Promoting reconciliation, accountability and human rights in Sri Lanka

The report of the United Nations High Commissioner for Human Rights on Sri Lanka to the 49th UNHRC session was released on 25 February 2020. This 16 page written update was presented pursuant to Human Rights Council resolution 46/1 that requested  the Office of the United Nations High Commissioner for Human Rights (OHCHR) to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including on progress in reconciliation and accountability.

The High Commissioner remains concerned about the lack of accountability for past human rights violations and recognition of victims’ rights. In the last two years, the independence of the judiciary, the Human Rights Commission and other key institutions have been eroded, and democratic space, including for human rights advocacy constricted. There has been a further drift towards militarisation and an emphasis of Sinhala nationalism and Buddhism in State institutions has become more visible, increasing the marginalisation and uncertainty of minority communities, and undermining reconciliation. The forthcoming Constitution drafting process will be of critical importance for the independence of key institutions and issues of devolution and human rights should be monitored closely. The situation has been affected by the deep impact of the COVID-19 pandemic and economic crisis which has affected the realisation of economic, social and cultural rights, and the Government’s response to criticism and dissent with heavy-handed measures have undermined civic space.  There are also risks that the economic downturn will further fuel the prevailing marginalization and discrimination against minority communities.

She highlights continuing trends towards militarization and ethno-religious nationalism that undermine democratic institutions, increase the anxiety of minorities, and impede reconciliation. At the same time, the High Commissioner recognizes the recent signs of renewed openness of the Government in engaging with OHCHR and the initial steps taken to initiate some reforms. The High Commissioner believes however that a comprehensive vision for a genuine reconciliation and accountability process is urgently needed, as well as deeper institutional and security sector reforms that will end impunity and prevent the recurrence of violations of the past.The report also includes an update on steps to strengthen the capacity of OHCHR to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes, to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction.

Report of the United Nations High Commissioner for Human Rights *

* The present report was submitted after the deadline to enable consultations with the Member State.

The High Commissioner reiterates the recommendations made to the
Government of Sri Lanka in paragraph 60 of her 2021 report to the Council.
70 She further recommends the Government to:

(a) Ensure the drafting process for a new Constitution is based on broad and inclusive consultations, entrenches the independence of judiciary and key national institutions such as the HRCSL, and advances the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population;

(b) Take into account the recommendations made by various UN human rights mechanisms on the protection of human rights in the Constitution and the guarantees needed for effective, independent and inclusive national institutions;

(c) Avoid reliance on the military to run civilian affairs and take steps to reduce the influence of the military on civilian life;

(d) Ensure that the Attorney General’s Department is able to operate independently in practice and pursue prosecutions against any suspected perpetrators of human rights violations and serious violations of international humanitarian law, irrespective of military rank, official or other position of power;

(e) Take a comprehensive approach to determine the fate and whereabouts of all the disappeared, including immediately opening military archives relevant to cases of enforced disappearance, independently investigate all those suspected of criminal responsibility for the enforced disappearance, and provide comprehensive reparation to the families of the disappeared;71

(f) Publish the findings of the Commission of Inquiry into the 2019 Easter Sunday bombings to ensure transparency for victims and pursue further independent investigations into the involvement of any other state or non-state actors;

(g) Undertake more fundamental reforms to the Prevention of Terrorism Act to ensure it fully complies with Sri Lanka’s international law obligations,; in the meantime, establish a moratorium on the use of the Prevention of Terrorism Act until it is replaced by legislation that fully complies with international human rights norms and standards;

(h) Expedite the review of all detainees held under the PTA and release everyone detained without sufficient legal and evidentiary basis. Ensure that counter terrorism measures do not undermine democratic and civic space;
(i) Ensure inclusive and broad-based consultation in the drafting and amendment of key laws, including the Prevention of Terrorism Act, the Voluntary Social Services (Registration and Supervision) Act, the Muslim Marriage and Divorce Act and other personal laws;
(j) Order all security agencies to immediately end all forms of surveillance and harassment of and reprisals against human rights defenders, social actors, victims and their families of human rights violations;
(k) Adjudicate land disputes in ways that are transparent, consultative, impartial and non-discriminatory and ensure inter-faith dialogue on the erection of religious sites.

68. The High Commissioner reiterates the recommendations she made in paragraph 61 of her 2021 report to the Council and Member States and further recommends that they.

(a) Cooperate with victims and their representatives to investigate and prosecute international crimes committed by all parties in Sri Lanka through judicial proceedings in domestic jurisdictions, including under accepted principles of extraterritorial or universal jurisdictions and continue to explore possible targeted sanctions against credibly alleged perpetrators of grave human rights violations and abuses;

(b) Review asylum measures with respect to Sri Lankan nationals to protect those facing reprisals and refrain from any refoulement in cases that present real risk of torture or other serious human rights violations;

(c) Cooperate with OHCHR in its discharge of accountability related work under resolution 46/1 and provide it with adequate human and financial resources to enable it to effectively deliver the full mandate given under the resolution.

69. The High Commissioner recommends that United Nations entities:

(a) Scale up their protection work to prevent threats against, and increase support to civil society organizations and to firmly defend civic space;

(b) Ensure strict, coherent and expanded application of human rights due diligence and its principles in engagement with the security forces and all bodies under the purview of the Ministry of Defence or the Ministry Public Security, and review their engagement with, and advice from structures whose independence has been undermined, such as the HRCSL;

(c) Advocate with the Government of Sri Lanka to address the concerns of the Global Alliance on National Human Rights Institutions (GANHRI) to ensure the independence of the Human Rights Commission of Sri Lanka;

(d) While fully understanding force generation challenges in the context of United Nations peacekeeping, given the current circumstances of the Human Rights Commission of Sri Lanka, review the contributions of Sri Lanka to United Nations peacekeeping operations and the systems for screening Sri Lanka personnel.

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