III. Legal FrameworkSri Lanka’s obligations under international lawSri Lanka is party to the major international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR)30 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.31 Sri Lanka is also obliged to abide by international humanitarian law (the laws of war), which regulates the conduct of hostilities and protects persons affected by armed conflict, including civilians and captured combatants. The hostilities between the Sri Lankan government and the LTTE meet the criteria of a non-international armed conflict under the 1949 Geneva Conventions, and Sri Lanka and the LTTE thus are required to adhere to Common Article 3 of the 1949 Geneva Conventions which applies to internal armed conflict and customary international humanitarian law.32 In addition, Sri Lanka should follow the standards set out in the 1992 UN General Assembly's Declaration on the Protection of All Persons from Enforced Disappearances (the “Declaration on Enforced Disappearances”).33 Although a non-binding standard, the Declaration reflects the consensus of the international community against this type of human rights violation and provides authoritative guidance as to the safeguards that must be implemented in order to prevent it. The prohibition against enforced disappearances has recently been reinforced by the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance (Convention against Enforced Disappearances).34 This multinational treaty was open for signature on February 6, 2007, and at the time of writing, 71 countries had signed the convention.35 Sri Lanka has not signed the Convention. Since 1984 the Sri Lankan government has repeatedly declared a state of emergency in the country. Under the ICCPR, states are allowed to suspend temporarily (or derogate from) certain provisions during an officially proclaimed “public emergency which threatens the life of the nation,” but only to the extent strictly necessary under the circumstances.36 However, certain rights, including the right to life and protection from torture, are consider non–derogable and thus can never be suspended.37 The Declaration on Enforced Disappearances unequivocally states that “no circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.”38 Prohibition of enforced disappearancesThe UN Declaration on Enforced Disappearances describes “disappeared” persons as those who are “arrested, detained, or abducted against their will or otherwise deprived of liberty by government officials, or by organized groups or private individuals acting on behalf of, or with the direct or indirect support, consent, or acquiescence of the government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or by a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.”39 Enforced disappearances constitute “a multiple human rights violation.”40 They violate the right to life, the prohibition on torture and cruel, inhuman, and degrading treatment, the right to liberty and security of the person, and the right to a fair and public trial. These rights are set out in the ICCPR and the Convention against Torture.41 The UN Declaration on Enforced Disappearances recognizes the practice of “disappearance” as a violation of the rights to due process, to liberty and security of a person, and to freedom from torture. It also contains a number of provisions aimed at preventing “disappearances,” stipulating that detainees must be held in officially recognized places of detention, of which their families must be promptly informed; that they must have access to a lawyer; and that each detention facility must maintain an official up-to-date register of all persons deprived of their liberty.42 International humanitarian law also provides protection against enforced disappearances by prohibiting acts that precede or follow a “disappearance.” Common Article 3 of the Geneva Conventions requires that persons taken into custody, whether civilians or captured combatants, be treated humanely in all circumstances. Such persons may never be subjected to murder, mutilation, cruel treatment or torture, or the passing of sentences and carrying out of executions, without a proper trial by a regularly constituted court.43 Enforced disappearances are considered a violation of customary international humanitarian law.44 An enforced disappearance committed as part of a widespread or systematic practice constitutes a crime against humanity, a term that refers to acts which, by their scale or nature, outrage the conscience of humankind. This has been recognized under the Rome Statute of the International Criminal Court, the Declaration on Enforced Disappearances, and the Convention against Enforced Disappearances.45 Abductions perpetrated by the LTTE, which are often followed by summary executions, would also qualify as enforced disappearances under international human rights law if carried out in the areas where the LTTE has effective control and acts as de facto government authority. While in government-controlled areas these LTTE crimes would not technically qualify as “disappearances,” this should not lead to any confusion about their nature; abductions are serious human rights abuses and violate the LTTE’s obligations under international humanitarian law, specifically Common Article 3 of the Geneva Conventions. Duty to investigate and to establish accountabilityUnder international law, Sri Lanka has a duty to investigate serious violations of human rights and to punish the perpetrators.46 States are obliged to ensure that enforced disappearances are considered crimes by law, and to prosecute any person who commits, orders, attempts to commit, or otherwise participates in an enforced disappearance, or has responsibility as a superior.47 The Declaration on Enforced Disappearances emphasizes that it is the state’s obligation to ensure that persons having knowledge of an enforced disappearance have the right “to complain to a competent and independent State authority and to have that complaint promptly, thoroughly and impartially investigated by that authority.” Even in the absence of a formal complaint, the state should promptly refer the matter to the appropriate authority for investigation whenever there are reasonable grounds to believe that an enforced disappearance has been committed. When the facts disclosed by an official investigation so warrant, any person alleged to have perpetrated an act of enforced disappearance is to be brought before competent civil authorities for the purpose of prosecution and trial.48 International law considers a “disappearance” to be a continuing offense so long as the state continues to conceal the fate or the whereabouts of the “disappeared” person. The perpetrators of “disappearances” should not benefit from any special amnesty or other measures that might exempt them from a criminal proceeding or sanction.49 The Convention against Enforced Disappearances calls on states to investigate abductions and other acts that fall into the definition of a “disappearance” committed by non-state actors and to bring those responsible to justice.50 In cases where “complaints by relatives or other reliable reports” suggest that a “disappearance” has resulted in the unnatural death of the individual in state custody, Sri Lankan authorities—in accordance with the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions—should launch a thorough, prompt, and impartial investigation to “determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death.” The investigation should result in a publicly available written report.51 In its resolutions, the UN General Assembly has repeatedly called on governments to devote appropriate resources to searching for the “disappeared” and to “undertake speedy and impartial investigations.”52 It has urged states to ensure that law enforcement and security authorities are fully accountable in the discharge of their duties, and emphasized that such accountability must include “legal responsibility for unjustifiable excesses which might lead to enforced or involuntary disappearances and to other violations of human rights.”53 Redress for victimsUnder international human rights law, Sri Lanka is obliged to provide reparations to victims of serious human rights violations. The ICCPR requires states to provide an “effective remedy” for violations of rights and freedoms and to enforce such remedies.54 The UN Human Rights Committee has noted that “reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.”55 Guidance on reparation to victims can be found in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Principles reaffirm that a state should provide adequate, effective, and prompt reparation to victims for acts or omissions constituting violations of international human rights and humanitarian law norms.56 The right to reparation is of particular importance as a way of establishing truth and responsibility in the case of enforced disappearances, which are “continuing human rights violations committed with the very intention of evading responsibility, truth and legal remedies.”57 The Declaration and the Convention against Enforced Disappearances specifically reaffirm the right of victims—defined in the Convention as “any individual” who has suffered harm as the direct result of an enforced disappearance—to obtain reparation and compensation in the form of material and moral damages as well as restitution, rehabilitation, satisfaction, including restoration of dignity and reputation, and guarantees of non-repetition.58 The Convention against Enforced Disappearances also establishes the responsibility of the state to “take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains,” and recognizes the right of victims “to know the truth”—regarding the circumstances of the enforced disappearance, the progress and results of the investigation, and the fate of the disappeared person.59 This right was reaffirmed in a 2005 resolution by the UN Commission on Human Rights.60 Sri Lankan national lawIn line with international standards, Sri Lanka’s constitution guarantees fundamental human rights, including the right to life, liberty, and security of person, the right to a fair trial, and the prohibition against torture. However, emergency rule has been in place with only short intervals of constitutional rule since 1971, and these guarantees have been superseded by emergency laws and regulations. National and international legal experts have repeatedly criticized the Public Security Ordinance (PSO) of 1947 and emergency laws enacted by various Sri Lankan governments in pursuance of powers granted by the ordinance.61 These laws not only contradict international standards and undermine the rights enshrined in Sri Lanka’s constitution,62 but essentially create a legal framework conducive to a wide range of human rights violations, including enforced disappearances.63 The two Emergency Regulations currently in force—the Miscellaneous Provisions and Powers of August 2005 and the Prevention and Prohibition of Terrorism and Specified Terrorist Activities of December 2006—are no exception in this respect. Human Rights Watch’s 2007 report on the conflict in Sri Lanka, Return to War, provides a detailed analysis of these regulations, which grant security forces sweeping powers of arrest and detention, unnecessarily restrict freedom of movement, criminalize a range of peaceful activities protected under Sri Lankan and international law, and introduced a wide immunity clause shielding members of the security forces from criminal prosecution.64 Several provisions of the Emergency Regulations are of particular concern in relation to the issue of enforced disappearances. In its June 2007 report, the International Crisis Group noted that “arrests under the Emergency Regulations are sometimes hard to distinguish from enforced disappearances, as when non-uniformed government agents arrest people without announcing under what authority they are acting, the reason for the arrest or where the arrested person is being taken.”65 Indeed, the 2005 Emergency Regulations enable security forces to arrest without a warrant any person “acting in any manner prejudicial to the national security or to the maintenance of public order, or to the maintenance of essential services.” The term “prejudicial to the national security” is not further defined.66 The detention period following arrest under the regulations is limited to 90 days, yet in practice suspects may be detained indefinitely, as the police can get remands from magistrates and keep the detainees in custody without bail. In addition, the defense secretary can issue “preventive detention” orders to hold suspects for up to one year—no evidence is required, so long as the secretary is “of the opinion” that a preventive detention order is needed.67 Another key factor directly contributing to widespread “disappearances” is the lack of public information on detention facilities, which facilitates secret detention and prevents monitoring. The 2005 Emergency Regulations do not require officials to publish a list of authorized places of detention, in violation of international standards.68 The absence of this legal requirement in effect negates the ability of the Human Rights Commission to monitor the detention facilities. The Human Rights Commission Act requires the commission to be notified of every arrest and detention, but according to nongovernmental organizations and the UN Working Group, in practice, this requirement has been routinely ignored.69 The problem of secret detention is exacerbated by the fact that under the emergency laws, arrest and detention can be carried out by police, the armed forces (army, navy, or air force), or jointly. Given that security forces have conducted operations with non-state armed groups (see below), it is often impossible to establish which unit was responsible for the arrest and to which detention facility the individual apprehended was taken. This recreates the conditions under which widespread abuses went unchecked in the 1990s when, according to one report on Sri Lanka’s counterterrorism legislation, “disappearances became normal, because nobody knows who the arresting person is and where the victim is taken to.”70 In a number of cases documented by Human Rights Watch, family members of the “disappeared” stated that in response to their inquiries, the army and the police kept referring them from one to the other, each refusing to acknowledge responsibility for the arrests. In a June 2007 letter, Human Rights Watch asked the Sri Lankan government how many people it had arrested under the 2005 Emergency Regulations and where they were being held. The government did not provide a response, saying that these figures were being tabulated by the police.71 In November 2007, Human Rights Watch again asked the Sri Lankan police to provide statistics on the number of people detained under the two Emergency Regulations, charges brought against them, the number of cases that proceeded to trial, and the number of people released following the arrest. In a January 2, 2008, response to Human Rights Watch the national police repeated that “response will be submitted once statistics are compiled.”72 The delegation of broad powers of arrest and detention to the military—by the Emergency Regulations and by an April 2007 presidential “notification” issued pursuant to the terms of the Public Security Ordinance—raises serious concerns.73 Sri Lankan lawyers and human rights organizations as well as international groups have warned that in the country’s recent past, the granting of policing powers to the military led to widespread abuses, including torture and “disappearances.”74 The 2005 Emergency Regulations also re-introduced provisions allowing the disposal of dead bodies without public notification.75 In clear derogation from the procedures on inquests into deaths specified in the Sri Lankan Code of Criminal Procedure, the regulations give wide discretion to the deputy inspector general of the police to decide when an inquiry into a death caused by security forces takes place, and to dispose of bodies without disclosing the results of the post-mortem examination.76 These provisions effectively prevent proper investigations into custodial deaths and shield security forces from accountability for torture, disappearances, and extrajudicial executions.77 Further obstacles to accountability are created by the immunity clause contained in the Emergency Regulations (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) of 2006. Regulation 19 prohibits legal proceedings against a government official who commits a wrongful act while implementing the regulations—as long as he or she acted “in good faith and in the discharge of his official duties.” The 2006 Emergency Regulations give security forces a wide range of powers and leave victims of violations with virtually no opportunity for redress. Sri Lankan NGOs have noted that in the absence of independent review and given the notorious history of abuse and lack of accountability of security forces, this regulation “could easily become one that promotes impunity rather than providing for immunity for bona fide actions.”78 The Emergency Regulations contain several provisions that in principle are intended to prevent abuses, including the risk of “disappearances.” Persons arrested shall be turned over to the police within 24 hours and their family provided with an “arrest receipt” acknowledging custody. However exceptions undermine the scope of these protections. Rather than 24 hours, Regulation 68 allows a member of the armed forces, authorized by his commander, to keep a person in custody for up to seven days at a time for the purpose of questioning or for any matter connected to such questioning.79 The requirement to issue an “arrest receipt” does not apply to cases of preventive detention or arrests carried out by those authorized directly by the president.80 Failure to provide a receipt, or to explain why it was impossible to provide one, is punishable by fine and imprisonment. However, there is no indication that any members of the security forces have ever been charged with or prosecuted for this offense.81 Notably, in his response to Human Rights Watch’s inquiry, the national police stated that if the police officers fail to issue receipts they are “liable for disciplinary action.” The police did not specify what such disciplinary action could involve, but claimed that no instances of the police’s failure to issue an arrest receipt “have been reported so far.”82 Presidential directives to the security forces initially published in July 2006 and re-circulated in April 2007 instruct the security forces to respect basic human rights, including by providing information on the reasons for arrest, identifying themselves while carrying out the arrests, and allowing the arrested persons to inform the family members of their whereabouts. The directives also instruct the security forces to inform the Human Rights Commission within 48 hours of any arrest and allow the commission unimpeded access to all detainees.83 However, these directives remain largely declarations on paper—with no legal force and no penalties for non-compliance. Research conducted by Human Rights Watch and other organizations demonstrates that the security forces routinely ignore the instructions and face no consequences for doing so.84 In many of the cases documented in the Appendix to this report, police or army personnel conducting unlawful arrests that led to “disappearances” failed to introduce themselves or provide the families with any information regarding the whereabouts of the detainees. An HRC representative also told Human Rights Watch that it is always family members or human rights groups who inform his office about such “arrests” rather than the security forces themselves.85 30 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), U.N. Doc. A/6316 (1966), entered into force Mar. 23, 1976. Sri Lanka acceded to the ICCPR on June 11, 1980. 31 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/39/51, entered into force June 26, 1987. Sri Lanka ratified the Convention against Torture on February 2, 1994. 32 Sri Lanka ratified the four Geneva Conventions in 1959. The official commentary to the Geneva Conventions of 1949 by the International Committee of the Red Cross (ICRC) lists a set of conditions that provide guidance in defining a non-international (internal) armed conflict, foremost among them whether the insurgent party “possesses an organized military force, an authority responsible for its acts, [is] acting within a determinate territory and [is] having means of respecting and ensuring respect for the conventions.” Another important indication of the status of a given conflict is whether the government has deployed its regular armed forces against the insurgency. See International Committee of the Red Cross, Commentary, I Geneva Convention (Geneva: International Committee of the Red Cross, 1958), pp. 49-50. In Sri Lanka, the LTTE has an identifiable and organized command structure, is in de-facto control of part of the territory, and Sri Lankan armed forces have been deployed against the insurgency. 33 United Nations Declaration on the Protection of All Persons from Enforced Disappearances (Convention against Enforced Disappearances), adopted December 18, 1992, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992). 34 International Convention for the Protection of All Persons from Enforced Disappearance, adopted September 23, 2005, E/CN.4/2005/WG.22/WP.1/Rev.4 (2005). 35 The Convention against Enforced Disappearances will come into effect one month after 20 ratifications. Albania on November 8, 2007, became the first country to ratify the convention. See http://www.ohchr.org/english/bodies/ratification/16.htm. Sri Lanka has not yet signed the Convention against Enforced Disappearances. A number of nongovernmental organizations have called on Sri Lanka to do so in order to demonstrate its commitment to ending and preventing the “disappearances.” See e.g., “Sri Lanka - ICJ urges Sri Lanka to ratify Convention against Enforced Disappearances,” International Commission of Jurists, press release, January 24, 2007, http://www.icj.org/news.php3?id_article=4096&lang=en (accessed May 15, 2007). 36 ICCPR, Article 4(3). The rights under the ICCPR can be derogated from only where the signatory state has informed other member states through the auspices of the secretary-general of the United Nations. Sri Lanka has formally derogated in 1984, 1989, and 2000. 37 ICCPR, Article 4 (2). 38 Declaration on the Protection of all Persons from Enforced Disappearances, Article 7. 39 Declaration on the Protection of all Persons from Enforced Disappearances, Preamble. 40 United Nations Commission on Human Rights, “Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission Resolution 2001/46” (New York: United Nations, 2002), E/CN.4/2002/71, 36. 41 Under the ICCPR, no one should be subjected to arbitrary arrest or detention. An arrested person should be informed, at the time of arrest, of the reasons for his arrest and is to be promptly informed of any charges against him. Anyone arrested or detained on a criminal charge must be brought in a timely fashion before a judge or other officer authorized by law to exercise judicial power, and every person deprived of his or her liberty by arrest or detention has the right “to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” ICCPR, Article 9(4). Further protections are offered by Article 6 (the right to life), Article 7 (prohibition of torture), and Article 17 (protection from arbitrary interference with privacy, family and home). The rights under articles 9 and 17 are derogable during public emergencies, but even then the derogation should be proportional and subject to judicial control. States must provide careful justification for any specific measures based on a proclamation of a national emergency. The principles of legality and the rule of law require that the fundamental requirements of a fair trial be respected even under Emergency Regulations. UN Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003). 42 Declaration on the Protection of all Persons from Enforced Disappearances, Article 10. These provisions are further reinforced in the Article 17 of the Convention against Enforced Disappearances. 43 Geneva Conventions of 1949, Common Article 3. Further protection is provided by the Protocol II to the Geneva Conventions which sets out the minimum standards for treatment of persons deprived of their liberty during a conflict, which include access to relief and communication with relatives. It also details the due process requirements that apply to all persons detained in connection with offenses arising from a conflict, which include being charged without delay, the presumption of innocence, the prohibition on forced confessions, and the right to an adequate defense. Sri Lanka has not signed Protocol II, but many of its provisions are recognized as customary international law and are therefore also applicable. See Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.TS 609, adopted June 8, 1977, Article 5(2), Article 6. 44 See International Committee of the Red Cross (ICRC), Henckaerts & Doswald-Beck, eds., Customary International Humanitarian Law (Cambridge: Cambridge Univ. Press 2005), rule 98. 45 Rome Statute of the International Criminal Court, U.N. Doc. No. A/CONF. 183/9 (July 17, 1998), 37 I.L.M. 999, Article 7(1). Sri Lanka is not a signatory to the Rome Statute, but many of the definitions of crimes contained in the ICC are considered reflective of customary international law.; Declaration on the Protection of all Persons from Enforced Disappearances, Preamble; Convention against Enforced Disappearances, Article 5. 46 The duty to try and punish those responsible for grave violations of human rights has its legal basis, inter alia, in the International Covenant on Civil and Political Rights (Article 2); and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Articles 4, 5, and 7). 47 Independent expert Manfred Nowak in his 2002 report on “disappearances” to the UN Commission on Human Rights stated: “As the [UN] Human Rights Committee rightly concluded, in the case of particularly serious human rights violations, such as enforced disappearances, justice means criminal justice, and purely disciplinary and administrative remedies cannot be deemed to provide sufficient satisfaction to the victims. Perpetrators of enforced disappearance should, therefore, not benefit from amnesty laws or similar measures.” United Nations Commission on Human Rights, "Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission resolution 2001/46" (New York: United Nations, 2002), E/CN.4/2002/71. 48 Declaration on the Protection of all Persons from Enforced Disappearances, Articles 13 and 14. These provisions are reinforced in Articles 4, 6 and 12 of the Convention against Enforced Disappearances. The Convention also specifically provides that competent authorities examining the allegations of disappearances must “have the necessary powers and resources to conduct the investigation effectively, including access to the documentation and other information relevant to their investigation,” and “[h]ave access, if necessary with the prior authorization of a judicial authority, which shall rule promptly on the matter, to any place of detention or any other place where there are reasonable grounds to believe that the disappeared person may be present.” Ibid. article 12(3). The Convention against Enforced Disappearances also obliges states to take the necessary measures to prevent and punish delaying or obstructionist tactics by government officials; the failure to record information on detainees; and the refusal to provide information as required by law on detainees. Ibid. article 22. 49 Declaration on the Protection of all Persons from Enforced Disappearances, Article 18. 50 Convention against Enforced Disappearances, Article 3. 51 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. res. 1989/65, annex, 1989 U.N. ESCOR Supp. (No. 1) at 52, U.N. Doc. E/1989/89 (1989). Provision 9 of the Principles states:
Provision 17 of the Principles states:
52 Resolution on Disappeared Persons, adopted by the General Assembly during its 33rd session, UN G. A. Res. 33/173, adopted December 22, 1978. 53 Ibid. 54 ICCPR, Articles 2(3) and 9(5). 55 U.N. Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/74/CRP.4/Rev.6 (2004). 56 U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (December 16, 2005). 57 United Nations Commission on Human Rights, "Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission resolution 2001/46" (New York: United Nations, 2002), E/CN.4/2002/71. Nowak further emphasizes that in the case of disappearances the reparation is of utmost importance “not only as a matter of redress for the individual victims, but also as a pre-condition for establishing truth, justice and peace in the societies affected by such practices.” 58 Declaration on the Protection of all Persons from Enforced Disappearances, Article 19; Convention against Enforced Disappearances, Article 24. 59 Convention against Enforced Disappearances, Article 24. 60 The resolution, entitled “The Right to the Truth,” stresses “the imperative for society as a whole to recognize the right of victims of gross violations of human rights and serious violations of international humanitarian law, and their families… to know the truth regarding such violations, including the identity of the perpetrators and the causes, facts and circumstances in which such violations took place.” The resolution goes on to recognize “the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights.” U.N.C.H.R. Resolution 2005/66, adopted April 20, 2005. 61 See for example, N.Mahoran, Counterterrorism Legislation in Sri Lanka: Evaluating Efficacy (Washington DC: East-West Center Washington, 2006); Abizer Zanzi, “Sri Lanka’s Emergency Laws,” presented at States of Insecurity: ASymposium on Emergency Laws, Human Rights and Democracy, April 2002, http://www.india-seminar.com/2002/512/512%20abizer%20zanzi.htm (accessed August 15, 2007); “Sri Lanka Laws: Legislation and Emergency,” Report by the Centre for the Independence of Judges and Lawyers, September 9, 1998; “War, Peace and Governance in Sri Lanka,” Report by Center for Policy Alternatives, December 2006. 62 The emergency regulations have consistently deviated from international standards, such as the ICCPR and the Convention against Torture. Specifically, on their face and in practice the emergency regulations are in conflict with article 2(3) of the ICCPR, article 6 of the ICCPR on the inherent right to life and freedom from arbitrary deprivation of life, article 7 on the prohibition of torture and cruel, inhuman or degrading treatment or punishment, article 9(1) of the ICCPR on the rights of liberty and security and the prohibition of arbitrary arrest and detention, article 9(2) ICCPR on the right to be informed on the reason for one’s arrest, article 9(3) of the ICCPR on the right to be promptly produced before a judge, article 9(4) on the right to take proceedings before a court, article 9(5)of the ICCPR on the entitling of a victim of a human rights violation to compensation and article 14 on the right to a fair trial. While, as mentioned above, Sri Lanka on several occasions submitted its derogations from ICCPR to the UN Secretary-General, it often failed to indicate the specific provisions from which it has derogated and the reasons for the derogation. See “The State of Civil and Political Rights in Sri Lanka,” Asian Center for Human Rights, December 2003. 63 Reports by the Sri Lanka Commission of Inquiry into Involuntary Removal and Disappearance of Certain Persons and by the UN Working Group on Disappearances concluded that emergency laws were among the key reasons contributing to the spree of disappearances in the 1990s. See “Final Report of the Commission Of Inquiry into Involuntary Removal and Disappearance of Certain Persons (All Island),” 2001, http://www.disappearances.org/news/mainfile.php/frep_sl_ai/ (accessed August 15, 2007); UN Commission on Human Rights, “Report of the Working Group on Enforced or Involuntary Disappearances: Civil and Political Rights, Including Questions of Disappearances and Summary Executions: Report on the Visit to Sri Lanka by a Member of the Working Group on Enforced or Involuntary Disappearances,” E /CN.4 /Add.1/2000/64 (1999). 64 See Human Rights Watch, Sri Lanka – Return to War: Human Rights under Siege, vol. 19, no. 11(c), August 2007. For further analysis of the Emergency Regulations see Saliya Edirisinghe, “Emergency Rule 2005,” in Sri Lanka: State of Human Rights 2006 (Colombo: Law and Society Trust, 2007); International Crisis Group, “Sri Lanka’s Human Rights Crisis,” Asia Report no 135, June 14, 2007. 65 International Crisis Group, “Sri Lanka’s Human Rights Crisis,” Asia Report no 135, June 14, 2007. 66 Emergency (Miscellaneous Provisions and Powers) Regulations, The Gazette of the Democratic Socialist Republic of Sri Lanka Extraordinary, No.1405/14, August 13, 2005. Regulation 19. 67 Emergency (Miscellaneous Provisions and Powers) Regulation, Article 19 (1). In this respect, the current Emergency Regulations go even further than the earlier ones. Earlier versions stated that preventive detention was possible when the defense secretary is “satisfied upon the material presented to him, or upon such further additional material as may be called for by him” that it is necessary to detain the person in order to prevent him or her from committing certain kinds of acts. In its analysis of Sri Lanka’s emergency laws, Amnesty International noted that “this new wording will enable detention orders to be made in an even more arbitrary and capricious manner than was previously the case.” See Amnesty International, “Sri Lanka – New Emergency Regulations: Erosion of Human Rights Protections,” ASA 37/019/2000, July 1, 2000. 68 The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (principle 12) and the UN Standard Minimum Rules for the Treatment of Prisoners (rule 55), provide that “all detainees should only be kept in recognized places of detention.” Such places of detention should be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention. See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988); United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977. 69 UN Commission on Human Rights, “Report of the Working Group on Enforced or Involuntary Disappearances: Civil and Political Rights, Including Questions of Disappearances and Summary Executions: Report on the Visit to Sri Lanka by a Member of the Working Group on Enforced or Involuntary Disappearances,” E /CN.4 /Add.1/2000/64 (1999). The UN Working Group report noted that the requirement to notify the Human Rights Commission “seem not to be widely known by the law enforcement bodies and are often disregarded in practice.” 70 N. Mahoran, Counterterrorism Legislation in Sri Lanka: Evaluating Efficacy (Washington DC: East-West Center, Washington DC, 2006), p.33. 71 Sri Lankan government response to Human Rights Watch, July 12, 2007. 72 Response of the national police to Human Rights Watch, January 2, 2008. Human Rights Watch’s letter of inquiry and the response from the police can be found in Appendix II to this report. 73 See Order of the President Mahinda Rajapaksa under Chapter 40 of the Public Security Ordinance, The Gazette of the Democratic Socialist Republic of Sri Lanka Extraordinary,No. 1491/18, April 6, 2007. For a further discussion of the powers granted to the military under emergency laws, see Chapter IV, which addresses the responsibility of the military for enforced disappearances. 74 See for example, Saliya Edirisinghe, “Police Power to the Armed Forces under Emergency Law: Reflections on Recent Protests,” The Island, May 11, 2007; “Sri Lanka: Giving Police Powers to the Military Will Pave the Way to Torture Chambers in Military Camps,” Statement by the Asian Human Rights Commission, April 26, 2007, http://www.ahrchk.net/statements/mainfile.php/2007statements/1005/ (accessed August 20, 2007). 75 The provisions had been removed from the previous set of regulations on May 3, 2000. 76 Emergency (Miscellaneous Provisions and Powers) Regulations, The Gazette of the Democratic Socialist Republic of Sri Lanka Extraordinary, No.1405/14, August 13, 2005.Regulation 56 of the Emergency (Miscellaneous Provisions and Powers) Regulations No.1 of 2005 published in Gazette Extraordinary 1405/14 of August 13, 2005, states:
77 The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions found these provisions (which appeared in earlier Emergency Regulations) “wholly inadequate for the full and impartial investigation of a death caused by security forces,” and added that they “could be used to cover acts of extrajudicial execution committed by the security forces.” See “Report of the Special Rapporteur, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights resolution 1997/61 - Visit to Sri Lanka,” Doc. E/CN.4/1998/add.2, March 12, 1998. In respect to these provisions, an author of a comprehensive study on Sri Lanka counterterrorism law, N. Mahoran, quotes his August 2005 interview with a Sri Lankan army official who said that the provisions were inserted to avoid “unnecessary legal complications to the security forces that arise if inquests were conducted by medical practitioners.” See N. Mahoran, Counterterrorism Legislation in Sri Lanka: Evaluating Efficacy (Washington DC: East-West Center Washington, 2006), p.36. 78 “Statement on the Introduction of the Emergency (Prevention and Prohibition of Terrorism) Regulations 2006,” Center for Policy Alternatives, December 2006. 79 Emergency (Miscellaneous Provisions and Powers) Regulations, The Gazette of the Democratic Socialist Republic of Sri Lanka Extraordinary, No.1405/14, August 13, 2005. Regulation 68.1 and 68.2. 80 See Saliya Edirisinghe, “Emergency Rule 2005,” in Sri Lanka: State of Human Rights 2006, Law and Society Trust (Colombo, 2007). 81 For example, the 2002 US Department of State country report on Sri Lanka mentioned that no security personnel have been fined or imprisoned for failure to comply with the safeguard provisions embedded in the Emergency Regulations. See U.S. Department of State, Country Reports on Human Rights Practices for 2001: Sri Lanka, March 4, 2002, http://www.state.gov/g/drl/rls/ hrrpt/2001/sa/8241.htm (accessed August 20, 2007). See also International Crisis Group, “Sri Lanka’s Human Rights Crisis,” Asia Report no 135, June 14, 2007. 82 Response of the national police to Human Rights Watch, January 2, 2008. Human Rights Watch’s letter of inquiry and the response from the police can be found in Appendix II to this report. 83 “Secretary of Defense Re-circulates Presidential Directives on Protecting Fundamental Rights of Persons Arrested and/or Detained,” Statement by the Ministry of Defense, Public Security, Law and Order, April 25, 2007, http://www.defence.lk/new.asp?fname=20070425_02 (accessed August 16, 2007). 84 See, for example, International Crisis Group, “Sri Lanka’s Human Rights Crisis,” Asia Report no 135, June 14, 2007. 85 Human Rights Watch interview, name and place withheld to protect the witness, February 28, 2007. |