by UN High Commissioner for Human Rights, A/HRC/49/9, Geneva, February 25, 2022
20220225 UNHCHR Report on Sri Lanka
Human Rights Council
Forty-ninth session
28 February–1 April 2022
Agenda item 2
Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General
Promoting reconciliation, accountability and human rights in Sri Lanka
Report of the United Nations High Commissioner for Human Rights*
* The present report was submitted after the deadline to enable consultations with the Member State.
Summary
The present written update is submitted pursuant to Human Rights Council resolution 46/1. OHCHR presents its observations on the human rights situation in Sri Lanka and continuing challenges for advancing reconciliation, accountability and human rights. It focusses on developments since the High Commissioner’s last report on Sri Lanka in February 2021, including the broader trends identified at that time. The report also includes an update on steps taken to implement the accountability-related aspects of resolution 46/1.
The High Commissioner remains concerned about the continued lack of accountability for past human rights violations and recognition of victims’ rights in Sri Lanka, particularly those stemming from the conflict that ended in 2009. She highlights continuing trends towards militarization and ethno-religious nationalism that undermine democratic institutions, increase the anxiety of minorities, and impede reconciliation. At the same time, the High Commissioner recognizes the recent signs of renewed openness of the Government in engaging with OHCHR and the initial steps taken to initiate some reforms. The High Commissioner believes however that a comprehensive vision for a genuine reconciliation and accountability process is urgently needed, as well as deeper institutional and security sector reforms that will end impunity and prevent the recurrence of violations of the past.
Conclusion
- The High Commissioner remains concerned about the lack of accountability for past human rights violations and recognition of victims’ rights. In the last two years, the independence of the judiciary, the Human Rights Commission and other key institutions have been eroded, and democratic space, including for human rights advocacy constricted. There has been a further drift towards militarisation and an emphasis of Sinhala nationalism and Buddhism in State institutions has become more visible, increasing the marginalisation and uncertainty of minority communities, and undermining reconciliation. The forthcoming Constitution drafting process will be of critical importance for the independence of key institutions and issues of devolution and human rights should be monitored closely. The situation has been affected by the deep impact of the COVID-19 pandemic and economic crisis which has affected the realisation of economic, social and cultural rights, and the Government’s response to criticism and dissent with heavy-handed measures have undermined civic space. There are also risks that the economic downturn will further fuel the prevailing marginalization and discrimination against minority communities.
- The High Commissioner recognizes the recent signs of renewed openness of the Government in engaging with OHCHR and the initial steps taken to initiate some reforms, including changes to the Prevention of Terrorism Act. She urges the Government to go much further and deeper with the legal, institutional and security sector reforms that are necessary to comply with Sri Lanka’s international human rights obligations and to prevent the recurrence of grave violations. OHCHR continues to stand ready to assist Sri Lanka on this path. The High Commissioner is deeply concerned by the continued obstruction and setbacks in most of the emblematic human rights cases that have reached the courts, and the harassment of victims and families of the disappeared campaigning for truth and justice or seeking to commemorate their loved ones. While the Government emphasises practical measures of reparation and development as the basis for reconciliation, the High Commissioner stressed this will not be achieved without a comprehensive approach to ensure truth, justice, redress for victims and institutional reforms that guarantee non-recurrence.
- The Sri Lankan state, including successive governments, has consistently failed to prosecute international crimes and serious human rights violations and pursue an effective transitional justice process. The current Government has continued to demonstrate its unwillingness to recognise those serious international crimes and pursue accountability but has also incorporated some military officials who may have been implicated in alleged war crimes into the highest levels of Government, reinforcing a narrative of impunity. In the absence of tangible results that ensure justice for victims, the Human Rights Council should continue to pursue international strategies for accountability.
- The Human Rights Council, and its special procedures, treaty bodies, international and national civil society organizations and the Government’s own domestic commission – the Lessons Learnt and Reconciliation Commission (LLRC) – have put forward many concrete recommendations to the Government to improve the human rights situation and address the legacy of the past. These recommendations should be used as benchmarks by the Government, as well as the international community and United Nations in advancing reconciliation, accountability and human rights.[1] OHCHR stands ready to support Sri Lanka in this and provide technical assistance in this regard. Sri Lanka will only achieve sustainable development and peace and lasting reconciliation if it ensures civic space, independent and inclusive institutions, and puts an end to systemic impunity.
Recommendations
67. The High Commissioner reiterates the recommendations made to the Government of Sri Lanka in paragraph 60 of her 2021 report to the Council.[2] She further recommends the Government to:
(a) Ensure the drafting process for a new Constitution is based on broad and inclusive consultations, entrenches the independence of judiciary and key national institutions such as the HRCSL, and advances the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population;
(b) Take into account the recommendations made by various UN human rights mechanisms on the protection of human rights in the Constitution and the guarantees needed for effective, independent and inclusive national institutions;
(c) Avoid reliance on the military to run civilian affairs and take steps to reduce the influence of the military on civilian life;
(d) Ensure that the Attorney General’s Department is able to operate independently in practice and pursue prosecutions against any suspected perpetrators of human rights violations and serious violations of international humanitarian law, irrespective of military rank, official or other position of power;
(e) Take a comprehensive approach to determine the fate and whereabouts of all the disappeared, including immediately opening military archives relevant to cases of enforced disappearance, independently investigate all those suspected of criminal responsibility for the enforced disappearance, and provide comprehensive reparation to the families of the disappeared;[3]
(f) Publish the findings of the Commission of Inquiry into the 2019 Easter Sunday bombings to ensure transparency for victims and pursue further independent investigations into the involvement of any other state or non-state actors;
(g) Undertake more fundamental reforms to the Prevention of Terrorism Act to ensure it fully complies with Sri Lanka’s international law obligations,; in the meantime, establish a moratorium on the use of the Prevention of Terrorism Act until it is replaced by legislation that fully complies with international human rights norms and standards;[4]
(h) Expedite the review of all detainees held under the PTA and release everyone detained without sufficient legal and evidentiary basis. Ensure that counter terrorism measures do not undermine democratic and civic space;
(i) Ensure inclusive and broad-based consultation in the drafting and amendment of key laws, including the Prevention of Terrorism Act, the Voluntary Social Services (Registration and Supervision) Act, the Muslim Marriage and Divorce Act and other personal laws;
(j) Order all security agencies to immediately end all forms of surveillance and harassment of and reprisals against human rights defenders, social actors, victims and their families of human rights violations;
(k) Adjudicate land disputes in ways that are transparent, consultative, impartial and non-discriminatory and ensure inter-faith dialogue on the erection of religious sites.
- The High Commissioner reiterates the recommendations she made in paragraph 61 of her 2021 report to the Council and Member States and further recommends that they:[5]
(a) Cooperate with victims and their representatives to investigate and prosecute international crimes committed by all parties in Sri Lanka through judicial proceedings in domestic jurisdictions, including under accepted principles of extraterritorial or universal jurisdictions and continue to explore possible targeted sanctions against credibly alleged perpetrators of grave human rights violations and abuses;
(b) Review asylum measures with respect to Sri Lankan nationals to protect those facing reprisals and refrain from any refoulement in cases that present real risk of torture or other serious human rights violations;
(c) Cooperate with OHCHR in its discharge of accountability related work under resolution 46/1 and provide it with adequate human and financial resources to enable it to effectively deliver the full mandate given under the resolution.
- The High Commissioner recommends that United Nations entities:
(a) Scale up their protection work to prevent threats against, and increase support to civil society organizations and to firmly defend civic space;
(b) Ensure strict, coherent and expanded application of human rights due diligence and its principles in engagement with the security forces and all bodies under the purview of the Ministry of Defence or the Ministry Public Security, and review their engagement with, and advice from structures whose independence has been undermined, such as the HRCSL;
(c) Advocate with the Government of Sri Lanka to address the concerns of the Global Alliance on National Human Rights Institutions (GANHRI) to ensure the independence of the Human Rights Commission of Sri Lanka;
(d) While fully understanding force generation challenges in the context of United Nations peacekeeping, given the current circumstances of the Human Rights Commission of Sri Lanka, review the contributions of Sri Lanka to United Nations peacekeeping operations and the systems for screening Sri Lanka personnel.