February 14, 2013

 

Human Rights Council

Office of the United Nations High Commissioner for Human Rights

Palais Wilson

52 rue des Pâquis

CH-1201 Geneva, Switzerland

 

Re: Sri Lanka

 

Your Excellency, 

We write to you regarding the upcoming Human Rights Council (HRC) discussion of Sri Lanka.

In March 2012 the HRC adopted a resolution (A/HRC/19/L.2/Rev1) regarding reconciliation and accountability in Sri Lanka. The resolution called upon the Sri Lankan government to fulfill its legal obligations toward justice and accountability, expeditiously provide a comprehensive action plan to implement the recommendations of its Lessons Learnt and Reconciliation Commission (LLRC), and address alleged violations of international law. It also encouraged the Office of the UN High Commissioner for Human Rights and other UN human rights envoys to assist Sri Lanka in implementing these steps.[1]

Sadly, the government has taken no significant steps to ensure justice and accountability. In its January 2013 update on its 2012 National Action Plan, the government reported that it had taken steps to implement the LLRC recommendations, yet it provided no evidence that meaningful actions had been taken. 

Several independent institutions, including the United Nations Panel of Experts (PoE) in its April 2011 report,[2] Human Rights Watch,[3] the International Crisis Group,[4] and others have reported numerous credible allegations of war crimes and other serious human rights abuses committed by government forces and the Liberation Tigers of Tamil Eelam (LTTE) during the armed conflict that ended in 2009. However, the government has taken no significant steps to undertake impartial and credible investigations of these alleged violations. The authorities have not reported any criminal prosecutions for serious rights abuses committed during the final years of the conflict. Indeed, thus far impunity for these abuses has been total.

In addition to the government’s failure to provide justice and accountability, the human rights situation in Sri Lanka has deteriorated since the March 2012 HRC session. The administration of President Mahinda Rajapaksa has increased its control over the legislative and judicial branches of government and decreased democratic space. In late 2012, the government effectively eliminated the independence of the Supreme Court by orchestrating the impeachment of the chief justice after she ruled a government-sponsored bill to be unconstitutional. Rajapaksa quickly installed a political ally with a long record of rejecting accountability for conflict abuses as the new chief justice. 

After last year’s HRC resolution, government officials and institutions made public and private threats against civil society members and media who supported the HRC resolution. State and government-friendly media denounced them as “traitors.” One cabinet member went so far as to threaten to “break the limbs” of several high-profile civil society members. Independent civil society members, human rights workers,and journalists continue to report threats, intimidation,and harassment.

The discussion below sets out Human Rights Watch’s concerns in more detail. In light of the failure of the Sri Lankan government to implement last year’s HRC resolution, it is clear that the only way to achieve genuine progress on justice and accountability is for the HRC to adopt a resolution calling on the Office of the High Commissioner for Human Rights to conduct an independent investigation into allegations of serious violations of international human rights and humanitarian law. We would be pleased to meet and discuss these issues further at your convenience.

 

Yours sincerely,

 

Brad Adams                                                                                                         Juliette De Rivero 

Asia Director                                                                                                         Geneva Advocacy Director

 

 

Sri Lanka since the March 2012 HRC Resolution

 

I. The March 2012 HRC Resolution and the Government’s Response

During the final months of the armed conflict with the Liberation Tigers of Tamil Eelam (LTTE) in 2009 and since, the human rights record of the administration of President Mahinda Rajapaksa has been abysmal. Impunity for past abuses has continued and democratic space has been severely narrowed. Despite credible allegations by both the United Nations Secretary-General’s Panel of Experts and the government’s own Lessons Learnt and Reconciliation Commission (LLRC) of numerous violations of the laws of war, the government undertook no serious investigations or prosecutions. When new graphic footage of atrocities emerged in the Channel 4 documentary The Killing Fields, the government simply denounced the documentary as a forgery planted by unknown forces who wanted to destabilize the country. In short, the government’s response to the documentary was the same as its responses to any allegations, namely to dismiss and deny them without investigating.

Because of the Sri Lankan government’s unwillingness to address these concerns, the UN Human Rights Council adopted a resolution in March 2012 that called on Sri Lanka to fulfill its legal obligations toward justice and accountability, and to expeditiously provide a comprehensive action plan to implement recommendations of the LLRC and also to address alleged violations of international law.

The government’s response to the resolution consisted of blustery denials and accusations that the international community of interfering in its domestic affairs.

National Action Plan

In July 2012, the government announced that it had adopted a “National Action Plan” to implement the LLRC recommendations. The National Action Plan called for the government to establish military courts of inquiry, to investigate civilian deaths, and prosecute wrongdoers. It set out a 12-month timeframe to conclude disciplinary inquiries and 24 months for prosecutions. But the government proposal left the responsibility for investigations with the military and police, the entities responsible for the abuses, using processes lacking in transparency.[5] The action plan has led to no significant improvements in the human rights situation, or any meaningful steps to end impunity.

In January 2013, the government published an update on the action plan. The update is full of explanations of actions taken by the authorities, but it makes clear that there have been no significant steps towards providing justice for victims of abuses. The following describes the main points of the update and the lack of necessary action:

·         Army court of inquiry: According to the update, the army courts of inquiry have interviewed 50 witnesses and were investigating over 50 incidents as identified in the LLRC report. A serious investigation into 50 cases would have resulted in many more than 50 interviews in six months. The action plan said that a final report on these investigations would be ready by mid-January 2013. However, that report has either not been completed or has not been made public. The army court of inquiry is fundamentally flawed as a mechanism for accountability given the poor record of the army in prosecuting its own for human rights violations. Instead, if the government were serious about accountability it would appoint an independent commission free of political influence and broad investigatory powers. This has not happened.

·         Trinco Five and ACF Killings: On January 2, 2006, five ethnic Tamil students were shot dead at the beachfront in Trincomalee. On August 4, 2006, 17 aid workers—16 ethnic Tamils and one Muslim—working for the Paris-based international humanitarian agency Action Contre la Faim (ACF) were gunned down at point-blank range. Despite strong evidence that government forces were involved in both these execution-style slayings, there have been no arrests for these crimes. These two incidents were among 16 prominent human rights cases included for investigation in the 2006 Presidential Commission of Inquiry. As a result of international pressure, an International Independent Group of Eminent Persons (IIGEP)—which included former Indian Chief Justice P.N. Bhagwati, Bernard Kouchner, and former UN special rapporteur Sir Nigel Rodley—was created to oversee the commission’s work to ensure independence and legitimacy. In practice the commission made it difficult for witnesses to testify and made no effort to remedy a botched police investigation. In April 2008 the IIGEP members withdrew because the IIGEP had “not been able to conclude ... that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards.” President Rajapaksa never released the commission’s final report (only a few of the cases were actually investigated) and leaked excerpts exonerated without basis the army and navy in the ACF killings.

The update on the action plan states that the files for these cases have been forwarded to the Attorney General’s office, but provides no further substantive information on what, if anything, the government is doing to investigate these incidents. After all these years of inaction, there is little reason to believe that any serious efforts are being made on these cases.

·         Treatment of detainees: During the course of Sri Lanka’s armed conflict, the government detained large numbers of alleged LTTE members under emergency laws and regulations that granted overly broad detention powers to the security forces. The LLRC recommended the governmentto provide numbers, names and places of location of all detainees in its custody. Among over 2,600 suspected LTTE members held at the end of the conflict, the action plan update states thatnearly 1,800 were sent to rehabilitation camps. It fails to provide critical information regarding their identities or whereabouts. The update says that the Attorney General has to decide whether or not to make the names and locations of remaining detainees public. There is no reason why, almost four years since the end of the war, thisinformation has not been divulged so that family members and others know who is being held, where, and on what basis.

·         Independence of police: With the conflict over, the LLRC recommended that the police should be removed from the control of the Ministry of Defence. The government saidthat parliamentary select committees would be tasked to determine steps toward this goal, but these committees have yet to be set up. In fact, there is no evidence to suggest that the government intends for the Ministry of Defence to cede its authority over the police forces. Placing the police under the Defence Ministry blurs the distinction between the role of the armed forces and law enforcement. Given the continued large military presence in the north and east, law and order issues involving members of the armed services remain a major concern. Leaving the police under the control of the Defence Ministry makes it even less likely that the police will investigate crimes in which it appears military personnel may have been involved.

Army Report on LLRC

Asecond government report on the LLRC recommendations was released in January 2013 by a specially appointed army commission. The report calls onthe government to conduct investigations into civilian deaths during the conflict, but largely exonerates government forces, stating that they acted in accordance with international humanitarian law, and followed similar procedures as those used by the UK, US, and NATO forces.

The army report reiterates the government’s longstanding argument that the LTTE committed all abuses attributed to government forces, including the shelling of hospitals that the Panel of Experts report concluded were fired by government forces. The report calls for the government to set up investigations into allegations of violations, stating that this is “imperative to clear the good name of the army.”  

The army report simply dismisses a key recommendation of the LLRC to demilitarize the north and east. The report says that army civil affairs officers should continue to assist the civilian authorities in various projects and calls on the government to task the army to build and run hotels in furtherance of this recommendation. The Defence Ministry and army websites catalogue the wide range of activities the army is already undertaking in the north and east. According to the army report, the army should be allowed to continue in all these roles.

The report also criticizes the police, civil service, and judiciary for failing in their duties to protect Sri Lankans against the threat of terrorism. It rejects the recommendation to de-link the police from the Defence Ministry, claiming this would lead to a deterioration in the already abysmal state of policing.

 

II. Universal Periodic Review

Sri Lanka’s November 2012 Universal Periodic Review (UPR) was an opportunity for the Sri Lankan government to address widespread concerns about past and ongoing human rights problems and to make commitments to resolve them. The UPR generated great interest, with 99 countries subscribed to the list of speakers. Twenty countries submitted questions in advance. Several nongovernmental organizations, including Human Rights Watch, submitted reports in advance of the hearings.[6]

During the Sri Lankan delegation’s presentation, officials often referred to the “ill-conceived” March HRC resolution, continuing its previous rejection of the resolution. The Sri Lankan delegation’s response was to trumpet its new National Human Rights Action Plan (NHRAP) and its previously announced National Action Plan to implement LLRC recommendations. Both were largely public relations exercises, containing unrealistic time frames and non-measurable progress. While there were some positive developments, such as in demining and rehabilitation of ex-LTTE combatants, there were no direct responses to many of the concerns raised. In spite of credible accounts of threats and intimidation against media and civil society, for example, the delegation simply said that freedom of expression, thought, conscience, and assembly were constitutional rights, and did not engage in discussion of specific cases.

At the end of the UPR, the troika of rapporteurs reported that the Sri Lankan government had rejected 100 recommendations from member states. Among the recommendations rejected were calls to fully implement all the LLRC recommendations, as well as those of the UN Panel of Experts report. The government rejected calls to ratify the Optional Protocol of the Convention against Torture, the Rome Statute of the International Criminal Court, and the International Convention for the Protection of All Persons from Enforced Disappearance. It refused to accept recommendations to cooperate with and invite the various United Nations Special Procedures. It rejected every single recommendation on the protection of human rights defenders.

 

III. Ongoing Human Rights Violations

Arbitrary Detention, Torture, and Enforced Disappearances

The police and security forces continue to enjoy overly broad and vague detention powers. The president has issued monthly decrees granting the armed forces search and detention powers, effectively granting police powers to the army. An LLRC recommendation to remove the police from the purview of the Ministry of Defence remains unimplemented.

Despite the end of the formal state of emergency in 2011, the Prevention of Terrorism Act remained in place, giving police broad powers over suspects in custody. The government continued to hold without trial several thousand people initially detained under emergency regulations. Although emergency regulations were lifted in September 2011, the 1979 Prevention of Terrorism Act (PTA) and other laws and regulations permitting detention without charge for up to 18 months leave an abusive detention regime in place. In spite of public commitments, the government also failed to publish comprehensive lists of the names of detainees, as well as places of detention, stating that it had to consult the attorney general before it could do so.

Local rights groups reported arbitrary arrests, new enforced disappearances, abductions, and killings in the north and the east in 2012. Tamils with alleged links to the LTTE continue to be at risk of arbitrary arrests, torture, and disappearance. Four Tamil students who tried to publicly commemorate the LTTE dead in Jaffna were detained in December and sent for months-long rehabilitation in military custody, in violation of their basic due process rights.

Tamils who returned to Sri Lanka from abroad, including deported asylum seekers, reported being detained and accused of having links to the LTTE or taking part in anti-government activities abroad. A number reported being tortured by the Central Intelligence Department, and other security forces. On the basis of these reports, courts in the United Kingdom granted injunctions to stop the deportation of more than 30 Tamil asylum seekers.

Attacks on Civil Society

Free expression remains under assault. Government officials and state-owned media publicly threatened civil society and human rights activists who spoke in favor of the March HRC resolution. Their names and faces were publicized and they were branded as traitors. The government took no action against a cabinet minister, Mervyn de Silva, who publicly threatened activists who express support for the resolution.

The media reported increased surveillance and clampdowns on free speech. In June 2012, the Criminal Investigation Department raided the offices of the Sri Lanka Mirror, a news website, and the Sri Lanka X Newswebsite of the opposition United National Party. The authorities confiscated computers and documents and arrested nine people on the grounds that the websites were “propagating false and unethical news on Sri Lanka.”

The government shut down at least five news websites critical of the government in 2012 and put in place onerous registration requirements and fees for all web-based media services. Many news websites moved their host proxies abroad to avoid censorship. Frederica Jansz, then editor of the Sunday Leader newspaper, reported that Defence Secretary Gotabhaya Rajapaksa threatened her in July when she criticized his decision to reroute a government plane in order to pick up a puppy from Switzerland. There were reports in newspapers of other independent or outspoken members of the media being pushed out of their positions due to political pressure. The previous Sunday Leader editor, Lasantha Wickrematunge, was gunned down in broad daylight near a police station in 2009 by unknown assailants. No investigation has been conducted into his death. Jansz resigned as editor of the newspaper in September 2012, claiming that she had been ordered by the new owner of the paper to refrain from publishing any articles that were critical of the “first family.”

There were no further developments in the case of Prageeth Ekneligoda, a contributor to Lanka e-news, who “disappeared” on January 24, 2010 (see below).

Leading civil society members received threatening letters following protests at the impeachment process overthe chief justice of the Supreme Court. Members of the bar association and others who demonstrated against the impeachment reported being beaten and threatened by government supporters in plain view of the police, who did nothing to protect them from the attacks.

Assault on Independence of the Judiciary

The Sri Lankan government’s 2010 ratification of the 18th Amendment to the constitution had far-reaching implications for the independence of the judiciary and other public service institutions. In late 2012, the government dealt a serious blow to this notion of the independence and separation of powers by orchestrating the impeachment of the chief justice, Shirani Bandaranaik. The impeachment hearings, conducted by a parliamentary committee consisting largely of members loyal to the government, were riddled with due process concerns and were ruled by both the Supreme Court and the Court of Appeals to be unconstitutional.

The government ignored the Supreme Court’s ruling and appointed Mohan Peiris, a former attorney general and ruling party stalwart overtly hostile to accountability for human rights abuses. In November 2011, Peiris told the UN Committee against Torture in Geneva that the “disappeared” journalist Prageeth Eknalogoda was alive and living of his own volition outside the country. But the following June, when called to testify before a Sri Lankan magistrate’s court about Eknalogoda’s whereabouts, Peiris said he could not recall where he got the previous information. When he was attorney general, Peiris was consistently hostile to human rights investigations and actively impeded the work of the International Independent Group of Eminent Persons (IIGEP), which included former Indian Chief Justice P.N. Bhagwati, Bernard Kouchner, and former UN special rapporteur Nigel Rodley. The IIGEP was appointed by international donor countries and the Sri Lankan government to monitor the work of the 2006 Presidential Commission of Inquiry, which was established to investigate 16 incidents of killings, enforced disappearances, and other serious abuses by both sides to the conflict. The IIGEP later abandoned its investigations, citing a lack of government cooperation. One of the IIGEP’s central findings was that sustained inappropriate and impermissible interference from the attorney general and his office compromised the group’s investigations.

The North and East

The last of the nearly 300,000 civilians arbitrarily detained in military-controlled detention centers after the war—including Menik Farm near Vavuniya, which was finally closed in September 2012—have largely moved back into communities, although not necessarily to their home areas. Tens of thousands of persons still live with host families or in temporary accommodation. Several thousand are not able to return because their home areas have not been demined. Although the government claims to have considerably decreased its military presence in the north and east, military personnel still frequently intervene in civilian life. A Defence Ministry video on the north and east shows the military formally involved in numerous civilian activities relating to education and religion, such as organizing school cricket competitions and celebrations in temples. An article on the army website shows a 180-acre farm run by the army that sells its produce in Jaffna. Fishermen and farmers complain about theongoingencroachment by the armed forces onto their coastal areas and land, impacting their livelihoods.

Human Rights Watch has talked to people who live, work, and travel in these areas who describe living in a state of surveillance and fear. People are afraid to report abuses to the largely Sinhala-speaking security forces, and impunity for ongoing abuses continues to thrive. Human rights defenders interviewed by Human Rights Watch said that it is very difficult to conduct safe interviews with victims, which in turn makes reporting impossible. Even if victims or witnesses are willing to talk, the human rights workers interviewing them are afraid to take notes or to go into details in case they might be coerced to reveal the information. Human Rights Watch has talked to two Tamil men who were tortured in custody and have gone into hiding in the east of the country. Their fear is so intense that even approaches by the international community to help them are viewed with suspicion. Many refer to the military presence as a “hostile occupying force.” 


[1]The resolutions states that “[T]he report of the Lessons Learnt and Reconciliation Commission of Sri Lanka does not adequately address serious allegations of violations of international law and calls upon the Government of Sri Lanka to implement the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission and to take all necessary additional steps to fulfill its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans; requests the Government of Sri Lanka to present, as expeditiously as possible, a comprehensive action plan detailing the steps that the Government has taken and will take to implement the recommendations made in the Commission’s report, and also to address alleged violations of international law; and encourages the Office of the United Nations High Commissioner for Human Rights and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the above-mentioned steps.” “Human Rights Council adopts seven texts on Sri Lanka, Adequate Housing, Right to Food, and Extends the mandate on Cultural Rights,” UNHCR News Story, March 22, 2012,  http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12001&LangID=E (accessed February 13, 2013).

[2]UN, “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka,” March 31, 2011, http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf (accessed February 13, 2013).

[3]Ibid; Human Rights Watch, Sri Lanka – War on the Displaced, February 20, 2009, http://www.hrw.org/reports/2009/02/19/war-displaced; Human Rights Watch, Sri Lanka – Legal Limbo, February 2, 2010, http://www.hrw.org/reports/2010/02/02/legal-limbo-0.

[4]International Crisis Group, “War Crimesin Sri Lanka,” May 17, 2010, http://www.crisisgroup.org/en/regions/asia/south-asia/sri-lanka/191-war-crimes-in-sri-lanka.aspx (accessed February 13, 2013).

[5]Policy Research & Information Unit of the Presidential Secretariat of Sri Lanka, “National Plan of Action to Implement the Recommendations of the LLRC,” July 26, 2012,  http://www.priu.gov.lk/news_update/Current_Affairs/ca201207/20120726national_plan_action.htm (accessed February 13, 2012).

[6]“Sri Lanka: UPR Submission 2012,” Human Rights Watch news release, March 2, 2012, http://www.hrw.org/news/2012/03/02/sri-lanka-upr-submission-2012.

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