A/HRC/20/21

Ad%ance &dited 'ersion

2istr"3 $eneral 2- 4ebruar 25,Original3 +nglish

Human Rights Council

Twenty-fifth session Agenda item 2 Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General

romoting reconciliation and accounta!ility in Sri "an#a

Report of the Office of the United Nations High Commissioner for Human Rights$
Summary In the present report, the Office of the United Nations High Commissioner for Human Rights acknowledges the progress made in reconstruction and the implementation of some of the recommendations made b the !essons !earnt and Reconciliation Commission" #he $o%ernment of &ri !anka has, howe%er, failed to ensure independent and credible in%estigations into past %iolations of international human rights and humanitarian law" #he report also contains updates on the ongoing attacks on religious minorities, and the harassment and intimidation of human rights defenders, law ers and 'ournalists" #he $o%ernment has not responded to the offers of technical assistance made b the High Commissioner and the special procedures" (eanwhile, new e%idence continues to emerge on the e%ents that took place in the final stages of the armed conflict" Against this background, the High Commissioner recommends the establishment of an independent, international in)uir mechanism, which would contribute to establishing the truth where domestic in)uir mechanisms ha%e failed"

!ate submission"

$+",-.

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Contents
Paragraphs Page

I" II" III"

Introduction"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" +ngagement of the Office of the High Commissioner and the special procedures"" Recent human rights de%elopments"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" A" 9" C" 2" 4ormer combatants and detainees"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" Attacks on religious minorities, human rights defenders and freedom of opinion and e:pression"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" +:tra'udicial, summar and arbitrar killings""""""""""""""""""""""""""""""""""""""""""""""""" (ass gra%es""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

,62 16,, ,2627 ,76,8 25622 216220627 2;610 1767176-7 -;67706;0 706;1 ;-.;0

1 1 0 7 7 ; < < ,5 ,5 ,2 ,7 ,7 ,<

I=" ="

Implementation of the recommendations of the !essons !earnt and Reconciliation Commission""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" >rogress in accountabilit issues"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" A" 9" 2omestic initiati%es""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" +mblematic cases""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" Conclusions"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" Recommendations""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""

=I"

Conclusions and recommendations"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" A" 9"

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,-

,ntroduction
," #he present report is submitted pursuant to Human Rights Council resolution 22/,, in which the Council encouraged the $o%ernment of &ri !anka to implement the constructi%e recommendations of the !essons !earnt and Reconciliation Commission, , as well as those made b the United Nations High Commissioner for Human Rights in her report,2 and to conduct an independent and credible in%estigation into allegations of %iolations of international human rights and humanitarian law" 1 2" In resolution 22/,, the Human Rights Council also encouraged the $o%ernment of &ri !anka to take all necessar additional steps to fulfil its rele%ant legal obligations and commitment to initiate credible and independent actions to ensure 'ustice, e)uit , accountabilit and reconciliation for all &ri !ankans, and to cooperate with the special procedures" It also encouraged the Office of the High Commissioner ?OHCHR@ and rele%ant special procedures mandate holders to pro%ide ad%ice and technical assistance on implementing the abo%e.mentioned steps" !astl , the Council re)uested OHCHR to present a comprehensi%e report on the implementation of the resolution at its twent .fifth session, with input from rele%ant special procedures"

,,- &ngagement of the Office of the High Commissioner and the special procedures
1" At the in%itation of the $o%ernment, the High Commissioner %isited &ri !anka from 20 to 1, August 25,1" In accordance with the re)uest made b the Human Rights Council in resolution 2,/,, she presented an oral update on the situation to the Council at its twent . fourth session ?A/HRC/2-/CR>"1/Re%",@, in which she suggested concrete steps that the $o%ernment could take that could help the Council to assess progress made in the areas identified b the Council in resolution 22/, b the time of its twent .fifth session" #hese included in%iting the Aorking $roup on +nforced or In%oluntar 2isappearances and the Independent +:pert on minorit issuesB demonstrating a credible national in%estigation process with tangible results, including the successful prosecution of indi%idual perpetratorsB and setting a clear timeline for disengagement of the militar from acti%ities that are meant to be ci%ilian" Regrettabl , none of these steps had been taken b the end of the period of re%iew" -" #he $o%ernment of &ri !anka did not respond positi%el to the offer of technical assistance made b the High Commissioner following an OHCHR technical mission to &ri !anka in No%ember 25,2" On 1, October 25,1, following her %isit to &ri !anka, the High Commissioner again addressed a letter to the (inister for +:ternal Affairs and other officials in which she reiterated the readiness of her Office to pro%ide technical assistance" #he areas of possible assistance highlighted b the High Commissioner were in line with some of the recommendations accepted b the $o%ernment during its uni%ersal periodic
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2 1

#he Commission was appointed in (a 25,5 b the >resident of &ri !anka to in%estigate the facts and circumstances that led to the failure of the 2552 ceasefire agreement, the lessons to be learned from those e%ents, and to suggest institutional, administrati%e and legislati%e measures to pre%ent an recurrence of such e%ents, and to promote national unit and reconciliation among all communities" #he report of the Commission is a%ailable from www"llrcaction"go%"lk/reports/en/4inalC!!RCC ReportCen"pdf" A/HRC/22/1<" 4or the comments of the $o%ernment of &ri !anka on the draft %ersion of the present report, see A/HRC/20/$/8" +

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re%iew and with those made b the &ecretar .$eneralDs >anel of +:perts on Accountabilit in &ri !anka"- #he High Commissioner regrets that she has recei%ed no response" 0" Aith regard to the issue of disappearances, the High Commissioner urged the $o%ernment to in%ite the Aorking $roup on +nforced or In%oluntar 2isappearances, to ratif the International Con%ention for the >rotection of All >ersons from +nforced 2isappearance, and to finaliEe measures to criminaliEe disappearances in national law" 7" Aith regard to criminal 'ustice and accountabilit , the High Commissioner offered technical assistance in %arious areas, including draft legislation on hate speech and witness and %ictim protection, to ensure compliance with rele%ant international standards" In relation to some long outstanding criminal in%estigations, the High Commissioner offered to identif international e:perts who could assist the national in)uiries" ;" 4urthermore, the High Commissioner offered to pro%ide technical ad%ice on how truth.seeking mechanisms and reparations policies could be de%eloped in accordance with international standards" <" On ,; 2ecember 25,1, the Assistant &ecretar .$eneral for Human Rights met with the &ecretar of 2efence of &ri !anka, in New Fork, and reiterated the High CommissionerDs offer of technical cooperation" &ubse)uentl , on 25 Ganuar 25,-, the High Commissioner met with the &ecretar to the >resident, !alith Aeerathunga, in $ene%a" 8" #here are currentl nine outstanding re)uests to %isit &ri !anka b special procedures3 on minorit issuesB freedom of peaceful assembl and of associationB freedom of opinion and e:pressionB e:tra'udicial, summar or arbitrar e:ecutionsB enforced or in%oluntar disappearancesB human rights defendersB independence of 'udges and law ersB discrimination against women in law and practiceB and truth, 'ustice, reparation and guarantees of non.recurrence" In October 25,1, the Aorking $roup on +nforced or In%oluntar 2isappearances and the &pecial Rapporteur on the rights to freedom of peaceful assembl and of association followed up on their re)uests to %isit or made specific offers of technical assistance" #hese re)uests remain pending" &ince Ganuar 25,2, the $o%ernment has transmitted responses on <-2 cases to the Aorking $roup dating back to the ,885s" ,5" At the in%itation of the $o%ernment, the &pecial Rapporteur on the rights of internall displaced persons %isited &ri !anka from 2 to 7 2ecember 25,1 ?see also para" ,below@" In August 25,1, the &pecial Rapporteur on the right to education recei%ed an in%itation from the $o%ernment, but had to defer his %isit owing to conflicting engagements" #he $o%ernment has since e:tended an in%itation to the &pecial Rapporteur on the human rights of migrants to %isit the countr in (a 25,-" ,," #he High Commissioner welcomes the $o%ernmentDs engagement in these important issues, but reiterates her calls to in%ite the special procedures on enforced or in%oluntar disappearances and minorit issues as a matter of priorit , considering that these issues featured prominentl in the recommendations made b the !essons !earnt and Reconciliation Commission and ha%e also been identified b the Human Rights Council as ke concerns"

,,,- Recent human rights de%elopments

,2" In her oral update to the Human Rights Council at its twent .fourth session, the High Commissioner acknowledged the achie%ements made b the $o%ernment, with the
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&ee www"un"org/News/dh/infocus/&riC!anka/>O+CReportC4ull"pdf"

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help of the international communit , in demining, resettlement, reconstruction and rehabilitation since 2558" &he welcomed the elections to the Northern >ro%incial Council in &eptember 25,1, and recommended that the $o%ernment should work with new pro%incial authorities to promote meaningful communit participation in reconstruction and de%elopment programmes" &he howe%er also highlighted pressing concerns, including the lack of progress in accountabilit for serious human rights %iolationsB the situation of detainees and former combatants, with regard to e:tra'udicial, summar and arbitrar killingsB continued militariEation0 and compulsor land ac)uisition7 ?particularl in the north and east of the countr @B shrinking space for ci%il societ and the mediaB rising religious intoleranceB and the undermining of independent institutions, including the 'udiciar " ,1" 4ollowing his %isit in 2ecember 25,1, the &pecial Rapporteur on the human rights of internall displaced persons also acknowledged the reconstruction effort, but emphasiEed the need to promote durable solutions and to address the protection of women and girls, access to land, and the withdrawal of the militar from all ci%ilian functions"; ,-" In its comments on a draft %ersion of the present report, the $o%ernment of &ri !anka stated that, since 2558, the total strength of the militar had been reduced b appro:imatel 15 per cent in the Northern >ro%ince, and b 27 per cent in the +astern >ro%ince, and the %ast ma'orit of checkpoints had been remo%ed" It added that a total of 25,5,, acres of pri%ate land and 0,;-5 acres of &tate land had been released in the two pro%inces" #he High Commissioner noted, howe%er, reports that more than 7,555 acres of pri%ate land had been ac)uired b the &tate in Gaffna around the >alal cantonement, and that more than 2,555 petitioners had taken legal action to reclaim their land" < #he $o%ernment stated that steps were being taken to compensate the owners" ,0" #he High Commissioner remains concerned that non.go%ernmental organiEations are still re)uired to register and report through a secretariat under the (inistr of 2efence" &he also draws attention to concerns that women are %ulnerable to se:ual harassment and %iolence when there is a hea% militar presence" 8 4or instance, in (a 25,1, a soldier attached to an arm camp in Nedunkern reportedl confessed to raping a 7. ear.old child" In its comments on the present report, the $o%ernment reported that the militar had taken strict action in such cases"

A-

/ormer com!atants and detainees

,7" 2uring the %isit of the High Commissioner, the $o%ernment informed her that more than ,,,;0< former combatants had been rehabilitated and reintegrated into societ , 21detainees were undergoing rehabilitation, and 8, detainees were facing legal proceedings"
0

<

&ee Office of the United Nations High Commissioner for Refugees ?UNHCR@, A >rotection Assessment of &ri !ankan Internall 2isplaced >ersons who ha%e Returned, Relocated or are !ocall Integrating ?H#ool #hreeI@, Gune 25,1 ?a%ailable from http3//unhcr"lk/wp. content/uploads/25,-/5,/#ool.#hree.4inal.Report.Gul .,2.25,1"pdf @figures ,"0, ,"7" J ,";" &ee case studies on Gaffna, &ampur and Aeli O a in Centre for >olic Alternati%es, >olitics, >olicies and >ractices with !and Ac)uisitions and Related Issues in the North and +ast of &ri !anka, No%ember 25,1, a%ailable from www"cpalanka"org/polic .brief.politics.policies.and. practices.with.land.ac)uisitions.and.related.issues.in.the.north.and.east.of.sri.lanka/" &ee the press release of the &pecial Rapporteur on the human rights of internall displaced persons after his %isit to &ri !anka from 2 to 7 2ecember 25,1, atwww"ohchr"org/+N/News+%ents/>ages/2ispla News"asp:KNewsI2L,-5<7J!angI2L+" &ee Centre for >olic Alternati%es, >olitics, >olicies and >ractices with !and Ac)uisitions and Related Issues ?see footnote 7@, p" -0" &ee UNHCR, A >rotection Assessment of &ri !ankan Internall 2isplaced >ersons ?see footnote 0@, figures ,",-, ,",0, ,",7 and ,",;" *

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#he $o%ernment also reported that the files of 8;; detainees who had been held for long periods of time without charge had been opened, and that ,75 files were pending a decision b the end of Ganuar 25,-",5 ,;" #he High Commissioner welcomes such progress and urges the $o%ernment to e:pedite decision.making on pending cases b bringing charges, releasing or sending indi%iduals for rehabilitation, and to ensure that law ers ha%e access to their clients" ,<" #he High Commissioner again urges the $o%ernment to repeal the >re%ention of #errorism Act and the regulations promulgated under it, which allow for arbitrar detention" ,8" #he High Commissioner notes with appreciation the $o%ernmentDs report that all former child combatants had been reintegrated b (a 25,5 and been pro%ided with formal education",, At the same time, she reminds the $o%ernment that, as highlighted in !essons !earnt and Reconciliation Commission recommendation 8";8, there has et to be an prosecutions or trials for the war crime of child recruitment, including against former cadres of the !iberation #igers of #amil +elam ?!##+@ and former paramilitar leaders now ser%ing in the $o%ernment"

0- Attac#s on religious minorities1 human rights defenders and freedom of opinion and e2pression
25" #he High Commissioner remains deepl disturbed b the significant surge in attacks against religious minorities and the incitement of %iolence b &inhala 9uddhist nationalist groups, led predominantl b certain e:tremist 9uddhist monks" &he recei%ed reports from the &ecretariat for (uslims, a non.go%ernmental organiEation, according to which there were some 2<5 incidents of threats and %iolence against (uslims in 25,1, ,2 as well as attacks on mos)ues and places of business" Christian groups also reported more than ,51 incidents of attacks on churches and Christians in 25,1" After a lull prior to the Commonwealth Heads of $o%ernment (eeting, fi%e %iolent attacks led b 9uddhist monks were reported against multiple churches in 2ecember 25,1 and Ganuar 25,-" In its comments on the present report, the $o%ernment cited ,<2 incidents affecting all religions, of which onl ,-; were reported to police" Although the $o%ernment stated that, the police had taken necessar action, in man cases perpetrators were readil identifiable in %ideo footage, where police are seen standing as onlookers to the %iolence" #he $o%ernment also reported that amending legislation to enhance e:isting pro%isions of the >enal Code and ICC>R Act with regard to hate speech had been prepared" 2," OHCHR continues to recei%e complaints of widespread harassment and intimidation targeting human rights defenders, acti%ists, law ers and 'ournalists, including reprisals against those who engage with the United Nations human rights mechanisms and OHCHR" #he High Commissioner e:pressed gra%e concern at the harassment and intimidation against indi%iduals or groups who met or attempted to meet with her, e%en months after her %isit" OHCHR recei%ed reports of at least ,5 serious cases in%ol%ing targeting indi%iduals and groups between the end of October and No%ember 25,1 in the run.up to and during the Commonwealth Heads of $o%ernment (eeting hosted b &ri !anka" #hese included the case of a prominent human rights defender who, on - No%ember, was the target of threats and derogator remarks during a radio broadcast hosted b the &tate.owned &ri !ankan 9roadcasting Corporation" In another instance, on ,1 No%ember, the police blocked buses
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&ee the National >lan of Action for the Implementation of !!RC Recommendations ?a%ailable from www"llrcaction"go%"lk/npoa"html@, IR ?,a@, p" ;" Ibid", p" ,," &tatistics pro%ided b the &ecretariat for (uslims"

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carr ing members of families of the disappeared as the were tra%elling to Colombo to participate in a human rights e%ent and in a demonstration calling for accountabilit for enforced disappearances" 22" Attacks against 'ournalist and media outlets continued in 25,1" &e%eral incidents targeted the #amil newspaper Uthayan3 on ,5 Ganuar , two distributers were attacked and copies of newspapers burnedB on ,1 April, armed men attacked emplo ees and set fire to printing machines in the Gaffna officeB and, on ,, Gul , armed men attacked the newsroom" On 2- August, an associate editor of the Sunday Leader was attacked b masked men at her home, and her computer was stolen in a subse)uent break.in, on < &eptember"

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&2tra4udicial1 summary and ar!itrary #illings

21" #he High Commissioner and se%eral special procedures mandate holders continued to follow de%elopments in recent cases in which the apparent e:cessi%e use of force led to the death of unarmed protesters or of prison inmates" On , August 25,1, appro:imatel 7,555 residents of Aeliweri a, a small suburb of Colombo, protested against the &tateDs failure to address communit concerns about the contamination of their drinking water suppl b a local factor " Arm personnel were deplo ed in support of the police to control the protest, which had turned %iolent and reportedl used e:cessi%e force, lea%ing three people dead and man others with critical in'uries" ,1 On 2 August 25,1, the Arm Commander appointed a militar court of in)uir into the incident" #he court submitted its report on 2, August, but it has not been made public" On 15 August 25,1, the Arm announced that four senior officers had been relie%ed of their duties with immediate effect, although no court martial has been initiated" ,- #he factor has since been relocated and compensation offered to the families of those killed" 2-" On ,2 No%ember 25,2, the (inistr of Rehabilitation and >rison Reforms appointed a committee to in)uire into e%ents in Aelikada prison on 8 No%ember 25,2, when &pecial #ask 4orce personnel conducted a search operation and arm personnel subse)uentl inter%ened to control a riotB at least 2; inmates were killed and -1 in'ured" ,0 #he committee handed o%er its report to the (inistr of Rehabilitation and >rison Reforms on ,0 Ganuar 25,-, but it has not been published" According to media reports, it concludes that the prisoners shot each other" #he $o%ernment informed the High Commissioner that a similar in)uir had been carried out into custodial deaths when securit forces had stormed =a%uni a prison to free officials taken hostage b prisoners in Gune 25,2, which was highlighted in her pre%ious report,,7 but to date no report has been made public"

5-

6ass gra%es

20" On 27 No%ember 25,2, a mass gra%e with appro:imatel ,00 skeletal remains was unco%ered in (atale, central &ri !anka" In Gune 25,1, a presidential commission of in)uir
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,,0

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&ee Human Rights Aatch, H&ri !anka3 In%estigate MClean AaterD >rotest 2eathsI, 8 August 25,1, a%ailable from www"hrw"org/news/25,1/5</58/sri.lanka.in%estigate.clean.water. protest.deathsB and (inistr of 2efence and Urban 2e%elopment, press communi)uN, 15 August 25,1, a%ailable from www"defence"lk/new"aspK fnameL>ressCCommuni)ueCAeliweri aCIncidentC25,15<15C51" &ee (inistr of 2efence press communi)uN ?see footnote ,1@" Centre for >olic Alternati%es, HA !ist of Commissions of In)uir and Committees Appointed b the $o%ernment of &ri !anka ?2557.25,2@I, ,2 (arch 25,2, a%ailable from www"cpalanka"org/a.list.of.commissions.of.in)uir .and.committees.appointed.b .the.go%ernment. of.sri.lanka.2557.25,2/" A/HRC/22/1<, para" 2," 7

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was appointed to probe the circumstances surrounding the gra%esite, despite the initiation of a 'udicial process in the (atale (agistrateDs Court" #here are concerns regarding the manner in which the remains are being preser%ed, the protection of the site and the in%estigation process",; In 2ecember 25,1, it was reported that another gra%esite with 02 skeletal remains, including of children, was disco%ered in (annar, northern &ri !anka" 27" It is %ital that the integrit of the sites, and e:humation and identification procedures, be gi%en due attention" #he rights of families to know the fate of their missing lo%ed ones is critical, and the must be acti%el in%ol%ed in the legal and humanitarian efforts to locate, e:hume, rebur and memorialiEe the dead" In this conte:t, an uncompromised e:humation and in%estigation process is essential, and could benefit from international assistance"

,'- ,mplementation of the recommendations of the "essons "earnt and Reconciliation Commission
2;" In (a 25,2, the Cabinet appointed a presidential task force to monitor the implementation of the recommendations made b the !essons !earnt and Reconciliation Commission" In Gul 25,2, the task force issued a national plan of action for the implementation of some of the recommendations" #he $o%ernment released its latest update on the implementation of the plan of action in Ganuar 25,-" ,< #he High Commissioner had the opportunit to discuss progress with the &ecretar to the >resident on 25 Ganuar 25,-" 2<" #he High Commissioner welcomes the progress reported in implementing a number of recommendations made b the !essons !earnt and Reconciliation Commission, for instance gi%ing effect to the trilingual polic , promoting the official use of the #amil language, the upgrading of schools in the northern and eastern pro%inces, and measures to promote ethnic di%ersit in schools and e)uit of access to higher education" 28" Noting the breadth and depth of the full range of recommendations made b the !essons !earnt and Reconciliation Commission, the High Commissioner has )uestioned the process and rationale for the $o%ernmentDs selecti%it in implementing onl some of the recommendations" In some instances, as discussed below, she also obser%ed that certain recommendations had been watered down in the national plan of action or during %arious stages of implementation" 15" #he !essons !earnt and Reconciliation Commission made appro:imatel 2<0 recommendations" In the national plan of action, the $o%ernment pledged to support the implementation of 82 recommendations" In August 25,1, it announced that it would implement an additional 01 recommendations, ,8 bringing the total to ,-0 recommendations" At the uni%ersal periodic re%iew of &ri !anka in No%ember 25,2, the $o%ernment stated that some of the remaining Commission recommendations fell under the ambit and scope of the national plan of action for the protection and promotion of human rights ?25,,.25,7@, progress reports on which are not a%ailable in the public domain" 1," In man instances, howe%er, the specified acti%it in the national plan of action does not full correspond to or address the recommendations made b the !essons !earnt and
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,< ,8

4or instance, the (atale magistrate o%erseeing the in)uir was subse)uentl transferred 6 according to the $o%ernment, on disciplinar grounds 6 to Colombo" A%ailable from www"llrcaction"go%"lk/npoa"html" &ee the press release of the >residential &ecretariat of &ri !anka, ,0 Gul 25,1, at www"presidentsoffice"go%"lk/inde:"phpKoptionLcomCk2J%iewLitemJidL,253cabinet.appro%es. action.on.01.more.llrc.recommendations"

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Reconciliation Commission, or the acti%it has been onl partiall completed" 4or instance, while recommendation 8";1 calls for the in%estigation of allegations against illegal armed groups, the corresponding acti%it is the disarming of armed groups" 25 12" In other e:amples, recommendation 8"-7 called upon the $o%ernment to direct law enforcement authorities to take immediate steps to ensure that allegations of abductions, enforced disappearances and arbitrar detention are properl in%estigated and perpetrators brought to 'ustice" #he corresponding acti%it identified b the $o%ernment does not respond to the call for in%estigations, but focuses on the capacit .building of police and communit policing"2, Recommendation 8"2;5 called for the establishment of interfaith mechanisms to facilitate earl warning and pre%ention of communal or religious %iolence, but this is being implemented b ci%il defence committees established b the (inistr of 2efence during the war"22 11" !ittle progress has been made with other ke recommendations relating to 'ustice and accountabilit issues, a core concern for the Human Rights CouncilB for instance, recommendation 8",25 urged the $o%ernment to implement the recommendations of the report of the presidential commission of in)uir ?the Udalagama Commission@ appointed in 2557 to in%estigate alleged serious %iolations of human rights committed since August 2550,21 particularl the killing of fi%e students in #rincomalee, in Ganuar 2557, and of ,; aid workers of Action contre la 4aim, in August 2557" !imited progress has been reported under the national plan of action on these two cases ?see paras" -; 6 7- below@B furthermore, the plan does not address an of the other ,1 high.profile cases in%estigated b the Udalagama Commission, including the murder of a former (inister for 4oreign Affairs and of other parliamentarians, and the disappearance of a Catholic priest" 1-" Recommendation 8"2,1 called upon the $o%ernment to in%estigate the serious allegations against illegal armed groups ?some of which had operated as paramilitaries@, and to prosecute and punish perpetrators irrespecti%e of their political links" In the national plan of action, the $o%ernment reported that, as at Ganuar 25,-, ;7 suspects were being detained b the #errorist In%estigation 2i%ision, and that an in%estigation concerning some of them was ongoing"210" Ahile the paramilitar groups ha%e largel been disbanded, no action has been taken to date in relation to two senior paramilitar leaders now ser%ing in ministerial positions, 2ouglas 2e%ananda and =ina agamoorth (uralitharan ?alias Oaruna@, or the former Chief (inister of the +astern >ro%ince, &i%anesathurai Chandrakanthan ?alias >illai an@, all of whom are linked to numerous allegations of serious crimes during the armed conflict" 20 9oth Oaruna and >illai an were former !##+ commanders who subse)uentl formed the breakawa Oaruna faction named in the !essons !earnt and Reconciliation Commission as well as successi%e reports of the &ecretar .$eneral on children and armed conflict as being responsible for child recruitment, a war crime"27
25 2, 22

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220

27

Other e:amples include recommendations 8"0; and 8"<," #here are similar issues with recommendations 8";1, 8"2<0 and 8"2,1" #he $o%ernment announced the reacti%ation of ci%il defence committees in August 25,,B see www"defence"lk/new"aspKfnameL25,,5<2-C5," &ee Centre for >olic Alternati%es, HA !ist of Commissions of In)uir and CommitteesI ?see footnote ,0@" &ee National >lan of Action ?see footnote ,5@, p" 15" &ee Human Rights Aatch, H&ri !anka3 >robe into !##+ Crimes &hould &tart with OarunaI, 2< (arch 25,1 ?www"hrw"org/news/25,1/51/2</sri.lanka.probe.ltte.crimes.should.start. karuna@, and Amnest International, &ri !anka report, a%ailable from www"amnest "org/en/region/sri. lanka/report.25,5" &/AC"0,/255;/8" &ee also Human Rights Aatch, H&ri !anka3 Oaruna $roup Abducts Children for CombatI, 20 Ganuar 255;, a%ailable from www"hrw"org/news/255;/5,/21/sri.lanka. karuna.group.abducts.children.combat" 9

A(HRC()*()+

'A-

rogress in accounta!ility issues

5omestic initiati%es

17" In its resolution 22/,, the Human Rights Council called upon the $o%ernment to conduct an independent and credible in%estigation into allegations of %iolations of international human rights and humanitarian law and to take all necessar additional steps to fulfil its rele%ant legal obligations and commitment to initiate credible and independent actions to ensure 'ustice, e)uit , accountabilit and reconciliation for all &ri !ankans" A number of the recommendations made b the !essons !earnt and Reconciliation Commission also called for further in%estigation into specific cases and issues, in particular allegations of the indiscriminate killing of ci%ilians and the summar e:ecution of prisoners" #o date, the $o%ernment has taken limited and piecemeal steps towards in%estigating serious allegations of %iolations of international human rights and humanitarian law, and none of these ha%e had the independence or credibilit re)uired" 1;" #he !essons !earnt and Reconciliation Commission recommended further in%estigations into, inter alia, the circumstances under which specific instances of death or in'ur to ci%ilians could ha%e occurred, and, that, if such in%estigations disclosed wrongful conduct, that perpetrators be prosecuted and punished, as well as into the Channel - %ideo recordings to establish the truth of the allegations arising from them" #he Commander of the Arm con%ened a militar court of in)uir in 4ebruar 25,2 to in%estigate and submit a report on the obser%ations made b the Commission" !ittle, howe%er, is known about the proceedings, as the court has been closed to the public and it has not issued an report" 1<" In its update of the national plan of action of Ganuar 25,-, the $o%ernment reported that the court of in)uir of the &ri !anka Arm completed in 4ebruar 25,1 its in%estigation into the allegation of killings of ci%ilians, and concluded that instances of shelling referred to in the report of the !essons !earnt and Reconciliation Commission had not been caused b the Arm , and that ci%ilian causalities might ha%e been due to unlawful acts b the !##+" #he $o%ernment reported that the second part of the in%estigation into allegations made in the Channel - %ideo was under wa " 18" #he High Commissioner has obser%ed that militar courts of in)uir do not ha%e the necessar impartialit and independence to inspire confidence" #he Commander of the Arm who established the courts was also the commander of the securit forces in the main battle Eone of the conflict, and was acti%el engaged in the o%erall militar planning and operations there" In cases of alleged human rights %iolations b the militar or armed forces, in%estigations should be carried out b ci%ilian authorities, not b the armed forces themsel%es"2; -5" According to the $o%ernment, the Census on Human and >ropert 2amages due to Conflict, completed in 2ecember 25,1, will shed light on the number of ci%ilian deaths and in'uries during the war, as well as on the fate of missing persons" #he results are reportedl being anal sed" #he outcome of the census will not, howe%er, pro%ide a total picture of all those who ha%e died or disappeared since ,8<2B for instance, data were collected onl from the immediate famil members of those dead or missing, thereb missing those cases where all famil members had died, disappeared or left the countr "

2;

&ee for e:ample CC>R/C/;8/Add";7, CC>R/CO/;,/=+N, CC>R/CO/78/O$P, CC>R/C/;8/Add",5-, CC>R/C/;8/Add"<7, para" 8, CC>R/C/;8/Add"87, CC>R/C/;8/Add"<5, Official Records of the General Assembly, Thirty-fifth Session, Supplement No !" ?A/10/-5@, para" 2-8, and CA#/C/CR/1,/,, para" 8 ?d@ ?iii@"

:;

A(HRC()*()+

-," Other issues for which the !essons !earnt and Reconciliation Commission recommended further in%estigation remain unaddressed b the courts of in)uir or an other process" 4or instance, in paragraph 8",,- of its report, the Commission e:pressed deep concern at the persistent reports concerning the killing of 'ournalists and other forms of attacks on 'ournalists and media institutions, and the fact that these incidents still had to be conclusi%el in%estigated and perpetrators brought to 'ustice" -2" #he High Commissioner is also concerned that legal proceedings ha%e not begun against an !##+ suspect for alleged war crimes or other human rights abuses" -1" In August 25,1, the $o%ernment announced the appointment, b the >resident, of the new Commission of In)uir on 2isappearances" #he Commission, which conducted its first public sittings from ,< to 2, Ganuar 25,-, in Oilinochchi 2istrict, recei%ed appro:imatel ,1,;55 complaints from all parts of the countr " 2< #he $o%ernment has also sought information from other countries concerning &ri !ankans who ma now be abroad" #he High Commissioner welcomes this effort, but notes that the Commission will onl co%er disappearances in the northern and eastern pro%inces between ,885 and 2558" (an disappearances reported in Colombo and other parts of the countr in recent ears will therefore not fall within its scope" --" In No%ember 25,1, the $o%ernment announced that the Human Rights Commission of &ri !anka would conduct a national in)uir into allegations of torture committed between 2558 and 25,1, with the support of the Human Rights 2i%ision of the Commonwealth &ecretariat" In earl 2ecember 25,1, the Commission announced that the in)uir had been postponed indefinitel " 28 -0" In her pre%ious report,15 the High Commissioner recommended that &ri !anka should establish a more comprehensi%e truth.seeking mechanism, which would build upon the recommendations of the !essons !earnt and Reconciliation Commission" It is important to stress that an truth.seeking mechanism must full compl with the &tateDs international legal obligations, and must be full independent, including the selection of its members and budgetar considerations" It should en'o the broadest possible mandate co%ering the entire period of the conflict and the whole territor " It should be based on a broad national consultation process, which should include the %iews of %ictims and sur%i%ors and of ci%il societ organiEations from all parts of the countr " !essons must be learned from the failure of past commissions of in)uir to ensure that an new mechanism en'o s the independence and powers necessar to be effecti%e" 4or instance, an comprehensi%e truth mechanism should be established on a specific legislation meant for the mechanism, not under the currentl flawed Commission of In)uiries Act" -7" #he High Commissioner notes that it would not be permissible for an truth mechanism to grant amnesties that pre%ent the prosecution of indi%iduals who ma be criminall responsible for war crimes, genocide, crimes against humanit or gross %iolations of human rights, including gender.specific %iolations" A truth commission should consider seeking international support, for e:ample special technical, legal and polic assistance, as well as the in%ol%ement of international in%estigators to assist the process" !astl , an such truth commissions should be complemented b comprehensi%e and coherent transitional 'ustice mechanisms and processes that include prosecution, reparations, %etting and other accountabilit or reform programmes"
2<

28

15

(inistr of 2efence and Urban 2e%elopment, HCommission probing disappearances recei%es ,1,;55 complaintsI, 2; Ganuar 25,-, a%ailable from www"defence"lk/new"aspK fnameLCommissionCprobingCdisappearancesCrecei%esC,1;55CcomplaintsC25,-5,2;C5;" Ramanathan Ahilan, IHRC >ostpones &et Up Of #orture Commission On Alleged Re)uests 9 C&Os 6 Rights Now Asks Chairman #o Name #he OrgsI, Rights Now, ,- 2ecember 25,1, a%ailable from www"rightsnow"net/KpL-1-;" A/HRC/22/1<" ::

A(HRC()*()+

0-

&m!lematic cases

-;" #he failure of the $o%ernment to make an significant progress towards accountabilit is illustrated b the lack of independent and credible in%estigations into allegations of serious human rights %iolations in se%eral emblematic cases" #hese cases ha%e been repeatedl been drawn to the attention of the Human Rights Council b the High Commissioner and international human rights mechanisms" #he &ecretar .$eneralDs >anel of +:perts highlighted in its report man of these cases ?paras" ,-8, ,;5 and -,-@, which were in%estigated b pre%ious national commissions of in)uir and for which the !essons !earnt and Reconciliation Commission also recommended further in%estigations" In some cases, the $o%ernment has repeatedl reported to the Council that progress had been made in in%estigations" None of these cases has, howe%er, resulted in the perpetrators being brought to 'ustice" #hese cases are onl a small but representati%e sample of the gra%e allegations of serious human rights %iolations committed b the $o%ernment and the !##+ during the conflict that ha%e et to be in%estigated or remain unresol%ed" :The Trincomalee fi%e

-<" On 2 Ganuar 2557, fi%e students were allegedl beaten and e:ecuted b &ri !ankan securit forces at the #rincomalee sea.front" #he #rincomalee (agistrateDs Court concluded in its in)uest that the deaths had been due to gunshot in'uries, and directed the police to conduct further in%estigations and to bring the suspects to court" A number of special task force members at the scene were detained as suspects soon after the incident, but released the same ear" &ince then, the magistrate in #rincomalee has postponed the case on a monthl basis, re)uesting the Criminal In%estigation 2i%ision to produce reports of its in%estigations" #he 2i%ision has failed to do so and has not pro%ided 'ustifiable reasons for the dela " &e%eral witnesses and their famil members fled the countr after recei%ing threats"1, -8" In 2557 and 255;, the #rincomalee case was in%estigated b the Udalagama Commission, which was obser%ed b an international independent group of eminent persons" #he $o%ernment has ne%er published the CommissionDs report" #he case was also in%estigated b the Human Rights Commission of &ri !anka at the timeB its report, which concluded that securit forces had been in%ol%ed, first appeared in the public domain in Ganuar 25,-"12 #he !essons !earnt and Reconciliation Commission had e:pressed disma at the lack of follow.up to the findings of the Udalagama Commission, and recommended that the $o%ernment in%estigate the killings further" 05" In 25,1, the $o%ernment informed the Human Rights Council that the Attorne . $eneral had instructed the police to commence a non.summar in)uir before 'udicial authorities" At the time, the $o%ernment noted that the matter Hma be brought to a conclusion and is concrete e%idence of our commitment to accountabilit I" 11 0," In Gune 25,1, ,2 &pecial #ask 4orce officers were arrested and remanded in connection with the murders" #he &enior &uperintendent of >olice, who was in command at the time, was not among them ?he has since been promoted to 2eput Inspector $eneral and returned to #rincomalee@" #he Attorne .$eneral informed the High Commissioner in
1,

12

11

&ee Uni%ersit #eachers for Human Rights ?Gaffna@, special report No" 15, , April 255<" A%ailable from www"uthr"org/&pecialReports/&preport15"htm" A%ailable from www"colombotelegraph"com/wp.content/uploads/25,-/5,/report.b . the.HRC.appointed.&pecial.Rapporteur"pdf" &tatement b the leader of the &ri !anka delegation, (ahinda &amarasinghe, at the high.le%el segment of the twent .second session of the Human Rights Council, a%ailable from https3//e:tranet"ohchr"org/sites/hrc/HRC&essions/Regular&essions/22nd&ession/Oral&tatements/&ri Q25!ankaQ25mtgQ257"pdf"

:)

A(HRC()*()+

August 25,1 that the anticipated time frame for proceedings of this kind was three months, but pointed out the difficulties in con%incing witnesses to come forward" #he officers were released on bail in October 25,1" On 25 Ganuar 25,-, during a meeting with the &ecretar to the >resident, the Attorne .$eneralDs Office informed the High Commissioner that e%idence had been recorded from ,- witnesses, and affida%its e:amined from another se%en" #he Attorne .$eneralDs Office has summonsed a further ,- witnesses, although had had difficulties contacting those outside the countr " After eight ears of in%estigations, commissions of in)uir and repeated commitments b the $o%ernment, it is of great concern that this case has not been brought to a conclusion" )Action contre la /aim

02" On - August 2557, ,; aid workers from Action contre la 4aim were e:ecuted at their office premises in (uttur, when the $o%ernment and !##+ were fighting for control of the town"101" An in)uest into the killings began in the (uttur (agistrateDs Court on ,0 August 2557" In subse)uent months, howe%er, the case was transferred to Anuradhapura then to Oantale, and then back to Anuradhapura" In No%ember 255;, the magistrate of Anuradhapura was transferred to another location and the case was sent back to the magistrate in (uttur ?a different magistrate to the one who initiall heard the case in August 2557@, where it has since ground to a halt" Action contre la 4aim lodged a complaint with the Human Rights Commission of &ri !anka, later complaining of its total ineffecti%eness and lack of cooperation"10 0-" Credible and independent local and international organiEations ha%e conducted substantial in)uiries into the case and made serious allegations about its mishandling b the Attorne .$eneralDs 2epartment, the police, the Gudicial (edical Officer and the (inistr of Gustice" #he noted that officials had destro ed, remo%ed and otherwise tampered with e%idence" #he families of the %ictims had been intimidated, threatened and, in some cases, encouraged to sign statements of withdrawal"17 00" #he case was also among those in%estigated b the Udalagama Commission in 255;/5<, although its report has ne%er been published" #he !essons !earnt and Reconciliation Commission recommended that the $o%ernment should complete the in%estigation and prosecute those responsible" 2uring the High CommissionerDs %isit to &ri !anka, the Attorne .$eneral informed her that he had instructed his staff to re.e:amine archi%ed files, while pointing out that the in%estigation was proceeding slowl " In its comments on the present report, the $o%ernment stated that a team of senior prosecutors continued to pursue %arious lines of in)uir , although it has not been possible to establish the identit of those responsible" +&2ecutions of prisoners and those who surrendered

07" &ince the end of the armed conflict in 2558, %ideo and photographic material ha%e emerged depicting scenes from the last phase of the war, in which prisoners appear to ha%e been killed upon their surrender or while in the custod of the securit forces"
1-

10

17

In its ruling addressed to the &ri !ankan &ecretariat for Coordinating the >eace >rocess on 28 August 2557, the &ri !anka (onitoring (ission concluded that the Arm was in control of the town at the time of the death of the aid workers" Action contre la 4aim, The #uttur massacre$ a struggle for %ustice, stud report, Gune 255<, a%ailable from www"actionagainsthunger"org/sites/default/files/publications/AC4.IN.&ri. !anka.Ad%ocac .Report.7.,<.5<"pdf" &ee Uni%ersit #eachers for Human Rights, special report No" 11, - August 2558, a%ailable from http3//uthr"org/&pecialReports/spreport11"htmRC#oc21;5080,2" :+

A(HRC()*()+

0;" In Gune 25,,, the &pecial Rapporteur on e:tra'udicial, summar or arbitrar e:ecutions presented a technical report to the Human Rights Council that demonstrated the authenticit of portions of the %ideo footage first broadcast b Channel - in August 2558" 1; On ,5 &eptember 2558, the $o%ernment had announced the outcome of its own technical anal sis on the basis of which it disputed the pre%ious findings of the &pecial Rapporteur" In response, the &pecial Rapporteur commissioned independent e:perts to undertake a technical anal sis, which confirmed his initial conclusion" Ahile the !essons !earnt and Reconciliation Commission did not reach a firm conclusion on the authenticit of the material, it recommended that the $o%ernment should conduct further in%estigations" According to the $o%ernment, this is now the sub'ect of a second stage of proceedings b the militar court of in)uir , et to be concluded"1< <a= 0alachandran ra!ha#aran 0<" In 4ebruar 25,1, a series of photographs emerged depicting 9alachandran >rabhakaran, the ,2. ear.old son of !##+ leader =illupillai >rabhakaran, sitting in a bunker, ali%e and apparentl in the custod of &ri !ankan troops, then his apparentl dead bod l ing on the ground, his chest pierced b bullets" #he photographs were taken in (a 2558, a few hours apart and with the same camera" #he authorities ha%e maintained that the bo was killed in cross.fire" <!= T- Thuraira4asingham <alias Colonel Ramesh= 08" =ideo and photographic material obtained b Channel - and other sources depict !##+ commander Colonel Ramesh being interrogated b &ri !ankan securit forces, followed b still images of his mutilated dead bod " According to se%eral witness testimonies to the e%ents surrounding the fate of Colonel Ramesh, he was in the custod of the securit forces at the time of his death" <c= Sho!a <alias ,saipriya= 75" #he anal sis b the &pecial Rapporteur on e:tra'udicial, summar or arbitrar e:ecutions of the Channel - photographic and %ideo material of the death of a high.profile member of the !##+ press and communications wing, Isaipri a, re%ealed the likelihood of summar e:ecution b the arm " #he %ideo and pictures showed that her clothing had been pulled awa to re%eal her bare bod " 18 In No%ember 25,1, Channel - released new footage that shows her being captured ali%e b the arm " 7," Aith regard to each of the abo%e three cases, the $o%ernment stated the authenticit of the footage and photographs remained unsubstantiated and un%erified" Ahether this has been the sub'ect of an further in%estigation is unknown" <d= >?hite flag@ incident 72" #he &ecretar .$eneralDs >anel of +:perts e:amined allegations of e:tra'udicial e:ecutions of high.le%el !##+ leaders on ,< (a 2558, despite assurances from the $o%ernment that the could safel surrender" High.ranking go%ernment and militar officials ha%e pro%ided conflicting accounts of the e%ents in rallies and international forums"-5 Ahile the circumstances surrounding the incident remain uncertain, the >anel
1; 1< 18

-5

A/HRC/,;/2</Add",, appendi:" &ee National >lan of Action ?see footnote ,5@, p" 2" &ee Amnest International, &ri !anka3 9riefing to Committee against #orture, October 25,, ?a%ailable from www"amnest "org/en/librar /asset/A&A1;/5,7/25,,/si/2bb,bbe-.<ba0. -f1;.<2d5.;5cbfec0bb2d/asa1;5,725,,en"pdf@, p" 25, &ee 4rederica GansE, HM$ota ordered them to be shotD. $eneral &arath 4onsekaI, Sunday Leader, ,2 2ecember 25,5, a%ailable from

:.

A(HRC()*()+

concluded that the !##+ leadership intended to surrender" +%idence of this incident continues to emerge through non.go%ernmental sources from witnesses now located outside the countr " In its report, the !essons !earnt and Reconciliation Commission failed to criticall anal se or in%estigate the Hwhite flagI incident, but it cited testimonies from an arm general and a go%ernment agent, who dismissed these allegations" In its comments on the present report, the $o%ernment stated that no further in)uiries were being conducted into the incident owing to lack of credible e%idence" .rageeth &#neligoda

71" On 2- Ganuar 25,5, a &ri !ankan 'ournalist and cartoonist, >rageeth +kneligoda, disappeared shortl after lea%ing work" A few da s earlier, he had published an article critical of >resident Ra'apaksa" !ocal residents told the &ri !ankan press that the had seen a white %an without numbered plates close to his house around the time of his disappearance" In August 2558, >rageeth had alread been abducted, then released the following da , with his abductors sa ing that the had made a mistake" #his case is emblematic of the tens of thousands of cases of disappearance witnessed o%er the past 15 ears in &ri !anka and remain unresol%ed" #he +kneligoda case has been raised b the High Commissioner, the Aorking $roup on +nforced or In%oluntar 2isappearances, the Committee against #orture and the &ecretar .$eneralDs >anel of +:perts" Ahile the !essons !earnt and Reconciliation Commission did not in%estigate this case, it made general recommendations that the $o%ernment in%estigate abductions, enforced disappearances and attacks on 'ournalists" 7-" In Gune 25,,, former Attorne .$eneral ?now Chief Gustice@ (ohan >eiris was ordered to appear at a habeas corpus hearing in the case after telling the Committee against #orture, in 25,,, that +kneligoda was li%ing in a foreign countr " At the hearing, (ohan >eiris admitted that he did not know >rageeth +kneligodaDs whereabouts and said that his statement to the Committee had been based on the instructions recei%ed" +kneligodaDs wife faced hostile )uestioning from &tate counsel o%er her acti%ities at the Human Rights Council side e%ent held in (arch 25,2, in $ene%a" -, #he $o%ernment has reported that a magisterial in)uir is in progress" #his case, together with man of this kind, will not fall within the mandate of the new Commission of In)uir on 2isappearances, which is mandated to e:amine cases of disappearances onl in the northern and eastern pro%inces"

',- Conclusions and recommendations

AConclusions

705espite the significant progress achie%ed in the physical aspects of resettlement and reco%ery1 and the implementation of some of the recommendations made !y the "essons "earnt and Reconciliation Commission1 the Go%ernment of Sri "an#a has yet to satisfy the call made !y the Human Rights Council for a credi!le and independent in%estigation into the allegations of serious human rights %iolations that persist or to ta#e the necessary steps to fulfil its legal o!ligations to ensure 4ustice and redress77" ,t is important for the Human Rights Council to recall the magnitude and gra%ity of the %iolations alleged to ha%e !een committed !y the Go%ernment and the "TT&1 which left many thousands of ci%ilians #illed1 in4ured or missing- ,n its report1 the Secretary-GeneralAs anel of &2perts concluded that1 if pro%en1 some of these acts
www"thesunda leader"lk/2558/,2/,1/Q+2Q<5Q8Cgota.ordered.them.to.be.shotQ+2Q<5Q82. Q+2Q<5Q81.general.sarath.fonseka/" &ee A/HRC/2,/,<" :*

-,

A(HRC()*()+

would amount to war crimes and crimes against humanity- 5uring her %isit to Sri "an#a in August );:+1 the High Commissioner was struc# !y the o%erwhelming sense of grief and trauma among %ictims and sur%i%ors that1 if left unaddressed1 will continue to undermine confidence in the State and reconciliation7;" The Go%ernment has launched initiati%es and esta!lished mechanisms1 such as the military courts of inBuiry and the Commission of ,nBuiry on 5isappearances1 !ut none of these ha%e the independence to !e effecti%e or to inspire confidence among %ictims and witnesses- The military courts of inBuiry lac# independence and transparency and are limited in scope- ast commissions of inBuiry ha%e not always completed their mandate1 their reports ha%e not !een pu!lished and their recommendations ha%e not !een implemented or followed !y prosecutions- The Human Rights Commission of Sri "an#a1 although handling many routine cases1 has a poor record in responding credi!ly to serious %iolations committed !y the military and security forces--2 7<" /or the past se%eral years1 Sri "an#an courts ha%e !een compromised !y politiciCation and interference !y the e2ecuti%e- -1 Cases or presiding magistrates and 4udges are often transferred from one court to other1 there!y delaying 4udicial proceedings--- The High Commissioner heard from lawyers a!out large num!ers of fundamental rights applications1 including in cases of ar!itrary detention and torture1 that are discouraged or not gi%en lea%e to proceed !y the Supreme Court--0 78" One conseBuence of this situation is the understanda!le reluctance of %ictims and witnesses to come forward in the a!sence of any effecti%e system for their protection- ,n many cases1 witnesses ha%e !een intimidated to discourage their gi%ing testimony1 and e%en #illed- This has !een a ma4or constraint on criminal in%estigations1 as well as on the wor# of pre%ious commissions of inBuiry and the "essons "earnt and Reconciliation Commission- The Attorney-General himself informed the High Commissioner that the reluctance of witnesses to come forward was the main reason for the lac# of progress in such em!lematic cases as the ones concerning Trincomalee and Action contre la /aim;5" A !ill on assistance and protection for %ictims of crime has !een in preparation since );;71 and was ta!led in arliament in Dune );;8- The pre%ious drafts contained many pro%isions that were not compliant with international human rights lawAlthough the Supreme Court recommended se%eral amendments1 it is not clear whether they were incorporated- According to the Go%ernment1 the legislation is !eing finaliCed1 e%en though the final %ersion has yet to !e released for pu!lic consultation-

-2

-1

--

-0

4or e:ample, the attack on the =a%uni a prisoners and subse)uent custodial deaths, in Gune 25,2B the prison riot and subse)uent custodial deaths in Aelikada prison, in No%ember 25,2B and e:cessi%e use of force and subse)uent deaths in Aeliweri a, in August 25,1 " In her oral update to the Human Rights Council ?A/HRC/2-/CR>"1/Re%",@, the High Commissioner highlighted concerns about the degree to which the rule of law and independence of the 'udiciar had been undermined in &ri !anka, notabl b the ,<th amendment and contro%ersial impeachment of the -1rd Chief Gustice in Ganuar 25,1" #he ,<th amendment abolished the Constitutional Council, which once recommended appointments to the independent bodies, such as the +lections Commission, the >olice Commission and the Human Rights Commission" As seen, for e:ample, in the transfer of the magistrate o%erseeing the case of the (atale mass gra%es" 4or e:ample, the 4undamental Rights application ?&C4R,,0/25,,@ submitted b the parents of $aneshan Nimalaruban, who died in custod following the attack on the prisoners in =a%uni a in Gune 25,2"

:3

A(HRC()*()+

;," At the same time1 new e%idence -- including witness testimony1 %ideo and photographic material -- continues to emerge on the e%ents that too# place in the final stages of the armed conflict- Human remains are also still !eing disco%ered1 for instance in 6atale1 in No%em!er );:)1 and 6annar1 in 5ecem!er );:+;2" As the em!lematic cases highlighted a!o%e show1 national mechanisms ha%e consistently failed to esta!lish the truth and achie%e 4ustice- The High Commissioner !elie%es this can no longer !e e2plained as a function of time or technical capacity1 !ut that it is fundamentally a Buestion of political will- The Secretary-GeneralAs anel of &2perts and the initiati%es ta#en !y international non-go%ernmental organiCations ha%e shown that witnesses are willing to come forward to testify to international inBuiry mechanisms that they trust and can guarantee their protection- /or this reason1 the High Commissioner remains con%inced that an independent1 international inBuiry would play a positi%e role in eliciting new information and esta!lishing the truth where domestic inBuiry mechanisms ha%e failed- ,n the a!sence of a credi!le national process1 she !elie%es the international community has a duty to ta#e further steps1 which will ad%ance the right to truth for all in Sri "an#a and create further opportunities for 4ustice1 accounta!ility and redress;1" The High Commissioner reiterates her concern at the continuing trend of attac#s on freedom of e2pression1 peaceful assem!ly and association1 particularly against human rights defenders1 4ournalists and families of %ictims1 the rising le%els of religious intolerance1 and continued militariCation1 which continue to undermine the en%ironment where accounta!ility and reconciliation can !e achie%ed- She therefore reiterates and updates the recommendations made in her pre%ious report to the Human Rights Council1 most of which remain unimplemented-

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Recommendations

;-" The High Commissioner recommends that the Human Rights Council esta!lish an international inBuiry mechanism to further in%estigate the alleged %iolations of international human rights and humanitarian law and monitor any domestic accounta!ility processes- OHCHR stands ready to assist in such a process;0" The High Commissioner recommends that the Go%ernment of Sri "an#aE <a= /inaliCe laws dealing with incitement to hatred1 witness and %ictim protection1 the right to information and the criminaliCation of enforced disappearances1 and re%ise e2isting laws in accordance with international standardsF <!= Repeal the re%ention of Terrorism Act and lift the regulations promulgated under it that allow for ar!itrary detentionF <c= Arrest1 prosecute and punish perpetrators of attac#s on minority communities1 media and human rights defenders1 and ensure protection of %ictimsF <d= Underta#e independent and credi!le criminal and forensic in%estigations with international assistance into all alleged %iolations of human rights and humanitarian law1 including recently disco%ered mass gra%esF <e= &sta!lish a truth-see#ing mechanism and national reparations policy in accordance with international standards as an integral part of a more comprehensi%e and inclusi%e approach to transitional 4usticeF <f= 0roaden the scope and tenure of the Commission of ,nBuiry on 5isappearances to encompass cases from all parts of the island and all periods of the history of disappearancesF
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A(HRC()*()+

<g= u!lish the final report of the military courts of inBuiry1 the presidential commission of inBuiry of );;3 and the more recent commissions of inBuiry to allow the e%idence gathered to !e e%aluatedF <h= Ta#e further steps in demilitariCation1 ensure military disengagement from acti%ities that are meant to !e ci%ilian1 resol%e land disputes and promote meaningful community participation in reconstruction and de%elopmentF <i= &ngage ci%il society and minority community representati%es more fully in an inclusi%e and consultati%e process to support the implementation of the recommendations made !y the "essons "earnt and Reconciliation CommissionF <4= ,mplement the CommissionAs recommendation for a national day of commemoration1 allow all citiCens their right to hold indi%idual or group commemorations1 and hold national consultations on the design of appropriate memorialiCation for the %ictims of the warF <#= Gi%e positi%e consideration to the offers of technical assistance made !y the Office of the High CommissionerF <l= ,n%ite special procedures mandate holders with outstanding reBuests to %isit the country in );:.1 particularly the ?or#ing Group on &nforced or ,n%oluntary 5isappearances and the ,ndependent &2pert on minority issues-

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