Justice and accountability for war related sexual violence in Sri Lanka

The Sri
Lankan government is currently designing transitional justice mechanisms to
address human rights abuses connected to the three decade long war which ended
in May 2009. But a key question is whether victims of sexual violence and rape committed
in the context of the war will come forward and use these mechanisms?

The silence around sexual violence
has long posed a challenge to determining its nature, scale and magnitude
in the context of Sri Lanka’s long war. On the one hand, this is due to the pervasive culture of
shame, which deters women from speaking out. Twenty-five years ago, in Broken Palmyrah Rajini
Thiranagama noted that the “loss
of virginity in a young girl, even if against her will, meant that she could
not aspire to marriage in our society and, if already married,
there is a good chance that she will be abandoned”.

The view of rape victims as “spoilt goods” has
always been one of the most significant causes of under-reporting. Survivors and their families are however silenced not only by the shame of rape, but also by fear. Fear of reprisal by perpetrators or of further violence from the very institutions meant
to protect them. That too remains unchanged.

Writing of the post-war context, Satkunanthan
notes that women’s silence on sexual violence “was possibly their way of
normalizing life and switching to survival mode in the militarized and
repressive post-war phase. They may also maintain silence due to fear of losing
control of their stories once they are in the open”.

Throughout the 1990s and 2000s, a
handful of rape complaints were made against the security forces from women who
appear to have defied shame and fear in order to do so. There are also a number
of other women and girls found murdered and raped, with strong circumstantial
evidence implicating members of security forces or para military groups. With the
exception of two (see below), none of these cases were properly investigated or perpetrators were indicted or
prosecuted.

In
the few cases where there was an indictment the case was never concluded. In
many of these cases medical evidence was not collected in time; witnesses were
harassed and intimidated, and cases were transferred from courts in the North
to the South where they simply died. The case of Krishanthy
Kumaraswamy (1996) and the more recent case from Visvamadu (2010) remain the only two where members of Sri
Lankan security forces personnel have been prosecuted to the end and found
guilty of sexual violence and murder. Impunity and lack of
accountability for sexual violence has been an entrenched feature of the 30
years of war in Sri Lanka.

However, following the end of the war
a UN investigation into war crimes in Sri Lanka (OISL) as well as a number of international
organisations such as the International
Truth and Justice Project, Sri Lanka, Human Rights Watch and Freedom from Torture,
have together placed hundreds of survivor testimonies about sexual violence and
rape, especially in detention in the public domain.

The significance of these reports in making
sexual violence visible in the context of the war cannot be overstated. Incidents of sexual violence and rape are documented
in graphic and horrific detail in the voices of survivors themselves. Perpetrators
are identified as security forces and police personnel ranging from low-level
guards to senior officers who are said to have made little or no effort to hide
their identity. The places where these incidents took place include secret and known
detention centres across the country. Most survivors say that
they escaped after their families paid a
bribe for their release from custody and
all of them are now living outside of Sri Lanka.

The OISL investigators were not allowed into the
country and had to rely on testimony collected from a distance or from victim
survivors living outside of Sri Lanka. International organizations
have explicitly acknowledged that it would
not have been possible to conduct research of this nature within Sri Lanka
given the shame and stigma attached to being raped, the fear of reprisals from
perpetrators and lack of witness protection measures.

These reports are also a call for justice and
accountability. They construct sexual violence as crimes under international
law. They seek to
establish the widespread and systematic nature of these crimes and argue
that they are
not isolated incidents committed by a few errant soldiers. Rather it is argued that
these crimes are organized acts that
by their frequency,
location and nature, imply some degree of planning and centralized control going beyond specific individual perpetrators. In
fact, they assert that sexual violence and rape in torture has been part of a deliberate government policy
to obtain information, intimidate, humiliate, and inflict fear on persons who
were with or seen as supporting the Liberation Tigers of Tamil Eelam (LTTE).

Having framed sexual
violence as an international crime, all of these reports call for the full
array of transitional justice mechanisms including prosecutions. In calling for
criminal investigations and prosecutions the reports however insist that it
cannot be a purely domestic process. The OISL report for instance, calls for the establishment of a
hybrid special court, which includes both international and domestic judges,
prosecutors, lawyers and investigators. The case for such a mechanism is made
on the grounds of deeply embedded or entrenched impunity and the absence of a
credible and competent domestic mechanism to deal with such crimes.

International organisations are also now calling
for Sri Lankan exiles living abroad and particularly those who have suffered
sexual violence to be allowed to participate in transitional justice processes
within Sri Lanka, including by giving evidence. The International Truth and
Justice Project for Sri Lanka quotes an interviewee to the effect that
“they would be willing to participate from abroad provided that their testimony
takes place in a confidential environment in which their identities are
protected”.

They
are requesting the Government of Sri Lanka to explore how such a process could
be put in place. They cite as best practices the Liberian example of diaspora
testifying from abroad through video or audio technology, as well as the use of
Rogatory Letters, which can secure such testimony. i.e., formal written requests made by one judicial body to another in a
different, independent jurisdiction that a witness who resides in that
jurisdiction be examined through the use of interrogatories accompanying the request.

At
present, the Victim and Witness Protection
Act
that was passed by parliament in February 2015 makes provision for witnesses
living in remote locations within Sri Lanka to provide evidence through
audio-video linkages, in the presence of a public officer. Responding to
criticisms that this is inadequate, cabinet has approved an
amendment to the Act, to allow Sri Lankan’s living abroad to testify provided
it is given at a Sri Lanka diplomatic mission.

The
IJTP report however states that victims of human rights violations living
abroad would
not agree to having a Sri Lankan government official sitting in the room with
them. Furthermore, even if testimony from abroad, gathered in accordance with international
standards is made admissible, international involvement in prosecutions is a highly
contested and controversial issue within Sri Lanka. The President has stated
that no foreign judges will be allowed to be part of Sri Lanka’s transitional
justice process. If that is the case, even if victim survivors living outside
Sri Lanka are given legal standing, they may not be willing to appear before a
purely domestic mechanism.

The attention to and
systematic collection of evidence of war-related sexual violence in Sri Lanka and
the invocation of international criminal law to address such violence has to be
recognised as products of our times. These reports affirm the ascendency and
hyper-visibility of rape discourses in international law, the focus of an
increasing of body of critical feminist scholarship. As Fionnuala ni Aolain points out fact-finding and documentation are part
of this international discourse of naming, shaming and advocacy. Yet pursuing
justice for sexual violence in local contexts such as Sri Lanka is still fraught
with challenges. International normative frameworks and discourses do not automatically
transform or challenge local cultures of shame and fear, nor inspire victim
survivors to bear witness to crimes of sexual violence committed against them. But
can they contribute to transforming Sri Lanka’s legal culture to allow victim
survivors living outside the country to become witnesses to crimes committed
against them?