Victims of Sri Lanka's brutal civil war unwilling to provide crucial testimony to war crimes court

Civilians who fled to Australia during the Sri Lankan civil war may never have their crucial testimonies heard in a war crimes court.

Thu at 6:08am 25/08/2016 
Australia is home to thousands of Sri Lankan refugees who were victims of, or witnessed, potential war crimes in the final stages of the brutal civil war.By the National Reporting Team's Natasha Robinson

Under a resolution co-signed by Sri Lanka in October last year, the nation initially agreed to a judicial process that would involve international judges and prosecutors.

But Sri Lankan President Maithripala Sirisena recently backed away from that pledge, leaving many victims with no faith in a judicial process controlled solely by Sri Lanka.

The testimonies of the victims living in Australia was collected by Sydney-based Public Interest Advocacy Centre (PIAC).

Some of these detailed testimonies have gone before the United Nations, and helped trigger an historic resolution in which Sri Lanka committed to a far-reaching process of reconciliation.

But the non-profit law and policy organisation has now warned many of those who have these crucial eyewitness testimonies would be unwilling to testify before Sri Lankan judges.

PIAC's International Crimes Evidence Project coordinater, lawyer Daniela Gavshon said victims had no confidence in the judicial process.

"There are two reasons why people will engage in a transitional justice mechanism: one is if they believe that it's independent and impartial, and that's both in practice and perception, and the other reason is if they feel safe to do so," Ms Gavshon said.

"And without a foreign presence it's very hard to see how people are going to feel safe to participate."

Girls 'went missing' in detention camps

Many of the Sri Lankan asylum seekers who fled to Australia were Tamils, displaced from their villages in the north of the country.

One Tamil woman, who has spoken to the ABC on condition of anonymity, said she does not "have faith that the perpetrators can bring about reconciliation on their own."

"As a victim I have seen first-hand what happened," she said. "I have no faith that that can happen."

PHOTO: Nearly 300,000 displaced Tamil people were housed in camps in Sri Lanka after the civil war ended.(AFP:Lakruwan Wanniarachhi)

The woman, who the ABC has chosen to call Indira, was one of thousands of displaced persons who were trapped in the northern Sri Lankan town of Mullavaikal in the final weeks of the Sri Lankan civil war in April and early May 2009.

It was during those weeks that UN investigators found international crimes were almost certainly committed by both sides of the conflict, with civilians used as human shields and large crowds being fired upon and bombed indiscriminately.

Indira was in a makeshift hospital in Mullavaikal when the hospital came under attack.

"The hospital was just on a roadside and when they bombed I couldn't even walk, so I dragged myself with one hand and went under a vehicle that was parked, and that's how I survived that bombing," she said.

"When I was hiding I saw a lot of people who were mobile who were crossing to the army controlled area.

"I saw a mother holding a child, a baby, crossing over and at that time she was hit with a shell, and her head was blown away. She was still carrying the child and the child was alive. 

"Because everyone at that time were trying to flee, no one even helped the child. I don't know what happened to that child."

Indira was later taken into a detention camp where she was raped and tortured.

"There was a lot of torture and abuse that I underwent," she said. "There was a lot of girls who went missing who were with me inside that camp."

Mixed confidence in independence of judiciary

Former diplomat Bruce Haigh, who once served as Australia's Deputy High Commissioner to Sri Lanka, told the ABC President Sirisena is under pressure to guarantee that any war crimes court will be domestically-controlled.

"I think his own position has become a little bit weaker within Sri Lanka," Mr Haigh said.

PHOTO: Government soldiers inspect the area inside the civil war zone in May 2009. (AFP: Sri Lankan Ministry of Defence)

But not all observers are critical of the idea that Sri Lanka's judiciary may preside over war crimes hearings.

Former Attorney-General of Sri Lanka Sunil da Silva said he believes the judiciary is strongly independent of the government.

"I think there are certain matters that have to be rectified, and I think the government is in the process of making sure that the judiciary will be able to deal with the situation as an independent judiciary," Mr da Silva said.

But for war crimes victims like Indira, there is still much suspicion.

"I can't hand over my testimony to the perpetrators directly, which is the government," she said

"So I tell my story in good faith that people outside the government, the international community and the UN, will seek justice for us.

"Everyone who was killed had a dream, had a life to live, and they are no longer. But people who committed those crimes are living happily, and that hurts."