SR Emmerson’s Report Annex to Visit to Sri Lanka

by Ben Emmerson, Special Rapporteur on human rights while countering terrorism, March 2019

Human Rights Council
Fortieth session
25 February–22 March 2019
Agenda item 3
Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Visit to Sri Lanka
Report of the Special Rapporteur on the promotion and protection ofhuman rights and fundamental freedoms while countering terrorism*

SR HR in Counterterrorism report to 40th HRC Mar 2019

Summary In his former capacity as Special Rapporteur on the promotion and protection of human rights while countering terrorism, Ben Emmerson conducted a visit to Sri Lanka from 10 to 14 July 2017, to assess the progress Sri Lanka has achieved in its policies, laws and practices in the fight against terrorism since the end of its internal armed conflict.

Progress in these areas is key to ensuring accountability, an end to the rule of impunity, and reconciliation, and thus to paving the way for lasting peace in Sri Lanka. In his report, the Special Rapporteur shares several key observations and human rights concerns with regard to the continued use of the Prevention of Terrorism Act of 1979, despite the long-overdue commitment of the Government to review and repeal it. The Act, inter alia, provides for an overly broad and vague definition of terrorism, lengthy administrative detention and ineffective judicial review, and extremely broad rules concerning the admission of
confessions. He also expresses his concerns about the routine and systemic use of torture and ill-treatment under the Act and the conditions of detention. In particular, he found the conditions in the high-security wing of the prison in Anuradhapura that he visited to be inhumane.

Furthermore, the Special Rapporteur assesses that the progress of the new counterterrorism legislation, together with the management of past cases under the Act, has been painfully slow, and this has, in turn, delayed the wider package of transitional justice measures that Sri Lanka committed to deliver in 2015.

Furthermore, the Special Rapporteur observed a pervasive and insidious form of stigmatization of the Tamil community. Tamils are severely underrepresented in all institutions, particularly in the security sector and the judiciary, despite the importance of ensuring that all institutions adequately reflect the ethnic, linguistic and religious make-up of the State.

The Special Rapporteur makes several concrete recommendations and stresses that

United Nations A/HRC/40/52/Add.3
General Assembly Distr.: General
14 December 2018
Original: English
A/HRC/40/52/Add.3
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Sri Lanka must urgently implement its commitments made in line with Human Rights Council resolution 30/1 to address the legacy of widespread and serious human rights violations that occurred in the context of the internal armed conflict in the country. The pervasive climate of impunity and the lack of accountability for serious human rights violations that occurred both during the conflict and in the aftermath requires immediate redress. The security sector is in need of urgent reform. The counter-terrorism legislation requires a complete overhaul to bring it into line with international human rights law.

Failure to address these issues promptly and effectively will provide fertile ground for those intent on resorting to political violence, as real and perceived grievances are exploited by militants to garner support among vulnerable and alienated sections of the population. The price that future generations in Sri Lanka will have to pay for the continuation of this legal repression may prove as costly, or even costlier, than that which has so far confronted the present generation…

IV. Conclusions and recommendations
A. Conclusions
59. In 2015, Sri Lanka seemed to have turned a corner. New elections brought to power a coalition Government and with it the promise of change. In resolution 30/1, co-sponsored by Sri Lanka itself, the Council emphasized the importance of reconciliation, transitional justice, accountability and reform of the security sector, including the counter-terrorism framework. Yet, after a two-year extension granted to the Government in resolution 34/1, progress in achieving those key goals seemed to have ground to a virtual halt. None of the measures adopted by the time of the Special Rapporteur’s visit to fulfil the transitional justice commitments made by Sri Lanka are adequate to ensure real progress.

60. The counter-terrorism apparatus is still tainted by the serious pattern of human rights violations that were systematically perpetrated under its authority. At
the time of the Special Rapporteur’s visit, the Prevention of Terrorism Act remained on the statute book. The new draft framework largely reflects the interests of the security sector and is far from being adequately grounded in international human rights law. Individuals are still held in detention under the Prevention of Terrorism Act, impunity is still the rule for those responsible for the routine and systemic use of torture, and countless individuals are the victims of gross miscarriages of justice resulting from the operation of the Act. The Tamil community remains stigmatized and disenfranchised, while the trust of other minority communities is being steadily eroded.

61. Sri Lanka must urgently implement the commitments made in line with resolution 30/1 to address the legacy of widespread and serious human rights
violations that occurred in the context of the internal armed conflict in the country.

The pervasive climate of impunity and the lack of accountability for serious human rights violations that occurred both during the conflict and in the aftermath requires immediate redress. The security sector is in need of urgent reform. The counterterrorism legislation requires a complete overhaul to bring it into line with international human rights law. Failure to address these issues promptly and effectively will provide fertile ground for those intent on resorting to political violence, as real and perceived grievances are exploited by militants to garner support among vulnerable and alienated sections of the population. The price that future generations in Sri Lanka will have to pay for the continuation of this legal repression may prove ascostly, or even costlier, than that which has so far confronted the present generation.

B. Recommendations
62. The Special Rapporteur recommends that the Government of Sri Lanka:
(a) Immediately establish a moratorium on the use of the Prevention of Terrorism Act for new arrests until it is off the statute book, and take urgent steps to
repeal it;
(b) Ensure that the new counter-terrorism legislation is fully in line with international human rights law;
(c) Immediately provide for a prompt and effective judicial review of the legality of the detention of all those still detained under the Act;
(d) Submit all individuals charged under the Act to a fair trial with all guarantees of due process;
(e) Ensure that statements and confessions made by detainees under the Act have no probative value in proceedings against them;
(f) Establish a mechanism for reviewing all convictions under the Act in which evidence of a confession to the police was central to the prosecution case;
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(g) Establish an independent, effective and accessible mechanism to complain about torture and ill-treatment in all places of detention. Ensure that
investigations into allegations of torture are launched ex officio and that complainants are not subject to reprisals;
(h) Ensure the availability of prompt, independent, adequate and consensual medical examinations at the time of arrest, upon entering a custodial or interview
facility and upon each transfer;
(i) Ensure that all interviews with detainees are fully in line with the proposal made by the Special Rapporteur on torture for a universal protocol for noncoercive, ethically sound, evidence-based and empirically founded interviewing practices (see A/71/298) and ensure that all interviews are video recorded;
(j) Consider transferring those still in pretrial detention or those serving sentences under the Prevention of Terrorism Act to places of detention closer to their
families, and the two Special High Courts dealing with cases under the Act to majority Tamil areas;
(k) Ensure that the right to habeas corpus is fully reflected in the future legislation, in line with the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court;
(l) Guarantee full and unimpeded access to a counsel who speaks a language understood by the person detained from the beginning of the deprivation of
liberty and throughout all stages of criminal proceedings;
(m) Urgently ratify and implement the Optional Protocol to the Convention against Torture, and enable the Subcommittee on Prevention of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment to carry out regular unannounced inspections of all places of detention;
(n) Ensure that the National Human Rights Commission receives adequate resources to effectively fulfil its mandate, including regular, effective and independent
monitoring of all places of detention, the investigation of allegations of torture and illtreatment, and the review of legislation;
(o) Publicly issue unequivocal instructions to all security forces to immediately end all forms of surveillance and harassment against human rights
defenders and victims under the Prevention of Terrorism Act and their families;
(p) Guarantee that all cases of hate speech and attacks on minorities are fully investigated and prosecuted and the perpetrators punished, without
discrimination;
(q) Ensure minimum standards of detention in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules);
(r) Urgently reform all institutions of the security sector to place them under full civilian control and oversight. Develop a vetting process to ensure that all
security personnel and public officials involved in human rights violations are removed from service;
(s) Ensure that the security sector, particularly the police, intelligence services and the military, adequately reflects the ethnic and linguistic make-up of the
country;
(t) Demilitarize the Northern Province, as a symbolic gesture of reconciliation and trust-building;
(u) Implement the specific and detailed recommendations of the Special Rapporteur on torture (A/HRC/34/54/Add.2), the Special Rapporteur on minority
issues (A/HRC/34/53/Add.3), the Special Rapporteur on the independence of judges and lawyers (A/HRC/35/31/Add.1) and the Working Group on Enforced or
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Involuntary Disappearances (A/HRC/33/51/Add.2) following their missions to Sri Lanka, and those of the Committee against Torture (CAT/C/LKA/CO/5);
(v) Implement in full all the commitments made by Sri Lanka that are reflected in resolution 30/1, including by urgently putting into operation the office of
missing persons.

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