Image: a half built memorial to war dead in Mullivaikal, Mulathiv, Sri Lanka. (c)s.deshapriya.
In is written statement submitted to the on going 36 session of the united Nations Human Rights Council, International Movement Against All Forms of Discrimination and Racism (IMADR), has called upon the Sri Lankan government to adopt The Rome Statue of the International Criminal Court.
IMADR, a NGO based in Japan, is headed by well known Sri Lankan human rights defender Dr. Nimalka Fernando.
Sri Lankan government has pledged not to be part of the ICC, so that no Sri Lankan can be tried by the ICC for alleged war crimes.
IMADR has put forward number of other recommendations as well:
Recommendations to the Government of Sri Lanka
• Implement the International Convention for the Protection of All Persons from Enforced Disappearance into national law.
• Ensure the full investigation of enforced disappearances regardless of victims’ ethnicity, religion, or other status.
• Fulfil the promises laid out in Resolution 30/1.
• Investigate the cases of attacks, threats, intimidation, and harassment of journalists, human rights defenders, and families of the disappeared.
• Ensure that the Right to Information Act can be used to facilitate the discovery of the fate the disappeared.
• Acknowledge and adopt the recommendations made by the Consultation Task Force.
• Repeal the Prevention of Terrorism Act and ensure the replacement legislation complies with international standards.
• Operationalize and ensure the independence of the Office of Missing Persons, providing it with sufficient funding and resources to fulfil its mandate.
• Allow for the memorialisation of those killed in the war, regardless of their allegiance.
• Devise a transitional justice process by which the country will address the reformation of the justice system and the security sector, establish an independent truth seeking mechanism and design a comprehensive reparations scheme.
• Adopt the Rome Statue of the International Criminal Court, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Protocols additional to the Geneva Conventions of 12 August 1949.
Full text of the IMADR written statement fellows:
Written statement* submitted by International Movement Against All Forms of Discrimination and Racism (IMADR), to the 36 session of the UNHRC.
Enforced Disappearances in Sri Lanka
Sri Lanka has endured consecutive periods of violent insurgency and a 26-year-long armed conflict between the Government of Sri Lanka and the Liberation Tigers of Tamil Elam. This conflict ended in 2009 and was characterised by the killing of civilians, arbitrary arrests and detention of Tamils, widespread torture, extrajudicial executions, and enforced disappearances. It has had “devastating consequences at a human, social and institutional level”. According to the OHCHR Investigation on Sri Lanka (OISL) Report, many of the violations committed between 2002-2011 would be classed as war crimes and crimes against humanity if established in a court of law.
Sri Lanka transitioned to a coalition government in January 2015, purportedly bringing a new willingness to engage. In 2015 the Government co-sponsored the Human Rights Council (HRC) Resolution 30/1, detailing a framework for reconciliation, accountability and human rights. Despite their purported willingness to follow through, progress seems to have stalled. An update on the implementation of Resolution 30/1 was reviewed in the 34th HRC session in March 2017 where the deadline was extended for another two years.
Enforced disappearances have been used to subdue political dissent and counter terrorist activities, both during and after the armed conflict. The Special Rapporteur on torture has received credible information that the strategy has continued to be used. In 2016 at least ten cases were reported between March 30th and June 30th. Recent disappearances are usually attributed to antiterrorism operations, ransom, or economic extortion. The most recent Commission of Inquiry received around 21,000 complaints and the Government stated that they have received over 65,000 since 1994.
The Special Rapporteur on torture notes that most of the structures of a warring nation remain in place with citizens living without even minimal guarantees against the power of the State. Before 2015 relatives, witnesses, and civil society were often intimidated, threatened and subject to reprisals for insisting on proper investigations. Sometimes families were forced into exile abroad. No progress has been made on the vast majority of cases. Since 2015 the democratic space has opened up considerably and although intimidations and harassment still occur they transpire much less frequently. Impunity for violations is still a core concern, as 22 key commitments promised by Resolution 30/1 remain unimplemented.
We welcome Sri Lanka’s engagement with UN human rights mechanisms and the standing invitation to the special procedures. The Government ratified the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) in May 2016 and recognised the competence of the Committee Against Torture to consider individual communications. We also note that the President gazetted the Office on Missing Persons (OMP) in July 2017, the “first independent and permanent mechanism to address missing persons and the issue of enforced disappearances”.
Challenges and Concerns
In 34th Session of the HRC, the High Commissioner drew attention to the “slow rate of progress and the lack of transparency” in realizing Resolution 30/1. Although Sri Lanka ratified the ICPPED, no domestic legislation exists to enforce it. National law offences have insufficient scope to encompass enforced disappearances or the penalty is too lenient for the gravity of the crime. Additionally, Sri Lanka has failed to recognize the competence of the Committee on Enforced Disappearances to receive and consider individual communications.
The international community commended the report by the government-appointed Consultation Task Force on Reconciliation Mechanisms (CTF), which undertook wide consultations throughout the country and provided detailed recommendations. The Government, however, failed to welcome the report. Neither the President nor the Prime Minister attended its handover and its findings have been casually disregarded. In a statement to the HRC in February 2017, the former Foreign Minister stated that he expected to see draft legislation on the truth-seeking commission within two months. No public statement has mentioned it since.
Families may be able to use the recently enacted Right to Information Act (RTI) to discover the fate of their loved ones. However, a leading lawyer believes that the legislation is unlikely to answer questions concerning the civil war, as it is silent on this kind of request. Several women from Batticaloa attempted to use the RTI for this purpose and filed a request regarding the whereabouts of disappeared friends and family members but were “met with a mixture of apathy and confusion” and even had to educate some officials on the Act. Information relating to the war may be denied on the basis of national security but the Centre for Policy Alternatives urge people to nonetheless continue seeking the truth through these means.
At the time of writing, the Prevention of Terrorism Act (PTA) is still in force. A third draft of the Counter Terrorism Act (CTA), legislation meant to replace the PTA, was approved in May 2017. A number of concerns have been raised about the CTA regarding prolonged detention without charge, the definition of terrorism, and procedural safeguards. The Special Rapporteur on counter-terrorism and human rights conducted a country visit to Sri Lanka in July 2017 and overall was discouraged by the lack of progress. The glacial pace of the CTA has delayed the delivery of transitional justice measures that were promised two years ago. The Prime Minister assured the Special Rapporteur that upon completion of counter-terrorism reform the government would create a Truth and Reconciliation Commission and an Office of the Special Prosecutor, steps that should have been completed by now.
President Sirisena signed the gazette on the OMP in July 2017 and assigned the office to the Minister of National Integration and Reconciliation where it will essentially be under his control as the Cabinet Minister of Reconciliation. It must be noted that this is only the first step in operationalizing this office; a minister must also issue a gazette and call for nominees. The OMP received significant criticism from civil society and the international community for failing to involve substantive consultation. The OMP Bill facilitates international involvement; however there has been an on-going resistance to any foreign involvement in the mechanisms themselves. Worryingly the legislation specifically states that the findings will not give rise to criminal or civil liability.
Memorialisation is key to the reconciliation process and all communities have the right to construct memorials, regardless of their allegiance. Therefore, families must be allowed to participate in memorialisation activities and the State must guarantee their security. However, Reverend Fr. Elil Rajendran complained to the Human Rights Commission stating that police have summoned him multiple times to be interrogated about his memorialisation activity. Such repudiation of these rights will deepen ethnic divisions and hamper reconciliation efforts.
The Government also committed to establishing an office for reparations. The former Foreign Minister stated that the Government was finalizing the design for such an office, but no reparations policy has been established or appears to be in the process. As Sri Lanka did not recognise the status of ‘missing’, families of missing persons were unable to apply for compensation, qualify for social welfare payments and pensions, access frozen assets or transfer property ownership. Upon presentation of a Certificate of Death, relatives of the disappeared can receive compensation of up to 100,000 rupees. Relatives of the disappeared who allegedly had connections to terrorist organisations cannot claim this compensation. It must be noted that families are often under duress to accept these death certificate, which de facto ends the search for truth and justice.
In June 2016 an amendment to the Registration of Deaths (Temporary Provisions) Act enabled the Government to issue a certificates of absence (COA). The COA is valid for two years or if information surfaces about the missing person. If, after two years, no information has been found relatives may extend the COA, apply for a Certificate of Death or cancel the COA. This may give rise to abuse, as families have often been pressured to accept a death certificate. The former Minister of Foreign Affairs referenced these certificates in a speech made to the HRC but it is unclear whether this process is being utilised, or is even functioning.
Recommendations to the Government of Sri Lanka
• Implement the International Convention for the Protection of All Persons from Enforced Disappearance into national law.
• Ensure the full investigation of enforced disappearances regardless of victims’ ethnicity, religion, or other status.
• Fulfil the promises laid out in Resolution 30/1.
• Investigate the cases of attacks, threats, intimidation, and harassment of journalists, human rights defenders, and families of the disappeared.
• Ensure that the Right to Information Act can be used to facilitate the discovery of the fate the disappeared.
• Acknowledge and adopt the recommendations made by the Consultation Task Force.
• Repeal the Prevention of Terrorism Act and ensure the replacement legislation complies with international standards.
• Operationalize and ensure the independence of the Office of Missing Persons, providing it with sufficient funding and resources to fulfil its mandate.
• Allow for the memorialisation of those killed in the war, regardless of their allegiance.
• Devise a transitional justice process by which the country will address the reformation of the justice system and the security sector, establish an independent truth seeking mechanism and design a comprehensive reparations scheme.
• Adopt the Rome Statue of the International Criminal Court, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Protocols additional to the Geneva Conventions of 12 August 1949.
Read as a PDF which includes foot notes:2821_A_HRC_36_NGO_Sub_En_IMADR_Enforced Disappearances in Sri Lanka