Zeid urges creation of hybrid special court in Sri Lanka integrating international judges, prosecutors, lawyers and investigators, as an essential step towards justice

UN (OHCHR)The UN report* published today 16 September 2015 has identified patterns of grave violations in Sri Lanka between 2002 and 2011, strongly indicating that war crimes and crimes against humanity were most likely committed by both sides to the conflict. The report recommends the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, as an essential step towards justice.

“Our investigation has laid bare the horrific level of violations and abuses that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes,” High Commissioner Zeid said. “Importantly, the report reveals violations that are among the most serious crimes of concern to the international community as a whole.”

“This report is being presented in a new political context in Sri Lanka, which offers grounds for hope,” Zeid said. “It is crucial that this historic opportunity for truly fundamental change is not allowed to slip.”

Among the most serious crimes documented in the report are the following:

· Unlawful killings: Numerous unlawful killings between 2002 and 2011, were allegedly committed by both parties, as well as by paramilitary groups linked to the security forces. Tamil politicians, humanitarian workers, journalists and ordinary civilians were among the alleged victims of Sri Lankan security forces and associated paramilitaries. There appear to have been discernible patterns of killings, for instance, in the vicinity of security force checkpoints and military bases, and also of extrajudicial killings of individuals while in the custody of security forces, including people who were captured or surrendered at the end of the conflict. The Liberation Tigers of Tamil Elam (LTTE) also reportedly killed Tamil, Muslim and Sinhalese civilians, through indiscriminate suicide bombings and mine attacks, as well as assassinations of individuals including public officials, academics and dissenting Tamil political figures.

· Sexual and gender-based violence: One shocking finding of the investigation was the extent to which sexual violence was committed against detainees, often extremely brutally, by the Sri Lankan security forces, with men as likely to be victims as women. Harrowing testimony from 30 survivors of sexual violence who were interviewed indicates that incidents of sexual violence were not isolated acts but part of a deliberate policy to inflict torture, following similar patterns and using similar tools. The report describes sexual torture which occurred during interrogation sessions, and also patterns of rape, much of which appeared to occur outside of interrogations sessions. Sexual torture was performed in a wide range of detention locations by different security forces, both during and after the conflict. Not a single perpetrator of sexual violence related to the armed conflict is so far known to have been convicted.

· Enforced disappearances: Enforced disappearances affected tens of thousands of Sri Lankans for decades, including throughout the 26-year armed conflict with the LTTE. There are reasonable grounds to believe that enforced disappearances may have been committed as part of a widespread and systematic attack against the civilian population. In particular, there are reasonable grounds to believe that a large number of individuals who surrendered during the final phase of the war were disappeared, and remain unaccounted for. Many others, including people not directly linked to the conflict, disappeared, typically after abduction in ‘white vans.’

· Torture and other forms of cruel, inhuman or degrading treatment: Brutal use of torture by the Sri Lankan security forces was widespread throughout the decade covered by the report, and in particular during the immediate aftermath of the conflict. Some of the more commonly used centres had rooms that were set up with torture equipment, illustrating the premeditated and systematic nature of the use of torture. These rooms contained objects including metal bars and poles for beatings, barrels of water used for waterboarding, and pulleys from which victims were suspended. Victims interviewed for the report described seeing bloodstains on the walls or floors of these rooms, and described their own torture in detail.

· Recruitment of children and their use in hostilities, as well as abduction and forced recruitment of adults: Information indicates patterns of abductions leading to forced recruitment of adults by the LTTE, which intensified towards the end of the conflict. Extensive recruitment and use of children in armed conflict by the LTTE and by the paramilitary Karuna group, which supported the Government following its spilt from the LTTE in 2004, was also documented. Children were often recruited by force from homes, schools, temples and checkpoints, and, after basic training were sent to the frontlines. According to numerous reports, in the last few months of the conflict, the LTTE increasingly recruited children below the age of 15. These practices would amount to war crimes if established in a court of law.

· Attacks on civilians and civilian objects: There are reasonable grounds to believe that many attacks during the last phase of the war did not comply with international humanitarian law principles on the conduct of hostilities, particularly the principle of distinction. The report documents repeated shelling by Government forces of hospitals and humanitarian facilities in the densely populated ‘No Fire Zones,’ which the Government itself had announced but which were inside areas controlled by the LTTE. Directing attacks against civilian objects and/or against civilians not taking direct part in hostilities is a serious violation of international humanitarian law and may amount to a war crime. The presence of LTTE cadres directly participating in hostilities and operating within the predominantly civilian population, launching attacks from close proximity of these locations, and the LTTE policy of forcing civilians to remain within areas of active hostilities, may also have violated international humanitarian law. However, this would not have absolved the Government of its own responsibilities under international humanitarian law. The duty to respect international humanitarian law does not depend on the conduct of the opposing party, and is not conditioned on reciprocity.

· Denial of humanitarian assistance: There are reasonable grounds to believe that the Government placed considerable restrictions on freedom of movement of humanitarian personnel and activities, and may have deliberately blocked the delivery of sufficient food aid and medical supplies in the Vanni in the Northern Province, which may amount to the use of starvation of the civilian population as a method of warfare. Such conduct, if proven in a court of law, may constitute a war crime.

· Violations during the detention of internally displaced people (IDPs) in closed camps: The manner in which the screening processes were carried out, to separate former LTTE combatants from civilians, failed to meet international standards and facilitated ill-treatment and abuse. 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. This may amount to discrimination and the crime against humanity of “persecution.”

The report documents years of denials and cover-ups, failure to carry out prompt investigations, stalled investigations and reprisals against the family members of victims and others who have pushed for justice.

It notes that the repeated failure of successive domestic inquiries to bring justice has led to scepticism, anger and mistrust on the part of victims, particularly since “many of the structures responsible for the violations and crimes remain in place.” The report demonstrates the systemic weakness in addressing these crimes, especially when the military or security forces are involved. It also describes “reprisals against judicial and other professionals who try to prosecute human-rights related cases involving State officials.”

“The commitment by the new Government to pursue accountability through a domestic process is commendable…but the unfortunate reality is that Sri Lanka’s criminal justice system is not yet ready,” the report states. “First and foremost is the absence of any reliable system for victim and witness protection. Second is the inadequacy of Sri Lanka’s domestic legal framework to deal with international crimes of this magnitude. The third challenge is the degree to which Sri Lanka’s security sector and justice system have been distorted and corrupted by decades of emergency, conflict and impunity.”
The High Commissioner welcomed the positive steps taken by the new Government of President Mathiripala Sirisena since January this year, but said that “Sri Lanka must now move forward to dismantle the repressive structures and institutional cultures that remain deeply entrenched after decades of erosion of human rights.”

“This will not happen overnight, and no one should underestimate the enormity of the task,” he said. “We have seen many moments in Sri Lanka’s history when governments pledged to turn the page and end practices like enforced disappearances, but the failure to address impunity and root out the systemic problems that allowed such abuses to occur meant that the ‘white vans’ could be, and were, reactivated when needed. It is imperative that the Government seizes the unique opportunity it has to break the mold of impunity once and for all. This means there must be a root-and-branch transformation of the ways in which institutions and officials operate.”

The report recommends a range of measures to develop a comprehensive transitional justice policy to address the human rights violations of the past 30 years and prevent their recurrence.

The High Commissioner urged all communities and sections of society, including the diaspora, to view the report as “an opportunity to change discourse from one of absolute denial to one of acknowledgment and constructive engagement to bring about change.”

“After so many years of unbridled human rights violations and institutionalized impunity, the wounds of victims on both sides have festered and deepened,” Zeid said. “Unless fundamentally addressed, their continued suffering will further polarize and become an obstacle to reconciliation, and – worse – may sow the seeds for further conflict.”

“The levels of mistrust in State authorities and institutions by broad segments of Sri Lankan society should not be underestimated,” the High Commissioner said. “It is for this reason that the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, is so essential. A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises.”

“The domestic criminal justice system also needs to be strengthened and reformed, so it can win the confidence of the public, but that is a process which will take several years to achieve and needs to be undertaken in parallel to the establishment of a special hybrid court, not in place of it. Indeed such a court may help stimulate the reforms needed to set Sri Lanka on a new path to justice, building public confidence along the way.”

The UN Human Rights Office (OHCHR) was mandated by the UN Human Rights Council last year to conduct a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period 2002-11. The investigation report is based on eye-witness testimony, interviews with victims and witnesses, video and photographic material including satellite imagery (much of which is not in the public domain) that was analyzed by forensic and military experts, and an extensive review of documentation, including about 3,000 written statements and submissions, as well as previously unpublished reports. The OHCHR investigation team was not granted access to Sri Lanka and faced other constraints, including the previous Government’s use of threats, intimidation and surveillance to prevent people, particularly in the north of the country, from cooperating with the investigation.

Read Full Report (OHCHR)

VIII.  Conclusions and recommendations:

  1. The OHCHR investigation contained in this report was born out of the past failure of the Government of Sri Lanka to address accountability for the most serious human rights violations and crimes. Ending the impunity enjoyed by the security forces and associated paramilitary groups, as well as holding to account surviving members of the LTTE, will require political will and concerted efforts to ensure the non-recurrence of these violations and crimes.
  2. The new Government’s commitments in this respect are welcome, but it needs to convince a very skeptical audience – Sri Lankan and international – that it is determined to show results. Prosecuting a few emblematic cases will not be sufficient; Sri Lanka needs to address the patterns of serious human rights violations and other international crimes that have caused such suffering for all communities over decades if it is to prevent them haunting its future.
  3. 88. The High Commissioner remains convinced that for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism. Sri Lanka should draw on the lessons learnt and good practices of other countries that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators. Such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka. OHCHR stands ready to continue providing its advice and technical assistance in the design of such a mechanism.
  4. The High Commissioner also believes the Human Rights Council has – and should continue to play – a critically important role in encouraging progress on accountability and reconciliation in Sri Lanka. As the process now moves into a new stage, he urges Council members to sustain their monitoring of developments in Sri Lanka with a view to further actions that may be required at the international level should there not be concrete results.
  5. A comprehensive set of recommendations is included in the accompanying OISL report (A/HRC/30/CRP.2). In particular, the High Commissioner wishes to highlight the following recommendations:

To the Government of Sri Lanka

General

       (a)           Set up a high-level executive group to develop a coordinated, time-bound plan and oversee progress in implementing the recommendations contained in this report and previous reports by the High Commissioner to the Human Rights Council, as well as relevant outstanding recommendations of the LLRC and past commissions of inquiry;

       (b)           Invite OHCHR to establish a full-fledged country presence to monitor the human rights situation, advise on implementation of the High Commissioner’s recommendations and of all HRC resolutions, and provide technical assistance;

       (c)           Initiate genuine consultations on transitional justice, in particular truth-seeking and accountability mechanisms, reparations and memorialization, with the public, victims and witness groups, civil society and other stakeholders; These should be accompanied by public education programmes that ensure informed participation in the process;

       (d)           Invite the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to continue his engagement so that he accompanies and advises in this process; Invite other relevant Special Representatives of the Secretary-General and Special Procedures mandate holders, notably the Special Rapporteurs on extrajudicial killings and torture, to make early country visits, particularly those highlighted in the OISL report.

Institutional reforms

       (e)           Through the Constitutional Council, appoint qualified new members to the Human Rights Commission of Sri Lanka of the utmost independence and integrity, and review legislation to strengthen the Commission’s independence and its capacity to refer cases to the courts;

       (f)            Issue clear, public and unequivocal instructions to all branches of the military and security forces that torture, rape, sexual violence and other human rights violations are prohibited and that those responsible, both directly or as commander or superior, will be investigated and punished; Order an end to all surveillance, harassment and reprisals against human rights defenders;

       (g)           Develop a fully-fledged vetting process respecting due process to remove from office military and security force personnel and any other public official where there are reasonable grounds to believe that they were involved in human rights violations;

       (h)           Prioritize the return of private land that has been occupied by the military and end military involvement in civilian activities;

       (i)            Take immediate steps to identify and disarm groups affiliated with political parties and sever their linkages with security forces, intelligence services and other Government authorities;

       (j)            Initiate a high-level review of the Prevention of Terrorism Act (PTA) and its regulations and the Public Security Ordinance Act with a view to their repeal and the formulation of a new national security framework fully complying with international law;

Justice

(k)           Review the Victim and Witness Protection Act with a view to incorporating better safeguards for the independence and effectiveness of the witness protection programme in line with international standards; Ensure the independence and integrity of those appointed to the Witness Protection Authority and that the police personnel assigned to this program are fully vetted; Ensure adequate resources for the witness protection system;

       (l)            Accede to the International Convention on the Protection of All Persons from Enforced Disappearances, the Additional Protocols to the Geneva Convention, and the Rome Statute of the International Criminal Court;

       (m)          Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statute of limitation; Enact various modes of criminal liability, notably command or superior responsibility;

       (n)           Adopt a specific legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defense office and witness and victims protection program, and resource it so that it can promptly and effectively try those responsible;

       (o)           Carry out a comprehensive mapping of all criminal investigations, habeas corpus and fundamental rights petitions related to serious human rights violations, as well as the findings of all Commissions of Inquiries where they have identified specific cases, and refer these cases to the special court upon its establishment;

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

       (q)           Review all cases of detainees held under the PTA and either release them or immediately bring them to trial; Review the cases of those convicted under the PTA and serving long sentences, particularly where convictions were based on confessions extracted under torture;

Truth/right to know

       (r)           Dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared;

       (s)            Develop a central database of all detainees, with independent verification, where relatives can obtain information of the whereabouts of family members detained, and publish a list of all detention centres;

       (t)            Publish all unpublished reports of the many human rights-related commissions of inquiry, the Presidential Commission on the Missing, and the Army Court of Inquiry into civilian casualties;

       (u)           Develop a comprehensive plan/mechanism for preserving all existing records and documentation relating to human rights violations, whether held by public or private institutions;

Reparations

       (v)           Develop a national reparations policy, considering the specific needs of women and children, and make adequate provision from the State budget;

       (w)          Strengthen programmes of psychosocial support for victims;

  To the United Nations system and Member States

       (a)           Provide technical and financial support for the development of transitional justice mechanisms provided that they meet international standards; Set up a coordination mechanism among donors in Sri Lanka to ensure focussed and concerted efforts to support the transitional justice process;

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

       (c)           Wherever possible, notably under universal jurisdiction, investigate and prosecute those responsible for violations such as torture, war crimes or crimes against humanity;

       (d)           Ensure a policy of non-refoulement of Tamils who have suffered torture and other human rights violations until guarantees of non-recurrence are sufficient to ensure that they will not be subject to further abuse, in particular torture and sexual violence;

       (e)           Continue to monitor human rights developments and progress towards accountability and reconciliation through the Human Rights Council; Should there be insufficient progress, the Human Rights Council should consider further international action to ensure accountability for international crimes.

The full report is divided into two parts which are interlinked:
 

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