Human Rights Council resolution 30 on “Promoting reconciliation, accountability and human rights in Sri Lanka” was adopted on 1 October 2015. It followed the formal presentation of the report of the Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL) at the Human Rights Council (see previous blog post – The Long Journey to Justice for Sri Lanka’s Victims) (Part I)).
Resolution 30 is the first to be passed with the support of the Government of Sri Lanka, in a series of resolutions on promoting reconciliation and accountability in Sri Lanka (19/2 of 22 March 2012, 22/1 of 21 March 2013 and 25/1 of 27 March 2014). The resolution draws upon the recommendations of the OISL report that address the multi-faceted repercussions of Sri Lanka’s vicious civil war. The wide-ranging recommendations include: security sector reform; return of private land; ending military involvement in civilian activities; a political settlement on the devolution of political authority; accountability for attacks on journalists and human rights defenders; and the repeal of specific legislation such as the Prevention of Terrorism Act. Yet, resolution 30 falls short in respect of a key OISL recommendation – the establishment of an ad hoc hybrid special court. Instead, it calls for a “Sri Lankan judicial mechanism” – a problematic proposal due to Sri Lanka’s abject track record of domestic accountability. The OISL itself was born out of the absence of a credible national process of accountability.
Justice for Sri Lanka’s victims is tethered to the success or failure of this proposed judicial mechanism. Several factors will be key to its ability to deliver a “credible justice process”. Genuine and sustained political will is of paramount importance. The reform of domestic legislation to enable the prosecution of international crimes is a priority. In his oral statement on Sri Lanka on 30 September 2015, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein warned of “the total failure of domestic mechanisms to conduct credible investigations, clarify the truth of past events, ensure accountability and provide redress to victims.” The resolution envisages a role for “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”. As the specific domestic legal processes for creating the judicial mechanism remain to be determined, a framework that harnesses these professionals’ expertise and provides a buffer from political interference will be a positive starting point. The integrity and reputation of domestic personnel selected to the mechanism will be another test.
Another critical corollary to this judicial mechanism is the proper application of robust witness protection legislation. The safety and security of victims and witnesses form the bedrock of any effective judicial process. Terrified witnesses will not speak. Those who courageously testify must have their personal safety and that of their family members guaranteed. This is particularly true in the case of Sri Lanka, where authorities have wielded the threat of reprisals as a weapon to silence victims, witnesses and activists. In the course of its work, the OISL received “persistent reports” of surveillance, threats, intimidation, harassment, and interrogation by security forces from human rights defenders and potential witnesses in Sri Lanka. Witnesses feared testifying or reporting violations. They provided consistent accounts of harassment and sometimes physical abuse by the military and police.
While these complaints were confined to the OISL process, threats and even physical violence to deter those seeking justice is commonplace in Sri Lanka. Individuals pursuing accountability through international mechanisms have not been spared. The OISL reports that Sandya Eknaligoda, wife of the disappeared journalist and cartoonist, Prageeth Eknaligoda, was “threatened and harassed by several supporters of the delegation of the Government of Sri Lanka after she spoke” during the 19th session of the Human Rights Council in 2012.
An independent and effective witness protection system facilitates open testimony and dialogue. Earlier this year, Sri Lanka passed a victim and witness protection law. However, key entities within the law, such as the Victims of Crime and Witnesses Assistance and Protection Division lack independence, severely limiting the effectiveness and integrity of the law. This division which is under the purview of the Sri Lankan police force, is entrusted with providing protection and investigating any threats or reprisals against victims and witnesses. Yet, in some cases, police personnel appear to be implicated in the very crimes for which testimony is sought. Any law that entrusts the protection of victims and witnesses to alleged perpetrators is deeply flawed and is likely to derail the judicial process. Accordingly, the resolution supports a review of this law. This should be a priority.
Finally, broad national consultations with victims and civil society from all affected communities are essential to garner trust and underscore the government’s genuine commitment to reform. A consultative and participative approach that values victims’ contributions could alleviate their profound and warranted mistrust in domestic processes. The Government of Sri Lanka has highlighted its willingness to commence wide-ranging consultations that expand the ownership of the resolution to all stakeholders. In making this dialogue as sincere and inclusive as possible, language is key. Linguistic accessibility – using both Sinhala and Tamil – should be a running thread through all material, measures and processes going forward.
Resolution 30 has been described as a turning point in Sri Lanka’s relationship with the Human Rights Council. It can also serve as a turning point for victims in their quest for justice long overdue. There has been no better time for a change in tack in Sri Lanka’s tumultuous journey towards accountability, reconciliation and non-recurrence. Political leaders who are vocal and well-versed in the narrative of peace and justice have articulated a new vision for Sri Lanka. The international community stands ready to support a process of lasting change. Sri Lanka’s progress in implementing the resolution will be reviewed at the Human Rights Council next year. Now more than ever, civil society and the international community must closely monitor Sri Lanka’s efforts. The momentum must be maintained and lapses spotlighted. The world will be watching.