UN Rights Chief backs universal jurisdiction to prosecute Lankan war crimes suspects

The UN High Commissioner for Human Rights ( HR) encouraged Member States to prosecute Sri Lankans suspected of crimes against humanity, war crimes or other gross violations of HR, in accordance with universal jurisdiction principles.

In her Report to the UN Human Rights Council ( UNHRC), Michelle Bachelet Jeria, a former President of Chile, says this approach is likely to address only a handful of cases where alleged suspects happen to be in the territory of countries receptive to the application of universal jurisdiction.

“Alternatives, including some forms of international investigation and prosecution are, therefore, needed to ensure that those most responsible for the most serious crimes are prosecuted,” says the Report, which looks into the status of implementation of 2 UNHRC Resolutions which were co-sponsored by Sri Lanka.

The period under consideration is October 2015 to January 2019, with special focus on the period after January 2018, which was not covered in previous reports.

The report observes that the Government of Sri Lanka (GoSL) has regularly engaged with the UN system, including with the Office of the High Commissioner for Human Rights ( OHCHR). It also comments on the political crisis that erupted in October 2018 and ended in December, saying: “...for 7 weeks, the legitimacy and the legality of a number of authorities were in question”, leading to further delays in recommendations contained in the Resolutions.

The OHCHR is particularly concerned with the absence of measures to deal with post-war accountability, to which a significant portion of the 15-page Report is dedicated. In terms of transitional justice, it says the national consultations on reconciliation mechanisms held in 2016 and the establishment of the Office on Missing Persons ( OMP) remain the 2 main achievements.

“The High Commissioner is convinced that the OMPs, if fully operational, can play a crucial role in tracing individuals, identifying remains and reuniting families,” the Report states. “Nonetheless, the lack of a comprehensive strategy and of outreach on the process to address the past has led some to question how the various transitional justice processes and mechanisms envisaged would interact.”

The Report welcomes the enactment last year of the Enforced Disappearances Act, which criminalizes enforced disappearances and allows for the implementation and enforcement of the International Convention for the Protection of All Persons from Enforced Disappearance at the national level.

A Bill providing for the establishment of an Office for Reparations was adopted by the Parliament in October 2018, and the Constitutional Council has called for nominations to select commissioners.

With regard to the proposed Truth & Reconciliation Commission, a draft concept has been ready since 2016, but was presented to Cabinet only on October 23, 2018, before being submitted to the Legal Draftsman for translation into a Bill.

“Less progress has been observed in the area of criminal accountability,” the Report continues. “The GoSL has not announced any plan to create a special judicial mechanism, despite the commitment it implicitly undertook when it co- sponsored HRC Resolution 30/1 and the recommendations contained therein.”

“It has indeed denied the need for such a mechanism, particularly with respect to the involvement of foreign judges, despite abundant evidence that the ordinary criminal justice system is unable to deal with the nature of allegations and the complexity of crimes,” it states. “Both the President and the Prime Minister have made statements denying the need of foreign assistance in this matter.”

“The lack of substantial progress in establishing criminal accountability for serious crimes in the past 3 years underscores the relevance of that assessment,” the Report asserts. “Moreover, claims that a domestic specialized process could suffice have not been accompanied by any serious attempt to establish one. No effort has been made to build the capacity required to conduct investigations, including forensic ones, or prosecutorial strategies, despite the repeated recommendations of the Special Rapporteur on truth, justice, reparations and guarantees of non- recurrence.”

The High Commissioner has recommended that the situation of HR in Sri Lanka “should remain firmly on the agenda” of the HRC owing to a lack of progress.

She has proposed that the GoSL invites the OHCHR to establish a fullfledged country office “to monitor the situation of HR in Sri Lanka, to advise on the implementation of the recommendations made by the High Commissioner, the HRC and other HR mechanisms, and to provide technical assistance”.

With regard to legislation and justice, the High Commissioner has recommended that the GoSL, among other things, adopt Legislation establishing a hybrid court to investigate allegations of violations and abuses of international HR law and violations of international humanitarian law.