Human Rights and Alliance of Civilizations Room Palais des Nations Jess Hoffman UN Photo public domain

Hope for Sri Lanka at the Human Rights Council?

February 24, 2021 Sri Lanka Campaign Comments Off

As the Human Rights Council opens its 46th session, member states have the opportunity to shape and vote on a new resolution on justice and accountability in Sri Lanka. In January, the Office of the High Commissioner for Human Rights (OHCHR) released a damning report on the human rights situation in Sri Lanka, in light of the expiry of Resolution 30/1 and the ongoing deterioration of the situation and more than a decade of impunity since the end of the civil war.

The report highlighted the militarisation of civilian government functions, reversal of constitutional safeguards, political obstruction of accountability for crimes and human rights violations, majoritarian and exclusionary rhetoric, surveillance and intimidation of civil society, and new and exacerbated human rights concerns.

This session at the HRC is a crucial turning point for Sri Lanka and the human rights defenders on the ground, as well as survivors of the war and families of the disappeared waiting for justice for over a decade. Read our analysis of the OHCHR report and recommendations for member states in the coming weeks at the Human Rights Council session below. 

Read our latest report – Reversing Progress: Threats to Human Rights and Reinforced Impunity in Sri LankaThe report is the last of our Keep the Promise series, assessing whether the government of Sri Lanka has kept its promises to survivors and the international community to address the legacy of the island’s brutal civil war. We found that over the last year, the government has reversed progress on 15 of the 25 promises and halted progress on a further 7 commitments. Only three have not been reversed or halted.

Systemic and longstanding issues

The High Commissioner’s report brings welcome attention to the systemic nature of issues of human rights violations and impunity in Sri Lanka. Repeatedly it emphasises “persistent,” “longstanding,” and “endemic” patterns in the lack of progress in emblematic cases, arrests and detention under the Prevention of Terrorism Act, and the appointment of military personnel to civilian positions in government. New concerns, such as the passage of the 20th Amendment to the Constitution, and its effect in vastly expanding the scope of Presidential powers at the expense of other branches of government, are placed within the context of over a decade of developments. Similarly, the report links the violence in Sri Lanka to the long history of discrimination and marginalisation of minority communities, especially Tamils, and the cycles of conflict and impunity upheld by this.

Lack of action from the international community feeds the government’s confidence in its license to act with impunity, while government officials continue to deny war crimes took place and promise to protect soldiers and allies from prosecution. The Rajapaksas have overseen the increasing marginalisation of Tamils and Muslims and orchestrated discriminatory policies against them as well as crackdowns on any and all dissent in the country. The High Commissioner emphasises that the failure to deal with the past is likely to lead to repeated atrocities in the future, highlighting the many problems Sri Lankan communities are facing today and the refusal of officials to make any acknowledgement of past crimes.

“The failure to deal with the past continues to have devastating effects on tens of thousands of survivors – spouses, parents, children and other relatives – from all communities who continue to search for the truth about the fate of their loved ones, to seek justice and are in urgent need of reparations. The failure to advance accountability and reconciliation…carried the seeds of repeated patterns of human rights violations and potential conflict in the future.” – Report of the Office of the High Commissioner for Human Rights: Promoting Reconciliation, Accountability and Human Rights in Sri Lanka

Strong recommendations and the options to pursue them 

The High Commissioner makes strong and urgent recommendations to the Government of Sri Lanka, member states of the Human Rights Council, and the UN. Crucially, the High Commissioner points out that no promise of a domestic accountability process can be taken seriously. This is a key point which civil society, internationally and in Sri Lanka, and victim-survivor communities want the international community and the Human Rights Council to remember as they meet: the Council cannot lend its support to domestic initiatives when the government has shown blatantly its “inability and unwillingness” to make meaningful progress through domestic mechanisms. 

Gotabaya Rajapaksa and Shavendra Silva, public domain, GoSL
Gotabaya Rajapaksa and Shavendra Silva, public domain, GoSL

The High Commissioner makes seven recommendations to the Human Rights Council and member states, including mandating enhanced monitoring of the situation in Sri Lanka and regular reporting to the Council. Given the stark warnings the High Commissioner issues in this report, it is essential that Sri Lanka remains on the agenda of the HRC. Under the previous Rajapaksa government, international attention and pressure arguably provided limited protection to Sri Lankan activists. 

The High Commissioner calls on the Council to support “a dedicated capacity to collect and preserve evidence.” Such an evidence gathering mechanism would build on the work of previous UN investigations to gather, preserve, and analyse evidence for future investigation and prosecutions. Since there is little prospect of these investigations happening in Sri Lanka at present, the mechanism would support investigations by a future international accountability mechanism or in other states with competent jurisdiction. 

In that spirit, the High Commissioner also calls on states to proactively investigate and prosecute international crimes under the accepted principles of extraterritorial and universal jurisdiction as well as “taking steps towards the referral of the situation in Sri Lanka to the International Criminal Court.” The principle of universal jurisdiction means that states can prosecute individuals for some crimes in international law even when the crimes took place in a different state. The call to apply the principles of universal jurisdiction is not new – the High Commissioner also encouraged states to prosecute credibly accused Sri Lankans in her February 2019 report. However, there are significant barriers to these cases, including the need to arrest the suspect while they are present in the state pursuing the case. A dedicated evidence gathering mechanism would provide important support to such efforts. Despite the barriers to pursuing universal jurisdiction cases, there is a precedent in the case of former commander Gen. Jagath Jurisuriya. When Sri Lanka sent Jayasuriya to Brazil as a diplomat, cases were filed against him in Brazil and Colombia on the basis of his individual criminal responsibility for war crimes committed by units under his control in the final stages of the war. Jayasuriya fled back to Colombo before he could be arrested, but the incident shows perpetrators of human rights violations in Sri Lanka that the consequences of their actions can follow them around the world. 

The High Commissioner also recommends that member states consider applying targeted sanctions against credibly accused perpetrators. Targeted sanctions have already been employed by the US State Department which designated Shavendra Silva in 2020 on the basis of his credible involvement in mass atrocity crimes. In 2020, the UK launched its new Global Human Rights Sanctions Regime, under which it can place sanctions on individuals for human rights violations. Canada, the US, the EU, and several other states in Europe have set up similar schemes, though Silva remains the only Sri Lankan publicly sanctioned so far. States should also carefully consider other tools such as economic leverage, including through trade agreements like the EU’s GSP+ scheme, to apply pressure on Sri Lanka to improve human rights and tackle impunity. 

Finally, the High Commissioner recommends that states apply stringent vetting procedures to Sri Lankan police and military personnel identified for training – particularly of interest in the UK context given the recent renewal by Police Scotland of their training contract in Sri Lanka, and the reinstatement of a resident Defence Advisor in Colombo by the UK government in 2019. There is a need for all states to examine carefully their relationships with the unaccountable Sri Lankan military and apply strict vetting procedures to ensure they are not providing training to those accused of human rights violations or inadvertently legitimising credibly accused individuals through joint working and diplomatic meetings, including Army Commander Shavendra Silva. The High Commissioner also calls on the UN to review its relations with the Sri Lankan military, particularly in relation to peacekeeping; the UN said in 2019 that Sri Lankan troops would be banned from peacekeeping missions “unless deemed necessary,” yet data shows that the number of Sri Lankan troops deployed on peacekeeping missions has not fallen since the suspension.

Gaps in the High Commissioner’s report 

Having welcomed the strong conclusions and recommendations laid out in the High Commissioner’s report, it is also important to highlight the gaps and under-examined issues as member states decide what action to take on Sri Lanka.

In its comments on militarisation, the report focuses mostly on the militarisation of civilian government functions and the appointment of former military officers to key government positions. However, the report does not examine the deeper effect of militarisation on civilian life in the North and East of the country, where there is deep fear of the military. The significant military presence in the North and East, where the army is intricately involved in civilian daily life, remains a major barrier to reconciliation and the restoration of normal civilian life for war-affected communities. 14 of 21 of the Sri Lankan Army’s divisions are today stationed in the Northern Province, increasing mistrust and fear among Tamil communities, while there are reports of increasing numbers of checkpoints there. The military encroaches on all aspects of civilian life, including education. The army website recorded 351 occasions where troops visited schools between January 2018 and December 2019, three-quarters of these activities taking place in the Tamil-majority North and East. As the Sri Lanka Campaign’s recent report highlights, this involvement in education activities appears specifically designed to facilitate social control and surveillance of the Tamil population. The effect of militarisation on the country is not equally targeted across the country, but rather is focused on Tamil-majority areas.

Again, it is welcome that the High Commissioner’s report calls for a “strong gender focus in the reparations program, given that many victims and survivors are women,” but the report gives little detail on the ways in which women are disproportionately affected by the failure of transitional justice and reconciliation. Gender inequality is a major barrier to reconciliation. Sexual bribery and harassment of women are reported to be widespread, yet the stigma on women who experience it makes it harder to address openly. Widows can be ostracised from their communities and may be especially vulnerable to harassment, a problem particularly in the North, where many households are headed by women who lost their husbands in the war. Women make up large numbers of the activists among the families of the disappeared, and are at the forefront of demanding justice since the war in Sri Lanka, facing surveillance and harassment. The problems women face are under-researched and under-reported, and therefore not addressed adequately, if at all, in actions for reconciliation.

The High Commissioner makes reference to the marginalisation of Muslims and the toll the forced cremations policy has taken, yet makes no recommendation on forced cremation or on promoting freedom of religion. Anti-Muslim hate speech and scape-goating in Sri Lanka has been on the rise since the Easter Bombings in 2019. The Prevention of Terrorism Act has been used to target and arbitrarily detain hundreds of Muslims and Islamophobia was particularly evident in the government and media response to COVID-19. Forced cremations are still government policy despite World Health Organisation guidelines permitting burial, creating great pain and fear among Muslim communities. Member states and the High Commissioner must address the targeting of Muslims as they consider what action to take on Sri Lanka. 

Finally, the High Commissioner makes no reference to the issue of memorialisation, although memorialisation is a key aspect of any transitional justice process. INFORM, a human rights NGO in Sri Lanka, reported severe restrictions of memorial events in May 2020 marking the eleventh anniversary of the end of the war. Organised commemorations of Maaveerar Naal in November were banned by several district courts and there were reports of state intimidation of Tamils marking the remembrance day, even in private homes. In January 2021, authorities demolished the Mullivaikkal Memorial in Jaffna University as protesting students were intimidated by security forces. Attempts by the state to prevent the Tamil community from memorialising their dead are an encroachment on their rights to freedom of expression and show the lack of willingness of the Sri Lankan government to implement reconciliation and transitional justice.

Going forward with a resolution

The damning report from the High Commissioner, and the report from Special Procedures released shortly after, show that this is an urgent turning point with regards to human rights and accountability in Sri Lanka. As the High Commissioner states, the very credibility of the UN is at stake in its approach to mass atrocities in Sri Lanka and its responsibility to protect. The Sri Lankan government has made it very clear that no domestic process will bring justice and accountability in the long term.

Meanwhile, there are pressing issues for marginalised communities and human rights defenders in the short term – like Prevention of Terrorism Act arrests and detentions, harassment and surveillance of NGOs, and the forced cremations of COVID-19 victims – which the international community must address urgently. Having encouraged victims and survivors to engage with UN mechanisms and speak out on accountability over the last six years, the international community now has a responsibility to protect those who are at risk of reprisals. 

We therefore urge member states to: 

1 – Support a strong resolution on Sri Lanka which takes account of the High Commissioner’s recommendation.

2 – Denounce the crackdown on civil society and call on the government to immediately halt attempts to intimidate and harass activists, journalists, and victim groups, especially the families of the disappeared.

3 – Heed the High Commissioner’s recommendations to immediately review all forms of bilateral engagement with Sri Lanka, including in the spheres of aid, trade, and security cooperation, to:

— Ensure that Sri Lankan officials accused of grave human rights violations are deprived of political and material support – and consider the use of targeted sanctions, travel bans, and asset freezes against the most problematic individuals.

— Halt engagement with Sri Lanka’s armed forces and police without meaningful security sector reform, including the removal of individuals credibly accused of human rights violations including enforced disappearances, sexual violence, and torture.

Read our latest report – Reversing Progress: Threats to Human Rights and Reinforced Impunity in Sri LankaThe report is the last of our Keep the Promise series, assessing whether the government of Sri Lanka has kept its promises to survivors and the international community to address the legacy of the island’s brutal civil war. We found that over the last year, the government has reversed progress on 15 of the 25 promises and halted progress on a further 7 commitments. Only three have not been reversed or halted.