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. Continue reading