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Response to the Statement Made by Minister Mahinda Samarasinge at the 22nd Session of the United Nations Human Rights

Council

Civil Society Collective 28 February 2013 This document is prepared in response to the statement made by Minister Samarasinghe on 27 February 2013 at the High Level Segment of the 22nd Session of the United Nations Human Rights Council (UNHRC). A similar document was prepared in response to the statement made by the same Minister at the 19th Session of the UNHRC in 2012, based on the ground realities in Sri Lanka. An examination of the statements made by the Minister at the UNHRC in 2012 and 2013 and pledges by other Government officials attest to the fact of the Government of Sri Lanka (GoSL) continuously making the same promises and pledges without any substantive progress made on the ground and further delaying any action that can be taken. The statement at the 22nd Session by the Minister, while listing progress and plans, fails to address substantive issues such as the devolution of power and power sharing despite the GoSLs two-thirds majority in Parliament. More than 45months after the end of the war, there are still no credible answers provided to the issues raised such as why the Government is unwilling to share a list of all detainees. The statement also fails to recognise ongoing violations in Sri Lanka including disappearances, religious violence and threats to human rights defenders, lawyers and media activists. This raises the question whether such statements are mere tokenism and yet another effort by the GoSL to keep international pressure at bay. These are important aspects to consider in light of the Resolution adopted at the 19th Session calling for specific action including requesting the GoSL to implement the recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC). While a year has passed, there has been no demonstrable progress made to achieve accountability, reconciliation and peace in Sri Lanka. A point made in response to the Minsters statement at the 19th Session and reiterated in this document is that many of the promises, pledges and plans by the GoSL are for the consumption of the international community and there is little genuine interest to follow through in Sri Lanka. While recognizing that some positive measures have been taken by the Government towards strengthening peace and human rights since the end of the war in May 2009, this document highlights areas of contention and counters some of the points made by the Minister in his speech. The table below contains two columns- one with highlights from the statements made by the Minister and the opposing column directly rebutting the specific claim and at times containing questions that should be posed by different actors to the Government of Sri Lanka. This document is drafted by civil society based on its own reports and documentation, public interest litigation, news reports and other documentation. It is also drafted at a time when civil society and others who are critical of the Government have come under intense threats, Consequently the names of those who drafted this document have been withheld.

1. IDPs With this last batch of IDPs, the Government has resettled a total of 242,449 IDPs. A further 28,398 have chosen to live with host families in various parts of the country. A batch of about 200 families living with host families has been resettled with their consent in their original habitat in Mullaithivu in September 2012. At the conclusion of resettlement, 7,264 IDPs had left the camps on various grounds and did not return while a further 1,380 sought admission to hospitals. The resettlement of the final batch of IDPs marks a day of historic significance as the resettlement is now complete and there are no more IDPs or IDP camps in the island.

1. It is factually incorrect to state there are no more IDPs or IDP Camps in Sri Lanka. 2. Based on Government statistics compiled by UNHCR, as of 31 December 2012 there were 93,447 displaced persons. The Ministers himself recognises the old case load of IDPs in his Opening Statement to the Working Group of the Universal periodic review on Sri Lanka on 01 November 2012 (See http://www.lankamission.org/images/2012images/Nov ember2012/National%20Statement%20in%20PDF.pdf page 13) 3. Several IDP camps remain open including the Killivetti, Paddithidal and Manichchennai Welfare Centres in the Eastern Province and Nilavan Kudiyiruppu and Chunnakam Welfare Centres in the Northern Province. 4. Whilst there has been some progress with return and resettlement of IDPs, there are obstacles of many others returning to their land due to various reasons including military occupation of land and areas being closed off. Attention also needs to be given to the old case load such as the Northern Muslim IDPs and those displaced due to the Jaffna High Security Zone and the Sampur Heavy Industry Zone. 5. There are also concerns as to how the Government of Sri Lanka (GoSL) arrived at the figure 28,398 IDPs who have chosen to live with host families. There is no information publicly available to suggest the GoSL conducted a comprehensive survey to ascertain the choices of IDPs.

2. Post-War Land Issues the Government is in the process of establishing a Land Commission. The Terms of Reference of the Fourth Land Commission are being formulated. This is in accordance with the LLRC recommendation on land return and resettlement.

There is an urgent need to establish mechanisms that examine land issues in post war Sri Lanka but there is confusion as to how the proposed Fourth Land Commission would defer from the National Land Commission (NLC) provided in the Thirteenth Amendment to the Constitution which is yet to be established. Information should be publicly shared on the TOR of the Land Commission and involve stakeholders and communities in the formulation and planning process.

3. Demilitarisation With the termination of military operations and the gradual restoration of normality, the strength of the military in the North has been reduced considerably. Further rationalization of this presence

1. The GosL should provide comprehensive figures of the military and police forces that are stationed in the North. Although official statistics are not available, a recent report estimated (based on figures from government sources) a total of 198,000 security

would be considered in line with national security interests.

personnel in the Northern Province. This amounts to a ratio of 1 security personnel for every 5.04 civilians. (See Economic and Political Weekly, Notes on the Military Presence in Sri Lankas Northern Province) 2. Reports from North indicate that the military plays a key role in local affairs including project implementation and registration of civilians. There also continues to be retired military officials who have prominent roles in the civil administration in the North and East. (See Internal Displacement Monitoring Centre, Sri Lanka: A hidden displacement crisis, p.7)

I must re-emphasize that the military is in no way engaged in civil administration which is the sole responsibility of civilian officials.

4. Compensation for land acquisition The Government is in the process of devising measures to pay compensation to the owners of properties within such areas or provide them with alternate land.

1. This statement implies that not all land will be returned to the legal owners as a result of military occupation. Recent statements made by military indicate some land will be returned in 2014 but there is no clear policy statement by the GoSL on this issue. 2. The GoSL should have a comprehensive and uniform policy for compensation and adhere to the existing legal framework when acquiring land.

5. Military occupation of land The Sri Lanka Army was responsible for demining approximately 75% of the land which was the largest single area assigned to any of the parties involved in demining and included most of densely mined regions. As of January 2013, about 99% of the areas identified for demining have been cleared and less than 98 square kilometers of territory remains to be cleared.

1. While recognising the progress made with the demining, questions remain as to why legal owners of private land which were previously mined cannot return to their land if 99% of the areas have been demined. 2. While the Government has periodically released land occupied by the military it continues to occupy significant areas of both public and private land. The Government has merely changed the nomenclature of High Security Zones to cantonments. It is estimated that at least 26,000 persons cannot return and reclaim their land due to military occupation (See Internal Displacement Monitoring Centre, Sri Lanka: A hidden displacement crisis, p.9)

6. Ex-combatants and rehabilitees from approximately 12,000 persons(excombatants) at the inception, as of 15th January 2013, 396 beneficiaries (378 male and 18 female) are undergoing rehabilitation and 225 are under legal proceeding (under judicially mandated custody remanded or bailed). 11,456 (9,203 male and 2,253 female) persons, including 594 former LTTE child soldiers, have been

While a large number of persons have been put through the Governments rehabilitation process and are now back in their communities, there are numerous reports of the continuing vulnerability of such persons due to factors such as repeated visits and harassment by the authorities and lack of adequate economic support to build up livelihoods.

rehabilitated and reintegrated into the society. It should be noted that GOSL adhered to a policy of treating all these children as victims, not as perpetrators and all possible efforts have been taken to look into their welfare and secure their future. 7. Investigations into alleged violations of International Humanitarian Law carried out by the military A Court of Inquiry was established by the Commander of the Sri Lanka Army to inquire into the observations made by the Lessons Learnt and Reconciliation Commission (LLRC) in its report as to alleged civilian casualties during the final phase of the Humanitarian Operation and the Channel-4 video footage irrespective of its authenticity or otherwise.

1. The report of the Court of Inquiry is not available publicly and therefore questions still remain with the process include the mandate of such a mechanism and its TOR. Serious concerns are raised with the independence of such mechanisms as it is perceived as the defence establishment hearing and deciding on alleged violations committed by their own. 2. Even if civilian evidence was gathered it is unlikely that civilians would feel safe to give evidence of alleged violations committed by the military. This is further exacerbated in the absence of an effective Victim and Witness protection mechanism. 3. The Ministry of Defence (MoD), Army and others have on several occasions denied the authenticity of the Channel 4 video. A video was made by the Government to counter the factual basis of the allegations in the Channel 4 video. In such a context, questions are raised whether the MoD and other Government actors can conduct an assessment which is independent and impartial.

The Court of Inquiry will now proceed to investigate the second part of their mandate - to examine the Channel 4 allegations.

8. Investigations into key human rights cases In relation to the killings of 5 students in Trincomalee and the 17 ACF workers, the Police are conducting further investigations guided by a special team of senior prosecutors specially mandated for the purpose of examining documents and other forensic material that may be useful to conclude the investigations relating to these two cases in the case of the 5 students, the Attorney General has instructed the Police to commence a nonsummary inquiry before judicial authorities. Thus this matter may be brought to a conclusion and is concrete evidence of our commitment to accountability.

1. Both incidents have been inquired and investigated since 2006 with no results publicly known. Both cases were part of the case load of the Commission of Inquiry which looked into the 16 past incidents where the report was handed over to the President but the findings have not been made public nor has the GoSL reported on follow up action undertaken 2. There should be information available to the families of the victims and their legal representatives on any new initiatives that are being undertaken including the non-summary inquiry before the judicial authorities.

9. Implementation of the LLRC and National Human Rights Action Plan Referring to the concern expressed on the The explanation raises concerns considering that: alleged lack of Government 1. This is the 1st time there has been even an attempt by implementation of the interim the GoSL at explaining the link between the process recommendations and that the National under the NPoA and the National Human Rights Plan of Action (NPoA) deals with only Action Plan (NHRAP) selected recommendations of the LLRC, I wish to inform this Council that some of 2. NPoA on at least two occasions directly refers to the the recommendations were already being NHRAP and states that the activities regarding those addressed, including through the National LLRC recommendations will be carried out in Human Rights Action Plan. They have not accordance with the NHRAP [Provide comprehensive, been reflected in the NPoA. Further it may island-wide human rights education programmes be noted that the NPoA is an evolving (LLRC Action plan 9.60); Establish an Inter-Agency process. Task Force mandated to address in a comprehensive manner the needs of women, children, elderly and other vulnerable groups such as disabled affected by conflict, and provide necessary relief and (LLRC Action plan 9.92)]. Considering the ministers assertion questions are raised as to why this could not be done for the other areas without completely ignoring them. 3. There are also concerns as to what is meant by the NPoA is an evolving process. Will the NPoA keep changing including the identified time period and implementing agencies? Will there be any progress with the recommendations if the goals keep changing? 4. How does the GoSL intended to address the concern that the NPoA in certain instances falls short of the recommendations made by the LLRC? [some examples include but are not limited to (i) on the setting up of an Inter Advisory Committee to monitor detentions and arrests (LLRC Report, 9.57) while the Action Plan response is to use the measures for investigating alleged IHL violations i.e an MOD inquiry (ii) the establishment of an early warning and early diffusing mechanism in consultation with inter-faith groups (LLRC Report, 9.270) while the Action Plan looks at the continuation of Civil Defence Committees and community policing]

10. National Human Rights Action Plan The Government will engage with The GoSL should make public the Annual Review of the stakeholders in connection with the NHRAP including the process used for such a review. implementation of the National Plan of Action for the Promotion and Protection of Human Rights (NHRAP - 2012 to 2016). The Annual Review of the NHRAP is under way with further information being collected from implementing agencies. The progress achieved will be published on the dedicated NHRAP website.

11. Political Solution As to the proposed Parliamentary Select Committee (PSC) the Government is of the view that it is the most appropriate forum on this matter since constitutional reforms need a two-third majority and a broad national consensus. While the Government has nominated its representatives to the PSC, the nominations of the opposition parties are awaited.

1. Both the Tamil National Alliance (TNA) and the United National Party (UNP) have not nominated members to the PSC. The TNAs stance is to initially reach an agreement on a broad framework and specific issues with the GoSL, which can then be submitted to the PSC subsequently. The GoSL has not agreed to such a position resulting in a stalemate. 2. There are fears that the PSC will merely serve as a mechanism to prove that there is a political dialogue rather than one that is committed to arriving at a solution. The current Government established the APRC in July 2006. It met 126 times over three years. The final report was presented to the President in July 2010 but there has been no further action to date. 3. The GoSL has not fully implemented the Thirteenth Amendment to the Constitution. Instead, there are clear signs that the Central Government is taking a series of measures to take back limited powers that were devolved and may even introduce a constitutional amendment to that effect in the immediate future. Questions are therefore asked what the PSC is meant to achieve. 4. The GoSL should articulate their position on the devolution of power as the basis of a political solution to address minority grievances.

12. Elections for the Northern Provincial Council Provincial elections are envisaged to be held within the course of this year for the Northern Province in keeping with the Provincial Councils Elections Act and relevant judicial pronouncements interpreting the provisions of the law.

The delays for this election are unclear given that multiple elections, including local authority and parliamentary have been held in the north since the end of the war. Media reports have indicated the plans to hold Northern Provincial elections in September but the statement here seems to indicate no such date is identified. The GoSL should publicly announce when elections are to be held to ensure all who are eligible to vote are informed and necessary preparations such as obtaining documents are done in advance.

13. Reconciliation processes it is the Governments primary responsibility to resolve domestic issues. Unwarranted internationalization of such issues would only undermine the local reconciliation process in Sri Lanka; a process that is still ongoing, impacting adversely on the people in the former conflict- affected areas in their efforts to

It is imperative that the GoSL share publicly but at a minimum inform the people of Sri Lanka including people from the affected areas as to what is meant by the reference to a local reconciliation process. The growth of an antiMuslim campaign in the South of the country, including attacks on mosques makes clear the continuing or even emerging challenges on the ground to which the GoSLs response has been extremely poor.

reap the dividends of peace. 14. Engagement with Special Procedures It would be incorrect to state that we do not engage with Special Procedure mechanisms. During the UPR, we placed on record our continuing engagement with these expert mandate holders; an engagement we value. We agree that the special procedures, while being independent, play an important complementary role to the work of the OHCHR. Sri Lanka is however concerned to note several instances where special procedures mandate holders have not adhered to the Code of Conduct, and have on occasion, exceeded their respective mandates. We therefore emphasize the importance of the need for the mandate holders to adhere to the Code of Conduct as stipulated, in executing their respective mandates.

It is welcome to hear that the GoSL is open to engagement with Special Procedures. However this raises questions as to why there continues to be eight pending requests to visit by eight Special Procedures. (See Report of the United Nations High Commissioner for Human Rights on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka, http://www.ohchr.org/Documents/HRBodies/HRCouncil/R egularSession/Session22/A-HRC-22-38_en.pdf, p.4,)

15. Victim and Witness Protection Legislation A Cabinet Memorandum titled Several statements on this issue have been made with no Assistance and Protection of Victims of progress on the ground. The most recent statements Crime and Witnesses Bill was submitted include: by the Ministry of Justice and was taken up 1. During the Universal Periodic review process in 2008 for policy approval at the Meeting of the the GoSL stated that The proposed bill on Victim and Cabinet of Ministers held on 07 February Witness Assistance and Protection has received 2013. constitutional clearance from the Supreme Court and is before Parliament (Report of the Working Group on the Universal Periodic Review: Sri Lanka, 5 June 2008, para 80). During the 19th Session of the UNHRC (2012), the Justice Minister assured diplomatic missions in Geneva that the proposed witness protection bill would be enacted in Parliament soon. Prior to Sri Lankas review in the second cycle of UPR, in August 2012 the Secretary to the Justice Ministry stated (to a GoSL owned news paper) that witness and victim protection law would be introduced soon. 2. Despite repeated promises during and prior to HRC sessions the proposed legislation has not been enacted. 3. The GoSL should make public the draft Bill. 4. While its important to have a law on this issue, a law in itself will not resolve the challenges. There should be greater attention focused on how to have a strong

victim and witness protection mechanism.

16. Impeachment of the Chief Justice On the issue of the removal process of the former Chief Justice, due process has been followed in accordance with the Constitution of Sri Lanka. Article 107 (3) of the Constitution of Sri Lanka clearly empowers the Legislature to initiate the process to remove the Chief Justice. Following a submission of a motion signed by 117 Members of Parliament, a Parliament Select Committee (PSC) was constituted by the Speaker, consisting of Government and Opposition MPs, to examine issues connected with the allegations made against the former Chief Justice. The report of the PSC was submitted to Parliament and the matter was deliberated upon and debated for two days, one month after submission of the report. Once the resolution to remove the former Chief Justice was passed in Parliament with a two-thirds majority of 106 votes (155 members voting in favour and 49 against)

1. The removal of the Chief Justice (CJ) was contrary to a ruling of the Supreme Court that the government had to enact a law with proper safeguards in order to move ahead with the impeachment process according to the Constitution. 2. The removal of the CJ blatantly violated an order of the Court of Appeal which quashed the report of the Parliamentary Select Committee (PSC) finding the CJ guilty of misconduct. 3. All 117 Members of Parliament (MPs) who signed the motion are members of the GoSL. All 155 MPs who voted for the impeachment are members of the GoSL. A majority of the MP on the PSC were from the government. 4. The opposition MPs of the PSC walked out of its proceedings alleging bias on the part of the GoSL MPs and the lack of a fair hearing. The CJ also walked out on the proceedings on the same grounds.