166. The Special Rapporteur considers it of the greatest importance to create a mechanism which would encourage confidence-building between the Sinhalese and the Tamils. Such a mechanism would aim at providing security and protection to all the people of Sri Lanka. In this regard, the Government of Sri Lanka should refer to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and, in that context, should take all measures required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law.

167. Reform and transformation of the security forces of Sri Lanka are needed in order to allow Tamils equal access to them; the security forces may thus come to represent the whole society, and hence enjoy the confidence of the population.

168. All efforts which might be initiated by the Government of Sri Lanka to coordinate the functions of all the security forces responsible for ensuring law and order should be strengthened. The training programmes provided by the Office of the High Commissioner for Human Rights for the security forces and which is being implemented in other countries might be a possibility. They should take into account the need to provide specialized and distinct training to both army and police officers. The relevant international standards developed by the United Nations, such as the Code of Conduct for Law Enforcement Officials, should be part of such training.

169. All sources consulted agree on the quasi_monoethnic composition of the army. Predominantly Sinhalese, the army has recruited more on the basis of ethnicity than on a truly national basis. This has provoked grave suspicions that the army is prejudiced, a fear fuelled by the fact that repeated searching operations are carried out mainly against Tamils, and that the army personnel do not speak the Tamil language. Changing the recruitment policy, perhaps by means of a quota for Tamils, should be considered. Enhancing cultural sensitivity among the soldiers should also be considered.

170. Within this context, it is important that the national police force be accepted by both communities and have as its main responsibility the protection of the civilian population and the prevention of communal violence. One of the priority tasks of the national police force would be to ensure the security and protection of all people in Sri Lanka. The police should be given the requisite substantive training in order to enable it to fulfil its role of maintaining public order. However, all elements of the police who have been involved in summary executions, massacres or other grave violations of human rights should be excluded from the national police force.

171. The armed forces must be required to accept as a priority the taking of effective action to disarm and dismantle armed groups, especially the home guards, many of which they have set up and/or cooperated with closely. Given the numerous abuses committed by such groups, as well as their ambiguous status, this is a necessity. Furthermore, it would go some distance towards establishing the credentials of the armed forces as impartial upholders of the rule of law. It would also begin to make a reality of the democratic State's need to have a monopoly over the use of force, within the limits established in the pertinent international standards.

172. If they are not disarmed or dismantled, any such auxiliary force should be subject to strict control by the security forces. The Special Rapporteur recommends, inter alia, a disciplinary code of conduct for the home guards who should be placed under a defined authority such as the army or the police. In view of the experience of other countries where paramilitary groups are responsible for numerous and grave human rights violations, the Government may prefer to strengthen the regular security forces in areas of armed conflict, rather than creating a paramilitary body.

173. The Special Rapporteur also recommends that efforts to disarm the civilian population be intensified and their efficiency increased. Strict control of weapons in the possession of civilians would be an important measure, with a view to lowering the level of common and political crime and violence in Sri Lanka.

174. Adequate provision should be made for the protection of all those who have laid down their arms and are willing to reintegrate themselves into civilian life. In particular, former combatants who organize themselves in political movements to participate in the democratic process should be able to do so without fear of suffering reprisals.

175. While initiatives to raise awareness of human rights among members of the security forces and the population in general through educational and other measures are to be welcomed as a necessary step, the Special Rapporteur wishes to emphasize that respect for, and thus enjoyment of human rights can only be improved if impunity is effectively fought. The Special Rapporteur calls on the Government to fulfil its obligation under international law to conduct exhaustive and impartial investigations into all allegations of extrajudicial, summary or arbitrary executions and torture; to identify, prosecute and punish those responsible; grant adequate compensation to the victims or their families; and take all appropriate measures to prevent the recurrence of such acts.

176. The need to bring the perpetrators of extrajudicial executions to justice has been established as an obligation in international human rights standards. Paragraph 18 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions provides that "[G]overnments shall ensure that persons identified by the investigation as having participated in extra-legal, arbitrary or summary executions ... are brought to justice ... This principle shall apply irrespective of who and where the perpetrators or the victims are, their nationalities or where the offence was committed." The Principles also provide that persons alleged to have committed these grave human rights violations should be suspended from any official duties during the investigation and removed from any position of control or power, whether direct or indirect. They also state that steps should be taken to ensure that all those involved in the investigation, including the complainant, counsel, witnesses and those conducting the investigation, are protected against ill-treatment, violence, threats of violence or any other form of intimidation or reprisal.

177. The Special Rapporteur urges that all necessary steps be taken to minimize the delays in bringing to trial members of the security forces suspected of committing human rights violations.

178. The Government and prosecuting authorities should take follow-up actions to conclude the cases that have already been initiated by the State.

179. The Government should act in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which provide, inter alia, that victims should be entitled to access to the mechanisms of justice and to prompt redress for the harm that they have suffered. Families of the deceased and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of death shall be posted and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation.

180. The rights of victims or their families to receive adequate compensation is both a recognition of the State's responsibility for the acts committed by its personnel and an expression of respect for the human being. Granting compensation presupposes compliance with the obligation to conduct investigations into allegations of human rights abuses with a view to identifying and prosecuting the alleged perpetrators. Financial or other compensation provided to the victims or their families before such investigations are initiated or concluded, however, does not exempt Governments from this obligation.

181. A system of compensation for the families of victims should be developed, as well as a system to protect witnesses and their families who participate in criminal investigations and give testimony.

182. With regard to persistent allegations of deaths of civilians in military counter-insurgency operations, the Special Rapporteur calls on the authorities to take all necessary measures to ensure full respect for the restrictions on the use of force and firearms contained in the pertinent international instruments. Counter_insurgency operations by the armed forces must be carried out in full respect for the rights of the civilian population. Under no circumstances should the army use heavy weapons against the civilian population, as has been the case on several occasions.

183. The excavation, exhumation and evaluation by experts in the forensic sciences of remains which may belong to victims of extrajudicial, summary or arbitrary executions are an integral part of the obligation to conduct thorough investigations as referred to above. They must be carried out in accordance with the highest standards of expertise by specialists in forensic archaeology, anthropology, pathology and biology. In this context, the Special Rapporteur wishes to refer to the Model Protocol for Disinterment and Analysis of Skeletal Remains, included in the Manual for the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, a United Nations publication. The Special Rapporteur calls on the Government to ensure that the necessary forensic expertise and ballistic analyses are made available throughout the country with a view to obtaining maximum evidence in each case under investigation. In this regard, the Government of Sri Lanka might wish, through the Office of the High Commissioner for Human Rights, to request the assistance of international forensic experts to aid local experts in establishing a local forensic unit.

184. The Special Rapporteur calls on the authorities to take the necessary steps with a view to strengthening the ordinary justice system in Jaffna so as to make it more efficient in all circumstances. To this effect, there should be an allocation of the necessary human and material resources to carry out prompt and effective investigations into alleged human rights violations. For instance, it might be necessary to have more courts than only the High Court in Colombo to inquire into deaths which fall under the ERA.

185. The Government of Sri Lanka should consider accession to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. The Government of Sri Lanka is also urged to sign Protocol II Additional to the Geneva Conventions of 12 August 1949.

186. The emergency regulations should be revised in order to bring them into line with accepted international standards. These reforms would need to include the following elements:

(a) Removal of provisions which dispense with post_mortems and inquests when deaths have occurred in custody or as a result of official action of the security forces. This could be simply done by returning to normal inquest procedures under ordinary law;

(b) The Government should allow public access to the records of all inquiries, into deaths in custody or as a result of action by the security forces held in the High Court under the provisions of the ERs;

(c) Time_limits for bringing a person before a judge following his arrest should not exceed a reasonable maximum time_limit;

(d) The emergency regulations should be compiled and codified.

187. The fundamental right to life should be reflected in the new Constitution and the death penalty abolished in order to fully reflect the de facto situation.

188. The Government should publicize the reports of the three commissions which examined the cases of alleged disappearances, and prosecuting authorities should prepare cases against identified offenders.

189. Legislation for the issuance of death certificates in respect of missing persons should be enacted and provincial mechanisms for the implementation thereof should be established.

190. The Human Rights Commission should be strengthened, in accordance with the Principles relating to the status of national institutions (Paris Principles), annexed to Commission on Human Rights resolution 1992/54 and General Assembly resolution 48/134. Such an institution should be based on the recommendations of the Commission on Human Rights concerning the competence, responsibilities, composition, guarantees of independence and pluralism, methods of operation, status and functions of national human rights institutions. The Human Rights Commission might consult the Office of the High Commissioner for Human Rights for advice and technical cooperation in this particular field. Such a Commission should, inter alia, be able to achieve the following goals:

(a) Give a full public accounting of the scope and extent of the crimes committed in the name of the State and the political and institutional factors that contributed to the impunity of their authors;

(b) Formally identify the individual responsibility for such crimes, including the direct perpetrators and those who may have given the explicit or implicit orders for their commission;

(c) Instigate the corresponding criminal and disciplinary proceedings, to be carried out by the competent organs;

(d) Ensure effective reparation to the victims or their dependants, including adequate compensation and measures for their rehabilitation;

(e) Make recommendations that would help to prevent further violations in the future.

Members of the Commission should have access to all places of detention without prior notification, be assured of repeated visits and meet prisoners in private.

191. The Government of Sri Lanka should continue to elaborate and implement without delay the policy to improve security, which would enable the displaced and dispersed Tamil populations of the country to return to their homeland and would facilitate their reintegration and reinstallation. The international community should be ready to respond to requests by the Government of Sri Lanka for assistance in this matter.

192. The Government of Sri Lanka should also implement the recommendations made by the representatives of various United Nations human rights mechanisms that visited Sri Lanka, such as the Working Group on Enforced or Involuntary Disappearances and the Special Representative of the Secretary_General on internally displaced persons.

193. The level of violence, both politically motivated and due to the internal conflict, has risen in the recent past, despite legislative reforms and other initiatives taken by successive Governments. The current Government recognizes the gravity of the human rights situation, has identified its causes, in particular impunity, and has repeatedly expressed its willingness to take radical measures to redress the situation. It is clear that the Government will encounter resistance from various powerful quarters defending their interests. The Special Rapporteur believes that the international community should support the Government's efforts to translate its expressed political willingness into practice. The advisory services and technical assistance programme of the Office of the High Commissioner for Human Rights should consider favourably any request from the Government of Sri Lanka to help it to put the above recommendations into effect. The involvement in this process of the United Nations Development Programme (which already provides assistance to the Government on human rights issues) would be welcome. In this context, the Special Rapporteur wishes also to emphasize the importance of the role of non-governmental human rights organizations in Sri Lanka and the need to strengthen them and provide them with adequate protection. Their full participation in human rights assistance programmes is essential for their effectiveness.

194. The Government of Sri Lanka should establish a national institution to find ways and means for national reconciliation. This institution will provide a forum for a discussion on crucial issues facing Sri Lankan society - peace, security and confidence-building measures to attain protection of human rights, the protection of minorities, strengthening of democracy, reconciliation and coexistence, national unity and restoration of confidence in the institutions of the Government. Non-governmental organizations and civil society should be fully involved in this process.

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