“Virtually no progress has been made” - UN High Commissioner for Human Rights

The UN High Commissioner for Human Rights, Michelle Bachelet Jeria, has released a report assessing the progress Sri Lanka has made in implementing resolution 30/1, which promoted reconciliation, accountability and the protection of human rights. In this report, whilst there is commendation of the steps Sri Lanka has taken, concerns are also raised on the lack of tangible progression; institutional failures within the criminal justice system; harassment of human rights defenders; the military’s occupation of civilian land; and, on-going reports of abduction, torture and sexual violence.  

The Office of Missing Persons

In the report, the Bachelet praises the establishment of the Office of Missing Persons (OMP) but raises concerns over its approach and lack of results. 

The Sri Lankan government has provided short-term relief for families of victims and placed this as a priority but, as the report states, there is a “lack of a comprehensive strategy and of outreach on the process to address the past”.  The inability to provide tangible results and extensions of deadlines has diminished victims' faith in the office. This is most evident with the recent protests in Mannar. 

The report maintains that OMP “must find a balance between the need to establish itself as a lasting institution with solid foundations and the expectation of immediate results, which would give victims the incentive to cooperate with the body”. This requires both short-term and long-term priorities.

Part of this process, the UN Commissioner maintains, is reconciling with and being accountable for past atrocities. The Commissioner notes that a mass grave with more than 300 skeletons was recovered in Mannar on 29th May 2018, this was the second mass grave with the first discovered in 2014. The remnants of these bodies need to examined and identified to provide closure for the victims. The report notes that “other mass graves might be expected to be found in the future” and that systematic access to the graves by the Office is essential. 

Criminal justice

The report also raises concerns over a seeming an inability or unwillingness to hold perpetrators of human rights violation to account. Instead what is seen is “lengthy delays in investigations and in judicial processes in general” as well as “a bail system that is applied inconsistently and in a discriminatory way”. The few marks of progression are the result of “ persistence and commitment of individual investigators despite political interference, patronage networks and a generally dysfunctional criminal justice system”.

The report notes that:  

Since 2015, virtually no progress has been made in investigating or prosecuting domestically the large number of allegations of war crimes or crimes against humanity collected by OHCHR in its investigation, and particularly those relating to military operations at the end of the war.  

Despite the denials by the Sri Lankan government that independent foreign judges are not needed, the report details an abundance of “evidence that the ordinary criminal justice system is unable to deal with the nature of allegations and the complexity of crimes”. The report further states that: 

In 2015, the High Commissioner stated that, for accountability to be achieved in Sri Lanka, more than a domestic mechanism would be required (A/HRC/30/61, para. 88). The lack of substantial progress in establishing criminal accountability for serious crimes in the past three years underscores the relevance of that assessment. 

The lack of political will to implement reform is further emphasised by the fact that both the President and Prime Minister have rejected the need for foreign assistance in reforming their institutions. 

Prevention Against Terrorism Act (PTA)

The report also highlights the government’s failure to fully repeal the draconian PTA which it had committed to review and repeal in 2015. Draft legislation has been considered for the Counter-Terrorism Act (CTA) but as the report notes there are “serious shortcomings”. Despite this, the Cabinet had approved the bill in April 2017 where it was later withdrawn for revision. A later version with improvements was presented to parliament on 9th October 2018. 

The PTA remains a cause for concern within the Tamil community who have been subject to arbitrary detention under this legislation. Research gathered by the report maintains that “at 25 January 2019, 58 individuals detained under the Act were facing trial and three suspects were awaiting indictment”. 

Land grabs

With respects to the military’s occupation of land the Commissioner applauds the efforts made by the government and President Sirisena suggestion that “all civilian land in the North and the East would be released by the end of 2018”. The commissioner, however, also notes that often the land returned had only been partial or incomplete with “access to dwellings but not to livelihood resources” or vice versa. Public services such as schools are also unavailable and there have a number of reports of “property being destroyed shortly before it was returned”.

Tamil communities allege that this projects such as those on irrigation, forestry and archaeological are attempts to colonise the land and perpetuate military control over economic activity.

Intimidation and sexual violence

Another concern raised is the harassment and surveillance of human rights defenders and victims of human rights violation. The report details that in 2018 there were at least two incidents where human rights defenders were assaulted by “unidentified aggressors, presumably in connection to their advocacy on cases of disappearance”.

This harassment and surveillance of protesters and victims suggest “that informal and often extralegal intelligence gathering activities have not ceased, despite the recommendations made thereon”. The continued harassment further undermines the peoples' trust in the state.

The report further details continued allegations of “abduction, unlawful detention, torture and sexual violence by Sri Lanka security forces, which allegedly took place in 2016 to 2018”. These allegations require “prompt, effective, transparent, independent and impartial investigations”. 

Recommendations 

Recommendations to Sri Lanka

The reports makes a series of recommendations to Sri Lanka regarding their concerns.

With respect to the reports of ongoing torture and sexual violence, the UN mandates a statement be sent to branches of the security force maintaining Sri Lanka’s opposition to said violations and hold perpetrators accountable. This requires a vetting process which would remove from office and prevent from serving in UN peacekeeping operations, those involved in human rights violations. These reforms must be supplemented with institutional reform of the security sector “to strengthen accountability and civilian oversight”.

Furthermore, they state that it is necessary for the government to order an end to “all forms of surveillance and harassment of and reprisals against human rights defenders, social actors, and victims of human rights violations”. The demand to end the arbitrary detention of civilians is further addressed by the report’s call to replace the PTA with “legislation that adheres to the best international practices”.

With respects to the military’s seizure of land the report calls for the establishment of an independent mechanism “to determine specific cases in which land must be allocated for military use owing to security reasons and identify appropriate compensation or substitution for landowners or occupants;

The report also asks the government ensures that the Office of Missing Persons and the Office for Reparations be properly funded and supported. The later is encouraged to develop “a national reparations policy that takes into account the specific needs of women and children and psychosocial support for victims”.  

Recommendations to UN and Member States

They recommend that the UN continues to provide technical and financial support to Sri Lanka to aid effort transitional justice, “provided that they meet international standards”. Furthermore, they advise a strict vetting process for Sri Lankan military and police personnel under consideration for peacekeeping operations, military exchanges and training programmes.

Similarly, UN member states are advised to aid Sri Lanka in this process and to encourage the Human Rights Council to continue its engagement and monitoring of Sri Lanka. The report further calls upon member states to; “investigate and prosecute, wherever possible, in particular in accordance with universal jurisdiction principles, those allegedly responsible for such violations as torture, enforced disappearance, war crimes or crimes against humanity; and explore other options to advance accountability in the absence of credible domestic processes”.