Score-card on Implementation of UNHRC Resolution on Sri Lanka Released

 UNHRC 30/1 OP.4: “Welcomes…the proposal by the Government to establish…an office of missing persons”

Progress: Initial proposals have been presented and have caused significant concern among activists working with families of the disappeared. Despite reports of the government’s ongoing engagement with the ICRC on the issue, several developments have been less encouraging. In particular the statements by the President and Prime Minister that all missing persons are presumed dead has raised concerns about the “predetermined nature” of any future investigations. Latterly, the extension of the mandate of the discredited Commission on Missing Persons has reinforced doubts about the government’s willingness to embark on a serious break with the failed mechanisms of the past – many of which were conceived merely as whitewashing devices.

 UNHRC 30/1 OP.4: “…affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and to achieve reconciliation”

UNHRC 30/1 OP.5: “Recognizes the need for a process of accountability and reconciliation for the violations and abuses committed by the Liberation Tigers of Tamil Eelam, as highlighted in the report of the Office of the High Commissioner for Human Rights investigation on Sri Lanka.”

Progress: No one has yet been held accountable, on either side, for serious crimes committed during the armed conflict. A judicial mechanism has yet to be established (see 10 below).

 UNHRC 30/1 OP.6: ”Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system.”

Progress: Prior to the September 2015 resolution, the government of Sri Lanka enacted a series of measures designed to bolster the rule of law and increase confidence in the justice system – including re-appointing the Chief Justice Shirani Bandaranayake (impeached in 2013 for political reasons) and enacting the 19th amendment (aimed at re-empowering the independent commissions and judiciary).

Since September however, several developments have cast doubt on the strength of commitment to change. These include, in particular, suspected political interference into several major investigations, (including those into Avant Garde and the disappearance of Prageeth Egnalikoda) and the appointment to key cabinet posts of various former government officials well known for their antipathy to the rule of law and judicial independence. There has also been limited, if any, progress to report on some of the most emblematic human rights cases, such as the ACF massacre and the ‘Trinco Five’ killings.

 UNHRC 30/1 OP.7: “Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report of the Office of the High Commissioner, including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the Lessons Learnt and Reconciliation Commission.”

Progress: There are two key commitments within this carefully worded paragraph: first, to introduce legislation criminalizing serious crimes (including war crimes, crimes against humanity, genocide and enforced disappearance) with retroactive effect; and second, to introduce legislation that enables prosecution of those with ‘command responsibility’ for such crimes. To date, no concrete steps have been taken towards the fulfilment of these goals. (For more background see pp.25-26 here).

 UNHRC 30/1 OP.8: “…encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process, which will help to enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law, including members of the security and intelligence units; and also to increase training and incentives [in the security sector] focused on the promotion and protection of human rights of all Sri Lankans.”

UNHRC 30/1 OP.17: “…welcomes the commitment of the Government of Sri Lanka to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished.”

Progress: To date, no concrete steps have been taken towards establishing a process for the vetting and removal of human rights abusers in the military. And it is unclear what, if any, training and incentives have been provided, or what instructions to the security forces have been issued, with the aim of improving the protection of human rights by the military. The Sri Lanka Campaign has written to the government of Sri Lanka to seek further clarification on these matters.

Human rights violations are still continuing (for example, see here and here) and the security services still conduct routine surveillance of civil society in the north and east of Sri Lanka. This has ensured that the climate of fear in these areas still persists, with a debilitating effect on levels of trust in the government.

 UNHRC 30/1 OP.10: “…welcomes the initial steps taken to return land, and encourages the Government of Sri Lanka to accelerate the return of land to its rightful civilian owners.”

Progress: Despite the January 2016 appointment of a Committee headed by the Secretary of Defence to oversee land returns and resettlements, progress in this area has been slow and uneven. According to a recent CPA report, approximately 0.6% of the total land mass of Northern Province remains under occupation by the government (including by police and military). Whilst the government has released pockets of land – including 1055 acres in Trincomalee – and made various promises to release others, including 1000 acres in Jaffna and 500 acres in Killinochchi  – a comprehensive plan for the return of the remainder of occupied lands has not yet been developed.

In March the government of Sri Lanka claimed to have returned 3136 acres of land. This figure has not been corroborated and the Sri Lanka Campaign has written to the government to seek further clarification. Even if the claim is true, the government figure represents less than a fifth of total occupied land in the Northern Province alone.

As a recent report by the Centre for Policy Alternatives underscores, “the lack of information and public consultation around land occupation, releases and reparations is a key impediment for reconciliation efforts, further exacerbating mistrust and tensions among affected communities.”

 UNHRC 30/1 OP.10: “…encourages the Government of Sri Lanka to…undertake further efforts to[wards]…ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life.”

Progress: As our 2015 report highlighted, the significant military presence in the North and East – and the fear of harassment and intimidation that accompanies it – is one of the main barriers to reconciliation and the return to normal life for war affected communities. Moreover, the extensive involvement of the military in the local economy, in tourism, farming and commerce, continues to deprive them of many of the benefits of post-war regeneration.

Despite the slight decrease in the presence of the military in public places since the change of government last year, recent interviews with activists carried out by the Sri Lanka Campaign attest to an ongoing climate of fear and the continued economic marginalisation of communities as a result of the military’s commercial activities. There remains no government plan for addressing these issues – and indeed recent increases in military spending would suggest that de-militarisation is not a priority.

 UNHRC 30/1 OP.11: “Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future.”

Progress: There is little evidence of any serious concerted effort to identify and investigate attacks against journalists and HRDs. Among the handful of cases that have been investigated, such as the murder of journalist Lasantha Wickrametunge and the disappearance of cartoonist Prageeth Egnilakoda, families of the victims have frequently complained about the speed and scope of investigations. There have also been no serious efforts to investigate and prosecute those responsible for attacks on religious minorities, such as the episode of anti-Muslim rioting by hard-line Buddhist Sinhala nationalists in Aluthgama in 2014.

 UNHRC 30/1 OP.12: “Welcomes the Government of Sri Lanka’s commitment to review the Public Security Ordinance Act”

Progress: The Public Security Ordinance (PSO), a piece of legislation from 1947 that grants the government wide-ranging powers – including the power to declare states of emergency and the authority to make ‘Emergency Regulations’  where ‘in the interests of the public security and the preservation of public order’ – has not yet been reviewed.

UNHRC 30/1 OP.12: “Welcomes the Government of Sri Lanka’s commitment to…review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in accordance with contemporary international best practices.”

Progress: The Prevention of Terrorism Act (PTA), an extremely repressive piece of legislation originally conceived in 1979 as a temporary measure – but since used by successive regimes as a useful legal pretext for arbitrary detention of thousands of individuals for up to a year and half without trial – has not yet been repealed. However, according to statements by Foreign Minister Mangala Samaraweera, the Law Commission, which has been entrusted with the task of reviewing the law, recently submitted an alternative draft bill to the government.

 UNHRC 30/1 OP. 13: “…welcomes the commitment of the Government of Sri Lanka…to begin to issue certificates of absence to the families of missing persons as a temporary measure of relief.”

Progress: It was thought that Certificates of Absence – which provide families of the disappeared with a range of legal rights similar to those afforded by death certificates, whilst acknowledging that the fate of the disappeared individual has not yet been established – might begin to be issued to families by the end of 2015. However it appears that none have been issued to date.

 UNHRC 30/1 OP. 14: “…welcomes the commitment of the Government of Sri Lanka to release publicly previous presidential commission reports.”

Progress: In August and September 2015, the government released the first and second mandate reports of the Paranagama Commission, which inquired, respectively, into the issues of disappearances and the applicability of international humanitarian law during the conflict. (The latter report, which was accompanied by an annex of ‘military expert opinion’ by Major General John Holmes, was widely criticized as a whitewashing exercise and for its flawed factual and legal interpretation of the end of the war).

In October 2015, the government then tabled in parliament the report of the Udalagama Commission, which was appointed by former President Rajapaksa to investigate serious human rights violations in Sri Lanka since 2005. However, despite this move, it appears that a copy of the report has not been made readily available to the general public. Unlike other reports tabled before Parliament, it is not available online, meaning members of the general public must request hard copies from the Table Office of the Sri Lankan parliament.

A large number of other reports, including those by the Mahanama Tillekeratne Commission and various Presidential Commissions of Inquiry, have not been released. Key details previously withheld from other reports –  including information about perpetrators in those by the All Island Commission of Inquiry into Involuntary Removal and the three Zonal Commissions of Inquiry – also remain unavailable.

 UNHRC 30/1 OP. 15: “Encourages the Government of Sri Lanka to develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of international humanitarian law, whether held by public or private institutions.”

Progress: A comprehensive plan for the preservation of documentation relating to human rights violations is a central component of any transitional justice mechanism. (For a very useful discussion of the emerging international standards in this area see p.12 of this report by the South Asian Centre for Legal Studies).

Whilst it remains unclear what exact steps the government has taken towards this goal, at least several basic practical measures – such as establishing a statutory body to collect and oversee documentation – have not been put in place (see pp.13-14, here). This is very concerning given the urgent need to secure records. The Sri Lanka Campaign has written to the Sri Lankan government for further clarification about its implementation of this commitment to date.

UNHRC 30/1 OP. 16: “Welcomes the government’s commitment to a political settlement by taking the necessary constitutional measures and encourages the Government of Sri Lanka’s efforts to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka.”

Progress: In April 2016 the government opened a constitutional assembly, including a 21 member steering committee headed by the Prime Minister, aimed at addressing the issues of electoral reform and devolution. Whilst no timeline for the drafting of a new constitution has been given, Ministers have indicated that the process, which includes a series of public consultations, could take several years.

Meanwhile, the land and policing powers continue to be withheld from the Northern Provincial Council against the terms of the 13th Amendment. In April, Chief Minister C V Wigneswaran criticized the central government’s continued “domineering” attitude towards the Northern Provincial Council, citing its failure to consult on major development projects and ongoing militarisation.

 UNHRC 30/1 OP.17: “…encourages the Government to address all reports of sexual and gender-based violence and torture.”

Progress: Several recent reports – including this one by the International Truth and Justice Project and this one by Freedom From Torture – documented the persistence of widespread and systemic torture and sexual violence in Sri Lanka in 2015 (including cases as recently as December 2015). Whilst it remains to be seen specifically how, or if, this dimension will be addressed by any forthcoming truth and justice mechanism, the response to these allegations so far by the Sri Lankan government has been muted at best, and openly hostile at worst, with President Sirisena suggesting that such claims came from people “close to the tigers”. Whilst several key individuals are specifically implicated by these reports, and several key torture sites revealed – most notably a site in Trincomalee visited and verified by the UN Working Group on Enforced and involuntary disappearances – there is no evidence to suggest that these have been subjected to further formal investigation.

The score-card can be accessed at: https://www.srilankacampaign.org/keep-the-promise/