The following statement was delivered by UN High
Commissioner for Human Rights Zeid Ra'ad Al Hussein via videolink to the Human
Rights Council in Geneva today, 30 September 2015. Scroll down for the video
message download link.
Mr President, Excellencies,
Ladies and Gentlemen,
I am pleased to present the report of OHCHR on promoting
reconciliation, accountability and human rights in Sri Lanka, including the
findings of the comprehensive investigation mandated by Human Rights Council
resolution 25/1. As you know, following signals of engagement by the newly
elected Government of Sri Lanka in January 2015, the Human Rights Council
decided to defer consideration of the report until this thirtieth session.
The context in which this report is presented is very
different to the one during which it was mandated. The election of a new
President and Government on a platform centered on good governance, human
rights and the rule of law presents a historic opportunity to address the grave
human rights violations that have wracked Sri Lanka, including through
accountability and institutional reform, and to lay the basis for long-term
reconciliation and peace.
We are also seeing renewed engagement by the new
Government with OHCHR and the UN human rights mechanisms. The previous Government categorically
rejected the Human Rights Council-mandated investigation and refused access and
cooperation. More worryingly, it resorted to an unrelenting campaign of
intimidation and harassment against victims, witnesses and representatives of
civil society who might seek to provide information to OHCHR. The new
Government did not alter the stance on cooperation with the investigation, nor
did it admit the investigation team into the country. However, it has engaged
more constructively with me and my Office on possible options for an
accountability and reconciliation process.
It also invited the Special Rapporteur on truth, justice,
reparations and guarantees of non-recurrence to make a technical visit in
March/April 2015, and will host the Working Group on Enforced and Involuntary
Disappearances in November 2015. I hope
this will mark the start of a closer engagement with the Special Procedures,
whose mandates can offer valuable advice and technical assistance.
Mr President,
The Presidential election of 8 January 2015 marked a
watershed in the political environment in Sri Lanka. The manifesto of the new Government included
a 100-day programme of important constitutional reforms and other important
measures. The Chief Justice, who was controversially impeached in January 2013,
was briefly reinstated and Parliamentary elections subsequently held on 17
August 2015. Since January 2015, space has significantly opened up for freedom
of expression, at least in Colombo.
But surveillance and interference continue to be reported
at the district level in the North and East, including harassment and
intimidation by military and intelligence services. This demonstrates the
pervasiveness of the structures and institutional cultures that created the
repressive environment of the past, and highlights the importance of much more
fundamental security-sector reforms.
Six years after the end of the war, many displaced
populations have yet to achieve durable solutions, particularly with regard to
livelihoods. One major continuing problem is the occupation by the military of
private land, although the Government has proceeded with some land releases in
recent months. Women-headed households, numbering nearly 60,000 in the Northern
Province, are especially vulnerable, including to sexual harassment,
exploitation and violence.
The Government has yet to clarify the number and identity
of detainees still held under the Prevention of Terrorism Act (PTA) and
emergency regulations. Reports have continued to suggest the existence of
secret and unacknowledged places of detention. These require urgent
investigation. According to local civil society sources, from January to August
this year, 19 people were arrested under the PTA. Twelve of them remain in
detention and 14 cases of torture have been reported to us by credible sources
since January 2015. I welcome the
Government’s commitment to review and repeal the PTA, which has long provided a
legal context facilitating arbitrary detention, unfair trials and torture.
While the past six months have seen an abatement of
religious tensions and violence, incidents against Muslim and Christian
communities continue to be reported. There have been no prosecutions in
relation to the June 2014 attacks by the Buddhist group Bodu Bala Sena on the
Muslim community in Aluthgama This
highlights the continuing need for the Government to promote inter-communal
tolerance and to criminalize hate speech and incitement to violence.
Since January 2015, President Sirisena and other
government figures have emphasized reconciliation in public statements. On Independence Day, on 4 February, the
Government issued a special “declaration of peace” in three languages,
expressing sympathy and regret for all the victims of the 30-year armed
conflict, and pledging to advance “national reconciliation, justice and
equality for all citizens”. The
Government also established a new Office of National Unity and Reconciliation,
headed by former President Kumaratunga, to drive progress on key issues such as
the release of detainees and restitution of civilian land occupied by the
military.
In our previous reports to the Human Rights Council, we
have described the total failure of domestic mechanisms to conduct credible
investigations, clarify the truth of past events, ensure accountability and
provide redress to victims.
The Presidential Commission to Investigate into
Complaints regarding Missing Persons that was appointed by the previous
Government has continued its work, despite widespread concerns raised about its
credibility and effectiveness. We believe this Commission should be disbanded
and its pending cases transferred to a credible and independent institution
established in consultation with families of the disappeared.
Since January there have been a few promising
developments in some emblematic cases previously highlighted by OHCHR:
On 25 June a former army staff sergeant was convicted of
the murder of eight Tamil civilians in Mirusuvil, Jaffna District, in 2000.
This is a rare case of a conflict-related violation being successfully
prosecuted, albeit after twelve years.
In March 2015, three navy personnel and a former police
officer were arrested in relation to the killing in November 2006 of
parliamentarian Nadarajah Raviraj.
In August 2015, police also announced that they had
arrested several military personnel in relation to the disappearance of
journalist and cartoonist Prageeth Eknaligoda.
But many other criminal cases languish before the courts,
including those concerning the killing of five students on the Trincomalee
beachfront in January 2006, and of 17 humanitarian workers for Action Contre la
Faim in Muttur in August 2006 also.
Mr President,
The comprehensive investigation presented in this report
was undertaken by a special team constituted within OHCHR. I am grateful to the three distinguished
experts – Martti Ahtisaari, Silvia Cartwright, and Asma Jahangir – who have
played a supportive and advisory role in this process. Special procedure mandate holders also
provided input to the investigation.
The aim of the investigation was to identify the patterns
of violations of international human rights and humanitarian law, not only during
the final stage of the armed conflict but during the whole nine-year period
covered by its mandate. The timeframe covered by the investigation, the extent
of the violations, the amount of information available, and the constraints to
the investigation, including lack of access to Sri Lanka and witness protection
concerns, posed enormous challenges.
The investigation found that there are reasonable grounds
to believe that gross violations of international human rights law and serious
violations of international humanitarian law were committed by all parties
during the period under review. Indeed, if established before a court of law,
many of the allegations may amount to war crimes, and/or crimes against
humanity.
These findings are detailed in the accompanying 250-page
investigation report, and I will highlight only key elements today:
We found reasonable grounds to believe the Sri Lankan
security forces and paramilitary groups associated with them were implicated in
widespread and unlawful killings of civilians and other protected persons.
Tamil politicians, humanitarian workers and journalists were particularly
targeted. The Liberation Tigers of Tamil Eelam (LTTE) also unlawfully killed
civilians perceived to hold sympathies contrary to the LTTE, or suspected as
informers, as well as rival Tamil political figures, public officials and
academics. Civilians were also killed or
injured in indiscriminate suicide bombings and claymore mine attacks carried
out by LTTE.
We also investigated allegations of extrajudicial
executions of identified LTTE cadres and unidentified individuals in or around
18 May 2009, and established in several cases that they appear to have been
killed after surrendering to the Sri Lankan military.
We documented long-standing patterns of arbitrary arrest
and detention by government security forces, and of abductions by paramilitary
organizations linked to them, typically in unmarked “white vans”, which often
reportedly led to enforced disappearances and extrajudicial killings.
We also documented the widespread torture by the Sri
Lankan security forces, particularly in the immediate aftermath of the armed
conflict, when former LTTE members and civilians were detained en masse.
A particularly shocking finding is the widespread use of
rape and other forms of sexual violence by security forces personnel against
both male and female detainees.
We gathered information that reflected a pattern of
abductions and of forced recruitment of adults by LTTE that became more
prevalent towards the end of the conflict. The forced recruits were obliged to
perform both military and support functions and were often denied contact with
their families. Victims and families who tried to resist were physically
mistreated, harassed and threatened.
We also documented extensive recruitment and use of
children (including under the age of 15) by the LTTE over many years, which
intensified during the last few months of the conflict. We gathered information
on child recruitment by the Karuna Group after its split from the LTTE in 2004,
with the apparent knowledge of the security forces.
Mr President,
We examined closely the impact of hostilities on
civilians and civilian objects during the last months of the war. On the basis of the information available,
there are reasonable grounds to believe that both the Government and LTTE
failed to comply with key principles of international humanitarian law, on the
conduct of hostilities, designed to protect civilians.
In particular, the report documents repeated shelling by
Government forces impacting on hospitals and humanitarian facilities in the
densely populated ‘No Fire Zones’ which the Government itself had announced.
The presence of LTTE cadres directly participating in hostilities and operating
within the predominantly civilian population, launching attacks from close
proximity to these locations, and the LTTE policy of forcing civilians to
remain within areas of active hostilities, may also have violated international
humanitarian law.
Our investigation also found that the Government placed
considerable restrictions on humanitarian access, and may have deliberately
blocked the delivery of sufficient food aid and medical supplies, essential to
the survival of the civilian population.
This may amount to the use of starvation of civilians as a method of
warfare.
We also examined the manner in which screening processes
were carried out at the end of the war to separate former LTTE combatants from
civilians. Almost 300,000 IDPs were deprived of their liberty in camps for
periods far beyond what is permissible under international law. There are also
reasonable grounds to believe that IDPs were treated as suspects and detained
because of their Tamil ethnicity, which may amount to discrimination and to the
crime against humanity of “persecution.”
Mr President,
The sheer number of allegations, their gravity and
recurrence and the similarities in their modus operandi, as well as the
consistent pattern of conduct they indicate, all point to system crimes. Such
acts cannot be treated as ordinary crimes: if established in a court of law,
they may constitute international crimes, which are of interest to the
international community.
I welcome the Government’s commitments, made before this
Council, to investigate these violations and ensure accountability, despite the
opposition of some political parties and sections of the military and
society. The unfortunate reality is,
however, that Sri Lanka’s criminal justice system is not currently equipped to
conduct an independent and credible investigation into allegations of this
breadth and magnitude, or to hold accountable those responsible for such
violations, as requested by the Council in resolution 25/1.
First, Sri Lanka lacks a reliable system for victim and
witness protection, particularly in a context where the risk of reprisals is
very high. A long-pending law was recently passed, but it is not yet
operational. I note the Government’s commitment to further review and
strengthen the law to address various shortcomings that could compromise the
independence and effectiveness of the new system.
Secondly, the domestic legal framework is inadequate to
deal with international crimes of this magnitude. When Sri Lanka has prosecuted
conflict-related cases, it has relied on offences in regular criminal law, such
as murder. This approach fails to recognize the gravity of the crimes
committed, their international character, or to duly acknowledge the harm
caused to the victims. To fully reflect their gravity and bring redress to
their victims, international crimes must be charged as such.
Thirdly, the State’s security sector and justice system
have been distorted and corrupted by decades of impunity. The independence and
integrity of key institutions such as the Attorney General’s Office and the
Human Rights Commission remain compromised.
The security forces, police and intelligence services have enjoyed near
total impunity and have not undergone any significant reform since the armed
conflict. A full-fledged vetting process should be designed to remove from
office security forces personnel and public officials suspected of involvement
in human rights violations.
This is why I have recommended the establishment of an ad
hoc hybrid special court, integrating international judges, prosecutors,
lawyers and investigators, mandated to try notably war crimes and crimes against
humanity, with its own independent investigative and prosecuting organ, defence
office and witness and victims protection programme. In a highly polarized environment, such a
mechanism is essential to give all Sri Lankans, especially victims, confidence
in the independence and impartiality of this process.
Judicial accountability should be accompanied by broader
transitional justice measures, including truth-seeking and reparations, to
ensure that the right of victims to redress is realized. These must be designed through a process of
genuine, informed and participatory consultation, especially with victims and
their families, and OHCHR stands ready to lend its assistance in this regard.
Mr President,
This is a time of tremendous hope. Sri Lanka can finally
break the cycle of impunity that for so long wracked its past. This will require more than prosecuting a few
emblematic cases, but rather a comprehensive approach, developed through a
broad-based and victim-centred process of consultation, that draws on the full
range of transitional justice measures of judicial accountability,
truth-seeking, reparations, vetting and deep institutional reform.
I hope the recommendations made in our report will make
an important contribution to this process, and emphasise OHCHR's readiness to
continue to assist and support the development of credible accountability and
transitional justice mechanisms that meet international standards. The Human Rights Council has played – and
should continue to play – a critical role in encouraging progress on
accountability and reconciliation in Sri Lanka.
I thank you Mr. President
ENDS
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