Insufficient progress made

The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli, has submitted a report to Forty-eighth session of the Human Rights Council from13 September–1 October 2021, as a follow-up to the official visits undertaken by his predecessor to Burundi (2014), the United Kingdom of Great Britain and Northern Ireland (2015 and 2016) and Sri Lanka (2017). In the report, the Special Rapporteur assesses the status of implementation of the recommendations contained in the country visit reports and considers related developments that have taken place since the visit.

The Special Rapporteur says that “over the past 18 months, the human rights situation in Sri Lanka has seen a marked deterioration that is not conducive to advancing the country’s transitional justice process and may in fact threaten it. The report will be presented as Agenda item 3 on 16 September 2021, on Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development at the 48 session of the UNHRC for an interactive dialogue.

IV. Follow-up on the visit to Sri Lanka

24. The former Special Rapporteur visited Sri Lanka from 10 to 23 October 2017 at the invitation of the Government. He presented his end-of-mission statement with preliminary findings and recommendations on the visit in November 2017 and presented his final report to the Human Rights Council in September 2020.16 The present report contains an assessment of the status of implementation of the recommendations made in the country visit report, which had already been formulated in the end-of-mission statement of October 2017.17 This is to ensure sufficient time has been allowed for their implementation.

25. The Special Rapporteur regrets that no submission for the present report was received from the Government of Sri Lanka. Comments to the present report were received on 9 July 2021.

26. The commitments made by the administration led by President Maithripala Sirisena to undertake constitutional reforms, strengthen oversight bodies, curb corruption and engage with the international community to provide accountability for past abuses, including through implementation of Human Rights Council resolution 30/1, took an abrupt turn with the presidential elections in November 2019. The new administration, led by President Gotabaya Rajapaksa, proceeded to withdraw Sri Lanka from its international commitments regarding transitional justice, including in respect of resolution 30/1. This political shift has translated into a slowdown in the transitional justice agenda and a reversal of some of the progress made during the previous administration.18

27. Concerning accountability for past human rights violations, the Special Rapporteur regrets the lack of substantive progress in the investigation of emblematic cases, despite initial progress. Under the previous administration, the Criminal Investigation Department had made progress in investigating some violations, enabling some indictments and arrests; the High Court Trial-at-Bar held a hearing in the case of disappeared journalist Prageeth Eknaligoda; a High Court at Bar was appointed for the Weliveriya case; the Attorney General reopened investigations into the 2006 killing of Tamil students in Trincomalee; and indictments were served against suspects in the murder of 27 inmates at the Welikada Prison and against suspects in the 2013 Rathupaswela killings.

28. However, progress on several emblematic cases has stalled or encountered serious setbacks under the current administration. Investigations into military and security officers allegedly linked to serious human rights violations have in several instances been suspended. In some cases, the alleged perpetrators have been promoted despite the allegations against them. The commission of inquiry to investigate allegations of political victimization of public servants established by the current President has intervened in favour of military intelligence officers in ongoing judicial proceedings, including in the 2008 murder of journalist Lasantha Wickrematunge and the 2010 enforced disappearance of Prageeth Eknaligoda. It has also issued directives to the Attorney General to halt the prosecution of former Navy Commander Admiral Wasantha Karannagoda and former Navy Spokesman Commodore D.K.P. Dassanayake in relation to the killing of 11 youths by Navy officers, which have been rejected by the Attorney General.19 The Court of Appeal also issued an interim injunction order staying the case, following a writ submitted by Mr. Karannagoda. The case is due to be heard by that Court. The above-mentioned commission of inquiry has also interfered in other criminal trials, including by withholding documentary evidence, threatening prosecutors with legal action and running parallel and contradictory examinations of individuals already appearing before trial courts. In April 2021, the Prime Minister tabled a resolution seeking legislative approval to implement the recommendations of the commission of inquiry to institute criminal proceedings against investigators, lawyers, witnesses and others involved in some emblematic cases and to dismiss several cases currently pending in court. A special Presidential commission of inquiry composed of three sitting judges is to decide on the commission’s recommendations.

29. Efforts to ensure accountability have been further obstructed by reported reprisals against several members of the Criminal Investigation Department involved in the past in investigations into a number of high-profile killings, enforced disappearances and corruption.20 Some have been arrested and later released on bail, and another has left the country.

30. The current administration has shown that it is unwilling or unable to make progress in the effective investigation, prosecution and sanctioning of serious violations of human rights and humanitarian law, which deeply worries the Special Rapporteur. In this context, he welcomes the adoption in March 2021 of Human Rights Council resolution 46/1, by which the Council decided to strengthen the capacity of OHCHR to collect and preserve evidence for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka and present recommendations to the international community on how justice and accountability can be delivered. The adoption of the resolution was opposed by the delegation of Sri Lanka, which cited ongoing domestic remedies and independent processes.

31. The Special Rapporteur regrets that no truth commission has been established to date. Such a mechanism would be of considerable value in helping Sri Lanka to understand the root causes of the conflict and open a common public platform for all communities to share their lived experience.

32. During the period 2015–2019, progress was reported in the work of the Office on Missing Persons, which opened four regional offices in Batticaloa, Jaffna, Matara and Mannar covering also adjoining districts, adopted a psychosocial support strategy for families of disappeared persons in consultation with victims and other stakeholders and participated in forensics and archiving training. However, since 2020 progress has stalled and the Office has faced interference from the Government, which reportedly intends to review the law establishing and defining the mandate of the Office and which has appointed the former Chair of the commission of inquiry to investigate allegations of political victimization, Upali Abeyrathne, to head the Office. As the original set of commissioners ended their mandate in February 2021, there is considerable concern that this and other new proposed appointments will seriously undermine the independence and credibility of the institution, eroding victims’ trust in it and weakening the Office’s ability to discharge its mandate effectively.21 The Government has reported that the commissioners have been appointed following constitutional procedures.

33. The Special Rapporteur urges the Government to maintain its support for the Office on Missing Persons, including by providing it with sufficient resources and technical means, and to guarantee its independence and effective functioning.

34. The Special Rapporteur is concerned about the several instances since November 2019 in which government authorities have tried, through judicial action, to suppress memorialization efforts by families of victims and conflict-affected communities, citing security as well as COVID-19-related public health risks.22

35. The harassment, threats, surveillance and obstruction of activities of victims and human rights defenders has reportedly increased both in frequency and intensity in 2020, which the Government justifies as related to security concerns. In one reported case of reprisal, representatives of families of the disappeared in the North-East who attended Human Rights Council sessions in 2018 and 2019 were subjected to surveillance, harassment and intimidation upon their return to Sri Lanka. Families of the disappeared and witnesses to human rights violations have reportedly been harassed in similar ways.23

36. In July 2019, the Office on Missing Persons issued a protection strategy and established a dedicated unit for victim and witness protection that has developed procedures for the documentation of protection concerns and has reportedly intervened in relation to attacks against family members and other stakeholders involved in court proceedings in disappearances cases. The Government must ensure that victims, witnesses and human rights defenders are able to carry out their invaluable work in safety and without fear of reprisal. The Special Rapporteur reiterates his call for victims, witnesses and human rights defenders to be better protected as a key component of the transitional justice process in Sri Lanka.

37. With respect to guarantees of non-recurrence, on 22 October 2020 Parliament adopted the twentieth amendment to the Constitution introducing fundamental changes in the relationships and balance of power between the different branches of government. The amendment, which the Government argues was adopted following constitutional procedures, has strengthened the power of the President and the executive, effectively reversing many of the democratic gains introduced by the nineteenth amendment, adopted in 2015. It has also significantly weakened the independence of several key institutions, including the Human Rights Commission of Sri Lanka and the National Police Commission (whose Chairs can now be appointed and dismissed by the President), as well as the judiciary (senior judges and members of the Judicial Service Commission are now appointed by the President).24 The Government contends that institutional independence remains unchallenged despite the changes introduced by the new amendment.

38. There has also been a deepening and accelerating militarization of civilian government functions. On 29 December 2019, the Government brought 31 public entities under the oversight of the Ministry of Defence, including the police, the Secretariat for NonGovernmental Organizations, the National Media Centre and the Telecommunications Regulatory Commission. It also appointed 25 senior army officers as chief coordinating officers for maintaining COVID-19 protocols in all districts. In July 2021, the Government reported that most of the public entities that had been under the oversight of the Ministry of Defence were no longer under its purview.

39. Several special procedure mandate holders25 have strongly recommended replacing the Prevention of Terrorism Act with legislation that complies with international standards. While the previous Government had initiated alternative legislation that raised concerns from a human rights perspective26 and was later shelved, the present administration has failed to make any progress in this regard. Instead, in March 2021 the President issued a set of regulations on deradicalization and countering violent extremist religious ideology under the Prevention of Terrorism Act that allows for the arbitrary administrative detention of people for up to two years without trial. Several arbitrary arrests under the Prevention of Terrorism Act have been reported in the past year, many involving Tamils and Muslims. Furthermore, over 300 Tamil and Muslim individuals and organizations have been labelled as terrorist and included in an extraordinary issue of the official gazette. The Government has reported that it has commenced a process of reviewing some provisions of the Act and has accordingly released detainees held in extended judicial custody. The Special Rapporteur urges the Government to place an immediate moratorium on arrests under the Prevention of Terrorism Act, with a view to repealing it as a matter of priority, and undertakes prompt, effective and transparent legal review of all persons detained under the Act.

40. Sri Lanka is yet to set up a land commission to document and carry out a systematic mapping of military-occupied private and public land for effective and comprehensive restitution. The Government has reported that 89.26 per cent of State land and 92.22 per cent of private land occupied by the military has been released and that the rest will be reviewed, taking into consideration strategic military requirements. A scheme will reportedly offer compensation to holders of private land unreleased owing to national security concerns. The Special Rapporteur recalls that the mapping and restitution of land must be entrusted to an independent and impartial body.

41. Over the past 18 months, the human rights situation in Sri Lanka has seen a marked deterioration that is not conducive to advancing the country’s transitional justice process and may in fact threaten it. The Special Rapporteur deeply regrets the insufficient implementation of the recommendations made by his predecessor and the blatant regression in the areas of accountability, memorialization and guarantees of non-recurrence and the insufficient progress made regarding truth-seeking. He urges the Government to swiftly revert this trend in order to comply with its international obligations.

Sri Lanka: status of implementation of the recommendations contained in the visit
report, which had already been formulated in the end-of-mission statement of October 2017

Recommendations contained in the end-of-mission statementStatus
  
Develop a comprehensive transitional justice strategy that includes a clear timeline for the establishment of the different transitional justice mechanisms, identifies needs regarding budget, staff and required expertise and outlines the links between the different elements of the strategy. Allow the public to engage in consultations in the development of the strategy and seek, in particular, the views of women, given the differential impact that violations and the conflict have had on them and children.Not implemented. The Government has not developed a comprehensive transitional justice strategy.
Take greater advantage of the report of the Consultation Task Force on Reconciliation Mechanisms. In its report, the Task Force identifies expectations, needs, challenges and priorities as expressed by key stakeholders and provides information that could be invaluable to the Government’s efforts to align its intentions with the needs of victims. The network that the Task Force put in place in 2016 could prove very useful for continuing the dialogue and holding consultations on the design and implementation of reconciliation mechanisms.Insufficiently implemented. The Government has reported that the report of the Task Force was considered solely in the context of the elaboration of the reparation policy, which has not been approved by the Cabinet.
Tap more into the expertise that could be provided by OHCHR.Partially implemented. The ability of OHCHR to provide continued support for transitional justice has been affected by the decision taken by Sri Lanka to withdraw from its commitments regarding transitional justice, including in respect of Human Rights Council resolution 30/1.
Take greater advantage of its Human Rights Commission during the entire process of drafting legislation. The Government must commit itself to providing the Commission with sufficient resources to carry out its crucial functions and to taking its views and recommendations seriously.Not implemented. The Human Rights Commission has seen its integrity and independence severely undermined by government interference and the concentration of power in the President, including through the adoption of the twentieth amendment to the Constitution. The Government has reported that the Commission has been reconstituted in accordance with the Constitution and that it continues to receive resources.
Repeal the Prevention of Terrorism Act and promptly replace it with new counter-terrorism legislation that adheres to international best practices. Promptly deal with long-standing cases pending under the Act and put in place a procedure to review convictions handed down under the Act that were based solely on the confession of the accused.Not implemented. The Government has not repealed the Prevention of Terrorism Act and has introduced regulations that contravene international standards. Review of some long-standing cases has reportedly commenced, although plans in this regard have not been disclosed and the number of long-term detainees is unknown.
Cease the continued harassment and surveillance by security and intelligence personnel of human rights defenders and other social actors, especially women.Not implemented. Harassment and surveillance of victims’ groups, human rights defenders and civil society representatives has increased both in frequency and intensity, particularly since 2019.
Move to terminate military involvement in commercial activities and reduce military presence in those areas, such as the North and East.Not implemented. Military involvement has continued, reportedly due to national security concerns, COVID-19-related public health requirements and natural disaster and civil construction efforts. Instructions to refrain from commercial activities have been issued but some such activities continue.
Given continued apprehensions about surveillance and security, ensure that the transitional justice process incorporates witness and victim protection instruments and strengthen the existing (but incipient) witness and victim protection scheme.Insufficiently implemented. The Office on Missing Persons has set up, under the previous administration, a protection strategy and dedicated unit for victim and witness protection. It is unclear whether it has become operational.
Concerning truth-seeking, the Government should publish all reports of previous commissions and make their records and archives available to any future transitional justice mechanism.Insufficiently implemented. Not all reports of previous commissions of inquiry have been made public. In particular, the following reports have not been published: the report regarding the serious violations of human rights allegedly committed since 1 August 2005 of the Udalagama Commission (2006); the report of the Presidential commission of inquiry on the circumstances surrounding the mass graves in Matale (2013); and the final report on the first mandate of the Presidential commission charged with investigating the complaints regarding missing persons (2013). A new commission of inquiry was appointed in January 2021 to assess the work of preceding ones and the status of implementation of their recommendations. Its commissioners represent various ethnicities and are led by a Supreme Court judge. The commission has faced criticism concerning its terms of reference and the lack of independence of its members.[1]
Concerning the Office on Missing Persons, the Government should: Ensure that the Office can establish its presence at the provincial and district levels, to facilitate access by victims and their families, as planned; Require all State institutions to collaborate with the Office; Enable the Office to strengthen its capacity on crucial skills, including forensic investigations, through training provided by national, regional and international experts; Support the Office’s plan to incorporate psychosocial support for victims to avoid retraumatization.Partially implemented. Progress was made and geographical representation was enhanced under the previous administration, but progress has reportedly stalled under the current one. The government has reported that: the Office has worked collaboratively with several government and judicial entities; provided training on operational, investigative and psychosocial support skills; set up a mechanism to expedite its work in several areas; shared a list of missing persons with victims and the public; and assisted families with legal advice, referrals and obtaining absence or death certificates, through a multidisciplinary team. However, the credibility and integrity of the institution has been fundamentally jeopardized by government interference and by its current composition.
Concerning the establishment of a truth commission, the Government should: Ensure that such a truth commission can act as a crucial tool to establish patterns of violations and abuses over many cycles of violence, demonstrating that all communities have victims, and to uncover the root causes of discriminatory practices leading to conflict. This calls for giving the commission a broad temporal scope. Legislation establishing a truth commission should be adopted promptly but with adequate consultation with civil society; Ensure the independence of its commissioners and that victims are adequately represented among the commissioners and the commission’s staff; Ensure support to victims in terms of security and psychosocial services; Make sure that gender considerations are adequately institutionalized at all levels.Not implemented. A truth commission has not been established.
Address the lack of tangible progress on emblematic cases, which points to the serious limitations of the current justice system in addressing human rights violations.Not implemented. Progress on emblematic cases has stalled or encountered serious setbacks under the current administration.
Strengthen both the current accountability system, which is weak, and any future system of this kind. Many countries have developed such capacities, including in respect of police investigations, forensics and the articulation of prosecutorial strategies. Efforts to reach South-South cooperation agreements to strengthen or develop the relevant capacities should be made immediately.Not implemented. While the Government has reported an increase of 500 per cent in the budget allocated to building the capacity of the judiciary, accountability systems remain weak and compromised owing to political interference.
Focus the discussions about accountability on the means and preconditions for the establishment of credible procedures that guarantee the rights of victims and the accused.Not implemented. The ability of the judiciary to function with independence and integrity remains weak and compromised owing to political interference.
Preserve records, information documenting violations and the results of mapping out the existing archives of previous relevant mechanisms.Not implemented./No progress reported.
Concerning the Office for Reparations, the Government should: Undertake the serious work, including mapping of the universe of potential beneficiaries, costs, and necessary structures that will be required to establish a reparations programme to redress violations, and in which the triggering criterion is the fact of having suffered a violation, regardless of all other considerations, including ethnicity, religion, regional origin, or other factors; In making reparations, acknowledge responsibility. Making a link with the work of the truth commission would be useful in this respect; Make sure that all aspects of the design of such a programme are gender-sensitive and respond to the special needs of women, in particular those who are heads of households, who should be consulted at each step of the process; Reparations should not be seen as a tool to “sideline” truth and justice efforts.Partially implemented. The Government has reported that a gender-sensitive and victim-centred approach was introduced in the 2018 reparations Act; that the Office for Reparations has developed a reparations policy following consultations with stakeholders and a plan of action; that it meets quarterly with the Office on Missing Persons and the Office for National Unity and Reconciliation; and that it has taken steps to professionalize its work, establish a comprehensive information management system, disseminate the Act and train personnel on providing support to victims and on operational and gender issues. Moreover, 12,114 reparation claims have been processed and 11,511 payments have been made since December 2018, while 12,184 claims remain unprocessed. Families of disappeared members of the Liberation Tigers of Tamil Eelam (LTTE) reported discrimination in the granting of reparations, which the Government denies.
Concerning land restitution, the Government should: Carry out a comprehensive mapping of occupied land and, on the basis of its findings, define a strategy with deadlines for the release of land; Ensure that the armed forces retain only land that is strictly necessary for security purposes (narrowly and objectively interpreted); Ensure that decisions to retain land should not be within the sole purview of the military. A body or procedure should be set up in order to broaden the scope of stakeholders and decision makers on this issue; Consider establishing a land commission as a specialized entity able to address the issue of military-occupied private and public land and the multiple conflicting claims over land by communities displaced at different times; Strengthen its resettlement policy, as there continue to be camps where internally displaced persons have lived for almost 30 years and in conditions that do not befit a middle-income country; Consult beneficiaries on issues regarding new housing programmes to avoid future problems, including questions about suitability and indebtedness, in particular among vulnerable communities.Not implemented. The Government has not undertaken a systematic mapping exercise, has not documented the land occupied by the army, nor has it established a land commission. The Government has reported having released 89.26 per cent of State land and 92.22 per cent of private land and having established a scheme for compensating owners of land not released owing to national security concerns. Decisions to retain land rest with the military and national security considerations.
Concerning memorialization measures, the Government should support memorialization efforts, as these can have a reparative effect provided that they are even-handed and not used by anybody as part of a zero-sum game in which the basic aim is to reaffirm a single-sided narrative. Throughout the country, communities need spaces to mourn and remember those they have lost, especially civilian casualties.Not implemented. Memorialization remains a highly controversial and polarizing issue. The State has not established memorial sites to recognize all victims and has suppressed or dismantled those sites established by victims’ groups or affected communities citing security concerns.
Concerning guarantees of non-recurrence, the Government should ratify the International Convention for the Protection of All Persons from Enforced Disappearance and enact legislation to incorporate the Convention into the domestic legal system.Implemented. Sri Lanka ratified the Convention on 25 May 2016. The International Convention for the Protection of All Persons from Enforced Disappearance Act (Act No. 5 of 2018), which was adopted on 21 March 2018, incorporates the provisions of the Convention and explicitly prohibits enforced disappearance in Sri Lanka.
The constitutional reform project has been undertaken in part to provide guarantees of non-recurrence and has tremendous preventive and reconciliatory potential. That project should be expanded to achieve the following: The separation of the investigatory and prosecutorial roles from the State advocacy roles of the Office of the Attorney General and the establishment, for example, of an independent prosecutorial authority;Not implemented. No action has been taken to separate the investigatory and prosecutorial functions from the state advisory role of the Attorney-General’s Department. The ability of the Office of the Attorney General to function with independence and integrity remains weak and compromised due to political interference.
Strengthened provisions on the independence of the judiciary;Not implemented. Since the adoption in 2020 of the twentieth amendment to the Constitution, the President appoints senior judges and members of the Judicial Service Commission, undermining their independence[2] and further concentrating power in the hands of the President.
The articulation of a bill of rights for all Sri Lankans;Not implemented. No steps have been taken to strengthen the fundamental rights chapter of the Constitution.
The delimitation of functions of the different parts of the security system (armed forces, police and intelligence services) and the establishment of multilayered civilian oversight systems.Not implemented. There has been no delimitation of the different components of the security system, no restructuring of the security forces and no establishment of civilian oversight mechanisms.

                     [1]   A/HRC/46/20, para. 41.

                     [2]   See communication OL LKA 9/2020.

V. Concluding remarks

42. The Special Rapporteur expresses concern about the insufficient progress in the implementation of the recommendations addressed to the reviewed States. He urges the States to accelerate implementation and recalls that many of the recommendations represent the development of treaty obligations assumed by States that require compliance.

(OHCHR)

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