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UN human rights chief's report says Sri Lanka's progress inadequate, reiterates hybrid court

The measures taken by Sri Lanka since October 2015 have been inadequate to ensure real progress a report of the Office of the United Nations High Commissioner for Human Rights released on Friday in Geneva concluded, reiterating the need for a hybrid court with international judges and lawyers. 

Assessing the progress made by Sri Lanka in implementing resolution 30/1 which it co-sponsored at the Human Rights Council the report urged "stronger, tangible results need to be forthcoming without further delay to prevent any further dissipation of hardearned trust."

Welcoming the Sri Lankan government’s engagement with UN human rights mechanisms, the report however, noted that the fulfilment of commitments had been "worryingly slow". 

The High Commissioner recommended that the highest priority be given to demilitarisation through releasing military-occupied land and ending military involvement in commercial and civilian activities, and called on member states to "wherever possible, in particular under universal jurisdiction, investigate and prosecute those allegedly responsible for such violations as torture, enforced disappearance, war crimes and crimes against humanity". 

Noting ongoing reports of human rights violations, the report also urged member states to "ensure respect for the principle of non-refoulement in the case of Tamils who have suffered torture and other human rights violations until guarantees of nonrecurrence are in place to ensure that they will not be subject to further violations". 

Read full report here.

Conclusions and recommendations reproduced in full below: 

Conclusions and recommendations

59. The High Commissioner appreciates the constructive engagement of the Government of Sri Lanka with OHCHR and United Nations human rights mechanisms since January 2015. This collaboration marks a visible change of policy direction in addressing past human rights violations. The Government has advanced on constitutional reforms and showcased some positive developments on the broader human rights agenda. The fulfilment of transitional justice commitments has, however, been worryingly slow, and the structures set up and measures taken during the period under review were inadequate to ensure real progress.

60. In his oral update to the Human Rights Council in June 2016, the High Commissioner observed that “the full promise of governance reform, transitional justice and economic revival has yet to be delivered, and risks stalling or dissipating.” A similar analysis holds true nine months hence. Party politics, including the balancing of power between the different constituencies of the coalition in the run-up to constitutional reforms, have contributed to a reluctance to address difficult issues regarding accountability or to clearly articulate a unified position by all parts of government. Unclear and often contradictory messages have been delivered on transitional justice mechanisms by the President, the Prime Minister and various members of the Cabinet. Similar contradictions are visible in policy development. This tension was apparent both in the draft counter-terrorism legislation and on the proposed amendment to the Criminal Procedure Code. Public messaging around transitional justice and reconciliation has been generally confusing and at times contradictory.

61. The commitments of the Government, welcomed by the Human Rights Council in its resolution 30/1, were also applauded by all those interested in justice and reconciliation in Sri Lanka. Eighteen months after the adoption of resolution 30/1, Sri Lanka has made some measure of elementary progress in reconciliation, in addressing the root causes of the conflict and in truth-seeking. Stronger, tangible results need to be forthcoming without further delay to prevent any further dissipation of hardearned trust. The consultations on the reconciliation mechanisms and the representations on constitutional reform were inclusive, participatory processes, largely deserving of praise. The Government should consolidate these gains by embracing the conclusions of these processes and formulating a reform and a transitional justice agenda that identifies a comprehensive strategy with clear and publicly-announced benchmarks. The pace of establishing comprehensive transitional justice mechanisms has been markedly slow. Clear progress should be demonstrated on each of the pillars of the transitional justice structure.

62. The importance of the role of independent commissions, and particularly of the Human Rights Commission, in strengthening reforms and cementing good governance cannot be overstated. It is therefore crucial that their mandate and autonomy be respected, that they be sufficiently resourced, they be effectively consulted and that their recommendations be duly noted and implemented.

63. The High Commissioner believes that the Human Rights Council should continue to play a critical role in encouraging progress in accountability and reconciliation in Sri Lanka. As the State moves to the implementation phase of the transitional justice agenda, the High Commissioner urges the Human Rights Council to remain closely engaged with Sri Lanka to continue monitoring developments.

64. In particular, the High Commissioner highlights the recommendations below, some of which he made in previous reports.

 

A. Government of Sri Lanka

1. General

65. The High Commissioner recommends that the Government of Sri Lanka:

(a) Embrace the report of the Consultation Task Force on Reconciliation Mechanisms;

(b) Present a comprehensive strategy on transitional justice, with a timebound plan to implement the commitments welcomed by the Human Rights Council in its resolution 30/1 and the recommendations contained in the present and previous reports of the High Commissioner to the Council; and as part of this strategy or separately set out a clear plan of action, implement key recommendations of United Nations human rights mechanisms;

(c) Formulate and promptly launch a communications campaign to inform the public about the objectives, time frame and rationale of the reconciliation agenda, identifying ownership of and commitment to the process;

(d) Continue its engagement with the public, victims’ groups, civil society organizations and other stakeholders throughout the process of designing and establishing transitional justice mechanisms;

(e) Invite OHCHR to establish a full-fledged country presence to monitor the situation of human rights, to advise on the implementation of the recommendations made by the High Commissioner and the Human Rights Council in its resolutions, and to provide technical assistance;

(f) Invite the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to continue his engagement in this process, and invite other relevant special procedures and the Special Representatives of the SecretaryGeneral to visit Sri Lanka and advise on relevant draft legislation;

2. Institutional reforms

66. The High Commissioner recommends that the Government of Sri Lanka: 

(a) Publicly issue unequivocal instructions to all branches of the military, intelligence and police forces that torture, sexual violence and other human rights violations are prohibited and will be investigated and punished, and order all security forces to end immediately all forms of surveillance and harassment of and reprisals against human rights defenders, victims and social actors;

(b) Develop a full-fledged vetting process, respecting due process, in order to remove from office security personnel and other public officials involved in human rights violations; implement other reforms of the security sector in order to strengthen accountability and civilian oversight; and apply stringent screening procedures for units and individuals applying to serve in United Nations peace operations;

(c) Give the highest priority to the restitution of all private land that has been occupied by the military and to ending military involvement in commercial and other civilian activities;

(d) Support the Human Rights Commission, including by ensuring it receives adequate resources in order to fulfil its mandate to the fullest, including the review of legislation and draft legislation.

3. Legislation and justice

67. The High Commissioner recommends that the Government of Sri Lanka:

(a) Implement the recommendations of the Special Rapporteur on the independence of judges and lawyers following the country visit in April-May 2016;

(b) Review the Victim and Witness Protection Act with a view to incorporating strong safeguards for the independence and effectiveness of the victim and witness protection programme, in accordance with international standards;

(c) Accede to the additional protocols to the Geneva Conventions, and to the Rome Statute of the International Criminal Court;

(d) Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and enact modes of criminal liability, in particular command or superior responsibility;

(e) Consider, as part of the constitutional reform process, the inclusion of a transitional clause to facilitate the establishment of transitional justice mechanisms and offer guarantees of redress to all those whose rights have been violated;

(f) Adopt legislation establishing a hybrid court, which should include international judges, defence lawyers, prosecutors and investigators, to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law, and provide it with the resources necessary to enable it to try those responsible promptly and effectively;

(g) Strengthen the forensic capacity of the police and judiciary and ensure that it is adequately resourced, including for DNA testing, forensic anthropology and archaeology;

(h) Replace the Prevention of Terrorism Act by legislation that adheres to the best international practices;

(i) Review all cases of detainees held under the Prevention of Terrorism Act with the aim of either releasing them or bringing them immediately to trial; establish a moratorium for the use of the Act for new arrests until it is replaced by legislation that adheres to international best practices; and review the cases of those convicted under the Act and are serving long sentences, particularly where convictions were based solely on confessions;

(j) Promptly investigate and prosecute all allegations of torture and other gross human rights violations, and give the highest priority to long-standing emblematic cases so as to regain public confidence in the justice system; and implement fully the recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and of the Committee against Torture.

4. Truth/right to know

68. The High Commissioner recommends that the Government of Sri Lanka:

(a) Operationalize the Office of Missing Persons Act and provide the Office of Missing Persons with sufficient resources and technical means; create the conditions necessary for the implementation of its mandate by, inter alia, passing enabling legislation to domesticate the International Convention for the Protection of All Persons from Enforced Disappearances and including the criminalization of enforced disappearances in the Penal Code;

(b) Design, enact and operationalize a truth-seeking mechanism, and provide it with sufficient resources and technical means to carry out its mandate.

5. Reparations

69. The High Commissioner recommends that the Government of Sri Lanka develop a national reparations policy that takes into account the specific needs of women and children, and strengthen psychosocial support for victims.

 

B. United Nations system

70. The High Commissioner recommends that the United Nations system:

(a) Continue providing technical and financial support for the development of transitional justice mechanisms, provided that they meet international standards, and continue to coordinate support on transitional justice;

(b) Apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes.

 

C. Member States

71. The High Commissioner recommends that Member States:

(a) Urge the Human Rights Council to continue its close engagement with the Government of Sri Lanka and to monitor developments in the country;

(b) Wherever possible, in particular under universal jurisdiction, investigate and prosecute those allegedly responsible for such violations as torture, enforced disappearance, war crimes and crimes against humanity;

(c) Ensure respect for the principle of non-refoulement in the case of Tamils who have suffered torture and other human rights violations until guarantees of nonrecurrence are in place to ensure that they will not be subject to further violations;  

(d) Continue to accompany the people of Sri Lanka in their efforts to address past human rights violations by establishing systems of accountability, justice and reconciliation.