The Commission of the European Communities concluded this week in a report that the government of Sri Lanka has not effectively implemented international human rights conventions, in particular the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC).
The report states that the government of Sri Lanka has taken the position that Sri Lanka has effectively implemented the three Conventions. Prior to the release of the report however, some agencies stated that the report would have recommendations but there have been none.
However, on the basis of the facts and information available, including relevant materials and information provided by the government (although outside the formal context of the investigations), the Commission has concluded that neither the ICCPR, the CAT nor the CRC, nor the legislation incorporating the obligations under these Conventions have been effectively implemented in Sri Lanka during the period covered by the investigation.
In 2005, Sri Lanka applied for and was granted GSP Plus benefits. Sri Lanka stated that it had ratified and effectively implemented all 16 human and labour rights conventions including the ICCPR, CAT and CTC. The report stated that the government gave an undertaking to maintain the enforcement of the conventions. It was stated that the legislation of Sri Lanka guaranteed the promotion and protection of human rights but that some of the derogable rights might be restricted by law only for specific purposes such as the interest of national security, racial and religious harmony and the national economy. In its 2008 application for renewal of GSP Plus treatment, the government stated that Sri Lanka had continued to show tangible progress in complying with the conventions in issue.
Findings
However, the findings in the report concluded that the police are unwilling or unable to investigate human rights violations. The criminal investigation system and the court system have proven inadequate at investigation human rights abuses. The NHRC (Human Rights Commission) is weakened, incapable of performing its role and has lost international recognition. The emergency legislations shield officials against prosecution.
So far as effective implementation in practice of the conventions is concerned, the report stated that evidence shows that unlawful killings, perpetrated by police, soldiers and paramilitary groups, are a major problem. While Sri Lanka has a strong record of adopting legislation to criminalize torture, in practice torture both by the police and the armed forces remains widespread. The powers of detention conferred by the emergency legislation have enabled arbitrary detention without effective possibility of review of the lawfulness of detention. There has been a significant number of disappearances which are attributable to state agents or paramilitary factions complicity with the government; hence Sri Lanka has failed to implement its obligation to prevent disappearances by State agents and other forces for which it is responsible.
Serious restrictions have been placed on freedom of movement, notably concerning the thousands of persons interned in IDP camps. Strong verbal condemnations by government representatives of journalists combined with a failure to take effective action to protect journalists against physical violence have undermined the right to freedom of expression. Child recruitment was a serious problem in the period 2005 to 2008.The government has taken important steps to address child recruitment and implement its zero tolerance policy. At present it is impossible to assess if these steps will be adequate. However, it is clear that during the period covered by the investigation child recruitment was taking place in government-controlled territory by the Karuna group/TMVP with at least the occasional involvement of government forces.
In this investigation, the Commission has reviewed a number of distinct aspects of effective implementation of the ICCPR, CAT and CRC. The Commission has conducted this review with a particular focus on those obligations which are amongst the most important and fundamental human rights obligations established in the three Conventions, and where in light of the information available to the Commission, most of the problems in effective implementation were concentrated.
The legal and institutional framework giving effect to the ICCPR, CAT and CRC is not sufficient to ensure effective implementation of all relevant obligations provided for by the three instruments. Some of the provisions of the Conventions have not been transposed in full while provisions in the domestic legislation are in some cases more restrictive than the corresponding provisions in the Conventions.
Domestic legislation also contains provisions which are not entirely in compliance with the Conventions. In particular, the emergency legislation overrides other current legislative provisions and imposes restrictions on human rights which are incompatible with the Conventions.
Probe
The report stated that immediately after adopting the decision initiating the investigation, the Commission received a note from the government of Sri Lanka dated 17 October 2008, stating that Sri Lanka ‘will not agree to be subjected to an investigation by the EC.’ In a note dated 20 October 2008, the Commission informed the government of the initiation of the investigation and invited it to cooperate in the investigation, reiterated in a further note dated 9 December 2008. Sri Lanka however made no submission in the context of the investigations during the four months submission period indicated in the notice.
The report stated that the government also made no submission in the context of the investigation prior to the conclusion of the investigation, although it provided some materials and information in the context of the ongoing political dialogue betweenthe European Commission and Sri Lanka.
In the conduct of the investigation the Commission was assisted by three independent external experts (retired Judge L. Sevon, Professor F. Hampson and Professor R. Wieruszewski) who were tasked to provide independent legal advice on the matters at stake in the investigations and in particular, on whether Sri Lanka is effectively implementing its obligations under the ICCPR, CAT and CRC. For this purpose, the experts were asked to undertake a thorough examination of the legal and factual situation with respect to Sri Lanka’s fulfillment of its human rights obligations and commitments under the three UN conventions.
According to the report, the investigation has focused on actions and measures taken by the Sri Lankan government and authorities and has not dealt with human rights violations committed by the Liberation Tigers of Tamil Eelam (LTTE) or any other group outside government control. The focus on the government’s actions must not be understood as disregarding or minimizing in any way the significance of human rights violations committed by the LTTE or any other group outside government control.
In addition to being responsible for the acts of State agents, the report said the State may also be held responsible or accountable for any other forces over which they exercise or could exercise effective or actual control. Accordingly, the acts of forces under ‘Colonel’ Karuna (the ‘Karuna group’) who defected to the government side in 2004, are in general attributable to the State from the start of the period under investigation. This applies also to other armed groups operating in government controlled areas. According to the report, the investigation has examined events and actions after the GSP Plus treatment was granted to Sri Lanka on 27 June 2005 and is based on materials and information available up to 16 September 2009.
In the context of conducting their assessment, the independent experts met and sought the views of several individuals with a particular knowledge of the issues under investigation, including some representatives of organizations which had made submissions to the Commission which had produced important analyses of the issues under investigation. The report stated that two briefing sessions were held in Geneva and London on 15-16 June and 24-25 June 2009 respectively.
Some participants in these briefings asked that their participation or remarks be kept confidential and hence not divulge due to, inter alia, personal security concerns. As such, the report said these elements have not been relied upon in the preparation of the findings. Some participants agreed to a non-confidential treatment of the information they provided and summary statements of their remarks, reviewed by the respective authors, have therefore been included in the non-confidential file of the investigation.
Effective Implementation and Compliance
Throughout the period in issue, the report stated that broad concern about the human rights situation in Sri Lanka has been expressed by a variety of credible sources, including United Nations (UN) special procedures and reputable NGO’s. These suggest that there are problems with the compliance by Sri Lanka with its human rights commitments. By way of illustrative example, on 5 September 2006 Philip Alston stated at the Human Rights Council that the situation in Sri Lanka has deteriorated since he visited at the end of 2005. Civilians were not simply caught in the crossfire of the conflict but rather were targeted for strategic reasons.
On 13 October 2007 Louise Arbour, UN High Commissioner for Human Rights, stated that in the context of the armed conflict and the emergency measures taken against terrorism, the weakness of the rule of law and the prevalence of impunity was alarming. There were a large number of reported killings, abductions and disappearances that remained unresolved. In the absence of more vigorous investigations, prosecutions and convictions, it was hard to see how this would come to an end. While Sri Lanka has much of the necessary human rights institutional infrastructure, critical elements of protection had been undermined or compromised.
The report stated that on 6 March 2008 Human Rights Watch issued a report which stated that the involvement of the security forces in ‘disappearances’ is facilitated by Sri Lanka’s emergency laws which grant sweeping powers to the army along with broad immunity from prosecution.
At the 2nd Session of the Universal Periodic review on 5 – 16 May 2008, the International Commission of Jurists noted that concerns had been raised regarding the functioning and independence of some of Sri Lanka’s state institutions. The capacity to protect human rights is limited by the longstanding climate of impunity, the dangerous security situation and the sheer scale of the crisis.
On 19 June 2008 the International Federation of Human Rights in its annual report stated that the human rights situation in Sri Lanka had deteriorated dramatically, especially in the Jaffna peninsula. Enforced disappearances, extrajudicial killings, recruitment of child soldiers, torture threat and in general, massive violations of human rights and war crimes had increased, resulting in a real climate of fear and insecurity throughout the country. In 2007, the government established a policy to discredit, almost systematically, human rights activities, particularly by accusing defenders of human rights being ‘supporters of the LTTE’, ‘traitors’ or ‘enemies of the State.’
The report further stated that in a statement of 26 May 2009 at the Eleventh Special Session of the Human Rights Council, on behalf of all Special Procedures mandate holders of the Human Rights Council, Ms. Magdalena Sepulveda, independent expert on the uestion of human rights and extreme poverty, reiterated the concern at the serious human rights situation in Sri Lanka and at the lack of transparency and accountability that accompanies the crisis. Weak institutional structures permitted impunity to go unabated. Those defending human rights did now have the space they need to do their important work without fear or reprisals.
On May 27, 2009, at the same session, Forum Asia stated that the deep rooted issue of discrimination and impunity had been allowed to continue unabated throughout the decades. There had been a sharp increase of uninvestigated killings and disappearances of journalists, media workers, human rights defenders and religious personalities.
The report stated that Justice Nihal Jayasinghe, Sri Lankan High Commissioner to the UK, categorically denied that civilians were killed by Sri Lankan artillery as the Sri Lankan artillery had never fired on civilians. The allegations that up to 4000 civilians had died in the final assault were baseless as the final assault on the LTTE leadership was carried out after all the civilians were rescued by the military. There were no disappearances, rape, torture or murder taking place in the ‘welfare villages’ for displaced people.
Conclusion
On the basis of the material before it, the Panel stated that it is forced to conclude that the three Conventions under scrutiny have not been effectively implemented in Sri Lanka. That is the case even if the government has consistently asserted its efective implementation and denied non-compliance in all its public statements. However, the government has mainly done that in general terms and mostly without providing sufficient evidence in order to rebut specific allegations made by many sources.
The report stated that in some of the submissions made in response to the invitation by the European Commission, it has been held that the legal system in Sri Lanka adequately meets the legislative requirement of the Conventions.
The Panel said it cannot fully agree with that assessment. Some of the provisions of the Conventions have not been transposed at all, while the provisions in the domestic legislation on other points are more restrictive than the corresponding provisions in the Conventions. The Sri Lankan legislation does also contain provisions which are not in compliance with the Conventions. Under these circumstances, effective implementation of the Conventions has not been and cannot be achieved by means of the case law of the Sri Lankan courts without setting aside legislations.
The report further stated that many of the State authorities in Sri Lanka entrusted with the task of protecting human rights have lost their legitimacy and credibility because of the non-application of the 17th Amendment to the Constitution. In the assessment of the Panel, this is the result of political decisions.
The evidence shows that the police are unable or unwilling to investigate human rights violations. It also indicates that torture in police custody is at least widespread. The absence of a witness protection programme and harassment of witnesses discourages them from appearing and operates as a disincentive to make complaints. According to the report, while the politicization of judicial and quasi-judicial bodies is of recent origin, there were not previously adequate structures in place to prevent that from occurring. The inadequate functioning of the process of criminal investigation is a long-standing problem, with knock-on consequences for the operation of the criminal justice system as a whole. Throughout the period in issue, broad concern about the human rights situation in Sri Lanka has been expressed.
Sri Lanka has failed to implement its obligation to prevent enforced disappearances by State agents and other forces for which it is responsible. Such forces are implicated in the increase of disappearances between 2005 and 2009. It has also failed to prevent disappearances at the hands of third parties. It has also failed its obligation to carry out effective investigation into alleged disappearances.
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