights Council that have not responded should be called upon to honour their undertakings to cooperate fully with the Council and its procedures.

66. A thorough and systematic investigation of all killings that occurred in Gaza, Lebanon and northern Israel since the beginning of June 2006 is indispensable.

67. The General Assembly should call upon the United Nations Secretariat to establish a full-fledged international human rights monitoring mission in Sri Lanka.

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8 See generally "The Swamps of Insurgency: Nigeria's Delta Unrest", International Crisis Group, Africa Report No. 115, 3 August 2006.

9 See "Presidential Commission Laments State of Prisons", This Day, 22 June 2006.

10 See E/CN.4/2006/53/Add.5.

11 A more thorough analysis is at E/CN.4/2006/53/Add.5, paras. 7-23.

12 SLMM, press release of 29 December 2005.13 These civilians may be loosely grouped into two categories, equally deserving of protection. Some are ordinary individuals who have refused to give money, challenged the recruitment of their children, been a little too outspoken, or simply been in the wrong place at the wrong time. Other civilians have been targeted for their membership in or support for political parties opposed by LTTE. Such killings are apparently conducted to reinforce the self-proclaimed role of LTTE as the "sole representative" of the Tamil people. See E/CN.4/2006/53/Add.5, paras. 11-13, 21-23.

14 The international community will never support a solution that involves de facto ethnic cleansing or the suppression of minority rights. Levels of support for LTTE among Tamils are thus not dispositive.

15 When the European Union listed LTTE as a terrorist organization, it also emphasized that it was aware that "[t]he upsurge in violence is not caused by the LTTE alone" and "note[d] with concern the growing number of reports of extrajudicial killings". It "strongly urge[d] the Sri Lankan authorities to curb violence in Government-controlled areas" and to "investigate and prosecute all cases of violence that have so far not resulted in arrests or convictions" (Council of the European Union, Declaration by the Presidency on behalf of the European Union concerning listing of LTTE as a terrorist organization, 31 May 2006).

16 Most of my interlocutors could recall only one such case (Krishanthy). See

E/CN.4/2006/53/Add.5, paras. 50-61.17 General Assembly resolution 60/1, paras. 138 and 139.

18 I noted in my report that there is strong circumstantial evidence of (at least) informal cooperation between government forces and members of the Karuna group.

(E/CN.4/2006/53/Add.5, paras. 14-19 and 49). LTTE has attributed a number of killings to individual Tamil civilians or to ephemeral groups, some of which may have received civil defence training from LTTE (E/CN.4/2006/53/Add.5, para. 20). One small but noteworthy positive sign with respect to accountability was the strong denunciation by LTTE of a recent attack: "LTTE condemns this attack on the civilian bus. Directly targeting civilians, as the Kebitigowella claymore attack has, cannot be justified under any circumstances." The Liberation Tigers of Tamil Eelam Peace Secretariat, press release of 15 June 2006. While not clarifying the responsibility of any party, this denunciation does demonstrate an important evolution in the acceptance by LTTE of its moral responsibility to denounce attacks on civilians. When I spoke with Mr. Thamilchelvan, chief of the LTTE political wing, in December, he categorically refused to denounce particular attacks as incompatible with the role of LTTE as a people's movement (E/CN.4/2006/53/Add.5, para. 48).19 See E/CN.4/2006/53/Add.5 , paras. 3 8-47.

20 I recommended a number of particular reforms. See E/CN.4/2006/53/Add.5 , para. 72.

21 SLMM, press release of 29 April 2006.

22 CFA, art. 4.4.23 E/CN.4/2006/53/Add.5, para. 47.

24 Ibid., para. 64.

25 See e.g. Principles relating to the status of national institutions for the promotion and protection

of human rights (The Paris Principles), General Assembly resolution 48/134 of 20 December

1993; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and

Summary Executions, Economic and Social Council resolution 1989/65 of 24 May 1989.

26 E/CN.4/2006/53/Add.5, para. 89.

27 The Tamil translation is available at http://www.extrajudicialexecutions.org/reports/translations/ Tamil_E_CN_4_2006_53_Add_5.pdf Once completed, the Sinhala translation will also be available on the same website. These are unofficial translations.