Waiting in Vain: Amnesty, HRW, ICJ, Asian Forum, IMADR and LRWC Call for Justice for Victims in Sri Lanka

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Geneva, 20 March 2019 - Amnesty International, Asian Forum for Human Rights and Development, Human Rights Watch, International Commission of Jurists, International Movement Against All Forms of Discrimination and Racism (IMADR) and Lawyers' Rights Watch Canada - Oral Statements today at the Interactive dialogue on the OHCHR report on Sri Lanka, at the 40th session of the UN Human Rights Council in Geneva.

Amnesty International

AI Index: ASA 37/0080/2019

20 March 2019

ORAL STATEMENT

ITEM 2: Interactive Dialogue on the Office of High Commissioner for Human Rights’ report on Sri Lanka A/HRC/40/23

UN Human Rights Council should maintain its scrutiny of Sri Lanka as justice remains elusive

Mr. President,

Amnesty International welcomes the report of the Office of the High Commissioner for Human Rights (OHCHR) on Promoting reconciliation, accountability and human rights in Sri Lanka. We share the High Commissioner’s concerns over the government’s slow progress in establishing meaningful transitional justice measures, which as the report highlights, has engendered a loss of faith among victims and other stakeholders.

While some positive steps have been taken by the government, Amnesty International is particularly concerned that the government of Sri Lanka has made no progress on implementing its commitment “to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law”. As a result of the ongoing failure of the authorities to hold perpetrators to account, including for alleged war crimes and crimes against humanity, impunity prevails. Amnesty International therefore supports the report’s call for UN member states to investigate and prosecute such crimes wherever possible, including by exercising universal jurisdiction.

Mr. President, given the slow progress of the government of Sri Lanka in taking other measures to ensure justice, truth, reparation and guarantees of non-recurrence, we urge that the Council maintains scrutiny of Sri Lanka’s efforts and continue the High Commissioner’s reporting on Sri Lanka’s implementation of its commitments in Resolution 30/1 by regular interim reporting through oral updates and interactive dialogues.

Amnesty International calls on the government of Sri Lanka to continue engaging with the international community to implement recommendations in the High Commissioner’s report, along with outstanding commitments made in resolution 30/1. In this endeavour, Mr. President, the government of Sri Lanka should cooperate with OHCHR and all relevant stakeholders to develop a time-bound implementation plan.

Thank you.

 

Asian Forum for Human Rights and Development (FORUM-ASIA)

40th Regular Session of the UN Human Rights Council

Item 2: Interactive Dialogue with the High Commissioner on promoting reconciliation, accountability and human rights in Sri Lanka

Oral Statement Delivered by Rosanna Ocampo

On behalf of the Asian Forum for Human Rights and Development (FORUM-ASIA)

Wednesday, 20 March 2019

Mr. President, FORUM-ASIA welcomes the report of the Office of the High Commissioner for Human Rights (OHCHR) on Sri Lanka. We share the High Commissioner’s concerns at the lack of tangible progress and genuine political commitment to implement the Sri Lankan government’s commitments under resolution 30/1.

Today, for more than two years, many Tamil families of the disappeared have been at roadside protests demanding to know what happened to their loved ones. The inability to demonstrate progress in searching for the disappeared had led to them expressing disappointment and lack of confidence in the government and the Office of the Missing Persons (OMP) - the only one of the four promised transitional justice mechanisms operational so far.

Without a credible judicial mechanism to establish criminal accountability for grave international crimes allegedly committed in Sri Lanka, any attempt at transitional justice and reconciliation will ring hollow. The government backtracking on the commitment to establish a judicial mechanism with international involvement is particularly concerning. Member states must consider seriously the High Commissioner’s recommendation to use universal jurisdiction principles and explore other options to advance accountability in the absence of credible domestic processes.

Despite some improvements in the human rights situation, assaults, threats, harassment and surveillance of human rights defenders, lawyers, journalists and those cooperating with the UN have persisted.

Fears of further repression are exacerbated by the government’s attempts to introduce new repressive measures through the proposed Counter Terrorism Act proposed (CTA) to replace the existing Prevention of Terrorism Act (PTA). The government must demonstrate its sincerity in implementing commitments to protect and promote human rights by repealing the PTA and withdrawing the CTA.

Establishing credibility and public confidence in the transitional justice process requires a concrete, transparent and time bound action plan for the implementation of the commitments. We call on Sri Lanka to develop such a plan in collaboration with OHCHR. The drawbacks to the transitional justice agenda during and after the Constitutional crisis in late 2018, indicates the fragility of the state’s commitments and the need for continued international engagement in Sri Lanka. Given failures and slow progress, the Council must step up the engagement through measures such as an OHCHR field office, a Special Rapporteur and an independent international mechanism to gather and preserve evidence to assist the accountability process.

Many survivors of violations, victim families and affected communities have lost faith in the Council and others are fast losing faith. The Council must not let them down. Thank you.

 

Human Rights Watch

Time-bound implementation plan needed to hold Sri Lanka to its Commitments

Item 2 interactive dialogue on the High Commissioner’s report on Sri Lanka

Thank you Mr. President.

When the Human Rights Council adopted resolution 30/1 by consensus in October 2015, Sri Lanka, through its co-sponsorship, committed to 25 key undertakings across a range of human rights issues. A core commitment was to set up four transitional justice mechanisms to promote “reconciliation, accountability and human rights” in the country. These included an accountability mechanism involving international judges, prosecutors, investigators, and defense lawyers; a truth and reconciliation mechanism; an office of missing persons; and an office for reparations.

While some positive steps have been taken by the government to date, both the current and former High Commissioners in their reports have expressed concern at the slow rate of progress.

Thus far only the Office of Missing Persons has been set up, but progress was delayed, and making the office operational was marred with logistical difficulties. There has been no discernible progress on establishing an accountability mechanism involving international judges, prosecutors, and investigators. Instead, Sri Lankan political leaders have repeatedly said that there will be no foreign judges, and that “war heroes” will be protected from prosecution.

Numerous UN experts and special mandates have since 2015 highlighted the marginalization and misrepresentation faced by minority communities, as well as a trust-deficit between these communities and the government, due in significant part to a culture of impunity. This was exposed during the recent political and constitutional crisis in Sri Lanka that laid bare the volatility of the political environment and the imperative need for continued international engagement to support the government in protecting human rights and promoting reform, reconciliation and accountability.

The Human Rights Council has played a vital role in identifying the many steps needed to reconcile with the past, ensure justice and accountability, and implement necessary reforms. Its scrutiny has proved an important catalyst for the progress made to date. As the High Commissioner’s report underscores: “The lack of progress shows that the situation of human rights in Sri Lanka should remain firmly on the agenda of the Human Rights Council.”

Given the insufficient progress to date, and rising frustrations that any accountability process seems stalled, civil society, Special Procedures, the former and current High Commissioners, and even the resolution Core Group itself have underlined the need for a clear timetable and framework for Sri Lanka to fulfill its commitments. We are disapppointed that the resolution tabled for consideration this session includes reference to a time-bound implementation plan as a preambular encouragement only. It is not too late to elevate this into an operative requirement.

Through this resolution, Sri Lanka is being given one more chance to deliver on its commitments, but it cannot credibly delay any further. Stronger measures are needed to assist in monitoring, implementing and fulfilling these commitments, such as an OHCHR field presence, Special Procedure and evidence-gathering, justice and accountability mechanisms.

 Sri Lanka’s long-term peace and stability hinges upon the international community’s willingness to support the government in addressing the past so that it may look to the future.

 

International Commission of Jurists (ICJ)

Human Rights Council

40th Regular Session

25 February to 22 March 2019

Agenda Item 2

Oral Statement of the International Commission of Jurists (ICJ) in the Interactive Dialogue on the OHCHR report on Promoting reconciliation, accountability and human rights in Sri Lanka

Transitional Justice Mechanisms in Sri Lanka

20 March 2019

The ICJ welcomes the comprehensive report of the OHCHR on promoting reconciliation, accountability and human rights in Sri Lanka (A/HRC/40/23). We share OHCHR’s observation that there is a lack of progress and absence of a comprehensive strategy for implementation of all commitments made under Resolution 30/1.

ICJ is particularly concerned about the lack of progress in the area of criminal accountability (as noted in Paragraph 27 of the report). We believe that there is an urgent need to establish a judicial mechanism with the involvement of foreign judges. We echo the sentiments of the OHCHR regarding the inability of the Sri Lankan courts, on their own, to address the impunity of security forces for crimes under international law.

Failure of the criminal justice system to effectively address emblematic cases (as reflected in Paragraph 38 of the report) clearly indicates the level of capacity and willingness on the part of the State even today to prosecute and punish perpetrators of serious crimes when they are linked to the security forces or other positions of power.

 ICJ also notes that women are grossly under-represented in the judiciary in Sri Lanka, which prevents women human rights defenders and female victims from having confidence in the ordinary criminal justice system, impeding their full engagement and participation in pursuing accountability for crimes committed against them during the conflict and other transitional justice processes.

A judicial mechanism with the involvement of foreign judges is particularly urgent for women in conflict-affected areas who still live in a highly militarized environment and are compelled to live among their perpetrators – those who have been accused of war crimes including rape and other forms of sexual violence.

We therefore reject calls for a purely domestic mechanism. Indeed, the ICJ considers that the continuing failure of the Government to ensure justice means that referral to the International Criminal Court or the creation of another international mechanism to facilitate criminal accountability would be fully warranted. The draft resolution before this session of the Council, reaffirming all elements of resolution 30/1, thus already represents a deep compromise and anything less than the existing text would be wholly unacceptable.

 

International Movement Against All Forms of Discrimination and Racism (IMADR) 

Joint Oral Statement: 40th session of the Human Rights Council

Item 2: Interactive dialogue on the OHCHR report on Sri Lanka

20 March 2019

Speaker: Ameer Faaiz

Thank you, Mr. President.

I was here, with you, a year ago, sharing my dismay at the terrible events that were taking place in Sri Lanka, my country, in March 2018.

You will recall, violent mobs led by extremist Buddhist monks attacked Mosques, homes and businesses of the Muslim community in Digana town and surrounding areas in the Central Province. Two people lost their lives, one man burnt to death inside his own home. Several persons injured, around 450 shops and houses were destroyed, together with 24 places of worship, many burnt to the ground. All this happened while the police stood by and watched, and our national political leaders failed to respond immediately to put an end to this violence.

This body expressed its serious concern at events, which has been reiterated in the High Commissioner’s report to this session.

A year on, no one has been held to account for this violence, even though perpetrators have been identified and evidence available. Leaders of an extreme Sinhala-Buddhist violent group were arrested but later released on bail and many have returned to the places where the violence occurred.

The apparent lack of political will to promote reconciliation is manifested by non- adherence to even the “easy to-do” list, including the full release of privately-owned lands and townships that were owned by both Tamils and Muslims and non-prosecution of perpetrators of violence. The mix messaging by political leaders continue to threaten civil society initiatives for peace and reconciliation including any confidence building measure.

There is still widespread fear and anger in the North and East. There is still culture of impunity often justified and backed by some political leaders. Minority communities fear that violence can re-occur any time if it becomes politically useful again.

What I recalled is just one recent incident. Another anniversary, another death, which highlights the simple reality that failure to establish accountability for institutionalised and politically motivated violence against Sri Lanka’s minorities allows it to take place, again and again.

This year a decade has been passed since the end of the war which was marked by the most brutal violence imaginable. Allegations of grave crimes including war crimes and crimes against humanity have not yet been investigated into. There is much to be done as stated in the High Commissioners report.

Sri Lanka’s history over the past fifty years has seen repeated cycles of state violence, political insurrection and militant uprising, all marked by human rights violations, assassinations, torture, enforced disappearance and the killing of so many innocent people.

In 2015, we had hoped that with your support, we might begin to find a way to change, to heal, to reconcile, to bring the violence to an end and to address its terrible legacy through the measures and commitments made here, in HRC Resolution 30/1.

Four years on and still, as noted in successive reports by the High Commissioner, progress by our Government towards the implementation of the transitional justice mechanisms agreed in that resolution has been lamentably slow. Good faith and hope in the country have turned to disappointment and frustration. And human rights violations continue to take place, including torture and sexual and gender-based violence.

We in civil society recognise that there has been some positive progress. The total number of violations has decreased. The establishment of the Office on Missing Persons (OMP) is to be commended. But the climate of fear and impunity continue - and until the OMP is able to deliver concrete results for family members searching for their lost ones it will be unable to gain the trust of victims and those working to support them. The OMP commissioners are working hard to deliver on their mandate, including bringing out an interim report within 6 months with recommendations that covered broadly provision of social relief, legal reforms, non-recurrence and memorialisation. The sudden political crisis brought about by the President of 51 days impacted on the implementation. We appreciate the interim relief of Rs. 6,000.00 per family in which persons are missing, proposed to be paid in the budget.

The OMP remains the only transitional justice mechanism that is up and running. It is important that other mechanisms be established immediately to holistically address the challenges related to reconciliation, truth seeking and non-recurrence. We are still waiting for the operationalisation of the Office of Reparations. The proposed truth and reconciliation commission Bill has not yet been presented to Parliament. We also wish to commend the role played by the Constitutional Council striving to assist in the much-required state reform process.

Of most concern, our national political leaders pander to populist politics, repeatedly denying the need for accountability for war crimes and rejecting the establishment of a special court with international judges despite making that commitment back in 2015.

While we wait in vain for a special court, the existing criminal justice system has demonstrated little willingness to address emblematic cases of past human rights violations. Apparent political interference in investigative processes has undermined the delivery of justice in many of these cases and highlights the challenge to achieving accountability through exclusively domestic mechanisms.

Last year’s attempted constitutional coup has shown us all just how fragile our democratic structures are. The coup presented serious challenges to the protection and promotion of human rights. We saw clearly that the institutions of state that have enabled mass levels of human rights violations over many years have not yet been dismantled and may easily be activated again if there are changes in the political context.

Many of the individuals accused of the most grievous violations, including crimes against humanity, continue to hold positions of power and authority or have recently been promoted to those positions. Civil society sees this as yet another example of the lack of real commitment of our Government to transitional justice and a snub to the HRC and to all the Member States gathered here.

In this profoundly challenging context, we call upon this Council to:

• Renew the mandate of Office of the High Commissioner for Human Rights (OHCHR) to monitor and support the implementation of the commitments made by the Government of Sri Lanka in Resolution 30/1 - and to provide a progress report to the Human Rights Council every six months;

• Request the Government of Sri Lanka to prepare and present a comprehensive action-plan with clear time-lines for the implementation of the commitments made in Resolution 30/1 and the recommendations in the report of the Consultation Task Force on Reconciliation Mechanisms (CTF). The plan will provide linkages between the mechanisms to be established and the provision of justice and accountability;

• Urge the Government of Sri Lanka to invite the OHCHR to establish a country office to monitor human rights, to support the implementation of Resolution 30/1, CTF recommendations and those made by the High Commissioner, the Human Rights Council and its Special Procedures and other human rights mechanisms. The OHCHR office will provide technical assistance, including for the gathering and protection of evidence;

• Call upon all Member States to provide full cooperation and assistance to Sri Lankan civil society in support of our efforts to ensure the protection of human rights and the promotion of transitional justice in our own country. And to engage responsibly with the Sri Lankan state through an appropriate range of diplomatic measures in the case of continued slow delivery of its commitments in Resolution 30/1;

• Call upon Member States to investigate and prosecute those accused of war crimes and other international crimes, as recommended by the High Commissioner.

Thank you.

 

Lawyers' Rights Watch Canada

NGO in Special Consultative Status with the Economic and Social Council of the United Nations

Organization: Lawyers’ Rights Watch Canada

Item: Item 2: Interactive Dialogue on the OHCHR Report on Sri Lanka

Date: 20 March 2019

Speaker: Ms. Dharsha Jegatheeswaran

Oral Statement to the 40th Session of the UN Human Rights Council from Lawyers’ Rights Watch Canada (LRWC), NGO in special consultative status

Lawyers’ Rights Watch Canada (LRWC) thanks the Office of the High Commissioner for its report on Sri Lanka’s implementation of Resolution 30/1.

Four years after the adoption of Resolution 30/1 there has been virtually no progress towards investigating or prosecuting atrocity crimes in Sri Lanka and little or no progress on implementation of other commitments under the resolution. Instead, the Sri Lankan government rejects any form of hybrid court and permits public stoking of Sinhala nationalist fears of international accountability processes.

We agree with the OHCHR that without significant international involvement there can be no credible prosecutions of atrocity crimes in Sri Lanka. Sri Lanka’s domestic legal system is plagued with systemic obstacles to justice, including the politicization of the Attorney General’s department, a judiciary that is deferential to the military, and lack of protections for witnesses.

Sri Lanka has failed even on basic confidence-building measures with Tamil victims to address truth and accountability. For more than two years, Tamil families of the disappeared have been protesting across the North and East seeking truth and justice for their disappeared loved ones, many of whom were disappeared after surrendering to military custody in 2009. Despite 2017 promises by President Sirisena to meet the protestors’ demands, he has failed to produce the lists of surrendees and detention centres they seek. The failure of the government to meet the demands of families of the disappeared for fulfilment of the right to truth has resulted in justifiable mistrust in the government’s Office of Missing Persons.

LRWC reiterates the High Commissioner’s recommendations and emphasizes the need for Member States to exercise universal jurisdiction to hold perpetrators of atrocity crimes in Sri Lanka accountable. Only accountability and justice can end the culture of impunity in Sri Lanka that has led to recurrent conflict over the last 70 years.

Thank you.