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United Nations

A/HRC/30/61

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General Assembly

Distr.: General

28 September 2015


Original: English

Human Rights Council

Thirtieth session

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

Comprehensive report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka*

Summary

The present report contains the principal findings of the comprehensive investigation conducted by the Office of the United Nations High Commissioner for Human Rights into alleged serious violations and abuses of human rights and related crimes during the armed conflict in Sri Lanka. The Office reviews human rights-related developments in the country since March 2014, in particular reforms and the steps taken towards accountability and reconciliation by the new President elected in January 2015, and the new Government elected in August 2015. The report concludes with recommendations of the High Commissioner on the way forward, including on the establishment of a hybrid special court to try war crimes and crimes against humanity allegedly committed by all parties to the armed conflict.



Contents


Page

I. Introduction 3

II. Engagement of the Office of the High Commissioner and the special procedures 4

III. Human rights and related developments 4

IV. Principal findings of the investigation 6

A. Unlawful killings 6

B. Violations relating to the deprivation of liberty 7

C. Enforced disappearances 7

D. Torture and other forms of cruel, inhuman or degrading treatment 8

E. Sexual and gender-based violence 8

F. Abductions and forced recruitment 8

G. Recruitment of children and their use in hostilities 8

H. Impact of hostilities on civilians and civilian objects 9

I. Control of movement 10

J. Denial of humanitarian assistance 11

K. Screening and deprivation of liberty of internally displaced persons 11

V. Steps towards accountability and reconciliation 11

A. Presidential Commission to Investigate into Complaints regarding Missing Persons 12

B. Emblematic cases 13

C. Mass graves 14

VI. Looking ahead 14

VII. Conclusions and recommendations 16



  1. Government of Sri Lanka 17

B. United Nations system and Member States 19

I. Introduction

1. The present report is submitted pursuant to Human Rights Council resolution 25/1, in which the Council requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national processes; to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission, with assistance from relevant experts and special procedures mandate holders; and to present a comprehensive report to the Council at its twenty-eighth session.

2. Following signals of engagement by the newly elected Government of Sri Lanka in January 2015 and the possibility that further information might become available for the investigation, the Human Rights Council accepted the recommendation made by the High Commissioner that consideration of the report be deferred until the thirtieth session (see A/HRC/28/23).

3. The present report includes the findings of the OHCHR investigation on Sri Lanka, a special team established by the former High Commissioner, Navi Pillay, to conduct the comprehensive investigation mandated by the Human Rights Council in its resolution 25/1 (see also A/HRC/30/CRP.2). The High Commissioner invited three distinguished experts – Martti Ahtisaari, former President of Finland, Dame Silvia Cartwright, former High Court judge of New Zealand, and Asma Jahangir, former President of the Human Rights Commission of Pakistan – to play a supportive and advisory role. Human Rights Council special procedure mandate holders also made their input to the investigation.

4. It is important at the outset to stress that the present report represents a human rights investigation, not a criminal investigation. The time frame covered by the investigation, the extent of the violations, the amount of information available and the constraints to the investigation, including lack of access to Sri Lanka and witness protection concerns, posed enormous challenges. Nevertheless, the investigation team attempted to identify the patterns of violations of international human rights and humanitarian law perpetrated, not only during the final stage of the armed conflict but during the whole period covered by investigation.

5. These patterns of conduct consisted of multiple incidents that occurred over time. They usually required resources, coordination, planning and organization, and were often executed by a number of perpetrators within a hierarchical command structure. Such systemic acts cannot be treated as ordinary crimes but, if established in a court of law, may constitute international crimes, which give rise to command as well as individual responsibility.

6. The report is submitted to the Human Rights Council in a very different context to the one in which it was mandated. The election of a new President and Government on a platform centred on good governance, human rights and the rule of law have given Sri Lanka a historic opportunity to address the grave human rights violations that have wracked its past, to pursue accountability and institutional reform, to ensure truth, justice and redress to many thousands of victims, and to lay the basis for long-term reconciliation and peace. Sri Lanka has, however, had such opportunities in the past, and the findings of the OHCHR investigation highlight the need for political courage and leadership to tackle comprehensively the deep-seated and institutionalized impunity that generates the risk of such violations being repeated.

II. Engagement of the Office of the High Commissioner and the special procedures

7. When the Human Rights Council adopted resolution 25/1, the Government of Sri Lanka “categorically and unreservedly rejected” it and refused to engage “in any related process”. Former government ministers and officials repeatedly criticized and indeed vilified the OHCHR investigation in public and, more seriously, resorted to an unrelenting campaign of intimidation and harassment against victims, witnesses and representatives of civil society who might seek to provide information to OHCHR.

8. Since January 2015, the tenor of the Government’s engagement with OHCHR has changed markedly. Although the new Government did not change its stance on cooperation with the investigation, nor admit the investigation team to the country, it engaged more constructively with the High Commissioner and OHCHR on possible options for an accountability and reconciliation process.

9. The Government also invited the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to make a technical visit from 30 March to 3 April 2015. The Special Rapporteur stressed the importance of developing a comprehensive State policy on transitional justice through broad public consultation and participation, particularly of persons affected by violations.

10. The Working Group on Enforced or Involuntary Disappearances was also invited to visit Sri Lanka from 2 to 12 August 2015, but was requested to postpone its visit when these dates fell close to the parliamentary elections. The Working Group’s visit has now been confirmed for November 2015.

III. Human rights and related developments

11. The presidential election of 8 January 2015 marked a watershed in the political environment in Sri Lanka. The common opposition candidate, Mathiripala Sirisena, defeated the incumbent President Mahinda Rajapaksa with the support of a broad coalition derived from all ethnic communities and spread over the ideological spectrum. A new Cabinet was formed with the former opposition leader, Ranil Wickremesinghe, as Prime Minister.

12. The manifesto of the new Government included a 100-day programme of constitutional reform and other measures, which culminated in the passage of the nineteenth amendment to the Constitution limiting the powers of the executive presidency, re-introduced limits to presidential terms and restored the Constitutional Council, which makes recommendations on appointments to the judiciary and independent commissions. The Chief Justice, who was controversially impeached in January 2013, was briefly reinstated before the senior-most judge on the bench was appointed as her successor.

13. Parliamentary elections were subsequently held on 17 August 2015. The United National Front for Good Governance, the coalition of parties that had governed since January 2015, won the largest number of seats, and a new Cabinet was formed on 4 September 2015.

14. Since January 2015 there has been a significant opening of space for freedom of expression, at least in Colombo, although reports of surveillance, interference and harassment of human rights defenders continued to be received at the district level. On 16 January, the Government lifted restrictions on access by journalists to the northern region.

15. While President Sirisena appointed new civilian governors for both the Northern and Eastern Provinces, and the major security checkpoint leading to the North was removed in August 2015, the Government is still to embark on any comprehensive process of demilitarization. Local civil society sources recorded 26 cases of harassment and intimidation by military and intelligence services in the North and East during the period from January to August 2015. This figure highlights the reality that the structures and institutional cultures that created the repressive environment of the past remain in place and will require much more fundamental security sector reform.

16. Six years after the end of the war, many displaced populations have yet to achieve durable solutions, particularly with regard to livelihoods. One major continuing problem is the military occupation of private land, although the Government has proceeded with some land releases in Thellipallai and Kopai in the North and in Sampur in the East.

17. Land issues have been further complicated by secondary occupation by civilians; loss, destruction and damage to land documents; competing claims; landlessness; and un-regularized land claims. Care must also be taken to ensure that land distribution does not exacerbate existing intra- and inter-community tensions, since land disputes have become increasingly politicized and ethnicized in return areas.

18. Women head nearly 60,000 households in the Northern Province.1 Owing to food insecurity, rising inflation and lack of livelihood opportunities, such households are pushed further into debt, thereby increasing their vulnerability to exploitation. In the militarized context in conflict-affected areas, they are extremely vulnerable to sexual harassment, exploitation and violence.

19. The Government has been slow to clarify the number and identity of detainees still held under the Prevention of Terrorism Act and emergency regulations. At the time of writing, the Government had reportedly acknowledged 258 remaining detainees: 60 had not been charged; 54 had a prior conviction; while the remaining cases were pending. Reports have continued to emerge about the existence of secret and unacknowledged places of detention, which require urgent investigation.

20. The Prevention of Terrorism Act, which has long provided a legal context for arbitrary detention, unfair trials and torture, remains in force (see CCPR/C/LKA/CO/5, para. 11). According to local civil society sources, from January to August 2015, 19 people were arrested under the Act, of whom 12 remain in detention. Although the Government has engaged in dialogue with Tamil diaspora groups, it has not yet taken steps to delist the numerous Tamil diaspora organizations and individuals proscribed under the Act in March 2013.

21. Torture and sexual violence remain a critical concern, both in relation to the conflict and in the regular criminal justice system. A non-governmental organization that provides victims with medical services has highlighted six cases since the change of Government in 2015. A total of 37 per cent of the cases documented in its report2 concerned individuals who had returned to Sri Lanka after the conflict, a few of them rejected asylum seekers.

22. During the period between March 2014 and August 2015, one non-governmental organization reported 112 incidents of hate speech against the Muslim community, 22 since January 2015.3 During the same period, Christian groups reported 126 incidents targeting Christians and religious sites, 57 since January 2015.4 In April 2015, the Government announced plans to revise the Penal Code to criminalize hate speech; these amendments have yet to be presented.

23. As at August 2015, there were no prosecutions in relation to attacks by the Buddhist group Bodu Bala Sena on the Muslim community in Aluthgama in June 2014, where four people were reportedly killed and 80 injured.



IV. Principal findings of the investigation

24. The section below summarizes the principal findings established by OHCHR as a result of its investigation and on the basis of the information in its possession. The sheer number of allegations, their gravity, recurrence and the similarities in their modus operandi, as well as the consistent pattern of conduct they indicate, all point to system crimes. While it has not always been possible to establish the identity of those responsible for serious alleged violations, these findings demonstrate that there are reasonable grounds to believe that gross violations of international human rights law, serious violations of international humanitarian law and international crimes were committed by all parties during the period under review. Indeed, if established before a court of law, many of the allegations may, depending on the circumstances, amount to war crimes if a nexus is established with the armed conflict and/or crimes against humanity if committed as part of a widespread or systematic attack against a civilian population. In some of the cases, the alleged acts were apparently committed on discriminatory grounds.



A. Unlawful killings

25. On the basis of the information obtained by the investigation team, there are reasonable grounds to believe the Sri Lankan security forces and paramilitary groups associated with them were implicated in unlawful killings carried out in a widespread manner against civilians and other protected persons. Tamil politicians, humanitarian workers and journalists were particularly targeted during certain periods, although ordinary civilians were also among the victims. There appears to have been discernible patterns of killings, for instance in the vicinity of security force checkpoints and military bases, and also of individuals while in the custody of security forces. If established before a court of law, these may, depending on the circumstances, amount to war crimes and/or crimes against humanity.

26. The investigation team also gathered information that gives reasonable grounds to believe that the Liberation Tigers of Tamil Eelam (LTTE) also unlawfully killed Tamil, Muslim and Sinhalese civilians perceived to hold sympathies contrary to LTTE. LTTE targeted rival Tamil political parties, suspected informers and dissenting Tamils, including political figures, public officials and academics, as well as members of rival paramilitary groups. Civilians were among the many killed or injured in indiscriminate suicide bombings and claymore mine attacks carried out by LTTE. Depending on the circumstances and if confirmed by a court of law, these may amount to war crimes and or crimes against humanity.

27. The team also investigated allegations of extrajudicial executions of identified LTTE cadres and unidentified individuals on or around 18 May 2009, some of whom were known to have surrendered to the Sri Lankan military. Although some facts remain to be established, on the basis of witness testimony as well as photographic and video imagery, there appears to be sufficient information in several cases to indicate that they were killed after being taken into custody. Depending on the circumstances and if confirmed by a court of law, many of the cases described in the report may amount to war crimes and/ or crimes against humanity.



B. Violations relating to the deprivation of liberty

28. The investigation team documented long-standing patterns of arbitrary arrest and detention by government security forces, and of abductions by paramilitary organizations linked to them, which often reportedly led to enforced disappearances and extrajudicial killings.

29. The typical modus operandi involved the arbitrary arrest or abduction of individuals by the security forces, sometimes with the assistance of paramilitary group members operating in unmarked “white vans” that were reportedly able to pass security checkpoints or to enter security force bases.

30. These violations were and still are facilitated by the extensive powers of arrest and detention provided for in the Prevention of Terrorism Act still in force, and by the emergency regulations that were in force until 2011. Such cases of unlawful and arbitrary arrest and detention are clearly in violation of the State’s obligations under international human rights law. Depending on the circumstances and if confirmed by a court of law, these violations may amount to war crimes and/or crimes against humanity.



C. Enforced disappearances

31. During the course of its investigation, the team reviewed reliable information on hundreds of cases of enforced disappearance arising during the period under review in various parts of the country, with particular prevalence in the Northern and Eastern Provinces. Furthermore, the mass detention regime after the end of hostilities also led to enforced disappearances.

32. On the basis of the information available, the team has reasonable grounds to believe that the Sri Lankan authorities have, in a widespread and systematic manner, deprived a considerable number of victims of their liberty, and then refused to acknowledge the deprivation of liberty or concealed the fate and whereabouts of the disappeared person. This, in effect, removed these persons from the protection of the law and placed them at serious risk. Family members of the disappeared persons were also subjected to reprisals and denied the right to an effective remedy, including the right to the truth.

33. There are reasonable grounds to believe that enforced disappearances may have been committed as part of a widespread and systematic attack against the civilian population, given the geographical scope and time frame in which they were perpetrated, by the same security forces and targeting the same population. In particular, there are reasonable grounds to believe that those who disappeared after handing themselves over to the army at the end of the conflict were deliberately targeted because they were or were perceived to be affiliated with LTTE forces.



D. Torture and other forms of cruel, inhuman or degrading treatment

34. The investigation team documented the use of torture by the Sri Lankan security forces, particularly in the immediate aftermath of the armed conflict, when former LTTE members and civilians were detained en masse. This conduct followed similar patterns by a range of security forces in multiple facilities, including army camps, police stations and “rehabilitation camps”, as well as in secret, unidentified locations.

35. On the basis of the information obtained by the team, there are reasonable grounds to believe that acts of torture were committed on a widespread or systematic scale. Such acts breach the absolute prohibition of torture and the State’s international treaty and customary obligations. If established before a court of law, these acts of torture may, depending on the circumstances, amount to crimes against humanity and/or war crimes.

E. Sexual and gender-based violence

36. The information gathered by the investigation team gave reasonable grounds to believe that rape and other forms of sexual violence by security forces personnel was widespread against both male and female detainees, particularly in the aftermath of the armed conflict. The patterns of sexual violence appear to have been a deliberate means of torture to extract information and to humiliate and punish persons who were presumed to have links with LTTE.

37. Owing in particular to the fear of reprisals, the stigma and trauma attached, and the other constraints its investigation faced, the team was unable to assess fully the scale of the sexual violence used against those detained. The team nevertheless considers that, on the basis of the information it gathered, there are reasonable grounds to believe that violations of international human rights law and international humanitarian law relating to sexual violence were committed by government security forces, and that some of these acts may amount to war crimes and crimes against humanity.

F. Abductions and forced recruitment

38. The investigation team gathered information that reflected a pattern of abductions leading to the forced recruitment of adults by LTTE until 2009. The forced recruits were obliged to perform both military and support functions and were often denied contact with their families. Towards the end of the conflict, abductions leading to forced recruitment became more prevalent. Victims and families who tried to resist were physically mistreated, harassed and threatened.

39. In the view of the team, abductions leading to forced recruitment and forced labour were in contravention of common article 3 of the Geneva Conventions and of the obligations under international humanitarian law of LTTE to treat humanely persons taking no direct part in hostilities and those placed hors de combat. In cases in which the movement of those forcibly recruited was severely restricted, the investigation team is of the view that this may amount to a deprivation of liberty. If established by a court of law, these violations may, depending on the circumstances, amount to war crimes and/or crimes against humanity.

G. Recruitment of children and their use in hostilities

40. The investigation team documented extensive recruitment and use of children in armed conflict by LTTE over many years, which intensified during the last few months of the conflict, as did reports of recruitment of children under the age of 15. It also gathered information on child recruitment by the Tamil Makkal Viduthalai Pulikal (TMVP)/Karuna Group after its split from LTTE in 2004. Recruitment of children is a violation of the Convention on the Rights of the Child and the Optional Protocol thereto on the involvement of children in armed conflict, and could also constitute a war crime if proven in a court of law.

41. On the basis of the information gathered by the investigation team, there are reasonable grounds to believe that government security forces may have known that the Karuna Group recruited children in areas under its control. This indicates that the Government may also have violated the Convention on the Rights of the Child and the Optional Protocol thereto on the involvement of children in armed conflict to which it is a party, in particular to ensure the protection and care of children affected by armed conflict. The High Commissioner also notes the State’s failure to date to prosecute those responsible, including individuals widely suspected of child recruitment, some of whom have since been appointed to public positions.



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