Approaching the release of the report of the UN Human Rights Council investigation (OISL) into the human rights violations and war crimes committed during the final stages of the Sri Lankan civil war in May 2009, this report seeks to assess the state of the country vis-à-vis witnesses and victims seeking justice in Sri Lanka. The initial response of the Government of Sri Lanka (GoSL) to the OISL call for witness in the country was to increase fear and intimidation on the Tamil population in general and on the people publicising the OISL call in particular. In the months since, the change of government in Sri Lanka has meant that the discourse is now focused on domestic and ‘hybrid’ mechanisms and the possibilities in the country, based on the view that the change of government makes it possible for justice and accountability to be achieved in country. The government of Sri Lanka (GoSL) is proposing an extended consultation with victims on appropriate in-country mechanisms for accountability.
This report assesses the safety for witnesses and victims seeking justice in Sri Lanka in the following ways. Firstly, we publish for the first time, a compilation of views of Tamils who have provided evidence to the OISL. We re-visited these OISL witnesses in September 2015, some 9 months after President Rajapaksa was ousted. Secondly we update the discourse around the UNHRC push for accountability with the current guidelines of the UN High Commissioner for Refugees (UNHCR) on persons at risk of persecution in Sri Lanka and current UK and European law that recognises witnesses and victims seeking justice as a social group in need of protection. Thirdly we assess the impact of the ‘new’ government and Sri Lanka’s witness protection legislation that took effect a month ahead of the UNHRC discussions on accountability.
Our research shows that Sri Lanka is not a safe place for witnesses or victims seeking justice.
The current UNHCR guidelines recognise certain ‘Witnesses of Human Rights Violations’ and ‘Victims of Human Rights Seeking Justice’ as a category of persons at risk in Sri Lanka and particularly recognise Tamil ethnicity as a factor in determining which victims are at risk. This position was reaffirmed in the (current) United Kingdom asylum country guidance case
which found that individuals who have “given evidence … implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes” are at “real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.”
Thus, if prosecutions are conducted in Sri Lanka, the vast majority of witnesses who contributed to the OISL will not be able to provide evidence. The victims who participated in the OISL process will be dis-enfranchised; and any further ‘consultation process’ that requires Tamil victims to come forward and self-identify themselves to GoSL as seeking justice will place those victims at further risk of persecution.