Feb 22, 2021 | News
The ICJ has joined 21 other organizations to urge the Member States of the Human Rights Council to pass a strong resolution at the 46th Session, affirming an international commitment to protect human rights and justice in Sri Lanka.The letter reads:
To the Member States of the Human Rights Council
We, the undersigned organizations, urge the Member States of the Human Rights Council to pass a strong resolution at the 46th Session, affirming an international commitment to protect human rights and justice in Sri Lanka, with a particular focus on victims. The deteriorating human rights and accountability context in Sri Lanka is documented in detail in the High Commissioner for Human Rights’ damning January 2021 report as well as a joint assessment released by ten UN Special Procedures mandates earlier this month. The High Commissioner highlighted that “nearly 12 years on from the end of the war, domestic initiatives for accountability and reconciliation have repeatedly failed to produce results.” Just as concerning, the High Commissioner stressed the emergence of “early warning signs of a deteriorating human rights situation and a significant heightened risk of future violations.” Given the Government of Sri Lanka’s failure to comply with the State’s human rights obligations and implement agreed-upon accountability efforts and the need for urgent preventative action, it is essential that a new resolution detail immediate, concrete, and independent international efforts, including enhancing monitoring by the Office of the UN High Commissioner for Human Rights (OHCHR), creating an independent international mechanism to collect and preserve evidence of past and ongoing violations and abuses, and prioritizing support to civil society initiatives.
Multiple UN bodies and dozens of civil society organizations have documented grave human rights violations and abuses in Sri Lanka. The 26-year war between the Government and the Liberation Tigers of Tamil Eelam (LTTE) witnessed serious violations – including allegations of war crimes and crimes against humanity – by both parties. The toll on civilians was particularly high in the final stage of the conflict, when tens of thousands of Tamil civilians were killed, primarily by Government forces’ shelling of “No Fire Zones.” Following the end of the war, the country remained over-militarized and human rights abuses continued, including extrajudicial killings, enforced disappearances, arbitrary detention, torture, sexual violence, and harassment and persecution of journalists, activists, and government critics. Sri Lanka’s Tamil and Muslim populations have disproportionately suffered from these continuing violations and abuses, as they face institutionalized discrimination and higher levels of targeted state-sponsored violence.
Sri Lanka’s domestic accountability efforts have failed. As noted by the High Commissioner, numerous commissions of inquiry established by successive governments have “failed to credibly establish the truth and ensure accountability” and domestic investigations have failed to bring “a single emblematic case . . . to a successful conclusion or conviction.” Furthermore, despite co-sponsoring HRC Resolution 30/1 in 2015, which provided a comprehensive roadmap of measures to ensure justice and accountability, the Government of Sri Lanka “remains in a state of denial about the past, with truth-seeking efforts aborted and the highest State officials refusing to make any acknowledgment of past crimes.” The High Commissioner highlighted how “the failure to deal with the past continues to have devastating effects on tens of thousands of survivors.”
In the past year, prospects for domestic justice and accountability efforts in Sri Lanka have dimmed entirely. Gotabaya Rajapaksa – the former Secretary to the Ministry of Defense who oversaw the brutal end to Sri Lanka’s war – was elected President in November 2019. As one of its first acts on the international stage, the new Rajapaksa administration announced its withdrawal from HRC Resolution 30/1, part of a series of steps that led the High Commissioner to conclude that “[t]he Government has now demonstrated its inability and unwillingness to pursue a meaningful path towards accountability for international crimes and serious human rights violations.” The Government has also “proactively obstructed or sought to stop ongoing investigations and criminal trials to prevent accountability for past crimes,” promoted credibly accused war criminals, increased militarization of civilian institutions, reversed Constitutional safeguards, increasingly employed and promoted majoritarian and exclusionary rhetoric, increased surveillance and obstruction of civil society, and exacerbated human rights concerns.
In a joint assessment released earlier this month, ten UN Special Procedures mandates echoed the High Commissioner’s concern that the human rights and accountability context had further regressed in Sri Lanka, concluding, “[t]here is little hope that any domestic accountability measures will progress or achieve any degree of credibility.” They emphasized the “extremely disheartening” fact that their conclusions echo those of UN experts in 2009, who found “impunity has been allowed to go unabated throughout Sri Lanka. The fear of reprisals against victims and witnesses, together with a lack of effective investigations and prosecutions, has led to a circle of impunity that must be broken.” We share the High Commissioner’s and Special Procedures’ concerns that continued reliance on the Government of Sri Lanka to improve human rights and accountability will prove futile and dangerous. As both history and recent events in Sri Lanka have shown, if left unchecked, the Government will be emboldened to continue its abuses and further entrench impunity.
Given Sri Lanka’s long history of violations and failed domestic efforts to advance justice, and the warning signs of increased future abuses, it is critical that the Human Rights Council pass a strong resolution affirming its commitment to meaningful justice and accountability for serious human rights violations and abuses and crimes under international law in Sri Lanka. We join the High Commissioner and Special Procedures mandates in calling on Member States to pass a new resolution that strengthens the High Commissioner’s monitoring and reporting on Sri Lanka, prioritizes support to civil society initiatives assisting victims and their families, and establishes and supports a dedicated capacity to collect and preserve evidence. The dedicated capacity should come in the form of an independent international investigative mechanism. We also join the High Commissioner’s call for Member States to pursue alternative avenues for accountability and justice, including “taking steps towards the referral of the situation in Sri Lanka to the International Criminal Court,” the pursuit of “investigation and prosecution of international crimes” in national courts using extraterritorial and universal jurisdiction, and the imposition of targeted sanctions, including asset freezes and travel bans against State officials accused of grave human rights violations.
A strong resolution with concrete action by the Human Rights Council and UN human rights bodies will not only signal to the Government of Sri Lanka that continuing impunity and abuses are not acceptable, but will also affirm for survivors that the United Nations is committed to securing justice for the harms they experienced.
The text of the letter and the list of signatories is available here.
Jan 23, 2021 | News
The ICJ stated today that a newly appointed Commission of Inquiry tasked to review reports on past human rights and humanitarian law violations was unlikely to bring justice to victims of conflict era atrocities.
On 21 January 2021, Sri Lankan President Gotabaya Rajapaksa appointed a three-member Commission of Inquiry (CoI), headed by sitting Supreme Court Judge A.H.M. Nawaz to assess the findings and recommendations of preceding CoIs and Committees on human rights violations, serious violations of international humanitarian law and other such serious offences.
“Sri Lanka has an appalling track record on accountability in relation to toothless inquiry mechanisms.” said Ian Seiderman, ICJ’s Legal and Policy Director. “the tendency to set up these kinds of processes just ahead of sessions the UN Human Rights Council raises the suspicion that the announcement is targeted to deflect robust action by the Council beginning next month”
Sri Lanka is due to be taken up at the 46th session of the UN Human Rights Council on 24 February 2021, where the UN High Commissioner for Human Rights will present her report on Sri Lanka’s implementation of Council Resolution 30/1.
The decision to set up this COI was first announced in February 2020, by the Minister of Foreign Affairs at the 43rd Session of the UN Human Rights Council when he declared the Government’s withdrawal of support for the process under Resolutions 30/1, 34/1 and 40/1.
The Commission is tasked with the responsibility of identifying the “manner in which the recommendations have been implemented so far in terms of the existing law and what steps need to be taken to implement those recommendations further in line with the present Government policy.” It has been given a six-month mandate.
COIs and similar bodies established by successive Sri Lankan governments have been ineffective and deeply deficient in terms of their mandate, functions and independence. As the ICJ has previously documented, such mechanisms have largely been partisan mechanisms for punishing political opponents or for shielding perpetrators and institutions from responsibility.
The ICJ called upon the UN High Commissioner for Human Rights and the Member States to acknowledge the Sri Lankan Government’s categorical inability and unwillingness to ensure accountability domestically and urges the Council to explore viable international alternatives to ensure justice for victims of gross human rights violations.
Contact
For questions and clarifications, please contact Osama Motiwala, Communications Officer – osama.motiwala(a)icj.org
Jan 14, 2021 | News
The ICJ today deplored the comprehensive failure of the Sri Lankan authorities to ensure accountability for conflict-era crimes, marked by the dropping of charges and release of all five accused in the Joseph Pararajasingham murder trial.
Parliamentarian Joseph Pararajasingham was killed by unidentified gunmen on 25 December 2005 while he attended Christmas mass at the Batticaloa St. Mary’s Cathedral, in the Eastern Province of Sri Lanka. Eight other people, including his wife, were injured during the firing.
Yesterday, the Batticaloa High Court acquitted and ordered the released of all five accused, including former-LTTE cadre and now-Member of Parliament, Sivanesathurai Chandrakanthan alias ‘Pillaiyaan’, in the trial of Pararajasingham, a former Tamil National Alliance Parliamentarian. The judgment was delivered after the Attorney General’s Department (AG) informed the Court that it would not proceed with the prosecution. The AG provided no reason publicly for this decision.
“The shelving of this case five years after it began, is a blow to the victims of this serious human rights atrocity.” said Ian Seiderman, ICJ’s Legal and Policy Director.
“This constitutes yet another marker of Sri Lanka’s consistent failure to hold accountable perpetrators of serious conflict-era crimes,” he added.
In November 2020, the AG had informed the Batticaloa High Court that he intended to proceed with the case, notwithstanding the Court of Appeal deemed inadmissible important evidence of the prosecution’s case.
The UN Office of the High Commissioner on Human Rights Investigation on Sri Lanka (2015) had already concluded that “there are reasonable grounds to believe that the Karuna Group (of which Chandrakanthan was a member) killed Joseph Pararajasingham, and that it was aided and abetted by security and army personnel.”
The acquittal in Pararajasingham’s murder case follows that of another Tamil Parliamentarian Nadarajah Raviraj, where an all-Sinhalese jury acquitted five persons including three Navy intelligence officers in December 2016, a decade after his murder.
The UN High Commissioner for Human Rights identified both these cases, in which no progress had been made, emblematic of Sri Lanka’s dismal record on accountability.
The ICJ called on the Attorney General’s Department to reopen fresh investigations into the murder of the deceased legislator so as to ensure justice and justice for the victims of this atrocity.
The ICJ notes that the Attorney General maintains the dual role of public prosecutor and as attorney for the State, positions which are prone to come into tension. The former UN Special Rapporteur on the Independence of Judges and Lawyers, Monica Pinto, following her mission to Sri Lanka in 2016 observed that “there is a general perception that, first and foremost, the [Attorney General’s] department defends the interests of the government and not the public’s interest.”
Background
Sivanesathurai Chandrakanthan who broke away from the Liberation Tigers of Tamil Eelam (LTTE) in 2004, functioned as a paramilitary, in support of the then-Rajapaksa Government. He is presently the leader of Tamil Makkal Viduthalai Pulikal (TMVP), a political party aligned to the Government and was voted into Parliament at the 2020 General Elections.
Investigation into the killing only began in 2015, after a new government was formed following elections which saw the defeat of Rajapaksa. Chandrakanthan was taken into remand custody on 11 October 2015 when he arrived at the Criminal Investigation Department to record a statement in relation to the assassination of the late Tamil politician. The Attorney General indicted that Chandrakanthan (who was 3rd accused) in the High Court of Batticaloa for offences committed under the Penal Code and the Prevention of Terrorism Act. He was granted bail for the first time in November 2020 after the primary evidence against the accused was deemed inadmissible by the Court of Appeal. The case was fixed for January 11 only after the AG informed courts he intended proceeding with the case notwithstanding the Appeal Court ruling.
Contact
Osama Motiwala, ICJ Communications Officer, Asia & Pacific programme, e: osama.motiwala(a)icj.org
Dec 2, 2020 | News
The ICJ today called upon the Sri Lankan authorities to conduct a prompt, thorough and impartial investigation into the events involving the use of lethal force by prison guards at Mahara prison on 29 and 30 November, which left at least nine inmates killed and over hundred others injured.
The action by the guards was taken in response to unrest resulting from protests by inmates over unsafe and overcrowded conditions in the context of the COVID-19 pandemic.
The ICJ also called for urgent measure to address the unsafe conditions in Sri Lankan prisons to protect the right to health and life, including where necessary by releasing detainees.
“The tragic events of Mahara prison are a consequence of the failure of the Sri Lankan authorities to effectively address the situation of prison conditions, which has turned into a full blown human rights and public health crisis in the wake of the COVID-19 pandemic”, said Ian Seiderman, ICJ Legal and Policy Director
The unrest was the culmination of a series of protests staged by the prisoners demanding an increase in coronavirus testing and new isolation facilities for infected prisoners. According to Senaka Perera, President of the Committee for Protecting the Rights of the Prisoners, around 200 inmates of the Mahara prison have been infected with COVID-19.
While the Minister of Rehabilitation and Prison Reforms and the Inspector General of Police have instructed the Criminal Investigation Department to probe the unrest caused at the Mahara Prison, the Minister of Justice has formed a separate five-member committee, chaired by former High Court Judge Kusala Saorini Weerawardena, to conduct its own investigation.
The ICJ recalls that under international law, the use of lethal force by State authorities is only permissible where strictly necessary to protect life. This standard should govern any investigation, and those responsible for unlawful conduct resulting in death or injuries to prisoners must be held to account.
“In addition to ensuring accountability and redress for any violations at the Mahara Prison, the authorities must act swiftly to meet the legitimate grievances of detainees throughout the country”, added Ian Seiderman.
“An effective response is not optional, but is necessary to fulfill the State’s legal obligation to provide for equal access to healthcare and health services to prisoners, who are among the most vulnerable to the ravages of COVID-19 in highly unsafe, enclosed and overcrowded environments.” Seiderman added.
The incident follows a wave of similar protests in several other prisons in the country. On 18 November, five inmates who were under quarantine at the Old Bogambara Prison attempted to break out and an inmate was shot dead when the prisoner officers opened fire at the fleeing inmates.
The ICJ called for the release of detainees who are particularly at risk of losing their life or suffering severe health effects from COVID-19. This would also apply to other convicts who could be released without compromising public safety, such as those sentenced for minor, non-violent offences.
Background
Speaking in Parliament on Monday, Minister of Rehabilitation and Prison Reforms Dr. Sudharshini Fernandopulle stated that the Government has taken steps to reduce overcrowding by directing COVID-19 positive prisoners out of the prisons to the Welikanda Hospital and moving all women inmates to the Kandakadu Rehabilitation Centre. She also stated that a mechanism has been put in place to obtain bail for those arrested for minor drug offences. Moreover, a presidential pardon has been granted to over 600 convicts of minor offences who were in remand due to their inability to pay the required fine.
Several UN bodies, including the WHO and OHCHR, came together in recommending that States consider limiting the deprivation of liberty including pretrial detention, to a measure of last resort and enhance efforts to resort to non-custodial measures.
Contact
Osama Motiwala, Communications Officer – osama.motiwala(a)icj.org
Oct 27, 2020 | News
The ICJ today condemned the adoption of amendments to the Sri Lankan Constitution, which serve to expand the powers of the President, while encroaching on the powers of the parliament and courts.
The 20th Amendment to the Constitution was passed into law on 22 October, with 156 of the 225 parliamentarians voting in favour of the amendment, after a mere two-day debate, overruling the Opposition’s request for at least four days of deliberation.
The ICJ noted that the Amendment undoes most of the reforms brought about by the 19th Amendment adopted only in 2015. Critically, it introduces judicial appointment procedures which are incompatible with principles of the justice by reintroducing the Parliamentary Council, consisting only of political actors.
That body serves to merely advise the President, regarding appointments to the judiciary and other key public institutions.
The 20th amendment gives the President sole and unfettered discretion to appoint all judges of the superior courts. Under international standards, appointments to the judiciary should not be vested solely with the executive.
Given the gravity of the constitutional changes, the ICJ expressed regret that the Government had suspended Standing Order 50 (2), which requires every bill to be referred to the relevant Sectoral Oversight Committee for consideration prior to being debated in parliament.
“It is appalling that Constitutional amendments with such far reaching consequences on the constitutional governance of the country were rushed through in such haste, especially at a time Sri Lanka battles with its largest COVID-19 outbreak to date,” said Ian Seiderman, ICJ’s Legal and Policy Director.
The ICJ welcomes the alteration made to some of the problematic provisions of the 20th Amendment Bill during Committee Stage, particularly in relation to presidential immunity and the time period within which the president can dissolve Parliament.
The ICJ nonetheless is particularly concerned with the decision of the Minister of Justice to introduce entirely new provisions at Committee Stage, particularly in relation to the increase of the number superior court judges. The Supreme Court Bench will be increased from 11 to 17 and Court of Appeal from 12 to 20. These substantive amendments were not part of the gazetted 20th Amendment bill, the provisions of which were challenged before the Supreme Court by as many as 39 petitioners.
“While an increased number of judges may reduce court delays and expedite the judicial process, introducing substantive amendments such as this at Committee Stage is problematic at multiple levels,” Seiderman added.
“Sneaking in substantial changes at the last stage of the legislative process where there is no opportunity for public comment or judicial review is not consistent with democratic processes under the rule of law.”
