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A New Domestic Process in Sri Lanka will not bring Reconciliation and Justice

September 25, 2020 Sri Lanka Campaign Comments Off

At the 45th session of the UN Human Rights Council (HRC) last week, the Government of Sri Lanka tried to dismiss calls for greater international action on Sri Lanka, saying that it is committed to a domestic process to deliver reconciliation and justice. But how could a government which has repeatedly promoted individuals credibly accused of mass atrocity crimes to senior positions deliver a credible accountability process?

Senior figures in the Sri Lankan Government, from the President to the Defence Secretary, have repeatedly said that they will protect the military from prosecution for crimes. Proposed changes to the Constitution and political interference in the judicial process confirm that the domestic courts in Sri Lanka will not be able to deliver justice to victims and survivors.

In this context it is disappointing that member states have not already rejected the proposals for a new domestic process, although the Core Group on Sri Lanka have highlighted the failure of previous domestic processes.

Victims and survivors have already been waiting more than ten years for justice. It is important that the international community does not continue to give Sri Lanka the benefit of the doubt indefinitely. Delays in the few cases that are before the courts and the pardon of Ratnayake show that the domestic justice system is not capable of delivering justice alone.

The international community have an opportunity at the next HRC session in March to take strong action and must ensure that Sri Lanka remains on the agenda through regular monitoring and reporting. An important step to demonstrate the international community’s commitment to accountability will be to establish an international mechanism to build and preserve evidence of atrocity crimes until such time as perpetrators can be brought to trial.

Concerned governments should also take steps to review their bilateral engagement with Sri Lanka. They should ensure that any engagement does not undermine their credibility on pushing for accountability and avoid engaging with individuals credibly accused of involvement in mass atrocity crimes and gross human rights violations. It is particularly important that states review their relationship with the Sri Lankan military and stop engaging with a military that enjoys total impunity.

If you haven’t already, please sign our petition calling on the UK government to review their relationship with the Sri Lankan military and withdraw the Defence Advisor.

More information on our proposals for an international evidence gathering mechanism for Sri Lanka and other steps the international community should take can be found in our report, A Decade of Impunity.

In depth analysis:

The session opened with the High Commissioner’s oral update on human rights. This is the last session of the Council before the critical session in March 2021 when the current resolution on Sri Lanka – HRC 40/1 – expires.

In her update, the High Commissioner for Human Rights raised strong concerns about the Government of Sri Lanka reneging on its commitments to the HRC. She highlighted key developments, including the pardon of former sergeant Sunil Ratnayake, the appointment of military officials credibly accused of mass atrocity crimes to civilian positions, and attempts to stall and stifle the investigation of such crimes.

The High Commissioner called on the Council “to give renewed attention to Sri Lanka”.

Yet the High Commissioner’s plea for action may be overlooked if member states accept the narrative put forward by the Government of Sri Lanka. It claims to be committed to achieving reconciliation, accountability and human rights through a “domestically designed and executed process.”

Here are three reasons why the international community should not take the Government of Sri Lanka’s promises of a domestic process seriously:

Individuals credibly accused of mass atrocity crimes occupy key positions in the government

Serving and ex-military officers who are credibly accused of involvement in mass atrocity crimes and gross human rights violations during the war occupy key positions with the administration. Kamal Guneratne and Shavendra Silva are two key examples – both are named in the UN Office of the High Commissioner of Human Rights Investigation on Sri Lanka (OISL) report and are credibly accused of mass atrocity crimes during the final stages of the war in 2009.

Retired Major General Kamal Guneratne currently holds the powerful position of Secretary of Defence at a time when the Defence Ministry has spread its hold over more and more areas of government. Since Guneratne was appointed last year, the Defence Ministry has taken over responsibility for monitoring the activities of NGOs, immigration and emigration, and the Department of Archaeology.

Lieutenant General Shavendra Silva is the Commander of the Army and Acting Chief of Defence Staff – the highest position in the Sri Lankan military. He has been leading Sri Lanka’s coronavirus response as the head of the National Operation Centre for the Prevention of Covid-19 Outbreak.

Both Silva and Guneratne have been given prominent roles on a number of the Presidential Task Forces set up by President Gotabaya Rajapaksa since his election in November, including the controversial Task Forces on national security and archaeology in the Eastern Province.

Repeated promises to protect the military from prosecution

The current government in Sri Lanka has repeatedly rejected accountability for any crimes by state agents, promising to protect ‘war heroes’.

The President’s pardon of former sergeant Sunil Ratnayake in March demonstrated the President’s commitment to protecting the military. Ratnayake was one of the few Sri Lankan state actors ever convicted for serious human rights violations, and his pardon was described by the UN High Commissioner for Human Rights as “an affront to victims”.

Reinforcing the sense that the government will protect the military from facing justice, in response to the High Commissioner’s statement at the Human Rights Council last week, the Sri Lankan statement explicitly rejected all allegations against senior military officials as “false and unsubstantiated”.

Political interference with the justice process

Senior investigators in the police responsible for investigating high profile cases of human rights violations by state actors were side-lined shortly after President Gotabaya Rajapaksa took office in November last year. One of the key investigating officers fled to Switzerland with his family after receiving death threats, while Shani Abeysekara, who had been Director of the Criminal Investigation Department (CID), was transferred away from the investigation. He was recently arrested on a charge of fabricating evidence. A former CID official informed the Magistrate that he was coerced by officers of the Colombo Crime Division to falsely implicate Abeysekara.

The draft 20th Amendment which has been placed before the Sri Lanka Parliament will seriously undermine the independence of the judiciary. Under the proposed amendment, the President will directly appoint the most senior judges in the country – the Supreme Court and the Court of Appeal. A group of Commonwealth Associations representing judges, magistrates, lawyers, and journalists, said that the proposed amendment was “contrary to the rule of law and the basic tenets  of the principles of the separation of powers.”