An analysis of the UNHRC Resolution on Sri Lanka

On Thursday, 1 October, the United Nations Human Rights Council passed a resolution on Sri Lanka titled ‘Promoting Reconciliation, Accountability and Human Rights in Sri Lanka’. Following is the full text of the resolution accompanied by an analysis by the South Asian Centre for Legal Studies, providing a commentary on each paragraph of the Resolution explaining the meaning and significance of the language; an analysis of whether the language originated from Government sources, previous resolutions or the High Commissioner’s Report; and a brief overview of the action expected to be undertaken in pursuance of the Resolution

Minister of Foreign Affairs Mangala Samaraweera addressing the UNHRC session in Geneva

HRC 30th Session – Draft Resolution

Item 2: Promoting reconciliation, accountability and human rights in Sri Lanka

The Human Rights Council

Preambular Paragraphs

Comment: Preambular paragraphs in a resolution are drafted to reflect the background and spirit of the resolution. They are not the binding part of the resolution as the operative paragraphs are, but explain the thinking and logic behind the resolution. They are also useful tools in interpreting the text of the operative paragraphs. Often, in the event an operative paragraph is unclear or could be interpreted in more than one way, the preambular paragraphs could be useful in determining what the text of the resolution actually means.

Readers will not that many of the revisions to the text effected to the previously circulated draft reflect the incumbent government’s own political messaging and discourse related to accountability, UN processes and reconciliation.

Pp1

Reaffirming the purposes and principles of the Charter of the United Nations,

Pp2

Guided by the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant instruments,

Pp3

Recalling also Human Rights Council resolutions 19/2 of 22 March 2012, 22/1 of 21 March 2013, and 25/1 of 27 March 2014 on promoting reconciliation and accountability in Sri Lanka,

Comment: The above three paragraphs are standard paragraphs typically found in resolutions of the Human Rights Council.

Pp4

Reaffirming its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka,

Comment: This language is taken from previous Human Rights Council resolutions on Sri Lanka, and makes clear that the resolution is not aimed at the creation of a separate state, as alleged by a few.

Pp5

Reaffirming that it is the responsibility of each State to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population,

Comment: International Human Rights Law holds that it is the state who is primarily responsible for protecting human rights.

Pp6

Welcoming the historic free and fair democratic elections in January and August 2015and peaceful political transition in Sri Lanka,

Comment: The co-sponsors of the resolution were very keen that the text of the resolution reflect the change that took place in Sri Lanka in January 2015 and thereafter in August. The US Ambassador to Geneva Keith Harper repeatedly stated that the resolution should reflect two realities: first, the change that has happened in Sri Lanka, and second, the gravity and seriousness of the violations of human rights and crimes contained in the OISL Report.

Pp7

Taking note with interest of the passage and operationalisation of the nineteenth amendment to the Constitution of Sri Lanka and its contributions to promoting democratic governance and independent oversight of key institutions, including the provision on promotion of national reconciliation and integration as among the Constitutional duties of the President of Sri Lanka,

Comment: This paragraph was likely included to strengthen the government’s argument that nineteenth amendment to the constitution strengthened Sri Lanka’s ability to deal with accountability related issues. The final phrase relating to the duties of the President was included in keeping with Sri Lanka’s proposals made at the informal session on the draft resolution held on the 22nd of September.

Pp8

Welcoming the steps taken by the Government of Sri Lanka since January 2015 to advance respect for human rights and to strengthen good governance and democratic institutions

Comment: Once again, the text reaffirms its commendation of the positive change since January 2015.

Pp9

Welcoming the efforts of the Government of Sri Lanka to Investigate allegations of bribery, corruption, fraud, and abuses of power, and stressing the importance of such investigations and the prosecution of those responsible in ending impunity and promoting good governance;

Comment: This is an important paragraph as it stresses the connection between human rights issues and corruption issues. It potentially opens the door to mechanisms that deal with corruption and human rights issues at the same time. In fact, Government Spokesman and Minister Dr. Rajitha Senaratne was quoted in The Island newspaper as suggesting that the same judicial mechanism with foreign participation may be used to deal with both issues. While this is unlikely to be definitive government policy, it is possible that some quarters within government may be thinking on these lines. http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=131974

 

Pp10

Welcoming as well, the steps taken to strengthen civilian administration in the former conflict-affected provinces of the North and East, and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining and resettling internally displaced persons, and calling on the international community, including the United Nations, to assist the Government of Sri Lanka in furthering these efforts, especially in expediting the process of delivery of durable solutions for all internally displaced persons;

Comment: The language of this paragraph was amended in favour of the Sri Lankan government on its request. The initial draft read: “Welcoming and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining and resettling internally displaced persons, while noting nonetheless that considerable work lies ahead in the areas of justice and reconciliation and to deliver durable solutions for all internally displaced persons”. Instead of “noting that considerable work lies ahead, the paragraph calls on the international community to assist the Government of Sri Lanka in furthering these efforts. This change was also proposed by Sri Lanka at the informal session held on 22 September.

 

Pp11

Recognising the improved environment for members of civil society and human rights defenders in Sri Lanka, while expressing concern at reports of ongoing violations and abuses of human rights and recognising the expressed commitment of the Government of Sri Lanka to address issues including those involving sexual and gender-based violence and torture, abductions, as well as intimidation of and threats against human rights defenders, and members of civil society,

Comment: This paragraph was also amended to soften the language towards Sri Lanka, but nevertheless express concern at reports of sexual violence and torture, as well as incidents of threats against some civil society members and human rights defenders particularly in the North and East. The initial version of the draft before it was changed read: “Expressing concern at the continuing reports of violations of human rights in Sri Lanka, including those involving sexual and gender-based violence, torture, abductions, as well as intimidation of and threats against human rights defenders, and members of civil society.”

 

Pp12

Reaffirming that all Sri Lankans are entitled to the full enjoyment of their human rights regardless of religion, belief or ethnicity, in a peaceful and unified land;

Comment: Once again, the text affirms the equality of all Sri Lankans and the desire that Sri Lanka’s peoples be united.

 

Pp13

Reaffirming also that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable,

Comment: This paragraph was also contained in the resolution passed in March 2014 at the Human Rights Council. It indicates that even counter-terrorism measures much comply with the law.

 

Pp14

Welcoming the Government’s Declaration of Peace of 4 February 2015 and its acknowledgement of the loss of life and victims of violence of all ethnicities and religions,

Comment: This paragraph is a further indication of the drafter’s willingness to acknowledge and welcome the change that has taken place in Sri Lanka.

 

Pp15

Emphasising the importance of a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures, including, inter alia, individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system, restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law, with a view to preventing the recurrence of violations and abuses, and welcoming in this regard the Government’s expressed commitment to ensure dialogue and wide consultations with all stakeholders;

See comment on below paragraph

 

Pp16

Recognising that mechanisms to redress past abuses and violations work best when they are independent, impartial, and transparent; are led by individuals known for displaying the highest degree of professionalism, integrity, and impartiality; utilise consultative and participatory methods that include the views from all relevant stakeholders including, but not limited to, victims, women, youth, representatives from various religions, ethnicities, and geographic locations as well as marginalised groups; and designed and implemented based on expert advice from those with relevant international and domestic experience;

Comment: The two above paragraphs are critical. The earlier draft circulated by the co-sponsors used the term “Transitional Justice”, but it is understood that the Sri Lankan Ministry of Foreign Affairs preferred the use of the phrase “dealing with the past” instead. There is no major difference in the two phrases, and the difference is primarily one that is discussed in academic circles. It is not clear why the Ministry of Foreign Affairs prefers not to use the term “Transitional Justice”.

These two paragraphs provide a very comprehensive idea of what constitutes “Transitional Justice” or “dealing with the past”. It contains the key notions of truth seeking, criminal prosecutions, reparations, vetting to remove and prevent those who are responsible for human rights abuses from the military and police, and institutional reform to prevent recurrence of crimes.

It also speaks of the important principles of independence, impartiality and transparency combined with a consultative approach to making policies which deal with the past. These consultations must involve all sectors. Finally, expert advice from outside and within the country must be relied on in making decisions on mechanisms to deal with the past.

 

PP17

Recognising that a credible accountability process for those most responsible for violations and abuses will safeguard the reputation of those, including within the military, who conducted themselves in an appropriate manner with honour and professionalism.

Comment: This paragraph was introduced by the co-sponsors of the draft with a view to signalling to the country and its military that a process of accountability was not one that was aimed at punishing the military as a whole. Instead, by isolating blame in the hands of those who violated the law and abused their power, those who did not violate the law would have their reputation safeguarded.

 

Pp18

Recalling the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law, with a view to ending impunity,

Comment: This paragraph merely restates what is accepted international law with respect to international crimes. The identical language appeared in resolution 25/1 passed in March 2014.

 

Pp19

Taking note of the review of High Security Zones undertaken by the government and welcomes the initial steps taken to return land to its rightful civilian owners and to help local populations to resume livelihoods and restore normality to civilian life,

Comment: This paragraph recognises the progress made by the government with respect to the release of civilian lands. However, the use of the phrase “initial steps taken to return land” which the Sri Lankan government proposed be deleted, but nevertheless has remained in the text, indicates that the Council’s view – and now the Sri Lankan government’s view – that land releases must go beyond what has already been done.

 

Pp20

Welcoming the Government of Sri Lanka’s commitments to the devolution of political authority,

Comment: See comment on Operative Paragraph 16 below.

 

Pp21

Requesting the Government of Sri Lanka to implement effectively the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission,

Comment: This language has been consistently found in all of the Human Rights Council resolutions passed by the Human Rights Council since 2012: March 2012; March 2013; March 2014 and now September 2015.

 

Pp22

Welcoming also the 30 March - 3 April 2015 visit and observations of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, and the planned visit of the Working Group on Enforced and Involuntary Disappearances in November,

Comment: The March 2014 resolution encouraged these mandate holders to provide technical assistance and advice to Sri Lanka. This paragraph welcomes Sri Lanka’s engagement with these offices.

 

Pp23

Recognising that the Investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka requested in Human Rights Council resolution 25/1 was necessitated by the absence of a credible national process of accountability,

Comment: This late inclusion into the draft (it was not included in the original draft circulated by the co-sponsors) presumably on Sri Lanka’s request is significant. It recognises that the absence of a credible national process of accountability gave rise to the need for the UN investigation mandated by HRC resolution 25/1. In this it mirrors the political arguments and discourse that has come to characterise the incumbent government’s response to the now completed UN investigation on Sri Lanka.

1. Takes note with appreciation the oral update presented by the High Commissioner to the Human Rights Council at its twenty-seventh session, the report of the Office of the High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka and the report of its Investigation on Sri Lanka requested in Human Rights Council resolution 25/1 including its findings and conclusions, and encourages the Government of Sri Lanka to implement the recommendations contained therein when implementing measures for truth seeking, justice, reparations, and guarantees of non-recurrence;

Comment: The paragraph notes with appreciation the High Commissioner’s report and the OISL Report including its findings and conclusions; and encourages the government to implement its recommendations. The initial draft circulated by the co-sponsors used the word “welcomes”. Sri Lanka proposed the use of the word “notes” and a compromise was reached through the use of the phrase “takes note with appreciation”. The phrase is used often in UN resolutions, and is a half-way measure between “welcomes” – which conveys full acceptance of a report etc. – and “notes” – which indicates acknowledgement of a report etc. but unwillingness to fully accept all its contents. However, in the second part of the paragraph, Sri Lanka has agreed to be “encouraged” by the Council to fulfil the recommendations of the OISL Report without reservation. This is highly significant.

2. Welcomes the positive engagement between the Government of Sri Lanka and the High Commissioner and his Office since January 2015 and encourages the continuation of such engagement in the promotion and protection of human rights and in exploring appropriate forms of international support to and participation in Sri Lankan processes for seeking truth and justice,;

Comment: This language was not part of the initial draft circulated by the co-sponsors and was included in line with Sri Lanka’s proposals. It reflects the government’s desire to be perceived to be cooperating with the High Commissioner and his Office since the Presidential elections of January 2015.

3. Supports the Government of Sri Lanka’s commitment to strengthen and safeguard the credibility of the processes of truth seeking, justice, reparations, and guarantees of non-recurrence by engaging in broad national consultations with the inclusion of victims and civil society, including non-governmental organisations, from all affected communities that will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices;

Comment: This paragraph deals with the need for consultations of a broad range of stakeholders, with a view to informing the design and implementation of these processes, and also to draw on international assistance with respect to these consultations. The previous draft resolution circulated by the co-sponsors. The language of this paragraph was softened from the language of the previous draft circulated by the co-sponsors, which began with the phrase: “Encourages the new Government of Sri Lanka to respect its positive commitment to bolster and safeguard the credibility of these justice processes by engaging…”

4. Welcomes the Government of Sri Lanka’s commitment to undertaking a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures; welcomes in this regard the proposal by the Government of Sri Lanka to establish a Commission for Truth, Justice, Reconciliation, and Non Recurrence, an Office of Missing Persons, and an Office for Reparations;; welcomes the Government’s willingness to give each mechanism the freedom to obtain assistance, both financial, material and technical from international partners including the OHCHR; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and help achieve reconciliation;

Comment: This paragraph underlines two important ideas. First, it welcomes the government’s commitment to a process of deal with the past. The phrase “full range of judicial and non-judicial measures” is a familiar one in Transitional Justice literature and forms part of the International Center for Transitional Justice’s definition of ‘Transitional Justice’. It encapsulates the idea that the government has consented to judicial prosecutions as well as non-judicial measures such as truth commissions, other tracing mechanisms, reparations and security sector reform.

The second main idea incorporated into this paragraph is borrowed from the speech made by the Foreign Minister Mangala Samaraweera at the UNHRC sessions in September. In his speech, he stated that the mechanisms established by Sri Lanka would have the freedom to obtain assistance, both financial, material and technical from international partners. Sri Lanka also sought these inclusions among others at the informal session relating to the resolution held on 22 September. This paragraph appears to merge previous draft OPs 6 and 7.

5. Recognises the need for a process of accountability and reconciliation for violations and abuses committed by the Liberation Tigers of Tamil Eelam as highlighted in the OISL report;

Comment: This paragraph was included with the view to also covering LTTE abuses, which are not specifically mentioned in any other paragraphs. Its inclusion was sought to bring balance to the resolution.

6. Welcomes the government’s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorised prosecutors and investigators;

Comment: This paragraph is arguably the most important of the entire resolution. It seeks to build on the Foreign Minister’s own speech where he referred to ‘a Judicial Mechanism with a Special Counsel’. This reference to ‘Special Counsel’ ostensibly refers to a prosecutor. It further affirms the importance of credibility and impartiality of judges and prosecutors. The final phrase is key in that affirms the importance of the participation in ‘a Sri Lankan judicial mechanism’, including in the prosecutor’s office, of Commonwealth and other foreign judges, defence lawyers, and authorised prosecutors and investigators. Each word is of critical important. By including the phrase “Sri Lankan judicial mechanism”, the resolution allows the government the political space to claim that the process is not an international process, but a local one.

Nevertheless, it affirms the importance of “Commonwealth and other foreign” personnel. The importance of this phrase, and the fact that the use of Commonwealth judges was always within the contemplation of the government is seen in Foreign Minister Mangala Samaraweera’s comments to an Indian magazine in January 2015, immediately following the Presidential election. In it, he said, “We hope for technical assistance from the UN, perhaps judges from the Commonwealth – whom we chair at the moment – too.” However, the text specifies that judges could also be chosen from outside the Commonwealth. In fact, it is arguable whether or not there it is permissible not to have judges from outside the Commonwealth.

The text refers to “authorised prosecutors and investigators”. It is understood that this inclusion of the word ‘authorised’, which does not feature in the previous text, was a late inclusion on the request of the Sri Lankan government. It appears to be redundant because all personnel participating in a judicial mechanism must necessarily be authorised. Notably, to prevent any room for argument that the reference to “authorised prosecutors and investigators” is unconnected to the words “Commonwealth and other foreign” personnel, the phrase “including in the Special Counsel’s Office” has been included for avoidance of doubt.

The text did change from the initial circulated draft in some ways. The initial text referred to “international” personnel, while the current drafts refers to Commonwealth and other foreign personnel. The current draft uses ‘participation in’ while the previous draft refers to ‘involve’. There is also the use of the word ‘inclusion’, as noted above.

The debate about whether this is a hybrid court or a domestic court is a moot point. It is also irrelevant. The word ‘hybrid court’ has no fixed definition. It could mean many things. As a recent press article notes, the Sri Lankan Supreme Court was a hybrid court according to some definitions as there were foreign judges until 1955, 8 years after independence. The Udalagama and Paranagama Commissions of Inquiry were also arguably ‘hybrid commissions’ since they included foreign personnel as monitors and advisors. The debate over ‘hybrid’ or ‘domestic’ is essentially a mask for two central questions: how do you ensure the independence of judges and prosecutors participating in the trial of international crimes that are highly politicised; and second, how do you ensure such participants have the capacity to try serious international crimes.

For Foreign Minister’s comments on Commonwealth judges, made in January 2015, see: http://swarajyamag.com/world/new-sri-lankan-foreign-minister-our-tilt-towards-china-needs-a-course-correction/

7. Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can effectively implement its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report by the Office of the High Commissioner for Human Rights requested in resolution 25/1, including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognised by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the LLRC;

Comment: There are three key ideas in this paragraph. First, the idea that Sri Lanka has legal obligations under international law to try and punish those most responsible of certain crimes, and that it must reform its law to do. This is a standard international law principle in relation to international crimes – the state must at the least investigate and punish ‘those most responsible’. This therefore calls for the inclusion in Sri Lankan law of modes of responsibility such as command responsibility.

Second, the idea that these trials must be for the ‘full range of crimes under the general principles of law recognised by the community of nations” which are relevant to violations of human rights and IHL. The phrase “general principles of law recognised by the community of nations” is taken from the ICCPR Article 15(2) and the Sri Lankan Constitution Article 13(6) and has been interpreted by the Sri Lankan Supreme Court in Sepala Ekanayake’s case to mean “customary international law”. Thus, the full range of crimes under customary international law relating to human rights and IHL include war crimes and crimes against humanity. The resolution therefore encourages Sri Lanka to reform its law to include war crimes and crimes against humanity as offences under domestic Sri Lankan law.

Third, the idea that these laws must cover the period “covered by the LLRC” which is 2002 to 2009 at the very least. Thus, the resolution does not merely call for the incorporation of international crimes into domestic law, it makes reference to the need for retroactive incorporation of these crimes in line with Article 13(6) of the Constitution to go back to 2002.

8. Encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process that will help enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law including members of the security and intelligence units; and increasing training and incentives focused on the promotion and protection of human rights of all Sri Lankans;

Comment: Security sector reform is an important component of Transitional Justice. One of the stated outcomes of such a process is to ‘enhance and reputation and professionalism’ of the military. The purpose of security sector reform is to limit the prospects of recurrence and orient the security sector in a manner that protects human rights, rather than endangers it. Two specific security sector reforms are mentioned: first, the use of fair administrative processes to prevent retention and recruitment into the security forces of those involved in violations of human rights and IHL. Second, to provide training and incentives aimed at the promotion and promotion of human rights. The first set of reforms are likely be too controversial, but have been effectively carried out in other parts of the world, particularly in the former Balkans.

9. Welcomes the Government of Sri Lanka’s recent passage of an updated Witness and Victim Protection Law and its commitment to review the law, and encourages the Government of Sri Lanka to strengthen these essential protections by making specific accommodations to effectively protect witnesses and victims, investigators, prosecutors, and judges.

Comment: The language in the latest draft was strengthened to include reference to the Foreign Minister’s speech wherein he committed to “review” the Witness and Victim Protection law. The OISL Report also highlights the need for a review of the law, and strengthened protection for witnesses and victims. Although Parliament has passed a law which was drafted by the previous administration, the law has not yet been operationalised.

10. Welcomes the initial steps taken to return land and encourages the government to accelerate the return of land to its rightful civilian owners, , and to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stresses the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts,

Comment: This paragraph in this latest draft resolution was revised to reflect the government in a more positive light. An earlier draft contained stronger language. It read: “Underscores the importance of the government taking additional steps on return of land previously taken by defence forces to its rightful civilian owners, encouraging the acceleration of such transfers of land back to the rightful owners, and encouraging the government to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stressing the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts,”

11. Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future;

Comment: This paragraph is almost identical to the paragraph from the March 2014 Resolution (25/1) and was included in that resolution in the light of communal violence targeting primarily Muslims in that year as well as other attacks.

12. Welcomes the Government of Sri Lanka’s commitment to review the Public Security Ordinance Act and review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices;

Comment: This paragraph reflects the comments in Foreign Minister Mangala Samaraweera’s speech at the Human Rights Council in September 2015. They were also mentioned in the OISL Report, suggesting that the Foreign Minister’s speech may have incorporated certain OISL recommendations even though the OISL Report was not public at that stage. The government did receive an advance copy of the OISL Report prior to FM Samaraweera’s speech at the Council.

13. Welcomes the Government of Sri Lanka’s commitment to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay, to criminalise enforced disappearances and to begin issuing Certificates of Absence to the families of the missing as a temporary measure of relief;

Comment: This paragraph reflects the comments in Foreign Minister Mangala Samaraweera’s speech at the Human Rights Council in September 2015. They are highly significant as they reflect the decades-long demands of anti-disappearance human rights activists. These are 1) ratify the Disappearances Convention; 2) criminalise enforced disappearances; and 3) issue certificates of absence to families of the missing.

14. Welcomes the Government of Sri Lanka’s commitment to release publicly previous Presidential Commission Reports

Comment: Earlier drafts specifically mentioned certain reports, but reference to them was excluded during negotiations between the Government at a late stage. The previous draft made reference to the “Udalagama and Paranagama reports by the end of this month, and calls for the release of the results of its investigations into alleged violations by security forces, including the attack on unarmed protesters in Weliweriya on 1 August 2013, and the report of 2013 by the court of inquiry of the Sri Lanka Army”. It is notable that the Foreign Minister told the Human Rights Council in September 2015 that the Udalagama and Paranagama Commission reports would be released “this month”. Nevertheless, they have yet to be released. This change gives rise to the assumption that the government may not be willing to release one or more of these reports, though it is not immediately apparent why that is the case.

15. Encourages the Government of Sri Lanka to develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of international humanitarian law, whether held by public or private institutions;

Comment: This provision reflects the duty of the state to preserve records and documents relating to violations of human rights and IHL. This obligation is now entrenched as a best practice and legal obligation under international law.

16. Welcomes the government’s commitment to a political settlement by taking the necessary constitutional measures and encourages the Government of Sri Lanka’s efforts to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and encourages the Government of Sri Lanka to ensure that all Provincial Councils, are able to operate effectively, in accordance with the 13th amendment to the Constitution of Sri Lanka;

Comment: This paragraph was contested and was negotiated. The second part of the paragraph relating to the Provincial Councils and the 13th Amendment are taken from the March 2014 resolution (25/1). However, the reference to the “government’s commitment to a political settlement by taking the necessary constitutional measures” refers tacitly to the Foreign Minister’s speech before the Council where he made reference to a political solution that would address the grievances of the Tamil people through a new constitution. Thus, the Foreign Minister’s formulation was slightly revised to refer to “constitutional measures” in place of “a new constitution”. Reference to a political solution and devolution in the text of the resolution was a key demand of the Tamil National Alliance.

17. Welcomes the Government’s commitment to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involving torture, rape, and sexual violence, are prohibited and that those responsible will be investigated and punished, and encourages the government to address all reports of sexual and gender-based violence and torture;

Comment: Once again, this recommendation was initially in the OISL Report, was then incorporated into the speech of the Foreign Minister at the Human Rights Council, and subsequently incorporated into the draft resolution. It did not figure in the initial draft text, and was included subsequently.

18. Requests the Office of the High Commissioner to continue to assess progress on the implementation of OHCHR’s recommendations and other relevant processes related to reconciliation, accountability, and human rights; to present an oral update to the Human Rights Council at its thirty-second session, and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session;

Comment: The evolution of this paragraph is interesting. The typical formulation for this sort of paragraph is to request the Office of the High Commissioner (OHCHR) to “monitor” progress. It is understood that the Sri Lankan government preferred alternative phraseology. The initial draft text therefore contained the words “assess and verify the human rights situation in Sri Lanka”. References to monitoring/assessing the human rights situation in Sri Lanka have now been excluded. Instead, OHCHR is asked to “continue to assess progress on the implementation of other relevant processes related to reconciliation, accountability and human rights”. This reference to processes related to human rights among others will provide the necessary interpretive space for OHCHR to in effect carry out human rights monitoring.

The reporting periods are as follows: an oral update by OHCHR to the Council in June 2016, and a final comprehensive report in March 2017. This period coincides with the 18 month period which the Foreign Minister said Sri Lanka would take to implement its accountability mechanisms.

See: “The Foreign Minister told Daily FT the Government hopes to get the mechanism off the ground within a year or 18 months...”. - See more at: http://www.ft.lk/article/471161/Accountability-framework-for-Lanka-s-own-sake--Mangala%C2%A0#sthash.XFOh9J7P.dpuf”

19. Encourages the Government of Sri Lanka to continue to cooperate with special procedures mandate holders, including responding formally to outstanding requests;

Comment: This is a standard provision found it most country-specific Human Rights Council resolutions. The earlier text was shortened to omit reference to specific mandate holders.

20. Encourages the Office of the High Commissioner and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the abovementioned steps.

Comment: This is also a standard provision found it most country-specific Human Rights Council resolutions. It has been a feature of all resolutions on Sri Lanka since 2012.