UN human rights experts have expressed their deep concern about the worsening human rights situation in Sri Lanka and have called on the UN Human Rights Council (UNHRC) 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, including the possibility of establishing an impartial and independent international accountability mechanism, and for UN member states to emphasise human rights obligations in their engagement with Sri Lanka.

In an assessment published today by experts from ten Special Procedures, who have reported on Sri Lanka since 2015, outlined eight areas that should be in focus when the UN Human Rights Council reviews Sri Lanka’s human rights situation 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.

“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.

“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.”

“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.

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.”

The experts pointed out that in order to do advance accountability in Sri Lanka, 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.

The Experts: M. Clément Voule (Togo) is the Special Rapporteur on the rights to freedom of peaceful assembly and of association,the UN Working Group on Enforced or Involuntary Disappearances: Mr. Tae-Ung Baik (Chair-Rapporteur), Mr. Henrikas Mickevičius (Vice Chair), Ms. Aua Baldé, Mr. Bernard Duhaime, and Mr. Luciano Hazan, the UN Working Group on Arbitrary Detention: Ms Leigh Toomey (Chair-Rapporteur), Ms Elina Steinerte (Vice-Chair), Ms Miriam Estrada-Castillo, Mr Mumba Malila, Mr Seong-Phil Hong ,the Special Rapporteur on the independence of judges and lawyers Mr Diego Garcia-Sayan, the Special Rapporteur on minority issues Mr Fernand De Varennes, the Special Rapporteur on freedom of religion or belief Mr 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 Mr. Nils Melzer, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence Mr. Fabián Salvioli.

Read the full report here.

Increasing militarization

The experts expressed deep concern regarding the militarised response to the COVID-19 pandemic as well as the accelerated trend towards militarisation of civilian government functions. Particular concern has been expressed about the assimilation of non-military agencies under the purview of the Ministry of Defence, as well as of the appointment of several retired and active military officials, including persons accused of committing serious human rights violations, to senior civil administrative positions and as part of a series of “Presidential Task Forces”. The experts reiterated concerns raised regarding the appointment of General Shavendra Silva, who has allegedly been involved in serious human rights violations, to the position of Commander of the Sri Lankan Army and Acting Chief of Defence Staff in August 2019, as well as head of the National Operation Centre for the Prevention of the COVID-19 outbreak in March 2020. The military has been increasingly engaging again in activities that are within the purview of civilian authorities including with regard to land issues, the experts highlighted.

Restrictions on freedoms of peaceful assembly, association and expression

We are witnessing a shrinking civic space and increased restrictions of freedoms of peaceful assembly, association and expression in Sri Lanka, the experts said. Surveillance and scrutiny of civil society organizations including victim groups, women’s groups working closely with affected communities and human rights defenders, have persisted, aided by the fact that the NGO Secretariat has been placed under the control of the Defence Ministry since December 2019. In particular, the experts said they had received reports of questioning, intimidation, and harassment, including threats to families of the disappeared. Such developments have allegedly led representatives of some civil society and other organizations as well as journalists and writers to lose their employment, leave the country, scale back or close operations, and limit activism or association with victims and survivors.

The experts also highlighted that memorialisation efforts led by victims’ groups have been hampered through harassment, intimidation and obstruction. Similarly, the Sri Lankan police have consistently tried to obstruct protests organized by the families of the disappeared with interim orders from Magistrates and has also intimidated the organizers. 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. The government should refrain from using ill-suited counter-terrorism law and practice to manage the health pandemic, the experts warned.

Discrimination against vulnerable groups, incitement to hatred and violence against minorities

In the current environment, ethnic and religious minorities are being increasingly marginalized in national policies and processes. In particular, the Sri Lankan Government’s increasingly majoritarian, nationalist and populist rhetoric is threatening victims and minority communities. The UN experts said that land issues have been increasingly used to reinforce Sinhala-Buddhist majoritarianism including through the appointment of a Presidential task force for Archaeological Heritage in the Eastern Province which includes Buddhist monks who have been vocal about their anti-minority views, as well as military personnel. The attempts to hamper commemorating activities have also served to discriminately target minorities, particularly Tamils.

Additionally, high levels of hate speech, both on and offline seem to have spiked against ethnic, religious and other minorities, particularly Muslims. The Government’s failure to actively prevent such extremism, to investigate and hold those involved accountable has led to an increased marginalization and stigmatization of vulnerable minorities. On the contrary, the experts noted a continuous discriminative application of the legislation, particularly the PTA and ICCPR Act and their misuse against civil society.

They highlighted that a series of measures taken in the context of the COVID 19 pandemic clearly showed a lack of religious and cultural sensitivities to the dignity of the dead and the families, and discrimination against religious minorities. The Government’s imposition of forced cremation of deceased both confirmed and suspected of COVID-19 virus infection against the family’s wishes has led to deep anguish and stirred fear, anger and distrust among the Muslim minorities and other communities. There has been no established medical or scientific evidence in Sri Lanka or other countries that burial of dead bodies leads to increased risk of spreading communicable diseases such as COVID-19. The experts pointed out that they had urged the Government to stop the forced cremation and to provide remedy and ensure accountability for cremations that were carried out by error.

Legal safeguards, conditions of detention and prohibition of torture

Recent incidents such as deaths in prison following riots or breakouts in the context of the COVID-19 pandemic as well as deaths in custody occurred also in police stations, including allegedly as a result of torture show the persistence of patterns of the routine use of torture in detention and lack of investigation into these cases, forced confessions, reprisals against victims of torture and ill-treatment and appalling conditions of detention. The experts stressed that one of the enabler of such patterns, the Prevention of Terrorism Act (PTA), continues to be used to arbitrarily arrest and detain and to discriminately target individuals working on specific issues. No progress has been made with regard to the review of the PTA. In this context, the experts said it is crucial that UN Counter-Terrorism entities working with the government address clearly the human rights deficits of the existing counter-terrorism framework in Sri Lanka.

Enforced disappearances

Despite the scale and magnitude of enforced disappearances in Sri Lanka, the authorities have failed to show sufficient progress in investigating these cases, identify the whereabouts or fate of the victim, and hold perpetrators accountable, the UN experts said. Recent statements made by the Government including that steps may be taken “to issue death certificates or certificates of absence, while also providing livelihood and other assistance to affected families” have heightened fears amongst families with regards to the process going forward for finding out the fate and whereabouts of their disappeared relatives. The appointment in December 2020 as the new Chairperson to the Office on Missing Persons of the Justice Abeyratne raises concerns with regard to the independence of the OMP and risks to further erode the trust of the families of disappeared. He previously served as Chair of the Presidential Commission of Inquiry on alleged political victimisation, which has allegedly obstructed judicial proceedings on disappearance cases. War widows and women family members of the disappeared who play a key role in the search for truth, justice and accountability, as well as women activists who advocate on their behalf face particular risks. The experts had expressed concern regarding the harassment and the excessive use of force against demonstrators during a peaceful assembly for the International Day of the Victims of Enforced Disappearances held on 30 August 2020, in the districts of Jaffna and Batticaloa.

Impunity

The underlying issue fuelling the retrogression in human rights protection remains the prevailing impunity in the country, the UN human rights experts asserted. The Sri Lankan government’s failure to investigate and bring to account those responsible for ethnic violence, as well as the support provided to the Buddhist clergy led to continued harassment and discrimination against Muslims. Recent examples show clearly the current Government’s unwillingness aimed at ending impunity: the experts expressed concern at the establishment of a Presidential Commission of Inquiry to look into ‘alleged political victimization of public servants’ (PCOI), which sought to halt legal proceedings in ongoing disappearance cases as well as the granting of pardon to former Army Sergeant Sunil Ratnayake convicted for the murder of civilians, including children in the “Mirusuvil massacre”. The experts have also raised concerns on the general lack of progress and regression in the investigation and prosecution of the serious human rights violations committed during the war. While the Criminal Investigation Department (CID), under the previous administration, had made progress in investigating and prosecuting several cases of human rights violations, enabling some indictments and arrests, the progress has stalled under the current administration. Accountability efforts have been further obstructed by reported reprisals - including dismissal, travel bans and arrests-, against several members of the CID involved in the investigations of a number of high-profile killings, enforced disappearances and corruption.

Lack of progress in the transitional justice process

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, the experts said.

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.

Threats to independent institutions and the rule of law

Sri Lanka’s adoption of the 20^th amendment to the Constitution was highlighted as a threat to constitutional safeguards and checks and balances, particularly to the independence of the judiciary and other vital institutions. The Human Rights Commission (HRCSL) was noted as no longer independent, since its members are now appointed directly by the Sri Lankan president. Sri Lanka’s processes of appointing judges and other key members of the judiciary was also highlighted as failing to meet international standards relating to independence of the judiciary and separation of powers.