The Government has made significant progress in rebuilding infrastructure; and while the majority of internally displaced persons have been resettled, considerable work lies ahead in the areas of justice, reconciliation and resumption of livelihoods. The steps taken to investigate further allegations of serious violations of human rights have also been inconclusive, and lack the independence and impartiality required to inspire confidence. Meanwhile, continuing reports of extrajudicial killings, abductions and enforced disappearance in the past year highlight the urgency of action to combat impunity. It is against this background that possible areas of technical assistance are identified, and recommendations are made.
Contents
I. Introduction 1–4
II. Engagement
by the Office of the High Commissioner 5–7 4
III. Engagement
by human rights mechanisms 8–9 4
IV. National plan
of action for the implementation of recommendations of
the Lessons Learnt and Reconciliation Commission 10–12 5
V. Areas of
concern identified in Human Rights Council resolution 19/2
13–56 6
A. Rule of law
and the administration of justice 14–16 6
B. Credible
investigations of widespread allegations of extrajudicial killings and enforced
disappearance 17–30 7
C. Detention
policies 31–36 10
D. Internal
displacement and land issues . 37–42 11
E. Right to
freedom of opinion and expression 43–45 13
F. Demilitarization. 46–50 13
G. Reconciliation
and reparations 51–56 14
VI. Possible
areas of technical assistance by the Office of the High Commissioner 57–60 15
VII. Conclusion and
recommendations 61–64 16
I. Introduction
1. The present
report is submitted pursuant to Human Rights Council resolution 19/2, in which
the Council called upon the Government of Sri Lanka to implement the
constructive recommendations made in the report of the Lessons Learnt and
Reconciliation Commission1 and
to take all necessary additional steps to fulfil its relevant legal obligations
and commitment to initiate credible and
independent actions to ensure justice, equity, accountability and
reconciliation for all
Sri Lankans. The
Council requested the Government to present a comprehensive
action plan detailing the steps that the Government had taken and would take to
implement the recommendations made in the Commission’s report, and also to
address alleged violations of international law. It encouraged the Office of
the United Nations High Commissioner for
Human Rights (OHCHR)
and relevant special procedures
mandate holders to provide, in consultation with and with the concurrence of
the Government of Sri Lanka, advice and technical assistance on implementing
the above-mentioned steps, and requested OHCHR to present a report on the
provision of such assistance to the Council at its twenty-second session.
2. In June
2010, the Secretary-General appointed
the Panel of
Experts on Accountability in Sri
Lanka to advise him on accountability issues in Sri Lanka and offered it as
a resource to
the Government, and
particularly to the
Lessons Learnt and Reconciliation Commission.2 The
Panel, which submitted
its report to
the Secretary- General in
April 2011, found
credible allegations of
potential serious violations
of international law committed by the Government of Sri Lanka and by the
Liberation Tigers of Tamil Eelam (LTTE).3 The Government of Sri Lanka has never afforded
any credence or legitimacy to the report of the Panel.
3. In July
2012, the Government
issued a national
plan of action
for the implementation of the
recommendations of the Lessons Learnt and Reconciliation Commission. According to the delegation of Sri Lanka participating in the fourteenth session of the universal periodic
review, in November 2012, the Sri Lankan army had also appointed a board of
inquiry to study the Commission’s recommendations and to formulate a viable action
plan to implement the recommendations that are relevant to the army. The
relationship of this mechanism to the national plan of action is, however,
unclear.
4. In order to
define areas of possible advice and assistance that could be offered to the Government
by OHCHR and the special procedures pursuant to Human Rights Council
resolution 19/2, the
recommendations of the
Lessons Learnt and
Reconciliation Commission and the steps taken by the Government of Sri
Lanka or plans to implement (c) the denial of humanitarian assistance; (d)
human rights violations suffered by victims and survivors of the conflict; and
(e) human rights violations outside the conflict zone, including against the
media and other critics of the Government. In the case of the LTTE, these were
(a) using civilians as a human buffer; (b) killing civilians attempting to flee
LTTE control; (c) using military equipment in the proximity of civilians; (d)
forced recruitment of children; (e) forced labour; and (f) the killing of
civilians through suicide attacks (paras. 176-177). The panel concluded that
“the credible allegations trigger a legal duty of the Government to conduct
immediate and genuine investigations and, if the evidence warrants, to
prosecute those most responsible” (para. 425) them, and also to address alleged
violations of international law, are examined in the present report. The report
also draws on observations by an OHCHR technical mission to the country in
September 2012.4
II. Engagement
by the Office of the High Commissioner
5. On 24 February 2012, the High Commissioner met with the
Minister for External Affairs of Sri Lanka, and offered the assistance of her
Office in follow-up to and the implementation of the recommendations made by
the Lessons Learnt and Reconciliation Commission. In her statement of 2 March
2012 made to the Human Rights Council at its nineteenth session, the High
Commissioner encouraged the Government to engage with the special procedures
and with her Office on the follow-up to the reports submitted by the Commission
and the Panel of Experts.
6. Following the adoption by the Human Rights Council of
resolution 19/2, the High Commissioner wrote to the Minister for External
Affairs of Sri Lanka on 14 May 2012 to propose a visit by a delegation of OHCHR
officials to Sri Lanka to explore possible areas of cooperation and assistance,
and to help prepare the ground for an eventual country visit by the High
Commissioner herself.
7. The OHCHR technical mission visited Sri Lanka from
13 to 21 September 2012, meeting with a wide range of Government counterparts,
including ministers responsible for external affairs, economic development,
defence, justice and plantation industries (the Minister for which portfolio is
also the Special Envoy of the President on Human Rights). It also met with the
official heading the committee tasked with overseeing the implementation of the
national plan of action, the Attorney General, various political leaders within
the Government and the opposition, the Human Rights Commission of Sri Lanka,
civil society representatives, the diplomatic corps and the United Nations
country team. The mission also visited field locations in Jaffna, Killinochchi, Mullaitivu and
Vavuniya, meeting with the heads of the civil administration, local military
commanders, regional coordinators of the Human Rights Commission and United
Nations colleagues. On 26 November 2012, the High Commissioner wrote to the
Minister for External Affairs to express her appreciation for the
Government’s efforts in facilitating the visit and
to propose possible areas of technical cooperation between OHCHR and the
Government in follow-up to Human Rights Council resolution 19/2. The Minister
replied to the High Commissioner on 17 December 2012 (see paragraphs 57-60
below).
III. Engagement
by human rights mechanisms
8. There are currently
eight outstanding requests
to visit Sri
Lanka by special procedures mandate holders: on
minority issues; freedom of peaceful assembly and of association; freedom of
opinion and expression; extrajudicial, summary or arbitrary executions;
enforced or involuntary disappearances; human rights defenders; independence of
judges and lawyers; and discrimination against women in law and practice. At
the time of writing, none
of these visits had
been agreed to
by the Government.
The Special Rapporteur on
extrajudicial, summary or arbitrary executions, on 26 July 2012, the
Independent Expert on minority issues, on 7 January 2013, and the Special
Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, on 30 January 2013, wrote to the Government to offer services
and support pursuant to Council resolution 19/2.
9. Human rights treaty bodies have also made concluding
observations pertinent to the report of the Lessons Learnt and Reconciliation
Commission and matters of accountability in Sri Lanka: the Committee against
Torture (in December 2011),5 the
Committee on the Elimination of Discrimination against Women (in February 2011),6 and the Committee on the Rights of the Child
(in October 2010).7
IV. National plan of action for the implementation of
recommendations of the Lessons Learnt and Reconciliation Commission
10. Although there are concerns regarding the mandate, composition
and methodology of the Lessons
Learnt and Reconciliation Commission,8 including
its interpretation of applicable principles
of international humanitarian law,
it made many
important observations and far-reaching recommendations that, if
implemented, could help advance reconciliation and respect for human rights in
Sri Lanka. The Commission concluded that “the
root cause of
the ethnic conflict
in Sri Lanka
lies in the
failure of successive Governments to address the genuine
grievances of the Tamil people” and that the “process of reconciliation
requires a full acknowledgement of the tragedy of the
conflict and a collective act of contrition by the political leaders and
civil society of both Sinhala and Tamil communities.”
The Commission also
paid considerable attention
to allegations concerning missing
persons and enforced
disappearances, and called
for further investigations. Significantly, it
expressed repeated concern
at the lack
of Government implementation of its own interim recommendations as well
as of previous commissions of inquiry (paras. 8.305, 9.64, 9.74, 9.120, 9.211,
9.240 and 9.250).
11. The national plan of action issued by the Government in
July 2012 deals with only selected recommendations of the Lessons Learnt and
Reconciliation Commission, with no explanation of the process or rationale in
making that selection. It is not clear whether the Government has completely
rejected the Commission’s recommendations that have not been incorporated into
the plan or if they will be considered at a later stage. At its universal
periodic review in November 2012, the Government pointed out that there was some duplication of recommendations as
well as those falling under the ambit of the National Action Plan for the
Protection and Promotion of Human Rights 2011-2016. A number of significant
recommendations made by the Commission and not in the Action Plan have,
however, been excluded from the national plan of action.
12. In several instances, the implementing activity
described by the Government for a particular recommendation does not correspond
directly to the recommendation made or does not envisage a substantive change
in current practices.9
Institutional responsibilities as well as the performance indicators
provided in the national plan of action are not always clear or appropriate;10 and several recommendations are delegated
to bodies yet to be established.11
V. Areas of
concern identified in Human Rights Council resolution 19/2
13. In the
section below, the
recommendations made by
the Lessons Learnt
and Reconciliation Commission and the steps proposed by the Government
in the national plan of action are examined in greater detail as are more
recent developments in the areas highlighted
by the Human Rights
Council in resolution
19/2 (in the
fifth preambular paragraph), with
a view to pinpointing possible areas of advice and assistance by OHCHR and
relevant special procedures.
A. Rule of
law and the administration of justice
14. In its report, the Lessons Learnt and Reconciliation
Commission stressed that an independent judiciary, transparent legal process
and strict adherence to the rule of law are essential for peace and stability.
It identified a number of areas in which the integrity of ke y rule of law
institutions had been compromised or where they could be further reformed and
strengthened to promote reconciliation and generate confidence in the
administration of justice (paras. 5.155-156, 5.163, 8.185-194 and 9.266-267).
15. The Commission welcomed the lifting of the Emergency
Regulations in August 2011, but expressed its hope that subsequent regulations
would not impair any benefits therefrom (para. 9.56). Unfortunately, many
provisions of the Emergency Regulations that curbed key rights, particularly
related to due process, remain as provisions or regulations of the Prevention
of Terrorism Act. The Act was, for instance, recently used to arrest four
students from Jaffna
University for their
reported involvement in an event held at the university to mark an LTTE
commemorative day on 27 November; two were released on 22 January 2013. The
Committee against Torture also noted in its concluding observations on Sri
Lanka that the President continued to invoke Section 12 of the Public Security
Ordinance (Chapter 40) to allow the armed forces to retain policing powers in
all 25 districts (Presidential Order of 6 August 2011).12
16. The Lessons Learnt
and Reconciliation Commission
called for the
Police Department to be delinked from the Ministry of Defence (para. 9.214).
The Commission also emphasized the importance of an independent judiciary and
independent commissions, such as the public service commission and police
commission, upholding the rule of law (paras.
9.202, 9.215 and
9.226). International human
rights mechanisms13 previously expressed concern that the
independence of these key institutions had been undermined by the 18th
amendment to the Constitution adopted in 2010, which empowered the President to
appoint members of these commissions directly, as well as senior judicial posts. This concern deepened
recently when the Chief Justice was
impeached following a series of attacks
and acts of intimidation against
judges and judicial
officers, which the
High Commissioner14 and
the Special Rapporteur on the independence of judges and lawyers15 warned
could undermine the independence of judiciary and the rule of law.
B. Credible investigations of widespread allegations of
extrajudicial killings and enforced disappearance
1. Extrajudicial killings
17. While the Lessons Learnt and Reconciliation Commission,
in its report, found it difficult to determine the precise circumstances under
which incidents involving the loss of civilian lives had occurred, it
recommended that the State investigate action by the security forces, which may
have led to death or injury to civilians (paras. 9.9 and 9.37a). It also
recommended an independent investigation into allegations of torture and
extrajudicial killing arising from video footage broadcast by Channel 4 (para.
9.39). The Government assigned these recommendations to the Ministry of
Defence, the Ministry of Justice, the Attorney General’s Department and the
Presidential Secretariat for implementation. The Commission also recommended
that an inquiry be conducted into the civilian injuries and deaths resulting
from shelling, as well as an examination into the adequacy of medical supplies
provided to civilians in conflict areas (paras. 9.14 and 9.22). These
recommendations were not included in the national plan of action.
18. In its comments on the present report, the Government
stated that the Sri Lanka
army had appointed a court of inquiry to investigate the instances of civilian
casualties mentioned in the Commission report and also to investigate the
allegations broadcast on Channel 4, irrespective of whether the
video footage was authentic. According to the Government, as at the time
of writing, the court had examined 50 witnesses. It was reportedly
investigating more than 50 alleged incidents of shelling mentioned in the
Commission’s report, and would conclude its inquiry by mid-January 2013. It
would subsequently investigate the Channel 4 allegations. No further details
were provided regarding the composition and terms of reference of the court of
inquiry. The High Commissioner is concerned about the transparency,
independence and impartiality of this process, as well as for the protection of
witnesses and victims.
19. In its report,
the Lessons Learnt
and Reconciliation Commission
also strongly recommended the
implementation of recommendations from a previous, unpublished presidential
commission of inquiry, which, in 2006, investigated alleged serious violations
of human rights after August 2005, including the deaths of five students in
Trincomalee in January 2006, and of 17 aid workers of the non-governmental
organization Action contre la Faim in Muttur in August 2006 (para. 9.120). According
to the national plan of action, the Ministry of Defence, the Police Department
and the Attorney General’s Department are the entities responsible for
implementing this recommendation. It is worth recalling that Sri Lanka, at the second session of
the universal periodic review, accepted a recommendation to “ensure the
adequate completion of investigations into the killings of aid workers”.16
20. When the OHCHR technical mission raised concerns about
the delay in these cases, the Attorney General responded that the quality of
investigations and evidence collected had to date prevented him from proceeding
with charges and prosecutions. In reply to the Special Rapporteur on
extrajudicial, summary or arbitrary executions in October 2012, the Government stated
that the Attorney General had advised the Inspector General of Police to conduct
comprehensive investigations and had submitted to him the material collected by
and the recommendations made by the previous commission of inquiry. The
Government pointed out that, if adequate evidence was disclosed by the
investigations, filing of indictment would be possible within a reasonable
period thereafter. It should be highlighted that it is now more than five years
since the presidential commission of inquiry completed its report, and more
than six years since the incidents.
21. The importance of effective action against extrajudicial
killings to prevent their recurrence was highlighted again by two serious
incidents in which prisoners were killed while in custody. During a riot at
Vavuniya prison, in June 2012, it is alleged that excessive force was used by
State forces and prisoners were subjected to torture, resulting in the death of
two remand prisoners. During another riot in Welikada prison, in November 2012,
which resulted from a
raid on the
prison by special
task force officers,
27 prisoners were reportedly killed and
43 wounded with allegations that a number
were extrajudicially executed. The Government states that police
investigations into the two cases are currently in progress, but no further
information is available.
2. Missing persons and enforced disappearances
22. In its report,
the Lessons Learnt
and Reconciliation Commission
called for a comprehensive approach, as a matter of
urgency, to address the issue of missing persons. It also called
for recommendations of past
commissions to be
implemented given “past incidents of disappearances from
different parts of the country” (para. 9.48). To date, the Government has not
established a comprehensive mechanism to trace adults who went missing during
the latter stages of the war, and investigations of disappearances have not
yielded tangible results in the form of arrests or prosecutions.
23. A distinction should be made from the outset between
missing persons and those forcibly disappeared. While the former are persons
whose whereabouts are unknown as a result of, for example, armed conflict or
internal violence, enforced
disappearances is understood as the deprivation of liberty of a person by the
State, direct or otherwise, and the refusal to acknowledge the deprivation of
liberty or the concealment of the fate or whereabouts of the disappeared
person.
24. On missing persons, the Commission recommended that every
effort be made by law enforcement authorities in cooperation with relevant
bodies, particularly the International Committee of the Red Cross (ICRC) to
trace the whereabouts of missing persons, ensure reunification with their
families, and for these families to be informed of such progress (para. 9.50).
The Government has chosen not to include this recommendation in the national
plan of action, although it has established a tracing programme for missing
children. The Government reported that it had recorded 2,564 untraceable
persons, of whom 676 were children and
1,888 adults, also noting that a large number of tracing requests related to
children reportedly recruited by the LTTE.
25. The
Commission’s recommendation on
providing assistance to families of the
missing in terms of legal aid and psychosocial support (para. 9.58) was also
unfortunately excluded from the national plan of action. The Commission’s
recommendation on the creation of a
centralized system of data collection
on missing persons
maintained by different agencies
(para. 9.51) was
assigned in the
plan of action
to the Ministry
of Defence, in partnership with the Department of Census and Statistics.
While how this centralization of data collection will function still remains to
be seen, it is important to highlight the fact that victims’ relatives must
have trust and confidence in it, including in the circumstances where
Government forces are believed to be responsible for missing persons.
26. In its statement on its review during the fourteenth
session of the universal periodic review, the Government stated that the
Registration of Deaths (Temporary Provisions) Act, No. 19 of 2010 envisages the
issuance of death certificates to next of kin and the families of the missing
to claim monies due to them. Noting this Act, the Secretary-General’s Panel of
Experts, in its report, stated, however, that:
Issuance of a death certificate following an administrative
process is not a substitute for a bona fide investigation into the
circumstances of an individual’s death, which meets international standards. It
is also crucial to ensure that a relative’s acceptance of a death certificate
does not lock the individual into a definitive legal position that precludes
any further legal recourse in the future.17
27. Regarding enforced disappearances, the Commission
recommended that a special commissioner of investigation be appointed and
supported by experienced investigators to investigate alleged disappearances
and to provide the Attorney General with material for further action (para.
9.51). Although the Government incorporated this recommendation into the
national plan of action, it did not commit to the establishment of a new
mechanism and has opted to rely primarily on the existing system as provided in
the Code of Criminal Procedure, which to date has failed to resolve such cases.
The Government also reported that a working committee had been appointed, led
by a deputy inspector general, to respond to cases of disappearances and to
conduct ground verifications of such cases to ascertain their current status.
28. The
Commission strongly recommended
that domestic legislation
be framed to specifically criminalize enforced
disappearances (para. 9.59), which the Government undertook in the national
plan of action to examine. It should be noted that the Working Group on
Enforced or Involuntary Disappearances (in 1999), the Human Rights Committee
(in 2003) and the Committee against Torture (in 2011) all recommended that Sri
Lanka criminalize disappearances.18 At
its review during the second session of the universal periodic review, the Government of
Sri Lanka also accepted recommendations
to “adopt measures to investigate, prosecute and punish those responsible
for serious human rights crimes such as
enforced disappearances, in accordance with international norms and in a transparent manner.”
29. Concerted action on this issue is particularly critical
given the continuing recurrence of cases of enforced disappearance since the
end of the armed conflict. As at November 2012, the Working Group on Enforced
or Involuntary Disappearances had 5,676 cases of enforced or involuntary
disappearance in Sri Lanka
still outstanding. At the fourteenth session of the universal periodic review,
the Government pointed out that more than 4,000 of the said cases related to
the pre-1990 period, while another 1,089 belonged to the period between 1991
and 2005. The Government added that an inter-agency mechanism was being established
to clear the backlog of cases with the Working Group;19 however, the period from the
last quarter of
2011 to mid-2012
witnessed new reports
of abductions and disappearances, including of political
activists,20 as well as
politicians and their family members.21
During that period, there were also
reported cases of abducted persons being
found tortured and
killed.22 The Government
reports that these
cases are under investigation.
30. In its report, the Lessons Learnt and Reconciliation
Commission recommended that a full investigation be launched and, where
necessary, prosecutions be brought for cases of alleged disappearances of those
who had surrendered to and/or been arrested by the security forces around the
time of the end of the armed conflict (para. 9.23). In its national plan of
action, the Government
instructs the Ministry of Defence to
complete an unspecified ongoing disciplinary process, and
the Ministry of Justice and the Attorney General’s Department to take follow-up
action to prosecute, where relevant. These provisions fall short of an
independent and impartial investigation, given that the Ministry of Defence is
made responsible for investigating the armed forces.
C. Detention policies
31. The Lessons Learnt
and Reconciliation Commission
recommended that law enforcement agencies strictly adhere to
existing legal provisions with regard to powers of arrest and detention. It
also called for all places of detention to be formally designated and
adequately publicized, stressing the importance for detainees’ access to next
of kin (paras. 9.53-55 and 9.67). The Government did not include these
recommendations in its national plan
of action. The
Commission also recommended
that an independent
advisory committee be appointed to monitor and examine the arrest and
detention of persons taken into custody pursuant to provisions of the Public
Security Ordinance or the Prevention of Terrorism Act (para. 9.57). The
Government assigned this recommendation to the Ministry of Public
Administration and Home Affairs, although the actions to be implemented lack
clarity.
32. The
Commission also recommended
the establishment of
a centralized comprehensive
database of detainees to be made available to the next of kin (para. 9.63). In
its national plan of action, the Government assigned the Ministry of Defence
the task of enhancing the “present database” to ensure easy access to
information for next of kin. In its comments on the present report, the
Government stated that a centralized, comprehensive database of detainees had
been established at the Terrorist Investigation Division of the Police, and
that 3,073 next of kin had made inquiries. This does not, however, address the
needs of those whose family members either went missing during the last stages
of the war or surrendered to the army and disappeared thereafter. Furthermore,
some of those who approached the designated Government entities were reportedly
unable to obtain any information owing to the uncooperative and sometimes
hostile behaviour of State officials.
33. Noting that some detainees at the Boossa Detention
Centre had spent long periods of detention without any charges filed against
them, the Commission, in its report, reiterated its interim recommendation that
“a special mechanism be created to examine such cases on a case-by-case basis
and recommend a course of action in regard to disposal of each case, as
appropriate” (para. 9.62). In the national plan of action, the Government
called on the Attorney General’s Department to identify and establish
procedures within the existing system to address this issue, and to complete
decision-making regarding detainees through a dedicated unit in the Department. According to a progress (undated)
report, a four- member special committee was set up by the Department, which,
in January 2011, began to study cases of LTTE suspects in detention and to
expedite releases for rehabilitation or expedite investigations where adequate
evidence of hard-core involvement in the LTTE 22 For example, on 4 January 2012, a person
who had been abducted the previous day was found dead with a gunshot wound to
the head. was available.23 In
its statement made at the fourteenth session of the universal periodic review, the Government declared,
with regard to the treatment of ex-combatants, that, as at 22 October 2012,
11,012 people, included 594 LTTE child soldiers, had been rehabilitated and
reintegrated into society, and that of the approximately 12,000 identified as
ex- combatants and provided with rehabilitation, only 782 were actually
undergoing rehabilitation, while 262 were under judicially mandated custody
(remand).24
34. On 23
May 2012, the
Leader of the
House announced in
Parliament that the Government had taken measures to
establish four special courts to hear cases against LTTE suspects. Government
representatives gave differing accounts to the OHCHR technical mission with
regard to the quantity, functionality and location of the courts. The technical
mission was also informed that the delay in the establishment of the courts had
been due to the lack of judges and interpreters, and that the Judicature Act
was being amended in order to
expedite the appointment
of judges. Although
the Attorney General’s
Department assured that the courts would be functional by the end of
2012, this was still not the case at the time of writing.
35. There are
many concerns regarding those who have gone through the rehabilitation process,25 including the criteria used to subject an
individual to rehabilitation; questions
regarding the supposed
voluntary nature of
persons surrendering themselves
for rehabilitation; the transfer of persons between rehabilitation and detention centres, which results in the
deprivation of freedom of liberty of individual
through the increase of the detention period; and the lack of such basic
procedural safeguards as legal representation and judicial oversight for
lengthy rehabilitation periods.
36. The OHCHR
technical mission was further informed by the Secretary for Defence that those
who had undergone rehabilitation were continually monitored after their
release. It has been reported that those released have to register regularly with
either the local Civil Affairs Office of the military, or the local army camp.
In addition, multiple military and intelligence
agencies visit the
homes and even
workplaces of those
released for interrogation
purposes. Such continued monitoring and harassment have an adverse impact on
the ability of those released from rehabilitation to reintegrate successfully into the community,
as they are perceived to be Government informants, and are therefore shunned by
the community. Women are particularly affected by this problem and subject to
stigma following contacts with the military.
D. Internal
displacement and land issues
37. The Lessons Learnt and Reconciliation Commission noted
that, while the process of returning those displaced during the final stages of
the armed conflict had largely been completed,
concerns remained regarding
the needs of those resettled
(para. 9.102). In discussing the issue of displaced Muslims
from as far back as October 1990, the Commission recommended the appointment of
a special committee to examine durable solutions for internally displaced
persons and to formulate a comprehensive State policy in consultation with
internally displaced persons and host communities, which was included in the
national plan of action (para. 9.113). During its universal periodic review of Sri Lanka in
2008, the Government also voluntarily pledged to develop a comprehensive and
uniform compensation policy for the displaced, and to complete the process of
drafting a bill on the rights of internally displaced persons in consultation
with all relevant stakeholders. The Government also accepted recommendations to
take the measures necessary to protect the rights of the displaced in
accordance with international standards, including with regard to
long-term housing and
property restitution, facilitating
the reintegration of
displaced persons in areas of return, and the provision of assistance to
them. The National Action Plan for the Protection and Promotion of Human Rights
2011-2016 launched in October 2011 envisaged a national policy on displacement
that would be formulated within six months. To date, however, no comprehensive
national policy for displaced persons, no policy on compensation for the
displaced and no legislation on the rights of the displaced has been drafted or
adopted.
38. Another obstacle is the lack of official and
comprehensive figures on internally displaced persons, given that no
comprehensive profiling of displaced persons has been undertaken in Sri Lanka since
2007. At the end of 2012, a compilation of Government source data by the United
Nations High Commissioner for Refugees on internally displaced persons
indicated that, of those displaced over the 26-year long conflict,
approximately 483,300 individuals had returned to their area of origin, while
about 94,000 remain displaced. Of those displaced after April 2008 and housed
in Menik Farm following the end of the war, approximately 271,200 have returned
to their area of origin, while an estimated 18,000 continue to live with host
families or in welfare camps, transit situations or on relocation sites.
39. The return of internally displaced persons to their area
of origin alone does not imply a durable solution to their plight. The
recommendation of the Lessons Learnt and Reconciliation Commission that
assistance be provided to returnees to enable them to repair or build permanent
houses, as well as for basic infrastructural needs to be met, including
adequate roads, schools and hospitals where people have been resettled, was not
incorporated into the national plan of action (para. 9.103). The Government
has, however, embarked on a major reconstruction and resettlement programme for
internally displaced persons. The OHCHR technical mission was able to visit several
resettlement sites, which varied enormously in many respects, including the
standard of housing and access to basic amenities.
40. In response to the Commission’s recommendation that the
Government should be clear on its resettlement policies (para. 9.106), the
Ministry of Lands is to conduct awareness-raising programmes on the
implementation of circular No. 2011/4 of the Commissioner General of Lands. It
should be noted, however, that the circular was withdrawn in January 2012 after
its legality was challenged in court. The Government subsequently undertook to
issue a new circular, which is, to date, still pending.
41. Many
recommendations made by
the Lessons Learnt
and Reconciliation Commission
related to land issues, including ensuring that State policy on land is not
used as an instrument to effect unnatural changes in the demographic pattern of
a given province, were assigned in the national plan of action to a body yet to
be established, namely, a fourth land commission, to be appointed under the
Ministry of Lands (paras. 9.124, 9.126, 9.128-
129 and 9.131-136).
42. The resolution of land-related issues is essential to
attaining durable solutions for internally displaced persons. Some of the main
land-related challenges include loss or damage to documentation, competing
claims, landlessness, land grabs and secondary occupation by civilians. The
lack of clarity on the Government’s approach and policy in this regard not only
hinders the resolution of associated issues for the displaced but also
exacerbates feelings of mistrust and suspicion in minority populations, which
account for the majority of all displaced persons.
E. Right to freedom of opinion and expression
43. In its report,
the Lessons Learnt
and Reconciliation Commission
strongly recommended that attacks
on journalists and
media institutions be
properly and conclusively
investigated, and urged the imposition of deterrent punishment for such
offences (para. 9.115a-c). Under the national plan of action, investigations of
current cases are to be completed by the police, while the Ministry of Mass
Media and Information is to take appropriate action to ensure media freedom.
Furthermore, the Ministry is to promote responsible journalism and consider a
code of conduct for journalists, which, however, does not seem to be an
adequate response to concerns about the security of media personnel, and which
could instead lead to greater media control.
44. It is worth recalling that the Government accepted
recommendations at its universal periodic review in 2008 to ensure a safe
environment for human rights defenders, as well as to investigate
allegations of attacks on journalists,
media personnel and
human rights defenders and to
prosecute those responsible.
45. In 2012, journalists and media institutions continued to
be harassed and attacked. In March, the Minister for Public Relations and the
Minister for the Media made vicious public attacks on human rights defenders
who had advocated at the nineteenth session of the Human Rights Council. The
Minister for External Affairs publicly rejected these comments, but no action
was taken against either minister.26
On 29 June, the Criminal
Investigation Department raided the office of Sri Lanka X News and its sister
website, Sri Lanka Mirror; nine staff members were arrested and later released
on bail. On 5 July, there was a failed attempt by two men in a white van to
abduct the lead investigative journalist (a vociferous critic of the current Government)
for Sri Lanka X News. He had reportedly been receiving threats since 2008 for
criticizing the Government.
F. Demilitarization
46. The Lessons
Learnt and Reconciliation Commission made a clear recommendation in its report
on the reduction of military involvement in civilian matters (paras. 9.171 and 9.227),
which was assigned in the national plan of action to the Ministry of Defence.
The ubiquitous military presence in the north is not confined to the overt
physical presence of military personnel, but extends to the deep involvement of
the military in civilian matters through direct power transfers and exercise of
power, and by indirectly preventing the capacity-building and effective
development of civilian institutions. Several important civilian functions were
brought under the purview of the Ministry of Defence, such as the
Non-Governmental Organizations Secretariat and the Urban Development
Authority in
2010.
47. Military officers informed the OHCHR technical mission
that the military was able to deliver on different projects in areas where the
civilian administration lacked capacity. In one particular presentation, the
military was shown to be involved in a wide range of activities, from building
and repairing homes to delivering livelihood projects to donating blood and
transporting patients in a critical condition to medical facilities, through to organizing
sporting and cultural events. The Government stressed that these are temporary
measures until civilian institutions took over these functions. However,
consideration must be given to whether adequate resources are being allocated
for the capacity-building of civilian institutions in post-war Sri Lanka, as
well as to the perception of such a continued visible military presence by the
minority population in the north.
48. In addition to the remaining designated high-security
zones, the military occupies land formerly occupied by civilians, such as
Mullikulam in Mannar and Keppapulavu in Mullaitivu, who have since been
displaced as a consequence. It is not clear whether the military presence in
these areas is temporary or more permanent in nature; furthermore, those
dispossessed have made claims that due process was not followed and they have
yet to be properly compensated. In addition, and as noted by the Commission,
the military is also involved in
various economic activities
with an adverse
impact on the
local population’s right to livelihood (paras. 9.171 and 9.227).
49. General members of the public are required to give notice
to the local army post whenever they plan to hold a gathering, irrespective of
size or the social or apolitical nature of the event. Where external actors are
expected to be present at the gathering,
army officers are known to attend and observe the proceedings. Non-governmental
organizations, which are expected to be registered with the Non-Governmental
Organizations Secretariat, must request authorization to undertake certain
activities and keep the authorities informed about, inter alia, sources of
funding.
50. The heavy military presence heightens the vulnerability
of women and young girls to violence and harassment and thereby restricts their
freedom of movement, which has an adverse impact on other aspects of their
lives, including their livelihood opportunities and access to
education.27
The Lessons Learnt
and Reconciliation Commission
noted particularly the impact of the armed conflict on certain groups,
including women, and made several recommendations acknowledging the role of
women heads of households and the hardships
that they endure,
including providing for
such different needs
as economic assistance,
educational opportunities and a more secure environment (paras. 9.87-90). None
of these recommendations were incorporated into the national plan of action.
G. Reconciliation and reparations
51. Among the recommendations made
by the Lessons
Learnt and Reconciliation Commission to
promote reconciliation included
the establishment of a
mechanism, in consultation with
interfaith groups, to serve as an early warning system to prevent future
conflict resulting from communal or religious tension (para. 9.270). In the
national plan of action, the Government proposes the continuation of existing
practices to implement this recommendation. The Government has assigned another
relatively straightforward Commission recommendation for the national anthem to
be continued to be sung in both Sinhala
and Tamil (para.
9.277) for the
consideration of a
yet to be
established parliamentary select committee.
52. The Commission made particular recommendations
concerning the implementation of the 13th amendment to the Constitution which,
among others, provides for devolution of powers to provincial councils. Calls
have, however, increasingly been made from within the Government for the repeal
of the amendment in the wake of Supreme Court decisions in favour of
petitioners challenging the constitutionality of the Divineguma bill, presented
in July 2012, which sought to assume functions currently exercised by the
provincial councils for the objective of poverty alleviation and economic
development. While the Government is reportedly committed to the holding of
(overdue) elections for the Northern Provincial Council, doing so without the
full and proper implementation of the 13th amendment would leave the Council
without substantive powers.
53. On
reparations, the Commission
considered the role
of compensatory relief
in facilitating reconciliation, and examined the structures in place,
focusing its recommendations on ensuring that those who are eligible for
payments have access to it within a reasonable time frame (para. 9.153). Its
recommendations revolved around the effective working of the Rehabilitation of
Persons, Properties and Industries Authority which is responsible for providing
compensatory relief to those who suffered loss
and damage due to terrorist violence and security forces operations. By
focusing only on the Authority and its shortcomings, including the lack of
funds, the Commission regrettably disregarded other forms of reparations,
beyond compensation, that may be possible.
54. The Commission nonetheless acknowledged the importance
of “commemorative gestures” in providing
the necessary impetus to the reconciliation process, and strongly
recommended the expression of solidarity
and empathy with all victims of the armed conflict at a high political level
and through a separate event on Sri
Lanka’s National Day (para. 9.285). Although
this recommendation was incorporated into the national plan of action, the
activities proposed regrettably do not go beyond current practices.
55. Following the end of the armed conflict,
memorialization, an integral component of reparations, has been non-inclusive,
a fact that risks further disaffecting the minority population. While memorials
to soldiers and war museums have been built by the Government, it has to date
made no effort to commemorate civilians who lost their lives in the war.
Furthermore, most of
the memorials have
been built in
the Tamil-majority Northern
Province and tend to use triumphalist images from which the local population
feels a strong sense of alienation. LTTE cemeteries, which also utilized
militarist images, have also been destroyed. Furthermore, since the end of the
armed conflict in May 2009, the military has reportedly prevented civilians in
the north from holding private and religious ceremonies to commemorate family
members, both civilians and combatants, killed in the war. In another
illustration of insensitivity, the military has constructed a holiday bungalow,
called “Lagoon’s Edge”, on the site of the last battle during which thousands
are believed to have been killed.
56. From the briefings that the OHCHR technical mission
received on development and reconstruction initiatives in the north, it noted
that several Government representatives viewed these efforts as benevolence on
the part of the State, particularly
towards the conflict-affected and minority populations, rather than the
fulfilment of the State’s fundamental obligations towards its citizens. As a
result, this may be a missed opportunity to couple the framework for
development with a national reparations policy in which rights- holders are entitled
to redress.
VI. Possible areas of technical assistance by the Office
of the High Commissioner
57. Following
the OHCHR technical
mission, on 26
November 2012, the
High Commissioner wrote to
the Government of
Sri Lanka to
propose possible areas
for technical cooperation pursuant to Human Rights Council resolution
19/2. The proposed areas fall under four key components of a comprehensive and
human rights-based approach to transitional justice, namely, the right to
truth, criminal justice and accountability, legal and institutional reforms,
and the right to a remedy and reparations. In particular, the High Commissioner
offered advice on the establishment of a follow-up truth-seeking mechanism that
would examine the different accounts of past events and the history of the
conflict, including its root causes, provide an inclusive narrative of why it
happened, contribute to the creation of a historical record and bring clarity
to the question of casualty figures. Last but not least, such a mechanism could
also permit effective progress in resolving the cases of disappeared and
missing persons pending proper criminal investigations.
58. Regarding past cases of serious violations of human
rights identified by the Lessons Learnt and Reconciliation Commission, the High
Commissioner urged for the publication of the presidential commission of
inquiry report of 2006 and offered assistance in identifying international
experts in criminal and forensic investigations to review relevant case files
and advise on additional lines of inquiry that could help to resolve these
cases in accordance with international standards. Advice was also offered for
the drafting of laws dealing with witness and victim protection, the right to
information, the criminalization of enforced disappearances and the revision of
existing laws to bring them into line with the International Covenant on Civil
and Political Rights and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. Best practices and comparative
experiences were also offered to help strengthen and ensure the independence of
national institutions.
59. The High Commissioner also offered technical advice in the development of a national reparations
policy in accordance with international standards, and suggested that the
Government consider engaging with the Special Rapporteur on the promotion of
truth, justice, reparation and guarantees of non-recurrence, who could provide
valuable advice in this field. The High Commissioner also recommended that the Government invite the Special
Rapporteur on the human rights of internally displaced persons to undertake a
country visit to examine and advise on issues falling under his mandate, as
well as respond positively to the eight outstanding requests for country visits
by other special procedures.
60. The High Commissioner
stressed the importance
of a comprehensive
approach addressing all the elements of transitional justice, including
criminal justice and accountability, and of clear benchmarks with which to
measure progress, based on Sri
Lanka’s international human rights
obligations. She expressed her hope of seeing meaningful progress in the areas
described above before her country visit in the first half of 2013. In a letter
of reply dated 17 December 2012, the
Minister for External Affairs suggested that the High Commissioner visit Sri Lanka in
early 2013 to assess first-hand the situation on the ground, which would then
provide a meaningful basis on which to identify possible areas of technical
assistance.
VII. Conclusion
and recommendations
61. Achieving
reconciliation following decades
of violence and
mistrust is challenging in any
context, but is only possible through a genuine, consultative and inclusive
process that addresses the grievances of all those affected by the conflict, in
an environment where the rule of law and human rights for all are respected.
62. While the Lessons Learnt and Reconciliation Commission
had some limitations, it nonetheless made significant and far-reaching
recommendations for reconciliation and strengthening the rule of law. This was
widely heralded by prominent community figures,
religious leaders and civil
society in Sri Lanka eager
to join hands in a genuinely consultative and inclusive
reconciliation process. The Government therefore has a unique opportunity to
build upon the Commission’s work and findings to move towards a more
all-encompassing and comprehensive policy on accountability and reconciliation.
Unfortunately, however, the Government has made commitments to only some of the
Commission’s recommendations, and has not adequately engaged civil society to
support this process. The steps taken by the Government to investigate
allegations of serious violations of human rights further have also been
inconclusive, and lack the independence and impartiality required to inspire
confidence.
63. The High Commissioner recommends that the Government of
Sri Lanka:
(a) Give
positive consideration to the offers of assistance made in her letter dated 26
November 2012, in particular expertise in:
(i) The
establishment of a truth-seeking mechanism as an integral part of a more
comprehensive and inclusive approach to transitional justice;
(ii) Criminal
and forensic investigations to review relevant case files and advise on
additional lines of inquiry to resolve outstanding cases in accordance with
international standards;
(iii) Drafting
laws dealing with witness and victim protection, the right to information, the
criminalization of enforced disappearances and the revision of existing laws to
bring them into line with the International Covenant on Civil and Political
Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment;
(iv) Strengthening
and ensuring the independence of national institutions;
(v) The development
of a national
reparations policy in
line with international
standards;
(b) Invite
special procedures mandate holders with outstanding requests to make country
visits, particularly those
who have offered
assistance pursuant to Human Rights Council resolution 19/2;
(c) Hold public
and inclusive consultations on the national plan of action for implementation
of the recommendations of the Lessons Learnt and Reconciliation Commission with
a view to revising and expanding its scope and clarifying commitments and
responsibilities;
(d) Revisit and
implement the Commission’s recommendation on appointing a special commissioner
of investigation into disappearances, and extend tracing programmes to include
all missing persons;
(e) Open
proceedings of military courts of inquiry and future trials of LTTE detainees
to independent observers to increase public confidence, and allow proceedings
to be evaluated in line with international standards;
(f) Publish the
final report of the presidential commission of inquiry 2006 to allow the
evidence gathered to be evaluated and accept international assistance to
resolve outstanding cases;
(g) Take further
steps in demilitarization and devolution to involve minority communities fully
in decision-making processes;
(h) Engage civil
society and minority community representatives in dialogue on appropriate forms
of commemoration and memorialization that will advance inclusion and
reconciliation.
64. The High
Commissioner noted the views expressed by many stakeholders in Sri Lanka,
including prominent community leaders, that the attention paid by the Human
Rights Council to issues of accountability and reconciliation in Sri Lanka had
helped to create space for debate, and catalyzed positive steps forward,
however limited at this stage. The High Commissioner encourages the Council to
continue its engagement and build on this momentum. In this regard, she reaffirms
her long-standing call for an independent and credible international
investigation into alleged violations of international human rights
and humanitarian law, which could also
monitor any domestic accountability process.
Foot notes
1 Available from www.defence.lk/warcrimes/lessons_learnt_and_reconciliation_commission_final_report.html
2 See the report
of the Secretary-General’s Panel of Experts on Sri Lanka, 31 March 2011 (available
from www.un.org/en/rights/srilanka.shtml
), annex 2.
3 According to
the Panel of Experts, in the case of the Government, these were (a) the killing
of civilians through widespread shelling; (b) the shelling of hospitals and
humanitarian objects; (c) the
4 In accordance
with established practice, the Government of Sri Lanka provided its comments
and observations on the draft report, which were taken into account, as
appropriate. At the request of the Permanent Mission of Sri Lanka, the
observations of the Government on the draft report are circulated as an
addendum to the present report (A/HRC/22/38/Add.1).
5 CAT/C/LKA/CO/3-4,
para. 21.
6
CEDAW/C/LKA/CO/7, paras. 40-41.
7
CRC/C/LKA/CO/3-4, paras. 32-33.
8 See press
statement of the High Commissioner, 26 April 2011 (see
www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10962&LangID=E);
CAT/C/LKA/CO/3-4, para. 21; report of the Panel of Experts, paras. 344-345.
9 See for example
activities in the national plan of action in relation to the Commission
recommendations in paras. 9.51, 9.57, 9.73, 9.106, 9.270 and 9.285
10 See for
example the activities in the national plan of action in relation to the
Commission recommendations in paras. 9.9, 9.37, 9.39, 9.218 and 9.285.
11 See for
example the activities in the national plan of action in relation to the
Commission
recommendations in paras. 9.126, 9.128-129, 9.131-136,
9.150, 9.214 and 9.277.
12
CAT/C/LKA/CO/3-4, para. 10.
13
A/HRC/WG.6/14/LKA/2, para. 2.
14 See OHCHR
press briefing note dated 18 January 2013.
15 See press
statements dated 14 November and 31 December 2012.
16 A/HRC/8/46, para. 82, recommendation 15.
17 Report of the
Panel of Experts, paras. 392 and 395.
18
E/CN.4/2000/64/Add.1, para. 63; CCPR/CO/79/LKA, para. 10;
CAT/C/LKA/CO/3-4, para. 9.
19 In the past
two years, the Government has provided responses on 159 cases for consideration
by the
Working Group.
20 Affiliated
with the Frontline Socialist Party, previously the People’s Struggle Movement.
21 The Urban
Council Chairman of Kolonnawa, his brother, the brother-in-law of a Government
minister and the son of a former provincial councillor.
23 Report of the
Panel of Experts, p. 172, annex 2.15.3.
24 The Panel of
Experts, quoting the figure of 11,696 persons provided by the Government,
pointed out in its report (para. 164) that the number could not be verified
independently, given that the Government had refused independent oversight by
the United Nations, ICRC or the Human Rights Commission of Sri Lanka.
25 Administrative
detention of persons without charge or trial for purposes of rehabilitation was
previously provided for under the Emergency Regulations, which have now lapsed.
The Prevention of Terrorism (Detainees and Remandees) Regulations No. 4 of
2011, which were introduced when the Emergency Regulations expired, ensured the
continued detention of those detained under the latter.
26 See
A/HRC/21/18, paras. 38-46.
27 See also
CEDAW/C/LKA/CO/7, para. 41.
