From Words to Action: A Roadmap for Implementing Sri Lanka’s Transitional Justice Commitments
From Words to Action:
A Roadmap for Implementing Sri Lanka’s Transitional Justice Commitments
This initiative was made possible through the generous support of the Canadian Fund for Local Initiatives
The South Asian Centre for Legal Studies (SACLS) works on advancing Transitional Justice: victims' right to truth, justice, reparations and guarantees of non-repetition. Contact us for more information: Address: Email: Facebook: Twitter:
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February 2016 Copyright © 2016 South Asian Centre for Legal Studies (SACLS)
TABLE OF CONTENTS
I.
Introduction ............................................................................................................................. 2
II. Truth-Telling and the Right to Know. ..................................................................................... 5 III. Special Courts and Justice for Crimes. .................................................................................. 19 IV. Legal and Institutional Reforms. ........................................................................................... 29 V. Security Sector Reform. ........................................................................................................ 40 VI. General Commitments on Transitional Justice and Human Rights....................................... 47 VII. Conclusion. ............................................................................................................................ 52 Annexure I: Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council, 14 September 2015. ................................................. 55 Annexure II: Recommendations contained in the Report of the OHCHR Investigation on Sri Lanka (OISL). ............................................................................................................................... 60 Annexure III: UN Human Rights council, Draft Resolution 30/1, with a paragraph by paragraph commentary by SACLS. ............................................................................................................... 65
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I.
Introduction
A. UN HRC Resolution 30/1. On 1 October 2015, the Human Rights Council adopted without a vote a historic country-specific Resolution 30/1, titled ―Promoting Reconciliation, Accountability and Human Rights in Sri Lanka‖1. The resolution was co-sponsored by a number of countries, including Sri Lanka, after negotiations between the core group of sponsors—the United States of America, the United Kingdom, Montenegro and Macedonia—and the Sri Lankan government resulted in a consensus text which Sri Lanka agreed to co-sponsor. Sri Lanka‘s co-sponsorship of the resolution was significant for a number of reasons. By that act, Sri Lanka took ownership of the terms of the resolution, and indicated that it accepted that it assented to the resolution in full, and thereby commended it to the other members of the Council. The resolution was adopted barely weeks after the release of the Report of the Office of the High Commissioner for Human Rights (OISL Report)2 and was subjected to intense negotiations at the 30th session of the Council. The result was a resolution that attempted to find common ground between the commitments made by the Sri Lankan government to the Council—in the form of a speech by Minister of Foreign Affairs Hon. Mangala Samaraweera3—and the recommendations of the OISL. The resolution adopted by consensus was welcomed by a variety of stakeholders: Human Rights Watch described it as a ―far-reaching call to address pressing needs for reform‖4; the Tamil National Alliance welcomed it as providing ―a genuine opportunity for real progress on accountability and reconciliation‖5; while United States Secretary of State John Kerry claimed it ―represents a landmark shared recognition of the critical importance of truth, justice, reparations, and guarantees of non-recurrence…for all Sri Lankans‖6. The lengthy resolution, which contains 23 preambular paragraphs and 20 operative paragraphs, lays out an ambitious vision in respect of dealing with the past in Sri Lanka. If implemented, this resolution could mark Sri Lanka as a rare success for Transitional Justice in the region. And yet, 1
UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Resolution 30/1, 30th session, 1st October 2015, U.N. Doc. A/HRC/30/1 (hereinafter UNHRC, Resolution 30/1). 2 UN Human Rights, Report of the OHCHR Investigation on Sri Lanka (OISL), 30th session, 16 September 2015, U.N. Doc. A/HRC/30/CRP.2 (hereinafter OISL Report). 3 See Annexure I. 4 Human Rights Watch, ―Sri Lanka: UN Resolution Could Advance Justice‖, 28 September 2015, at https://www.hrw.org/news/2015/09/28/sri-lanka-un-resolution-could-advance-justice (last accessed 22/02/16). 5 ―TNA Hopes UNHRC Resolution Will Mark A New Chapter In Sri Lanka‘s Quest For Reconciliation‖, Colombo Telegraph, 4 October 2015, at https://www.colombotelegraph.com/index.php/tna-hopes-unhrc-resolution-willmark-a-new-chapter-in-sri-lankas-quest-for-reconciliation/ (last accessed 22/02/16). 6 John Kerry Secretary of State(Press Statement), ―Resolution on Sri Lanka at the 30 th Session of the UN Human Rights Council‖, 24 September 2015, Washington DC, at http://www.state.gov/secretary/remarks/2015/09/247268.htm (last accessed 22/02/16).
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while the resolution represented a monumental advance for Transitional Justice in Sri Lanka, it is only through its implementation that rights will be vindicated, lives restored, and communities healed. The resolution must move from words to action.
B. The Report. This report sets out a detailed roadmap for implementation of HRC Resolution 30/1. It classifies the commitments made by the government in the operative paragraphs of the resolution into five areas: truth telling and the right to know; special courts and justice for crimes; legal and institutional reform; security sector reform; and general commitments on Transitional Justice and Human Rights. The report considers each commitment in the resolution, identifying its importance and the reason behind its inclusion in the resolution. The report also identifies the several administrative or legislative steps necessary to implement each commitment and the reason why such step is necessary, the time frame within which each step could be implemented, progress—or the lack of it—made hitherto, and the foreseeable obstacles to full implementation. In delineating steps to be undertaken to fulfil each commitment, the report only outlines affirmative steps required. The report only identifies steps that are tangible, operational, and objectively verifiable. Further, the steps identified are those that must be taken by the government. Even though other actors play a central role in Transitional Justice, this report only outlines steps to be taken by the government, as it was the government that voluntarily undertook the commitments in the resolution. In identifying time frames for implementation, the report identifies steps as those that could be implemented within a particular time frame if the entire step could be fully implemented within that time frame, or if implementation could commence within the time frame.
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II.
Truth-Telling and the Right to Know.
COMMITMENT: Establish an Office on Missing Persons (OP4). Short term (within 3 months)
Medium term (within 12 months)
1. Devise a plan for and obtain 3. Ensure passage of Bill Cabinet approval to establish through Parliament to an Office on Missing establish an OMP, giving it Persons (OMP). the freedom to obtain financial, material and 2. Gazette a Bill to establish an technical assistance from OMP and place it on the international partners, Order Paper of Parliament. including OHCHR.
Long term (more than one year) 7. Provide continued support including funding for the work of the OMP.
4. Nominate and appoint officers/members of the OMP. 5. Take logistical steps necessary to equip, resource and staff the OMP to carry out its mandate. 6. Transfer all materials, records and evidence collected by former Commissions of Inquiry pertaining to enforced disappearances including the Paranagama Commission to the OMP.
COMMITMENT: Develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of IHL, whether held in public or private institutions (OP15). Short term ( within 3 months) 1. Issue an order temporarily halting any destruction of any government records.
Medium term (within 12 months) 5. Ensure passage of the Bill through Parliament.
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Long term (more than one year) 7. Provide continued support including funding for the work of
2. Establish by Presidential decree under Article 33(f) of the Constitution a temporary body to function until a statutory body takes over which would be empowered to transfer records and documents relating to possible IHRL and IHL violations to its own custody.
7. Take logistical steps necessary to equip, resource and staff institution(s) responsible for selecting, preserving and making available records.
preserving records and documentation.
3. Develop a comprehensive plan for preserving existing records and documentation. 4. Obtain Cabinet approval for a Bill to preserve records and documentation. 5. Gazette a Bill on the lines described above and place it on the Order Paper of Parliament.
COMMITMENT: Establish a Commission for Truth, Justice, Reconciliation and NonRecurrence (OPA 4). Short term (within 3 months)
Medium term (within 12 months)
Long term (more than one year)
1. Devise a plan for and obtain 3. Ensure passage of Bill to 6. Provide continued Cabinet approval to establish establish a Commission, giving support including a Commission. it the freedom to obtain funding for the work of financial, material and the Commission. 2. Gazette a Bill to establish a technical assistance from Commission and place it on international partners, including 7. Disseminate findings and the Order Paper of OHCHR. Report of the Parliament. Commission. 4. Nominate and appoint Members of the Commission 8. Implement recommendations of the 5. Take logistical steps necessary Commission Report. to equip, resource and staff 6
Commission to carry out mandate.
9. Establish necessary successor organizations to disseminate and archive Commission materials.
COMMITMENT: Release publicly previous presidential commission reports (OP14). Short term (within 3 months)
Medium term (within 12 months)
Long term (more than one year)
1. Release previously unpublished presidential commission reports.
A. Establish an Office on Missing Persons (OP4). International human rights law clearly establishes the right of families of the disappeared to know the facts concerning the fate of their loved ones. In particular, article 24 of the Convention on Enforced Disappearances states that each victim (which includes family members) has the right 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‖7. This basic principle of the families‘ right to know has been reaffirmed in numerous UN resolutions, declarations and documents,8 and has been described as an ―absolute right‖ which flows from the fact that the enforced disappearance causes ―anguish and sorrow to the family‖, a suffering that ―reaches the threshold of torture‖.9 Sri Lanka has periodically instituted a number of mechanisms—in particular, Presidential Commissions of Inquiry—to inquire into various categories of the large number of enforced disappearances perpetrated in Sri Lanka over many decades. In fact, the Paranagama Presidential Commission of Inquiry which was mandated by former President Rajapaksa has continued to 7
International Convention for the Protection of All Persons from Enforced Disappearance, New York, 20 December 2006, United Nations, Treaty Series, vol. 2716, p. 3, U.N. Doc. A/61/448, article 24. 8 See for e.g, UN General Assembly, Right to truth, Resolution 68/165, 68 th session, 18 December 2013, U.N. Doc. A/RES/68/165 ; UN Human Rights Council, Right to truth, Resolution 12/12, 12 th session, 1st October 2009, U.N. Doc. A/HRC/RES/12/12 ; UN Human Rights Council, Right to truth, Resolution 21/7, 21 th session, 27 September 2012, U.N. Doc. A/HRC/RES/21/7. 9 See Working Group on Enforced or Involuntary Disappearances, ―General Comment on the Right to the Truth in Relation to Enforced Disappearances‖, (contained in UN Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, 16th session, 26 January 2011, U.N Doc. A/HRC/16/48 para. 39), para. 4.
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function to date. However, the demand for a discrete and independent mechanism outside the institutional framework of Presidential Commissions of Inquiry emerged soon after President Sirisena‘s assumption of office. In March 2015, SACLS co-founder Niran Anketell wrote about the need for a reconstituted investigative body in place of the Paranagama Commission to investigate the fate of the missing, stating: Such a body must be fundamentally different to past commissions of inquiry, which have treated public hearings as an end rather than a means to reaching the truth. It should be vested with broad investigative powers: to search premises, summon witnesses and suspects, and seize relevant evidence. Ideally, such a body will involve, but not be limited to, the participation of experienced law enforcement officers with a track record of independence. To ensure credibility with the public and victims, the body must also be staffed by civil servants, human rights activists and relevant forensic experts, including international experts where necessary. This body must deploy investigators across the country but particularly in the north and east to pursue evidence…The unwavering focus of the investigation must remain on finding the missing, and where the person is dead, providing an account to the families of the circumstances surrounding their death in a way that enables closure.10
In April 2015, after his first visit to Sri Lanka, Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-Recurrence Pablo de Grieff also spoke of the failure of Commissions of Inquiry and noted that ―the country cannot afford to simply reproduce an approach that is characterized by the proliferation of largely unrelated and inconsequential ‗ad hoc‘ initiatives. 11 In its preparations for the 30th session of the UN Human Rights Council, the government was reported to have consulted the International Committee of the Red Cross (ICRC) in developing a mechanism to deal with missing persons. In fact, in as early as March 2015, a high ranking official from ICRC visited Sri Lanka and reported that ―a proposal to set up an independent process to clarify the fate of missing persons was discussed and was positively received by government officials‖. 12 ICRC‘s engagement with the Sri Lankan government on the issue is understood to have continued since. Eventually, on 14 September 2015 speaking at the high level segment of the Human Rights Council, Minister Samaraweera outlined Sri Lanka‘s plans on an Office on Missing Persons,
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Niran Anketell, ―Building credible mechanisms for domestic accountability and transitional justice: Truth-telling initiatives‖, Daily FT, 19 March 2015, at http://www.ft.lk/2015/03/19/building-credible-mechanisms-for-domesticaccountability-and-transitional-justice-truth-telling-initiatives/#sthash.vLzFgHcv.dpuf (last accessed 22/02/16). 11 UN Office of the High Commissioner, ―Observations by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mr. Pablo de Greiff, on the conclusion of his recent visit to Sri Lanka‖, 11 April 2015, Geneva, Colombo, at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=15820&LangID=E (last accessed 22/02/16). 12 ICRC, ―Sri Lanka: Clarifying the fate of missing persons requires sustained commitment‖, 26 march 2015, at https://www.icrc.org/en/document/clarifying-fate-missing-persons-sri-lanka-requires-sustained-commitment (last accessed 22/02/16).
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wherein he referred to: ―an Office on Missing Persons based on the principle of the families‘ right to know, to be set up by Statute with expertise from the ICRC, and in line with internationally accepted standards‖.13 Likewise, the OISL Report released thereafter recommended that Sri Lanka ―dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed on consultation with families of the disappeared‖.14 The government has since continued to speak of the proposed Office on Missing Persons, and stated that it would be established through legislation. Below are the steps necessary to implement the commitment: 1. Design a plan for an Office on Missing Persons, including temporal and substantive mandates, powers, functions, composition, and incidental legal features. In designing an office to clarify the fate of the missing, Sri Lanka appears to be advised by the ICRC. A number of issues would have to be addressed. These include: - Establishment. Whether the body is to be temporary or permanent, and what its management structure would be; - Mandate. Temporal mandate (the notion of a temporal mandate with respect to disappearances is conceptually problematic and practically controversial as enforced disappearance is a continuing crime) and subject matter mandate (whether the Office is mandated to look into all missing persons or those who are missing within a particular context, such as that of an armed conflict); - Staffing. This is of particular importance given two factors. First, securing the technical competencies required by investigations of missing persons, and second, securing the participation of international personnel if necessary and as envisaged in OP4 of the resolution which refers to the freedom of the mechanism to obtain ―financial, material and technical assistance‖ from international partners including OHCHR. Flexibility with respect to these issues will require that the OMP is specifically excluded from the regular public service in which bureaucratic red tape and administrative regulations could undermine the effective functioning of the Office. - Structure. An effective OMP would contain at least the following units/sections: Investigation Unit, Forensic Unit, Registry of Missing Persons, Registry of Detained Persons, Policy Unit, Outreach Unit, Secretariat (for administration) and Psychosocial Unit;
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Ministry of Foreign Affairs Sri Lanka, ―Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council‖, 14 September 2015, at http://www.mea.gov.lk/index.php/en/media/media-releases/unhrc2015/6200-slfm-hrc30 (Last accessed 22/2/16). 14 OISL Report, op. cit., p. 249, Recommendation 25.
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- Resources and funding. Here too, given the explicit reference to the freedom of the mechanism to obtain financial assistance, and given the importance of an independently functioning body, it is desirable that the OMP be able to directly receive funding from external sources within and outside the country, in addition to budgetary allocations; - Functions. The OMP would ideally be tasked with the following functions: receive tracing requests; collect and store evidence and information collected from family members of missing persons; open and maintain missing persons files; maintain a registry of missing and detained persons; devise a policy to protect personal data; conduct comprehensive investigations in order to trace missing persons; exhumation and recovery of the dead; issue certificates of absence and make recommendation for registration of death; provide psychosocial support; maintain an emergency relief fund; assess victims needs and make recommendations for reparation; issue recommendations for prosecutions; and conduct outreach. - Powers. The OMP must have access to public premises, archives, and any other information, as well as the power to procure and receive any testimony. The Office should also have the power to summon any person to give evidence, including under oath. Regular legislative provisions on contempt relating to quasi-judicial bodies must be incorporated. The Office should also be specifically vested with powers relating to forensic analysis, as well as exhumation and recovery of human remains. Finally the OMP should be empowered to issue certificates of absence and to make recommendations for registrations of death. - Appeals and Accountability. The OMP must be established in a way that it is accountable to victims. This means that decisions of the OMP must be subject to appeal procedures and judicial review. As devising the OMP is an administrative task, and because the Sri Lankan government has already been in consultations with ICRC for a significant period of time, this step could be undertaken comfortably within the short term (within three months). Even if the Sri Lankan government were to wait till consultations on the design of Transitional Justice mechanisms are concluded, this step could still be concluded within three months as the consultations are due to conclude in mid-April 2016.15 2. Obtain Cabinet approval for a Cabinet paper to establish an Office on Missing Persons (OMP). As the proposed Office is to be established by an Act of Parliament, Cabinet approval must first be obtained before a Bill is sent to Parliament. This is a formality once the government makes a decision on how to devise the OMP. It could be implemented within the short term.
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Secretariat for Coordinating Reconciliation Mechanisms , ―Frequently asked questions‖, 2016, at http://www.scrm.gov.lk/#!faqs/k30p5 (last accessed 22/02/16).
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3. Gazette a Bill to establish an OMP and place it on the Order Paper of Parliament. As the proposed Office is to be established by an Act of Parliament, the draft Bill must be gazette and placed on the Order Paper of Parliament. This is a formality once the government makes a decision on how to devise the OMP. It could be implemented within the short term. 4. Ensure passage of Bill through Parliament to establish an OMP, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR. The Bill would, if challenged in the Supreme Court, be subjected to a determination process which could last up to four weeks, and thereafter the Bill would be taken up by Parliament for debate and eventually a vote. The entire procedure could be completed within several weeks, but may take longer if there is substantial committee stage discussion on the Bill. In any event, it could be implemented within the short term. However, in view of possible delays in Parliament, this step could be considered to be implementable within the medium term (within 12 months). 5. Nominate and appoint officers/members of the OMP. Once the Act is passed, the appointing authority must appoint the officers constituting the OMP. This is a merely administrative step, but it is essential that appointments are made so as to ensure the credibility and capacity of the Office to carry out its functions. This step could be implemented within the medium term. 6. Take logistical steps necessary to equip, resource and staff the OMP to carry out its mandate. The OMP must be staffed and financed adequately. Continuous training in key skills must also be provided to staff and experts. This step could be implemented within the medium term. 7. Transfer all materials, records and evidence collected by former Commissions of Inquiry pertaining to enforced disappearances including the Paranagama Commission to the OMP. The records belonging to previous Commissions of Inquiry ought to be preserved by the Presidential Secretariat. In the event they are not, they will have to be retrieved from wherever they are currently held. To avoid administrative delays, the requirement that these records be handed over to the OMP must be explicitly specified by legislation. This step could be implemented within the medium term. 8. Provide continued support including funding for the work of the OMP. This step would have to be implemented over the long term (beyond 12 months). However, several challenges are anticipated:
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Although the proposal for an OMP has widely been described as non-contentious, and pointing to the possibility of the government unveiling it early, the question of whether the OMP would pass on its files and evidence—once investigations are concluded—to prosecutors would have to be addressed. The ICRC‘s potential involvement in a process would usually mean that information passed on to the OMP by ICRC be withheld from prosecutors,16 but this does not require the entirety of the Office‘s files to be excluded from use in criminal trials. However, there are some who claim that the truth-recovery function of the Office would be impeded if perpetrators desist from approaching the OMP for fear of being prosecuted. Experience has shown, however, that perpetrators respond positively to well-conceived systems of rewards and punishments, such as that devised for the South African Truth and Reconciliation Commission, whereby the Commission was empowered to grant amnesty in return for full disclosure, but prosecutors were expected to prosecute those who either did not apply for amnesty or whose amnesty applications were rejected.17 For this reason, SACLS believes a blanket ban on transferring OMP files and cases to prosecutors would not serve the interests of either truthrecovery or justice. On the contrary, a scheme whereby perpetrators are able negotiate agreements for non-prosecution or plea bargains with prosecutors via the OMP in exchange for cooperation would better serve the demands of both truth and justice. B. Develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of IHL, whether held in public or private institutions (OP15). International law and best practices on Transitional Justice are now beginning to crystallize a duty of the state to archive documentation relating to violations of human rights and IHL. 18 The Updated Principles on Action to Combat Impunity sets out a number of principles relevant to archiving. Principle 5 requires States to ―ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law.‖19 Principle 14 highlights the nexus between the right to know and the need for preservation of archives, noting that further ―technical measures and penalties should be applied to prevent any removal, destruction, concealment or falsification of archives, especially for the purpose of ensuring the impunity of perpetrators of violations of human rights and/or humanitarian law.‖ Principle 15 establishes that access to archives shall be facilitated, both to victims and, as necessary, to persons implicated who request it for their defence. Further, the updated set of principles is clear that
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See Toni Pfanner, ― Cooperation between truth commissions and the International Committee of the Red Cross‖, International Review of the Red Cross, Volume 88 Number 862 , June 2006, pp. 368-379. 17 See, The Promotion of National Unity and Reconciliation Act, No. 34 of 1995(South Africa), section 20. 18 See generally, UN Office of the High Commissioner for Human Rights, ―Rule of Law Tools for Post-Conflict States – Archives‖, New York, Geneva, 2015, at http://www.ohchr.org/Documents/Publications/HR_PUB_14_4_Archives_en.pdf (last accessed 22/02/16). 19 UN Human Rights Commission, ―Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity - Updated Set of principles for the protection and promotion of human rights through action to combat impunity‖, 61st session, 8 February 2005, U.N Doc. CN.4/2005/102/Add.1.
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access to archives must be granted to Transitional Justice institutions and that access may only be denied in exceptional circumstances, on specified grounds established by law. The importance of archiving for the success of all Transitional Justice mechanisms must also be highlighted. Transitional Justice mechanisms must rely on evidence, and much of this evidence would be unavailable if documents and records are not maintained. The OISL Report also recommended that Sri Lanka ―develop a comprehensive plan/ mechanism for preserving all existing records and documentation relating to human rights violations, whether held by public or private institutions.‖20 This recommendation was thereafter incorporated, nearly verbatim, into the resolution, in operative paragraph 15. Below are the steps necessary to implement the commitment: 1. Issue an order temporarily halting any destruction of any government records. Section 201 of the Penal Code makes it an offence to secrete or destroy ―any document which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant as such, or obliterates or renders illegible the whole or any part of such document with the intention of preventing the same from being produced or used as evidence before such court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose.‖ Thus, the destruction of documents by a person who is in possession of documents which she could lawfully be compelled to produce as evidence in a court or any proceeding before a public servant amounts to an offence. In implementing this prohibition, the government must act swiftly to order a temporary halt to the destruction of any government records, indicating that swift disciplinary action would be taken against those who breach the order. This is imperative, given that those motivated to destroy evidence of crimes relating to human rights violations and violations of IHL may intensify their efforts in the event a plan to establish an archive is announced. Thus, interim steps must be taken to safeguard potential evidence and documentation until a permanent body to undertake that work is established. This is an administrative step and could be implemented within the short term. 2. Establish by Presidential decree under Article 33(f) of the Constitution a temporary body to function until a statutory body takes over which would be empowered to transfer records and documents relating to possible IHRL and IHL violations to its own custody. Successive presidents have used their powers under Article 33(f) of the Constitution to establish Presidential Task Forces for a wide variety of purposes. While these bodies have sometimes been
20
OISL Report, op. cit., p. 249, Recommendation 29.
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used to flout established laws and bypass statutory bodies, an appropriately mandated body exercising delegated presidential power to safeguard documents and records in government custody would represent a positive use of the President‘s powers under Article 33(f). However, such a body, since it would not a creation of statute, would not be legally empowered to regulate private conduct. The body‘s mandate should terminate no sooner a permanent statutorily mandated authority is constituted after the due passage of legislation. This is an executive step and could be implemented within the short term. 3. Develop a comprehensive plan for preserving existing records and documentation. Parallel to establishing a temporary body to undertake the preservation of documents and archiving, the government must also develop a plan and devise permanent mechanisms to undertake archiving. In doing so, the following issues must be addressed: authorize one or more institutions to select, preserve and make available records of the government pertaining to IHRL and IHL violations; authorize one or more institutions to accept donations of non-governmental records and personal papers; consider under what conditions the body could require private persons to hand over documents in their possession; specify who has access to the records and under what conditions; ensure availability of records to Transitional Justice mechanisms; and introduce privacy and data protections mechanisms. This step could be introduced within the short term. 4. Obtain Cabinet approval for a Bill. This is a formality once the government makes a decision on how to devise a permanent mechanism to undertake archiving. It could be implemented within the short term. 5. Gazette a Bill on the lines described above and place it on the Order Paper of Parliament. This is a formality once the government makes a decision on how to devise a permanent mechanism to undertake archiving. It could be implemented within the short term. 6. Ensure passage of the Bill through Parliament. Subject to legal challenges, which are not foreseeable but technically possible, the legislative process could take up to three months. This step could be implemented in the medium term. 7. Take logistical steps necessary to equip, resource and staff institution(s) responsible for selecting, preserving and making available records. Archiving involves certain specialist skills and these specializations should be procured for the work of archiving in Sri Lanka. This step could be implemented within the medium term.
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8. Provide continued support including funding for the institution tasked with archiving. This step would have to be implemented over the long term.
C. Establish a Commission for Truth, Justice, Reconciliation and Non-Recurrence (OP4). The idea of a truth commission for Sri Lanka has been on the agenda of the national conversation on Transitional Justice for many years, if not decades. Ever since the proliferation of information, news and scholarship around the South African Truth and Reconciliation Commission, many in Sri Lanka—including civil society and government actors—have been drawn to the idea. The Rajapaksa government also entertained the idea of establishing a truth commission, primarily in an attempt to appease international pressure on accountability issues. 21 The then government engaged with the government of South Africa on multiple occasions—even sending study groups from Sri Lanka to visit South Africa—to explore the idea of a truth commission. Eventually, no significant movement was made. When the government changed, however, Prime Minister Ranil Wickremasinghe continued the previous government‘s engagement with South Africa, and has repeatedly claimed that a truth commission devised on the advice of the South Africans would be established in Sri Lanka.22 The government also appeared to be considering a ―Compassionate Council‖ of religious leaders to join the Truth Commission. Minister Samaraweera‘s address to the Human Rights Council clarified the envisaged structure, stating that the government would establish by statute, a: …Commission for Truth, Justice, Reconciliation and Non-recurrence to be evolved in consultation with the relevant authorities of South Africa. This mechanism is envisaged as having a dual structure: a ‗Compassionate Council‘ composed of religious dignitaries from all major religions in the country and a structure composed of Commissioners.23
Despite this clarification, the role of the envisaged ―Compassionate Council‖ remains unclear. As a consequence, questions about whether this Council would have the power to grant or recommend amnesty, or some sort of presidential pardon for those convicted by a special court, will inevitably arise. It is in the government‘s interest to clarify the scope of this Council, and ensure that it is not used to undermine the work done by other Transitional Justice mechanisms.
21
Krishan Francis, ―Sri Lanka mulls SAfrican model Truth Commission‖, The Associated Press, Colombo, 19 February 2014, at http://www.thejakartapost.com/news/2014/02/19/sri-lanka-mulls-safrican-model-truthcommission.html (last accessed 22/02/16). 22 ―Ranil lists immediate priorities for Sri Lanka‖, Daily FT, 27 March 2015,at http://www.ft.lk/2015/03/27/ranillists-immediate-priorities-for-sri-lanka/ (last accessed 22/02/16). 23 See Annexure I.
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Below are the steps necessary to implement the commitment: 1. Design a plan for and obtain Cabinet approval to establish a Commission. Designing a truth commission that addresses the manifold truth and justice needs in a post-armed conflict environment could be very challenging. The principal challenges facing policy makers are threefold: how to craft the policy orientation of the Commission; how to define the scope of the Commission‘s inquiries; and how to settle operational questions concerning the work of the Commission.24 With respect to the question of policy orientation, the instrument establishing the Commission should identify its objectives. These may be, for instance, to determine the facts surrounding violations and uncover hidden truths, to ensure the protection and promotion of human rights, or to usher in reconciliation. Thereafter, the functions of the Commission must be elucidated. These may include functions such as receiving information and complaints from the public and from victims; conducting investigations, protecting witnesses and victims, conducting public hearings, carrying out outreach, issuing interim and final reports, making recommendations for future reform and other related objectives. Thereafter, it is important to establish the scope of the inquiry in consultation with stakeholders. The balance between ensuring that as broad a cross section of victims could have their concerns heard on the one hand, with the need to provide the Commissioners as workable and practical mandate on the other, must be struck. The temporal scope of the mandate (what period the Commission would cover) and the substantive scope (what violations and crimes would the Commission cover) would be of critical importance in Sri Lanka, as large communities of victims could be excluded if the mandate is crafted too narrowly. Finally, the instrument establishing the Commission must address institutional factors. These include by whom and how the Commissioners to be appointed; whether the Commission would exercise certain coercive powers such as the power to summon persons, seize documents, and place witnesses on oath; how long the Commission is to function; how the Commission would be funded; and how the structure of the Commission is to be organized. While devising a Commission would involve resolving knotty and politically sensitive questions, the government has already had many months to discuss the issue, and as such, the step could be implemented within the short term. 2. Gazette a Bill to establish a Commission and place it on the Order Paper of Parliament. This is a formality and could be implemented within the short term. 24
See generally, Eduardo Gonzalez, ―Drafting a Truth Commission Mandate: A Practical Tool‖, ICTJ, June 2013, at https://www.ictj.org/sites/default/files/ICTJ-Report-DraftingMandate-Truth-Commission-2013_0.pdf (last accessed 22/02/16).
16
3. Ensure passage of Bill to establish a Commission, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR. This step could be implemented in the medium term. 4. Nominate and appoint Members of the Commission. Members of the Commission should be ―individuals known for displaying the highest degree of professionalism, integrity and impartiality‖25. They ought to be of good standing and repute and, depending on the functions that the Commission will be tasked with, they must have distinguished themselves by their contributions to democracy, human rights, international law, arts and culture, social sciences, medical sciences, psychology and forensic and medical sciences. Given that the law must stipulate the mode of appointment, this requires simple administrative steps, but appointments must not be delayed in order to ensure public confidence. This step could be implemented in the medium term. 5. Take logistical steps necessary to equip, resource and staff the Commission to carry out its mandate. The resolution refers to Sri Lanka‘s commitment to allow each mechanism the freedom to obtain financial, material and technical assistance from international partners. Investigators and case workers would also have to be trained intensively to deal with complex cases and traumatized victims. This step could be implemented within the medium term. 6. Provide continued support including funding for the work of the Commission. Truth commissions must be funded adequately. This step would have to be implemented over the long term. 7. Disseminate the work, findings and report of the Commission. Disseminating the work of the Commission is critical to changing perspectives on the ground, and assisting reconciliation. Further, the government must stand by the report of the Commission and disseminate it widely. This step would have to be implemented over the long term. 8. Implement recommendations of the Commission Report. Implementing the recommendations of a Commission report is a critical test of the willingness of the government to institute Transitional Justice measures, and a barometer to judge the success
25
UNHRC, Resolution 30/1, op. cit., preamble.
17
of Transitional Justice in a given country. These steps would have to be implemented over the long term. 9. Establish necessary successor organizations to disseminate and archive Commission materials. The legacy of a Commission must outlive its term, and for this reason, Commissions are sometimes succeeded by institutions responsible for disseminating their work and promoting their objectives. The Institute for Justice and Reconciliation in South Africa is one such institution. As the ICTJ notes: …responsibility for the continuing dissemination and maintenance of the commission‘s materials should be set out in the authorizing mandate, usually taking the form of a successor institution. This may be a new office on the site of the original commission or an existing institution capable of fulfilling this role, such as a historical archive or academic institute. In the latter case, it is important to ensure that it is an independent body, like a human rights ombudsman, with the ability to successfully engage with civil society and state institutions26.
D. Release publicly previous presidential commissions’ reports (OP14). In keeping with its commitment to the Human Rights Council in September 2015, the Sri Lankan government released the report of the Paranagama Commission of Inquiry on its second mandate27, as well as the report of the Udalagama Commission of Inquiry28. However, other Commissions‘ reports pertaining to human rights violations including the Mahanama Tillekeratne Commission‘s report into disappearances, the Commission‘s report on incidents in the Katunayaka Free Trade Zone, the Commission‘s report on the Welikada prison killings have not been released.29 This
commitment
could
be
implemented
26
in
the
short
term.
Eduardo González, Howard Varney (eds.), ―Truth Seeking: Elements of Creating an Effective Truth Commission‖, ICTJ, March 2013, at https://www.ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013English.pdf (last accessed 22/02/16), p. 69. 27 See Presidential Commission to Investigation into Complaints regarding Missing Persons, ―Report On the Second Mandate Of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances‖, August 2015, at http://www.pcicmp.lk/images/Reports/14_August_Final_Version.pdf (last accessed 22/02/16). 28 See Tharushan Fernando, ―Udalagama, Paranagama Commission Reports explained‖, Newsfirst, 21 October 2015, at http://newsfirst.lk/english/2015/10/udalagama-paranagama-commission-reports-explained/115163 (last accessed 22/02/16) : Both the Paranagama and Udalagama reports were tabled in Parliament, but the Udalagama Report does not appear to be published online to date. 29 For a list of Commissions of Inquiry and other investigative mechanisms relating to human rights instituted by the previous government, see: Centre for Policy Alternatives, ―A List of Commissions of Inquiry and Committees Appointed by the Government of Sri Lanka (2006–2012)‖, 12 March 2012, at http://www.cpalanka.org/a-list-ofcommissions-of-inquiry-and-committees-appointed-by-the-government-of-sri-lanka-2006-2012/ (last accessed 22/02/16).
18
III.
Special Courts and Justice for Crimes.
COMMITMENT: Establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of IHRL and IHL (OP6). Short term (within 3 months) 1. Devise a plan for and obtain Cabinet approval to establish a special court with a special counsel to prosecute in that court. Vest the special court with jurisdiction over war crimes and crimes against humanity. (see below)
Medium term (within 12 months) 3. Ensure passage of Bill to establish a special court and special counsel.
2. Gazette a Bill to establish a special court and special counsel and place it on the Order Paper of Parliament.
5. Take steps to ensure appointment of special counsel and prosecution team/teams.
4. Take steps to ensure appointment of judges and court staff in the special court.
Long term (more than one year) 7. Provide continued support including funding for the work of the judicial mechanism.. 8. Make specific accommodations to protect effectively witnesses and victims, investigators, prosecutors and judges.
6. Take logistical steps necessary to equip and resource special court and special counsel‘s office.
COMMITMENT: Reform domestic law to allow 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 IHL, including during the period covered by the LLRC (OP7). Short term (within 3 months) 1 Obtain Cabinet approval to criminalize under domestic law war crimes, crimes against humanity and enforced disappearance with retroactive effect till at least 2002. Also provide for modes of liability to allow for
Medium term (within 12 months) 3. Ensure passage of Bill on the lines described above.
19
Long term (more than one year)
prosecution of those most responsible for crimes, including command responsibility and joint criminal enterprise/coperpetration. 2. Gazette a Bill to criminalize the above offences and provide for modes of liability under international criminal law, and place the Bill on the Order Paper of Parliament.
COMMITMENTS: Address all reports of sexual and gender-based violence and torture (OP17). Short term (within 3 months) 1. Nominate and mandate an appropriately empowered and independent authority (for example, the National Human Rights Commission) to investigate all public reports of sexual violence and torture.
Medium term (within 12 months) 2. Adequately resource, staff and train such authority to conduct investigations.
Long term (more than one year)
3. Where evidence exists of sexual violence and torture, take steps forthwith to prosecute perpetrators of such crimes. 4. Ensure administrative steps are taken to provide counselling, support and reparation for victims of sexual and gender-based violence and torture.
COMMITMENT: Investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and others members of civil society, as well as places of worship, and hold perpetrators of such attacks to account (OP11). Short term (within 3 months) 1. Nominate and mandate an
Medium term (within 12 months) 2. Adequately resource, staff 20
Long term (more than one year)
appropriately empowered and independent authority to investigate all public reports of attacks on various categories.
and train such authority to conduct investigations. 3. Where evidence exists, take steps forthwith to prosecute perpetrators of such crimes.
A. Establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of IHRL and IHL (OP6). The provisions of operative paragraph 6 were by far the most controversial and most negotiated feature of the entire resolution. In this regard, SACLS has articulated the necessity for a hybrid court in Sri Lanka—one that would accommodate the participation of international judges, lawyers, investigators and prosecutors in a special court wherein prosecutions are conducted by a special prosecutor—since early 2015.30 The need for substantial international participation arises in the context of the lack of credibility of the judicial system in Sri Lanka and the absence of core competencies within the legal community in respect of investigating and prosecuting system crimes. Foreign Minister Mangala Samaraweera‘s speech in Geneva referred to the government‘s proposal to establish a judicial mechanism with a special counsel.31 Signalling an anticipated backlash in Sri Lanka, he noted that: There have been previous instances as well in Sri Lanka when criminal justice mechanisms of different kinds have been set up. This, therefore, is not at all an alien concept. Neither is it aimed at a particularly group of persons, but something that is essential in terms of upholding the rule of law, and creating a society that respects the rule of law32.
However, this speech did not refer to the possibility of any foreign participation in trials. At the press conference to mark the launch of the OISL Report, the High Commissioner placed heavy emphasis on the OISL‘s recommendation that Sri Lanka establish a hybrid court, noting the level of mistrust in the domestic criminal justice system and stating that:
30
See Rhadeena de Alwis and Niran Anketell, ―A Hybrid Court: Ideas for Sri Lanka‖, SACLS, April 2015, at https://drive.google.com/file/d/0B99WBl4LrZxIUjNab2F0QWpROVU/view (last accessed 22/02/16). See also Niran Anketell, ―Building Credible Mechanisms for Domestic Accountability and Transitional Justice: Prosecutions and Criminal Justice‖, Daily FT, 23 January 2015, at http://www.ft.lk/2015/01/23/building-credible-mechanismsfor-domestic-accountability-and-transitional-justice-prosecutions-and-criminal-justice/ (last accessed 22/02/16). 31 See Annexure I. 32 Ibid.
21
…it is for this reason that the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, is so essential. A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises.33
The OISL Report generated fresh impetus for the UNHRC Resolution 30/1 to assert the importance of international participation in criminal trials. The draft resolution went through multiple iterations before a consensus formula was agreed upon. The eventual text affirms the importance of accountability and criminal prosecutions, notes with appreciation the government‘s proposal to establish a judicial mechanism with a special counsel and then ―affirms in this regard 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.‖34 1. Design a plan for and obtain Cabinet approval to establish a special court with a special counsel to prosecute in that court. Vest the special court with jurisdiction over war crimes and crimes against humanity. A special judicial mechanism on the lines outlined in the resolution should contain a special counsel‘s office with investigative and prosecutorial powers; as well as trial and appellate chambers. Further, the court registry must include a unit for witness and victim support and protection, a unit to support defence as well as an outreach unit similar to those established within hybrid ad-hoc courts. SACLS has already published a detailed analysis on how a fully functional special court with international participation at all levels could be established within the terms of Sri Lanka‘s existing constitution.35 However, the government would have to decide, ideally once national consultations now underway are concluded, on the balance of foreign and local participation and the manner in which Commonwealth and other foreign judges, lawyers, investigators and prosecutors are to be sourced and appointed. If the court is conceived as an ad-hoc court, the government would have to decide for what length of time the court would operate, granting however the possibility that existing cases may extend long beyond a government-appointed deadline. This step could be implemented within the short term.
33
UN Office of the High Commissioner for Human Rights, ―Zeid urges creation of hybrid special court in Sri Lanka as UN report confirms patterns of grave violations‖, 16 September 2015, at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=16432#sthash.Ehj7GvSJ.dp uf (last accessed 22/02/16). 34 UNHRC Resolution 30/1, op. cit., para. 6. 35 See Rhadeena de Alwis and Niran Anketell, ―A Hybrid Court: Ideas for Sri Lanka‖, SACLS, April 2015, at https://drive.google.com/file/d/0B99WBl4LrZxIUjNab2F0QWpROVU/view (last accessed 22/02/16).
22
2. Gazette a Bill to establish a special court and special counsel and place it on the Order Paper of Parliament. Once a plan for the court is devised, this step is a formality and could be implemented within the short term. 3. Ensure passage of Bill to establish a special court and special counsel. Assuming a constitutional challenge of the Bill, process between gazetting the Bill and eventual passage through Parliament could take several months. This step could therefore be implemented within the medium term. 4. Take steps to ensure appointment of judges and court staff in the special court. This step could be undertaken with the medium term. Modes of appointment are already provided in the constitution.36 5. Take steps to ensure appointment of special counsel and prosecution team/teams. This step could be undertaken within the medium term. Modes of appointment would have to be specified by law. 6. Take logistical steps necessary to equip and resource the special court and special counsel’s office. This is a vital step given the various technical competencies—forensic and investigative skills, domestic criminal law, international criminal law, international law, courtroom advocacy and case management—required for investigations and prosecutions of complex crimes. This will require intense training for both local and foreign staff, as well as generous financial resources to ensure information technology systems, physical space, on-demand consultants, translation services, security and effective outreach. This step could be undertaken within the medium term. 7. Provide continued support including funding for the work of the judicial mechanism. Sustaining a special court could involve significant budgetary implications. It is essential that funding is secured in advance, either through budgetary allocations or bilateral funding, in order to avoid funding shortages which have threatened to cripple some ad hoc hybrid courts such as the Khmer Rouge Tribunal (ECCC) in Cambodia.37
36
See generally, Rhadeena de Alwis and Niran Anketell, ―A Hybrid Court: Ideas for Sri Lanka‖, SACLS, April 2015, at https://drive.google.com/file/d/0B99WBl4LrZxIUjNab2F0QWpROVU/view (last accessed 22/02/16). 37 See for e.g., Open Society Justice Initiative, ―Performance and Perception: The Impact of the Extraordinary Chambers in the Court of Cambodia‖, Open Society Foundations, 17 February 2016, at
23
This step would have to be implemented over the long term. 8. Make specific accommodations to protect effectively witnesses and victims, investigators, prosecutors and judges. This step is a specific requirement of operative paragraph 9 of the resolution. When devising the court, the government should pay attention to how a witness and victim support unit within the court would interact with national institutions established under the Protection of Victims and Witnesses Act. This step could be undertaken over the long term. Challenges anticipated: Within months of the passage of the HRC resolution, the government‘s commitment to fully implement operative paragraph 6 of the resolution has already been cast in doubt. President Sirisena appeared to rule out the possibility of international participation in trials in an interview with BBC Sinhala38, only to state in his 2016 Independence Day address that the resolution would be implemented39. At around the same time, the Sri Lankan government also committed, during bilateral discussions with the European Union, that the full implementation of the October 2015 resolution was a priority40. Nevertheless, the President‘s comments point to potential problems with respect to the design of the court. Further, it is not clear whether the President‘s stated opposition to foreign participation is limited to foreign judges, or whether he is similarly opposed to the participation of foreign prosecutors and investigators who are indubitably of much greater importance to the success of a court than sitting judges.
https://www.opensocietyfoundations.org/reports/performance-and-perception-impact-extraordinary-chambers-courtcambodia (last accessed 22/02/16). 38 ―President tells BBC no foreign judges will be allowed, but PM speaks of foreign participation‖, 31 January 2016, at http://www.sundaytimes.lk/94312/president-tells-bbc-no-foreign-judges-will-be-allowed-but-pm-speaks-offoreign-participation (last accessed 22/02/16). 39 ―Speech Delivered by President Sirisena at the 68th Independence Day Celebrations‖, 4 February 2016, at https://www.president.gov.lk/news/speech-delivered-by-president-maithripala-sirisena-at-the-68th-independenceday-celebrations-on-february-4-2016/ (last accessed 22/02/16). 40 ―EU-SL recognise full implementation of UN resolution as a priority‖, 21 January 2015, Adaderana.lk, at http://www.adaderana.lk/news/33888/eu-sl-recognise-full-implementation-of-un-resolution-as-a-priority (last accessed 22/02/16).
24
B. Reform domestic law to allow 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 IHL, including during the period covered by the LLRC (OP7). The OISL report specifically noted that ―acts amounting to international crimes should be tried as such, and not merely as ordinary crimes‖.41 The report went on to quote an SACLS publication which argued that: ―prosecuting international crimes as regular Penal Code offences ignored the widespread, systematic and structural elements that inhere in the definitions of international crimes‖.42 The OISL‘s recommendations also called for the enactment of ―legislation to criminalize war crimes against humanity, genocide and enforced disappearances, without a statute of limitation‖.43 It also called on Sri Lanka to enact various modes of criminal liability, ―notably command or superior responsibility‖.44 Of course, the question about whether new legislation could be applied to past crimes arises in this regard. Usually, retroactive criminal laws are considered repugnant to the constitution, and the constitution explicitly prohibits such laws in Article 13(6). However, the proviso to that Article specifically excludes crimes according to the ―general principles of law recognized by the community of nations‖ from the retroactivity rule, also known as the principle of legality in international law. The proviso in Article 13(6) is in fact borrowed from Article 15(2) of the ICCPR which also contains an identical proviso. The purpose behind this proviso in the ICCPR and the Sri Lankan constitution was to allow for retroactive laws criminalizing, under domestic law, acts that were criminal according to international law at the time of their commission. For this reason, the retroactive criminalization of war crimes, crimes against humanity, genocide and enforced would not infringe constitutional provisions. Sri Lankan courts have also previously held in Sepala Ekanayake’s case45 that the retroactive criminalization of the offence of air piracy did not violate the constitution. This was because the act of air piracy by the accused was criminal according to the general principles of law recognized by the community of nations at the time it was committed. The resolution‘s language on the retroactive incorporation of international crimes was intensely negotiated. The resulting text is highly technical and directly uses language borrowed from Article 13(6) of the Constitution. Further, the element of retroactivity was introduced into the resolution through a discreet and seemingly innocuous reference to violations committed ―including during the period covered by the Lessons Learnt and Reconciliation Commission‖. A 41
OISL Report, op. cit., p. 240. Ibid. 43 OISL Report, op. cit., p. 250, Recommendation 18. 44 Ibid. 45 See Ekanayake vs. Attorney General 1987 (1) Sri LR 107; Ekanayake vs. Attorney General 1988 (1) Sri LR 46 42
25
requirement that modes of liability required to prosecute those up the chain of command was also introduced through another seemingly innocuous reference to the trial and punishment of ―those most responsible for the full range of crimes‖ under international law. 1. Obtain Cabinet approval to domestically criminalize offences such as war crimes, crimes against humanity and enforced disappearance with retroactive effect till at least 2002. Also provide for modes of liability to allow for prosecution of those most responsible for crimes, including command responsibility and joint criminal enterprise/coperpetration. Once a decision to incorporate international crimes is made, Cabinet approval could be obtained within the short term. 2. Gazette a Bill to criminalize the above offences and provide for modes of liability under international criminal law, and place the Bill on the Order Paper of Parliament. This is a mere technicality. Sri Lanka could borrow the definition of crimes verbatim from the Statute of the ICC, or from some other statute. This step could be implemented within the short term. 3. Ensure passage of Bill on the lines described above. This step could be implemented in several months, in the medium term.
C. Address all reports of sexual and gender-based violence and torture (OP17). The OISL Report records disturbing evidence, in shocking detail, of systematic rape, sexual assault and torture against men and women in military and police custody. 46 As such, the resolution reflects international consternation concerning this issue. It is clear that existing investigative processes have not yielded any results in stemming the tide of impunity. As such, and until other Transitional Justice mechanisms including a special judicial mechanism are instituted, it is important that an independent authority with the capacity and credibility to investigate these crimes be mandated to conduct investigations. 1. Nominate and mandate an appropriately empowered and independent authority (for example, the National Human Rights Commission) to investigate all public reports of sexual violence and torture. Section 14 of the Human Rights Commission Act No. 21 of 1996 empowers the Commission to:
46
OISL Report, op. cit., pages 109-128.
26
…on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, investigate an allegation of the infringement or imminent infringement of a fundamental right of such person or group of persons caused(a) by executive or administrative action; or (b) as a result of an act which constitutes an under the Prevention of terrorism Act, No. 48 of 1979, committed by any person.
Thus, the government could request the Commission to investigate all public reports of sexual violence and torture ex mero motu; or request the Commission on behalf of the aggrieved persons in respect of whom the State has a duty to protect and promote their fundamental rights, to investigate these allegations. This step could be implemented within the short term. 2. Adequately resource, staff and train such authority to conduct investigations. The investigation of sexual violence, particularly in conflict, requires expert personnel trained in conducting such investigations. These resources must be made available to the Commission. This step could be implemented within the medium term. 3. Where evidence exists of sexual violence and torture, take steps forthwith to prosecute perpetrators of such crimes. This step could be implemented within the medium term. 4. Ensure administrative steps are taken to provide counselling, support and reparation for victims of sexual and gender-based violence and torture. This step too could be implemented within the medium term.
D. Investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and others members of civil society, as well as places of worship, and hold perpetrators of such attacks to account (OP11). This paragraph in the resolution is an near verbatim reproduction of operative paragraph 4 of HRC Resolution 25/1 relating to Sri Lanka passed at the Human Rights Council in March
27
2014.47 With OP11, the onus now passes on the new government to investigate such attacks. Despite some progress with respect to a small number of emblematic cases, the vast majority of attacks described have not been sufficiently investigated or dealt with. 1. Nominate and mandate an appropriately empowered and independent authority to investigate all public reports of attacks on various categories. To fully implement the government‘s commitment, and given the inevitable delays in investigations, a special unit within the police or otherwise could be tasked to investigate the attacks described in the resolution, at least until other Transitional Justice mechanisms are unveiled. This step could be implemented within the short term. 2. Adequately resource, staff and train such authority to conduct investigations. This step could be implemented within the medium term. 3. Where evidence exists, take steps forthwith to prosecute perpetrators of such crimes. This step could be implemented within the medium term.
47
UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Resolution 25/1, 25th session, 27 March 2014, U.N. Doc. A/HRC/RES/25/1, para. 4.
28
IV.
Legal and Institutional Reforms.
COMMITMENT: Review the witness and victim protection law and strengthen protections by making specific accommodations to protect effectively witnesses and victims (OP9). Short term (3 months) 1. Appoint and mandate a body to review the witness and victim protection law and recommend amendments. 2. Obtain Cabinet approval to amend the witness and victim protection law. 3. Gazette a draft Bill to amend the witness and victim protection law and place it on the Order Paper of Parliament.
Medium term (12 months) 4. Ensure passage of the Bill through Parliament. 5. Make appointments to a reconstituted Witness and Victim Protection Authority and the Witness and Victim Protection Division in terms of the amended Act of Parliament.
Long term (more than one year) 7. Provide continued support including funding for the work of implementing the Act.
6. Take logistical steps necessary to equip, resource, staff and train officers in the Authority and the Division.
COMMITMENT: Review and replace the Prevention of Terrorism Act (PTA) with antiterrorism legislation in accordance with international best practices and review the Public Security Ordinance (PSO) (OP12). Short term (3 months) 1. Appoint and mandate a body to review the PTA and the PSO and recommend anti-terrorism legislation in line with international best practices.
Medium term (12 months) 4. Ensure passage of the Bill to repeal and replace the PTA, and if necessary the PSO, through Parliament.
2. Obtain Cabinet approval to repeal the PTA, and if necessary the PSO, replacing existing legislation with antiterrorism legislation in line with international best practices. 29
Long term (more than one year)
3. Gazette the Bill to repeal and replace the PTA, and if necessary the PSO, and place it on the Order Paper of Parliament.
COMMITMENT: Issue certificates of absence to the families of missing persons as a temporary measure of relief (OP13). Short Term (3 months) 1. Devise a plan for and obtain Cabinet approval to amend existing provisions to enable issuance of certificates of absence. 2. Gazette a Bill enabling issuance of certificates of absence, and place it on the Order Paper of Parliament.
Medium Term (12 months) 3. Ensure passage through Parliament of the Bill. 4. Take logistical steps necessary to equip, resource, staff and train officers responsible for issuing certificates of absence and those involved in the provision of social services and welfare.
Long term (more than one year) 5. Provide continued support including funding for the work of providing certificates of absence as a temporary measure of relief.
COMMITMENT: Achieve a political settlement by taking the necessary constitutional measures and fulfill its commitments on the devolution of political authority (OP16). Short Term (3 months) 1. Mandate a body to conduct national consultations on constitutional measures to be undertaken. 2. Establish a forum for the discussion and negotiation of constitutional reform.
Medium Term (12 months) 3. Formulate provisions for constitutional measures fulfilling, inter alia, the government‘s commitments on the devolution of political authority. 4. Obtain Cabinet approval for constitutional measures addressing, inter alia, the issue of devolution. 5. Gazette a Bill for the amendment/replacement of 30
Long term (more than one year) 6. Ensure Bill on constitutional measures addressing, inter alia, the issue of devolution finds passage through Parliament. 7. Ensure Bill is approved at a referendum.
the Constitution and place it on the Order Paper of Parliament. COMMITMENT: Establish an Office for Reparations (OP4). Short Term (3 months) 1. Formulate a national reparations policy, considering the specific needs of each category of victims, including women and children.
Medium Term Long term (12 months) (more than one year) 2. Obtain Cabinet approval to 6. Make allocations for establish an Office for reparations in each Reparations. Ensure this year‘s budget until office is able to implement conclusion of the reparations related reparations programme. recommendations of other TJ mechanisms including the special court, Office for Missing Persons and the Truth, Justice, Reconciliation and NonRecurrence Commission. 3. Gazette a Bill to establish an Office for Reparations, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR. 4. Ensure passage of Bill through Parliament. 5. Take logistical steps necessary to equip, resource, staff and train officers in the Office for Reparations.
31
A. Review the witness and victim protection law and strengthen protections by making specific accommodations to protect effectively witnesses and victims (OP9). In February 2015, shortly after the new government came into power, it secured the passage through Parliament of the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of. 2015. The Act was drafted by the previous government, but had not been passed. The question of witness and victim protection assumed greater significance after the new government came into power, particularly given its commitments on accountability and Transitional Justice. Thus, the content of the new Act and the sufficient of the protection afforded by its provisions came into sharper focus. In August 2015, SACLS published a paper highlighting the main weaknesses of the new Act.48 These are: excessive weightage towards ex-officio and state sector membership in the Witness and Victim Protection Authority; the Witness and Victim Protection Division‘s lack of independence from the regular police hierarchy; the absence of clear criteria to assess whether a victim or witness requires protection; the absence of provision for international relocation; and the overly restrictive rules relating to the provision of audio-visual testimony. The OISL Report released thereafter echoed the identical concerns, and recommended that the government review the Act with a view to incorporating better safeguards for the independence and effectiveness of the witness protection programme.49 Further, Minister Samaraweera‘s speech committed Sri Lanka to a review of the Act.50 It was in this background that the paragraph on witness and victim protection came to be included in the resolution. Notwithstanding these commitments, the government has since proceeded to appoint members to the Authority,51 and there appears to be no progress in revising the Act, despite OHCHR experts making themselves available to the government for this specific purpose. As originally feared, the membership of the Authority is heavily state-centric, with no participation of civil society actors or those with expertise in protection.
48
Aruni Jayakody, ―Victim and Witness Protection: The Need for Further Reform‖, SACLS, August 2015, at https://drive.google.com/file/d/0B8Ja0Q7UL-o0c3FVcmJLb3pNTEE/view (last accessed 22/02/16). 49 OISL Report, op. cit., pp.249-250, Recommendation 17. 50 See Annexure I. 51 ―National Authority Set Up on Witness and Victim Protection‖, The Independent.lk, 8 January 2016, at http://www.theindependent.lk/index.php/news/item/1919-national-authority-set-up-on-witness-and-victimprotection (last accessed 22/02/16).
32
1. Appoint and mandate a body or group of persons to review the witness and victim protection law and recommend amendments. This is a relatively straightforward step as the main weaknesses of the Act have already been identified. This step could be implemented within the short term. 2. Obtain Cabinet approval to amend the witness and victim protection law. This step could be implemented within the short term. 3. Gazette a draft Bill to amend the witness and victim protection law and place it on the Order Paper of Parliament. This step too could be implemented within the short term. What is required are a few critical amendments to the existing provisions of the Act. 4. Ensure passage of the Bill through Parliament. This step could be implemented within the medium-term. 5. Make appointments to a reconstituted Witness and Victim Protection Authority and the Witness and Victim Protection Division in terms of the amended Act of Parliament. This step could be implemented within the medium term. 6. Take logistical steps necessary to equip, resource, staff and train officers in the Authority and the Division. This step could be implemented within the medium term. 7. Provide continued support including funding for the work of implementing the Act. This step would have to be implemented over the long term.
B. Review and replace the Prevention of Terrorism Act (PTA) with anti-terrorism legislation in accordance with international best practices and review the Public Security Ordinance (PSO) (OP12). The PTA is a draconian piece of legislation. Notably, the PTA was initially conceived as a temporary piece of legislation, reflected in the title of the Act which describes it as a ―Temporary Provisions‖ Act. Despite this, the Act later became a permanent feature of Sri Lanka‘s legal architecture. A report by the International Commission of Jurists described the Act as:
33
These provisions are quite extraordinarily wide. No legislation conferring even remotely comparable powers is in force in any other free democracy operating under the Rule of Law, however troubled it may be by politically motivated violence.52
The Act has also been responsible for many cases of torture and disappearance, as the regular protections afforded to suspects under the ordinary law were eviscerated by the PTA. In particular, the following features are among the most odious of the PTA‘s provisions: the possibility of executive detention through detention orders for a period of up to 18 months; confessions made to a police officer in custody being admissible in criminal proceedings against a suspect; the exclusion of judicial review for detention orders; and the non-availability of bail for suspects arrested under the PTA and pending trial. Successive Sri Lankan governments have repeatedly been requested to repeal the PTA and replace it with a law consistent with international law and best practices. The OISL Report also repeated this demand. Minister Samaraweera‘s speech, in September 2015, committed Sri Lanka to repeal and replace the PTA and review the PSO53. It is now public knowledge that the Law Commission has been working on a draft to review the PTA and suggest revisions.54 1. Appoint and mandate a body to review the PTA and the PSO and recommend antiterrorism legislation in line with international best practices. This appears to have been done in respect of the PTA. However, there is yet no known attempt to review the PSO. This step could be implemented within the short term. Indeed, it appears to have already been completed in respect of the PTA. 2. Obtain Cabinet approval to repeal the PTA, and if necessary the PSO, replacing existing legislation with anti-terrorism legislation in line with international best practices. This step could be implemented within the short term.
52
Paul Sieghart, ―Sri Lanka: A Mounting Tragedy of Errors - Report of International Commission of Jurists‖, 1 March1984, at http://www.icj.org/lanka-a-mounting-tragedy-of-errors-report-of-a-mission-to-sri-lanka-in-january1984-on-behalf-of-the-international-commission-of-jurists-and-its-british-section-justice/ (last accessed 22/02/16), p.33. 53 See Annexure I. 54 ―Law Commission to Present Draft Bill for PTA Amendment‖, Dailynews.lk, 10 February 2016, at http://www.dailynews.lk/?q=2016/02/10/local/law-commission-present-draft-bill-pta-amendment (last accessed 22/02/16).
34
3. Gazette the Bill to repeal and replace the PTA, and if necessary the PSO, and place it on the Order Paper of Parliament. This step could be implemented within the short term. 4. Ensure passage of the Bill to repeal and replace the PTA, and if necessary the PSO, through Parliament. This step could be implemented within the medium term.
C. Issue certificates of absence to the families of missing persons as a temporary measure of relief (OP13). Uncertainty surrounding the legal status of the disappeared affects family members in tangible ways. Family members are often unwilling to accept that their family members are dead, and thus are unwilling—even when legal options permit—to obtain certificates of death or other legal recognition of death. However, absent documentation establishing death, they are often excluded from access to social services and compensation provided to those whose family members are deceased, the possibility of remarriage, access to bank accounts, access to pensions; and legal succession to the disappeared person‘s estate. It is in this context that countries that have faced a high number of enforced disappearances have had recourse to ‗certificates of absence‘ to be given to family members. As CPA notes in a recent briefing paper: A ‗Certificate of Absence‘, as conceived here, would be an official document issued to family members of the disappeared persons, affirming their status as ―missing‖ as opposed to ―deceased.‖ This option has been used in countries that experienced high numbers of disappearances, based on the perception that it is better tailored to balance family members‘ emotional and psychological needs without dismissing the need for active investigation into cases of disappearances.55
The OISL Report did not explicitly recommend the issuance of certificates of absence. Instead, it only called for amending legislation to ensure that those who receive certificates of death in respect of their family members are not prevented from pursuing judicial cases to determine what happened to their loved ones.56
55
Center for Policy Alternatives, ―Certificates of Absence: A Practical Step to Address Challenges Faced by the Families of the Disappeared in Sri Lanka‖, September 2015, http://www.cpalanka.org/wpcontent/uploads/2015/09/Certificates-of-Absence-FINAL.pdf (last accessed 22/02/16). 56 OISL Report, op. cit., p. 251, Recommendation 32.
35
However, Minister Samaraweera‘s speech to the Council did state that Sri Lanka was committed to issuing certificates of absence to families of the missing as a temporary measure of relief. This commitment was thereafter included in the resolution. 1. Design a plan for and obtain Cabinet approval to amend existing provisions to enable issuance of certificates of absence. This step could be implemented within the short term. Cabinet approval appears to have already been received.57 2. Gazette a Bill enabling issuance of certificates of absence, and place it on the Order Paper of Parliament. This step could be implemented within the short term. 3. Ensure passage through Parliament of the Bill. This step could be implemented within the medium term. 4. Take logistical steps necessary to equip, resource, staff and train officers responsible for issuing certificates of absence and those involved in the provision of social services and welfare. This step could be implemented within the medium term. 5. Provide continued support including funding for the work of providing certificates of absence as a temporary measure of relief. This step would have to be implemented over the long term.
D. Achieve a political settlement by taking the necessary constitutional measures and fulfill its commitments on the devolution of political authority (OP16). Issues not directly related to human rights are seldom included within the text of Human Rights Council resolutions. However, Minister Mangala Samaraweera‘s speech to the Council declared that the ―best guarantee for non-recurrence is of course a political settlement that addresses the grievances of the Tamil people.‖58 Because guarantees of non-recurrence are inherently part of the right to remedy under international human rights law, thus linking a political settlement with human rights, the efforts of those seeking inclusion of this commitment in the text of the
57
―Measures Underway to Issue Certificates of Absence: Minister‖, Dailynews.lk, 13 February 2016, at http://www.srilankamirror.com/news/item/8912-measures-underway-to-issue-certificate-of-absence-minister (last accessed 22/02/16). 58 See Annexure I.
36
resolution eventually bore success. Now that the commitment is included in the text of the resolution, Sri Lanka would be expected to implement it. 1. Mandate a body to conduct national consultations on constitutional measures to be undertaken. Implementation of this step has already commenced. 2. Establish a forum for the discussion and negotiation of constitutional reform. There have been some delays in establishing a Constitutional Assembly in which the entire Parliament sits in Committee, but owing to political wrangling over the resolution prepared to constitute the Assembly, this step has been delayed. 3. Formulate provisions for constitutional measures fulfilling, inter alia, the government’s commitments on the devolution of political authority. This step could be implemented within the medium term. 4. Obtain Cabinet approval for constitutional measures addressing, inter alia, the issue of devolution. This step could be implemented within a year, within the medium term. 5. Gazette a Bill for the amendment/replacement of the Constitution and place it on the Order Paper of Parliament. This step could be implemented within a year, within the medium term. 6. Ensure Bill on constitutional measures addressing, inter alia, the issue of devolution finds passage through Parliament. This step could only be implemented over the long term. 7. Ensure Bill is approved at a referendum. This step could only be implemented over the long term.
37
E. Establish an Office for Reparations (OP4). Reparations is an important but understudied aspect of Transitional Justice. Reparations typically involve restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.59 Typically, though not always, reparations policies are undertaken after other Transitional Justice mechanisms such as Truth Commissions have been implemented. These Commissions often make wide-ranging recommendations for reparations, and sometimes identify victims entitled to reparations. Nevertheless, there are strong arguments supporting the institution of reparations programmes at the early stage of Transitional Justice, to build trust and acknowledge the dignity of victims.60 Minister Mangala Samaraweera in outlining the government‘s Transitional Justice policies at the Human Rights Council stated that an Office for Reparations would be set up by statute ―to facilitate the implementation of recommendations relating to reparations made by the proposed Commission on Truth, Justice, Reconciliation and Non-recurrence, the Office of the Missing Persons, the LLRC and any other entity‖.61 This suggests that the Office may be sequenced to follow other mechanisms in time, but this is by no means a foregone conclusion. 1. Formulate a national reparations policy, considering the specific needs of each category of victims, including women and children. The OISL Report recommended that the government formulate of a national reparations policy in consultation with victims.62 This function could be played by a new Office of Reparations, but there is no reason why the government cannot formulate an interim policy until the relevant mechanisms are established. This step could be implemented within the short term. 2. Obtain Cabinet approval to establish an Office for Reparations. This step could be implemented within the short term.
59
UN Office of the High Commissioner for Human Rights, ―Rule of Law Tools for Post Conflict States: Reparations Programmes‖, 2008, New York, Geneva, p. 7, at http://www.ohchr.org/Documents/Publications/ReparationsProgrammes.pdf (last accessed 22/02/16). 60 See Dr. Mario Gomez‘s presentation at the panel discussion on ―The Paranagama Report and Transitional Justice: Politics, Positioning and Provenance‖, at https://www.youtube.com/watch?v=RMhy7neoxtQ (last accessed 22/02/16). 61 See Annexure I. 62 OISL Report, op. cit., p. 251, Recommendation 30.
38
3. Gazette a Bill to establish an Office for Reparations, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR. This step could be implemented within the short term. 4. Ensure passage of Bill through Parliament. This step could be implemented within a few months, and thus could feasibly be completed within the medium term. 5. Take logistical steps necessary to equip, resource, staff and train officers in the Office for Reparations. This step could also be implemented within the medium term. 6. Make allocations for reparations in each year’s budget until conclusion of the reparations programme. This step would involve substantial budgetary implication, and thus could only be implemented over the long term.
39
V.
Security Sector Reform.
COMMITMENT: Institute a fair administrative process to ensure that no scope exists for the retention in or recruitment into the security forces of anyone credibly implicated in serious crimes involving human rights violations or IHL (OP8). Short term (3 months) 1. Appoint and mandate a body of experts to design a vetting and lustration process for Sri Lanka.
Medium term (12 months) 2. Obtain Cabinet approval to institute a vetting and lustration process. 3. Gazette a draft Bill that would establish a vetting and lustration process, with provision for administrative appeals and the possibility of judicial appeals.
Long term (more than one year) 5. Take logistical steps necessary to equip, resource, staff and train those mandated to carry out vetting and lustration. 6. Provide continued support including funding for the work of vetting and lustration.
4. Ensure passage of the Bill through Parliament.
COMMITMENT: Increase training and incentives for the protection and promotion of human rights (OP8). Short term (3 months) 1. Increase training and incentives for the protection and promotion of human rights
Medium term (12 months)
Long term (more than one year)
COMMITMENT: End military involvement in civilian activities (OP10). Short term (3 months) 1. Establish deadlines for ending military involvement in different sectors: i.e. – tourism; retailing; transport; construction and road works; civilian administration etc.
Medium term Long term (12 months) (more than one year) 3. Establish a body empowered 5. Transfer the businesses to report on and monitor and enterprises previously compliance with deadlines, run by the military to and to temporarily manage civilian run state or nonany assets, properties or state management and monies associated with ownership. businesses or enterprises run by the military. 40
2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive.
4. Take effective steps to ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures.
COMMITMENT: Issue instructions clearly to all branches of the security forces that violations of IHRL and IHL, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished (OP17). Short term (3 months) 1. Issue instructions clearly to all branches of the security forces that violations of IHRL and IHL, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished.
Medium term (12 months)
Long term (more than one year)
COMMITMENT: Accelerate the return of land to their rightful civilian owners (OP10). Short term (3 months) 1. Establish deadlines for the handover of lands expropriated by the military. 2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive.
Medium term Long term (12 months) (more than one year) 3. Establish a body empowered 6. Continue to support to report on and monitor through financial and compliance with deadlines. administrative means the resettlement in lands by 4. Take effective steps to rightful owners ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures. 5. Provide financial, material and administrative support for those returning to their lands previously occupied by the military.
41
A. Institute a fair administrative process to ensure that no scope exists for the retention in or recruitment into the security forces of anyone credibly implicated in serious crimes involving human rights violations or IH (OP8). Vetting and lustration are important elements of integrated Transitional Justice solutions to countries which face a legacy of past abusive conduct, particularly by the security sector. 63 By removing those responsible for violations from the military, or preventing them being recruited, countries that undergo vetting mechanisms help build trust in the new dispensation, address the ‗impunity gap‘—the inevitable gap between crimes committed and individuals prosecuted—and also build a more secure future in which the chances of recurrence are significantly lower than they would have been without engaging in what is always a fraught and difficult process. For this reason, vetting programmes must be undertaken with a substantial degree of care. Further, it is essential that the rights of all concerned—including employees in the state sector—are protected throughout the process. Vetting programmes are thus very different to mass scale purges of the state or security sector sometimes undertaken by new governments. Vetting and lustration programmes are also very politically sensitive. For this, they are best sequenced to be undertaken at a time when public support for Transitional Justice measures are high. Moreover, to avoid panic within the ranks, vetting programmes must be preceded by an effective public information campaign setting out precise criteria by which the programme would be undertaken. The relevant procedures must also be laid down with clarity. There are a number of potential models to choose from. One model would involve screening of all members of the officer corps, and ensuring that promotions are denied those credibly implicated in human rights abuses. Another possible model is a more ambitious identification of those responsible for violations and excluding them from service. The political risks of a large scale removal of potentially dangerous individuals from the security sector and reintroducing them into society would however have to be handled with care. The OISL Report recommended a fully-fledged vetting process respecting due process to remove from office military and security force personnel and other public officials where there are reasonable grounds to believe they were involved in human rights violations.64 The UNHRC resolution thereafter echoed these concerns.
63
See generally UN office of the High Commissioner for Human Rights, ―Rule-of-law Tools for Post-conflict States; Vetting: an operational framework‖, New York, Geneva, 2006, at http://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf (last accessed 22/02/16). 64 OISL Report, op. cit., p. 249, Recommendation 12.
42
1. Appoint and mandate a body of experts to design a vetting and lustration process for Sri Lanka. Vetting programmes are highly sensitive and must be tailored specifically to the needs of the particular country, and of the particular security service concerned. To carry out the task of designing a vetting process, a team comprising local and international experts would ideally first be assembled. This team should comprise international experts in security sector reform and domestic experts. It is vital that these experts are given the time and space to evolve a programme best suited to Sri Lanka. However, mandating such a team is an administrative step and could be undertaken in the short term. 2. Obtain Cabinet approval to institute a vetting and lustration process. Once the team identifies a potential strategy or strategies, Cabinet must approve the proposed programme. Given the time necessary to develop a vetting programme, this step would have to be implemented within the medium term. 3. Gazette a draft Bill that would establish a vetting and lustration process, with provision for administrative appeals and the possibility of judicial appeals. This step could be implemented within the medium term. 4. Ensure passage of the Bill through Parliament. This step could be implemented within the medium term. 5. Take logistical steps necessary to equip, resource, staff and train those mandated to carry out vetting and lustration. This step would have to be implemented over the long term. 6. Provide continued support including funding for the work of vetting and lustration. This step would have to be implemented over the long term.
B. Increase training and incentives for the protection and promotion of human rights (OP8). 1. Increase training and incentives for the protection and promotion of human rights. This is a simple administrative step and could be implemented within the short term.
43
C. End military involvement in civilian activities (OP10). The Rajapaksa presidency and in particular, the post-war years of the Rajapaksa presidency, was characterized by the proliferation of military owned businesses and civilian activities in a variety of sectors. By running business operations as well as engaging in regular governance activities, the military became entrenched in the civilian landscape in the North and East. This phenomenon poses risks to the economy, particularly in the North and East which is slowly attempting to recover from the costs of protracted conflict. The crowding out of commercial space for private entrepreneurs by heavily subsidized competition from the military skews economic factors and distorts the economy. Moreover, the military‘s involvement in business could also have a corrosive impact on the military and on the larger health of Sri Lanka‘s democracy. The new government has repeatedly committed itself to restore the dignity of soldiers by limiting their employment to military functions and also to remove the military from civilian activities. Minister Samaraweera‘s speech referred to the government‘s intention to ensure ―disengagement of the military from commercial activities‖.65 Despite these assurances, the military continues to run business establishments openly in the North and East. The disengagement of the military from commercial activities will not take place overnight. It would require a phased out plan to transfer ownership of some of these activities to the state or private sector where appropriate, and in others, end the running of certain establishments. 1. Establish deadlines for ending military involvement in different sectors: i.e. – tourism; retailing; transport; construction and road works; civilian administration etc. The first step that ought to be undertaken is to establish feasible deadlines for ending military involvement on a sector by sector basis. Clearly, ending the running of hotels and other large infrastructure projects could take longer than the closing down of retail outlets. These deadlines could be arrived at in consultation with the military. This step could be implemented within the short term. 2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive. These deadlines must have the force of an order, which would require a Presidential decree by the Commander-in-Chief. The communication of this directive could and should take place within the short term.
65
See Annexure I.
44
3. Establish a body empowered to report on and monitor compliance with deadlines, and to temporarily manage any assets, properties or monies associated with businesses or enterprises run by the military. To ensure compliance with deadlines, an independent body—possibly a Presidential Task Force under Article 33(f) of the Constitution—must be empowered to monitor and report on compliance. This body could also be empowered to temporarily manage the transfer of business assets to the state of private sector, as appropriate. This step could be implemented within the medium term. 4. Take effective steps to ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures. The termination of military involvement in commercial activities must not be seen as an optional or voluntary exercise. It must be enforced. This step could be implemented within the medium term. 5. Transfer the businesses and enterprises previously run by the military to civilian run state or non-state management and ownership. This step would have to be implemented over the long term.
D. Issue instructions clearly to all branches of the security forces that violations of IHRL and IHL, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished (OP17). It is notable that despite the lapse of several months since the adoption of the resolution, this simple commitment has not been implemented. This requires a simple communication from the President or other appropriate authority. It could be implemented within the short term.
E. Accelerate the return of land to their rightful civilian owners (OP10). The new government has presided over the handing over to civilians of substantial tracts of land, Nevertheless, the military continues to hold vast areas of private and state land in the Northern and Eastern provinces. The government has repeatedly promised that owners should and will be able to be resettled in their own lands. However, there are significant delays in doing so, and it is unclear if the government intends to compel the military to hand over all private lands in the Valikamam area where the military continues to hold over 4,000 acres of private land. 45
1. Establish deadlines for the handover of lands expropriated by the military. Similar to disengagement from commercial activities, progress in this area also requires clear deadlines being established. The President himself has announced certain ad hoc deadlines in public, most recently where he announced that 100,000 displaced persons would be resettled in a period of six months.66 These deadlines must be transformed into tangible policy positions. 2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive. Similar to the issue of terminating military involvement in commercial activities, directives concerning the release of lands must have the force of an order, which would require a Presidential decree by the Commander-in-Chief. The communication of this directive could and should take place within the short term. 3. Establish a body empowered to report on and monitor compliance with deadlines. This step could be implemented within the medium term. 4. Take effective steps to ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures. This step could be implemented within the medium term. 5. Provide financial, material and administrative support for those returning to their lands previously occupied by the military. This step could be implemented within the medium term. 6. Continue to support through financial and administrative means the resettlement in lands by rightful owners. This step would have to be implemented over the long term.
66
―Sri Lanka President Pledges Land for 100,000 War Victims‖, AlJazeera America, 4 January 2016, at http://america.aljazeera.com/articles/2016/1/4/sri-lanka-president-pledges-land-for-100000-war-victims.html (last accessed 22/02/16).
46
VI.
General Commitments on Transitional Justice and Human Rights.
COMMITMENT: Engage in broad national consultations with the inclusion of victims and civil society, including NGOs, from all affected communities which will inform the design and implementation of TJ processes, drawing on international expertise, assistance and best practices (OP3). Short term (3 months) 1. Appoint and mandate a body to conduct national consultations. 2. Adequately resource the body conducting consultations.
Medium term (12 months) 6. Ensure outcome of consultations informs the design and implementation of TJ mechanisms.
Long term (more than one year) 7. Continue to engage in consultations with victims and other stakeholders throughout the process.
3. Take positive steps to ensure the safety and security of all those participating in consultations. 4. Release publicly the Report of the body conducting consultations. 5. Facilitate availability of international expertise and assistance to body conducting consultations. COMMITMENT: Continue engagement with the High Commissioner and OHCHR in the promotion and protection of human rights. Also engage with the High Commissioner and OHCHR in exploring appropriate forms of international support for and participation in Sri Lankan truth and justice processes (OP2). Short term (3 months) 1. Request the High Commissioner to assist in identifying suitable international personnel to function as judges, lawyers
Medium term (12 months) 2. Engage with the High Commissioner in exploring forms of financial, material and technical assistance from 47
Long term (more than one year)
prosecutors and investigators in the judicial mechanism.
international partners in respect of non-judicial TJ mechanisms.
COMMITMENT: Continue to co-operate with special procedure mandate holders, including by responding formally to outstanding requests (OP19). Short term (3 months) 1. Respond formally to outstanding requests OR issue a standing invitation to all thematic special procedure mandate holders.
Medium term (12 months) 2. Fix dates for visits in respect of outstanding requests for visits by special procedures mandate holders.
Long term (more than one year)
COMMITMENT: Sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay (OP13). Short term (3 months) 1. Sign the Convention.
Medium term (12 months)
Long term (more than one year)
2. Ratify the Convention. A. Engage in broad national consultations with the inclusion of victims and civil society, including NGOs, from all affected communities which will inform the design and implementation of TJ processes, drawing on international expertise, assistance and best practices (OP3). National consultations on the design and implementation of Transitional Justice mechanisms have become a sine qua non of a sensible, victim-centric Transitional Justice policy. Consultations are undertaken for a number of reasons in that they: help elicit the views of those whose voices may otherwise not be heard in decision making forums; create a sense of broad ownership over Transitional Justice mechanisms; help restore the dignity and equal citizenship of victims; and provide a forum for the dissemination of information to communities and victims about envisaged plans. An important issue arises in respect of the length of time during which consultations must be conducted. This is a politically relevant decision, because comparative experiences from other countries demonstrate that political momentum for Transitional Justice is a finite and eroding resource, and that once this momentum is lost, it is very difficult to initiate mechanisms 48
considered entirely feasible when momentum was available. As a result, despite the best of intentions, long drawn out consultations which eat into valuable time could harm Transitional Justice in the long run. A case in point is that of Nepal, where the Office of the High Commissioner helped conduct an 18 month process of consultations according to international best practices. However, by the time consultations were concluded, the available momentum and political space had inevitably shrunk, rendering progress on Transitional Justice more of a challenge than it otherwise would have been. 1. Appoint and mandate a body to conduct national consultations. A 11-member Task Force on consultations has already been mandated, and consultations commenced formally in Jaffna at a town hall meeting.67 The official website states that consultations will take place between 12 February 2016 and mid-April. The Special Rapporteur for Transitional Justice who consulted with the Task Force during his visit earlier this month commended the government for appointing a team ―made up entirely of representatives of civil society with a long trajectory in the defense of human rights.‖68 This step has been implemented within the short term. 2. Adequately resource the body conducting consultations. The United Nations Peace Building Fund is understood to be supporting consultations.69 This step could be implemented in the short term. 3. Take positive steps to ensure the safety and security of all those participating in consultations. The Task Force reportedly met senior military figures to brief them on consultations and obtain guarantees that the security of participants would not be undermined. However, it is unclear what specific steps the government has undertaken to guarantee security to participants and freedom from reprisals. This step would have to be implemented within the short term.
67
See generally Secretariat for Coordinating Reconciliation Mechanisms website, at : http://www.scrm.gov.lk/ (last accessed 22/02/16). 68 UN Office of the High Commissioner for Human Rights, ―Observations by the Special Rapporteur on the conclusion of his second advisory visit to Sri Lanka (26 January to 1 February 2016)‖, 10 February 2016, Geneva, at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17029&LangID=E (last accessed 22/02/16). 69 See Subinay Nandy, ―UN Is Now Working Closely With Sri Lanka‖, Colombo Telegaph, 9 January 2016, at https://www.colombotelegraph.com/index.php/un-is-now-working-closely-with-sri-lanka/ (last accessed 22/02/16).
49
4. Release publicly the Report of the body conducting consultations. Members of the Task Force have publicly guaranteed that the Report will be released publicly by the government, and that in the event the government does not, members of the Task Force will do so themselves.70 Given the suggested end-date of mid-April 2016, this step would have to be concluded within the short term. 5. Facilitate availability of international expertise and assistance to body conducting consultations. This appears already to have been done, through the engagement of the Special Rapporteur with the Task Force. It has been undertaken within the short term. 6. Ensure outcome of consultations informs the design and implementation of TJ mechanisms. This aspect is crucial, as the credibility of the process will depend largely on whether the government is willing to listen to the voices of victims and others in designing processes of reconciliation. This step would have to be undertaken in the medium term. 7. Continue to engage in consultations with victims and other stakeholders throughout the process. Consultations should not be a one-off exercise, but must continue throughout the process. This would therefore have to be implemented over the long term.
B. Continue engagement with the High Commissioner and OHCHR in the promotion and protection of human rights. Also engage with the High Commissioner and OHCHR in exploring appropriate forms of international support for and participation in Sri Lankan truth and justice processes (OP2). The resolution clearly envisaged the engagement of the government with the High Commissioner in exploring appropriate forms of international support for a participation in Transitional Justice mechanisms. Sri Lanka must undertake this commitment seriously, including by consulting with the High Commissioner on the personnel who could participate in judicial mechanisms, but also the nature of support necessary for non-judicial mechanisms.
70
See ―Courting Justice‖, Channel Eye Sri Lanka Rupavahini Corporation ; 10 February 2016, at https://youtu.be/y31AMd8kFy4?t=1909 (last accessed 22/02/16).
50
1. Request the High Commissioner to assist in identifying suitable international personnel to function as judges, lawyers prosecutors and investigators in the judicial mechanism. This step could be implemented within the short term. 2. Engage with the High Commissioner in exploring forms of financial, material and technical assistance from international partners in respect of non-judicial TJ mechanisms. This step could be implemented within the medium term, once specific proposals concerning each non-judicial mechanism emerges.
C. Continue to co-operate with special procedure mandate holders, including by responding formally to outstanding requests (OP19). On 17 December 2015, Sri Lanka took the commendable step of issuing a standing invitation to all special procedures mandate holders.71 1. Respond formally to outstanding requests OR issue a standing invitation to all thematic special procedure mandate holders. This step has already been implemented within the short term. 2. Fix dates for visits in respect of outstanding requests for visits by special procedures mandate holders. Now that standing invitations have been issued, Sri Lanka must fix dates with the special procedures who had made outstanding requests for visits at the time the standing invitation was made.
D. Sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay (OP13). Civil society activists and victims have long demanded that Sri Lanka ratify the Convention on Enforced Disappearances. The OISL also made this recommendation.72 Minister Samaraweera‘s speech committed Sri Lanka to ―sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay.‖73
71
For a list of countries that have issues standing invitations, see http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/StandingInvitations.aspx (last accessed 22/02/16). 72 OISL Report, op. cit., p. 250 Recommendation 19. 73 See Annexure I.
51
1. Sign the Convention. On 10 December 2015, Sri Lanka signed the Convention.74 This step was implemented in the short term. 2. Ratify the Convention. In comments to the press, Minister Samaraweera has noted that Sri Lanka would ratify the Convention once enabling legislation was finalized.75 Presumably, this enabling legislation refers to, among others, criminalizing enforced disappearances.
VII.
Conclusion.
The UNHRC Resolution 30/1 on Sri Lanka which the government co-sponsored sets out an ambitious reform agenda for Sri Lanka in the areas of human rights and Transitional Justice. Never before in Sri Lanka‘s history has any government embarked on an effort to deal with the past on the scale and manner currently undertaken. International pressure has been a centrally important driver in ensuring that Transitional Justice remained on Sri Lanka‘s post-war and postRajapaksa agenda. Nevertheless, with the government‘s ownership of the resolution through its act of co-sponsorship, Sri Lanka now has an opportunity to turn a corner and use the terms of the resolution as a roadmap to achieve meaningful reconciliation amongst its Peoples. To do so, it is essential that good faith efforts are made to fully implement that which the government voluntarily undertook to deliver. This Report attempts to contribute to that effort by clarifying the steps necessary to fully implement the government‘s commitments on Transitional Justice. If substantial progress could be made on each of the steps outlined in this Report, Sri Lanka could proudly claim to have won the hearts of the world, and more importantly, done justice to the many victims who now bravely demand what is rightly theirs.
74
See UN Office of the High Commissioner for Human Rights, Committee on Enforced Disappearances, Recent signatures and ratifications, at http://www.ohchr.org/EN/HRBodies/CED/Pages/RecentSignaturesRatifications.aspx (last accessed 22/02/16). 75 See ―Remarks to Media by Foreign Minister Mangala Samaraweera on Human Rights Day‖, Ministry of Foreign Affairs Sri Lanka, at http://www.mea.gov.lk/index.php/en/media/media-releases/6288-fm-hrday (last accessed 22/02/16).
52
53
CATEGORY
SHORT TERM
NO. OF STEPS MEDIUM LONG TERM TERM
TOTAL
Truth Telling and Right to Know
9
9
6
24
Special Courts and Justice for Crimes
6
10
2
18
Legal and Institutional Reform
11
13
5
29
Security Sector Reform
7
8
4
19
General Commitments on TJ and human rights
9
3
1
13
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Annexure I: Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council, 14 September 201576. Mr. President High Commissioner for Human Rights Excellencies Distinguished delegates I would like to begin by thanking you, and the members of the Council for the trust reposed in Sri Lanka at the 28th Session and agreeing to defer the release of the Report of the OHCHR Investigation on Sri Lanka. The time granted by the Council gave the Government much needed space to begin implementing its reform agenda, renew its engagement with the international community, including the High Commissioner for Human Rights, and his Office, and start taking steps aimed at achieving meaningful reconciliation, strengthening democratic institutions, good governance, the rule of law, and confidence building among communities affected by conflict for many years. Mr. President, The victory of the United National Front for Good Governance (UNFGG) at the Parliamentary election last month, enabled President Sirisena and Prime Minister Ranil Wickremesinghe to form a National Unity Government. Traditional rivals in Sri Lankan politics – the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP) thus came together, heralding a new culture of consensual politics in the country and creating much needed political and policy stability. An important feature in the August 17th election was the return of centrists to power in the legislature and the resounding defeat of extremists on both sides of the divide. As a result, the moderates in Parliament have once again secured power which augers well for progressive reform. This includes ensuring that the universal values of equality, justice, and freedom are upheld by fostering reconciliation between communities and securing a political settlement. Inaugurating the 8th Parliament just two weeks ago on the 1st of September, President Sirisena drew from the example of South Africa where the main political parties came together at a historic moment in that country. He affirmed that similarly, in the post-conflict context in Sri Lanka, the formation of a National Unity Government is essential to obtain the bipartisan consensus that is necessary to face the important challenges before our nation, which include reconciliation and peacebuilding. 76
Ministry of Foreign Affairs Sri Lanka, Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council, 14 September 2015, at http://www.mea.gov.lk/index.php/en/media/media-releases/unhrc2015/6200-slfm-hrc30 (Last accessed 22/2/16).
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Upholding good governance practices, the Parliament, on 1st September, rightly appointed as the Leader of the Opposition, the head of the Tamil National Alliance, Mr. R. Sampanthan, who is the leader of the Party that obtained the third highest number of votes at the election. The appointment of the Tamil National Alliance leader as Leader of the Opposition, as well as the appointment of the 44th Chief Justice of Sri Lanka in January were clear messages that in the new Sri Lanka, extraneous considerations such as ethnicity, religion, class or gender would not be used to deny anyone their rightful place. Mr. President, From May 2009 post-conflict reconciliation eluded us as a result of the short-sighted policies and the triumphalist approach that was adopted immediately following the end of the conflict. The National Unity Government is now approaching reconciliation afresh as a matter of urgent priority. As a Government that is responsible and accountable to her people, the National Unity Government remains firm in its resolve to do right by the people of the country, not in the least because of assurances given to the international community at any point in time, but because this is the only path available to ensure justice, remove the causes of terrorism and achieve a durable peace for the long-suffering people in our country. Mr. President, As you would agree, reconciliation is a process and it will take time. Many, I know are impatient. We understand their impatience and their right to be so. However, this process must be carefully planned. Our nation has faltered far too many times since Independence and we cannot afford to fail once again. Mr. President, The Government of Sri Lanka recognises fully that the process of reconciliation involves addressing the broad areas of truth seeking, justice, reparations and non-recurrence and for nonrecurrence to become truly meaningful, the necessity of reaching a political settlement that addresses the grievances of the Tamil people. With the mandate granted by the people, the President, Prime Minister, and the Government have already taken some important steps to create the conditions required for initiating a dialogue aimed at a political settlement. As you are aware, Mr President, item 93 of President Sirisena‘s manifesto in the lead up to the January 2015 election expressed the intention of the common candidate, if elected, to address issues of accountability through national independent judicial mechanisms. Accountability is essential to uphold the rule of law and build confidence in the people of all communities of our country, in the justice system. We also recognise fully, the importance of 56
judicial and administrative reform in this process. These are essential factors that must be addressed for the culture of accountability and the rule of law which have eroded through years of violence to once again be ingrained in our society. We recognise how important this is to prevent impunity not only for violations of human rights but corruption and other crimes; and how vital these processes are for the long-term development of our country and for the peace dividend to be felt by all our citizens including generations to come. These are lessons we have not only learnt from the experiences of other countries, but also from our own history and recent past. The ideas that the Government has evolved for setting up independent, credible and empowered mechanisms for truth seeking, justice, reparations and guarantees of non-recurrence within the framework of the Constitution include the following: -For truth seeking, the establishment by statute, of two mechanisms: (i) a Commission for Truth, Justice, Reconciliation and Non-recurrence to be evolved in consultation with the relevant authorities of South Africa. This mechanism is envisaged as having a dual structure: a ‗Compassionate Council‘ composed of religious dignitaries from all major religions in the country and a structure composed of Commissioners. For many victims of human rights abuses, from whichever community, where the perpetrators are unclear for a judicial mechanism to handle, or where the practices of the state and society have resulted in discrimination, this Commission will allow them to discover the truth, understand what happened and help remedy any sense of injustice. (ii) an Office on Missing Persons based on the principle of the families‘ right to know, to be set up by Statute with expertise from the ICRC, and in line with internationally accepted standards. -On the Right to Justice, what is being proposed is for a Judicial Mechanism with a Special Counsel to be set up by Statute. This takes into account the right of victims to a fair remedy and aims to address the problem of impunity for human rights violations suffered by all communities. There have been previous instances as well in Sri Lanka when criminal justice mechanisms of different kinds have been set up. This, therefore, is not at all an alien concept. Neither is it aimed at a particularly group of persons, but something that is essential in terms of upholding the rule of law, and creating a society that respects the rule of law. -On the Right to Reparations, an Office for Reparations to be set up by Statute to facilitate the implementation of recommendations relating to reparations made by the proposed Commission on Truth, Justice, Reconciliation and Non-recurrence, the Office of the Missing Persons, the LLRC and any other entity; Mr. President, In order to guarantee non-recurrence, it is proposed that a series of measures would be undertaken including administrative and judicial reform, and the adoption of a new Constitution. A series of measures including amending the penal code to criminalise hate speech and enforced disappearances 57
are also in process. The best guarantee for non-recurrence is of course a political settlement that addresses the grievances of the Tamil people. We hope that we can achieve this through the adoption of a new Constitution. A Constituent Assembly of Parliament will be set up for this purpose shortly. Mr. President, These mechanisms will be evolved and designed through a wide process of consultations involving all stakeholders, including victims. Moreover, each mechanism is envisaged to have the freedom to obtain assistance, both financial, material and technical from our international partners including the OHCHR. Additionally, Mr. President, the Government is committed to strengthening the National Human Rights Commission in line with the Paris Principles; sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay; maintain the moratorium on the death penalty with a view to its ultimate abolition; release previous Presidential Commission Reports such as Udalagama and Paranagama by the end of this month; begin issuing Certificates of Absence to the families of the missing as a temporary measure of relief; disengagement of the military from commercial activities; undertake security sector reform; invite a series of Special Rapporteurs to undertake visits to Sri Lanka in 2015 and beyond; issue instructions clearly to all branches of the security forces that torture, rape, sexual violence and other human rights violations are prohibited and that those responsible will be investigated and punished; review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices; review the Public Security Ordinance Act; and review the Victim and Witness Protection Act which was enacted this year. Steps are also being taken by the Office of National Unity and Reconciliation to extend psychosocial support to communities and individuals that are in need of such care. The pursuit of engagement of Sri Lankans living overseas belonging to all communities, and inviting them to assist in the Government‘s peacebuilding and reconciliation efforts is another undertaking that we take seriously. In this context, the review of the listing of 16 organisations and 424 individuals last year, under the provisions of UN Security Council Resolution 1373, is currently nearing completion. Mr. President, Defeating terrorism in Sri Lanka was a necessity. Today, we have greater freedom to deal with the causes of terrorism and engage in nation-building and peacebuilding as a result of the cessation of hostilities. The armed forces of our country have been hailed in the past for their discipline and professionalism. However, the reputation of the vast majority of the armed forces was tarnished because of the system and culture created by a few in positions of responsibility. Therefore, to all those who have doubts about a process of accountability, I would like to say, please don‘t fear. Maintain your confidence that a process of this nature would impartially observe due process and, in fact, help restore the good name of the armed forces. As we restore the credibility of the armed forces, we look forward to further contributing to peace and stability in the world through significantly greater engagement in peacekeeping and
58
humanitarian activities. In fact Sri Lanka recently signed on to the Kigali Principles on the Protection of Civilians. Mr. President, Today, we have a Government in place which acknowledges the suffering of victims across Sri Lanka‘s communities; a Government which recognizes the mistakes of the past; and is all too aware of the weaknesses of our institutions. A Government that does not seek to take cover by distorting concepts and principles such as sovereignty for its own selfish ends, but instead remains firmly committed to the welfare of all its citizens, remains open to dialogue, and to address difficulties and deficiencies with help and assistance from the international community where required. Those who are sceptical about Sri Lanka‘s ability to transform as a nation, and address all these issues, are many. They claim that there can never be justice in Sri Lanka; that there can never be recognition of all communities as equals. All I have to say to them is: look at what the people achieved on the 8th of January. The world had given up hope on Sri Lanka to such an extent that very few believed that what was achieved through democratic means on that day was within the realm of possibility in my country. This feat was repeated on the 17th of August when extremists on both sides of the divide failed to secure seats in Parliament. Therefore, I say to the sceptics: don‘t judge us by the broken promises, experiences and u-turns of the past. Let us design, define and create our future by our hopes and aspirations, and not be held back by the fears and prejudices of the past. Let us not be afraid to dream. Let us not be afraid to engage in meaningful dialogue aimed at finding solutions to problems as opposed to pointing fingers, heaping blame and scoring political points at the expense of future generations. We are committed and we require the patient understanding not only of the international community but all the right-minded citizens of Sri Lanka in this endeavour; we seek their understanding and assistance in walking hand in hand with us on this journey. This journey may not be as fast as some may want it to be. And for some, we may have already gone too far. But the Government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe has the political will and the courage of their convictions to ensure that we take the country forward, breaking the barriers of ignorance, fear, prejudice and hate. My plea to you Ladies and Gentlemen, is: trust us and join us to work together and create the momentum required to move forward and take progressive, meaningful and transformative steps to create a new Sri Lanka. Thank you.
59
Annexure II: Recommendations contained in the Report of the OHCHR Investigation on Sri Lanka (OISL)77. Recommendations General 1.
Develop a comprehensive transitional justice policy for addressing the human rights violations of the past 30 years and preventing their recurrence;
2.
Set up a high-level executive group to develop a coordinated, time-bound plan and oversee progress in implementing the recommendations contained in this report and previous reports by the High Commissioner to the Human Rights Council, as well as relevant outstanding recommendations of the LLRC and past commissions of inquiry;
3.
Invite OHCHR to establish a full-fledged country presence to monitor the human rights situation, advise on implementation of the High Commissioner‘s recommendations and of all HRC resolutions, and provide technical assistance;
4.
Initiate genuine consultations on transitional justice, in particular on truth-seeking, reparations and memorialization, with the public, victims and witness groups, civil society and other stakeholders. These should be accompanied by public education programmes that ensure informed participation in the process; Invite the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to continue his engagement so that he accompanies and advises in this process;
5.
Ensure full cooperation with the Special Procedures of the Human Rights Council. Invite the Special Representative of the Secretary-General on conflict-related sexual violence and the Special Representative of the Secretary-General on Children and Armed Conflict, the Special Rapporteurs on extrajudicial killings and torture, the Working Group on Arbitrary Detention and other relevant Special Procedures mandate holders to make early country visits.
Institutional reforms 6.
Ensure that the Constitutional Council is fully operational as soon as possible, so that it can appoint qualified new members of the
77
UN Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), 30 th session, 16 September 2015, U. N. Doc. A/HRC/30/CRP.2, p. 245 onwards.
60
utmost independence and integrity to key institutions such as the Human Rights Commission of Sri Lanka; 7.
78
Review legislation to strengthen the Human Rights Commission‘s independence and its capacity to refer cases to the courts;
8.
Initiate action to seek Supreme Court review of its decision in the Singarasa case78 to affirm the applicability of international human rights treaties in domestic law and reinstate the competence of the UN Human Rights Committee to consider individual complaints;
9.
Issue clear, public and unequivocal instructions to all branches of the military and security forces that torture, rape, sexual violence and other human rights violations are prohibited and that those responsible, either directly or as commander or superior, will be investigated and punished. Subject to due process, anyone suspected of being involved in such acts should be immediately suspended until an effective investigation has been completed. Order and end to all surveillance, harassment and reprisals against civil society actors, human rights defenders and journalists; ;
10.
Prepare an overall plan for security sector reform to ensure the civilian nature, independence and professionalism of the law and order forces, and reducing the role of the military in internal security matters;
11.
Clarify the roles and chain of command for all branches of the security forces, including the different intelligence services, the CID and the TID.
12.
Develop a fully-fledged vetting process respecting due process to remove from office military and security force personnel and any other public official where there are reasonable grounds to believe that they were involved in human rights violations;
13.
Ensure that no member of the Sri Lankan security forces is sent on a UN peacekeeping without vetting to establish that the individual, including commanders, have not in any way been involved in human rights violations or criminal acts. Any allegations of abuses by Sri Lankan peacekeepers while on peacekeeping duties must be fully investigated by the authorities;
14.
Prioritize the return of private land which has been occupied by the military and end military involvement in civilian activities;
15.
Take immediate steps to identify and disarm groups affiliated with political parties and sever their linkages with security forces, intelligence services and other Government authorities;
Nallaratnam Singarasa vs. Attorney General, SC Special App. (LA) No.182/99, decided on 15 September 2006.
61
16.
Initiate a high-level review of the Prevention of Terrorism Act (PTA) and its regulations and the Public Security Ordinance Act with a view to their repeal and the formulation of a new national security framework fully complying with international law;
Justice 17.
Review the Victim and Witness Protection Act with a view to incorporating better safeguards for the independence and effectiveness of the witness protection programme. Ensure the independence and integrity of those appointed to the Witness Protection Authority and that the police personnel assigned to this program are fully vetted. Ensure adequate resources for the witness protection system, including with international assistance; Ensure special protection mechanisms for children and victims of sexual violence.
18.
Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances, without statute of limitation. Enact various modes of criminal liability, notably command or superior responsibility;
19.
Ratify the International Convention on the Protection of All Persons from Enforced Disappearances, the Additional Protocols to the Geneva Conventions and the Rome Statute of the International Criminal Court;
20.
Adopt specific legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, including sexual crimes and crimes committed against children, with its own independent investigative and prosecuting organ, defence office, and witness and victims protection programme. Resource the court so that it can effectively try those responsible;
21.
Carry out a comprehensive mapping of all pending criminal investigations, habeas corpus, and fundamental rights petitions related to serious human rights violations, as well as the findings of all Commissions of Inquiries where they have identified specific cases, and refer these cases to the special court upon its establishment; Initiate prosecutions in all cases in which the Presidential Commission to Investigate Complaints Regarding Missing Persons has identified perpetrators and prima facie evidence;
22.
Review all of the cases submitted to the Disappearance Investigation Unit and the Missing Persons Unit by the Zonal and All Island Commissions, including in cases where the courts subsequently acquitted the accused, to identify those which 62
require further investigation, including chain of command responsibilities; 23.
Review all the cases of the more than 11,000 individuals perceived or known to be linked to the LTTE reported to have been registered and rehabilitated to account for their current whereabouts to ensure that none subsequently disappeared.
24.
Review all cases of detainees held under the PTA and either release them or immediately bring them to trial. Review the cases of those convicted under the PTA and serving long sentences, particularly where convictions were based on confessions extracted under torture;
Truth/right to know 25.
Dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared;
26.
Develop a central database of all detainees, with independent verification, where relatives can obtain information of the whereabouts of family members detained;
27.
Publish a full gazetted list of all detention centres, and close down any unofficial ones still in existence;
28.
Publish all unpublished reports of the many human rights-related commissions of inquiry, the Presidential Commission on the Missing, and the Army Court of Inquiry into civilian casualties;
29.
Develop a comprehensive plan/mechanism for preserving all existing records and documentation relating to human rights violations, whether held by public or private institutions;
Reparations 30.
Develop a national reparations policy in consultation with victims and their families, considering the specific needs of each victims, including women and children and finance appropriately from the state budget;
31.
Develop and strengthen programmes of psychosocial support for all victims of the conflict;
32.
Amend legislation to ensure that those who have received death certificates for the missing are not prevented from pursuing judicial cases to determine what happened to their loved ones;
33.
Ensure durable solutions for old and new displaced populations through land restitution, resettlement and livelihood support;
63
To the United Nations system and Member States 34.
Provide technical and financial support for the development of transitional justice mechanisms provided that they meet international standards. Set up a coordination mechanism among donors in Sri Lanka to ensure focussed and concerted efforts to support the transitional justice process;
35.
Apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes;
36.
Whenever possible, notably under universal jurisdiction, investigate and prosecute those allegedly responsible for violations, such as torture, war crimes or crimes against humanity ;
37.
Ensure a policy of non-refoulement of Tamils who have suffered torture and other human rights violations until guarantees of nonrecurrence are sufficient to ensure that they will not be subject to further abuse, in particular torture and sexual violence;
38.
In countries where there is a significant Tamil population, carry out an assessment of needs for psychosocial support for those who have been victims of violations and as necessary fund the development of such services;
39.
Continue to monitor human rights developments and progress towards accountability and reconciliation through the Human Rights Council. Should there be insufficient progress, the Human Rights Council should consider further international action to ensure accountability for international crimes.
64
Annexure III: UN Human Rights council, Draft Resolution 30/179, with a paragraph by paragraph commentary by SACLS.
Item 2: Promoting reconciliation, accountability and human rights in Sri Lanka The Human Rights Council, Preambular Paragraphs Comment: Preambular paragraphs in a resolution are drafted to reflect the background and spirit of the resolution. They are not a binding part of the resolution as the operative paragraphs are, but explain the thinking and logic behind the resolution. They are also useful tools in interpreting the text of the operative paragraphs. Often, in the event an operative paragraph is unclear or could be interpreted in more than one way, the preambular paragraphs could be useful in determining what the text of the resolution actually means. Readers will note that many of the revisions to the text effected to the previously circulated draft reflect the incumbent government‟s own political messaging and discourse related to accountability, UN processes and reconciliation. Pp1 Reaffirming the purposes and principles of the Charter of the United Nations, Pp2 Guided by the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant instruments, Pp3 Recalling also Human Rights Council resolutions 19/2 of 22 March 2012, 22/1 of 21 March 2013, and 25/1 of 27 March 2014 on promoting reconciliation and accountability in Sri Lanka, Comment: The above three paragraphs are standard paragraphs, typically found in resolutions of the Human Rights Council.
79
UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Draft Resolution 30/L.29, 30th session, 29 September 2015, U.N. Doc. A/HRC/30/L.29. For the final version of the resolution see UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Resolution 30/1, 30th session, 1st October 2015, U.N. Doc. A/HRC/30/1. No substantial changes were made.
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Pp4 Reaffirming its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka, Comment: This language is taken from previous Human Rights Council resolutions on Sri Lanka, and makes clear that the resolution is not aimed at the creation of a separate state, as alleged by a few. Pp5 Reaffirming that it is the responsibility of each State to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population, Comment: International Human Rights Law holds that it is the state who is primarily responsible for protecting human rights. Pp6 Welcoming the historic free and fair democratic elections in January and August 2015and peaceful political transition in Sri Lanka, Comment: The co-sponsors of the resolution were very keen that the text of the resolution reflects the change that took place in Sri Lanka in January 2015 and thereafter in August. The US Ambassador to Geneva Keith Harper repeatedly stated that the resolution should reflect two realities: first, the change that has happened in Sri Lanka, and second, the gravity and seriousness of the violations of human rights and crimes contained in the OISL Report. Pp7 Taking note with interest of the passage and operationalization of the nineteenth amendment to the Constitution of Sri Lanka and its contributions to promoting democratic governance and independent oversight of key institutions, including the provision on promotion of national reconciliation and integration as among the Constitutional duties of the President of Sri Lanka, Comment: This paragraph was likely included to strengthen the government‟s argument that the nineteenth amendment to the constitution strengthened Sri Lanka‟s ability to deal with accountability related issues. The final phrase relating to the duties of the President was included in keeping with Sri Lanka‟s proposals made at the informal session on the draft resolution held on the 22nd of September. Pp8 Welcoming the steps taken by the Government of Sri Lanka since January 2015 to advance respect for human rights and to strengthen good governance and democratic institutions 66
Comment: Once again, the text reaffirms its commendation of the positive change since January 2015. Pp9 Welcoming the efforts of the Government of Sri Lanka to Investigate allegations of bribery, corruption, fraud, and abuses of power, and stressing the importance of such investigations and the prosecution of those responsible in ending impunity and promoting good governance; Comment: This is an important paragraph as it stresses the connection between human rights issues and corruption issues. It potentially opens the door to mechanisms that deal with corruption and human rights issues at the same time. In fact, Government Spokesman and Minister Dr Rajitha Senaratne was quoted in The Island newspaper as suggesting that the same judicial mechanism with foreign participation may be used to deal with both issues. While this is unlikely to be definitive government policy, it is possible that some quarters within the government may be thinking on these lines. http://www.island.lk/index.php?page_cat=article-details&page=articledetails&code_title=131974 Pp10 Welcoming as well, the steps taken to strengthen civilian administration in the former conflictaffected provinces of the North and East, and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining and resettling internally displaced persons, and calling on the international community, including the United Nations, to assist the Government of Sri Lanka in furthering these efforts, especially in expediting the process of delivery of durable solutions for all internally displaced persons; Comment: The language of this paragraph was amended in favour of the Sri Lankan government on its request. The initial draft read: “Welcoming and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining and resettling internally displaced persons, while noting nonetheless that considerable work lies ahead in the areas of justice and reconciliation and to deliver durable solutions for all internally displaced persons”. Instead of “noting that considerable work lies ahead”, the paragraph calls on the international community to assist the Government of Sri Lanka in furthering these efforts. This change was also proposed by Sri Lanka at the informal session held on 22 September. Pp11 Recognizing the improved environment for members of civil society and human rights defenders in Sri Lanka, while expressing concern at reports of ongoing violations and abuses of human rights and recognizing the expressed commitment of the Government of Sri Lanka to address 67
issues including those involving sexual and gender-based violence and torture, abductions, as well as intimidation of and threats against human rights defenders, and members of civil society, Comment: This paragraph was also amended to soften the language towards Sri Lanka, but nevertheless expresses concern at reports of sexual violence and torture, as well as incidents of threats against some civil society members and human rights defenders particularly in the North and East. The initial version of the draft before it was changed read: “Expressing concern at the continuing reports of violations of human rights in Sri Lanka, including those involving sexual and gender-based violence, torture, abductions, as well as intimidation of and threats against human rights defenders, and members of civil society”. Pp12 Reaffirming that all Sri Lankans are entitled to the full enjoyment of their human rights regardless of religion, belief or ethnicity, in a peaceful and unified land; Comment: Once again, the text affirms the equality of all Sri Lankans and the desire that Sri Lanka‟s peoples be united. Pp13 Reaffirming also that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable, Comment: This paragraph was also contained in the resolution passed in March 2014 at the Human Rights Council. It indicates that even counter-terrorism measures must comply with the law. Pp14 Welcoming the government‘s Declaration of Peace of 4 February 2015 and its acknowledgement of the loss of life and victims of violence of all ethnicities and religions, Comment: This paragraph is a further indication of the drafter‟s willingness to acknowledge and welcome the change that has taken place in Sri Lanka. Pp15 Emphasizing the importance of a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures, including, inter alia, individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system, restore confidence in the institutions of the State and promote 68
the rule of law in accordance with international human rights law, with a view to preventing the recurrence of violations and abuses, and welcoming in this regard the Government‘s expressed commitment to ensure dialogue and wide consultations with all stakeholders; Comment: See comment on below paragraph. Pp16 Recognizing that mechanisms to redress past abuses and violations work best when they are independent, impartial, and transparent; are led by individuals known for displaying the highest degree of professionalism, integrity, and impartiality; utilize consultative and participatory methods that include the views from all relevant stakeholders including, but not limited to, victims, women, youth, representatives from various religions, ethnicities, and geographic locations as well as marginalized groups; and designed and implemented based on expert advice from those with relevant international and domestic experience; Comment: The two paragraphs above are critical. The earlier draft circulated by the cosponsors used the term “Transitional Justice”, but it is understood that the Sri Lankan Ministry of Foreign Affairs preferred the use of the phrase “dealing with the past” instead. There is no major difference in the two phrases, and the difference is primarily one that is discussed in academic circles. It is not clear why the Ministry of Foreign Affairs prefers not to use the term “Transitional Justice”. These two paragraphs provide a very comprehensive idea of what constitutes “Transitional Justice” or “dealing with the past”. It contains the key notions of truth seeking, criminal prosecutions, reparations, vetting to remove and prevent those who are responsible for human rights abuses from the military and police, and institutional reform to prevent recurrence of crimes. It also speaks of the important principles of independence, impartiality and transparency combined with a consultative approach to making policies which deal with the past. These consultations must involve all sectors. Finally, expert advice from outside and within the country must be relied on in making decisions on mechanisms to deal with the past. Pp17 Recognising that a credible accountability process for those most responsible for violations and abuses will safeguard the reputation of those, including within the military, who conducted themselves in an appropriate manner with honor and professionalism. Comment: This paragraph was introduced by the co-sponsors of the draft with a view to signalling to the country and its military that a process of accountability was not one that was aimed at punishing the military as a whole. Instead, by isolating blame to those who violated
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the law and abused their power, those who did not violate the law would have their reputation safeguarded. Pp18 Recalling the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law, with a view to ending impunity, Comment: This paragraph merely restates what is accepted international law with respect to international crimes. The identical language appeared in resolution 25/1 passed in March 2014. Pp19 Taking note of the review of High Security Zones undertaken by the government and welcomes the initial steps taken to return land to its rightful civilian owners and to help local populations to resume livelihoods and restore normality to civilian life, Comment: This paragraph recognizes the progress made by the government with respect to the release of civilian lands. However, the use of the phrase “initial steps taken to return land” which the Sri Lankan government proposed be deleted, but nevertheless has remained in the text, indicates that the Council‟s view – and now the Sri Lankan government‟s view – is that land releases must go beyond what has already been done. Pp20 Welcoming the Government of Sri Lanka‘s commitments to the devolution of political authority, Comment: See comment on Operative Paragraph 16 below. Pp21 Requesting the Government of Sri Lanka to implement effectively the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission, Comment: This language has been consistently found in all of the Human Rights Council resolutions passed by the Human Rights Council since 2012: March 2012; March 2013; March 2014 and now September 2015. Pp22 Welcoming also the 30 March - 3 April 2015 visit and observations of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, and the planned visit of the Working Group on Enforced and Involuntary Disappearances in November, 70
Comment: The March 2014 resolution encouraged these mandate holders to provide technical assistance and advice to Sri Lanka. This paragraph welcomes Sri Lanka‟s engagement with these offices. Pp23 Recognizing that the Investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka requested in Human Rights Council resolution 25/1 was necessitated by the absence of a credible national process of accountability, Comment: This late inclusion into the draft (it was not included in the original draft circulated by the co-sponsors) presumably on Sri Lanka‟s request is significant. It recognizes that the absence of a credible national process of accountability gave rise to the need for the UN investigation mandated by HRC resolution 25/1. In this it mirrors the political arguments and discourse that have come to characterize the incumbent government‟s response to the now completed UN investigation on Sri Lanka. Operative Paragraphs 1. Takes note with appreciation the oral update presented by the High Commissioner to the Human Rights Council at its twenty-seventh session, the report of the Office of the High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka and the report of its Investigation on Sri Lanka requested in Human Rights Council resolution 25/1 including its findings and conclusions, and encourages the Government of Sri Lanka to implement the recommendations contained therein when implementing measures for truth seeking, justice, reparations, and guarantees of non-recurrence; Comment: The paragraph notes with appreciation the High Commissioner‟s report and the OISL Report including its findings and conclusions and encourages the government to implement its recommendations. The initial draft circulated by the co-sponsors used the word “welcomes”. Sri Lanka proposed the use of the word “notes” and a compromise was reached through the use of the phrase “takes note with appreciation”. The phrase is used often in UN resolutions, and is a half-way measure between “welcomes” – which conveys full acceptance of a report etc. – and “notes” – which indicates acknowledgement of a report etc. but unwillingness to fully accept all its contents. However, in the second part of the paragraph, Sri Lanka has agreed to be “encouraged” by the Council to fulfil the recommendations of the OISL Report without reservation. This is highly significant. 2. Welcomes the positive engagement between the Government of Sri Lanka and the High Commissioner and his Office since January 2015 and encourages the continuation of such engagement in the promotion and protection of human rights and in exploring appropriate forms of international support to and participation in Sri Lankan processes for seeking truth and justice;
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Comment: This language was not part of the initial draft circulated by the co-sponsors and was included in line with Sri Lanka‟s proposals. It reflects the government‟s desire to be perceived to be cooperating with the High Commissioner and his Office since the Presidential elections of January 2015. 3. Supports the Government of Sri Lanka‘s commitment to strengthen and safeguard the credibility of the processes of truth seeking, justice, reparations, and guarantees of nonrecurrence by engaging in broad national consultations with the inclusion of victims and civil society, including non-governmental organizations, from all affected communities that will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices; Comment: This paragraph deals with the need for consultations of a broad range of stakeholders, with a view to informing the design and implementation of these processes, and also to draw on international assistance with respect to these consultations. The language of this paragraph was softened from the language of the previous draft circulated by the cosponsors, which began with the phrase: “Encourages the new Government of Sri Lanka to respect its positive commitment to bolster and safeguard the credibility of these justice processes by engaging…” 4.Welcomes the Government of Sri Lanka‘s commitment to undertaking a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures; welcomes in this regard the proposal by the Government of Sri Lanka to establish a Commission for Truth, Justice, Reconciliation, and Non Recurrence, an Office of Missing Persons, and an Office for Reparations;; welcomes the Government‘s willingness to give each mechanism the freedom to obtain assistance, both financial, material and technical from international partners including the OHCHR; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and help achieve reconciliation; Comment: This paragraph underlines two important ideas. First, it welcomes the government‟s commitment to a process of dealing with the past. The phrase “full range of judicial and non-judicial measures” is a familiar one in Transitional Justice literature and forms part of the International Center for Transitional Justice‟s definition of „Transitional Justice‟. It encapsulates the idea that the government has consented to judicial prosecutions as well as non-judicial measures such as truth commissions, other tracing mechanisms, reparations and security sector reform. The second main idea incorporated into this paragraph is borrowed from the speech made by the Foreign Minister Mangala Samaraweera at the UNHRC sessions in September. In his speech, he stated that the mechanisms established by Sri Lanka would have the freedom to obtain assistance, both financial, material and technical from international partners. Sri 72
Lanka also sought these inclusions among others at the informal session relating to the resolution held on 22 September. This paragraph appears to merge previous draft OPs 6 and 7. 5. Recognizes the need for a process of accountability and reconciliation for violations and abuses committed by the Liberation Tigers of Tamil Eelam as highlighted in the OISL report; Comment: This paragraph was included with the view to also covering LTTE abuses, which are not specifically mentioned in any other paragraphs. Its inclusion was sought to bring balance to the resolution. 6.Welcomes the government‘s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka‘s proposal 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 applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard 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; Comment: This paragraph is arguably the most important of the entire resolution. It seeks to build on the Foreign Minister‟s own speech where he referred to „a Judicial Mechanism with a Special Counsel‟. This reference to „Special Counsel‟ ostensibly refers to a prosecutor. It further affirms the importance of credibility and impartiality of judges and prosecutors. The final phrase is key in that it affirms the importance of the participation in „a Sri Lankan judicial mechanism‟, including in the prosecutor‟s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators. Each word is of critical importance. By including the phrase “Sri Lankan judicial mechanism”, the resolution allows the government the political space to claim that the process is not an international process, but a local one. Nevertheless, it affirms the importance of “Commonwealth and other foreign” personnel. The importance of this phrase, and the fact that the use of Commonwealth judges was always within the contemplation of the government is seen in Foreign Minister Mangala Samaraweera‟s comments to an Indian magazine in January 2015, immediately following the Presidential election. In it, he said, “We hope for technical assistance from the UN, perhaps judges from the Commonwealth – whom we chair at the moment – too.” However, the text specifies that judges could also be chosen from outside the Commonwealth. In fact, it is arguable whether or not it is permissible not to have judges from outside the Commonwealth.
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The text refers to “authorized prosecutors and investigators”. It is understood that this inclusion of the word „authorized‟, which does not feature in the previous text, was a late inclusion on the request of the Sri Lankan government. It appears to be redundant because all personnel participating in a judicial mechanism must necessarily be authorized. Notably, to prevent any room for argument that the reference to “authorized prosecutors and investigators” is unconnected to the words “Commonwealth and other foreign” personnel, the phrase “including in the Special Counsel‟s Office” has been included for avoidance of doubt. The text did change from the initial circulated draft in some ways. The initial text referred to “international” personnel, while the current draft refers to Commonwealth and other foreign personnel. The current draft uses „participation in‟ while the previous draft refers to „involve‟. There is also the use of the word „inclusion‟, as noted above. The debate about whether this is a hybrid court or a domestic court is a moot point. It is also irrelevant. The word „hybrid court‟ has no fixed definition. It could mean many things. As a recent press article notes, the Sri Lankan Supreme Court was a hybrid court according to some definitions as there were foreign judges until 1955, 8 years after independence. The Udalagama and Paranagama Commissions of Inquiry were also arguably „hybrid commissions‟ since they included foreign personnel as monitors and advisors. The debate over „hybrid‟ or „domestic‟ is essentially a mask for two central questions: how do you ensure the independence of judges and prosecutors participating in the trial of international crimes that are highly politicized; and second, how do you ensure such participants have the capacity to try serious international crimes. For Foreign Minister‟s comments on Commonwealth judges, made in January 2015, see: http://swarajyamag.com/world/new-sri-lankan-foreign-minister-our-tilt-towards-china-needsa-course-correction/ 7. Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can effectively implement its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report by the Office of the High Commissioner for Human Rights requested in resolution 25/1, including by allowing for, in a manner consistent with its international obligations, 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, including during the period covered by the LLRC; Comment: There are three key ideas in this paragraph. First, the idea that Sri Lanka has legal obligations under international law to try and punish those most responsible of certain crimes, and that it must reform its law to do. This is a standard international law principle in relation to international crimes – the state must at the least investigate and punish „those most 74
responsible‟. This therefore calls for the inclusion in Sri Lankan law of modes of responsibility such as command responsibility. Second, the idea that these trials must be for the „full range of crimes under the general principles of law recognized by the community of nations” which are relevant to violations of human rights and IHL. The phrase “general principles of law recognized by the community of nations” is taken from the ICCPR Article 15(2) and the Sri Lankan Constitution Article 13(6) and has been interpreted by the Sri Lankan Supreme Court in Sepala Ekanayake‟s case to mean “customary international law”. Thus, the full range of crimes under customary international law relating to human rights and IHL include war crimes and crimes against humanity. The resolution therefore encourages Sri Lanka to reform its law to include war crimes and crimes against humanity as offences under domestic Sri Lankan law. Third, the idea that these laws must cover the period “covered by the LLRC” which is 2002 to 2009 at the very least. Thus, the resolution does not merely call for the incorporation of international crimes into domestic law, it makes reference to the need for retroactive incorporation of these crimes, in line with Article 13(6) of the Constitution to go back to 2002. 8. Encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process that will help enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law including members of the security and intelligence units; and increasing training and incentives focused on the promotion and protection of human rights of all Sri Lankans; Comment: Security sector reform is an important component of Transitional Justice. One of the stated outcomes of such a process is to „enhance and reputation and professionalism‟ of the military. The purpose of security sector reform is to limit the prospects of recurrence and orient the security sector in a manner that protects human rights, rather than endangers it. Two specific security sector reforms are mentioned: first, the use of fair administrative processes to prevent retention and recruitment into the security forces of those involved in violations of human rights and IHL. Second, to provide training and incentives aimed at the promotion and promotion of human rights. The first set of reforms are likely be controversial, but have been effectively carried out in other parts of the world, particularly in the former Balkans. 9. Welcomes the Government of Sri Lanka‘s recent passage of an updated Witness and Victim Protection Law and its commitment to review the law, and encourages the Government of Sri Lanka to strengthen these essential protections by making specific accommodations to effectively protect witnesses and victims, investigators, prosecutors, and judges.
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Comment: The language in the latest draft was strengthened to include reference to the Foreign Minister‟s speech wherein he committed to “review” the Witness and Victim Protection law. The OISL Report also highlights the need for a review of the law, and strengthened protection for witnesses and victims. Although Parliament has passed a law which was drafted by the previous administration, the law has not yet been operationalized. 10. Welcomes the initial steps taken to return land and encourages the government to accelerate the return of land to its rightful civilian owners, , and to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stresses the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts, Comment: This paragraph in this latest draft resolution was revised to reflect the government in a more positive light. An earlier draft contained stronger language. It read: “Underscores the importance of the government taking additional steps on return of land previously taken by defense forces to its rightful civilian owners, encouraging the acceleration of such transfers of land back to the rightful owners, and encouraging the government to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stressing the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts”. 11. Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future; Comment: This paragraph is almost identical to the paragraph from the March 2014 Resolution (25/1) and was included in that resolution in the light of communal violence targeting primarily Muslims in that year as well as other attacks. 12. Welcomes the Government of Sri Lanka‘s commitment to review the Public Security Ordinance Act and review and repeal the Prevention of Terrorism Act and replace it with antiterrorism legislation in line with contemporary international best practices; Comment: This paragraph reflects the comments in Foreign Minister Mangala Samaraweera‟s speech at the Human Rights Council in September 2015. They were also mentioned in the OISL Report, suggesting that the Foreign Minister‟s speech may have incorporated certain OISL recommendations even though the OISL Report was not public at that stage. The government did receive an advance copy of the OISL Report prior to FM Samaraweera‟s speech at the Council. 76
13. Welcomes the Government of Sri Lanka‘s commitment to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay, to criminalize enforced disappearances and to begin issuing Certificates of Absence to the families of the missing as a temporary measure of relief; Comment: This paragraph reflects the comments in Foreign Minister Mangala Samaraweera‟s speech at the Human Rights Council in September 2015. They are highly significant as they reflect the decades-long demands of anti-disappearance human rights activists. These are 1) ratify the Disappearances Convention; 2) criminalize enforced disappearances; and 3) issue certificates of absence to families of the missing. 14. Welcomes the Government of Sri Lanka‘s commitment to release publicly previous Presidential Commission Reports Comment: Earlier drafts specifically mentioned certain reports, but reference to them was excluded during negotiations with the government at a later stage. The previous draft made reference to the “Udalagama and Paranagama reports by the end of this month, and calls for the release of the results of its investigations into alleged violations by security forces, including the attack on unarmed protesters in Weliweriya on 1 August 2013, and the report of 2013 by the court of inquiry of the Sri Lanka Army”. It is notable that the Foreign Minister told the Human Rights Council in September 2015 that the Udalagama and Paranagama Commission reports would be released “this month”. Nevertheless, they have yet to be released. This change gives rise to the assumption that the government may not be willing to release one or more of these reports, though it is not immediately apparent why that is the case. 15. Encourages the Government of Sri Lanka to develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of international humanitarian law, whether held by public or private institutions; Comment: This provision reflects the duty of the state to preserve records and documents relating to violations of human rights and IHL. This obligation is now entrenched as a best practice and legal obligation under international law. 16. Welcomes the government‘s commitment to a political settlement by taking the necessary constitutional measures and encourages the Government of Sri Lanka‘s efforts to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and encourages the Government of Sri Lanka to ensure that all Provincial Councils, are able to operate effectively, in accordance with the 13th amendment to the Constitution of Sri Lanka;
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Comment: This paragraph was contested and negotiated. The second part of the paragraph relating to the Provincial Councils and the 13th Amendment are taken from the March 2014 resolution (25/1). However, the reference to the “government‟s commitment to a political settlement by taking the necessary constitutional measures” refers tacitly to the Foreign Minister‟s speech before the Council where he made reference to a political solution that would address the grievances of the Tamil people through a new constitution. Thus, the Foreign Minister‟s formulation was slightly revised to refer to “constitutional measures” in place of “a new constitution”. Reference to a political solution and devolution in the text of the resolution was a key demand of the Tamil National Alliance. 17. Welcomes the Government‘s commitment to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involving torture, rape, and sexual violence, are prohibited and that those responsible will be investigated and punished, and encourages the government to address all reports of sexual and gender-based violence and torture; Comment: Once again, this recommendation was initially in the OISL Report, was then incorporated into the speech of the Foreign Minister at the Human Rights Council, and subsequently incorporated into the draft resolution. It did not figure in the initial draft text, and was included subsequently. 18. Requests the Office of the High Commissioner to continue to assess progress on the implementation of OHCHR‘s recommendations and other relevant processes related to reconciliation, accountability, and human rights; to present an oral update to the Human Rights Council at its thirty-second session, and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session; Comment: The evolution of this paragraph is interesting. The typical formulation for this sort of paragraph is to request the Office of the High Commissioner (OHCHR) to “monitor” progress. It is understood that the Sri Lankan government preferred alternative phraseology. The initial draft text therefore contained the words “assess and verify the human rights situation in Sri Lanka”. References to monitoring/assessing the human rights situation in Sri Lanka have now been excluded. Instead, OHCHR is asked to “continue to assess progress on the implementation of other relevant processes related to reconciliation, accountability and human rights”. This reference to processes related to human rights among others will provide the necessary interpretive space for OHCHR to in effect carry out human rights monitoring. The reporting periods are as follows: an oral update by OHCHR to the Council in June 2016, and a final comprehensive report in March 2017. This period coincides with the 18 month period which the Foreign Minister said Sri Lanka would take to implement its accountability mechanisms.
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See: “The Foreign Minister told Daily FT the Government hopes to get the mechanism off the ground within a year or 18 months...”. See more at: http://www.ft.lk/article/471161/Accountability-framework-for-Lanka-s-own-sake-Mangala%C2%A0#sthash.XFOh9J7P.dpuf” 19. Encourages the Government of Sri Lanka to continue to cooperate with special procedures mandate holders, including responding formally to outstanding requests; Comment: This is a standard provision found it most country-specific Human Rights Council resolutions. The earlier text was shortened to omit reference to specific mandate holders. 20. Encourages the Office of the High Commissioner and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the abovementioned steps. Comment: This is also a standard provision found it most country-specific Human Rights Council resolutions. It has been a feature of all resolutions on Sri Lanka since 2012.
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