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Leaked UN report highlights ICC referral, universal jurisdiction and sanctions on Sri Lanka

In advance of the 46th UN Human Rights Council session, a leaked report on Sri Lanka, allegedly from the UN Human Rights Chief, has highlighted that the country remains in a “state of denial about the past” and calls on member states to advance “criminal accountability” by considering a referral to the International Criminal Court; establish investigations and prosecutions under universal jurisdiction; and, imposing sanctions on Sri Lankan officials implicated in international crimes.

Sections of the report were leaked by the Sunday Times and details the UN’s concerns over “Sri Lanka’s deteriorating human rights situation” and scepticism over claims that a domestic mechanism, which has “repeatedly failed”. The report notes that whilst the Council had lent its support for domestic accountability and reconciliation initiatives before; the Sri Lankan government has “demonstrated its inability and unwillingness to pursue a meaningful path towards accountability for international crimes and serious human rights violations”.

The approach adopted by Sri Lanka “threatens to deny victims their rights to truth and justice and further entrench impunity,” it adds. 

The High Commissioner for Human Rights maintains that now is a “critical turning point in its engagement with Sri Lanka”. Whilst Tamils have spent years campaigning tirelessly for the international community to refer Sri Lanka to the ICC, last week marked an unprecedented moment as major Tamil political parties, representatives of victim communities and civil society actors signed a joint statement making this demand clear.

Read more here: Tamil parties unite behind call for Sri Lanka to face international accountability

Deteriorating human rights

Militarisation

The UN High Commissioner has raised concerns in the report over the “increased militarisation of the State”, noting the appointment of "active and former military personnel, including those credibly implicated in war crimes to key positions”. This militarisation of the state has also allowed for the establishment of a “parallel task forces and commissions that encroach on civilian functions”. 

This militarisation has been coupled with a failure to implement adequate vetting or reforms of the security forces allowing those credibly implicated in human rights abuses to remain in place.

A rapidly shrinking space for civil society

The High Commissioner also raises alarm over the shrinking space for civil society and independent media noting continued forms of surveillance and intimidation by state agents against “human rights defenders, lawyers, journalists, social actors and victims of human rights violations and their families”.

Democratic gains that Sri Lanka had made, the report notes, have been further regressed by the passage of the 20th amendment which undermines the independence of numerous key institutions as well as the judiciary by putting them under direct influence of the presidency.

COVID-19

The report also highlights the deteriorating human rights situation with respects to the coronavirus and the marginalisation and discrimination Tamils and Muslims face.

The report states that:

“Tamil and Muslim minorities are being increasingly marginalised and excluded from the national vision and Government policy, while divisive and discriminatory rhetoric from the highest State officials risks generating further polarisation and violence”.

Further action must be taken

In detailing issues of justice, reparations and preventing further abuses the report highlights three key reasons why further action on Sri Lanka is necessary.

The first being that the continued imposition these atrocities have had on “tens of thousands of survivors — spouses, parents, children, and other relatives — from all communities who continue to search for the truth about the fate of their loved ones, to seek justice and are in urgent need of reparations”. 

The second, they note is that a failure to “advance accountability and reconciliation undermines the prospects for sustainable peace […] and carries the seeds of repeated patterns of human rights violations and potential conflict in the future”. The report warns that “Sri Lanka’s current trajectory sets the scene for the recurrence of […] grave human rights violations”.

The final reason given is with regards to the prevention of further abuses. The High Commissioner highlights the failure of the UN in 2009 stating:

“Independent review of the United Nations’ actions in 2009 in Sri Lanka concluded there had been a systemic failure of the prevention agenda as the conflict concluded. The international community must not repeat those mistakes, nor allow a precedent that would undermine its efforts to prevent and achieve accountability for grave violations in other contexts”.

Recommendations

In their recommendations the report urges Sri Lanka to adopt the following reforms:

- Actively promote an inclusive, pluralistic vision for Sri Lanka, based on non-discrimination and protection of human rights for all, and in line with the 2030 Sustainable Development Agenda;

- Ensure constitutional and legislative reforms address recommendations made by United Nations human rights mechanisms and the resolutions of the Human Rights Council;

- 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 systematically investigated and punished;

- Order all security agencies to immediately end all forms of surveillance and harassment of and reprisals against human rights defenders, social actors, and victims of human rights violations;

- Promptly, thoroughly, and impartially investigate and prosecute all allegations of gross human rights violations and serious violations of international humanitarian law, including torture and ill-treatment, and give the highest priority to ensuring accountability in long-standing emblematic cases;

- Remove from office security personnel and other public officials credibly implicated in human rights violations, in compliance with human rights standards; implement other reforms of the security sector to strengthen and ensure accountability and civilian oversight;

- Ensure structural safeguards for the Human Rights Commission to function independently and receive adequate resources;

- Ensure an environment in which the Office on Missing Persons and Office for Reparations can operate effectively and independently; provide both Offices with sufficient resources and technical means to effectively fulfil their mandate; and proceed with interim relief measures for affected vulnerable families with a gender focus, notwithstanding their right to effective and comprehensive reparations and rights to truth and justice;

- Establish a moratorium on the use of the Prevention of Terrorism Act for new arrests until it is replaced by legislation that adheres to international best practices;

- Establish standard procedures for the granting of pardons or other forms of clemency by the President, including subjecting it to judicial review, and excluding grave human rights and international humanitarian law violations;

- Honour its standing invitation to Special Procedures by scheduling renewed country visits by relevant thematic mandate holders; continue engagement with treaty bodies; and seek continued technical assistance from OHCHR in implementing the recommendations of UN human rights mechanisms. 

 

The High Commissioner urges that the Human Rights Council and Member States do the following:

- Request OHCHR to enhance its monitoring of the human rights situation in Sri Lanka, including progress towards accountability and reconciliation, and report regularly to the Human Rights Council;

- Support a dedicated capacity to collect and preserve evidence for future accountability processes, to advocate for victims and survivors, and to support relevant judicial proceedings in Member States with competent jurisdiction.

- 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 the principles of extraterritorial or universal jurisdiction.

- Explore possible targeted sanctions such as asset freezes and travel bans against credibly alleged perpetrators of grave human rights violations and abuses;

- Apply stringent vetting procedures to Sri Lankan police and military personnel identified for military exchanges and training programmes;

- Prioritise support to civil society initiatives and efforts for reparation and victims’ assistance and prioritise victims and their families for assistance in their bilateral humanitarian, development, and scholarship programmes;

- Review asylum measures with respect to Sri Lankan nationals to protect those facing reprisals and avoid any refoulement in cases that present real risk of torture or other serious human rights violations

The High Commissioner urges further UN entities to:

- Ensure that the Secretary-General’s Call to Action on human rights guides all United Nations policy and programmatic engagement in Sri Lanka;

- Ensure that all development programmes are founded on principles of inclusion, non-discrimination, and support for effective, accountable, and inclusive institutions, in line with the 2030 Sustainable Development Agenda;

- Incorporate strict human rights due diligence in engagement with the security forces and all bodies under the purview of the Ministry of Defence or the Ministry Public Security;

- Whilst fully understanding force generation challenges in the context of UN peacekeeping, keep under review Sri Lanka’s contributions to UN peacekeeping operations and screening systems for Sri Lanka personnel.

 

“To me, this is worse than previous reports because they are referring also to last year with passing reference to the war, saying there is now a dangerous trend emerging,” said Sri Lanka’s foreign secretary Admiral Jayanath Colombage. “We believe these reports [of the High Commissioner] are based on shadow reporting from here and the Tamil diaspora’s influence,” added Colombage, who himself stands accused of being complicit in torture. “They are not bona fide.”

“It refers to people against whom nothing has been proven,” he added. “They are accused. There are certain things in the report that we feel are completely not required at this juncture."

Last week Colombage said his regime was firm on withdrawing from a UN resolution on accountability, as he slammed the global body, claimed there was an “ulterior motive” behind calls for a justice mechanism and claimed that thousands of forcibly disappeared Tamils are abroad “living somewhere”

The full text of the leaked report is detailed below:

“Nearly 12 years on from the end of the war, domestic initiatives for accountability and reconciliation have repeatedly failed to produce results, more deeply entrenching impunity, and exacerbating victims’ distrust in the system.  Sri Lanka remains in a state of denial about the past, with truth-seeking efforts aborted and the highest State officials refusing to make any acknowledgement of past crimes. This has direct impact on the present and the future. The failure to implement any vetting or comprehensive reforms in the security sector means that the State apparatus and some of its members credibly implicated in the alleged grave crimes and human rights violations remain in place. The 2015 reforms that offered more checks and balances on executive power have been rolled back, eroding the independence of the judiciary and other key institutions further.

“The beginnings of a more inclusive national discourse that promised greater recognition and respect of and reconciliation with minority communities have been reversed. Far from achieving the “guarantees of non-recurrence” promised by resolution 30/1, Sri Lanka’s current trajectory sets the scene for the recurrence of the policies and practices that gave rise to grave human rights violations. While fully appreciating the challenges posed by the COVID-19 pandemic, the High Commissioner is deeply concerned by the trends emerging over the past year, which represent clear early warning signs of a deteriorating human rights situation and a significantly heightened risk of future violations, and therefore calls for strong preventive action. Despite the Government’s stated commitment to the 2030 Agenda, Tamil and Muslim minorities are being increasingly marginalised and excluded from the national vision and Government policy, while divisive and discriminatory rhetoric from the highest State officials risks generating further polariaation and violence.

“The High Commissioner is concerned that the emergency security deployments that followed the Easter Sunday terrorist attacks in 2019 have evolved into an increased militarisation of the State. The Government has appointed active and former military personnel, including those credibly implicated in war crimes to key positions in the civilian administration, and created parallel task forces and commissions that encroach on civilian functions. Combined with the reversal of important institutional checks and balances on the executive by the 20th Constitutional Amendment, this trend threatens democratic gains.

“The High Commissioner is alarmed that the space for civil society, including independent media, which had widened in recent years, is rapidly shrinking. The High Commissioner urges the authorities to immediately end all forms of surveillance, including intimidating visits by State agents and harassment against human rights defenders, lawyers, journalists, social actors and victims of human rights violations and their families, and to refrain from imposing further restrictive legal measures on legitimate civil society activity.

“The Human Rights Council therefore is – once again – at a critical turning point in its engagement with Sri Lanka. Twice before, the Council has leant its support to domestic accountability and reconciliation initiatives, culminating in resolution 30/1. The Government has now demonstrated its inability and unwillingness to pursue a meaningful path towards accountability for international crimes and serious human rights violations, and signalled instead a fundamentally different approach which focusses on reparation and development but threatens to deny victims their rights to truth and justice and further entrench impunity.

“It is vital that the Human Rights Council takes further action on Sri Lanka for three important reasons. Firstly, the failure to deal with the past continues to have devastating effects on tens of thousands of survivors — spouses, parents, children, and other relatives — from all communities who continue to search for the truth about the fate of their loved ones, to seek justice and are in urgent need of reparations. Secondly, the failure to advance accountability and reconciliation undermines the prospects for sustainable peace, human and economic development in line with the 2030 Agenda and carries the seeds of repeated patterns of human rights violations and potential conflict in the future.

“Finally, the trends highlighted in this report represent yet again an important challenge for the United Nations, including the Human Rights Council, in terms of its prevention function. Independent review of the United Nations’ actions in 2009 in Sri Lanka concluded there had been a systemic failure of the prevention agenda as the conflict concluded.  The international community must not repeat those mistakes, nor allow a precedent that would undermine its efforts to prevent and achieve accountability for grave violations in other contexts.

“The High Commissioner welcomes the Government’s stated commitment to the 2030 Agenda and to continue some measures of peacebuilding, reparation and restitution, but Sri Lanka will only achieve sustainable development and peace if it ensures civic space and effectively addresses the institutionalised and systemic issue of impunity. However, by withdrawing its support for resolution 30/1 and related measures, and by repeatedly failing to undertake meaningful action across the full scope of that resolution, the Government has largely closed the possibility of genuine progress being made to end impunity through a domestic transitional justice process.

“In view of recent trends, the High Commissioner calls on the Human Rights Council to enhance its monitoring of the human rights situation in Sri Lanka, including progress in the Government’s new initiatives, and to set out a coherent and effective plan to advance accountability options at the international level.

“Member states have a number of options to advance criminal accountability and provide measures of redress for victims. In addition to taking steps towards the referral of the situation in Sri Lanka to the International Criminal Court, Member States can actively pursue investigation and prosecution of international crimes committed by all parties in Sri Lanka before their own national courts, including under the principles of extraterritorial or universal jurisdiction. The High Commissioner encourages Member States to work with OHCHR, victims and their representatives to promote such avenues for accountability, including through opening investigations into possible international crimes, and to support a dedicated capacity to advance these efforts.

“Member States can also apply targeted sanctions, such as asset freezes and travel ban against State officials and other actors credibly alleged to have committed or be responsible for grave human rights violations or abuses, as well as support initiatives that provide practical benefits to victims and their families.

Recommendations

The High Commissioner recommends that the Government of Sri Lanka:

- Actively promote an inclusive, pluralistic vision for Sri Lanka, based on non-discrimination and protection of human rights for all, and in line with the 2030 Sustainable Development Agenda;

- Ensure constitutional and legislative reforms address recommendations made by United Nations human rights mechanisms and the resolutions of the Human Rights Council;

- 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 systematically investigated and punished;

- Order all security agencies to immediately end all forms of surveillance and harassment of and reprisals against human rights defenders, social actors, and victims of human rights violations;

- Promptly, thoroughly, and impartially investigate and prosecute all allegations of gross human rights violations and serious violations of international humanitarian law, including torture and ill-treatment, and give the highest priority to ensuring accountability in long-standing emblematic cases;

- Remove from office security personnel and other public officials credibly implicated in human rights violations, in compliance with human rights standards; implement other reforms of the security sector to strengthen and ensure accountability and civilian oversight;

- Ensure structural safeguards for the Human Rights Commission to function independently and receive adequate resources;

- Ensure an environment in which the Office on Missing Persons and Office for Reparations can operate effectively and independently; provide both Offices with sufficient resources and technical means to effectively fulfil their mandate; and proceed with interim relief measures for affected vulnerable families with a gender focus, notwithstanding their right to effective and comprehensive reparations and rights to truth and justice;

- Establish a moratorium on the use of the Prevention of Terrorism Act for new arrests until it is replaced by legislation that adheres to international best practices;

- Establish standard procedures for the granting of pardons or other forms of clemency by the President, including subjecting it to judicial review, and excluding grave human rights and international humanitarian law violations;

- Honour its standing invitation to Special Procedures by scheduling renewed country visits by relevant thematic mandate holders; continue engagement with treaty bodies; and seek continued technical assistance from OHCHR in implementing the recommendations of UN human rights mechanisms.

The High Commissioner recommends that the Human Rights Council and Member States to:

- Request OHCHR to enhance its monitoring of the human rights situation in Sri Lanka, including progress towards accountability and reconciliation, and report regularly to the Human Rights Council;

- Support a dedicated capacity to collect and preserve evidence for future accountability processes, to advocate for victims and survivors, and to support relevant judicial proceedings in Member States with competent jurisdiction.

- 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 the principles of extraterritorial or universal jurisdiction.

- Explore possible targeted sanctions such as asset freezes and travel bans against credibly alleged perpetrators of grave human rights violations and abuses;

- Apply stringent vetting procedures to Sri Lankan police and military personnel identified for military exchanges and training programmes;

- Prioritise support to civil society initiatives and efforts for reparation and victims’ assistance and prioritise victims and their families for assistance in their bilateral humanitarian, development, and scholarship programmes;

- Review asylum measures with respect to Sri Lankan nationals to protect those facing reprisals and avoid any refoulement in cases that present real risk of torture or other serious human rights violations.

 

The High Commissioner recommends that United Nations entities:

- Ensure that the Secretary-General’s Call to Action on human rights guides all United Nations policy and programmatic engagement in Sri Lanka;

- Ensure that all development programmes are founded on principles of inclusion, non-discrimination, and support for effective, accountable, and inclusive institutions, in line with the 2030 Sustainable Development Agenda;

- Incorporate strict human rights due diligence in engagement with the security forces and all bodies under the purview of the Ministry of Defence or the Ministry Public Security;

- Whilst fully understanding force generation challenges in the context of UN peacekeeping, keep under review Sri Lanka’s contributions to UN peacekeeping operations and screening systems for Sri Lanka personnel.

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