( Family members of the disappeared march in Colombo on 30 Aug 2016 photo ©s.deshapriya)
Conclusions.
70. The Government’s invitation to the Working Group and its increasing openness to international engagement are very positive and encouraging steps. Today, the challenge facing the Government of Sri Lanka is to transform its promises into a concrete, comprehensive, legitimate and participatory framework aimed at securing the rights to truth, justice, reparation and memory, and guarantees of non-repetition for the families of the disappeared and Sri Lankan society as a whole, in the context of a reconciliation process.
71. It is encouraging that the Government is proposing a comprehensive public policy to deal with prevention, investigations, sanctions and reparation for the victims of enforced disappearances.
72.Overall, the victims of enforced disappearances have very little faith in the justice system, the prosecution services, the police or the armed forces. The chronic pattern of impunity still exists with regard to cases of enforced disappearance and sufficient efforts now need to be made to determine the fate or whereabouts of persons who have disappeared, punish those responsible and guarantee the right to truth and reparation.
73.Any successful initiative must therefore be the result of a broad, inclusive, gendered and participatory consultative process. Any comprehensive policy should address all the enforced disappearances that took place in the country, regardless of the time of the disappearance and without any type of discrimination. The Government will need to adopt bold steps to reach out to and create confidence in the victims. In addition, good faith measures and concrete results are needed to restore trust between the State and all sectors of society as well as between all groups and communities.
74.The Working Group reiterates its willingness to continue its constructive dialogue with the Sri Lankan authorities and offers its unreserved support for the full implementation of the Declaration on the Protection of All Persons from Enforced Disappearance.
75.The Working Group reaffirms its solidarity with the victims of enforced disappearance. Their continued suffering is living proof that enforced disappearance is a continuous offence and a permanent violation of their human rights so long as the fate or whereabouts of the disappeared person is not clarified.
76. The Working Group acknowledges the work done by human rights defenders, civil society organizations, lawyers and all those who work indefatigably, including in adverse conditions, to eradicate this terrible practices.
Recommendations
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General
77.The Working Group recommends that the Government of Sri Lanka:
(a) Take decisive actions and give clear orders at the highest level to stop surveillance, threats, intimidation, harassment — including sexual harassment — and abuses against relatives of disappeared persons and those acting on their behalf;
(b) Guarantee the safety of those who met with the Working Group and protect them against any form of reprisal, threat or intimidation;
(c) Instruct all public officials that those actions will not be tolerated and will be punished accordingly.
Legislation
78.
The Working Group recommends that the Government of Sri Lanka:
(a) Recognize the competence of the Committee on Enforced Disappearances to receive and consider communications from or on behalf of individuals subject to its jurisdiction, in accordance with article 31 of the International Convention for the Protection of All Persons from Enforced Disappearance;
(b) Ratify:
(i) The Rome Statute of the International Criminal Court;
(ii) The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
(iii) The Protocols additional to the Geneva Conventions of 12 August 1949;
(c) Adopt comprehensive legislation on enforced disappearances without delay and ensure that it provides for:
(i) A specific procedure for finding a disappeared person;
(ii) A national register of forcibly disappeared persons;
(iii) Full access to this register by relatives of the disappeared, lawyers, human rights defenders and any other concerned person;
(iv) The declaration of absence in respect of enforced disappearance;
(v) Full protection and support to the relatives of disappeared persons and to witnesses;
(vi) The right to full compensation;
(vii) The explicit definition of enforced disappearance as a continuous crime to which amnesties, immunities or the statute of limitations cannot be applied, notably in the context of crimes against humanity;
(viii) The rights of victims to pursue truth and justice even if a certificate of absence is issued and coverage of all disappearances regardless of the time of their occurrence;
(ix) Details about the resources available to families upon the issuance of a certificate of absence;
(d) Swiftly make enforced disappearance a separate offence consistent with the definition contained in the Declaration on the Protection of All Persons from Enforced Disappearance and punishable by appropriate penalties that take into account its extreme seriousness. The offence should also cover the various modes of criminal liability, including committing, ordering, soliciting or inducing the commission of, attempting to commit, being an accomplice to or participating in an enforced disappearance. It should also expressly provide for the sanctioning of command or superior responsibility for such crime;
(e) Immediately repeal the Prevention of Terrorism Act and replace it by legislation that is in conformity with the international obligations of the State;
(f) Review the Assistance to and Protection of Victims of Crime and Witnesses Act of 2015 in order to incorporate better safeguards for the independence and effectiveness of the victim and witness protection programme in line with international standards. Revisions must include the establishment of a well-resourced and effective victim and witness protection programme outside the control and purview of the regular law enforcement apparatus. In addition, the Government should ensure the independence and integrity of those appointed to the Witness Protection Authority and that the police and all other personnel assigned to this programme are fully vetted;
(g) Ensure that each and every existing and new complaint made about a missing person is properly registered and investigated by the police;
(h) Ensure that the Attorney General s Department is able to operate independently and pursue prosecutions against any suspected perpetrators of disappearances, irrespective of military rank or official position.
Truth
79.The Working Group recommends that the Office of Missing Persons:
(a) Adopt a victim- centered approach;
(b) Be fully accessible to the families of disappeared persons;
(c) Envisage procedures that are easily understandable and documents available in Sinhala, Tamil and English;
(d)Be equipped with all material, financial and human resources necessary to carry out its huge task;
(e) Have the capacity to subpoena information from any source and witnesses, to enter any State institution, and have free access to any State archive;
(f) Have the technical capacity to conduct exhumations, including forensic expertise;
(g) Provide psychosocial assistance to the relatives in all the stages of the
search;
(h) Be possibly integrated with an international component.
80.The Working Group recommends that the Government of Sri Lanka:
(a) Ensure that documents, materials, physical remains or other elements uncovered by the Office of Missing Persons and that could potentially be used as evidence before a court of law are managed and preserved in such a way that respects a chain of custody an d does not jeopardize their admissibility in a judicial process;
(b) Immediately adopt a comprehensive policy to search for all of those who disappeared;
(c) Carry out wide consultation with victims, victims associations and other civil society organizations to establish a new truth-seeking institution, in order to ensure that it adequately responds to victims needs;
(d) Consider seeking international assistance with regard to the design, establishment, functioning and follow-up of the new Commission for truth, justice, reconciliation and non-recurrence.
81.The Working Group recommends that the envisaged truth commission:
(a)Be composed of independent and professional personnel of the highest moral authority and with extensive human rights experiencebased on a full and thorough vetting process;
(b) Include staff from the civil society;
(c) Be set up through a comprehensive consultative process with all stakeholders;
(d) Be granted adequate human and financial resources as well as ample powers, including the power to summon current and former officials;
(e) Have the capacity to subpoena information from any source and witness, enter any State institution and have free access to any State archive;
(f)Be equipped with the technical capacity, including forensic expertise, to conduct exhumations.
82.The Working Group also recommends that the Government of Sri Lanka:
(a)Transfer the cases of the Presidential Commission on Missing Persons to a credible and independent truth-seeking institution established in close consultation with the families of the disappeared; and ensure that those involved in the process of the search for truth were not involved in any way in the commission of past disappearances;
(b) Ensure that the relevant information generated through previous truth-seeking mechanisms is adequately compiled and formally analysed as a starting point to determining the fate or whereabouts of the disappeared and supporting the investigation and prosecution of alleged perpetrators; make public and easily accessible all of the reports of previous truth-seeking mechanisms and commissions, including interim reports and other material that had been withheld;
(c) Establish institutional safeguards to make sure that the families of disappeared persons will not suffer any form of revictimization, including by ensuring they will not be requested to reiterate testimonies that they had already given;
(d)Be proactive in carrying out a proper investigation of existing mass graves and in identifying new ones;
(e) Examine, without undue delay, all locations of potential mass graves;
(f) Establish a professionally skilled special unit to probe into the locations of other possible mass graves, reinforce the forensic capacity of the judiciary and ensure that it has adequate resources, including for DNA testing and forensic anthropology and archaeology;
(g) Ensure the proper investigation of existing mass graves, proper preservation of the sites and protection of the chain of custody of the samples. With regard to the Matale mass grave, in particular, the investigation should be reopened and other samples should be sent for further analysis, in the light of the huge discrepancy relating to the dating of the inhumations between the reports currently available on the matter and in the light of the reported signs of torture and extrajudicial execution on some of the remains;
(h) Strengthen the capacity of the DNA laboratory in the Government Analyst’s Department and ensure its functional and structural independence from security and law enforcement agencies;
(i) Consider requesting international support for forensic investigations and exhumations as well as for the ensuing investigations and prosecutions, which should be the responsibility of a transitional justice mechanism rather than of the Attorney Genera’s Department;
(j) Immediately open archives, including military archives, relevant to cases of enforced disappearance in order to facilitate the localization of undiscovered gravesites and speed up the search for missing persons;
(k) Promulgate a law on access to information and develop a proper legislative framework on archives so as to guarantee full access to all information that could potentially lead to clarification in cases of disappeared persons;
(l) Develop a gender-sensitive policy and action plan to provide support and rehabilitation for families of disappeared persons, including specific measures to support families of disappeared persons whose death is confirmed through the new truth-seeking processes;
(m) Adopt a gender and child-rights perspective in all policies aimed at reparation, truth and justice, based on the standards developed by the Working Group in its general comments on children and enforced disappearances (see A/HRC/WGEID/9 8/1 and Corr.1) and on women affected by enforced disappearances (A/HRC/WGEID/98/2).
Justice
83.The Working Group recommends that the Government of Sri Lanka:
(a) Establish a judicial accountability mechanism that integrates international judges, prosecutors, lawyers and investigators;
(b) Guarantee that criminal investigations of enforced disappearances are conducted from the outset by a highly professional and specialized team of prosecutors;
(c) Ensure that the armed forces do not have a role nor can intervene in the investigation, prosecution and trial of these crimes;
(d) Ensure that the judicial accountability mechanism comprises all stages of the prosecution and judicial process and provide access and information to the families of disappeared persons;.
(e) Establish a process to vet all judicial and other officials of the envisaged judicial accountability mechanism in order to secure the professionalism,expertise, independence and impartiality of all those involved in the mechanism;
(f) Bring to trial all cases of enforced disappearance, regardless of the author and the time when they were committed;
(g) Ensure that prosecutors and courts have the capacity to handle all cases of enforced disappearance;
(h)Investigate the material and intellectual authors of such crimes, as well as those hierarchically accountable under the principle of command responsibility;
(i) Carry out all investigations, prosecutions and judicial proceedings in accordance with the principle of due diligence, taking into account the complexity of the enforced disappearances, the context in which they occurred and the patterns that explain why the events occurred, and ensure that there are no omissions in the gathering of evidence or in the development of lines of investigation;
(j)Take all the measures necessary to investigate cases, try and prosecute perpetrators considering the systematic patterns that allowed the commission of serious human rights violations, including enforced disappearances;
(k)Guarantee that the authorities in charge of the investigation have the jurisdictional, logistic and scientific resources necessary to collect and process evidence, and notably the power to access all documents and information relevant to the investigation, including on the possible locations of the victims;
(l)Include in the judicial accountability mechanism trial and appeals chambers, specialized prosecution and defence units, proper units for victim support and witness protection and a professional and competent registry;
(m)Victims and relatives should have extensive opportunities to participate in and be heard during the investigative and judicial proceedings —both with regard to the clarification of enforced disappearances and the punishment of those responsible —and in seeking fair compensation;
(n)Facilitate recourse to the assistance of independent lawyers for the families of disappeared persons during criminal trials;
(o)Adopt legislation to grant more powers to magistrates to ensure the effectiveness of habeas corpus. Magistrates should assume a proactive role in habeas corpus proceedings in order to adopt and carry out all the effective measures necessary to protect a person who allegedly disappeared and secure his or her appearance.
Reparations
84.The Working Group recommends that the Government of Sri Lanka:
(a)Develop, as a matter of urgency, a national reparations policy taking into account the specific needs of women and children and make adequate provisions for it in the State budget;
(b)Make reparation measures accessible and applicable to families who accept the issuance of death certificates under duress or without their full and informed consent. In particular, the Government should issue a certificate of absence owing to enforced disappearance and allow all interested families to exchange the death certificate issued for the new certificate of absence due to enforced disappearance;
(c)Pay particular attention to adequate, professional and victim-oriented psychosocial assistance for the relatives of the disappeared in relation to both truth and justice processes, in the context of the forthcoming transitional justice mechanisms;
(d)Adopt and strengthen existing psychosocial support programmes for victims;
(e)Establish mechanisms that provide for social allowances or appropriate social and medical measures for the relatives of disappeared persons in relation to the physical, mental and economic consequences resulting from the absence of the disappeared;
(f)Prioritize the educational needs of the children of disappeared persons, including establishing special scholarships exclusively for children of disappeared persons;
(g)Formulate and adopt a national resettlement policy to adequately address the needs of displaced persons and victims of enforced disappearances and incorporate the existing national involuntary resettlement policy into domestic law;
(h)Pay equal attention to all victims, regardless of their ethnicity, in respect of memorials and consider integrating this principle into future activities related to this element of reparation;
(i)Sponsor memorials as well as provide support for civil society remembrance initiatives, including for their proper maintenance through public funds;
(j)Erect national and local monuments and establish commemoration days aimed specifically at remembering disappeared persons;
(k)Consult with families and other stakeholders in the design of such monuments and in the planning and conducting of commemoration events.
85.The Working Group invites the Government of Sri Lanka to submit within 90 days of the date of presentation of the present report to the Human Rights Council a timetable showing the steps that it will take to implement the present recommendations .
Read the full report as a PDF:report-of-the-wgeid-on-srilanka