Geneva, 03 October, (Courtesy Asiantribune.com):

The Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka contains the principal findings of the comprehensive investigation conducted by the Office of the United Nations High Commissioner for Human Rights into alleged serious violations and abuses of human rights and related crimes during the armed conflict in Sri Lanka.

Human Rights Commissioner Prince Zeid Al Hussein

The report on Sri Lanka by the Office of the High Commissioner on Human Rights (OHCHR) was taken up for discussion by the UN Human Rights Council on Wednesday the 30th September.

In introducing the OHCHR report on Sri Lanka to the Council, the Human Rights Commissioner Zeid Al Hussein was unrelenting in his criticism of Sri Lanka.

Even though he did say that this report on SL was being released in circumstances very different to that in which it was mandated, he engaged in an overall condemnation of Sri Lanka which applies to the present government almost in the same measure as to the previous one. The overall tenor of his speech was interventionist. No respect was shown for the new government.

The Office of the United Nations High Commissioner for Human Rights on Sri Lanka reviews human rights-related developments in the country since March 2014, in particular reforms and the steps taken towards accountability and reconciliation by the new President elected in January 2015, and the new Government elected in August 2015. The report concludes with recommendations of the High Commissioner on the way forward, including on the establishment of a hybrid special court to try war crimes and crimes against humanity allegedly committed by all parties to the armed conflict.

Conclusions and recommendations:

*             The findings of the OHCHR investigation contained in the present report were born out of the past failure of the Government of Sri Lanka to address accountability for the most serious human rights violations and crimes. Ending the impunity enjoyed by the security forces and associated paramilitary groups, and holding to account surviving members of LTTE, will require political will and concerted efforts to ensure that these violations and crimes do not recur.

*             The commitments made by the new Government in this respect are welcome, but it needs to convince a very sceptical audience – Sri Lankan and international – that it is determined to show results. Prosecuting a few emblematic cases will not be sufficient; Sri Lanka needs to address the patterns of serious human rights violations and other international crimes that hav

*             The High Commissioner remains convinced that, for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism. Sri Lanka should draw on the lessons learned and good practices of other States that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators. Such a mechanism will be essential to give confidence to all Sri Lankans, in particular the victims, in the independence and impartiality of the process, particularly given the politicization and highly polarized environment in Sri Lanka. OHCHR stands ready to continue to provide its advice and technical assistance in the design of such a mechanism.

*             The High Commissioner also believes that the Human Rights Council has played – and should continue to play – a critically important role in encouraging progress on accountability and reconciliation in Sri Lanka. As the process now moves into a new stage, he urges Council members to sustain their monitoring of developments in Sri Lanka with a view to further actions that may be required at the international level should concrete results not be achieved.

*             In particular, the High Commissioner wishes to highlight the following recommendations below.

1. Government of Sri Lanka

1. General

91. The High Commissioner recommends that the Government of Sri Lanka:

(a)          Set up a high-level executive group to develop a coordinated, time-bound plan and oversee progress in implementing the recommendations contained in the present and previous reports of the High Commissioner submitted to the Human Rights Council, as well as relevant outstanding recommendations of the Lessons Learnt and Reconciliation Commission and past commissions of inquiry;

(b)          Invite OHCHR to establish a full-fledged country presence to monitor the situation of human rights, advise on implementation of the recommendations made by the High Commissioner and the Human Rights Council in its resolutions and to provide technical assistance;

(c)           Initiate genuine consultations on transitional justice, in particular truth-seeking and accountability mechanisms, 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;

(d)          Invite the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to continue his engagement in accompanying and providing advice in this process, and invite other relevant Special Representatives of the Secretary-General and special procedure mandate holders, in particular the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, to make early country visits.

2. Institutional reforms

(e)          Through the Constitutional Council, appoint qualified new members to the Human Rights Commission of Sri Lanka of the utmost independence and integrity, and review legislation to strengthen the Commission’s independence and its capacity to refer cases to the courts;

(f)           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, both directly or as commander or superior, will be investigated and punished; and order an end to all surveillance, harassment and reprisals against human rights defenders;

(g)          Develop a full-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 have been involved in human rights violations;

(h)          Prioritize the return of private land that has been occupied by the military and end military involvement in civilian activities;

(i)            Take immediate steps to identify and disarm groups affiliated with political parties, and sever their linkages with the security forces, intelligence services and other government authorities;

(j)           Initiate a high-level review of the Prevention of Terrorism Act 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 compliant with international law;

3. Justice

(k)          Review the Victim and Witness Protection Act with a view to incorporating better safeguards for the independence and effectiveness of the witness protection programme in accordance with international standards; ensure the independence and integrity of those appointed to the Witness Protection Authority and that the police personnel assigned to the programme are fully vetted; and ensure adequate resources for the witness protection system;

(l)            Accede to the International Convention on the Protection of All Persons from Enforced Disappearance, the Additional Protocols to the Geneva Conventions, and the Rome Statute of the International Criminal Court;

(m)         Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation; and enact various modes of criminal liability, in particular command or superior responsibility;

(n)          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, with its own independent investigative and prosecuting organ, defence office and witness and victims protection programme, and provide it with the resources necessary for it to be able try those responsible to promptly and effectively;

(o)          Carry out a comprehensive mapping of all criminal investigations, habeas corpus and fundamental rights petitions relating to serious human rights violations, and of the findings of all commissions of inquiries where they have identified specific cases, and refer these cases to the special court upon its establishment;

(p)          Reinforce the forensic capacity of the judiciary and ensure that it is adequately resourced, including for DNA testing, forensic anthropology and archaeology;

(q)          Review all cases of detainees held under the Prevention of Terrorism Act and either release them or immediately bring them to trial; and review the cases of those convicted under the Act and serving long sentences, particularly where convictions were based on confessions extracted under torture;

4. Truth/right to know

(r)           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;

(s)           Develop a central database of all detainees, with independent verification, where relatives may obtain information of the whereabouts of family members detained, and publish a list of all detention centres;

(t)           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;

(u)          Develop a comprehensive plan/mechanism for preserving all existing records and documentation relating to human rights violations, whether held by public or by private institutions;

5. Reparations

(v)          Develop a national reparations policy that takes into account the specific needs of women and children, and make adequate provision from the State budget;

(w)         Strengthen programmes of psychosocial support for victims.

1. United Nations system and Member States

92. The High Commissioner recommends that the United Nations system and Member States:

(a)          Provide technical and financial support for the development of transitional justice mechanisms, provided that they meet international standards; and set up a coordination mechanism among donors in Sri Lanka to ensure focused and concerted efforts to support the transitional justice process;

(b)          Apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes;

(c)           Wherever possible, in particular under universal jurisdiction, investigate and prosecute those responsible for such violations as torture, war crimes and crimes against humanity;

(d)          Ensure a policy of non-refoulement of Tamils who have suffered torture and other human rights violations until guarantees of non-recurrence are sufficient to ensure that they will not be subject to further abuse, in particular torture and sexual violence;

(e)          Continue to monitor human rights developments and progress towards accountability and reconciliation through the Human Rights Council; if insufficient progress is made, the Council should consider further international action to ensure accountability for international crimes.

– Asian Tribune –