Experts dismayed by regressive steps, call for renewed UN scrutiny and efforts to ensure accountability

UN human rights experts have expressed their deep concern on 5 February 2021 about the reversal of important democratic gains achieved since 2015 and roll back on limited progress made on accountability, reconciliation in Sri Lanka since the Government withdrew its support from the resolution Human Rights Council resolution 30/1 in February 2020. 

UN human rights experts M. Clément Voule (Togo), the Special Rapporteur on the rights to freedom of peaceful assembly and of association, the UN Working Group on Enforced or Involuntary Disappearances consisting of Tae-Ung Baik (Chair-Rapporteur), Henrikas Mickevičius (Vice Chair), Ms. Aua Baldé, Bernard Duhaime, and Luciano Hazan, the UN Working Group on Arbitrary Detention consisting of Ms Leigh Toomey (Chair-Rapporteur), Ms Elina Steinerte (Vice-Chair), Ms Miriam Estrada-Castillo, Mumba Malila, and Seong-Phil Hong , the Special Rapporteur on the independence of judges and lawyers Diego Garcia-Sayan, the Special Rapporteur on minority issues Fernand De Varennes, the Special Rapporteur on freedom of religion or belief Ahmed Shaheed, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Ms. Fionnuala Ní Aoláin, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Nils Melzer and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence Fabián Salvioli called on the UN Human Rights Council and the international community to keep the human rights situation in Sri Lanka under a high level of scrutiny and to explore all possible options for advancing accountability in the country, including through further international accountability measures.

The UN experts also urged the Sri Lankan authorities to stop rolling back hard fought progress made in recent years on rebuilding democratic institutions, and to press for accountability for past crimes and deliver justice for victims and promote reconciliation between communities.

The independent experts published an assessment of the government’s follow up to some 400 recommendations made following 10 official visits from 2015 to 2019. They called on the Human Rights Council to continue its efforts to increase independent human rights monitoring in the country and to ensure accountability for past crimes.

“We are dismayed at the emerging trends setting back the promotion of reconciliation, accountability and human rights, reducing civic space and eroding important institutional safeguards for the protection of human rights, issues also raised in the High Commissioner’s report,” they said, pointing to the government’s increasingly majoritarian rhetoric threatening victims and minority communities.

“The Easter Sunday terrorist attack in April 2019 and the COVID-19 pandemic has put an enormous strain on the country – yet the national security centred response to these crises and the accelerated trend towards militarization of civilian public functions, including through the appointment of active and former military personnel allegedly implicated in war crimes, is alarming,” the experts said.

Such responses together with the recently approved 20^th amendment to the Constitution which removes important institutional checks and balances, have threatened the integrity of Sri Lanka’s institutions and the judiciary, eroding safeguards that are essential for democracy and the rule of law, they said.

The Government has placed the achievement of the SDGs high on its agenda, however without transparent, effective, inclusive and accountable institutions, goals such as ending poverty, ensuring education and promoting economic growth cannot be fully achieved (SDG 16).

“At the time of our visits, we witnessed an opening of space for Sri Lanka’s dynamic civil society, but this has once again become increasingly closed and unsafe,” they said, adding that using national security legislation to this effect was regrettable. An active and independent civil society is important for any democratic and peaceful society to ensure authorities hear the voice of the voiceless, the experts said.

“During the COVID-19 pandemic, restrictions have been unevenly imposed on the rights to freedom of expression, association and peaceful assembly, resulting in the arrest and detention of social media commentators and others,” they said. “Since 2019, increased surveillance, harassment, questioning and threats from security agencies against human rights activists, journalists, lawyers and families of victims have been regularly documented.”

Ethnic and religious minorities, namely Tamils and Muslims, have also been increasingly marginalized and stigmatized especially during the pandemic, the experts added, pointing to authorities’ failure to prevent speech that incites discrimination and violence against minorities. Moreover, the ongoing compulsory cremation of COVID-19 bodies against the religious and cultural rites of minority communities is concerning and must be ended.

“Despite the scale and magnitude of enforced disappearances in Sri Lanka, the authorities have failed to make progress in investigating these cases, identifying the whereabouts or fate of the victims, and holding perpetrators accountable,” they said.

Distress and anxiety have mounted among victims and their families as the Government has signalled a different approach to the issue and cast uncertainty over the future of the Office on Missing Persons and the Office for Reparations. Also, war widows and women relatives of the disappeared who search for truth, justice and accountability, as well as women activists who advocate on their behalf face particular risks.

Numerous recommendations made on the prohibition of torture, including repealing the Prevention of Terrorism Act, remain unaddressed, the experts said. Prison reform appears to be on the Government’s agenda but root causes remain to be addressed and conditions of detention often amount to cruel, inhuman or degrading treatment. More broadly, allegations of custodial deaths, abduction and torture continue to arise.

The experts said the Government’s failure to address impunity was a cause of utmost concern. In February 2009, a different set of 10 UN experts highlighted that “impunity has been allowed to go unabated throughout Sri Lanka. The fear of reprisals against victims and witnesses, together with a lack of effective investigations and prosecutions, has led to a circle of impunity that must be broken”.

“It is extremely disheartening that the diagnosis remains the same 12 years after,” the experts said in their 2021 assessment. “Sri Lanka’s long history of largely unrelated and inconsequential commissions of inquiry has increased mistrust in the Government’s determination to genuinely redress violations. There is little hope that any domestic accountability measures will progress or achieve any degree of credibility.

“It is against this backdrop, that we wish to reiterate the urgency to implement the recommendations made in our country visits’ reports which remain valid and of utmost importance. We call on the UN Human Rights Council and the international community to keep the human rights situation in Sri Lanka under a high level of scrutiny and to explore all possible options for advancing accountability in the country, including through further international accountability measures.”

They said the Human Rights Council and Member States should therefore strengthen independent monitoring, analysis and reporting of the human rights situation in Sri Lanka and establish an impartial and independent international accountability mechanism which would seek to build upon the work conducted by different U

“In the spirit of cooperation, we, the mandate holders who visited Sri Lanka since 2015, find it timely and opportune to recall some key recommendations as the developments over the past year have had profound negative impact on human rights in Sri Lanka and have fundamentally altered the context in which these recommendations could be effectively implemented, issues also raised in the High Commissioner’s report on Sri Lanka”¹ the experts said.

Since Sri Lanka issued standing invitation to the Special Procedures mandate holders in 2015, 10 special procedures mandates conducted country visits.² The former Special Rapporteur on truth, justice, reparations, and non-recurrence conducted four additional technical visits. Through these country visits, special procedures have identified root causes, patterns and complexities relating to a history of conflict, human rights violations and abuses and impunity in Sri Lanka and made more than 400 recommendations to Sri Lanka on a range of human rights issues. All recommendations contained in their country visits’ reports to the Human Rights Council can be searched on the Universal Human Rights Index³ .

The vast majority of these recommendations made by the special procedures mandates to Sri Lanka are intrinsically linked to the 25 key undertakings/commitments set out in the Human Rights Council resolution 30/1, which was unanimously adopted by the Council in 2015.

“Therefore, we are of the view that there are eight areas in particular that should be in focus when the UN Human Rights Council reviews the implementation of the resolution 30/1 in March 2021: i) threats to independent institutions and the rule of law; ii) increasing militarization; iii) restrictions on freedoms of peaceful assembly, association and expression; iv) discrimination against vulnerable groups, incitement to hatred and violence against minorities; v) legal safeguards, conditions of detention and prohibition of torture; vi) enforced disappearances; vii) impunity and viii) lack of progress in the transitional justice process.

For each of these areas, the main recommendations made as well as the main concerns in the current context are detailed below.

We call on the Government of Sri Lanka to implement the recommendations made in our country visits’ reports. We call on the Human Rights Council and the international community to keep the human rights situation in Sri Lanka under continuous scrutiny and to explore all possible options for advancing accountability in the country.

In order to do this, options available to the Human Rights Council and Member States include but need not be limited to the possibility to:

• Request OHCHR to enhance its monitoring and analysis of the human rights situation in Sri Lanka;
• Establish an impartial and independent international accountability mechanism which would seek to build upon the work conducted by different UN mechanisms by investigating, compiling, and analysing information collected from an international criminal law perspective;
• Request the appointment of a Special procedures country mandate;
• Member States and UN agencies in their engagement with Sri Lanka to specifically demand that Sri Lanka fulfils its human rights obligations, including with respect to the issues identified in this statement and the recommendations made by Special Rapporteurs during their visits conducted since 2015 and with respect to cooperating with Special Procedures in relation to country visits and communications.

1. Threats to independent institutions and the rule of law
2. Ensure that the Constitution clearly and expressly recognize the fundamental principle of the separation of powers, establish checks and balances and guarantee the independence of the judiciary and the courts;⁴
3. Review the roles and powers of the Attorney General with a view to reinforcing the independence of that office and reducing conflicts of interest when addressing crimes committed by State officials;⁵
4. Ensure that the Human Rights Commission (HRCSL) is able to continue to work independently and with sufficient resources to discharge its mandate as well as its functions as the national preventive mechanism.⁶
5. Increasing militarization
6. Implement comprehensive security sector reform and demilitarization, in line with the country’s transitional justice commitments under Human Rights Council resolution 30/1;¹⁰
7. Move to terminate military involvement in commercial activities and reduce military presence in those areas, such as the North and East.¹¹
8. Restrictions on freedoms of peaceful assembly, association and expression
9. Order all security forces to immediately end all forms of surveillance and harassment of and reprisalsagainst human rights defenders, journalists, lawyers, and victims of human rights violations including the relatives of the disappeared persons and those acting on their behalf;¹³
10. Ensure that existing legislation dealing with the right to freedom of association is in line with international human rights laws and standards, in particular in relation to registration, reporting requirements, the right to privacy and suspension or dissolution of associations, and avoid enacting regressive legislation in the future, including legislation mandating the registration of associations;¹⁴
11. Ensure that the rights to freedom of peaceful assembly and of association can be effectively exercised, in law and in practice, fulfilling the indispensable role that they play in the promotion of a fair, free, pluralistic and democratic society where minority and dissenting views are respected;¹⁵
12. Refrain from using national security legislation, including the Prevention of Terrorism Act (PTA), to arrest or detain people for peacefully expressing their right to freedom of expression and freedom of assembly and association.¹⁶
13. Discrimination against vulnerable groups, incitement to hatred and violence against minorities
14. Take concrete steps to address all of the identified root causes of religious intolerance and tensions – politicization of ethnic and religious identity, religious extremism, hate speech or campaigns and the application of the existing legal framework, impunity and a lack of the rule of law and accountability;²⁰
15. Ensure non-discriminatory application of legislation across communities, including ethnic, religious, LGBTQI+, people living in poverty and the homeless and other groups, undertaking review of such legislation in order to prevent its discriminatory use, and providing guidelines to law enforcement on the application of legislation that might be prone to misuse and repealing outdated legislation that criminalises minor offences such as vagrancy and is used to detain poor women, sex workers, the elderly, and individuals with psychosocial impairments or substance addiction;²¹
16. Implement the existing legislation on hate speech to address all incidents of hate speech, regardless of the social status, ethnicity, religious background or political affiliations of the perpetrators, while protecting freedom of expression and access to information;²²
17. Develop monitoring mechanisms to establish early warning systems and respond to hate speech and incitement to violence in conformity with international human rights standards using existing tools such as the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence and the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence That Could Lead to Atrocity Crimes.²³
18. Legal safeguards, conditions of detention and prohibition of torture
19. Repeal the Prevention of Terrorism Act (PTA) and promptly replace it with new counter-terrorism legislation in line with international best practices to ensure safeguards against arbitrary arrest and torture or cruel, inhuman or degrading treatment;²⁸
20. Conduct an urgent nationwide audit to determine the exact numbers of those held under the PTA, how long they have been deprived of liberty, their status and their location and address the human rights violations that may emerge from data documenting long-term indefinite detention without trial;²⁹
21. Provide directives to the security sector to ensure that all officers are informed and given clear and unequivocal instructions that all acts of torture, including rape and other forms of sexual violence, and ill-treatment are prohibited and that those responsible, either directly or as commander or superior, will be investigated, prosecuted and punished;³⁰
22. Ensure that all confessions obtained under duress are deemed inadmissible as evidence in court, that any confessions are made before a judge who needs to ascertain that they were made freely and without coercion;³¹
23. Ensure minimum standards of conditions of detention in accordance with the Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) and for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) and ensure that current practices and conditions do not give rise to cruel, inhuman or degrading treatment or punishment, or torture;³²
24. Address and implement measures to reduce overcrowding by overhauling the prison system to reduce the number of detainees and increasing prison capacities in more modern prison facilities; reducing pre-trial detention; accelerating the judicial process and reviewing sentencing policies by introducing realistic alternatives to detention; expediting court proceedings by ensuring that there are sufficient prosecutors and judges in the country.³³
25. Enforced disappearances
26. Adopt a comprehensive policy to address all the enforced disappearances that took place in the country, regardless of the time of the disappearance and without any type of discrimination;³⁷
27. Support the Office on missing persons and the Office for reparations to ensure they are able to continue to work independently and with sufficient resources to discharge their mandates to deliver concrete benefits for victims and their families;³⁸
28. Make sufficient efforts to determine the fate or whereabouts of persons who have disappeared, punish those responsible and guarantee the right to truth and reparation;³⁹
29. Protect witnesses and relatives of the disappeared who are still seeking truth and justice for their loved ones.⁴⁰
30. Impunity
31. Take steps to address the pervasive climate of impunity by improving access to justice, promoting and mainstreaming human rights through its legislation, procedures and other actions, and taking resolute steps towards bringing the perpetrators of past and current human rights violations to justice.Those measures should not be limited to the transitional justice context but should be aimed at the whole justice chain;⁴⁵
32. Ensure the strict application of the existing legislation to bring to justice perpetrators of hate speech aiming to incite discrimination or violence as well as hate crimes. Urgently address impunity and the lack of accountability and investigate all incidents of violence and prosecute all perpetrators of incitement to violence;⁴⁶
33. Lack of progress in the transitional justice process

In our reports, we recommended among others that the Government:

• Implement Human Rights Council resolution 30/1 in particular through the development of a comprehensive transitional justice policy with the four constitutive elements of truth, justice, reparation and guarantees of non-recurrence; ⁵⁰
• Ensure the full involvement of victims and civil society organizations in the development of the strategy and the design of transitional justice mechanisms.⁵¹

Main concerns in the current context

We have raised concerns about regressions in the field of transitional justice including the current government’s withdrawal from co-sponsoring Human Rights Council resolution 40/1 on ‘promoting reconciliation, accountability and human rights in Sri Lanka’.⁵²  Those concerns have been covered above under the different thematic areas.⁵³

More broadly, no progress has been made with regard to the establishment of the truth and reconciliation commission (TRC) nor the special judicial mechanism. The little progress made with regard to emblematic cases has been jeopardised by the mentioned Commission on political victimization as well as the purges in the CID. With regard to the Office on Missing Persons and the Office for Reparations, no further clarifications have been provided on the Government’s announcement that these two Offices will continue to operate “in line with the Government policy framework”. The increasing surveillance and harassments against victims and civil society organizations have seriously undermined the victims’ trust.

Against this background, the Government stated its continuous commitment to achieving the goals set by the people of Sri Lanka on accountability and human rights, towards sustainable peace and reconciliation, mainly through SDGs and other institutional reforms including a “domestically designed and executed accountability and reconciliation process in line with the Government’s policy framework”. While we understand that on 21 January 2021 President Rajapakasa appointed a three-member Commission of Inquiry, we have been alerted to concerns relating to its independence and lack of diversity.

There is little hope that any domestic accountability measures will progress or achieve any degree of credibility. As observed by the former Special Rapporteur on truth and justice, Sri Lanka has a long history of commissions of inquiry “established to deflect international pressure and calls for judicial investigations”. These commissions have been strongly criticized due to their weak mandates, lack of independence, lack of resources, procedural opacity, poor collaboration from the Government, lack of publicity of some of their reports and the overall lack of implementation of their recommendations. “The cumulative effect of these commissions has been to increase mistrust in the Government’s determination to genuinely redress violations. At this critical juncture, the country cannot afford to simply reproduce an approach characterized by the proliferation of largely unrelated and inconsequential ad hoc initiatives”. (OHCHR)