Sri Lanka

The UPR preparatory reports and the 229 recommendations⁴¹⁵ (A: 177, N: 52) given to Sri Lanka during the third cycle of the UPR illustrate the multifaceted risks facing the state.⁴¹⁶ The analysis will focus on the recommendations that have been accepted, when noted recommendations are assessed in the analysis this will be explicitly mentioned. All five key areas of resilience towards atrocities are addressed in the UPR material. The Sri Lankan civil war that started in 1983 was concluded in 2009, which makes the risk of recurrence especially important, and the assessment of the state’s UPR will have a particular focus on this area. The sub-analysis will focus on the potential of using the UPR to support structural atrocity prevention in a high-risk country like Sri Lanka. The current government was elected in 2015, and civil and political rights have been improved under the current administration.⁴¹⁷ Another positive development has been the 19th amendment to the Sri Lankan constitution which as accounted for in the Stakeholder Report 2017 has ensured “the removal of the President’s immunity for official acts; reducing the President’s power in relation to Parliament; re-introducing term limits for the office of the President; taking away the sole power of the President to make appointments to key independent institutions; and improving transparency in the law making process”.⁴¹⁸ Even with these improvements, issues such as impunity for crimes committed during the armed conflict and other serious human rights violations remain.

415 *The average number of recommendations per state was 213 in the 28th UPR session. Hence the number of recommendations received by Sri Lanka is slightly above average.

416 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279.

417 Freedom House, “Freedom in the World 2017 - Sri Lanka”, Freedom House, accessed 20.12.17, (available at: https://freedomhouse.org/report/freedom-world/2017/sri-lanka).

418 HRC, Summary of stakeholders’ submissions on Sri Lanka* Report of the Office of the United Nations High Commissioner for Human Rights (8 August 2017), A/HRC/WG.6/28/LKA/3, (available at https://www.upr-info.org/sites/default/files/document/sri_lanka/session_28_-_november_2017/a_hrc_wg.6_lka_3_e.pdf), §3.

Constructive Management of Diversity and Vibrant Civil Society

The key areas of resilience; constructive management of diversity and vibrant civil society will both be analysed in this section. The two areas are combined as there were only a few recommendations related to civil society, and those given are closely related to the constructive management of diversity.

Protection of Civil Society Actors

It is highlighted in the Sri Lankan National Report that for the first time civil society organizations were consulted in the preparation of the National Report.⁴¹⁹ However, looking at earlier national reports it is also stated in these that civil society representatives have been included in the preparation of the National Report of the first and second cycle.⁴²⁰ This shows that under certain governments the amount of reliable information in the National Report can be limited. Civil society organizations in Sri Lanka were addressed in recommendations from Palestine, Norway, Finland, and Ireland. These states recommended that all necessary measures should be taken to ensure protection of civil society actors and human rights defenders.⁴²¹ These recommendations are highly relevant for atrocity prevention and reflect a serious concern voiced in the UN System Report of “intimidation and harassment, including physical attacks, death threats, administrative detention and politically motivated charges, by State officials against journalists, lawyers, clergymen, members of non-governmental organizations (NGOs), human rights defenders and opposition politicians”.⁴²²

Human Rights Education

The important resilience building issue of human rights education is addressed in recommendations made by India and Burundi.⁴²³ States have given Sri Lanka

419 HRC, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Sri Lanka (24 August 2017), A/HRC/WG.6/28/LKA/1, (available at: https://www.upr-info.org/sites/default/files/document/sri_lanka/session_28_-_november_2017/a_hrc_wg.6_28_lka_1_e.pdf), §4-10. 420 HRC, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council

resolution 16/21* Sri Lanka (10 August 2012), A/HRC/WG.6/14/LKA/1, (available at https://www.upr-info.org/sites/default/files/document/sri_lanka/session_14_-_october_2012/ahrcwg.614lka1e.pdf), §9-10 and HRC, NATIONAL REPORT SUBMITTED IN ACCORDANCE WITH PARAGRAPH 15 (A) OF THE ANNEX TO HUMAN RIGHTS COUNCIL RESOLUTION 5/1 * Sri Lanka (2 May 2008), A/HRC/WG.6/2/LKA/1, (available it: https://www.upr-info.org/sites/default/files/document/sri_lanka/session_2_-_may_2008/ahrcwg62lka1e.pdf),

§2.

421 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.104-116.107.

422 HRC, Compilation on Sri Lanka Report of the Office of the United Nations High Commissioner for Human Rights (28 August 2017), A/HRC/WG.6/28/LKA/2, (available at

https://www.upr-info.org/sites/default/files/document/sri_lanka/session_28_-_november_2017/a_hrc_wg.6_28_lka_2_e.pdf),

§23.

423 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.29-116.30.

recommendations on human rights education since the first UPR cycle and it seems to be one of the most efficient contributions of UPR in the Sri Lankan case. The implementation has resulted in the introduction of human rights education in all pre-schools as well as human rights training for law enforcement officers, members of the armed forces and prison officers, and lastly IHL training for military personnel conducted by the ICRC.⁴²⁴ This shows that the recommendations on human rights education have triggered action, although the quality of these initiatives cannot be determined in this thesis.

National Human Rights Actions Plan

12 states recommended that the Sri Lankan government implement the National Human Rights Action Plan and in relation to this allocate the necessary resources to the Human Rights Commission.⁴²⁵ Afghanistan did as the only state recommend that Sri Lanka “Ensure the full alignment of the Human Rights Commission of Sri Lanka in accordance with the Paris Principles.”⁴²⁶ In many other cases such a recommendation is very commonly made for states that do not have such an accredited institution yet. The reason why this is not the case with Sri Lanka, could be that states have assumed that recommendations to support existing strategies, such as the National Human Rights Plan, will be more efficient.

Non-discrimination and Identification of Vulnerable Groups

Measures and efforts to strengthen non-discrimination and the protection of non-specified vulnerable groups were given by seven states.⁴²⁷ These recommendations could potentially provide pressure on Sri Lanka to strengthen the existing frameworks for non-discrimination, but they are less actionable as they do not identify specific vulnerable groups. The vulnerable group of religious minorities are more directly identified in a number of recommendations;

Namibia e.g. recommended Sri Lanka “Take concrete measures aimed at preventing and punishing the perpetrators of hate speech and incitement of violent attacks against ethnic and religious minority”.⁴²⁸ Such recommendations may be more useful as they target a vulnerable group, which is also the case in five recommendations addressing the rights and protection of migrants, internally displaced persons (IDPs), asylum-seekers and refugees.⁴²⁹ Interestingly,

424 HRC, Sri Lanka National Report 2017, supra note 419, §29-31.

425 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.15-116.16, 116-116-24, and 116.26-116.27.

426 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.17.

427 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.31-116.37.

428 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.42.

429 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.173-116.177.

the specifically vulnerable group of the Tamils are only referred to in one recommendation Peru made to “Continue the protection programs and policies of the Tamil population so that they can fully enjoy their rights, particularly economic, social and cultural rights”.⁴³⁰ The use of the wording “continue” makes the recommendation inappropriately vague, especially considering that it is stated throughout the Stakeholder Report that Tamils are harassed and under surveillance by security forces and that Sri Lanka lacks an “appropriate mechanism for the investigation and prosecution of war crimes, crimes against humanity and genocide committed against the Tamil people by the Sri Lankan State”.⁴³¹ Furthermore, it is “noted that destroying Tamil cultural identities, the Sri Lankan state was trying to wipe out Ethnic Tamil national identity”.⁴³² The language used in the last quote highly resembles the description of ethnic cleansing. Lastly it is highlighted that the Tamil-speaking minorities do not have fair and equal access to state services.⁴³³ These important issues both represent challenges to the constructive management of diversity, and as will be elaborated below, also a clear risk of recurrence of atrocity crimes.

Legitimate and Capable Authority Democracy and the Anti-torture Agenda

The issue of legitimate and capable authority is also addressed in different ways in the recommendations given to Sri Lanka during its third UPR cycle. Nepal gave the rather broad recommendation to “Continue the ongoing process of consolidating democracy and the rule of law in the country“,⁴³⁴ which is arguably not concrete enough to be actionable. A more specific and actionable recommendation was given by Indonesia, who recommended that Sri Lanka “strengthen regulatory and institutional framework to ensure implementation of the Zero Tolerance Policy on Torture, as well as enhancing capacity building on the prevention of torture”,⁴³⁵ Slovakia, Iran and Madagascar gave similar recommendations.⁴³⁶ These recommendations are important as it is highlighted in the UN System Report that torture is a serious and widespread issue in Sri Lanka.⁴³⁷ Widespread torture could constitute a crime against humanity.⁴³⁸ Torture and Other Cruel, Inhuman or Degrading Treatment is number

430 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.171.

431 HRC, Sri Lanka Stakeholder Report 2017, supra note 418, §31

432 HRC, Sri Lanka Stakeholder Report 2017, supra note 418, §82.

433 Ibid.

434 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.59.

435 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.55.

436 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.56-116.58.

437 HRC, Sri Lanka UN System Report 2017, supra note 422, §16-21.

438 Rome Statute, supra note 131, §7(f).

four on the list of top issues raised in the UPR process.⁴³⁹ As previously argued, the integration of R2P is competing with many human rights agendas, here included strongly established agendas such as the prevention of torture and women’s rights. It should be remembered, that such agendas are also highly relevant for the prevention of atrocity crimes, why the competition is not necessarily a problem for implicit structural prevention. However, the competition could be a more pressing challenge for the integration of explicit atrocity prevention into the UPR. Moreover, if states are exclusively focusing on a few human rights agendas, this could inhibit the holistic view on the SuRs’ human rights records, which has been highlighted as one of the main arguments for using the UPR to support atrocity prevention. The top three issues raised in the UPR (International instruments, women’s rights, and rights of the child) are significantly more raised than other issues.⁴⁴⁰ Nevertheless, in the case of Sri Lanka, states have targeted many different agendas with their recommendations, allowing a holistic view of the human rights situation. ^xliii

De-militarization of Lands

Civil control with security forces is an important resilience factor, and risks in this regard are especially relevant in post-conflict states in the process of consolidating democracy, such as Sri Lanka. The issue is more or less directly addressed in four recommendations. The most direct one was given by Switzerland “Strengthen the democratic control of the defence sector, in particular suspend the involvement of members of the armed forces in economic activities, in order to ensure guarantee of property of citizens, as well as their livelihoods”.⁴⁴¹ The other recommendations focus on the issue of land grabbing, land laws, and the restitution of lands confiscated by the military.⁴⁴² Well managed land laws is a resilience factor for the security of livelihoods, but with the involvement of the military, this is closely related to the key area of legitimate and capable authority. The issue of land return is accounted for in the National Report, where it is stated as a priority of the Sri Lankan government, who since 2009 has released 24,336.25 acres of private land, with 6051.36 acres left to be returned.⁴⁴³

439 UPR-info Statistics, Global Statistics, Table: Issue.

440 *The category international instruments constitutes 22,04% of all recommendations, women’s rights constitute 18,58%, rights of the child constitute 17,53%.

- UPR-info Statistics, Global Statistics, Table: Issue.

441 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.130

442 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.131-116.134.

443 HRC, Sri Lanka National Report 2017, supra note 419, §42.

Security of Livelihoods

The Sustainable Development Goals

The resilience area of security of livelihood is addressed in recommendations focusing onthe Sustainable Development Goals (SDGs), the protection of the environment, and calls for the integration of climate change considerations in the National Human Rights Action plan.⁴⁴⁴ Recommendations focusing on the environment and climate change are relevant for structural prevention, as natural disasters can be a trigger for atrocity crimes, especially if combined with the other risks of atrocities prevalent in the Sri Lankan society.

The recommendations on the SDGs have been given by the United Arab Emirates, Pakistan and Algeria. However, reflecting a general trend when referencing the SDGs, the recommendations are not specific and hence not very actionable.⁴⁴⁵ As an example, the recommendation from Algeria reads Continue efforts to ensure the implementation of the Sustainable Development Goals for the entire population”.⁴⁴⁶ Referring to emerging developments in the third cycle of the UPR, one Geneva-based diplomat argued in an interview, that there had not been increased focus on the R2P in the third cycle of the UPR, rather there had been increased focus on the SDGs.⁴⁴⁷ From an atrocity prevention perspective, this could still be positive, as implementation of the SDGs would contribute to more resilient societies. Especially goal 16 which focuses on the ambition to promote peaceful and inclusive societies, as it integrates efforts such as building resilience, strengthening the rule of law and ensuring accountable institutions in the development agenda.⁴⁴⁸ Referencing the SDGs in recommendations could therefore be a creative way for states to indirectly incorporate the R2P and atrocity prevention. However, both in regards to recommendations on the R2P and the SDGs, states should avoid turning the UPR into a forum of grand statements. In the sense of referencing broad agendas without recommending actionable steps for the SuR. A positive example of an actionable recommendation that can be highlighted was given by Mexico to Mozambique in the second cycle of the UPR

“Develop a strategy and national indicators in order to comply with the Sustainable Development Goals”.⁴⁴⁹ The identification of national indicators with regards to the SDGs would also be relevant for supporting atrocity prevention in Mozambique.

444 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.44-116-50.

445 UPR-info Database, Keyword: sustainable development goals.

446 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.50.

447 Silke KMH & Marie SC, interview with Geneva-based diplomat.

448 Alexandra Buskie, “Atrocity prevention and the SDGs – a shared ambition”, UNA-UK, 1st March 2016, (available at http://www.sustainablegoals.org.uk/atrocity-prevention-sdgs-shared-ambition/).

449 HRC, Mozambique Working Group Report 2016, supra note 329, §128.158.

Guarantees of Non-recurrence Human Rights Council Resolution 30/1

The recent conclusion of the civil war in Sri Lanka does as stated above increase the risk of recurrence of atrocity crimes. It can therefore generally be seen as positive that the resilience area of guarantees of non-recurrence is addressed both in recommendations given to Sri Lanka, the National Report, the Stakeholder Report, and the UN System Report. In 2015 the HRC adopted resolution 30/1 on the situation Sri Lanka, the resolution address a long list of elements related to the post-conflict situation in Sri Lanka.⁴⁵⁰ Among the issues addressed are; the recommendation to establish a transitional justice mechanism, truth and reconciliation, accountability for atrocity crimes and compensations for victims. The US and Australia linked the different procedures of the HRC and recommended that Sri Lanka fully implement HRC resolution 30/1, which Sri Lanka accepted.⁴⁵¹ Five states made recommendations such as the following from Norway to “Develop a clear timeline and benchmarks for the full implementation of its commitments in Human Rights Council resolution 30/1”,⁴⁵² these time-bound and more SMART recommendations were all noted by Sri Lanka, showing the lack of willingness to make such a specific commitment. In the National Report, Sri Lanka states that the government already in 2015 established a Secretariat for Coordinating Reconciliation Mechanisms to ensure that the commitments under HRC resolution 30/1 are fulfilled.⁴⁵³ However, in the Stakeholder Report wording such as “painstakingly slow” are used to describe the process of establishing the Truth Commission and Office for Reparations, while the implementation of a Victim and Witness Protection Act enacted in March 2015 is described as having fatal flaws hampering its overall effectiveness.⁴⁵⁴ This is just two examples showing how the National Report is highlighting specific measures taken, but without describing the output impact of the decisions. This underlines the importance of Stakeholder Reports for the credibility of the UPR process. Six states focused on one specific element of resolution 30/1 recommending that Sri Lanka establish a transitional justice mechanism.⁴⁵⁵ Seven other recommendations were also related to issues of accountability and reconciliation. France, Sierra Leone, Palestine, the US, and

450 HRC Resolution 30/1, Promoting reconciliation, accountability and human rights in Sri Lanka, A/HRC/RES/30/1 (14 October 2015), (available at

https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/236/38/PDF/G1523638.pdf?OpenElement),

451 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.90-116-91.

452 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §117.40-117.44.

453 HRC, Sri Lanka National Report 2017, supra note 419, §38.

454 HRC, Sri Lanka Stakeholder Report 2017, supra note 418, §30.

455 HRC, Sri Lanka Draft Working Group Report 2017, supra note 279, §116.76-116.81.

Argentina all recommended that Sri Lanka continues and completes the investigation of human rights violations and abuses committed against the civilian population during the civil war.⁴⁵⁶ The US specifically recommended that members of the security forces and government officials are held accountable.⁴⁵⁷

Enforced Disappearances

Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearance in December 2015, and has according to the National Report taken measures to introduce comprehensive legislation that incorporates the provisions of the Conventions into domestic law.⁴⁵⁸ In the two first cycles of the UPR, Sri Lanka received 15 recommendations to either ratify the Convention or cooperate with the Working Group on Enforced and Involuntary Disappearances; all of these were noted.⁴⁵⁹ The signing of the convention and the establishment of the Office for Persons Missing can be seen as a step in the right direction, but as the Working Group on Enforced or Involuntary Disappearances highlight in the UN System Report the challenge facing the Government is to “transform its promises into a concrete, comprehensive, legitimate and participatory framework aimed at securing the rights to truth, justice, reparation and memory, and guarantees of non-repetition for the families of the disappeared and Sri Lankan society as a whole”.⁴⁶⁰ Furthermore, it is stated in the Stakeholder Report that Sri Lanka has the second highest number of enforced disappearances in the world.⁴⁶¹ This serious issue is indeed a challenge to the consolidation of

Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearance in December 2015, and has according to the National Report taken measures to introduce comprehensive legislation that incorporates the provisions of the Conventions into domestic law.⁴⁵⁸ In the two first cycles of the UPR, Sri Lanka received 15 recommendations to either ratify the Convention or cooperate with the Working Group on Enforced and Involuntary Disappearances; all of these were noted.⁴⁵⁹ The signing of the convention and the establishment of the Office for Persons Missing can be seen as a step in the right direction, but as the Working Group on Enforced or Involuntary Disappearances highlight in the UN System Report the challenge facing the Government is to “transform its promises into a concrete, comprehensive, legitimate and participatory framework aimed at securing the rights to truth, justice, reparation and memory, and guarantees of non-repetition for the families of the disappeared and Sri Lankan society as a whole”.⁴⁶⁰ Furthermore, it is stated in the Stakeholder Report that Sri Lanka has the second highest number of enforced disappearances in the world.⁴⁶¹ This serious issue is indeed a challenge to the consolidation of