On 31 March 2011, Secretary General Ban Ki-moon released the report of the UN Panel of Experts on accountability in Sri Lanka.
This report was commissioned in 2010. The Panel concluded that “a wide range of serious violations of international humanitarian and human rights law were committed by the government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity.” The government was found responsible for the killing of civilians, including through the shelling of hospitals and humanitarian objects in three consecutive No Fire Zones, the denial of humanitarian assistance, forced displacement and torture. The Panel estimated the number of civilian deaths to be as many as 40,000, and the number of displaced persons at 290,000. Various other estimates put the figures between 40,000 to 100,000 as the number of people killed during the last stages of the war ending on the 18th May 2009.
Duncan Lewis represented Tamils Against Genocide [TAG] as an interested party in the Sri Lanka Country Guidance Case GJ and others (post-civil war: returnees) Sri Lanka CG  UKUT 00319 (IAC) . The case of GJ and others has replaced all existing country guidance on Sri Lanka. One of the issues that TAG sought to deal with was the question of ‘whether there are any increase or decrease in the risk on return where the returnee has, or may be perceived to have, witnessed alleged war crimes during the final phase of the civil war’. There are no effective witness protection mechanisms in Sri Lanka, although they have been a few recent perfunctory legislative reforms. This is a critical failure which indicates an insufficiency of State protection for returnees who identify themselves as being victims and/or witnesses of crimes committed by the GOSL in the no fire zones in 2009.
In GJ & Others, the Tribunal found that the current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, included [inter alia], individuals who have given evidence to the Lessons Learned and Reconciliation Commission [LRRC] implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses [paragraph 356 (7c) ].
It is arguable that the Tribunal in GJ & Others implicitly accepted that ‘victims and witnesses to and of war crimes’ (and by implication victims and witnesses of crimes against humanity and genocide) constitute a particular social group [PSG]. Such persons form a particular social group because of they had a distinct identity in society owing to their geographical location of being present in the no fire zone in that period of time. Alternatively, they form a particular social group owing to a shared innate characteristic, namely their historical experience of being victims of and witnesses to egregious war crimes, crimes against humanity and arguably genocide. However, as the Tribunal had limited the risk category to only those who had given evidence to the Government established LLRC, the issue was again the subject of an appeal to the Court of Appeal.
On appeal, the judgment in MP and NT v SSHD  WLR(D) 268] dealt with this issue much greater detail. At § 35-38 in MP, Maurice Kay LJ held that:
‘…Witnesses of war crimes
35. … The guidance contained in paragraph 356 (7) (c) protects:
"Individuals who have given evidence to the Lessons Learned and Reconciliation Commission [which reported in November 2011] implicating the Sri Lankan authorities in alleged war crimes."
However, the protection is limited to:
"those who have already identified themselves by giving such evidence,"
because only they would be known to the Sri Lankan authorities
"and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crime witnesses."
Thus, the protected group are those who gave evidence to the LLRC before arriving in this country and who would, if now returned, be at real risk of persecution as a result of their having given evidence.
36. The complaint in relation to this risk category is that it is too narrow. The ground of appeal is advanced on behalf of the appellants and it is also vigorously supported by submissions made on behalf of the Intervener, Tamils against Genocide (TAG), represented by Ms Shivani Jegarajah and Ms Parosha Chandran. Their submissions essentially seek to extend the need for the protection to (1) individuals who did not give evidence to the LLRC but wish to give evidence to any future inquiry or investigation and (2) individuals who may never give such evidence but who may wish to speak out about egregious conduct witnessed by them – whether for therapeutic, political or other personal reasons. As to this second group, it is submitted that their protection needs are comparable with those of homosexuals who might be returned to Iran (see HJ (Iran) v Secretary of State for the Home Department  UKSC 31) or citizens of Zimbabwe who might feel obliged to simulate support for ZANU/PF on return (RT (Zimbabwe) v Secretary of State for the Home Department  UKSC 38).
37. At the moment, the evidence about these circumstances is understandably vague and speculative. It may well be that, if international pressure were to lead to the establishment of a different form of inquiry, the position would call for further consideration in a case in which appellants could give and adduce evidence about specific difficulties. However, we are not in that position (although Ms Jegarajah was able to point to current developments at the United Nations and elsewhere which could give rise to such developments). Nor is the evidence of the second putative group in concrete form. It rests on a passage in the report of Dr Smith which, on analysis, seems to relate to those who have provided evidence of war crimes. At this stage, there is no evidence of an evidence-receiving body beyond the LLRC, in relation to which protection is established. In this respect, the principal witness would appear to be Dr. Suthaharan Nadarajah, a London-based expert. However, his evidence was given limited weight on these issues because, "his expertise is terrorism and he has not researched the position of returned asylum seekers". He has not been to Sri Lanka for ten years.
38. I tend to the view that counsel for the appellants and for TAG have identified a potential risk category which is not protected by paragraph 356 (7) (c). I reject the submission on behalf of the Secretary of State to the effect that any necessary protection would be provided by paragraph 356 (7) (a) which, in my judgment, does not address these situations. However, I do not think that the UT fell into legal error by not confronting these concerns at this stage. The position is either hypothetical, un-evidenced, or both. It may need to be revisited by the UT in the future.
In its resolution A/HRC/25/1 adopted in March 2014 on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to ‘undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission (LLRC), and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders’. The time frame of the OISL has been stated as ‘from 21 February 2002 until 15 November 2011’. On 16 February 2015, the Human Rights Council followed recommendation of the High Commissioner for Human Rights to postpone the release of the report of the OHCHR Investigation on Sri Lanka (OISL) until September 2015.
For these reasons, and by extension, individual members of the PSG, who can establish that they genuinely wish to cooperate with any inquiry, investigation, prosecution, or seek reparations, ought to be (applying the HJ (Iran) principles) be considered refugees. The right to bear witness and complain in this regard is fundamental and entirely consistent with the principles summarised by Dyson LJ in RT (Zimbabwe)  UKSC 38 § 25-27.
About the Author: Raja Rajeswaran Uruthiravinayagan
Raja joined the firm in April 2012 and is currently attached to the Public Law Department. He specialises in Judicial Review claims related to his main practice areas. He is committed to improving access to justice and to achieving social justice through the use of law.
Raja was Called to the Bar by the Honourable Society of the Middle Temple in 2008 and cross-qualified as a Solicitor in 2011. He graduated from the London School of Economics (LSE) with a Bachelor of Laws (LLB) in 1999 and undertook International Protection of Human Rights as a specialist subject. He completed his Master of Laws (LLM) from the London School of Economics (LSE) in 2001. His broad-based experience spans several practice areas.