Sri Lanka: criminal justice reform needed to overcome challenges to accountability for human rights violations

Mar 30, 2017

Sri Lanka’s criminal justice system must undergo serious reform in line with international human rights standards in order to provide justice for victims of human rights abuses, the ICJ said in a discussion paper released today.

In a discussion paper titled Challenges to Accountability for Human Rights Violations in Sri Lanka: A Synopsis of Findings from a Meeting with Lawyers and Human Rights Defenders in Colombo, November 2016, the ICJ has identified priorities for action raised by Sri Lankan lawyers and human rights defenders during a workshop on accountability for human rights violations and abuses held in Colombo, Sri Lanka, in November 2016.

“After decades of undue political interference with judicial institutions by authoritarian regimes, the Sri Lankan criminal justice system as a whole has been weakened and is simply not equipped with the capacity or will to adequately pursue accountability for gross human rights cases,” said Nikhil Narayan, South Asia Senior International Legal Adviser for the ICJ.

“It is crucial that Sri Lanka embarks on real systemic reform of the criminal justice system, both legal and administrative, to strengthen its ability to deal with human rights violations and reverse the deteriorating public faith and credibility in the justice sector,” he added.

The issues raised by participants during the workshop in November 2016 echoed many of those identified in the ICJ’s prior studies, reflecting the ongoing and unaddressed systemic challenges that practitioners continue to face today, despite the change of government and perception that the adjudication of human rights cases is seamless.

This discussion paper highlights several key concerns raised by the participants, all of whom are human rights lawyers and defenders. These include:

• the public’s lack of faith in the criminal justice system anchored to the lack of will and ability to investigate, prosecute, and adjudicate human rights violations;
• the gaps in the legal framework to address serious human rights violations;
• questions as to the independence of State actors involved in the judicial system;
• undue delays in pending cases, the lack of functional independence and impartiality of the Attorney General’s Office; and,
• the poor processes and non-transparency in recent legal reform initiatives.

“Our workshop provided a stark reminder that, despite the end of the war nearly a decade ago, the same structural deficiencies in the criminal justice system that existed during the conflict continue to obstruct real justice and accountability for human rights abuses, both conflict-era and ongoing,” Narayan said.

“Particularly now, at a time when the Sri Lankan State at all levels is trying to convince both the domestic and international audience that the existing criminal justice system is sufficiently capable of adjudicating cases of gross human rights abuses stemming from the conflict as part of the transitional justice process, human rights lawyers and defenders in Sri Lanka have issued a counter-point to these claims,” he added.

The discussion paper concludes with the identification and prioritization of key strategies for criminal justice reform that could help address these challenges, including:

• Clarifying the role of the Attorney General’s Office, including strengthening its functional independence and impartiality;
• Strengthening the independence and impartiality of the judiciary;
• Strengthening the functional independence of the police;
• Incorporating gross human rights violations amounting to crimes under international law as specific offences in Sri Lankan law in line with international standards;
• Strengthening the functional independence and impartiality of independent constitutional commissions such as the Human Rights Commission of Sri Lanka and the National Police Commission, among others;
• Encouraging and supporting the Bar Association of Sri Lanka in taking a stronger public advocacy role on human rights and rule of law; and,
• Greater public awareness-raising of law reform initiatives.

Contact

Nikhil Narayan, South Asia Senior International Legal Adviser, e: Nikhil.narayan(a)icj.org

Background

The November 2016 workshop was the first of two colloquia to discuss ongoing challenges faced in promoting greater accountability for human rights violations and abuses through the Sri Lankan criminal justice system.

The second colloquium was held with Sri Lankan high court judges in Colombo in January 2017. The outcome of the judges’ colloquium will be published in a discussion paper next month.

The ICJ has previously published several reports, including in 2010 and 2012, documenting the deep politicization and capacity deficit of the Sri Lankan judiciary and criminal justice system in dealing with gross human rights violations and abuses.

Sri Lanka-FCO Accountability 1-Advocacy-Analysis brief-2017-ENG (full paper in PDF)

Nepal: revise the Criminal Code Bill to ensure accountability for serious human rights violations

Mar 29, 2017

Nepal’s draft Criminal Code Bill must be revised in line with international human rights standards in order to ensure justice for victims of serious human rights violations, the ICJ said in a briefing paper released today.

The ICJ is calling on Nepal’s Parliament to make significant changes to the draft before it adopts this important legislation.

In its briefing paper Serious Crimes in Nepal’s Criminal Code Bill, 2014 the ICJ has evaluated the Criminal Code Bill, 2014, which aims to update Nepal’s criminal law and codify new crimes.

The ICJ has concluded that a number of provisions of the Bill are not in accordance with Nepal’s international obligations.

“While the Criminal Code Bill makes a nod towards addressing impunity for gross human rights violations, the draft law falls well short of what Nepal needs to do to hold abusers accountable for the most serious crimes”, said Nikhil Narayan, South Asia Senior International Legal Adviser for the ICJ. “For instance, the bill fails entirely to include war crimes, crimes against humanity and genocide.”

“It is crucial that Nepal revise the Criminal Code Bill in line with international standards in order to ensure justice and accountability for victims of these grave offences,” he added.

The briefing paper identifies several key shortcomings of the Bill, including an inadequate definition of the crime of enforced disappearance and the inappropriate inclusion of a statute of limitation for filing complaint of enforced disappearance, which would necessarily lead to impunity.

In respect of the crime of rape, there were numerous shortcomings as to the definition, discriminatory provisions on penalties for marital versus non-marital rape, inadequate provisions for reparation to rape victims and inappropriate limitations periods for filing complaints of rape.

The ICJ previously analyzed Nepal’s Torture and Cruel, Inhuman or Degrading Treatment (Control) Bill, 2014, criminalizing torture and other ill-treatment, and in that briefing paper too found several provisions of the soon-to-be-enacted anti-torture law to be inconsistent with Nepal’s international legal obligations.

The ICJ briefing paper on the Criminal Code Bill is released at a time when the Legislative Committee of the Legislature-Parliament has approved the draft Bill based on its sub-committee report and intends to table the Bill before the Parliament for debate and vote in the coming weeks.

“Many of the serious human rights abuses that systematically occurred during Nepal’s decade-long armed conflict have still not been criminalized under the country’s domestic law, denying justice to the many victims of that conflict,” Narayan said.

“This Criminal Code Bill is an opportunity for the Government of Nepal to demonstrate its commitment to ending the culture of impunity in the country by promulgating a strong law that ensures justice and accountability for serious crimes in line with its international human rights obligations,” he added.

In its briefing paper, the ICJ has made several recommendations for revision of the Criminal Code Bill, including:

• Amending the definition of enforced disappearances in line with Nepal’s international obligations and the Convention on the Protection of All Persons from Enforced Disappearance (CED);

• Revising the penalty provisions in the Criminal Code Bill to comply with relevant provisions of the CED and other international standards;

• Removing the statute of limitations for enforced disappearance cases;

• Amending the provisions on rape and sexual violence to ensure that they are gender neutral, and that both perpetrators and victims can be male, female, or “third-gender”, as defined by the Supreme Court of Nepal;

• Maintaining consistent penalties for both marital rape and non-marital rape;

• Revising the penalty for rape to reflect the seriousness of the crime and the long-lasting damage suffered by the victim, in line with international standards; and,

• Including provisions criminalizing genocide, crimes against humanity and war crimes, in line with international law and standards.

Contact

Nikhil Narayan, South Asia Senior International Legal Adviser, e: Nikhil.narayan(a)icj.org

Sam Zarifi, Asia-Pacific Regional Director, e: sam.zarifi(a)icj.org

Nepal-Serious Crimes Bill-Advocacy-Analysis Brief-2017-ENG (full paper, in PDF)