Follow-up on the visits of the Working Group on Enforced or Involuntary Disappearances

to Peru and Sri Lanka

https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/42/40/Add.1

Summary
This document contains information supplied by Governments, authorities,
civil society and other stakeholders, relating to the follow-up measures to the
recommendations made by the Working Group on Enforced or Involuntary
Disappearances, following its visits to Peru and Sri Lanka in 2015
(A/HRC/33/51/Add.3 and A/HRC/33/51/Add.2.

II. Sri Lanka
Follow-up to the recommendations made by the Working Group
on Enforced or Involuntary Disappearances in the report of its
visit to Sri Lanka from 9 to 18 November 2015
(A/HRC/33/51/Add.2)
4. On 29 November 2018, the Working Group on Enforced or Involuntary
Disappearances requested the Government of Sri Lanka to provide information on
measures taken to implement the recommendations that were made in the report
A/HRC/33/51/Add.1 (paragraphs 77 – 84), after its visit to the country in November
2019. On 7 June 2019, the Government of Sri Lanka provided the requested
information. On 11 July 2019 the Government provided additional information, and
on 27 June 2019 the Office of Missing Persons provided an additional response. On
6 August 2019, the Working Group sent the below table for comments to the
Government of Sri Lanka, which provided further additional information on 5
September 2019.
5. The Working Group thanks the Government of Sri Lanka for the cooperation
with the process of the follow up report. While welcoming progress in the
implementation of some recommendations, it notes that many have only been
partially addressed or have not been addressed at all. The Group underlines the
importance of full implementation of all of the recommendations made in the report.
6. The Working Group welcomes the establishment of the Office of Missing
Persons (OMP), as well as information that it has a range of powers to obtain
information and evidence relevant to its investigations, that three regional offices
have been opened and several trilingual reports have been published. It also welcomes
information according to which the OMP now has access to the records of past
commissions of inquiry and hopes the cases can be promptly transferred and recorded
in the OMP’s case load. The Working Group notes though that further steps are
needed to fully meet the recommendations made in relation to the OMP. In particular,
the Working Group is concerned at information that the OMP has faced hurdles,
which have limited its ability to acquire the necessary resources and to recruit staff
in a timely manner. It urges the Government to ensure the OMP is fully recognised
by all state agencies as an independent commission, that staff recruitment can proceed
promptly, that the technical complexity of the mandate is taken into account in
staffing and recruiting regulations. Sufficient funds should be allocated and should
not be vulnerable to being diverted. It also notes that some families remain sceptical
of the Office and encourages further efforts to reach out to all affected families
throughout the country, as well as those living abroad and hopes the further regional,
sub-regional and mobile offices planned, as well as the psychosocial responsiveness
strategy, can be promptly operationalised. It will also be important that the powers
granted to the OMP are effectively implemented in practice.
7. The Working Group regrets that neither a judicial accountability mechanism
nor a truth seeking mechanism have been created. It re-iterates the importance of the
swift establishment of both mechanisms. With regards to the judicial mechanism, it
highlights the importance of integrating international judges, prosecutors, lawyers
and investigators. While noting that draft legislation on a future truth commission
was presented to the Cabinet, it regrets that draft has not yet been made public or the
subject of consultations and that no information was provided on most
recommendations related to the body in relation to the inclusion of civil society, a
vetting process for Commissioners as well as the Commission’s envisaged resources,
capacities and powers.
8. The Office for Reparations has recently been established and funds have been
included in the 2019 to support families of the disappeared as a form of interim relief.
The Group reiterates its recommendation to develop, as a matter of urgency, a
national reparations policy taking into account the specific needs of women and
children, as well as a national resettlement policy. The educational needs of the
children of disappeared persons should also be prioritised as recommended.
9. The Working Group welcomes information according to which a circular was
issued by the Acting Inspector General of the Police to all senior police officers
regarding threats, intimidation and harassment, with specific reference to the WGEID
recommendation after the country visit. It also welcomes information that a media
statement was issued in 2018 providing information on complaints mechanisms. The
Group also notes that the Army, Navy, Air Force and Police have reiterated their
commitment to preventing any form of threats, harassment and intimidation.
However, the Working Group notes that civil society organisations do not appear to
be aware of such commitments and is extremely concerned by continuing reports of
surveillance, threats, intimidation, harassment of relatives of the disappeared and
calls on the Government to take urgent action to address these, including investigation
of previous and new cases and the prosecution of perpetrators.
10. The Working Group further observes that there remains a climate of impunity
in Sri Lanka and a lack of actions envisaged to address this. The Working Group is
concerned by the slow pace of criminal investigations, in particular that it remains
the case that only a few emblematic cases have reached the trial stage and none have
concluded. It is also very concerned by an alleged incident of obstruction by the
Office of the Attorney General in the investigation of a case and information that the
armed forces continue to intervene in ongoing cases and have delayed or provided
inaccurate information in court proceedings. It further notes worrying information
received according to which some individuals suspected of having been involved in
the commission of enforced disappearances and related offences are being permitted
to remain in positions of power including within the armed forces and the police. In
this regard, it expresses serious concern at the appointment of Lieutenant-General
Shavendra Silva as Commander of the Sri Lankan Army in August 2019, despite
there being serious allegations of gross violations of international human rights and
humanitarian law against him and soldiers under his command, including enforced
disappearances1
.
11. The Working Group urges urgent action to ensure that all cases of enforced
disappearance, regardless of the author and the time when they were committed, are
promptly investigated and brought to trial. In this context, it is also vital to ensure
witnesses are fully protected. The Working Group calls on the Government to further
amend the Assistance to and Protection of Victims of Crime and Witnesses Act to
incorporate better safeguards in line with international standards and hopes that the
OMP, which is empowered to create its own victim and protection unit, will promptly
establish one which is well-resourced, effective and independent.
12. The Working Group is also concerned by allegations of new cases of enforced
disappearance of short duration in order to extract bribes. The Working Group calls
on the Government to also urgently investigate these cases and prosecute those
responsible.
13. With regards to mass graves, the Working Group notes that the excavation of
Mannar mass grave site is continuing. However, it is concerned that the
reinvestigation of the Matale mass grave has been stalled, that it does not appear that
proactive efforts have been made to investigate other suspected mass grave sites and
by information that, in some sites, vital evidence found during construction and other
activities is not being reported to the authorities. As these may be key to establishing
the fate and whereabouts of some of the disappeared, the Working Group calls for
efforts to be stepped up with regard to other possible sites. In this regard it reiterates
its recommendation on the creation of a skilled special unit to probe into the locations
of other possible mass graves and the further strengthening of forensic capacities.
14. The Working Group welcomes significant improvements to the legislative
framework on enforced disappearance, in the form of the International Convention
for the Protection of All Persons from Enforced Disappearance Act, No. 5 of 2018
which makes enforced disappearance a separate offence and includes various modes
of criminal liability and command responsibility. It notes the importance of ensuring
enforced disappearance is recognised as a continuing crime to which amnesties,
immunities or the statute of limitations cannot be applied. It also calls on the
government to ensure the draft Counter Terrorism Act is fully in conformity with the
international obligations of the state.
15. While also welcoming Sri Lanka’s ratification of the Optional Protocol to the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, the Working Group regrets that the Rome Statute and the Additional
Protocols to the Geneva Conventions have not been ratified. It further regrets that Sri
Lanka has not recognized the competence of the Committee on Enforced
Disappearances to receive and consider communications from or on behalf of
individuals subject to its jurisdiction under article 31 of the Convention.
16. The Working Group welcomes the introduction of certificates of absence for
family members of the disappeared, and the information received from the
Government that families holding certificates will receive a grant of 6000 Rupees per
month from October 2019. The Group encourages further efforts to ensure the full
recognition of the certificates and to ensure that all families of disappeared persons
are able to access appropriate social and medical measures.
17. The Working Group welcomes the creation of a task force on mental health
and the aforementioned efforts by the OMP to develop a psychosocial responsiveness
strategy and hopes that programmes can quickly be established. It also hopes that the
recently established Office for reparations can promptly begin to provide
psychosocial support as envisaged by the Act.
18. The Working Group reiterates its concern about the limited number of
memorials and spaces for people to remember and reflect, especially given the
dimension of the enforced disappearances in Sri Lanka and also reiterates its concern
that there is no government-supported memorial built for the victims of enforced
disappearances. The Working Group calls on the Government to sponsor memorials
and erect national and local monuments as soon as possible, following consultation
with families and other stakeholders.
19. The Working Group notes that, ten years on from the end of the civil war,
there still remains a long way to go for Sri Lanka to transform its promises into a
concrete, comprehensive, legitimate and participatory framework aimed at securing
the rights to truth, justice, reparation and memory, and guarantees of non-repetition
for the families of the disappeared and Sri Lankan society as a whole, in the context
of a reconciliation process. Prompt action on the outstanding recommendations
highlighted in this report will be vital to this process. The Working Group hopes that
the Government can take prompt action on a number of the recommendations and
stands ready to assist in their implementation.

[followed by extensive details given to WGEID by stakeholders on measures taken/current situation]

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