Time to Act – Accountability for Conflict-Related Sexual Violence in Sri Lanka

by Priya Gopalan

The ferocious 26-year civil war in Sri Lanka pitted the Government of Sri Lanka against the Liberation Tigers of Tamil Eelam (LTTE) who fought for an independent state for ethnic Tamils. A September 2015 report by the UN Office of the High Commissioner for Human Rights on crimes related to this conflict (OHCHR Report) concluded that both parties perpetrated serious violations. One of the OHCHR Report’s most disturbing findings is “the extent to which sexual violence was committed, often extremely brutally, by the Sri Lanka security forces, with men as likely to be victims as women. The prevalence of rape, often on repeated occasions was particularly shocking.” (see here for summary and interlinked reports). Sexual violence was perpetrated alongside other crimes: at checkpoints as internally displaced persons (IDPs) fled shelling, at secret, official and IDP detention sites, and at “rehabilitation centres” for thousands of former LTTE cadres. Although the LTTE was defeated by Sri Lankan forces in May 2009, as highlighted by the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in his statement presenting the OHCHR Report to the Human Rights Council, torture continued to be recorded in 2015. The 2015 Report of the Secretary-General on Conflict-Related Sexual Violence underscores that impunity for sexual violence is a major unaddressed issue in the Sri Lankan conflict.

Human Rights Council Resolution 30 on promoting reconciliation, accountability and human rights in Sri Lanka was adopted in October 2015 following the OHCHR Report. The Resolution recommends the establishment of a domestic judicial mechanism to investigate conflict-related crimes. It specifically highlights accountability for sexual violence. As the centrepiece of legal accountability, the proposed mechanism provides the opportunity to craft a fresh and well-conceived approach towards domestic prosecutions. As discussed below, three key strategies would promote the successful prosecution of conflict-related sexual violence in Sri Lanka as part of this new mechanism: accurately contextualising conflict-related sexual violence, establishing an appropriate legal framework, and embedding a survivor-centred approach into the accountability process.

First, understanding the multiple purposes of sexual violence, its connections with other conflict-related crimes, and the broader characteristics of the Sri Lankan conflict is vital to improving prospects for accountability. As documented in the OHCHR Report, in Sri Lanka, sexual violence has been used to terrify, humiliate, punish and extract information from persons presumed to be linked to the LTTE. Survivors share an overwhelming sense of persecution. Many were targeted because of their Tamil ethnicity. Sexual violence was often inflicted on ethnically discriminatory grounds, as demonstrated by accompanying racial slurs. Sexual violence was an institutional policy - a staple in the arsenal of torture effected by multiple perpetrators drawn from the police, military, security, and intelligence services, employing similar methods in specialised sites equipped with instruments of torture.

Situating sexual violence against the wider backdrop - the organised targeting of Tamils in the conflict - is key. Integrating the prosecution of sexual violence into core prosecution strategies for other conflict-related crimes such as torture, enforced disappearances, extrajudicial killings and arbitrary detention ensures a contextual approach. This captures the gravity, widespread and systematic nature of conflict-related sexual violence in Sri Lanka, presents a fuller account of the crimes, and places them firmly within an overall strategy of persecution. In turn, the proper charging of sexual violence within an appropriate legal framework is facilitated by taking such a contextualised view.

Viewing sexual violence in its proper context also assists in linking it to senior officials up the chain of command when appropriate, opening the door to prosecutions that extend beyond direct physical perpetrators. Prosecuting those responsible for orchestrating, unleashing or tolerating a campaign of violent crimes closes the impunity gap.

As a second step, legislative reform is required because international crimes such as war crimes and crimes against humanity are not criminalised under domestic law in Sri Lanka. A domestic legal framework that incorporates international law is able to rely on international jurisprudence to ground legal interpretation, resulting in better judicial reasoning and accountability outcomes.

Accordingly, international crimes that accurately reflect the full scope of sexual violence in the Sri Lankan conflict should be recognised in the domestic legal framework. One example is the crime of enforced prostitution. According to the 2011 Report of the Secretary General's Panel of Experts on Accountability in Sri Lanka, women detained in IDP camps were forced to perform sexual acts for food and shelter. As documented by the International Crisis Group, women in the militarised North and East remain vulnerable to enforced prostitution to secure basic living conditions post conflict. Enforced prostitution falls under the jurisdiction of the International Criminal Court (ICC), as does forced nudity - another form of sexual violence documented in this conflict.  A potential issue to be navigated in the process of legislative reform is retroactivity – specifically, ensuring that enumerated offences were considered international crimes at the time of the conflict.

Third, it is imperative that a survivor-centred approach is embedded into any accountability process. An enabling environment for sexual violence survivors promotes accountability by allowing them to provide the best possible evidence. For instance, giving survivors a choice as to male or female investigators, witness support staff and lawyers may lessen the impact of recounting deeply traumatic experiences. The severe consequences of sexual violence necessitate a multi-faceted approach that prioritises survivors’ wellbeing. Amongst many male and female survivors alike, the unfortunate reality is that shame and degradation are pervasive and destructive emotions. These survivors fear blame and ostracism. Stigma arising from sexual violence crimes can present a powerful challenge that permeates the judicial process. Nonetheless, while recognising the reality of such socially constructed harms, efforts must be made to avoid reinforcing them in the judicial process.

A specialised procedural framework for survivors of sexual violence is another aspect of a survivor-centred approach. Such a framework can shield survivors from irrelevant questioning, re-traumatization, and misconceptions relating to blame and shame. It can also address the specific evidentiary challenges of proving conflict-related sexual violence. Useful precedents are found in the rules of procedure and evidence of the International Criminal Tribunal for the former Yugoslavia (Rule 96) and ICC (Rules 70-72) - that restrict evidence of consent, bar evidence of a survivor’s prior and subsequent sexual conduct, and preclude requirements that a survivor’s testimony be corroborated. Other safeguards include psychosocial support services, as well as a robust and independent witness protection framework, including measures protecting witness identity.

Resolution 30 welcomes international participation in the domestic accountability regime for Sri Lanka. It identifies a role for international experts and best practices in strengthening the regime. As a platform for sharing expertise and peer-to-peer support, the newly established Prosecuting Conflict-Related Sexual Violence Network is well-placed to offer such assistance. The network offers an opportunity for collaboration between prosecutors who have successfully prosecuted conflict-related sexual violence in other jurisdictions and their Sri Lankan counterparts – a partnership that could contribute to promoting accountability for conflict-related sexual violence in Sri Lanka.