The eleventh Special Session of the Human Rights Council on Sri Lanka concluded after adopting a resolution on assistance to Sri Lanka in the promotion and protection of human rights in which the Council urged the Government to continue strengthening its activities to ensure that there was no discrimination against ethnic minorities in the enjoyment of the full range of human rights. The Council also commended the measures taken by the Government of Sri Lanka to address the urgent needs of the internally displaced persons.  

The resolution condemned “all attacks that the LTTE (Liberation Tigers of Tamil Eelam) launched on the civilian population and its practice of using civilians as human shields” and welcomed “the liberation by the government of Sri Lanka of tens of thousands of its citizens that were kept by the LTTE against their will as hostages.” It commended the “measures taken by the Government of Sri Lanka to address the urgent needs of the Internally Displaced Persons” and appealed for financial support for the country’s post-war reconstruction. 

The result of the vote was as follows:
In favour (29): Angola, Azerbaijan, Bahrain, Bangladesh, Bolivia, Brazil, Burkina Faso, Cameroon, China, Cuba, Djibouti, Egypt, Ghana, India, Indonesia, Jordan, Madagascar, Malaysia, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay, and Zambia.

Against (12): Bosnia and Herzegovina, Canada, Chile, France, Germany, Italy, Mexico, Netherlands, Slovakia, Slovenia, Switzerland, and United Kingdom.

Abstentions (6): Argentina, Gabon, Japan, Mauritius, Republic of Korea, and Ukraine.

Full text of Sri Lanka’s resolution and breakdown of votes, UNHCHR Press release, 27 May 2009.

Sources
Sri Lanka says U.N. rights vote vindicates war victory, Reuters, 28 May 2009; UN vote on Sri Lanka attacked; Financial Times, 28 May 2009; UN rights body backs Sri Lankan resolution on war, Reuters, 27 May 2009; Sri Lanka forces West to retreat over ‘war crimes’ with victory at UN, Times, 28 May 2009; Sri Lanka wins at the UNHRC, Daily Mirror, 28 May 2009.

Quotations

“The earlier resolution had various adverse ingredients, much to the detriment of Sri Lanka’s profile, its reputation, and in terms of its future agenda, including an investigative element they brought in. We were able to defeat that,” Sri Lankan Foreign Minister Rohitha Bogollagama.

“The decisive victory at this crucial time, just 10 days after the end of the war, sends a very positive message, as it shows the endorsement of the international community of Sri Lanka’s efforts to resolve the humanitarian challenges in the aftermath of the conflict,” Mahinda Samarasinghe, Disaster Management and Human Rights Minister.

“This expanded resolution fails to call on the government of Sri Lanka to have an effective and independent inquiry into the violation of human rights and international humanitarian laws, nor does it address the problems faced by human rights defenders and journalists due to the lack of freedom of expression. It does not address the need for unhindered access to humanitarian agencies to the displaced and does not include a follow-up by the Council or a mechanism for the UN High Commissioner’s office for Human Rights to independently monitor the human rights situation in Sri Lanka,” German envoy to the UNHRC, speaking on behalf of the EU members. 

“The Human Rights Council did not even express its concern for the hundreds of thousands of people facing indefinite detention in government camps. The council ignored urgent needs and wasted an important chance to promote human rights. It is deeply disappointing that a majority of the Human Rights Council decided to focus on praising a government whose forces have been responsible for the repeated indiscriminate shelling of civilians,” Juliette de Rivero, Geneva advocacy director at Human Rights Watch, May 27, 2009.

“This resolution is not a hurrah for Sri Lanka, it is a sober document. It is a bridge between Sri Lanka and the world, and between Sri Lanka’s present and its future. It sought to represent the maximum possible consensus. We have sought to make this the highest common denominator of the concerns of the Council with regard to Sri Lanka,” Dayan Jayathilaka, the Sri Lankan Ambassador to the UN.

Related events
Tamil Tigers are formed
Sri Lanka fails to keep its seat on the UN Human Rights Council
Sri Lankan military forces recapture the final foothold of the Tamil Tigers
Prabhakaran and other Tiger leaders killed

Related feature
Feature: Historical roots of conflict in Sri Lanka

Quotations

“With the exception of the ICRC [the International Committee of the Red Cross], other aid workers must to leave the Wanni by 29 September,” Mahinda Samarasinghe, Minister for Disaster Management.

“We hope that [our departure] is temporary so that we can reach the people. What we do know is that it is too dangerous for us to operate at the moment and our operations are being asphyxiated by the conflict,” Gordon Weiss, U.N. spokesman.

“It’s a short-term measure. Very soon they can go back. … We are focusing on war. We can crush them. Why can’t we? They are in the jungle and our forces are also [there now],” President Mahinda Rajapaksa, Press Conference, 16 September 2008.

Sources
Last U.N. staff safely leave Sri Lanka war zone, Reuters, 16 September 2008; UN pulls out of Sri Lanka war zone, rebels deny plane downed, AFP, 9 September 2008; UN says pleading crowds halt Sri Lanka pull-out, AFP, 13 September 2008.

Earlier, winners of the Nobel Peace Prize from three continents called on UN members to reject Sri Lanka’s candidacy for the Council. Nobel laureates Desmond Tutu of South Africa, Adolfo Pérez Esquivel of Argentina, and Jimmy Carter of the United States each published statements urging opposition.

Sri Lanka secured 101 votes at the UN’s 192-member General Assembly, but this was not enough to beat the other Asian nations competing for seats on the Council that are allotted to the region.

Sources
Sri Lanka, Spain lose UN Rights Council election, Reuters, 21 May 2008; No right to be there, The Guardian, 19 May 2008; Sri Lanka slams door on rights monitors after UN blow, AFP, 22 May 2008.

Quotations

“The systematic abuses by Sri Lankan government forces are among the most serious imaginable. Government security forces summarily remove their own citizens from their homes and families in the middle of the night, never to be heard from again. Torture and extrajudicial killings are widespread. When the human rights council was established, UN members required that states elected must themselves “uphold the highest standards” of human rights. On that count, Sri Lanka is clearly disqualified. Governments owe it to Sri Lankan human rights victims – and to victims of human rights abuses around the world – to ensure that the Sri Lankan bid fails. Defeating the Sri Lankan candidacy would be a comfort to the people of Sri Lanka. It would place international pressure on the government to respect human rights, and to accept a UN human rights monitoring mission, which it has stubbornly refused. It would help make the council a place where true human rights leaders in all regions can help lead the world towards greater respect for human life and human dignity. An outcome, in short, that would benefit those who care about human rights in the world. Any other result would be a travesty.” Desmond Tutu, winner of the Nobel Peace Prize in 1984.

“They have done a very subjective campaign, they were only putting forward one side of the story. They were not talking about the substantial progress that Sri Lanka made and, as far as we are concerned, we will continue to show.” Mahinda Samarasinghe, Sri Lanka’s Human Rights and Disaster Management Minister.

“I reiterate our position again – we don’t see a need for a foreign body to monitor us. We have the necessary laws and procedures in place to monitor cases of human rights. We don’t see the vote as a defeat, it’s not a setback. In fact 101 countries backed us, which is a show of support for our government.” Foreign Minister, Rohitha Bogollagama.

Related events
3 March 2008
29 October 2007
13 October 2007
25 September 2007
25 September 2007

Source
UN human rights expert reports allegations of torture in Sri Lanka, UN News Centre, 29 October 2007.

Quotation

“The high number of indictments for torture filed by the Attorney General’s Office, the number of successful fundamental rights cases decided by the Supreme Court of Sri Lanka, as well as the high number of complaints that the National Human Rights Commission continues to receive on an almost daily basis indicates that torture is widely practiced in Sri Lanka.” Manfred Nowak, Special rapporteur on torture for the U.N. Human Rights Council.

far as declining invitations when these conditions are not met. Given the high levels of insecurity, that include killings and abductions, faced by humanitarian agenices, human rights organizations and other civil society organisations we are also deeply concerned of the security implications for the actors who were invited to the meetings”.

Source
Press statement condemning military interference on Jaffna NGOs meetings with UN Under Secretary General on humanitarian affairs, Centre for Poverty Analysis, 9 August 2007;

Extracts from the Press Statement
“Our colleagues in Jaffna have also conveyed to us that on the day before Mr. Holme’s visit to Jaffna, the military commander called for a meeting at Palaly military headquarters, at which NGOs and civil society representatives were instructed not to refer to human rights issues and to restrict themselves to issues of humanitarian assistance during their meeting with Mr. Holmes. The military told the NGO and civil society representatives present that they, the military, would brief Mr. Holmes about the human rights and security situation, while the Government Agent would brief Mr. Holmes about the situation of Internally Displaced Persons (IDPs).

Humanitarian and human rights groups in Jaffna have expressed their serious reservations about this interference by the military and regret their inability to meet Mr. Holmes in a more private manner, which would have enabled them to freely share their views, perspectives and experiences with him.

We condemn this type of military interference in matters relating to civil society and NGO activity. This completely undermines existing practice in which visiting UN officials meet with civil society groups during country visits, insisting on privacy for such meetings, even going as far as declining invitations when these conditions are not met. Given the high levels of insecurity, that include killings and abductions, faced by humanitarian agencies, human rights organisations and other civil society organisations, we are also deeply concerned about the security implications for the actors who were invited to the meetings.

The steps taken by the military in Jaffna to restrict Mr. Holmes’ access to information can only reaffirm concerns in the international community that there is no transparency and accountability of the government and of the military when it comes to both human rights and humanitarian issues in the conflict-affected areas of Sri Lanka.

We trust that Mr. Holmes will reflect these concerns in his reports, on the basis that his ability to obtain an objective assessment of the situation on the ground in the country, based on perspectives of various stakeholders including humanitarian agencies, was negatively affected by this situation.”

Extracts from UN News Centre report

"The 20-page report covers the period from 1 November 2005 to 31 October 2006, and notes that over these 12 months, the UN Children’s Fund (UNICEF) received reports of hundreds of children being recruited by the Liberation Tigers of Tamil Eelam (LTTE), and also Sri Lankan army involvement in recruitment of children by the Karuna faction.

“Despite previous commitments by the Liberation Tigers of Tamil Eelam, that group continues to use and recruit children. In addition, a particularly disconcerting development during the reporting period was the increase in abductions and recruitment of children in the east by the Karuna faction, a breakaway group of Liberation Tigers of Tamil Eelam,” it states.

“Reports have also been received in Batticaloa District that on 14 and 26 June, Sri Lankan Army personnel carrying weapons, accompanied Karuna faction members who forcibly abducted and recruited nine children aged 14 (two children), 15 (one child) and 17 years (six children),” the document adds, referring to the eastern part of the island.

"In outlining his recommendations, the Secretary-General reiterates his call for an immediate end to the conflict, which has already caused the deaths of more than 65,000 people in over 20 years, while stressing that any peace settlement must include provisions that “ensure the protection of children.

“Although limited progress has been made in the release of some children from LTTE over the last three years, the refusal of LTTE to completely cease recruitment and use of children, release all children remaining on the UNICEF database and engage in transparent procedures for release and verification of demobilization warrants the undertaking of targeted measures against LTTE political and military leadership.

"He also calls for the Government to investigate immediately allegations that certain elements of the Sri Lanka security forces are involved in aiding the recruitment and/or abduction of children by the Karuna faction in the East, and invites UNICEF and other relevant agencies to help address the matter."

Source
UN for cessation of hostilities in Sri Lanka, The Hindu, 3 January 2007.

Quotation

"Sri Lankans continue to suffer deeply due to this conflict, and yesterday’s loss of life is a source of deepest concern. It is imperative that both sides in the conflict take all measures to fulfill their obligations under international law to protect civilians in this conflict. We have too often seen them fall short in this duty". Margareta Wahlstrom, UN Assistant Secretary-General for Humanitarian Affairs and Acting Emergency Relief Coordinator.

Sources
Sri Lanka youth ‘seized to fight’, BBC, 13 November 2006; Karuna Group abducts children for combat, Human Rights Watch, 24 January 2007.

Extracts from Report of Allan Rock, Special Adviser to the Special Representative of the Secretary-General for Children and Armed Conflict on Sri Lanka

“As documented in the Secretary-General’s Report, the LTTE has been actively recruiting and abducting children in the northern and eastern districts of Sri Lanka for years. Despite having been repeatedly named by the Secretary-General in his annual reports to the Security Council on child recruitment, and despite LTTE’s own repeated promises that it would stop child recruitment and release the children in its ranks, UNICEF has verified, and the Secretary-General has reported, LTTE’s continued pattern of abduction, recruitment and use of children.

“The Karuna faction abducts and recruits children into its forces. It does so exclusively in the eastern districts of Sri Lanka. The Secretary-General’s Report disclosed that from November 2005 to October 2006, there were 164 reports of children having been abducted by the Karuna faction, 142 of whom still remain in its ranks. Since May 2006, the number of abductions has increased sharply. In the space of one week in mid-June 2006 alone, UNICEF received 30 reports alleging that children had been abducted by the Karuna faction in the areas of Santhiveli, Kiran, Mankerni, Valachchenai and Iruthayapuram (Manmunai North) of Batticaloa district.

“The fact that the Karuna faction has abducted so many children in Government-controlled areas in the eastern districts of Sri Lanka raises the question why the Government has not more effectively protected those children, investigated the complaints made by the children’s families, and secured the release and return of the children from the Karuna faction camps that are located in areas under Government control.

“Based on the facts and circumstances set out in this report, I have concluded that certain elements of the Sri Lankan security forces are complicit in the abduction of children by the Karuna faction, and that at least some elements of the security forces have facilitated and sometimes participated in those abductions.

“The complicity of certain elements of the security forces in Karuna faction abductions is common knowledge in the eastern areas where I traveled. The civilian population is in no doubt about why Karuna faction members (as described more fully below) work openly with Government security forces at checkpoints, carry weapons on the streets with impunity, and escape investigation despite many complaints to police and security forces about their involvement in child abductions.”

Source
Nallaratnam Singarasa v Attorney-General, Supreme Court of the Democratic Socialist Republic of Sri Lanka, 15 September 2006, S.C.Spl (LA) No. 182/99.

Extracts from the judgement
“The High Court convicted the Petitioner on the basis of his confession after a full voir dire inquiry as to its voluntariness. If the confession is adequate to base a conviction, a retrial (as contemplated by the Committee) would be a superfluous re-enactment of the same process. The Petitioner has been convicted with [sic] having conspired with others to overthrow the lawfully elected Government of Sri Lanka and for that purpose attacked several army camps. The offences are directly linked to the Sovereignty of the People of Sri Lanka, and the Committee at Geneva, not linked with the Sovereignty of the People, has purported to set aside the orders made in all three levels of Courts that exercise the judicial power of the People of Sri Lanka. …

“The resulting position is that the Petitioner cannot seek to “vindicate and enforce” his rights through the Human Rights Committee at Geneva, which is not reposed with judicial power under our Constitution. A fortiori it is submitted that this Court being “the highest and final Superior Court of record in the Republic” in terms of Article 18 of the Constitution cannot set aside or vary its order as pleaded by the Petitioner on the basis of the findings of the Human Rights Committee in Geneva which is not reposed with any judicial power under or in terms of the Constitution. …

“[Where] the President enters into a treaty or accedes to a Covenant the content of which is “inconsistent with the provisions of the Constitution or written law’ it would be a transgression of the limitation in Article 33 (f) [of the Constitution] and ultra vires. Such act of the President would not bind the Republic qua state. … [Recognition of the role of the ICCPR Committee to receive and consider communications] is a purported conferment of a judicial power on the Human Rights Committee in Geneva. …

“Therefore the accession to the Optional Protocol in 1997 by the then President and Declaration made under Article 1 is inconsistent with the provisions of the Constitution specified above and is in excess of the power of the President as contained in Article 33 (f) of the Constitution. The accession and declaration does not bind the Republic qua state and had no legal effect within the Republic. …

“In these circumstances the petitioner cannot plead a legitimate expectation to have the findings of the Human Rights Committee enforced or given effect to by an order of this Court.” Sarath N Silva, Chief Justice.

Quotations

“In a regrettable ruling handed down on 15 September 2006 the Sri Lankan Supreme Court has struck a blow against those human rights victims in Sri Lanka expecting to obtain redress through the UN Human Rights Committee (HRC) for breaches of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court held that the Sri Lankan state’s accession to the Optional Protocol to the ICCPR – which allows individuals to complain directly to the HRC having exhausted domestic remedies – was unconstitutional. This is despite the fact that the complaints mechanism under the Optional Protocol to the ICCPR has been in force in Sri Lanka for nearly a decade, and that by ratifying the ICCPR the State has undertaken to ensure respect for those rights protected by it.” Sri Lankan Ruling undermines UN Complaints Mechanism, Interights.

“The judgement renders Sri Lanka’s accession to the Protocol under the ICCPR of no force and effect within the domestic context. Needless to say, the State’s obligations in international law will continue in force unless and until it denounces the Optional Protocol. Denouncing of the ICCPR Protocol by the State will carry with it serious consequences in the international law sphere, particularly in the context of the recent intensification of the conflict in the North East. Then again, the country’s election to membership of the UN Human Rights Council imposes a particular obligation which will itself be in issue if the Government continues to be ambiguous in respect of the domestic implementation of its international law commitments. Undoubtedly this judgement will now make the Government acutely uncomfortable when it sends its representatives before international committees to plead Sri Lanka’s conformity with treaty commitments.” Kishali Pinto Jayawardena, Law & Society Trust, Volume 17 September & October Joint Issue – 227 & 228.

Related events
11 September 1980
3 January 1998
23 August 2004

Source
Singarasa v. Sri Lanka, UN Doc. CCPR/C/91/D/1033/2001 (23 August 2004); Law & Society Trust, Volume 17 September and October Joint Issue – 227 & 228.

Extracts from the Committee’s Views
1.1 The author of the communication is Mr. Nallaratnam Singarasa, a Sri Lankan national, and a member of the Tamil community. He is currently serving a 35 year sentence at Boosa Prison, Sri Lanka. He claims to be a victim of violations of articles 14, paragraphs 1, 2, 3 (c), (f), (g), and 5, and 7, 26, and 2, paragraphs 1, and 3, of the International Covenant on Civil and Political Rights. …

Facts as submitted by the author

2.1 On 16 July 1993, at about 5am, the author was arrested by Sri Lankan security forces while sleeping at his home. 150 Tamil men were also arrested in a “round up” of his village. None of them were informed of the reasons for their arrest. They were all taken to the Komathurai Army Camp and accused of supporting the Liberation Tigers of Tamil Eelam (known as ‘the LTTE’). During his detention at the camp, the author’s hands were tied together, he was kept hanging from a mango tree and was allegedly assaulted by members of the security forces. …

2.2 He was detained pursuant to the Prevention of Terrorism Act No. 48 of 1979.

2.3 [Between July and September 1993 he was interrogated, held incommunicado, and denied legal representation and medical assistance. For two days he claims to have been tortured] which included being pushed into a water tank and held under water and then blindfolded and laid face down and assaulted. …

2.5 [During his interrogation, since] the author could not speak Sinhalese, the Police Constable interpreted between Tamil and Sinhalese. The author was then requested to sign a statement which had been translated and typed in Sinhalese by the PC. The author refused to sign as he could not understand it. He alleges that the ASP then forcibly put his thumbprint on the typed statement. The prosecution later produced this statement as evidence of the author’s alleged confession. …

2.9 On 12 January 1995, in an application to the High Court, defence counsel submitted that there were visible marks of assault on the author’s body, and moved for a medical report to be obtained. On the Court’s order, a Judicial Medical Officer then examined him. According to the author, the medical report stated that the author displayed scars on his back and a serious injury, in the form of a corneal scar on his left eye, which resulted in permanent impairment of vision. It also stated that “injuries to the lower part of the left back of the chest and eye were caused by a blunt weapon while that to the mid back of the chest was probably due to application of sharp force”.

2.10 On 2 June 1995, the author’s alleged confession was the subject of a voir dire hearing by the High Court, at which the ASP, PC and author gave evidence, and the medical report was considered. The High Court concluded that the confession was admissible, pursuant to section 16(1) of the PTA, which renders admissible any statement made before a police officer not below the rank of an ASP, provided that it is not found to be irrelevant under section 24 of the Evidence Ordinance. Section 16(2) of the PTA put the burden of proof that any such statement is irrelevant on the accused. (4) The Court did not find the confession irrelevant, despite defence counsel’s motion to exclude it on the grounds that it was extracted from the author under threat. …

2.11 According to the author, the High Court gave no reasons for rejecting the medical report despite noting itself that there were “injury scars presently visible on the [author's] body” and acknowledging that these were sequels of injuries “inflicted before or after this incident.” In holding that the confession was voluntary, the High Court relied upon the author’s failure to complain to anyone at any time about the beatings.

2.12 On 29 September 1995, the High Court convicted the author on all five counts, and on 4 October 1995, sentenced him to 50 years imprisonment. The conviction was based solely on the alleged confession.

The State party’s submissions on admissibility and merits

4.8 On the claim of torture, the State party submits that the trial court and the Court of Appeal made clear and unequivocal findings that these allegations were inconsistent with the medical report adduced in evidence, and that the author had failed to make such allegations to the Magistrate or to the police, prior to the trial.

4.9 On the issue of a violation of article 14, paragraph 5, it notes that the author was afforded every opportunity to have his conviction and sentence reviewed by a tribunal according to law, and that he merely seeks to question the findings of fact made by the domestic courts before the Committee.

Issues and proceedings before the Committee

7.2 [A]s clearly appears from the court proceedings, the confession took place in the sole presence of the two investigating officers – the Assistant Superintendent of Police and the Police Constable; the latter typed the statement and provided interpretation between Tamil and Sinhalese. The Committee concludes that the author was denied a fair trial in accordance with article 14, paragraph 1, of the Covenant by solely relying on a confession obtained in such circumstances. …

7.4 On the claim of a violation of the author’s rights under article 14, paragraph 3 (g), in that he was
forced to sign a confession and subsequently had to assume the burden of proof that it was extracted under duress and was not voluntary, the Committee must consider the principles underlying the right protected in this provision…The Committee considers that it is implicit in this principle that the prosecution prove that the confession was made without duress….[T]he Committee also notes that the burden of proving whether the confession was voluntary was on the accused… Even if, as argued by the State party, the threshold of proof is “placed very low” and “a mere possibility of involuntariness” would suffice to sway the court in favour of the accused, it remains that the burden was on the author. The Committee notes in this respect that the willingness of the courts at all stages to dismiss the complaints of torture and ill-treatment on the basis of the inconclusiveness of the medical certificate (especially one obtained over a year after the interrogation and ensuing confession) suggests that this threshold was not complied with. Further, insofar as the courts were prepared to infer that the author’s allegations lacked credibility by virtue of his failing to complain of ill-treatment before its Magistrate, the Committee finds that inference to be manifestly unsustainable in the light of his expected return to police detention. Nor did this treatment of the complaint by its courts satisfactorily discharge the State party’s obligation to investigate effectively complaints of violations of article 7. …

7.6 In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including release or retrial and compensation. The State party is under an obligation to avoid similar violations in the future and should ensure that the impugned sections of the PTA are made compatible with the provisions of the Covenant.

Related events
11 September 1980
3 January 1998
15 September 2006

Source
UN HCHR website

Text of declaration
“The Government of the Democratic Socialist Republic of Sri Lanka pursuant to article (1) of the Optional Protocol recognises the competence of the Human Rights Committee to receive and consider communications from individuals subject to the jurisdiction of the Democratic Socialist Republic of Sri Lanka, who claim to be victims of a violation of any of the rights set forth in the Covenant which results either from acts, omissions, developments or events occurring after the date on which the Protocol entered into force for the Democratic Socialist Republic of Sri Lanka or from a decision relating to acts, omissions, developments or events after that date. The Democratic Socialist Republic of Sri Lanka also proceeds on the understanding that the Committee shall not consider any communication from individuals unless it has ascertained that the same matter is not being examined or has not been examined under another procedure of international investigation or settlement.”

Related events
11 September 1980
23 August 2004

Source
Human Rights Watch World Report: Sri Lanka, 1998.

Quotation

“The gap between those who have disappeared and the number of people whose whereabouts have been finally discovered is too huge, too important.” Bacre Waly N’diaye, UN’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

Related events
3 January 1998
23 August 2004