62. The applicable standards of international law reside primarily in the obligations undertaken by Sri Lanka as a result of its accession to the following instruments. Sri Lanka has signed the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. Sri Lanka acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in January 1994. It is legally bound to implement the human rights safeguards required by these treaties, including respect for the right to life (article 6 of the ICCPR) and the right not to be tortured (article 7 of the ICCPR and the Convention against Torture). Article 4 of the ICCPR clearly states that both rights need to be upheld at all times, even "in time of public emergency which threatens the life of the nation". In addition, Sri Lanka is also a State party to the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women. In October 1997, Sri Lanka became a party to the Optional Protocol to the International Covenant on Civil and Political Rights. However, Sri Lanka is not a party to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.

63. International humanitarian law requires that minimum norms be respected in internal armed conflicts. The norms and specific standards of international human rights law also apply in situations of armed conflict, and may be deviated from only by permissible derogations. Sri Lanka is a party to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and is, therefore bound by its provisions. Article 3 of the Convention (common to the four Geneva Conventions and applicable to situations of internal armed conflict) provides for minimum standards of protection to civilians.

64. In addition to its treaty obligations, Sri Lanka is also obliged to respect the relevant rules of international customary law, particularly those concerning the "elementary considerations of humanity" in times of armed conflict as well as in times of peace as expressed by the principles in common article 3 of the Geneva Conventions of 12 August 1949. Sri Lanka has not, however, signed Protocol II Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, which develops and supplements common article 3.

65. The following fundamental guarantees contained in common article 3 to the Geneva Conventions of 12 August 1949 are also applicable in all situations pertaining to Sri Lanka:

1. Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

B. The relevance of the situation of armed conflict

66. International human rights standards as set out above are very clear: torture, disappearances and extrajudicial executions can never be justified under any circumstances, not even in time of war. Regardless of who may be responsible for the initiation of a war, and faced with the reality that war or armed conflicts short of war continue to inflict their pain on humanity, international human rights law requires that its norms continue to be respected.

67. The Special Rapporteur is aware that the LTTE controls several parts of the country in the north and northeast. Under these circumstances, and notwithstanding the continuing validity of human rights standards throughout the duration of the conflict, it is acknowledged that the conflict is of such a nature as to have reached the threshold of applicability of article 3 common to the four Geneva Conventions of 1949. In addition to these standards, and though Sri Lanka is not a party to the Additional Protocol II, there are standards in this protocol which are essentially the same as those expressed in the instruments of international human rights law (to which the Protocol explicitly refers in its preamble), namely: protection of the right to life, protection from torture and mutilation, protection against arbitrary punishments, protection against outrages upon personal dignity, protection against pillage, protection against threats of any of the aforementioned, respect for the rights of those in detention against whom penal prosecutions have been initiated, protection of the wounded and of medical personnel and protection of the civilian population in general, including protection of objects indispensable for their survival and cultural objects and places of worship. Indeed, it should be observed that many of those most fundamental protections may be said to be part of the customary law of human rights. It must be stressed that in the case of armed conflict, the response of the Government must always be relevant and proportionate, such that the standards of human rights may be respected for every individual in every case; the existence of an armed conflict does not permit a carte blanche response. Any violations on the part of the insurgents (LTTE), which the Special Rapporteur acknowledges are most likely to have occurred and to continue to occur, cannot be used as an excuse for violations by the Government.

68. The notion of "special" or "exceptional" circumstances is known to international law as such circumstances as may require the application of special standards or permit derogation from the application of normal standards. Such a notion is specifically foreseen by and accommodated in international standards. When addressing Governments and armed opposition groups in the context of armed conflict, the Special Rapporteur is guided in particular by the protection of the individual enshrined in common article 3 which forbids Governments and armed opposition groups alike to torture, to deliberately kill civilians taking no part in hostilities, to harm those who are wounded, captured or seeking to surrender, or to take hostages.

C. The national legislation

1. Legal framework

69. The Constitution of Sri Lanka of 1978, in its chapters III and IV, guarantees to the people of that country a number of fundamental rights, such as the right to equality, freedom of movement and of choosing their place of residence in Sri Lanka and to leave and return to Sri Lanka, and the right not to be subjected to torture or to arbitrary arrest and detention. With regard to derogations, article 15.7 of the Constitution establishes that the exercise and operation of the right to equality and non-discrimination and the freedoms of expression, association, movement and peaceful assembly, "(s)hall be prescribed by law in the interest of national security, public order and the protection of public health or morality".

70. The death penalty is permitted under Sri Lankan law and remains a legal punishment; nevertheless, no death sentence has been carried out since 23 June 1976. Since then courts had to pass sentences of death for offences where this is mandatory, but the sentence has always been commuted by the President in the exercise of his power to do so. Government officials confirmed to the Special Rapporteur while he was in Colombo that there was no intention to implement the death penalty under any circumstances. He was also told that the right to life will be reflected in the new Constitution of Sri Lanka, a draft of which was given to him.

71. The introduction in law of procedures and safeguards is not, however, in itself sufficient to protect human rights. The Special Rapporteur will focus mainly on certain aspects of the regulations related specifically to his mandate, examining laws and procedures which might facilitate the commission of violations of the right to life, and making recommendations for legal and procedural safeguards to protect against them.

72. Of particular concern are the emergency regulations governing arrest and detention procedures and those governing post-mortems and inquests when deaths have occurred in custody or as a result of the official action of the security forces. The regulations still provide for indefinite preventive detention on renewable, three-monthly detention orders. Sri Lanka has been under an almost continuous state of emergency since May 1983. During a declared state of emergency, which has to be renewed monthly by Parliament, the Emergency (Miscellaneous Provisions and Powers) Regulations (ERs) are in force. These regulations are issued under the Public Security Ordinance and are altered from time to time. Official emergency measures override the safeguards contained in the normal law and have granted sweeping powers to the security forces. In addition, there have been repeated allegations of intimidation of lawyers, relatives and others attempting to take remedial action through the courts.

73. The emergency regulations governing post-mortems and inquests have not been altered significantly. The thorough investigation of all relevant deaths is an important means of preventing extrajudicial executions by security forces personnel. The procedures provided under the regulations still fail to provide an adequate investigative procedure and could lead to impunity for those committing extrajudicial executions.

2. Prevention of Terrorism Act

74. In 1979, Sri Lankan Parliament adopted the Prevention of Terrorism Act (PTA) in response to growing political violence in the country, especially in the "Tamil areas". Although the PTA was seen as an effort to contain what by then amounted to civil war, its unusually broad provisions are said to have increased tensions instead. Indeed, the Prevention of Terrorism Act contains a number of disturbing provisions from the human rights perspective. Section 6 of the Act provides that:

"any police officer not below the rank of Superintendent or any other police officer not below the rank of sub-Inspector authorized in writing by him ... may, without warrant, ... notwithstanding anything in any other law to the contrary

(a) arrest any person;

(b) enter and search any premises;

(c) stop and search any individual or any vehicle, vessel, train or aircraft; and

(d) seize any document or thing connected with or concerned in any unlawful activity."

The Act also provides that a person may be detained for periods of up to 18 months (renewable by order every 3 months), if "the Minister has reason to believe or suspect that any person is connected with or concerned in any unlawful activity" (sect. 9). The same section provides that such a person may be detained "in such place and subject to such conditions as may be determined by the Minister". This may lead to having persons detained without access to attorneys or to relatives for prolonged periods.

75. The Act does not expressly exclude coerced confession as evidence but rather provides that confessions made by a person orally or in writing, at any time, can be admissible as evidence unless made to a police officer below the rank of Assistant Superintendent (sect. 16). Thus, confessions made to police under torture or threats may be admitted. It provides that a statement recorded by a magistrate or made at an identification parade shall be admissible in evidence even if the person is dead or cannot be found and thus cannot be cross-examined (sect. 18 (1)(a)). Any document found in the custody of a person accused of an offence under the Act may be produced in court as evidence of the facts stated therein (sect. 18 (1)(b)).

3. Emergency Regulations Act

76. Emergency rule prevailed throughout most of 1994, except just before the parliamentary general elections. The Special Rapporteur understands that there were, however, important changes, both in the geographical areas in which the emergency was in force during different periods, as well as in the content of the regulations. During his visit to Sri Lanka, many persons, including human rights advocates and law enforcement agents, did not agree on what regulations were in force and where. In this section, the Special Rapporteur has relied on information and documents provided to him by the Nadesan Centre, a Sri Lankan non-governmental organization which keeps track of all the changes and informs the public.

Emergency regulations relating to inquests into the death of persons due to actions of police officers or members of the armed forces

77. Inquests into deaths under the normal law are dealt with by the Code of Criminal Procedure Act No. 15 of 1979 which contains very salutary provisions relating to inquests into deaths, with inquirers and magistrates being given wide powers to ascertain the cause of death, e.g., summoning witnesses, post-mortem examinations, etc. However, the emergency regulations permit derogation from these provisions; the relevant provisions are to be found in regulations 43 through 47 of the Emergency (Miscellaneous Provisions and Powers) Regulations No. 4 of 1994 published in the Official Gazette 843/12 of 4 November 1994.

78. Regulation 43 makes provision for deviation from the normal law in instances where a police officer (rank not stipulated) or a member of the armed services (rank not stipulated) has reason to believe that the death may have been as a result or in the course of armed confrontation between the police, armed services or any member of any supplementary forces (established under law) and forces engaged in waging war against the Government of Sri Lanka. In such a situation the Superintendent of Police or the commanding officer of the armed forces unit (as the case may be) "shall, notwithstanding anything to the contrary in chapter XXX and section 9 of the Code of Criminal Procedure Act ... or the provisions of any other written law, report the facts relating to the death to the Inspector-General of Police or to the nearest Deputy Inspector_General of Police".

79. The salient features of this provision are as follows:

 (a) The purpose of an inquest is to determine the manner and circumstances of death and a proper means of doing this is provided by the normal law. The bypassing of the normal law by the emergency regulations is, however, made dependent on significant questions of fact, including (i) that the death took place in the course of an "armed confrontation" and (ii) that the victim was engaged in waging war against the Government. How are these questions to be determined except by a proper judicial inquest?

(b) The words "where a police officer or a member of the armed services has reason to believe ..." are the key. What triggers off the whole process of avoiding an inquest is the claim, by any police officer or any member of the armed services, that there was an armed confrontation and that the victim was waging war, etc.

(c) It is sufficient for the police or security officer to make the claim of armed confrontation for an inquest to be avoided.

80. This emergency provision remains wholly inadequate for the full and impartial investigation of a death caused by security forces and could be used to cover acts of extrajudicial execution committed by the security forces.

81. According to regulation 44 (report of an incident), once the IGP or the DIG receives information as provided for by regulation 43, he has to direct an officer not below the rank of Assistant Superintendent of Police to proceed to the scene of the incident and record his observations and the statements of persons who appear to be acquainted with the circumstances relating to such death. If the body is found, the death must forthwith be reported to the Magistrate.

82. What is contemplated here is that the death should be investigated by a responsible police officer and reported to the Magistrate in instances where the body is found. These are commendable provisions, but what needs to be looked into is the extent to which they are in fact complied with.

83. Under regulation 45 (post-mortem and burial or cremation), the Magistrate shall, upon the receipt of the facts from the IGP or the DIG, direct the Government Medical Officer to hold a post-mortem, and will also make an order that at the conclusion of the post-mortem the body shall be handed over to the DIG for disposal. The DIG in turn can hand over the body to any relation who claims it, subject to conditions or restrictions imposed in consideration of national security or public order, or otherwise authorize the burial or cremation of the body in accordance with steps he may deem necessary in the circumstances. It would appear that although the Magistrate has to be informed forthwith in instances where the body is found (regulation 44), there is no provision which enables him to order a post-mortem on his own; he has to await the receipt of facts from the IGP or DIG.

84. This procedure can be invoked by the police on the basis of a statement by any security forces officer that a death resulted from armed confrontation. Once the IGP decides to apply for a High Court inquiry under the emergency procedures, no other inquiry into the cause of death can be held according to the procedures provided under the normal law. The proper investigation of deaths caused by the security forces can thus be prevented, and this procedure could be used to allow impunity.

85. According to regulation 46, the High Court in Colombo is vested with exclusive jurisdiction to inquire into the death of any person caused or purported to have been caused in circumstances specified in regulation 43. Upon application by the IGP, the High Court shall hold an inquiry into the cause of death of the person named as deceased in such application, and if there are any proceedings pending in any Magistrate's Court in respect of the same death, such proceeding shall be transferred to the High Court. The High Court may hold such inquiry or part of such inquiry in any part of Sri Lanka, having regard to the interest of national security and public order. The Government Medical Officer who conducted the post-mortem has to forward his report to the High Court and he shall not disclose anything contained therein to any person unless authorized to do so by the High Court. The IGP has to forward to the High Court the report of the preliminary observations and other documents necessary for conducting the inquiry, and the judge of the High Court shall record such evidence as may be placed before him by the IGP or his representative. At the conclusion of the inquiry the judge of the High Court has to transmit the record of evidence and a report of the circumstances under which the death was caused, together with any other documents, to the Attorney General.

86. There are many unsatisfactory features in this provision:

(a) The inquiry into the death takes place only upon the application of the IGP and there are no criteria to guide him in the exercise of his function. Indeed it would be difficult to expect impartiality from him where his own officers would be involved. This may put him in an unacceptable and difficult situation;

(b) The post-mortem report should not be kept secret when death occurs in circumstances specified in regulation 43. Relatives or their representatives should have access to it;

(c) It might be necessary to have more courts than just the High Court in Colombo inquire into such deaths;

(d) It is unsatisfactory that the recording of evidence by the judge should be confined to "evidence as may be placed before him by the IGP or his representative". The judge should also be permitted to receive evidence as he deems fit. This was reportedly the case in an earlier version of the regulations which empowered the Court to hear "the evidence of any other person who appears to be acquainted with the circumstances relating to the death under inquiry", but this was deleted in 1989;

(e) There should be provision for relatives or any other person representing the dead person to intervene in the proceedings. The findings of the High Court should also be made available to them.

87. Under regulation 47, if the Attorney-General is satisfied, upon the receipt of evidence and other documents transmitted to him by the High Court, that the commission of an offence has been disclosed, he may institute appropriate legal proceedings against the perpetrators.

88. When the Special Rapporteur met with the Attorney-General he was given the following statistics relating to the arrests and detention of persons from the north and east of Sri Lanka under the Prevention of Terrorism Act and the emergency regulations:

(a) Year 1996:

(i) From the Eastern Province - 321; from the Northern Province - 378;

(ii) Number of concluded matters - 679; the remaining matters would be concluded once the necessary documents are available,

(b) Year 1997:

(i) From the Eastern Province - 127; from the Northern Province - 221;

(ii) Number of concluded matters - 238; the remaining matters would be concluded expeditiously. In most of the unattended cases the delay could be attributed to the non-availability of some of the documentary evidence such as the government analyst's report, the ballistics expert's report, etc. Once the reports are made available by the relevant authorities these matters would be finalized speedily.

89. Both the ERs and PTA give the security forces wide powers to arrest suspected opponents of the Government and detain them incommunicado and without charge or trial for long periods. The ERs allow for detainees to be held in preventive detention on the order of the Secretary, Ministry of Defence, for one year without being brought before a court. After that, indefinite extensions are possible, although only on the order of the Magistrate. The Magistrate, however, has limited powers to exercise discretion, and must apparently reach a decision solely on the basis of a report from the Secretary, Ministry of Defence. People suspected of actually having committed an offence under the ERs can be detained for up to 60 days if their arrest takes place in the north or east and relates to offences committed in that area. In Colombo and surrounding areas, this period is seven days. The PTA allows for detention on an order by the Minister of Defence for three months. This period can be extended up to a maximum of 18 months. In addition, there are no laws governing conditions in places of detention other than prisons such as army compounds and police stations.