Image: UNHRC , Geneva ©s.dehapriya.
His Excellency the High Commissioner of Human Rights and to the participants of the 37th Sessions of the UN Human Rights Council!
UN’s Participation is Necessary in the Implementation of Transitional Justice Mechanisms of Sri-Lanka.
The Government of Sri Lanka cosponsored the Resolution 30/1 which was adopted in the United Nations Human Rights Council on 1 of October 2015[1]. As the Government of Sri Lanka has not duly fulfilled its commitments which are enshrined in the resolution 30/1, the council has given an extension for a period of two years to Sri Lankan government in March 2017 by adopting the resolution 34/1 [2] to fulfill its obligations. But there are no signs from the side of the government to fulfill these commitments. The proposed transitional justice institutions such as Office of the Missing Persons, justice mechanism, office for reparation and mechanisms that guarantees of non-recurrence have not yet come into effect. Basically, there is no evidence that the government has policy plans to implement these mechanisms comprehensively. The government is engaging in ad-hoc activities to satisfy the international community. Until to date the fundamental rights are challenged by the militarization and ethno-political institutions that continue to be exist in North and East of the country. This is basically paralyzing the social life of the communities of these areas.
Therefore, we North East Coordination Committee (NECC) [3]present our pleas before H.E. the High Commissioner of Human Rights and to the participants of the 37th Sessions of the UN Human Rights Council.
1. Sri-Lanka should restart the stagnated transitional justice initiatives
A great expectation was created by the government of Sri-Lanka on its transitional justice initiatives among the war affected communities, minorities, civil societies and as well the international community when the government co-sponsored the resolution 30/1. Initially to satisfy the international community and to calm down the affected people some of the mechanisms were proposed by the government in ad-hoc manner and a Coordinating Mechanism[4] was established. An act was adopted by the parliament on the establishment of the Office of the Missing Persons (OMP)[5]. Since then nothing has taken place. The government has totally given up its commitments to fulfill the obligations enshrined in the resolution. Therefore, we call the international community to advice the Sri-Lankan government to genuinely implement its obligations based on the resolution 30/1.
2. Sri-Lanka should genuine to reconciliation
The root causes of the conflict are racism and ethnic discrimination against minorities. It was immensely expected that the present National Unitary Government would eliminate all sort of ethnic and religious discriminations and establish reconciliation. But, the government itself represents these oppressive characteristics and satisfies the discriminatory agendas of the Sinhala Buddhist majoritarian forces. Therefore, racism is systematically spread against minorities and language discrimination, Buddhisization and colonialization are taking place in North and East minority areas:
• Racism:
The activities of the Sinhala Buddhist racist elements against the minority communities are increasing. These groups are creating fear and threat among the minorities on safety and security of their lives. There are several incidents where minorities were verbally abused and physically attacked. Therefore, immediate actions must be taken to eliminate the activities of such Sinhala Buddhist racist elements and to create an environment where the minorities could live with dignity and with equal status.
• Language discrimination:
Even though the Constitution has ensured that the Tamil language shall be the administrative language in Northern and Eastern provinces but, in reality the language policy is not implemented accordingly. Government administrative bodies are dealing with the Tamil speaking people in Sinhala language. (Tamil civilians’ complaints are recorded in Sinhala language at police stations and the complainers have to sign in the Sinhala document to ensure their statements where the language is unknown to them). Therefore, Tamil speaking government officers should be appointed in areas where Tamil people densely live to ensure the usage of Tamil language in government administration.
• Buddhisization:
There are various methods used by the extremist Buddhist elements and military by the backing of the state to construct Buddhist Stupas and temples in North East areas. Where ever the military occupies they build such icons in private and common lands. Other than that, with the support of the archeological department without any gazette notifications public/private lands and Hindu worship places are acquired by the state as “archeological protected areas” and interpreted as traditional Buddhist areas. Government institutions and police are assisting these encroachments.
• Colonialization:
Extremist racist forces with the support of the government institutions encroach lands of Tamil/ Muslim people. Sinhala politicians also backing them to expand Sinhala colonization by intruding into the minority villages.
3. Sri-Lankan government should give official recognition to the National Consultation Report
The national consultation was conducted in 2016 period by the Consultation Task Force on Reconciliation Mechanisms and the report was placed by the team in November 2016 [6]. But still the government has not given official recognition to the report which is the primary obligation of government under the resolution. Several war victims, human rights defenders and civil society groups engaged in the consultation process under severe surveillance and some of them have faced pre / post meeting intimidations. The report
6 Final Report of the Consultation Task Force on Reconciliation Mechanism, 17 November 2016, http://www.scrm.gov.lk/documents-reports which includes the voices of these groups is a basic document to design the transitional justice mechanisms and the process. Therefore, it is the primary obligation of the government to officially approve the National Consultation Report.
4. To promote transitional justice process in a comprehensive manner, Sri-Lankan government should establish a “Ministry of Transitional Justice” under “Transitional Justice Act”
Ministry of Transitional Justice is a necessity for the comprehensive and independent function of the following structures: Office of the Missing Persons, Justice mechanism, Truth commission, Office for Reparations and Mechanisms that guarantees of non-recurrence. Further, such Ministry is important to implement the financial and administrative affairs of these structures, to maintain coordination between the transitional justice mechanisms and other governmental administrative bodies, to receive continuous international assistance and to advices for its better function. Therefore, Transitional Justice Law need to be enacted to establish such a Ministry. By this, a legal foundation would be given to promote transitional justice mechanisms and any government that comes to power in future will be legally bound to continue the transitional justice process. It is also necessary to get the scholarly advices and assistance from the OHCHR and from relevant Special Rapporteurs to create the law.
5. Justice for enforced disappeared persons and their families
Enforced disappearances is a burning issue in North and East areas of the country. The families of disappeared persons engage in continuous protests to find out the truth about their disappeared beloved ones. Especially the old mothers engage in protests for more than 09 months, who are sitting under the hot sun and heavy rain for day and night, neglecting their physical health conditions and demanding from the government to give their beloved ones back. But the government maintains silence. The government has the obligation to become an ally in the process of finding the truth about the status of the disappeared persons and to ensure justice for the victims and their families.
But, contradictorily, the government appoints prosecutors from the Attorney General’s Department to represent on behalf of the perpetrators in habeas corpus cases and trying to protect them. Moreover, racist politics is played to protect the perpetrators in the name of “national heroes”. On the other hand, victims’ families are threatened by the state elements to stop seeking justice. Families that have litigated habeas corpus cases and their lawyers are monitored by the state/military/police intelligence during the hearings and thereafter in the court premises. They are photographed by these elements as well.
• The government must provide all necessary assistance to families of enforced disappeared persons to file habeas corpus cases
• The government should not protect the armed personnel who are responsible for disappearances in the name of “national heroes”
• Enforced disappearances should be criminalized in Sri-Lanka. This law should be enacted in accordance with the Observations of the Human Rights Commission of Sri Lanka on the International Convention for the Protection of All Persons from Enforced Disappearance Bill August 2017 [7].
• The recommendations made in the report of the UN Working Group on Enforced Disappearances should be fully incorporated to seek justice for the victim families[8.]
6. Ensure the security and safety of the human rights defenders and the civil society activists
The human rights defenders and the civil society activists are the first people who have taken the message of the transitional justice to the communities. They created awareness among the affected people about their rights and made the affected people to participate in the national consultation and continuously assisting them. But, the HRDs and civil society workers continuously undergo surveillance, monitoring, trawling, investigations and intimidations by men attached to the government intelligence section (police, army/navy and Ministry of Defense). The activities of the intelligence are a biggest barrier to the HRDs and civil society workers. Through phone calls they threat the HRDs and pressure them to stop the work. Where ever a workshop or a social event takes place the intelligence presence is there. In an incident physical assault including sexual nature was committed against a male HRD. Specially, intelligence men continually make telephone calls to women human rights defenders and visit their homes and question them. Abusive text messages were sent to WHRDs by these men. Therefore, the government must immediately stop the actions of intelligence against human rights defenders and civil society workers.
7. End Militarization in North and East
Militarization that exists in North and East areas is continuously enforcing the Sinhala Buddhist majoritarianism over the minorities. The presence of military in these areas has placed the lives of individuals and communities to always being in fear and tension. It has abolished the independent and free day to day life of the civilians.
Militarization is a key reason for the militarized land encroachment, economic activities of the military, the territorial violations (exploitation of land and sea resources) by the Southern Sinhalese in North and East areas, the expansion of Buddhist places and ethnic based intimidations. The power of the military in these areas is a cause for the violations and violent activities of the police, the disorder of rule of law and threats against the judiciary. Further, militarization is the basic strength for the functions of the intelligence who engage in the day to day social life of the civilians and have kept them under continuous surveillance. Specifically, the marginalized groups of the society (women and war affected people) are subjected to more violations by the militarization.
Therefore, the government must take measures to end militarization. Reformation and vetting are important in ending militarization:
a) Immediate actions must be taken to terminate the military officers who are responsible for serious human rights violations and other military personnel who have engaged in these actions from their positions and to investigate them
b) The Sri-Lankan military has been consisted with young men. Even though there is no war, the expenses for military is high and these men excessively stay in camps. Therefore, reducing the size of military by 70% and using these young men’s capacities for positive development of the country
8. Dual justice mechanisms – universal jurisdiction and hybrid mechanism – to investigate the crimes against the international human rights and humanitarian rights
• Universal jurisdiction is necessary to investigate the individuals who are most responsible for war crimes. UN must play its role on this regard. As the governments want to protect their political interests, no government would investigate the individuals who are most responsible for war crimes. This is the continuing experience of Sri-Lanka. Therefore, individuals who are responsible for war crimes must face international investigation and to end “impunity for war crimes”.
• The Sri-Lankan government must pass a law to establish a hybrid justice mechanism with international judges, lawyers and prosecutors as per its commitments to the Resolution 30/1 and to investigate all who have committed and involved in war crimes. The executing authority of the law must be given to the Ministry of Transitional Justice.
9. Sri-Lanka must enact CEDAW Act comprising CEDAW General Recommendations 19, 26 and 30 to ensure gender justice
Women and girls of Sri-Lanka become more and more victims of sexual crimes, violence and discriminations. Transitional justice process should include women’s voices to provide a highest legal protection and nondiscriminatory social situation for women and girls. To end violence against women (GR 19), to protect the migrant women workers (GR 26) and to protect women’s human rights in post conflict situation (GR 30) are crucial areas of Sri-Lankan women. Therefore, the government should take necessary measures to enact CEDAW Act comprising CEDAW General Recommendations 19, 26 and 30.
10. UNHRC give extension of time to Sri-Lanka to fulfill its obligations under resolution 30/1
According to the resolution 34/1, Sri-Lanka will be remained under the UNHRC’s schedule related to the implementation of resolution 30/1 until March 2019. After this period the government would take it as an opportunity to remove itself from the transitional justice obligations. Therefore, UNHRC’s assistance is compulsory to Sri-Lanka until the government fully implement its obligations.
11. The necessity of UN’s direct participation in the transitional justice initiatives of Sri-Lanka
Since 2010 UN has given more attention towards Sri-Lanka and since 2012 several resolutions were passed on Sri-Lanka. Resolution 30/1, the recommendation of the OISL report and the recommendations of the WGIED report are important among those. Even though an extension was given in March 2017 to Sri-Lanka to full fill its duties according to Resolution 30/1, the government does not give proper attention towards it. Further, as Sri-Lankan issue is going to be removed in the agenda of the Council from 2019, a situation would raise that the Sri-Lankan government to completely give up its international human rights and humanitarian obligations towards the Tamils of North and East and other ethnic minorities.
Therefore, for the true implementation of the transitional justice mechanisms UN’s direct participation is necessary beyond to its expertise advices and monitoring. Because, there is no any assurances that the minority Tamil people who have been oppressed by the Sinhala Buddhist majoritarianism would get justice by the same state apparatus. Therefore, UN must sign a memorandum of understanding with Sri-Lanka.
Foot notes:
1 Promoting reconciliation, accountability and human rights in Sri Lanka, UNHRC Resolution 30/1, 1 October 2015, Human Rights Council, http://www.mfa.gov.lk/images/stories/pdfs/docs/FINAL_published_-_thirty_slash_one.pdf
2 Promoting reconciliation, accountability and human rights in Sri Lanka, UNHRC Resolution 30/4, 23 March 2017, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/082/56/PDF/G1708256.pdf?OpenElement
3 A coalition of 12 grass root human rights organizations and women’s organizations that function in the Northern and Eastern provinces of Sri Lanka
4 Secretariat for Coordinating Reconciliation Mechanisms, http://www.scrm.gov.lk/about
5 Office on the Missing Persons Act, No. 14 of 2016, Published as a Supplement to Part II of the Gazette of the Democratic Socialist Republic of Sri Lanka of August 26, 2016, http://www.parliament.lk/uploads/acts/gbills/english/6016.pdf
6 Final Report of the Consultation Task Force on Reconciliation Mechanism, 17 November 2016, http://www.scrm.gov.lk/documents-reports
7 Observations of the Human Rights Commission of Sri Lanka on the International Convention for the Protection of All Persons from Enforced Disappearance Bill August 2017, 28 September 2017, http://hrcsl.lk/english/wp-content/uploads/2017/10/Letter-to-President-Protection-from-Enforced-Disapp-Bill-English.pdf
8 Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Sri Lanka, 8 July 2016, 33rd Session of the Human Rights Council, United Nations General Assembly, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/146/63/PDF/G1614663.pdf?OpenElement
North East Coordinating Committee
Sri-Lanka
28 January 2018