Month: June 2016

Promoting reconciliation, accountability and human rights in Sri Lanka*

Human Rights Council

Thirty-second session

Agenda item 2

Annual report of the United Nations High Commissioner
for Human Rights and reports of the Office of the High Commissioner
and the Secretary-General

news-30-06-2016-4 (1)

Promoting reconciliation, accountability and human rights in Sri Lanka*

  1. This oral update is presented pursuant to Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka, which was adopted by consensus with the co-sponsorship of Sri Lanka.
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Statement on Accountability and the timing of Transitional Justice Mechanisms in Sri Lanka

22nd June, 2016

18642101978_192b8b9123_o-881x588.jpg We, the undersigned Sri Lankan civil society activists and organisations, note with deep concern the lack of tangible progress in ending impunity in Sri Lanka, more than seventeen months since the change of government in January 2015. We believe that no mechanism for transitional justice or reconciliation can succeed without comprehensively responding to Sri Lanka’s culture of impunity which has enabled recurring violence. By co-sponsoring UN Human Rights Council Resolution 30/1 on ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, the Government of Sri Lanka committed to establishing institutions for missing persons, reparations, a truth commission and a ‘a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law’. It also affirmed ‘the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators’. Recent weeks witnessed rushed attempts to introduce the Office of Missing Persons. While we recognise the need for an independent and credible entity to investigate the large caseload of enforced and involuntary disappearances, we were disappointed with the process which lacked transparency and the participation of victims and civil society. We have since heard of plans by the Government of Sri Lanka to establish a truth commission and delay the establishment of the proposed accountability mechanism and the office of reparations. This betrays a deeply flawed approach to transitional justice and fails to appreciate and undermines the rights of victims to truth, justice, reparations and guarantees of non-recurrence. Many Sri Lankan victims and members of civil society have consistently demanded that credible investigations be conducted and perpetrators held accountable with respect to credible allegations of human rights violations. Previous Commissions of Inquiries and the Criminal Justice system have only resulted in the acute retraumatisation of victims with little satisfaction in terms of justice and reparations. Moreover, the recommendations of these Commissions with respect to the investigation of human rights violations, and the prosecution of alleged perpetrators, have not been implemented, exacerbating Sri Lanka’s culture of impunity that these institutions are meant to combat. For these reasons, yet another commission established without a meaningful guarantee of accountability and reparations will signal a lack of commitment to the Government’s own commitments and to genuinely breaking with the past. 2 The government’s commitments encapsulated in the Human Rights Council Resolution of October 2015, and Parliament’s near unanimous endorsement of its terms just weeks after it was passed, offers the country an unprecedented political opportunity to advance accountability. The narrow window of opportunity that exists in which the government can successfully enact necessary legislation to establish a judicial mechanism and a special counsel’s office in Sri Lanka along with other mechanisms could fade away soon. The government’s failure to decisively seize this opportunity by engaging the public in a serious conversation about dealing with the past will signal a lack of commitment and will also result in victims losing confidence in Sri Lanka’s transitional justice process, and damage any progress already achieved. We strongly urge the Government of Sri Lanka to reaffirm its commitment to a comprehensive approach to transitional justice by enacting legislation for a judicial mechanism and a special counsel’s office, with provisions for ‘the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law’, in parallel with the truth commission and office of reparations. The Government should also adhere to its other commitments in the Resolution including release of lands to legal owners, review and repeal the Prevention of Terrorism Act and security sector reform. We also call on the government to ensure that this happens in 2016 while there is a political space and offers of assistance. The implementation of the commitments must be done in a transparent manner and in consultations with victims, civil society and the public. We also call on member states of the UN, OHCHR and all UN departments and donors to assist and advise the government towards a process to ensure the fulfilment of deep and unremitting desire of victims and civil society for truth, justice, reparations and guarantees of non-re-occurrence. Signatories; Individuals 1. A.M. Faaiz 2. Ainslie Joseph – Convener/Chief Animator – Christian Alliance for Social Action (CASA) 3. Asma Rahman 4. B. Gowthaman 5. Bhavani Fonseka 6. Bishop Kumara Illangasinghe 7. Cedric de Silva 8. Chandrika De Silva – Writer 9. Christine Perera – Activist 10. Damaris Wickremesekera 3 11. Deanne Uyangoda 12. Deshamanya Godfrey Yogarajah 13. Dr. Alagu Caruppiah Visvalingam 14. Dr. Isabelle Lassee 15. Dr. Jayadeva Uyangoda 16. Dr. T. Balamurukan 17. Emil van der Poorten – Supporter of ALL human rights 18. Faizun Zackariya – Citizens’ Voice for Justice and Peace 19. Fr. S.V.B. Mangalarajah – President – Justice and Peace Commission, Catholic Diocese, Jaffna 20. Hans Billimoria 21. Ishan Jalill 22. Jeanne Samuel 23. K. Aingkaran – Attorney-at-Law 24. Kalani Subasinghe 25. Kusal Perera – Journalist 26. Lakshan Dias 27. Manori Kalugampitiya – Journalist 28. Marisa de Silva 29. Melisha Yapa 30. Monica Alfred 31. Nalini Ratnarajah – Human Rights Defender 32. Nicola S. 33. Nilantha Ilangamuwa – Editor – Sri Lanka Guardian 34. Nimalka Fernando 35. Niran Anketell 36. P. Selvaratnam 37. P.N. Singham 38. Philip Dissanayake 39. Philip Setunga 40. Prabodha Rathnayake – Attorney-at-Law 41. Prof. Ellen Dissanayake 42. Prof. Jayantha Seneviratne 43. R.M.B. Senanayake 44. Ralston Weinman 45. Rev. Fr. Aniston Morais, SJ 46. Rev. Fr. Emmanuel Sebamalai 47. Rev. Fr. J. Raj Claier, OMI 48. Rev. Fr. Jeyabalan Croos 49. Rev. Fr. Nandana Manatunga 50. Rev. Fr. Reid Shelton Fernando 51. Rev. Fr. T. L. Rohan, Claretians 52. Rev. Fr. Terrence Fernando 53. Rev. Jason Selvaraja – Senior Clergy – Assembly of God, Chavakachcheri 54. Rev. Sr. Helen Fernando, HF 55. Rev. Sr. Nichola 4 56. Ruki Fernando 57. S.C.C. Elankovan 58. Sandun Thudugala 59. Sandya Ekneligoda 60. Sheila Richards 61. Shenali De Silva 62. Shreen Abdul Saroor 63. Sudarshana Gunawardana – Attorney-at-Law 64. Sumika Perera 65. Suren D. Perera 66. T. Mathuri – Attorney-at-Law 67. Thiruni Kelegama 68. Wilhelm Lutersz 69. Zahabia A. Adamaly Organisations 70. Action Against Apathy 71. Human Rights Office, Kandy 72. Rights Now Collective for Democracy 73. South Asian Centre for Legal Studies (SACLS) 74. Women’s Action Network (WAN) 75. Women’s Development Innovators 76. Women’s Resource Centre, Kurunegala

Impunity and Justice: Why the UN Human Rights Council Must Stay Engaged in Sri Lanka

By Alan Keenan | @akeenan23  17 June 2016

siirs

Sri Lankan Tamil women hold up photographs of their missing family members as they wait to hand over a petition to the U.N. head office in Colombo on 13 March 2013. REUTERS/Dinuka Liyanawatte

As the United Nations Human Rights Council meets in Geneva this month, it’s time to assess how far Sri Lanka has come since last year’s passage of a landmark resolution to promote reconciliation, accountability and human rights.

Resolution 30/1, adopted in October, was a major achievement for the Council – and an important milestone in Sri Lanka’s journey toward lasting peace and a just settlement of its decades-old ethnic conflict. Following years of bitter resistance by the previous Sri Lankan government to international efforts to encourage post-war reconciliation and accountability, the new government led by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe displayed admirable political courage in negotiating a consensus resolution containing many of the elements needed for a sustainable peace.

However, Sri Lanka today is not yet the success story that many in the international community claim it to be. Progress on implementing the Council resolution has been slow and often grudging, and there are growing doubts about the government’s political will and ability to see the complex process through. For Sri Lanka to stay on the path toward recovery, it needs sustained international support and engagement.

Speaking at this critical juncture, High Commissioner for Human Rights Zeid Ra’ad Al Hussein this week encouraged the government to prepare a comprehensive strategy on transitional justice with “inclusive and meaningful engagement from all Sri Lankans”. As Zeid prepares to report to the Council on 29 June on progress toward implementation of the resolution, member states should send strong public and private messages to the Sri Lankan government, offering financial, capacity-building and other tangible support for its efforts – as well as clear suggestions for improvement.

The Reform Agenda

The government has adopted an ambitious reform agenda to address the many challenges the country faces: keeping a beleaguered economy afloat, strengthening the rule of law, tackling corruption, drafting a new constitution, promoting reconciliation efforts with the Tamil population in the north and east, and establishing a multi-pronged set of transitional justice mechanisms agreed with the Council.

Unfortunately, the entire program risks collapse unless new energy, focus and resources are brought to bear. A weakening economy and slow going on most other fronts have led to waning support from the key constituencies that brought the government to power – Tamils, Muslims and reform-minded Sinhalese. Belief in the possibility of meaningful progress is fading across the board.

REPORT | Sri Lanka: Jumpstarting the Reform Process

Efforts of the national unity government – a coalition between President Sirisena’s Sri Lanka Freedom Party (SLFP) and Prime Minister Wickremesinghe’s United National Party (UNP) – have been weakened by a variety of factors. First, the government lacks technical capacity and trained personnel on key issues. Second, there is no unified strategy for advancing reforms – with the SLFP split between Sirisena’s wing and supporters of ex-President Mahinda Rajapaksa, and often at odds with the UNP, particularly on economic policy. Third, the administration has not mounted a coherent public relations campaign to sell its successes and build support for the more politically controversial aspects of its program, including transitional justice.

The most critical element of the reform agenda is how to tackle the entrenched culture of impunity, which has fed multiple bloody insurgencies over the past 40 years. Sri Lanka must seize this narrow window of opportunity to address the problem. Failure to succeed in this effort will undermine virtually all the other reforms the government says it wants to achieve. Progress toward ending impunity is essential to reestablishing the rule of law for all ethnic communities, reasserting civilian control over the military and building the trust needed for a lasting political solution.

Notable progress has been made toward a new constitution, as parliament has begun to meet as a constitutional assembly. The report of the Public Representations Committee, tasked with gathering ideas from the public, was issued at the end of May. It endorsed a range of bold reforms, including the incorporation of a bill of rights. The committee failed to reach agreement, however, on expanded devolution of power for Tamil-majority regions in the north and east, a key issue noted in the Council resolution. With parliamentary consensus likely to fall well short of long-standing Tamil demands for federalism and national self-determination, the government and the Tamil National Alliance (TNA) could face a major challenge in winning Tamil backing in the referendum needed to approve the new constitution, with the pro-engagement leadership of the TNA weakened as a result.

Transitional Justice

Sri Lanka has made only halting efforts toward developing the four transitional justice mechanisms pledged to the Council – a truth commission, reparations and missing persons offices and, most controversially, an independent special court for war crimes with international participation. The national unity government should be encouraged to design and sell its Council-mandated transitional justice efforts as part and parcel of its larger agenda to promote “good governance” and the rule of law, which has widespread public backing in all communities. Meanwhile, donors should deepen their support – through training, equipment and personnel – to build the Sri Lankan state’s capacity to establish effective justice mechanisms, strengthen criminal investigations and improve witness protection.

Transitional justice efforts should be sold as part and parcel of the good governance agenda.

In advance of this month’s Council sessions, the government has scrambled to finalise a package of reforms it can present as evidence of progress. At the top of the list is the Office of Missing Persons (OMP), legislation for which was approved by the cabinet on 24 May and is expected to be presented to parliament in the coming days. While the proposed office would likely help thousands of families seeking information about their loved ones who went missing during the civil war, it has been criticised for lacking any effective link to criminal investigations and thereby potentially maintaining impunity for large-scale enforced disappearances. The government has also been criticised for its hurried and minimal consultation with victims’ families prior to finalising the proposed legislation. Council members should encourage the government to submit the draft bill, prior to parliamentary approval, to the national consultations process that is due to get underway by the end of June – both to improve the quality of the legislation and to win back flagging confidence among victims’ groups and civil society.

The government’s recent ratification, in May, of the UN Convention on Disappearances is a welcome move. Incorporating the treaty in domestic legislation, as promised to the Council, will be even more significant. These steps will mean very little, however, if the government remains unable or unwilling to prosecute cases of abduction and murder, particularly those for which they already have substantial evidence.

International participation is essential to the credibility of the special court.

Council members and the High Commissioner should press the government to follow through on its commitment to meaningful forms of international participation on the proposed special court for war crimes. The Council resolution specifies the importance of including “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators” in a Sri Lankan judicial mechanism. Under domestic pressure, the president and prime minister backed away from promises to the UN and announced there will be no foreign judges. Given the decades-long failures of government commissions and judicial processes, international participation is essential to the credibility and effectiveness of the special court. Council members should insist that the government holds the line on the involvement of international judges, at least in observer roles, and devises concrete plans for outside experts to be included in investigations, prosecutions, forensics and witness protection.

Prosecution of military personnel, particularly with foreign legal involvement, was always sure to be the most controversial aspect of transitional justice for many Sinhalese. There needs to be a clear strategy to address Sinhala nationalist resistance, including by actively promoting the benefits of transitional justice for all communities. Instead, the president, prime minister and other key officials have regularly retreated when criticised by Rajapaksa and his nationalist supporters.

Even the most optimistic assessments of the government’s transitional justice policies suggest the government intends to postpone any moves to establish the promised special court until after March 2017, when the High Commissioner is due to issue his final report on implementation of the Council’s 2015 resolution. While justice for crimes committed by both sides during the war will necessarily take a long time to achieve, further delays in even initiating the process will only confirm suspicions that the government is merely buying time until the international community loses interest.

Legislation to establish transitional justice mechanisms must be on the books by next year.

Council members should press the government to begin building the legal, institutional and staffing capacity needed for all the promised transitional justice mechanisms. The High Commissioner should insist that legislation needed to establish these mechanisms must be on the books by March 2017, in advance of that month’s Human Rights Council session. These measures should include legislation to criminalise war crimes and crimes against humanity, and to establish command responsibility as a mode of criminal liability.

Rule of Law and Anti-Corruption

Confidence is faltering in the government’s commitment to restore the rule of law, a pledge that was central to the January 2015 election of Sirisena. Investigating complex financial crimes and political killings under the former regime is undoubtedly a slow, difficult and dangerous work. The challenges are made more acute by the involvement of key figures from the old regime still serving as ministers, bureaucrats and law enforcement officials, some of whom are known to be actively obstructing progress. There is increasing evidence that senior officials in the Attorney General’s department and in the military have blocked important criminal investigations.

Sri Lankan opposition party workers erect a cutout of their presidential candidate Maithripala Sirisena in the north central town of Polonnaruwa on 30 November 2014. AFP/Lakruwan Wanniarachchi

The government must take steps to dismiss or discipline obstructionists. Officials who lobbied to undermine UN efforts to support justice and accountability under the Rajapaksa regime should also be removed from policymaking positions. In order to address long-criticised conflicts of interest in the Attorney General’s department, it is necessary to establish a permanent, independent special prosecutor for serious human rights cases in which state officials are alleged perpetrators.

It is necessary to establish an independent special prosecutor for serious human rights cases involving state officials.

Meanwhile, credible reports indicate that witnesses in criminal cases implicating the security forces are facing serious threats. The government has yet to establish an effective witness protection program or revise its weak witness protection law, in compliance with a clause in last year’s Council resolution promising to do so.

Progress on key criminal cases is needed to reverse the growing sense that the national unity government is not substantially different from previous corrupt and inefficient governments. Progress on less politically controversial cases is also essential to rebuild confidence that the government is willing to tackle impunity and can establish a credible process of accountability for war-related crimes.

Adoption of some important legal and institutional reforms is said to be very close – including legislation to replace the repressive Prevention of Terrorism Act (PTA) with new laws consistent with human rights standards, as required by the Council resolution. However, recent arrests under the PTA have violated due process and reawakened fears of a return to “white van” abductions, which were a primary means for hundreds of enforced disappearances under the Rajapaksa government. Detainees are still being held under the sweeping provisions of the law.

The government should not wait for repeal of the PTA before ending violations.

Council members need to press the Sri Lankan government to end abuses by the Terrorism Investigation Division of the police (TID), which continues to detain suspects without charge, often in aggressive and humiliating ways. TID must be made to follow established procedures – recently reiterated by Sri Lanka’s Human Rights Commission – on detentions, and personnel suspected of involvement in serious abuses must be suspended, investigated and prosecuted. The government should not wait for repeal of the PTA and the establishment of a new system before acting to end current violations.

Confidence Building and Military Reform

On ethnic issues and the legacy of the war, the president and other senior officials have set a more conciliatory tone – seen most recently in the much less triumphalist commemoration of the seventh anniversary of the end of the civil war. Nonetheless, the past six months have seen very little progress on the key issues of concern to Tamils in the north and east – concerns reflected in the text of last year’s Council resolution: the release of hundreds of detainees held under the PTA, the return of land held by the military, investigations into the tens of thousands of forcibly disappeared people, and the removal of the military from civilian affairs in the north and east. Indeed, progress has been so slow and grudging that what were intended to be confidence-building measures have become confidence-weakening measures.

Trust in the government’s good intentions has also been damaged by the tight and often intimidating surveillance of Tamil civil society activists by military and police, and by unwarranted arrests. The president and prime minister appear wary of asserting their authority over the military, and there has been little movement toward developing a longer-term plan for security sector reform. The inability to gain effective civilian control over the military is one factor behind the government’s slow implementation of its other Council commitments. This in turn undermines public confidence, especially among Tamils, in the government’s political will to guarantee justice for all.

Donors should use their leverage to encourage the long hard work of restructuring the military for peacetime duties.

The government should be encouraged to start developing a comprehensive plan for security sector reform. Such a plan should aim to reduce the military’s social, political and economic footprint in the north and east, as well as to include job training, re-employment programs and psycho-social support for demobilised soldiers. Many ex-soldiers are severely traumatised and caught in continued cycles of violence – in the home and on the street, sometimes as hired thugs for politicians. Foreign militaries now working more closely with Sri Lanka should make offers of technical support for security sector reform a central component of their re-engagement. Donors should use their leverage – including the prospect of additional deployments of Sri Lankan troops as UN peacekeepers – to encourage the long hard work of restructuring the military for peacetime duties.

As the past nine months of fitful and partial implementation of last year’s consensus resolution make clear, the political challenges ahead in Sri Lanka are considerable. For there to be a realistic chance of ending the culture of impunity and establishing effective forms of transitional justice, the Human Rights Council and other UN mechanisms will need to remain engaged beyond March 2017. Consideration of Sri Lanka by the Council remains one of the primary factors driving action – as is evident by the flurry of activity in recent weeks.  Member states should begin discussions now about what form continued engagement can take. Among other options, Council members should encourage the Sri Lankan government to invite an expanded presence of the Office of the High Commissioner for Human Rights, whose resources in Sri Lanka remain insufficient to meet the many pressing demands.

Sri Lanka’s much-improved engagement with UN agencies and human rights mechanisms is to be welcomed. But it is not enough. What all of Sri Lanka’s communities need and deserve now are tangible changes in legislation and concrete implementation of its international promises and obligations on the ground.

 

BUSYBODY FOR PEACE: The Life and Work of Nimalka Fernando of Sri Lanka

By Sue Diaz, Peace Writer
Edited by Emiko Noma
2014 Women Peace Makers ProgramClo9dpiWgAAyToo.jpg

BIOGRAPHY OF A WOMAN PEACEMAKER —
Nimalka Fernando
Nimalka Fernando of Sri Lanka is a prominent human rights defender, lawyer and activist with over 30 years of peacemaking experience. She is a co-chair of South Asians for Human Rights and the president of the International Movement against All Forms of Discrimination and Racism (IMADR) — an organization dedicated to eliminating discrimination and racism, forging international solidarity among discriminated minorities, and advancing the international human rights system. A Sinhala Christian woman in Sri Lanka, Fernando is of the majority ethnic community but a religious minority — giving her a unique perspective on the bloody conflict that has polarized
communities across the island for decades. As a colleague of hers has written, “Through Ms.Fernando’s biography it is possible to register key social movements in Sri Lanka, in South Asia, and globally.” Fernando first became involved in human rights work with the Student Christian Movement of SriLanka, and then the Movement for Inter-Racial Justice and Equality, which sparked in her an interest in law for social justice. The Voice of Women, the first feminist circle in Sri Lanka composed of professional and progressive women, further influenced Fernando as violence and political tensions continued to rise in the 1980s between the Sinhala government and Tamil separatists. In frustration with the Sri Lankan legal system that failed to provide redress for egregious human rights abuses, Fernando moved into community development work and full-time activism — exposing her to severe repression by the state  which viewed her as pro-Tamil. She was forced out of
the country for a time. While in exile, Fernando worked for the Asia Pacific Forum on Women, Law and Development and became engaged in international advocacy at U.N. conferences and through networks working on minority rights. During the peace process mediated by Norway in the early 2000s, Fernando was involved in track-two negotiations and participated in the Tokyo Conference on Reconstruction and Development in Sri Lanka, while continuing her grassroots peacebuilding activities. Fernando has been a founding member of several organizations, including a network of women’s organizations and activists committed to peacebuilding, known as Mothers and Daughters of Lanka.
In 2011 she received the Citizen’s Peace Award from the National Peace Council of Sri Lanka. She continues to face repression and threats for her fervent calls for accountability for alleged war crimes committed during the war.

Nimalka-Fernando-Sri-LankaNimalka-Fernando-Sri-Lanka

OFFICE ON MISSING PERSONS (ESTABLISHMENT, ADMINISTRATION AND DISCHARGE OF FUNCTIONS) A BILL

sri-lankan-tamil-women

to provide for the establishment of the Office on Missing Persons; to provide for the searching and tracing of Missing Persons; to provide assistance to relatives of Missing Persons; for the setting up of a database of Missing Persons; for setting out the procedures and guidelines applicable to the powers and functions assigned to the said office; and to provide for al matters which are connected with or incidental to, the implementation othe provisions of this Act.
Ordered to be published by the Hon. Prime Minister
OFFICE ON MISSING PERSONS (ESTABLISHMENT, ADMINISTRATION AND DISCHARGE OF FUNCTIONS) A BILL