The UN High Commissioner for Human Rights, Prince Zeid, has recommended that the Sri Lankan Commission to Investigate Cases of Forced Disappearances should he disbanded because its credibility has been seriously questioned by the families of the victims and other observers.
In his report to the UN Human Rights Council (UNHRC) in Geneva on Wednesday, Zeid said that task assigned to the missing persons’ commission (headed by former Justice Maxwell Paranagama) should be transferred to a “credible and independent institution established in consultation with the families of the disappeared.”
The Paranagama commission, which was assisted by foreign experts, including Sir Desmond de Silva of the UK, was appointed by former President Mahinda Rajapaksa. It submitted its final report to President Maithripala Sirisena on August 15 this year.
In his report to the UNHRC, Prince Zied reiterated his demand for an “ad hoc hybrid special court” to investigate and try war crimes with the involvement of foreign judges and other foreign legal personnel.
“In a highly polarized environment such a hybrid mechanism is essential to give all Sri Lankans, especially victims, confidence of its independence and impartiality,” he said.
The full text of the statement of the Commissioner is as follows:
I am pleased to present the report of OHCHR on promoting reconciliation, accountability and human rights in Sri Lanka, including the findings of the comprehensive investigation mandated by Human Rights Council resolution 25/1. As you know, following signals of engagement by the newly elected Government of Sri Lanka in January 2015, the Human Rights Council decided to defer consideration of the report until this thirtieth session.
The context in which this report is presented is very different to the one during which it was mandated. The election of a new President and Government on a platform centred on good governance, human rights and the rule of law presents a historic opportunity to address the grave human rights violations that have wracked Sri Lanka, including through accountability and institutional reform, and to lay the basis for long-term reconciliation and peace.
We are also seeing renewed engagement by the new Government with OHCHR and the UN human rights mechanisms. The previous Government categorically rejected the Human Rights Council-mandated investigation and refused access and cooperation. More worryingly, it resorted to an unrelenting campaign of intimidation and harassment against victims, witnesses and representatives of civil society who might seek to provide information to OHCHR. The new Government did not alter the stance on cooperation with the investigation, nor did it admit the investigation team into the country. However, it has engaged more constructively with me and my Office on possible options for an accountability and reconciliation process.
It also invited the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to make a technical visit in March/April 2015, and will host the Working Group on Enforced and Involuntary Disappearances in November 2015. I hope this will mark the start of a closer engagement with the Special Procedures, whose mandates can offer valuable advice and technical assistance.
The Presidential election of 8 January 2015 marked a watershed in the political environment in Sri Lanka. The manifesto of the new Government included a 100-day programme of important constitutional reforms and other important measures. The Chief Justice, who was controversially impeached in January 2013, was briefly reinstated and Parliamentary elections subsequently held on 17 August 2015. Since January 2015 space has significantly opened up for freedom of expression, at least in Colombo.
But surveillance and interference continue to be reported at the district level in the North and East, including harassment and intimidation by military and intelligence services. This demonstrates the pervasiveness of the structures and institutional cultures that created the repressive environment of the past, and highlights the importance of much more fundamental security-sector reforms.
Six years after the end of the war, many displaced populations have yet to achieve durable solutions, particularly with regard to livelihoods. One major continuing problem is the occupation by the military of private land, although the Government has proceeded with some land releases in recent months. Women-headed households, numbering nearly 60,000 in the Northern Province, are especially vulnerable, including to sexual harassment, exploitation and violence.
The Government has yet to clarify the number and identity of detainees still held under the Prevention of Terrorism Act (PTA) and emergency regulations. Reports have continued to suggest the existence of secret and unacknowledged places of detention. These require urgent investigation. According to local civil society sources, from January to August this year, 19 people were arrested under the PTA. 12 of them remain in detention and 14 cases of torture have been reported to us by credible sources since January 2015. I welcome the Government’s commitment to review and repeal the PTA, which has long provided a legal context facilitating arbitrary detention, unfair trials and torture.
While the past six months have seen an abatement of religious tensions and violence, incidents against Muslim and Christian communities continue to be reported. There have been no prosecutions in relation to the June 2014 attacks by the Buddhist group Bodu Bala Sena on the Muslim community in Aluthgama This highlights the continuing need for the Government to promote inter-communal tolerance and to criminalize hate speech and incitement to violence.
Since January 2015, President Sirisena and other government figures have emphasized reconciliation in public statements. On Independence Day, on 4 February, the Government issued a special “declaration of peace” in three languages, expressing sympathy and regret for all the victims of the 30-year armed conflict, and pledging to advance “national reconciliation, justice and equality for all citizens”. The Government also established a new Office of National Unity and Reconciliation, headed by former President Kumaratunga, to drive progress on key issues such as the release of detainees and restitution of civilian land occupied by the military.
In our previous reports to the Human Rights Council, we have described the total failure of domestic mechanisms to conduct credible investigations, clarify the truth of past events, ensure accountability and provide redress to victims.
The Presidential Commission to Investigate into Complaints regarding Missing Persons that was appointed by the previous Government has continued its work, despite widespread concerns raised about its credibility and effectiveness. We believe this Commission should be disbanded and its pending cases transferred to a credible and independent institution established in consultation with families of the disappeared.
Since January there have been a few promising developments in some emblematic cases previously highlighted by OHCHR:
On 25 June a former army staff sergeant was convicted of the murder of eight Tamil civilians in Mirusuvil, Jaffna District, in 2000. This is a rare case of a conflict-related violation being successfully prosecuted, albeit after twelve years.
In March 2015, three navy personnel and a former police officer were arrested in relation to the killing, in November 2006 of parliamentarian Nadarajah Raviraj.
In August 2015, police also announced that they had arrested several military personnel in relation to the disappearance of journalist and cartoonist Prageeth Eknaligoda.
But many other criminal cases languish before the courts, including those concerning the killing of five students on the Trincomalee beachfront in January 2006, and of 17 humanitarian workers for Action Contre la Faim in Muttur in August 2006 also.
The comprehensive investigation presented in this report was undertaken by a special team constituted within OHCHR. I am grateful to the three distinguished experts – Martti Ahtisaari, Silvia Cartwright, and Asma Jahangir – who have played a supportive and advisory role in this process. Special procedure mandate holders also provided input to the investigation.
The aim of the investigation was to identify the patterns of violations of international human rights and humanitarian law, not only during the final stage of the armed conflict but during the whole nine year period covered by its mandate. The timeframe covered by the investigation, the extent of the violations, the amount of information available, and the constraints to the investigation, including lack of access to Sri Lanka and witness protection concerns, posed enormous challenges.
The investigation found that there are reasonable grounds to believe that gross violations of international human rights law and serious violations of international humanitarian law were committed by all parties during the period under review. Indeed, if established before a court of law, many of the allegations may amount to war crimes, and/or crimes against humanity.
These findings are detailed in the accompanying 250-page investigation report, and I will highlight only key elements today:
We found reasonable grounds to believe the Sri Lankan security forces and paramilitary groups associated with them were implicated in widespread and unlawful killings of civilians and other protected persons. Tamil politicians, humanitarian workers and journalists were particularly targeted. The Liberation Tigers of Tamil Eelam (LTTE) also unlawfully killed civilians perceived to hold sympathies contrary to the LTTE, or suspected as informers, as well as rival Tamil political figures, public officials and academics. Civilians were also killed or injured in indiscriminate suicide bombings and claymore mine attacks carried out by LTTE.
We also investigated allegations of extrajudicial executions of identified LTTE cadres and unidentified individuals in or around 18 May 2009, and established in several cases that they appear to have been killed after surrendering to the Sri Lankan military.
We documented long-standing patterns of arbitrary arrest and detention by government security forces, and of abductions by paramilitary organizations linked to them, typically in unmarked “white vans”, which often reportedly led to enforced disappearances and extrajudicial killings.
We also documented the widespread torture by the Sri Lankan security forces, particularly in the immediate aftermath of the armed conflict, when former LTTE members and civilians were detained en masse.
A particularly shocking finding is the widespread use of rape and other forms of sexual violence by security forces personnel against both male and female detainees.
We gathered information that reflected a pattern of abductions and of forced recruitment of adults by LTTE that became more prevalent towards the end of the conflict. The forced recruits were obliged to perform both military and support functions and were often denied contact with their families. Victims and families who tried to resist were physically mistreated, harassed and threatened.
We also documented extensive recruitment and use of children (including under the age of 15) by the LTTE over many years, which intensified during the last few months of the conflict. We gathered information on child recruitment by the Karuna Group after its split from the LTTE in 2004, with the apparent knowledge of the security forces.
We examined closely the impact of hostilities on civilians and civilian objects during the last months of the war. On the basis of the information available, there are reasonable grounds to believe that both the Government and LTTE failed to comply with key principles of international humanitarian law on the conduct of hostilities designed to protect civilians.
In particular, the report documents repeated shelling by Government forces impacting on hospitals and humanitarian facilities in the densely populated ‘No Fire Zones’ which the Government itself had announced. The presence of LTTE cadres directly participating in hostilities and operating within the predominantly civilian population, launching attacks from close proximity to these locations, and the LTTE policy of forcing civilians to remain within areas of active hostilities, may also have violated international humanitarian law.
Our investigation also found that the Government placed considerable restrictions on humanitarian access, and may have deliberately blocked the delivery of sufficient food aid and medical supplies, essential to the survival of the civilian population. This may amount to the use of starvation of civilians as a method of warfare.
We also examined the manner in which screening processes were carried out at the end of the war to separate former LTTE combatants from civilians. Almost 300,000 IDPs were deprived of their liberty in camps for periods far beyond what is permissible under international law. There are also reasonable grounds to believe that IDPs were treated as suspects and detained because of their Tamil ethnicity, which may amount to discrimination and to the crime against humanity of “persecution.”
The sheer number of allegations, their gravity and recurrence and the similarities in their modus operandi, as well as the consistent pattern of conduct they indicate, all point to system crimes. Such acts cannot be treated as ordinary crimes: if established in a court of law, they may constitute international crimes, which are of interest to the international community.
I welcome the Government’s commitments, made before this Council, to investigate these violations and ensure accountability, despite the opposition of some political parties and sections of the military and society. The unfortunate reality is, however, that Sri Lanka’s criminal justice system is not currently equipped to conduct an independent and credible investigation into allegations of this breadth and magnitude, or to hold accountable those responsible for such violations, as requested by the Council in resolution 25/1.
First, Sri Lanka lacks a reliable system for victim and witness protection, particularly in a context where the risk of reprisals is very high. A long-pending law was recently passed, but it is not yet operational. I note the Government’s commitment to further review and strengthen the law to address various shortcomings that could compromise the independence and effectiveness of the new system.
Secondly, the domestic legal framework is inadequate to deal with international crimes of this magnitude. When Sri Lanka has prosecuted conflict-related cases, it has relied on offences in regular criminal law, such as murder. This approach fails to recognize the gravity of the crimes committed, their international character, or to duly acknowledge the harm caused to the victims. To fully reflect their gravity and bring redress to their victims, international crimes must be charged as such.
Thirdly, the State’s security sector and justice system have been distorted and corrupted by decades of impunity. The independence and integrity of key institutions such as the Attorney General’s Office and the Human Rights Commission remain compromised. The security forces, police and intelligence services have enjoyed near total impunity and have not undergone any significant reform since the armed conflict. A full-fledged vetting process should be designed to remove from office security forces personnel and public officials suspected of involvement in human rights violations.
This is why I have recommended the establishment of an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try notably war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protections programme. In a highly polarized environment, such a mechanism is essential to give all Sri Lankans, especially victims, confidence in the independence and impartiality of this process.
Judicial accountability should be accompanied by broader transitional justice measures, including truth-seeking and reparations, to ensure that the right of victims to redress is realized. These must be designed through a process of genuine, informed and participatory consultation, especially with victims and their families, and OHCHR stands ready to lend its assistance in this regard.
This is a time of tremendous hope. Sri Lanka can finally break the cycle of impunity that for so long wracked its past. This will require more than prosecuting a few emblematic cases, but rather a comprehensive approach, developed through a broad-based and victim-centred process of consultation, that draws on the full range of transitional justice measures of judicial accountability, truth-seeking, reparations, vetting and deep institutional reform.
I hope the recommendations made in our report will make an important contribution to this process, and emphasise OHCHR’s readiness to continue to assist and support the development of credible accountability and transitional justice mechanisms that meet international standards. The Human Rights Council has played – and should continue to play – a critical role in encouraging progress on accountability and reconciliation in Sri Lanka.