UN rights chief wants comprehensive approach

Dharisha Bastians Reporting from Geneva 

As he officially presented the findings of the OHCHR Investigation on Sri Lanka (OISL) before the 47-member Human Rights Council in Geneva yesterday, UN Rights Chief Zeid Ra’ad Al Hussein reiterated his call for a hybrid special court to try war crimes and crimes against humanity in Sri Lanka. Presenting the OISL report to the council via videolink, High Commissioner Zeid, who is currently in New York attending the UN General Assembly sessions, said the special court should have its own “independent investigative and prosecuting organ, defence office and witness and victims protection program.”  Zeid said that in a “highly polarised environment” the hybrid mechanism was essential to give all Sri Lankans, and especially victims “confidence in the independence and impartiality of the process”. 

He noted at the beginning of his presentation that the OISL report was being presented in a very different context to the one in which it was mandated in March 2014.

The High Commissioner welcomed the Government’s commitment to the council to investigate violations and ensure accountability, despite the opposition of some political parties and sections of the military and society.

“The unfortunate reality is, however, that Sri Lanka’s criminal justice system is not currently equipped to conduct an independent and credible investigation into allegations of this breadth and magnitude, or to hold accountable those responsible for such violations,” Zeid told member states of the council in his video statement.

 Explaining the reasons for this domestic inadequacy, Zeid said Sri Lanka was lacking a reliable system for victim and witness protection, particularly when the risk of reprisal was very high. Secondly he said the country’s domestic legal framework was “inadequate to deal with international crimes of this magnitude”.

“When Sri Lanka has prosecuted conflict related cases, it has relied on offences in regular criminal law, such as murder. This approach fails to recognise the gravity of the crimes committed, their international character, or to duly acknowledge the harm caused to the victims. To fully reflect their gravity and bring redress to their victims, international crimes must be charged as such,” the High Commissioner noted.

Thirdly, Zeid said Sri Lanka’s security and justice sectors had been “distorted and corrupted” by decades of impunity. “The independence and integrity of key institutions such as the Attorney General’s Office and the Human Rights Commission remain compromised,” he explained.

He said the security forces, police and intelligence services had enjoyed near total impunity and had not undergone any significant reform since the armed conflict.

Referring to the report of the investigation concluded by his office, Zeid said the sheer number of allegations, their gravity and recurrence and the similarities in their modus operandi all point to what he called “system crimes”.

“Such acts cannot be treated as ordinary crimes. If established in a court of law, they may constitute international crimes of concern to the international community,” the UN High Commissioner said.

Zeid told the council that the Sri Lankan Government was engaging constructively with him and his office on possible options for an accountability and reconciliation process.

While welcoming the new Government’s commitments on transitional justice and its renewed engagement and cooperation, the High Commissioner flagged several outstanding issues, including the release of information about PTA detainees, attacks by the Bodu Bala Sena on the Muslim community in Aluthgama last year and the lack of progress on “emblematic” criminal cases pointing to impunity by the armed forces such as the Trinco-5 murders and the killing of 17 aid workers in Muttur in 2006.

Several country delegations and civil society groups addressed the council during the interactive dialogue, welcoming the OHCHR report on Sri Lanka and urging progress on accountability and reconciliation in the country.

Making an intervention, the United States said the findings of the OHCHR report on Sri Lanka with acts by both sides were “chilling”. The US delegation thanked Zeid’s office for what it called its “painstaking” work in documenting human rights violations and abuses in Sri Lanka.

“While some initial progress has been made by the new Government on strengthening democratic institutions, land restitution and finding solutions for internally displaced persons, much more work remains to be done including on justice and accountability,” the US said.

Britain also made an intervention during the dialogue, saying that the OISL report sets out a range of extremely grave violations and abuses by all sides in the conflict in Sri Lanka. The UK delegation noted that the report would be difficult for many in Sri Lanka. “Without facts, there can be no justice, no end to impunity and no reconciliation,” the UK delegate noted.

The UK delegation welcomed the Sri Lankan Government’s approach to bringing a consensual resolution at the end of the UNHRC session.

“However, the UK recognises that this resolution is not an end in and of itself, but the start of a process that will require commitment from all parties if it is to deliver meaningful reconciliation, and long-term peace and stability in Sri Lanka,” the UK said in its statement.