The International Community and Human Rights Violations in Sri Lanka

Lilly Thumm

Human rights violations haven taken place, and continue to take place, across the globe.

The international human rights regime—international organizations, states, and non-state actors

and the norms, principles, and values they embody—exists to enforce accountability for past

violations and ensure prevention of any future violations against human rights; this mission is

easier said than done. Politics and power play a crucial role in whether an actor is held

responsible for their actions, as well as whether they will integrate recommendations on how to

protect the rights of all their people. Not everyone is seen as equal, as was the case during the

civil war in Sri Lanka and its questionable aftermath in terms of human rights violations.

The international human rights regime had a duty to respond as violations in Sri Lanka

were occurring. However, for a lot of cases like Sri Lanka, retroactively picking up the pieces to

make sure human rights tragedies never happens again and taking steps to having an actor accept

culpability in order to rebuild trust between a state and its people are all that is left to be done.

This is what Office of the United Nations High Commissioner for Human Rights (OHCHR)

attempted to do. By examining the actions taken by the OHCHR in response to the aftermath of

the Sri Lankan civil war’s human rights violations, it becomes clear its investigation exposed the

severity of what occurred but did nothing to correct it.

Office of the United Nations High Commissioner for Human Rights

The Office of the United Nations High Commissioner for Human Rights (OHCHR), also

referred to as the United Nations Human Rights (UNHR), is a part of the Secretariat and is the

“leading UN entity on human rights” (Brief history). Its creation was sparked by the World

Conference on Human Rights in 1993 which introduced the Vienna Declaration and Program of

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Action. This program “made concrete recommendations for strengthening and harmonizing the

UN's human rights monitoring capacity… [calling] for the establishment of a High

Commissioner for Human Rights by the General Assembly, which subsequently created the post

on 20 December 1993" (Brief history). Prior to the UN’s acceptance of the Vienna Declaration,

in 1948, the UN adopted the Universal Declaration of Human Rights (UDHR). This progression

towards the expansion of the international human rights regime is mirrored by the UDHR and

creation of the OHCHR. The two are further interconnected by the OHCHR’s mission statement

on their website: “We represent the world's commitment to the promotion and protection of the

full range of human rights and freedoms set out in the Universal Declaration of Human Rights"

(Who we are: an overview).

The push for promotion and protection of all human rights, as well as being

representative of every state’s responsibility to do the same, is what the OHCHR exemplifies.

The UDHR—upheld by the OHCHR—was “[d]rafted as ‘a common standard of achievement for

all peoples and nations,’ the Declaration for the first time in human history set out basic civil,

political, economic, social and cultural rights that all human beings, without distinction, should

enjoy" (Who we are: an overview). To carry this mission out, steps are taken by the OHCHR in

order to maintain an international community supportive of all people and their rights as humans.

Violations placing immediate danger to one’s life are considered first and foremost as they are

urgent, and when there is the possibility for danger from more than one source, additional

resources and attention are given. Recognizing and distributing the importance of rights, whether

they be economic, political, social, or the right to development, as equal, is another step the

OHCHR takes to complete its mission. All of these things influence international actors, and any

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effects are measured by how much benefit is accumulated internationally; there is a heightened

focus on individual’s benefits.

Mission guides action, and action taken on behalf of the OHCHR’s mission covers a lot

of ground; it is a constant task to keep the international human rights regime running across the

globe without any violations occurring. One way the OHCHR approaches its mission of

protecting all which is detailed in the UDHR is through collaboration and work alongside

international actors to hold them accountable in “fulfilling their human rights obligations” (What

we do: an overview). As the “leading UN entity on human rights” (Brief history), the OHCHR

also acts as the Secretariat of the Human Rights Council. Made up of 47 states—all nominated

by the UN General Assembly—the Council works to reinforce the international human rights

regime and identify any violations occurring within. Treaty bodies are another area action is

taken as there are experts who make up committees meant to observe international actors’

obligations to such treaties. To determine whether these actors are making a positive impact in

terms of human rights, a framework was created to measure progress and effectiveness of

implementation of obligations (What we do: an overview).

Sri Lanka

Civil war in Sri Lanka caused harm to civilians and combatants who were caught in the

crossfire of both sides. The civil war itself spawned from the “long-standing tensions between

Sri Lanka’s majority Sinhalese and minority Tamils over the latter’s rights and place in society”

(Ratner, 2012) which resulted in approximately “eighty thousand deaths” (Ratner, 2012). The

minority Tamil population was being cast aside and their rights were disregarded; they lacked

representation within the government to make any changes. Sri Lanka had gained independence

in 1948, and from then on, “[g]overnment policies favouring the Sinhalese majority increasingly

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marginalised and alienated the Tamil minority” (Human Rights Council, 2015). In response,

more radical Tamil parties declared they wanted a separate state. One group, the Liberation Tiges

of Tamil Eelam (LTTE), took violent measures against the Sri Lankan government to achieve

their goal of a separate, Tamil-led state.

Acts such as “suicide bombings of civilian targets” were used by the LTTE, and near the

end of the war, “the government deployed an impressive military force against LTTE-controlled

areas by land, sea, and air” (Ratner, 2012). The government’s response may seem typical during

times of conflict, but those armed forces also “attacked civilians and hospitals, and denied food

and medicines to the population” (Ratner, 2012). It was also reported that Sri Lanka’s military

budget had “risen by 40 percent and the Army had tripled in size from 100,000 to 300,000, with

almost an additional 5,000 troops recruited per month between 2005 and 2008” (Human Rights

Council, 2015). These actions by both sides are what ultimately killed thousands and displaced

another hundreds of thousands who were “eventually interned in government camps” (Ratner,

2012).

The OHCHR got involved in March 2014 “amid growing international concern at the

lack of a credible national accountability process in Sri Lanka” (United Nations Human Rights,

2015) and was named the OHCHR Investigation on Sri Lanka (OISL). OISL was the “first broad

and comprehensive investigation by the United Nations into human rights violations and related

crimes in Sri Lanka” (United Nations Human Rights, 2015). There was a variety of allegations

under investigation from the nine-year time period of 2002-11 between both parties—the LTTE

and government of Sri Lanka. The OISL mandate stated its task “was to ‘undertake a

comprehensive investigation into alleged serious violations and abuses of human rights and

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related crimes by both parties in Sri Lanka … with a view to avoiding impunity and ensuring

accountability’” (United Nations Human Rights, 2015).

In order to carry out the investigation, the OISL needed to conduct confidential

interviews and written statements, as well as review documents, “including about 3,000 written

statements and submissions” (United Nations Human Rights, 2015). There was also

documentation gathered from the UN and other international non-governmental organizations. It

is also important to recognize the difference between criminal and human rights investigations,

the OISL’s being the latter. A human rights investigation uses “the standard of ‘reasonable

grounds to believe’ that an incident occurred when there was sufficiently corroborated

information” (United Nations Human Rights, 2015) which is why so much documentation was

gathered on the events occurring between 2002 and 2011.

Much like any investigation, there were challenges the OISL faced. One of the greatest

challenges “was the absence of cooperation and undermining of the investigation by the former

Government” (Human Rights Council, 2015). The former government’s lack cooperation,

attempts to undermine the OISL, and failure to respond to the OHCHR are a few examples of the

way in which the former Sri Lankan government created challenges for the OISL. Despite this,

there were a selection of public documents by the government which the OISL was able to use.

As for the LTTE, “the senior leadership of the LTTE was killed by the end of the conflict, [and

so] OISL could not access LTTE officials for direct information regarding the group’s policies,

operations or responses to alleged abuses” (Human Rights Council, 2015). Still, the OISL was

able to conduct interviews with lower-level LTTE members and retrieve information.

Upon investigation, it was found that “indiscriminate shelling, extrajudicial killings,

enforced disappearances, torture and sexual violence, recruitment of children and denial of

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humanitarian assistance” (International Crisis Group, 2016). The official findings in terms of

unlawful killings were:

On the basis of the information obtained by OISL, there are reasonable grounds to

believe the Sri Lankan security forces and paramilitary groups associated with them were

implicated in unlawful killings carried out in a widespread manner against civilians and

other protected persons during the period covered by OISL’s report. Tamil politicians,

humanitarian workers and journalists were particularly targeted during certain periods,

but ordinary civilians were also among the victims. There appears to have been

discernible patterns of killings, for instance in the vicinity of security force checkpoints

and military bases, and also of individuals while in custody of the security forces. If

established before a court of law, these may amount, depending on the circumstances, to

war crimes and/or crimes against humanity (Human Rights Council, 2015).

This finding is the first time the UN has had a mandate to establish whether what occurred in Sri

Lanka could be considered a war crime, and the “UN itself has determined that there is ‘credible

evidence’ that war crimes and crimes against humanity took place, and the commission of such

crimes was implied by the UN’s internal review in 2012” (Sri Lanka Campaign for Peace and

Justice, 2015).

What makes the OISL and OHCHR qualified to be the ones going through with the

investigation and determining what happened in SRI Lanka between 2002 and 2011 is the

OHCHR’s mission outside of its mandate creating the OISL. The OHCHR upholds the UDHR

which was “[d]rafted as ‘a common standard of achievement for all peoples and nations,’ the

Declaration for the first time in human history set out basic civil, political, economic, social and

cultural rights that all human beings, without distinction, should enjoy" (Who we are: an

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overview). If not for the OHCHR’s mission of promoting and protecting the human rights laid

out in the Declaration, then there would be a need for another central organization to take up the

mantle. However, its existence makes it the ideal international organization to carry out such an

investigation.

Following the conclusion of the OISL’s investigation, a lot of harmful findings had to be

addressed and corrected. The OISL’s resolution endorsed the Sri Lankan foreign minister’s

announcement which highlighted commitments “essential for a credible domestic process of

accountability” (International Crisis Group, 2016). Of these commitments, integrating four new

transitional justice mechanisms, reforming laws regarding the prosecution of war crimes, settling

ethnic conflict through constitutional means, public discourse with victims, and assistance to be

sure there is follow through on these commitments were included (International Crisis Group,

2016). This is important because government co-sponsorship is almost unheard of; “[f]or the first

time, Sri Lanka committed to extensive reforms to end impunity for human rights violations and

address the causes of conflict and legacy of violence that haunts all communities. However, the

resolution is general, with few details on how the new institutions and reforms will be pursued”

(International Crisis Group, 2016).

Additionally, it terms of holding Sri Lanka accountable, there are problems with

resolutions calling for the prosecution of crimes committed during the 2002-2011timeframe. The

OISL’s report covered a much wider range of time than what the mandate had called for in order

to retrieve background context. This opened up an even greater understanding of how deeply

rooted the problems were before the human rights violations under the public eye occurred.

The Human Rights Council in its final report points out that, “on account of the systemic nature

of many of the crimes… Limiting prosecutions or other transitional justice mechanisms to a

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small period – for example the end of conflict… – risks presenting an incomplete picture of the

patterns, perpetrators and institutions involved in the abuse” (2015). Further implications could

arise from this limitation by lacking a full picture of “patterns of impunity,” and “this could have

a negative impact on reconciliation” (Human Rights Council, 2015). To address these concerns

and still enforce systematic change, the push for “combining criminal justice with other

transitional justice processes - such as truth-seeking, reparations programs, and institutional

reforms - is essential” as it would “fill the ‘impunity gap’ by addressing crimes with large

numbers of victims, perpetrators and initiating deeper systematic change” (Human Rights

Council, 2015).

In the official report for the OISL covering conclusions and recommendations, it terms of

what the former Sri Lankan government was going to be issued as recommendations, the main

focus was on reconciliation and “addressing root causes of systematic human rights abuses and

entrenched impunity” (Human Rights Council, 2015). It would be “critical to securing the new

Government’s vision for Sri Lanka” (Human Rights Council, 2015) because mechanisms such as

“truth-telling, justice and reparations” work towards enforcing accountability. The former Sri

Lankan government had an “unbending narrative that it protected civilians, provided adequate

humanitarian assistance in the conflict zone and for the basic needs of [internally displaced

people]” does not parallel the “countless detailed descriptions of witnesses who lived through”

(Human Rights Council, 2015) the examined 2002-2011 timeframe.

As for the Tamil community, the importance of recognition is emphasized, specifically

focused on “the destruction and harm inflicted on civilians and communities by the LTTE”

(Human Rights Council, 2015). Despite the senior leadership of the LTTE being eliminated and

the LTTE no longer being active or holding any power, “the legacy of the abuses, committed by

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and large with total impunity, remains and must be addressed” (Human Rights Council, 2015).

There is a lingering fear of the LTTE and the atrocities they committed, and it is for those

reasons many interviews by the OISL needed to be confidential.

The actions taken on behalf of the OHCHR within the investigation done by the OISL

fell under the umbrella of what the OHCHR stands for and what its mission is. As stated on its

website, the OHCHR “represent[s] the world's commitment to the promotion and protection of

the full range of human rights and freedoms set out in the Universal Declaration of Human

Rights" (Who we are: an overview). While this work was done in the aftermath of the civil war

in Sri Lanka, an extensive search into what rights were violated and the ways in which they

could be released into the international community to show how no state-inflicted harm, or harm

by an ethnic group, can go without being held accountable. This work is important for promoting

human rights and protecting them for the future.

One critic of the work done by the OHCHR in its investigation of Sri Lanka is the

International Crisis Group. As stated earlier, the Sri Lankan prime minister announced a

resolution, “[h]owever, the resolution is general, with few details on how the new institutions

and reforms will be pursued” (International Crisis Group, 2016). This could show how, despite

the work done and recommendations made by the OISL, without explicit directions on how to

achieve such reforms, it is possible the new government will claim to take on the changes for the

betterment of all its people but blame the recommendations for failing since there were no next

steps provided on how to do so. Looking back at the initial challenges the OISL faced with the

lack of Sri Lankan government cooperation, it could make sense they may not cooperate now.

Another one of the International Crisis Group’s critiques was the action plan requested of

the Sri Lankan government in terms of the recommendations provided by the OISL. However,

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“[t]he government’s July 2012 national action plan… was far from an adequate response to the

council’s resolution. It committed the government to a much smaller set of actions than those

recommended by the commission, which were themselves significantly less far-reaching than

what is proposed in the April 2011 report of the Secretary General’s Panel of Experts on

Accountability in Sri Lanka” (International Crisis Group, 2013). Many other recommendations

were ignored, and “[n]early a year after the HRC called on the Sri Lankan government to

‘address alleged violations of international law,’ there have been no credible investigations into

any of the hundreds ‘of credible allegations’ of war crimes” (International Crisis Group, 2013).

Success or Failure?

The two similar critiques on behalf of the OHCHR’s investigation and recommendations

by the International Crisis Group affirmed the way I had felt about the IOs involvement from the

beginning of my research. I personally felt an investigation is good for the purposes of

accountability in the form of documentation, but in terms of implementation, more needs to be

done on the ground than simply expressing ways a government can do better. While I do think,

on some level, the IO succeeded in the promotion of human rights through investigating both

parties and their wrongdoings, I also think, while its investigation exposed the severity of what

occurred, the OHCHR did nothing itself to correct it. At the time it was occurring, there was also

nothing done to protect the rights actively being violated. Human rights are an issue which

should take precedent when examining a state or non-state actors with power and influence on

people’s lives. The OHCHR has the power to uphold a document outlining the ways in which

human rights need to be protected, so it is important to also hold the IO accountable for fulfilling

its mission. In the case of Sri Lanka, I think more could have been done.

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 References

Brief history. OHCHR. (n.d.). Retrieved November 16, 2021, from

https://www.ohchr.org/EN/AboutUs/Pages/BriefHistory.aspx.

Human Rights Council. (2015). Report of the OHCHR Investigation on Sri Lanka (OISL):

Advance Version. Office of the United Nations High Commissioner for Human Rights.

https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A.H

RC.30.CRP.2_E.docx.

Ratner, Steven R. (2012). Accountability and the Sri Lankan Civil War. The American Journal of

International Law, 106(4), 795–808. https://doi.org/10.5305/amerjintelaw.106.4.0795

International Crisis Group. (2016). Transitional Justice and the UNHRC Agenda. In Sri Lanka:

Jumpstarting the Reform Process (p. 24-29). International Crisis Group.

http://www.jstor.org/stable/resrep31772.10

International Crisis Group. (2013). HRC and LLRC Implementation: A Failure to Deliver. In Sri

Lanka’s Authoritarian Turn: The Need for International Action (p. 3-24). International

Crisis Group. http://www.jstor.org/stable/resrep31988.6

Sri Lanka Campaign for Peace and Justice. (2015). The OHCHR Investigation on Sri Lanka: A

Media Guide. Sri Lanka Campaign for Peace and Justice. Accessed 11 November 2021

from https://www.srilankacampaign.org/wp-content/uploads/2015/09/OHCHR-

Investigation-Media-Guide-Final-Public-Copy.pdf.

United Nations Human Rights. (2015). Overview of the report. Office of the United Nations High

Commissioner for Human Rights.

https://www.ohchr.org/Documents/HRBodies/HRCouncil/OISL/OverviewReport.docishe

r Name.

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What we do: an overview. OHCHR. (n.d.) Retrieved November 16, 2021 from

https://www.ohchr.org/EN/AboutUs/Pages/WhatWeDo.aspx

Who we are: an overview. OHCHR. (n.d.) Retrieved November 16, 2021 from

https://www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx.

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