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The Summary of “On-sided” UNHRC Report on Sri Lanka for 46th UNHRC Session

Posted by On January 31, 2021 0 Comment

UN High Commissioner for Human Rights Michelle Bachelet  has issued her draft report on Sri Lanka.  The report shows that it had been heavily influenced on the fabricated stories by the pro-LTTE Tamil terrorist’s diaspora and its allies.

The expert in the subject matter consider that the report has been compiled based on the politically motivated regional and international geopolitics than the spirit of the human rights.

The High Commissioner has over stepped beyond her mandate and had interfered with the internal affairs of a sovereign country.

However, High Commissioner grossly over looked to investigate human rights violations of other countries especially Western and North America.

A new UN report published on Wednesday warns that the failure of Sri Lanka to address past violations has significantly heightened the risk of human rights violations being repeated. It highlights worrying trends over the past year, such as deepening impunity, increasing militarization of governmental functions, ethno-nationalist rhetoric, and intimidation of civil society.

Report says nearly 12 years after the armed conflict in Sri Lanka ended, impunity for grave human rights violations and abuses by all sides is more entrenched than ever, with the current Government proactively obstructing investigations and trials, and reversing the limited progress that had been previously made, states the report, mandated by UN Human Rights Council resolution 40/1.

The report urges enhanced monitoring and strong preventive action by the international community, warning that “Sri Lanka’s current trajectory sets the scene for the recurrence of the policies and practices that gave rise to grave human rights violations.”

Among the early warning signals the report highlights are:

  • the accelerating militarization of civilian governmental functions,
  •  reversal of important constitutional safeguards,
  • political obstruction of accountability,
  • exclusionary rhetoric,
  •  intimidation of civil society, and
  •  the use of anti-terrorism laws.

Since 2020, the President has appointed at least 28 serving or former military and intelligence personnel to key administrative posts, the report states. Particularly troubling are appointments of senior military officials who were implicated in United Nations reports in alleged war crimes and crimes against humanity during the final years of the conflict. These include Shavendra Silva as Army Chief in August 2019 and Kamal Gunaratne as Secretary to the Ministry of Defence in November 2019.

The Government has created parallel military task forces and commissions that encroach on civilian functions, and reversed important institutional checks and balances, threatening democratic gains, the independence of the judiciary and other key institutions, the report says.

The report also documents a pattern of intensified surveillance and harassment of civil society organisations, human rights defenders and victims, and a shrinking space for independent media. More than 40 civil society organizations have reported such harassment from a range of security services – including the Criminal Investigation Department, Terrorist Investigation Division and State Intelligence officials.

“The High Commissioner urges the authorities to immediately end all forms of surveillance, including intimidating visits by State agents and harassment against human rights defenders, lawyers, journalists, social actors and victims of human rights violations and their families, and to refrain from imposing further restrictive legal measures on legitimate civil society activity,” the report states.

It warns that despite the Government’s stated commitment to the 2030 Agenda, Tamil and Muslim minorities are being increasingly marginalized and excluded in statements about the national vision and Government policy. Divisive and discriminatory rhetoric from the highest State officials risks generating further polarization and violence. Sri Lanka’s Muslim community is increasingly scapegoated, both in the context of COVID-19 and in the wake of the Easter Sunday attacks of April 2019.

The report notes that Sri Lanka’s armed conflict emerged against the backdrop of progressively deepening discrimination and marginalization of the country’s minorities, particularly the Tamils. Grave human rights violations and abuses committed by all parties have been documented in successive UN reports, including extrajudicial killings, enforced disappearances, arbitrary detention, torture and sexual violence affecting Sri Lankans from all communities.

Numerous commissions of inquiry appointed by successive governments have failed to credibly establish truth and ensure accountability for the violations, the report notes. The Government has now appointed a new commission of inquiry to review the findings of previous commissions, but its membership lacks diversity and independence, and its terms of reference do not inspire confidence it will produce any meaningful result.

A Presidential Commission of Inquiry to investigate alleged “political victimisation” of public officials, security forces and others has undermined police investigations and court proceedings related to several high profile human rights and corruption cases.

One former chief of the Criminal Investigation Division, who led investigations into several emblematic human rights cases, has been arrested while another inspector from the Division left Sri Lanka, fearing reprisals for his lead investigative role in several emblematic cases, and now faces criminal charges.

“While the criminal justice system in Sri Lanka has long been the subject of interference, the current Government has proactively obstructed or sought to stop ongoing investigations and criminal trials to prevent accountability for past crimes,” the report states.

UN High Commissioner for Human Rights Michelle Bachelet stressed that the failure to deal with the past continues to have devastating effects on tens of thousands of family members from all communities who persist in seeking justice, reparations – and the truth about the fate of their loved ones.

“I urge the international community to listen to the determined, courageous, persistent calls of victims and their families for justice, and heed the early warning signs of more violations to come,” Bachelet said, calling for resolute measures by UN Member States.

“Given the demonstrated inability and unwillingness of Government to advance accountability at the national level, it is time for international action to ensure justice for international crimes. States should also pursue investigations and prosecution in their national courts – under accepted principles of extraterritorial or universal jurisdiction – of international crimes committed by all parties in Sri Lanka,” Bachelet said.

“States can consider targeted sanctions, such as asset freezes and travel bans against credibly alleged perpetrators of grave human rights violations and abuses.”

Sri Lanka’s contributions to UN peacekeeping operations must be kept under review, the High Commissioner added.

Bachelet also urged the Council to support a dedicated capacity to collect and preserve evidence for future accountability processes.

The High Commissioner stressed that Sri Lanka will only achieve sustainable development and peace if it effectively addresses systemic impunity and ensures civic space.

“The failure to do so carries with it the seeds of repeated patterns of human rights violations and potential conflict in the future,” she said.

In preparing the report, the UN Human Rights Office sent detailed questions to the Government and received written responses, followed by a substantive virtual meeting with Government representatives on 7 January 2021. The Government also commented on the report.

The extract of the report on following specific allegations are as follows;

  1. i) Militarization of civilian government functions;
  2. ii) Reversal of Constitutional safeguards;

iii) Political obstruction of accountability for crimes and human rights violations;

  1. iv) Majoritarian and exclusionary rhetoric;
  2. v) Surveillance and obstruction of civil society and shrinking democratic space;
  3. vi) New and exacerbated human rights concerns.

A. Militarization of civilian governmental functions

  1. Resolution 30/1 included commitments that would foster an enabling environment for transitional justice and reconciliation, such as ending military involvement in civilian activities, accountability for military personnel, and security sector reforms. Yet, the past year has seen a deepening and accelerating militarization of civilian government functions – which the High Commissioner first reported to the Human Rights Council in February 2020 – particularly in the context of the COVID-19 pandemic.
  2.  On 29 December 2019, the Government brought 31 entities under the oversight of the Ministry of Defence, including,

the Police,

the Secretariat for Non-Governmental Organizations,

the National Media Centre,

the Telecommunications Regulatory Commission,

the Information and Communication Technology Agency,

the National Dangerous Drugs Control Board,

the Disaster Management Centre

the Department of Emigration and Immigration.

  1. On 20 November 2020, the President moved the Police Department under a new Ministry of Public Security and appointed a former Navy Admiral as Minister.
  2. Since 2020, the President has appointed at least 28 serving or retired military and intelligence personnel to key administrative posts and has formed several Presidential task forces with vague, overbroad or 24 The 19th Amendment also introduced the Right to Information act.
  3. That has been regularly extended by Gazette by virtue of Section 12 of the Public Security Ordinance. This was reassigned to the Presidential Secretariat by Gazette (Extraordinary) no 2194/74 of 25.09.2020 or military officers have been appointed as Chief coordinating Officers for all districts to tackle COVID-19.
  4. The High Commissioner is particularly troubled that these appointments include senior military officials who have been alleged in United Nations reports to be implicated in alleged war crimes and crimes against humanity during the final years of the conflict, including Lieutenant General Shavendra Silva, as Army Chief and Major General (retired) Kamal Gunaratne, as Secretary to the Ministry of Defence. They respectively commanded the 58th and 53rd Divisions, which were credibly alleged to have committed grave violations of international human rights and humanitarian law during the armed conflict.

On 28 December 2020, both officers were promoted to the rank of General.36 In September 2019, the United Nations took the decision to suspend all Sri Lanka’s Army peacekeeping deployments, except where they would expose United Nations operations to serious operational risk.

B. Reversal of Constitutional safeguards

  • On 22 October 2020, the new Parliament passed the 20th Amendment to the Constitution with a two-thirds majority. The amendment changes the balance of power between the different branches of the Government, vastly expanding the scope of presidential and executive powers and reversing many democratic gains introduced with the 19th Amendment in 2015. The High Commissioner is concerned that the amendment has fundamentally eroded the independence of key commissions and institutions, including the HRCSL, the Election Commission, the National Police Commission37 and the judiciary in terms of oversight and procedure for the selection, appointment and dismissal of senior judges and other high-ranking officials. The amendment abolishes the Constitutional Council of eminent persons, which recommended appointments to the President and re-established the Parliamentary Council, which is composed exclusively of politicians and may only make observations.

In December 2020, the President proceeded with the appointment of new members to the HRCSL, including a former Minister as chairperson. The High Commissioner is concerned that the new appointment process undermines the credibility and independence of the Commission.

  • In September 2020, the Government appointed an Expert Committee to draft a new Constitution and invited public inputs on several topics: the nature of the State, fundamental rights, language and decentralization. The High Commissioner notes the importance of an inclusive consultative process that takes into account the diversity of society and the full participation of civil society. In its past resolutions on Sri Lanka, the Human Rights Council has emphasized the “devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population.”

Various United Nations human rights mechanisms have also issued recommendations to Sri Lanka on addressing gaps in the Constitution’s chapter of fundamental rights, and OHCHR stands ready to provide further technical assistance in this regard.

C. Political obstruction of accountability for crimes and human rights violations

  • While the criminal justice system in Sri Lanka has long been the subject of interference, the current Government has proactively obstructed or sought to stop ongoing investigations and criminal trials to prevent accountability for past crimes. On 9 January 2020, the Government appointed a Presidential Commission of Inquiry to investigate alleged “political victimisation” of public officials, members of the armed forces and police, and employees of State corporations by the previous Government. With its broad mandate, the commission has intervened in police investigations and court proceedings and had the effect of undermining the police and judiciary in several high profile human rights and corruption related cases.
  • Most notably, in January 2020, the Commission issued directives to the Attorney-General to halt the prosecution of former Navy Commander Admiral Wasantha Karannagoda and former Navy Spokesman Commodore D.K.P. Dassanayake in relation to disappearances of 11 persons in 2008-9. The AttorneyGeneral did not comply with this order, asserting that the Commission had no statutory or legal authority to order him to refrain from performing his statutory functions. Additionally, the Commission has intervened in favour of military intelligence officers in ongoing judicial proceedings, including in the murder of journalist Lasantha Wickrematunge in 2008, and enforced disappearance of cartoonist Prageeth Eknaligoda in 2010. The Commission has also interfered in other criminal trials, including by withholding documentary evidence, threatening prosecutors with legal action, and running parallel and contradictory examinations of individuals already appearing before trial courts. The Commission submitted its final report to the President on 8 December 2020, but at time of writing this had not been published.
  • On 31 July 2020, Shani Abeysekara, a former chief of the police criminal investigation division (CID), who led investigations into several high-profile crimes and “emblematic” human rights cases, was arrested on charges of fabricating evidence in a murder case. The HRCSL raised concerns over Mr. Abeysekara’s safety in prison, particularly after he was diagnosed with COVID-19 in November 2020. Another CID Inspector, Nishantha Silva, left Sri Lanka in 2019 fearing reprisals for his lead investigative role in respect of several emblematic cases.

D. Majoritarian and exclusionary rhetoric.

  • The High Commissioner welcomes the Government’s public commitments to the 2030 Agenda and appointment of a new Sustainable Development Council. She notes the Government’s affirmation of the rights of all Sri Lankans, but is deeply concerned about the increased use of ethno-nationalistic and majoritarian rhetoric and symbols by the President and other senior Government figures, which define public policies that appear to exclusively reflect the perceived interests of the Sinhala Buddhist majority, and with minimal consideration for minority communities. Ethnic and religious minority communities are left behind and excluded in such official discourse, and often perceived and treated as posing a threat. Such an approach has serious negative implications for reconciliation, peace building and religious tolerance, and carries the seeds of future violence and conflict.
  • In his anniversary address on 18 November 2020, the President underlined that he had been elected by the Sinhala majority and invoked “legitimate fears that the Sinhala race, our religion, national resources and the heritage would be threatened with destruction in the face of various local and foreign forces and ideologies that support separatism, extremism and terrorism.”

The President has set up an advisory council consisting of senior Buddhist monks to seek advice on governance.

In June 2020, a Presidential Task Force was established on the sensitive issue of Archaeological Heritage Management in the Eastern Province, consisting almost entirely of Sinhalese members, including two Buddhist priests, despite the diverse population and heritage of the region.

The Government declined to include the national anthem in the Tamil language on national occasions, such as the Independence Day celebrations, on 4 February 2020, despite the preceding years’ practice of singing it in two languages as a significant gesture towards reconciliation.

  • The COVID-19 pandemic has also impacted on religious freedom and exacerbated the prevailing marginalisation and discrimination suffered by the Muslim community. The High Commissioner is concerned that the Government’s decision to mandate cremations for all those affected by COVID-19 has prevented Muslims from practicing their own burial religious rites, and has disproportionately affected religious minorities and exacerbated distress and tensions. Although the Government asserted to OHCHR that this policy is driven by public health concerns and scientific advice, the High Commissioner notes that WHO guidance stresses that “cremation is a cultural choice”.47 SriLankan Muslims have also been stigmatized in popular discourse as carriers of COVID 19 – a concern raised by the High Commissioner in her global update to the Council in June 2020.

E. Surveillance and intimidation of civil society and shrinking democratic space

  • A pattern of intensified surveillance and harassment of CSOs, human rights defenders and victims appears to have intensified over the past year, including of those who supported the implementation of resolution 30/1. As of December 2020, over 40 civil society organizations had approached OHCHR with reports of harassment, surveillance and repeated scrutiny by a range of security services – including Criminal Investigation Department, Terrorist Investigation Division, National Investigations Bureau and State
    Intelligence officials – who questioned them about administrative details and activities of the organization, lists of staff, including their personal contact details, donors and funding sources. Some were questioned about the whereabouts of their relatives abroad. The Secretary-General and Special Procedures have received similar allegations of surveillance and reprisals.

While the Government has stated its objective is to prevent violent extremism, the High Commissioner is concerned that this is
creating a chilling effect on civic and democratic space and leading to self-censorship.

While Sri Lanka was able to successfully hold parliamentary elections in August 2020 despite COVID-19, the pandemic has also been used to justify excessive or arbitrary limits on legitimate freedom of expression and association.

  • This has been reinforced by changed institutional arrangements for NGO oversight, and the use of laws on counter-terrorism or money-laundering to stifle legitimate activities. Significantly, the Government moved the NGO Secretariat, which supervises and monitors the registration and operations of NGOs, from a civilian Ministry under the purview of the Ministry of Defence and its intelligence arms.
  • Reports that the Voluntary Social Services Organisations (VSSO) Act that regulates operations of NGOs will be reviewed inter alia to control their access to foreign funds are also worrying.

The High Commissioner stresses that any legislative reforms must comply with Sri Lanka’s international legal obligations and constitutional provisions to respect and protect human rights, and should strengthen an enabling environment for civil society, rather than unreasonably restricting their activities and access to
resources.

OHCHR stands ready to provide technical assistance and advice in this regard.

  • Other laws, such as the International Covenant on Civil and Political Rights (ICCPR) Act, which prohibits incitement to hatred, have also been misused in a discriminatory or arbitrary manner to arrest or detain people for peacefully expressing their opinion.

The Special Rapporteur on freedom of religion and belief has observed that the ICCPR Act “has become a repressive tool used for curtailing freedom of thought or opinion, conscience, and religion or belief.” For example, Ramzy Razeek, an online activist was arrested on 9 April 2020 under this law and the Computer Crimes Act for using the expression “ideological jihad” in a post on his Facebook page criticizing anti-Muslim campaigns. A few days before, he had filed a complaint to the police about death threats that he received following his posting. He was released on bail on 17 September 2020 on account of his deteriorating health.

F. New and exacerbated human rights concerns

  • The High Commissioner is concerned that the Government has continued to use the Prevention of Terrorism Act (PTA), despite repeated calls over many years by United Nations human rights mechanisms to repeal it. For instance, on 14 April 2020, police officers arrested prominent lawyer Hejaaz Hizbullah at his house. No detention order was given to him until 25 April 2020. His legal chambers were searched and materials seized. Hizbullah has been under renewable 90-day detention orders since then, under investigation for alleged involvement in the April 2019 terrorist attack in Colombo and for engaging in activities deemed “detrimental to the religious harmony among communities” and alleged indoctrination of children into extremism. Hizbullah’s hearing before a Magistrate is postponed to February 2021, citing COVID-19 concerns. By then, he will have been in detention for 10 months without being charged.
  • The High Commissioner is also concerned by a recent series of deaths in police custody and in the context of police encounters with alleged criminal gangs. These incidents have occurred as the President and other senior Government figures have announced a tough, militarized approach to law and order and drug control. On 20 October 2020, Samarasinghe Arachchige Madush Lakshitha, the alleged leader of a drug trafficking group, was reportedly killed in a police crossfire while he was under the custody of the Colombo Crime Division (CCD). A few days earlier, his family and lawyers had expressed concern about his security. Four other deaths at the hands of the police of alleged members of organized crime gangs took place between June and August 2020.

Recent deaths in custody also occurred in police stations, including allegedly as a result of torture, and in prisons during attempted escapes or riots and protests linked to fears of COVID-19. The most serious incident resulted in the death of 11 inmates and injuries to over one hundred during a protest in Mahara prison on 29 November 2020.

  • These incidents reflect the persistence of longstanding and endemic patterns of custodial deaths, use of torture and other ill-treatment, and extrajudicial killings by law enforcement officials with impunity. OHCHR has also continued to receive credible allegations through well-known human rights organizations of abductions, torture and sexual violence by Sri Lankan security forces since the adoption of resolution 30/1, including in the past year, which need to be credibly investigated.
  •  The High Commissioner welcomes some of the positive measures to mitigate the spread of COVID-19 in prisons, such as the Attorney-General issuing instructions to facilitate bail for certain offences and the release of thousands of prisoners during 2020.

OHCHR stands ready to assist with more systemic reforms to address the root causes of an overloaded prison system with long-standing problems, such as overcrowding, long pre-trial detention and complex bail regimes that have been raised by different special procedures.

Recommendations made in the report

  • The High Commissioner recommends that the Government of Sri Lanka:
  • Actively promote an inclusive, pluralistic vision for Sri Lanka, based on non-discrimination and protection of human rights for all, and in line with the 2030 Sustainable Development Agenda;

(b)       Ensure constitutional and legislative reforms address recommendations made by United Nations human rights mechanisms and the resolutions of the Human Rights Council;

(c)       Publicly issue unequivocal instructions to all branches of the military, intelligence and police forces that torture, sexual violence and other human rights violations are prohibited and will be systematically investigated and punished;

(d)       Order all security agencies to immediately end all forms of surveillance and harassment of and reprisals against human rights defenders, social actors and victims of human rights violations;

(e)       Promptly, thoroughly and impartially investigate and prosecute all allegations of gross human rights violations and serious violations of international humanitarian law, including torture and ill-treatment, and give the highest priority to ensuring accountability in long-standing emblematic cases;

(f)        Remove from office security personnel and other public officials credibly implicated in human rights violations, in compliance with human rights standards; implement other reforms of the security sector to strengthen and ensure accountability and civilian oversight;

(g)         Ensure structural safeguards for the Human Rights Commission to function independently and receive adequate resources;

(h)       Ensure an environment in which the Office on Missing Persons and Office for Reparations can operate effectively and independently; provide both Offices with sufficient resources and technical means to effectively fulfil their mandate; and proceed A/HRC/46/20 with interim relief measures for affected vulnerable families with a gender focus, notwithstanding their right to effective and comprehensive reparations and rights to truth and justice;

(i)        Establish a moratorium on the use of the Prevention of Terrorism Act for new arrests until it is replaced by legislation that adheres to international best practices;

(j)        Establish standard procedures for the granting of pardons or other forms of clemency by the President, including subjecting it to judicial review, and excluding grave human rights and international humanitarian law violations;

(k)       Honour its standing invitation to Special Procedures by scheduling renewed country visits by relevant thematic mandate holders; continue engagement with treaty bodies; and seek continued technical assistance from OHCHR in implementing the recommendations of UN human rights mechanisms.

  • The High Commissioner recommends that the Human Rights Council and Member States to:
  • Request OHCHR to enhance its monitoring of the human rights situation in Sri Lanka, including progress towards accountability and reconciliation, and report regularly to the Human Rights Council;
  • Support a dedicated capacity to collect and preserve evidence and other related information for future accountability processes, to advocate for victims and survivors, and to support relevant judicial proceedings in Member States with competent jurisdiction;
  • 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 jurisdiction;
  • Explore possible targeted sanctions such as asset freezes and travel bans against credibly alleged perpetrators of grave human rights violations and abuses;

(e)       Apply stringent vetting procedures to Sri Lankan police and military personnel identified for military exchanges and training programmes;

(f)        Prioritize support to civil society initiatives and efforts for reparation and victims’ assistance and prioritise victims and their families for assistance in their bilateral humanitarian, development and scholarship programs;

(g)       Review asylum measures with respect to Sri Lankan nationals to protect those facing reprisals and avoid any refoulement in cases that present real risk of torture or other serious human rights violations.

  • The High Commissioner recommends that United Nations entities:
  • Ensure that the Secretary-General’s Call to Action on human rights guides all United Nations policy and programmatic engagement in Sri Lanka;
  • Ensure that all development programmes are founded on principles of inclusion, non-discrimination, and support for effective, accountable and inclusive institutions, in line with the 2030 Sustainable Development Agenda;
  • Incorporate strict human rights due diligence in engagement with the security forces and all bodies under the purview of the Ministry of Defence or the Ministry Public Security;
  • Whilst fully understanding force generation challenges in the context of UN peacekeeping, keep under review Sri Lanka’s contributions to UN peacekeeping operations and screening systems for Sri Lanka personnel

Link to full report:

https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:631c824b-d174-4429-b3cc-a7ec84bf35e1

The report will be formally presented to the Human Rights Council on 24 February, followed by an interactive dialogue.

The full report issued by High Commissioner for Human Rights on Sri Lanka as follows;

Click Here To View The Full Report



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