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Home > Struggle for Tamil Eelam > Sri Lanka Accused at United Nations > UN Commission on Human Rights 1998
UN COMMISSION ON HUMAN RIGHTS
54th SESSIONS: MARCH 1998
Full Text of Report of the Special Rapporteur, Mr. Bacre Waly Ndiaye, on Extrajudicial, summary or arbitrary executions - submitted pursuant to Commission on Human Rights resolution 1997/61
- Agenda Item 10 on the " Question of the violations of human rights and fundamental freedoms" (E/CN.4/1998/68/Add.2 - 12 March 1998)
Visit to Sri Lanka
I. VISIT TO SRI LANKA 7 _ 41
A. The general context 7 _ 19 | B. Visit to Jaffna 20 _ 33 | C. Visit to Batticaloa 34 _ 41
II. THE RIGHT TO LIFE: FINDINGS AND CONCERNS 42 _ 61
A. Violations of the right to life in the context of armed conflict 42 _ 50 | B. Violations of the right to life committed by the LTTE 51 _ 54 | C. Violations of the right to life committed by home guards 55 _ 57 | D. Violations of the right to life committed in the context of political violence 58 _ 61
III. APPLICABLE LEGAL INSTRUMENTS 62 _ 90
A. Human rights and humanitarian law 62 _ 65 | B. The relevance of the situation of armed conflict 66 _ 68 | C. The national legislation 69 _ 90
IV. ACTION BY THE GOVERNMENT OF SRI LANKA REGARDING CASES OF EXTRAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS 91 _ 118
A. Investigation of cases of human rights violations 91 _ 100 | B. Human Rights Commission 101 _ 110 | C. Commissions of Inquiry into Involuntary Removal and Disappearances 111 _ 114 | D. Drafting of a new constitution 115 _ 118
V. IMPUNITY 119 _ 147
VI. CONCLUSIONS 148 _ 4
VII. RECOMMENDATIONS 5 _ 194
1 At the invitation of the Government of Sri Lanka, the Special Rapporteur on extrajudicial, summary or arbitrary executions visited Sri Lanka from 24 August to 5 September 1997. Prior to the visit, he had been in contact with the Permanent Representative of Sri Lanka to the United Nations Office at Geneva, who cooperated fully and facilitated the visit. During his stay in the country, all of the Special Rapporteurs' specific requests for meetings with highlevel government officials were met, except for the meeting with the President and the Deputy Minister for Defence. Similarly, visits to Jaffna, Batticaloa and Ratnapura were facilitated with appropriate briefings and meetings. While in Sri Lanka, the Special Rapporteur enjoyed freedom of movement, and freedom of access to private individuals and non-governmental organizations.
2 The purpose of the visit was to assess the situation of the right to life in the country, to investigate allegations of extrajudicial executions and to check the implementation of certain measures introduced by the Government to safeguard the right to life, as well as its efforts to investigate, prosecute and prevent such occurrences.
3 The Special Rapporteur would like to record his deep appreciation to the Government of Sri Lanka for its cooperation in facilitating his visit to the country and in responding to his requests for information and explanation. The Special Rapporteur would also like to thank the United Nations Development Programme Resident Representative and the UNDP offices in Colombo and Jaffna for the logistical and organizational support provided in connection with the mission.
4 In Colombo, the Special Rapporteur met with the following governmental representatives: the Minister for Foreign Affairs; the Minister of Justice, Constitutional Affairs, Ethnic Affairs and National Integration; the Secretary, Ministry of Defence; the Secretary, Ministry of Justice; the Secretary and Additional Secretary and other officials from the Ministry for Foreign Affairs; the Attorney_General. He also met with the Inspector General of Police (IGP). In Jaffna and Batticaloa, the Special Rapporteur met with the Magistrate and the Regional Commanders of the armed forces and the police.
5 The Special Rapporteur also met members of Parliament representing various regions and parties, members of the newly established Human Rights Commission, members of the Commission of Inquiry into Involuntary Removal and Disappearances, lawyers, representatives of local human rights and other nongovernmental organizations and dozens of victims of human rights violations and their relatives.
6 The information and views obtained in the course of his visits and meetings will be reflected below under relevant subject headings.
7 The population of the country is approximately 17.2 million, mainly concentrated in the south_western wet zone. The population of the Northern and Eastern provinces accounts for about 14 per cent of the total population, with the Jaffna peninsula being the only really densely populated area. The population is growing at approximately 1.2 per cent per annum.
8 Sri Lanka is a patchwork of ethnic groups and religions. The population can be divided into the majority Sinhalese (74 per cent), the Tamils (18 per cent), the Muslims (7 per cent) and Burghers, the descendants of colonialists (1 per cent). Similarly, while the majority (69 per cent) are Buddhist, per cent are Hindu, 7 per cent are Muslim and 8 per cent are Christian. Three languages are spoken: Sinhala, Tamil and English; almost all Sinhalese are Buddhist and speak Sinhala. Tamils are mostly Hindu and speak Tamil; they are comprised of Ceylon" or Jaffna" Tamils (69 per cent), with a long history on the Island, and Indian" or estate" or plantation" Tamils, descendants of labourers brought from southern India under British rule to work on coffee, tea and rubber plantations. The Muslims speak mostly Tamil but are distinguished by their religion.
9 In most of the country the Sinhalese form the majority. In the northern districts (including the Jaffna peninsula), the Ceylon Tamils are the largest community. The Indian Tamils reside mainly in the hill country in the central part of Sri Lanka. In the east, while Tamils and Muslims used to inhabit the area until the twentieth century, it is said that today all three communities are equally represented in terms of numbers. There are substantial Tamil and Muslim communities in the rest of the country, although they are in the minority there.
10 Sri Lanka was colonized successively by the Portuguese, the Dutch and the British, although it was the British who finally brought the whole country under a centralized system of government. However, each colonial power left its imprint upon Sri Lankan society in a variety of ways, including differential access to education and economic opportunity, often according to religion, linguistic and/or ethnic origin.
11 Before independence, under two centuries of British colonial rule English was the language of commerce and administration. The majority of Sri Lankans were therefore excluded from the process of government, but because English served as a bridge language between ethnic groups, minorities, particularly Tamils, filled many civil service positions. In the British colony, Tamils on the whole enjoyed better education, and were thus frequently employed under the British-run administration.
12. Since independence in 1948, the primary conflict has been between the Sinhalese and Tamils. Following independence a progressive rejection of at least parts of the Island's colonial inheritance and domestic rivalries served to accentuate ethnic and religious divisions within the country. Because of their overwhelming majority, the position of the Sinhalese became more dominant while the Tamils became increasingly marginalized. During the initial stage of the conflict, the question of language rights was the key area of contention between these communities. Sinhalese activists charged that English-educated minorities wielded disproportionate power on the national level, and that Buddhism and the culture associated with it lacked protection as long as its supporters were excluded from governing. Tamil activists, on the other hand, resented a perceived tendency on the part of Sinhalese partisans to equate their own ethnic nationalism with Sri Lankan nationalism.
13. What began as a struggle for cultural affirmation, political representation, economic advancement and linguistic parity between Sinhalese and Tamils ended in violence and armed conflict. The overriding political issue in Sri Lanka therefore became the demand by some Tamil groups for an independent Tamil State ("Eelam") comprising the Northern and Eastern provinces of the country.
14. The 14-year old armed conflict in the north and east of Sri Lanka continues to be costly in human and economic terms. Over 50,000 persons have lost their lives, many more have been injured and over half a million are internally displaced.
15. With regard to the political developments since independence to 1993, the Special Rapporteur would like to refer to the report of the Representative of the Secretary-General on internally displaced persons, Mr. Francis Deng, submitted to the Commission on Human Rights pursuant to his mission in Sri Lanka in November 1993 (E/CN.4/1994/44/Add.1, paras. 14_21 and 26_34).
. After the April 1994 elections, the newly appointed Government, the people's Alliance (PA), initiated a process of negotiations with the Liberation Tigers Of Tamil Ealam (LTTE). The talks were suspended in October 1994 after Gamini Dissanayake, presidential candidate for the United National Party (UNP), and more than 50 others were killed at an election rally by a suicide bomber suspected of belonging to the LTTE. The delegations met again in Jaffna in early 1995 and on 8 January a cessation of hostilities agreement came into force. However, on 18 April 1995 the LTTE withdrew from the talks and renewed its attacks. In the following months, the fighting between the security forces and the LTTE intensified.
17. The Government of Sri Lanka announced on 18 May 1995 a "war for peace". The state of emergency, which had been briefly lifted at the time of the elections in 1994 and reimposed in the north and east and in Colombo and surrounding areas after the killing of the UNP presidential candidate in October 1994, was gradually extended to other parts of the country. The state of emergency was initially reinstated in parts of Gampaha district in June 1995 but was extended throughout Gampaha district in September 1995, and to parts of Moneragala district in December 1995. In midApril 1996, it was imposed throughout the country.
18. The Government also reintroduced some of the security measures that had been abolished (fully or partly) after it came to power. On 20 April 1995, two days after the LTTE withdrew from negotiations, a ban on the transport of certain items (including cement, batteries and motor vehicle spare parts) to the areas under LTTE control was reintroduced. In addition, the lagoon separating the Jaffna peninsula from the rest of the country and the coastline of all districts in the north and east were declared a "prohibited zone" and the use of force or firearms for its enforcement was authorized.
19. During the Special Rapporteur's stay in Sri Lanka, he was informed that the army was continuing Operation Jaya Sikuru" which was launched by the Government on 13 May 1997 in order to control the main road from the south to the north of the country.
20. The Jaffna peninsula in northern Sri Lanka has been under the control of the Liberation Tigers Of Tamil Ealam (LTTE) since mid-1990. Between July and December 1995 the security forces undertook two large military operations, codenamed "Operation Leap Forward" and Operation Riviresa (Sunshine)", in the western half of the Jaffna peninsula, including Jaffna town, the LTTE stronghold in the north. They took control of the town in early December. Further large military operations (Operations Riviresa II and III") were launched in April and May 1996, resulting in the security forces taking control of the eastern side of the peninsula.
21. During the late 1995 offensive, the LTTE ordered civilians to vacate the area, including Jaffna town. Several people recounted to the Special Rapporteur how they hurriedly left Jaffna after the LTTE announced over loudspeakers on 30 October that everybody had to leave by midnight. The Special Rapporteur was told that those who refused to leave were forced to by intimidation.
22. The Jaffna peninsula, which returned under Government control in early 1996, is now experiencing a process of resettlement and rehabilitation. The present population is around 470,000 persons but continues to increase progressively with the return of internally displaced persons (IDPs) from the adjacent Vanni region. Over 300,000 people are dependent upon free government dry food rations, including 60,000 people who are still displaced within the peninsula (UNDP figures).
23. While in Jaffna, the Special Rapporteur met with Major General P.A. Karunatilake, the military commander in charge of the peninsula, and the military commander in charge of the Valikamam (the western part of the peninsula) and their respective staffs; the recently appointed Magistrate of Jaffna; the coroner and several lawyers including representatives of the Bar Association of Jaffna. Unfortunately, and despite his specific request, the Special Rapporteur was not able to meet with representatives of the police department in Jaffna. With respect to deaths in the course of armed confrontation, the Special Rapporteur was told by the military authorities that in the Jaffna area, between January 1997 and August 1997, 32 civilians, of whom 40 per cent were women and children, were killed; 68 LTTE members and 41 security officers were also reportedly executed.
24. The Special Rapporteur wishes to note that while in Jaffna town, and despite the curfew which is still in force from 8 p.m. to 5 a.m., he generally observed that during daylight, there were visible signs of an easing of tension in the life of the people. However, although there has been a reestablishment of a government administration in the Jaffna peninsula, the military remain in control of the city.
25. By the time of the Special Rapporteur's visit in September, conditions had improved but concern about the freedom of movement, fear of disappearances, arbitrary arrests and executions remained. According to people in Jaffna, the fact that they are Tamils casts suspicion on them, regardless of whether they are sympathizers to LTTE or not.
26. The security forces, comprised of members of the army and the police, are 99 per cent Singhalese, do not speak Tamil, which is the language of the local population, and very often treat the local population with suspicion. This amplifies the sense of an army occupation and exacerbates the already existing feeling of alienation.
27. With regard to the freedom of movement in Jaffna, the military has put into place checkpoints throughout the streets of the city to control the movement of civilians; the inhabitants are systematically inspected several times a day. For Tamils, travelling from Jaffna peninsula to other parts of the country involves such complicated procedures that it is virtually impossible, in particular for people wanting to travel to Colombo. A pass system involving the issuing of residence passes, day passes, week passes and passes for travel to Colombo has been in place since 1991. Furthermore, the military told the Special Rapporteur that for security reasons it had instituted procedures for people crossing from territories controlled by the LTTE to territories controlled by the security forces. People who arrived from LTTE_controlled areas were often described as defectors" by the military, who were apparently unclear about how to process their cases.
28. The judiciary and the courts in Jaffna did not function for almost 10 years, from 1986 to 1996. During the Special Rapporteur's visit, he was told that only Jaffna Court was functioning.
29. During the Special Rapporteur's meeting with the Magistrate in Jaffna, he was told that the Office had reopened on 1 March 1996. By the time of the visit, there was one Magistrate and three judges (one in Jaffna, one in Mailakan and one in Kayts). They deal with all civil and criminal cases. According to the Magistrate, most of the criminal cases concern trade in illicit liquors and disputes over lands.
30. With regard to the number of extrajudicial killings in Jaffna, the Magistrate indicated to the Special Rapporteur that 38 cases had been filed, resulting from confrontations reported by the police, with his Office for the period January to September 1997. With respect to such cases, a post_mortem examination is carried out and the Magistrate receives the report. After a post_mortem, the Magistrate cannot automatically deliver a death certificate; an inquiry is needed. Of the 38 cases, 31 involved murders which fell under the Emergency Regulations and thus, without any inquiry, they were sent to the Deputy Inspector General of Police. As a result, the Magistrate was unable to deliver death certificates to the families, because there was no registration of the deaths. As such, families cannot receive any compensation. The Magistrate added that the bodies of the terrorists are not given back to the families and that he had no records of death of women or children under the Emergency Regulations; all such deaths were determined to have occurred under the normal regulations.
31. With regard to detention cases, the Magistrate reported that there were no cases of death while in custody and that every two weeks he receives a list of persons in detention; according to a list received in August, the number was 31 persons. However, the Magistrate was not informed when a person was moved from one centre of detention to another.
32 Finally, the Magistrate indicated that since March 1996, he had not been aware of any reports of mass graves in Jaffna peninsula, but even if a mass grave was discovered, he would not automatically be informed.
33 During the Special Rapporteur's stay in Jaffna there were reports of arbitrary arrests, torture, disappearances and extrajudicial executions, several of which were attributed to military forces. They are discussed below under the relevant subject headings.
34 During the Special Rapporteur's short stay in Batticaloa, he felt that the situation was tense and was told that regular security incidents, resulting sometimes in the death of civilians, were occurring in Batticaloa and its surroundings. The Special Rapporteur noticed that although there was no curfew in force in the city, the local population was not yet ready to walk in the streets after dark. All the representatives of nongovernmental organizations and other individuals declined to meet with the Special Rapporteur after dark. Only one representative of an NGO agreed to meet with the Special Rapporteur in the evening, on the condition that the meeting took place at his private residence. While travelling to the meeting_place, at about 7 p.m., the Special Rapporteur noticed that his car was the only one on the road. He also felt the nervousness of the soldiers at the several checkpoints through which his car had to pass.
35 These are the results of the LTTE's lowintensity, guerrillastyle war in that region, mainly in rural areas. After dark much of the countryside is allegedly at their mercy, with the killing of soldiers and civilians considered to be traitors not uncommon.
36 In Batticaloa, the Special Rapporteur was told by the military staff that many areas were gradually being pacified and "cleared" and that the rebels were now confined to the jungles in the interior. However, a few days before his arrival, the LTTE had shelled some parts of the city. He also noticed that every morning, soldiers had to clear the main road leading to the city in order to ensure that no mines had been planted during the night. In this regard, he noticed that no vehicle could leave the town before 10 a.m.
The judiciary in Batticaloa: meeting with the lawyers
37 While in Batticaloa, the Special Rapporteur met with representatives of the Bar Association and the Additional Magistrate. During the meeting, he was told that 25 lawyers of different origins (Muslims, Tamils and Singhalese) were officiating in Batticaloa district. Among them were three women. They reported on several cases of arbitrary arrests.
38 When persons are arrested under the Emergency Regulations Act (ERA) or Prevention of Terrorism Act, the accused are not informed about the charges and during the investigations the authorities present their own version of the facts, but not the version of the accused. There are repeated allegations of confessions extracted under torture. When the suspect is Tamil, the statement of the confession is written in Singhalese, a language that the victim often does not understand. In most of these cases, the Special Rapporteur was told that the only interest of the police is to get the statement of the confession signed, so the accused can be sent directly to the High Court.
39 With regard to cases of executions, the Special Rapporteur was told that families are reluctant to claim the body of their relatives. Close relatives who want to claim the body of the victim are required to declare that the victim was a terrorist. Failure to do so will result in the body not being given to the family. Due to these conditions, families are afraid to claim the body, and several bodies remain unclaimed.
40 Post_mortem reports are drawn up in respect of those deaths which fall under the ERA. For the first eight months of 1997, the Special Rapporteur was told that 35 cases had been investigated. However, when the police bring the bodies to the hospital and the Magistrate asks for the file, it is often said that the person had been killed in the course of an armed confrontation. It is the police who decide whether or not a case of execution falls under the ERA. The police also have the right to keep the body.
41 Soldiers convicted of rape or other crimes could be granted bail once the investigation is completed. While on bail, the same soldiers are often transferred to other parts of the country, thus making it difficult to trace them. Often, they will not report for further investigation.
II. THE RIGHT TO LIFE: FINDINGS AND CONCERNS
A. Violations of the right to life in the context of armed conflict
42 Cases of extrajudicial executions occur in the context of internal armed conflict in the country, mainly the confrontation between the LTTE and government forces in the north and northeast of the country.
43 Areas of armed conflict continue to be the scene of largescale human rights violations and abuses by members of the security forces, paramilitary groups (home guards), often said to cooperate with them, and the armed insurgent groups (LTTE). The Special Rapporteur was informed that, during midNovember 1997, the military resumed the third and final phase of the operation "Jaya Sikurui" (Sure of Victory), intending to regain control of the main road leading to the Jaffna peninsula. Over 1,500 fighters from both sides have died in the confrontation since the inception of the military operation in May, and up to 5,000 have sustained injuries.
44 In these areas, the armed forces allegedly continue to apply a counter_insurgency strategy whereby everybody who is known or suspected to be linked with the LTTE is regarded as an internal enemy. According to the information received, in the areas where the insurgents are active and armed confrontations take place, the security forces view virtually all civilians as collaborators with the subversion, an allegation which was denied by the members of the armed forces met by the Special Rapporteur.
45 The category of "LTTE terrorist" is applied to everyone who is regarded as supporting the LTTE in one way or another, even if the insurgents use force to obtain, for example, food or money from civilians. Consequently, peasants become the main victims of human rights violations in areas where there is armed conflict. Similarly, a large number of those who dared to denounce human rights abuses committed by the LTTE have been killed by LTTE members or forced to leave their areas of residence. As a result, human rights activists and witnesses to human rights violations fear for their lives and in many cases prefer to remain silent.
46 Military operations leading to the death of civilians include indiscriminate bombing of civilian settlements and armed incursions into villages during which the victims are said to be killed on the spot or abducted to extract information. Often, the civilians killed during such operations are later presented to the public as terrorists who died in combat with guns and grenades placed in their hands. Their corpses are not given back to the families.
47 From January to August 1997, there are reports that an estimated 37 civilians were killed and 30 others wounded as a result of shelling in civilian areas. The following incidents are said to have taken place:
(a) At Kalmadu camp on 24 April 1997, at about 3:00 p.m., the LTTE and the military engaged in a shoot_out. Civilians from the camp fled towards the jungle to avoid the crossfire. According to reports, soldiers from other camps in the area fired in the direction of the shooting. Civilians from the camp were caught in the shellfire which continued until about 6 p.m. Five people from the camp, including a fouryear_old girl, were reportedly killed and 12 others were injured, including eight children;
(b) In Kallady, Batticaloa, on 24 August 1997, fouryear_old Maris Sulosanathevi was killed following shelling by the LTTE at Kallady Veloor colony, which is about 3 km from Batticaloa town and about 3_4 km from Kallady army camp. Thirteen other people were also reported to be seriously injured in the attack.
48 Torture is reportedly used by the armed forces with two principal aims: to obtain information on insurgent groups and to intimidate the population. Torture, inflicted at the place of detention, in remote places in rural areas or on military and police premises, reportedly precedes the taking of a decision as to whether the detainee is released or put at the disposal of the competent judicial authority. It seems to be a common practice that members of the armed forces and security forces arrest persons without a warrant, subject them to interrogation and take them to the judge days later, after forcing them to sign a statement of good treatment. All these circumstances, together with the fact that the detainees are kept incommunicado, increase the risk of torture.
49 The Special Rapporteur is concerned that during armed confrontation or following battles between the military and the insurgents, no prisoners are taken. He was told that the Tamil insurgents usually use poisoned pills and prefer to commit suicide rather than be captured by the armed forces. Taking prisoners is so exceptional that when it happens, it becomes a major news event recounted by the national media.
50 The reports received by the Special Rapporteur clearly indicate that neither the security forces nor the armed insurgent groups show respect for the right to life or physical integrity in areas of armed conflict. On the contrary, the Special Rapporteur received numerous reports about human rights violations by various military battalions and other units of the security forces based in the zones of armed conflict.
B. Violations of the right to life committed by the LTTE
51 In February 1988, the LTTE announced that it will abide by the Geneva Conventions and their Additional Protocols, but consistent reports received by the Special Rapporteur indicate that they fail to do so.
52 The Special Rapporteur received numerous reports concerning abuses committed against the civilian population by members of the LTTE. Peasants are said to be forced to provide the guerrillas with food and money. If they refuse, they are killed. They may also be forced to leave the area. It has also been reported that members of the security forces captured in combat are very often executed. Moreover, former combatants who have sought reinsertion into civilian life have reportedly been targeted by their former comrades in arms. The following incidents were reported:
(a) On 1 June 1997, a Sinhala youth married to a Tamil woman was killed by the LTTE in Shanthiveli in Batticaloa;
(b) On 9 June, R.K. Gunaratna Banda, a farmer in Amparai, was shot dead by the LTTE, and on 12 June, S. Krishnapillai was also shot dead by members of the LTTE "pistol gang" in Valaichchenai. On 19 June, at Grama Sevaka in Amparai district, S.R.M.D. Banda was also shot dead by LTTE members.
53 In addition, the LTTE continues to use terror throughout the country. Several reports and incidents relate that one of the tactics of the LTTE is to operate through suicide attacks, including using children and women. For example, in Colombo itself, on 15 October 1997, a bomb exploded in the same hotel where the Special Rapporteur had stayed one month earlier. The bombing of the hotel and the subsequent shootings resulted in the death of more than 18 civilians with over 100 people wounded.
54 55 In certain areas, the LTTE is said to have replaced the State administration and to exercise complete control. This is viewed as a complicating factor in peace negotiations: the question is no longer that of convincing the LTTE just to hand in their arms and halt the fighting, but also to give up power and control over these areas and lucrative sources of income.
C. Violations of the right to life committed by home guards
56 Several paramilitary groups, referred to as home guards, and militia of political parties continue to operate in the north and north_east. These home guards, or "friends of the army", are Sinhalese and Muslim civilians recruited and armed by the police and given short training in the use of weapons in order to take care of their own communities, to defend themselves against extortion by the insurgents and to protect their economic and social positions. They function mostly under the authority of the local police, although in some areas they work alongside the army. Their functions are supposed to be purely defensive, but the Special Rapporteur was told that they often act as auxiliary forces, doing the "dirty jobs".
57 According to the information received, there have never been serious attempts on the part of the security forces to restrain the activities of such groups or to dismantle and disarm them. On the contrary, the military began to cooperate with selfdefence groups, considering them useful allies in the common interest of fighting the LTTE. In some regions, armed groups were said to have been trained in military establishments and are operating under the direct command of the armed forces. The Special Rapporteur was told by members of the High Military Command, however, that their aim was to control these groups.
58 This cooperation between Muslims and Sinhalese has provoked retaliatory action by Tamil insurgents against Muslim villagers and home guards. The following incidents were reported:
(a) On 27 September 1996, at Marathamunai, Batticaloa district, a number of Muslim home guards were reportedly abducted by armed men. Their bodies were found in the cemetery the next day. Muslims in the area accused the LTTE of the murders and there were also antiTamil incidents which resulted in more than 30 people killed;
(b) On 9 February 1997, in Valaichchenai, a Muslim home guard attached to the Valaichchenai police station was allegedly killed by the LTTE in Ottamavadi, near Valaichchenai. This resulted in a clash between Tamils and Muslims in the town. Three Tamils were reported killed and several injured. Three Muslims were later abducted by the LTTE, as a reprisal, and killed.
D. Violations of the right to life committed in the context of political violence
59 Another issue which was brought to the attention of the Special Rapporteur by many persons and organizations with whom he met while on mission is the issue of violence in the political context. The Special Rapporteur learned that most, if not all of the political party leaders have their own private armed security guards. The 225 members of Parliament are authorized to have up to eight armed security guards, and the 300 provincial counsellors are also authorized by the Ministry of Defence to have up to four armed security guards each. This has resulted in a competition between the regular police and the privately armed guards, the consequence of which is a situation of political violence, which particularly increases during election time.
60 A report, published on 25 April 1997 by the Centre for Monitoring Election Violence (CMEV), reproduced an account of electionrelated violence during the local government election campaign. In the period from 5 February to 20 March 1997, 2,237 incidents of violence were reported in 30 police divisions covering all areas where local government elections had been scheduled for 21 March 1997. Of these incidents, the greatest number were allegations of threats of violence, followed by assault, mischief, damage to property and intimidation. Five reports of murder and two of attempted murder were received by the Centre, as well as 40 complaints of injury, 53 of robbery, 50 of arson and 67 unclassified complaints. Although the police were present when the incidents occurred, very few of the cases have been investigated by the authorities and none of these cases were brought before the court.
61 Impunity with regard to cases of political violence seems to be prevailing throughout Sri Lanka. The following is a sample of the incidents reported during the run_up to the elections (information provided by CMEV):
(a) On 25 February, at Pamunugama, internal rivalry within the PA resulted in the death from shock of a woman and damage to five houses. The complaint was lodged by a PA supporter against seven other PA supporters, and allegedly the initial incident which sparked off the tragedy, related to the putting up of a poster. No arrests had been made by the police despite the alleged assailant being identified;
(b) On 27 February 1997, PA member of Parliament D.M. Dassanayake is alleged to have forcibly entered the Madawakkulama mosque in Puttalam district, accompanied by a gang of men armed with T56 rifles, and destroyed all the green lights in the mosque because green was the UNP colour. This gang is alleged to have abused the devotees present and threatened the UNP Muslim candidate with death if he did not withdraw from the election. On the same day, at around 4.30 p.m., Mr. Dassanayake, accompanied by approximately 50 armed supporters, is alleged to have stormed Karaitive (sic) village, brutally assaulted Mr. David, the brother of UNP candidate Mr. Marcus Fernando, and threatened him with death. On 1 March, at 5.30 p.m., Mr. Dassanayake and his supporters allegedly assaulted Mr. W.M. Wimalaratne Banda (a former UNP official) and his aides at Madyama, Attavilluwa. In all 10 people were injured, three of them seriously. It is further alleged that Mr. Dassanayake's party was escorted to and from the scene of the alleged crime by a police group led by the Inspector of Police of Puttalam.
62 Moreover, members of Tamil political parties opposed to the LTTE continue to be armed whilst carrying out functions which are part of the overall responsibility of the security forces, particularly in the north and east, without any clear legal basis for such a practice.
III. APPLICABLE LEGAL INSTRUMENTS
A. Human rights and humanitarian law
63 The applicable standards of international law reside primarily in the obligations undertaken by Sri Lanka as a result of its accession to the following instruments. Sri Lanka has signed the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. Sri Lanka acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in January 1994. It is legally bound to implement the human rights safeguards required by these treaties, including respect for the right to life (article 6 of the ICCPR) and the right not to be tortured (article 7 of the ICCPR and the Convention against Torture). Article 4 of the ICCPR clearly states that both rights need to be upheld at all times, even "in time of public emergency which threatens the life of the nation". In addition, Sri Lanka is also a State party to the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women. In October 1997, Sri Lanka became a party to the Optional Protocol to the International Covenant on Civil and Political Rights. However, Sri Lanka is not a party to the Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes against Humanity.
64 International humanitarian law requires that minimum norms be respected in internal armed conflicts. The norms and specific standards of international human rights law also apply in situations of armed conflict, and may be deviated from only by permissible derogations. Sri Lanka is a party to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and is, therefore bound by its provisions. Article 3 of the Convention (common to the four Geneva Conventions and applicable to situations of internal armed conflict) provides for minimum standards of protection to civilians.
65 In addition to its treaty obligations, Sri Lanka is also obliged to respect the relevant rules of international customary law, particularly those concerning the "elementary considerations of humanity" in times of armed conflict as well as in times of peace as expressed by the principles in common article 3 of the Geneva Conventions of 12 August 1949. Sri Lanka has not, however, signed Protocol II Additional to the Geneva Conventions of 1949, and relating to the Protection of Victims of Non_International Armed Conflicts, which develops and supplements common article 3.
66 The following fundamental guarantees contained in common article 3 to the Geneva Conventions of 12 August 1949 are also applicable in all situations pertaining to Sri Lanka:
"1. Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
"To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above_mentioned persons:
"(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
"(b) Taking of hostages;
"(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;
"(d) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
B. The relevance of the situation of armed conflict
67 International human rights standards as set out above are very clear: torture, disappearances and extrajudicial executions can never be justified under any circumstances, not even in time of war. Regardless of who may be responsible for the initiation of a war, and faced with the reality that war or armed conflicts short of war continue to inflict their pain on humanity, international human rights law requires that its norms continue to be respected.
68 The Special Rapporteur is aware that the LTTE controls several parts of the country in the north and north_east. Under these circumstances, and notwithstanding the continuing validity of human rights standards throughout the duration of the conflict, it is acknowledged that the conflict is of such a nature as to have reached the threshold of applicability of article 3 common to the four Geneva Conventions of 1949. In addition to these standards, and though Sri Lanka is not a party to the Additional Protocol II, there are standards in this protocol which are essentially the same as those expressed in the instruments of international human rights law (to which the Protocol explicitly refers in its preamble), namely: protection of the right to life, protection from torture and mutilation, protection against arbitrary punishments, protection against outrages upon personal dignity, protection against pillage, protection against threats of any of the aforementioned, respect for the rights of those in detention against whom penal prosecutions have been initiated, protection of the wounded and of medical personnel and protection of the civilian population in general, including protection of objects indispensable for their survival and cultural objects and places of worship.
Indeed, it should be observed that many of those most fundamental protections may be said to be part of the customary law of human rights. It must be stressed that in the case of armed conflict, the response of the Government must always be relevant and proportionate, such that the standards of human rights may be respected for every individual in every case; the existence of an armed conflict does not permit a carte blanche response. Any violations on the part of the insurgents (LTTE), which the Special Rapporteur acknowledges are most likely to have occurred and to continue to occur, cannot be used as an excuse for violations by the Government.
69 The notion of "special" or "exceptional" circumstances is known to international law as such circumstances as may require the application of special standards or permit derogation from the application of normal standards. Such a notion is specifically foreseen by and accommodated in international standards. When addressing Governments and armed opposition groups in the context of armed conflict, the Special Rapporteur is guided in particular by the protection of the individual enshrined in common article 3 which forbids Governments and armed opposition groups alike to torture, to deliberately kill civilians taking no part in hostilities, to harm those who are wounded, captured or seeking to surrender, or to take hostages.
70 The Constitution of Sri Lanka of 1978, in its chapters III and IV, guarantees to the people of that country a number of fundamental rights, such as the right to equality, freedom of movement and of choosing their place of residence in Sri Lanka and to leave and return to Sri Lanka, and the right not to be subjected to torture or to arbitrary arrest and detention. With regard to derogations, article 15.7 of the Constitution establishes that the exercise and operation of the right to equality and nondiscrimination and the freedoms of expression, association, movement and peaceful assembly, "(s)hall be prescribed by law in the interest of national security, public order and the protection of public health or morality".
71 The death penalty is permitted under Sri Lankan law and remains a legal punishment; nevertheless, no death sentence has been carried out since 23 June 1976. Since then courts had to pass sentences of death for offences where this is mandatory, but the sentence has always been commuted by the President in the exercise of his power to do so. Government officials confirmed to the Special Rapporteur while he was in Colombo that there was no intention to implement the death penalty under any circumstances. He was also told that the right to life will be reflected in the new Constitution of Sri Lanka, a draft of which was given to him.
72 The introduction in law of procedures and safeguards is not, however, in itself sufficient to protect human rights. The Special Rapporteur will focus mainly on certain aspects of the regulations related specifically to his mandate, examining laws and procedures which might facilitate the commission of violations of the right to life, and making recommendations for legal and procedural safeguards to protect against them.
73 Of particular concern are the emergency regulations governing arrest and detention procedures and those governing post_mortems and inquests when deaths have occurred in custody or as a result of the official action of the security forces. The regulations still provide for indefinite preventive detention on renewable, threemonthly detention orders. Sri Lanka has been under an almost continuous state of emergency since May 1983. During a declared state of emergency, which has to be renewed monthly by Parliament, the Emergency (Miscellaneous Provisions and Powers) Regulations (ERs) are in force. These regulations are issued under the Public Security Ordinance and are altered from time to time. Official emergency measures override the safeguards contained in the normal law and have granted sweeping powers to the security forces. In addition, there have been repeated allegations of intimidation of lawyers, relatives and others attempting to take remedial action through the courts.
74 The emergency regulations governing post_mortems and inquests have not been altered significantly. The thorough investigation of all relevant deaths is an important means of preventing extrajudicial executions by security forces personnel. The procedures provided under the regulations still fail to provide an adequate investigative procedure and could lead to impunity for those committing extrajudicial executions.
2. Prevention of Terrorism Act
75 In 1979, Sri Lankan Parliament adopted the Prevention of Terrorism Act (PTA) in response to growing political violence in the country, especially in the "Tamil areas". Although the PTA was seen as an effort to contain what by then amounted to civil war, its unusually broad provisions are said to have increased tensions instead. Indeed, the Prevention of Terrorism Act contains a number of disturbing provisions from the human rights perspective. Section 6 of the Act provides that:
"any police officer not below the rank of Superintendent or any other police officer not below the rank of sub-Inspector authorized in writing by him ... may, without warrant, ... notwithstanding anything in any other law to the contrary
"(a) arrest any person;
"(b) enter and search any premises;
"(c) stop and search any individual or any vehicle, vessel, train or aircraft; and
"(d) seize any document or thing connected with or concerned in any unlawful activity."
The Act also provides that a person may be detained for periods of up to 18 months (renewable by order every 3 months), if "the Minister has reason to believe or suspect that any person is connected with or concerned in any unlawful activity" (sect. 9). The same section provides that such a person may be detained "in such place and subject to such conditions as may be determined by the Minister". This may lead to having persons detained without access to attorneys or to relatives for prolonged periods.
76 The Act does not expressly exclude coerced confession as evidence but rather provides that confessions made by a person orally or in writing, at any time, can be admissible as evidence unless made to a police officer below the rank of Assistant Superintendent (sect. ). Thus, confessions made to police under torture or threats may be admitted. It provides that a statement recorded by a magistrate or made at an identification parade shall be admissible in evidence even if the person is dead or cannot be found and thus cannot be cross-examined (sect. 18 (1)(a)). Any document found in the custody of a person accused of an offence under the Act may be produced in court as evidence of the facts stated therein (sect. 18 (1)(b)).
77 Emergency rule prevailed throughout most of 1994, except just before the parliamentary general elections. The Special Rapporteur understands that there were, however, important changes, both in the geographical areas in which the emergency was in force during different periods, as well as in the content of the regulations. During his visit to Sri Lanka, many persons, including human rights advocates and law enforcement agents, did not agree on what regulations were in force and where. In this section, the Special Rapporteur has relied on information and documents provided to him by the Nadesan Centre, a Sri Lankan non-governmental organization which keeps track of all the changes and informs the public.
Emergency regulations relating to inquests into the death of persons due to actions of police officers or members of the armed forces
78 Inquests into deaths under the normal law are dealt with by the Code of Criminal Procedure Act No. 15 of 1979 which contains very salutary provisions relating to inquests into deaths, with inquirers and magistrates being given wide powers to ascertain the cause of death, e.g., summoning witnesses, post_mortem examinations, etc. However, the emergency regulations permit derogation from these provisions; the relevant provisions are to be found in regulations 43 through 47 of the Emergency (Miscellaneous Provisions and Powers) Regulations No. 4 of 1994 published in the Official Gazette 843/12 of 4 November 1994.
79 Regulation 43 makes provision for deviation from the normal law in instances where a police officer (rank not stipulated) or a member of the armed services (rank not stipulated) has reason to believe that the death may have been as a result or in the course of armed confrontation between the police, armed services or any member of any supplementary forces (established under law) and forces engaged in waging war against the Government of Sri Lanka. In such a situation the Superintendent of Police or the commanding officer of the armed forces unit (as the case may be) "shall, notwithstanding anything to the contrary in chapter XXX and section 9 of the Code of Criminal Procedure Act ... or the provisions of any other written law, report the facts relating to the death to the Inspector-General of Police or to the nearest Deputy Inspector_General of Police".
80 The salient features of this provision are as follows:
(a) The purpose of an inquest is to determine the manner and circumstances of death and a proper means of doing this is provided by the normal law. The bypassing of the normal law by the emergency regulations is, however, made dependent on significant questions of fact, including (i) that the death took place in the course of an "armed confrontation" and (ii) that the victim was engaged in waging war against the Government. How are these questions to be determined except by a proper judicial inquest?
(b) The words "where a police officer or a member of the armed services has reason to believe ..." are the key. What triggers off the whole process of avoiding an inquest is the claim, by any police officer or any member of the armed services, that there was an armed confrontation and that the victim was waging war, etc.
(c) It is sufficient for the police or security officer to make the claim of armed confrontation for an inquest to be avoided.
81 This emergency provision remains wholly inadequate for the full and impartial investigation of a death caused by security forces and could be used to cover acts of extrajudicial execution committed by the security forces.
82 According to regulation 44 (report of an incident), once the IGP or the DIG receives information as provided for by regulation 43, he has to direct an officer not below the rank of Assistant Superintendent of Police to proceed to the scene of the incident and record his observations and the statements of persons who appear to be acquainted with the circumstances relating to such death. If the body is found, the death must forthwith be reported to the Magistrate.
83 What is contemplated here is that the death should be investigated by a responsible police officer and reported to the Magistrate in instances where the body is found. These are commendable provisions, but what needs to be looked into is the extent to which they are in fact complied with.
84 Under regulation 45 (post_mortem and burial or cremation), the Magistrate shall, upon the receipt of the facts from the IGP or the DIG, direct the Government Medical Officer to hold a post_mortem, and will also make an order that at the conclusion of the post_mortem the body shall be handed over to the DIG for disposal. The DIG in turn can hand over the body to any relation who claims it, subject to conditions or restrictions imposed in consideration of national security or public order, or otherwise authorize the burial or cremation of the body in accordance with steps he may deem necessary in the circumstances. It would appear that although the Magistrate has to be informed forthwith in instances where the body is found (regulation 44), there is no provision which enables him to order a post_mortem on his own; he has to await the receipt of facts from the IGP or DIG.
85 This procedure can be invoked by the police on the basis of a statement by any security forces officer that a death resulted from armed confrontation. Once the IGP decides to apply for a High Court inquiry under the emergency procedures, no other inquiry into the cause of death can be held according to the procedures provided under the normal law. The proper investigation of deaths caused by the security forces can thus be prevented, and this procedure could be used to allow impunity.
86 According to regulation 46, the High Court in Colombo is vested with exclusive jurisdiction to inquire into the death of any person caused or purported to have been caused in circumstances specified in regulation 43. Upon application by the IGP, the High Court shall hold an inquiry into the cause of death of the person named as deceased in such application, and if there are any proceedings pending in any Magistrate's Court in respect of the same death, such proceeding shall be transferred to the High Court. The High Court may hold such inquiry or part of such inquiry in any part of Sri Lanka, having regard to the interest of national security and public order. The Government Medical Officer who conducted the post_mortem has to forward his report to the High Court and he shall not disclose anything contained therein to any person unless authorized to do so by the High Court. The IGP has to forward to the High Court the report of the preliminary observations and other documents necessary for conducting the inquiry, and the judge of the High Court shall record such evidence as may be placed before him by the IGP or his representative. At the conclusion of the inquiry the judge of the High Court has to transmit the record of evidence and a report of the circumstances under which the death was caused, together with any other documents, to the Attorney_General.
87 There are many unsatisfactory features in this provision:
(a) The inquiry into the death takes place only upon the application of the IGP and there are no criteria to guide him in the exercise of his function. Indeed it would be difficult to expect impartiality from him where his own officers would be involved. This may put him in an unacceptable and difficult situation;
(b) The post_mortem report should not be kept secret when death occurs in circumstances specified in regulation 43. Relatives or their representatives should have access to it;
(c) It might be necessary to have more courts than just the High Court in Colombo inquire into such deaths;
(d) It is unsatisfactory that the recording of evidence by the judge should be confined to "evidence as may be placed before him by the IGP or his representative". The judge should also be permitted to receive evidence as he deems fit. This was reportedly the case in an earlier version of the regulations which empowered the Court to hear "the evidence of any other person who appears to be acquainted with the circumstances relating to the death under inquiry", but this was deleted in 1989;
(e) There should be provision for relatives or any other person representing the dead person to intervene in the proceedings. The findings of the High Court should also be made available to them.
88 Under regulation 47, if the Attorney_General is satisfied, upon the receipt of evidence and other documents transmitted to him by the High Court, that the commission of an offence has been disclosed, he may institute appropriate legal proceedings against the perpetrators.
89 When the Special Rapporteur met with the Attorney General he was given the following statistics relating to the arrests and detention of persons from the north and east of Sri Lanka under the Prevention of Terrorism Act and the emergency regulations:
(a) Year 1996:
(i) From the Eastern Province - 321; from the Northern Province - 378;
(ii) Number of concluded matters - 679; the remaining matters would be concluded once the necessary documents are available,
(b) Year 1997:
(i) From the Eastern Province - 127; from the Northern Province - 221;
(ii) Number of concluded matters - 238; the remaining matters would be concluded expeditiously. In most of the unattended cases the delay could be attributed to the non-availability of some of the documentary evidence such as the government analyst's report, the ballistics expert's report, etc. Once the reports are made available by the relevant authorities these matters would be finalized speedily.
90 Both the ERs and PTA give the security forces wide powers to arrest suspected opponents of the Government and detain them incommunicado and without charge or trial for long periods. The ERs allow for detainees to be held in preventive detention on the order of the Secretary, Ministry of Defence, for one year without being brought before a court. After that, indefinite extensions are possible, although only on the order of the Magistrate. The Magistrate, however, has limited powers to exercise discretion, and must apparently reach a decision solely on the basis of a report from the Secretary, Ministry of Defence. People suspected of actually having committed an offence under the ERs can be detained for up to 60 days if their arrest takes place in the north or east and relates to offences committed in that area. In Colombo and surrounding areas, this period is seven days. The PTA allows for detention on an order by the Minister of Defence for three months. This period can be extended up to a maximum of 18 months. In addition, there are no laws governing conditions in places of detention other than prisons such as army compounds and police stations.
91 The Special Rapporteur wishes to note that preventive detention could be a source of torture, cruel, inhuman and degrading treatment, disappearances and extrajudicial executions. Lengthy preventive detention is not in conformity with international standards and safeguards on human rights; it denies the rights to due process, presumption of innocence, fair trial and personal freedom.
A. Investigation of cases of human rights violations
92 When he met with the Attorney_General, the Special Rapporteur requested information about any followup action taken with regard to certain cases and was told that the Government had taken action to investigate several incidents of human rights violations that occurred in the country. In this regard, the Special Rapporteur was provided with information about the following well_known cases.
93 Embilipitiya case. Between 1 August 1989 and 30 January 1990, 25 schoolchildren from Embilipitiya Central College and nearby schools were abducted from their homes and places of residence. They disappeared thereafter. The Criminal Investigation Department (CID) was called in to investigate the matter in 1992. It was revealed during the investigations that the abductors were army personnel from the Sevena camp at Embilipitiya. The CID forwarded their notes of investigation to the Attorney-General who indicted nine suspects in the High Court of Ratnapura. The first accused is the Principal of Embilipitiya Central College, the second to sixth accused are army officers, one of them a brigadier; the seventh to ninth accused are ordinary soldiers. The second accused is the son of the first accused. The indictment contains 83 charges in relation to the abducted students. The trial commenced on 22 January 1996 and is still continuing. The Special Rapporteur was told that this case was due to be concluded during the course of 1997.
94 Kumarapuram and Mailantenna incidents. These cases relate to the killing of 24 villagers and 35 villagers in February 1996 and August 1992, respectively, in Trincomalee and Batticaloa districts. In relation to both incidents, investigations commenced promptly and several army personnel were arrested. In the Kumarapuram incident an identification parade was held at which seven army personnel were identified by witnesses. Proceedings were pending in the Magistrate's Court of Trincomalee, but the Magistrate refused to entertain the proceedings for reasons of territorial jurisdiction. On the advice of the Attorney_General, proceedings were transferred to the Magistrate's Court of Mutur where 101 charges have been filed against 7 suspects, who remain in custody. In relation to the Mailantenna incident, 21 army personnel have been committed for trial. The case has been transferred to the High Court of Colombo, which was due to hear the case on 17 September 1997. The suspects remained in custody.
95 Alauwwa, Bolgoda and Diyawanna_Oya incidents. Investigations have been conducted by the CID following the discovery of 21 partly decomposed bodies in Alauwwa (5 bodies), Bolgoda (11 bodies) and Diyawanna-Oya (5 bodies) during the period 31 May 1995 to 14 August 1995. The investigations have not as yet produced any evidence relating to the murder of the 21 persons or the disposal of their bodies. According to the initial findings of judicial medical officers, the cause of death was either strangulation by ligature or drowning. By the external appearances of the bodies, the investigators have concluded that they were persons of Tamil ethnicity. Hence, they have started to collect information relating to disappearances (if any) of Tamil persons during the relevant period. Information has been collected relating to the disappearances of 15 persons.
96 Thereafter, the investigation has taken two directions. Investigators have collected material relating to the disappearances of these 15 persons. In certain cases, evidence of abduction has been collected. There is no evidence indicating that any of the 15 persons are still alive. Investigators have also attempted to ascertain whether any of the 15 persons were amongst the 21 bodies found. Photographs of the bodies and personal effects found with the bodies have been shown to relatives and friends of the 15 persons, but no identifications have been made.
97 As the next step, the 21 skulls were sent for forensic analysis to the University of Glasgow in the United Kingdom, together with photographs of 14 of the missing persons mentioned earlier, to conduct facial reconstruction and video superimposition of these skulls using, amongst other things, the photographs. The analysis was not able to identify the skulls with certainty, mainly due to the inability to undertake DNA analysis. It is being considered whether further material could be obtained in order to undertake such an analysis.
98 Based on the investigation's findings, 22 suspects have been arrested by the CID. All but one were police officers who, at the time of arrest, had been attached to the Special Task Force headquarters in Colombo.
99 Rape and murder of Krishanthi Kumaraswamy and three others in Jaffna.This incident took place on 7 September 1996 at a security checkpoint manned by a group of military personnel. Prompt action was taken by the police upon receiving the complaint and at the conclusion of the investigations 11 suspects, consisting of 8 army soldiers and 3 police, were arrested, produced before the Magistrate and placed in remand custody. It was decided by the Attorney-General to grant a pardon to two suspects who were not directly involved, on condition that they testify against the others.
100 On the basis of the available evidence, the remaining suspects were charged in the Magistrate's Court of Jaffna under section 357 of the Penal Code for the abduction of Krishanthi Kumaraswamy, and under section 296 for committing the murder of Krishanthi and the three other persons. The case was transferred from Jaffna to Colombo upon the Attorney-General's application. However, giving due consideration to the nature and the circumstances of the offences involved, especially being mindful of the fact that the offences were committed by military personnel against civilians resident in the northern region of the country, a decision was taken by the Attorney-General to forward a direct indictment against the accused to the High Court of Sri Lanka and to have the matter placed for hearing before a trial-at-bar. This course of action will ensure an expeditious consideration of the matter by three judges of the High Court of Sri Lanka. Further, a trial-at-bar will also prevent the matter being heard by a jury, which could aggravate communal tensions. It would be noteworthy to mention that this is an extraordinary step, taken in order to expeditiously mete out justice, and is only the fourth such instance in Sri Lankan legal history.
101 The indictment is against the following eight army soldiers and one policeman: R.D.S. Rajapakse (corporal), J.M. Jayasinghe (soldier), G.P. Priyadharshana (reserve police constable), A.S. Priyashantha Perera (soldier), W.S. Wijayananda Alwis (soldier); D.D. Muthu Banda (soldier), D.M. Jayatilleke (corporal), D.V. Indrajith Kumara (corporal), A.P. Nishantha (soldier).
102 The Human Rights Commission of Sri Lanka (HRCSL) was established by Act No. 21 of 1996 and is vested with monitoring, investigative and advisory powers in relation to human rights. It has been set up as a permanent national institution to investigate any infringement of a fundamental right declared and recognized by the Constitution and to grant appropriate relief. The powers of the Commission are said to be wider than those of the Supreme Court and will complement the existing national framework for the protection of human rights. There are no time_limits for filing a complaint before the HRCSL, unlike under the 1978 Constitution.
103 The Commission is made up of five members: three Sinhalese, one Tamil and one Muslim, who were appointed in March 1997. The Commission is headed by retired Supreme Court Judge O.S.M. Seneviratne. The other members of the Commission are:
Dr. A.T. Ariyaratne - Head of Sarvodaya (a humanitarian NGO)
Prof. Arjuna Aluwihare - Former Chairman, University Grants Commission
Mr. T. Suntheralingham - Retired High Court Judge
Mr. Ahmed Javid Yusuf - Former Sri Lankan Ambassador to Saudi Arabia
The appointments were made by the President on the recommendations of the Prime Minister, in consultation with the Speaker and the Leader of the Opposition in Parliament. It should be noted that the opinions of Tamil and Muslim political parties were also sought.
104 The Special Rapporteur was told when meeting the members of the Commission that they were still in the process of recruiting staff to perform legal and investigative functions. Members of the Commission mentioned their difficulties in finding suitable candidates, particularly lawyers. They attributed this difficulty to the fact that they were not proposing adequate salaries. At the time of his visit, there were 7 investigative staff members in Colombo and 33 based throughout the country in Ampare, Kalmoun, Batticaloa, Trincomalee, Vahuniya, Malake and Anrathapura. With regard to Jaffna, the Commission faced some difficulties in opening its office, due to difficulties in recruiting staff. All the employees of the Commission benefit from immunity from prosecution in the course of their functions.
105 Section 14 of the Act provides that the Commission may on its own motion, or on a complaint made to it by an aggrieved person or group of persons, or by a person acting on behalf of an aggrieved person, investigate an allegation of the infringement, or imminent infringement, of a fundamental right of such a person, and where appropriate provide for resolution through mediation or conciliation (sect. 15 (2)).
106 According to section 15 (3) of the Act, where an investigation conducted by the Commission discloses the infringement of a fundamental right, the Commission may recommend to the appropriate authorities that prosecution or other proceedings be instituted against the person or persons infringing such fundamental right. Alternatively, it may refer the matter to any court having jurisdiction to hear and determine such matters. The Commission may also make such recommendations as it may think fit, to the appropriate authority or person or persons concerned, with a view to preventing or remedying such infringement or the continuation of such infringement. The Commission also has the power to order costs where necessary.
107 The HRCSL is also vested with the power to monitor the welfare of detained persons by regular inspection of their places of detention. In order to facilitate this function, all arrests and detentions under the Emergency Regulations, and the Prevention of Terrorism Act must be reported to the Commission within 48 hours of arrest. Wilful failure to report an arrest or detention will attract penal sanctions under the HRSCL Act. Members of the Commission have free access at all times to all prisons of the country, but the Special Rapporteur does not know whether visits could be undertaken without notice.
108 The Act also envisages that the Commission may establish subcommittees at provincial level to exercise certain powers which are delegated by the Commission. This would help create greater awareness of the availability of redress by the Commission and provide easier access to the Commission.
109 Section 29 (1) of the founding legislation stipulates that the State will provide the Commission with adequate funds. It would have been preferable if the word Parliament had been used rather than State, so as to better serve to ensure the independence of the Commission. In contrast, the salaries of the Commission members are determined by the Parliament, as provided for in section 8 of the Act.
110 Section 31.1 of the Act raises another concern regarding the autonomy of the Commission. The section permits the Minister to make regulations "... in respect of any matter which is required by this Act to be prescribed ....". Thus, the authority to create regulations which will affect the Commission rests with one person. Such a provision, when worded in such broad terms, reduces the independence and autonomy of the members. Subsection 2 further permits the Minister to "... make regulations prescribing the procedure to be followed in the conduct of investigations under this Act". One of the most important functions of a national institution relates to its power to initiate investigations upon receipt of a complaint from an individual, but again the Minister has the authority to prescribe the procedure regarding investigations. Subsection 3 provides that any regulations which the Minister makes come into force on the date that they are published in the Official Gazette, unless a later date is specified. It is only afterwards that the regulation is brought before Parliament for discussion. Moreover, subsection 4 is unclear as to when the regulation should be brought before Parliament, stating only that it should be "... as soon as convenient after its publication in the Gazette ....". The regulation will be rescinded should Parliament withhold its approval. Thus, a regulation which may not succeed in obtaining the approval of the Parliament will remain in force until such time as it is convenient to bring it before the Parliament.
111 The HRCSL has received complaints of human rights violations. It has also had a number of visits from Colombo_based diplomatic missions. The HRCSL subsumed the duties and functions of the Human Rights Task Force (HRTF) on 30 June 1997. At the date of the visit of the Special Rapporteur, no cases of extrajudicial executions had been reported to the Commission.
C. Commissions of Inquiry into Involuntary Removal and Disappearances
112 While in Colombo, the Special Rapporteur met with the President and other members of the Commissions of Inquiry into Involuntary Removal and Disappearances. He was briefed about the activities of the Commissions as follows.
113 Three commissions were appointed by the Sri Lankan Government in January 1995 to inquire into and report on involuntary removals and disappearances from 1 January 1988. This mandate expired on 31 May 1997. Each commission had jurisdiction over a geographical area, namely, the north_east, central and south-west zones. Each commission was responsible for examining the evidence available to establish the allegations, the present whereabouts of the persons concerned, the identity of the persons responsible, the legal action which could be taken and the relief, if any, which could be afforded. It was subsequently ruled that cases of abduction or involuntary removals followed by death also fell within the ambit of these commissions.
114 The commissions submitted interim reports to the President containing the names of the persons responsible for the disappearances, where such evidence was available. The Presidential Secretariat reported that the findings of the reports were forwarded to the IGP for further investigation by a special team, where such investigation was necessary for further legal action. The IGP has also been directed to take action, where appropriate, against offending police officers.
115 On 3 September 1997, the commissions presented their final reports to the President. It was intended that both the interim and final reports would be published and action would be taken on their recommendations, including by initiating prosecutions in those cases where the commissions had found prima facie evidence. However, the final reports have not yet been published and the Special Rapporteur is not aware of any follow-up undertaken by the Government to the findings and recommendations of the commissions. This is particularily important since the commissions can only identify the persons responsible but cannot initiate the necessary legal process required to bring offenders before the courts.
D. Drafting of a new constitution
1 When he met with the authorities in Sri Lanka, the Special Rapporteur was told that the Government was engaged in a process of constitutional reform. The text of 18 chapters of the draft new Constitution of the Republic of Sri Lanka was given to the Special Rapporteur.
117 The fundamental rights under the draft constitution are wider in scope than those in the present Constitution, thus bringing the new Constitution into line with the International Covenants on Human Rights. The Fundamental Rights chapter of the draft constitution introduces a number of new rights not contained in the old chapter, the most important of which are the right to life (art. 8); the right of an arrested person to communicate with a relative or friend (art. 10 (4)); the right to retain legal counsel (art. 10 (5)); the right to be told the reasons for arrest and a 24_hour limit of custody prior to production before a judicial officer (art. 10 (6)); the right to reasonable bail (art. 10 (7) (a)); and the right to be charged or released without unreasonable delay (art. 10 (8)).
118 Government representatives told the Special Rapporteur that the text of the draft new constitution will be submitted to Parliament. In order to be adopted, it will require a two-thirds majority in Parliament and also the approval of the people in a referendum.
119 The Special Rapporteur encourages any step taken by the Government to bring its national legislation into conformity with international standards, especially human rights standards. In this regard, he hopes that restrictions to the fundamental rights through the application of the ERA and PTA will be lifted. While the fundamental right to life is reflected in the draft constitution, the Special Rapporteur notes that the death penalty is not prohibited. Although the death penalty is not yet prohibited under international law, the Special Rapporteur believes that its abolition is most desirable in order to enhance respect for the right to life.
120 Effective impunity encourages political violence and is a serious destabilizing element in all contexts of the Sri Lankan sociopolitical system. Respect for the rule of law is essential to maintain order and stability and to protect human rights in any country. Impunity perpetuates the mass violation of human rights. There have been periodical extrajudicial executions, but few perpetrators have been brought to justice. Furthermore, impunity is an obstacle to democratic development and peace negotiations, and makes reconciliation difficult. This culture of impunity has led to arbitrary killings and has contributed to the uncontrollable spiralling of violence.
121 The systematic absence of investigation, either civil or military, into violations of the right to life facilitates impunity. Investigations are rarely conducted, and when they are, they do not lead to the appropriate convictions or penalties.
122 During the Special Rapporteur's visit to Sri Lanka, most of the human rights advocates with whom he met as well as relatives of victims of human rights violations stated that in Sri Lanka, soldiers and policemen who commit fundamental human rights violations such as killings, torture and acts of disappearances are rarely punished. Neither are they fully held accountable for their acts.
123 Several relatives of disappeared people and human rights organizations from all areas of Sri Lanka have expressed concern that many members of the security forces and others allegedly responsible for grave human rights violations in the recent past continue to hold official posts in the same areas where the violations took place and may try to interfere with the investigations. This was a particular concern in relation to the hearings held by the commissions of inquiry in the areas allocated to them, most notably in the north_east, where concern pertains not only to members of the police but also the army, the home guards and various armed militant groups.
124 The Attorney_General and the Government, throughout its correspondence with the Special Rapporteur with regard to cases of executions in recent years, expressed their willingness and intention to bring to justice members of the security forces believed to be responsible for human rights violations. Unfortunately, the Special Rapporteur notes that little progress has been reported in those cases submitted by him since the creation of the mandate. The Attorney_General said that every effort was being made to expedite those cases, but that the Government had no control over court proceedings and the steps taken by the defence in such cases to protect the interest of the accused. However, while recognizing that the Government cannot intervene once a trial has started, the Special Rapporteur wishes to point out that the Attorney_General himself has recognized that there are delays in actually bringing members of the security forces suspected of involvement in human rights violations to trial.
125 With regard to all the following cases, the Special Rapporteur wishes to stress the importance of carrying out exhaustive and impartial investigations into all allegations of human rights violations, with a view to clarifying the facts, identifying those responsible and bringing them to justice, and granting adequate compensation to the victims or their families. As experience gained in other countries has shown, establishing the truth about the past is essential for preventing renewed human rights violations in the future. The following cases illustrate this point.
126 The case of Richard de Zoysa. Richard de Zoysa, a well_known journalist and actor, was at the time of his abduction and murder in charge of the Colombo office of the International Press Service. De Zoysa lived with his mother, Dr. Saravanamuttu. On the night of 17/18 February 1990, an armed group entered their home, removed Mr. de Zoysa and drove away without explanation. Dr. Saravanamuttu immediately went to the Welikade police station and lodged a complaint. The next day, 19 February 1990, de Zoysa's dead body was found in the sea at Moratuwa, some 12 miles south of Colombo. He had been shot in the head and the throat, and his jaw was fractured. At the inquest the following day, Dr. Saravanamuttu said that she could identify two of the abductors. Three months later, she recognized a man on television as the man who had taken her son. He was a high_ranking police officer. She informed her solicitor who brought it to the notice of both the Magistrate conducting the inquiry into the incident and the police. However, the suspect was not arrested nor was an identity parade held, nor has Dr. Saravanamuttu's identification been heard by a judicial officer. Both Dr. Saravanamuttu and her lawyer, Batty Weerakoon, have received death threats. Police officers assigned to guard Batty Weerakoon have also received such threats.
127 There are a number of reasons why the investigation into this case is unsatisfactory, and need to be investigated themselves. In principle, it is unsatisfactory that the police investigate matters in which their own members are suspected of being involved. This has been recognized as far back as 1970, when a Commission headed by a former Chief Justice recommended independent machinery to look into such complaints. In addition, there are special reasons for unease regarding the conduct of the police and the way the investigations were carried out. They include the following:
(a) It was possible, in the middle of Colombo, in a residential housing estate, close to the police station, to abduct a well_known personality, in what could be described as a military_style operation. The perpetrators must have felt that they could do this unimpeded, especially as they had alerted a person known to de Zoysa that they were on their way (see below);
(b) A person who knew the victim was forced at gunpoint to disclose de Zoysa's address. He immediately telephoned a friend, who in turn notified a Senior Superintendent of Police of the risk to Richard de Zoysa. This officer in turn rang Welikade police station which is situated very close to de Zoysa's house. Had this telephone call been made and acted on promptly, the Welikade police should have been able to prevent the abduction or apprehend the abductors. (Note that Richard de Zoysa's own house had no telephone so his friends were unable to warn him themselves.);
(c) When the police did arrive at the scene, after the abduction, they did not take the usual investigatory steps such as testing the premises for fingerprints;
(d) Despite the fact that Dr. Saravanamuttu claimed she could identify two of the abductors, she was never asked by the police to give a description of them;
(e) A possible motive for the killing was revealed by the State_owned news agency, Lanka Puwath, which stated that police had informed the agency that investigations revealed that de Zoysa was an activist for the Sinhalese Nationalist Party, the Janatha Vimukthi Peramuna (JVP), and that he had been sending false messages regarding human rights violations overseas. In a written statement read out to Parliament the head of Lanka Puwath said, "I obtained this news item from a reliable police source whom I have found totally responsible and accurate in my past experience". Moreover, the State Minister for Defence had earlier read a statement to Parliament concerning people who were sending "false information" about human rights violations abroad, to influence donors and prevent aid flows to Sri Lanka. A subsequent news item in a State_controlled newspaper stated that intelligence sources had submitted to the Defence Ministry a list of "80 names of influential people" who had supported the subversives;
(f) Once Dr. Saravanamuttu made the identification of the man who had abducted her son, it was a clear duty of the police to question neighbours and other witnesses as to whether they had seen a person so described on the night of the abduction;
(g) There was a distinct lack of interest on the part of the police to investigate the death threats received by Dr. Saravanamuttu and her lawyer. In the latter's case, the language of the threat, with its reference to foreign aid, clearly reflects the sentiments described in paragraph (e) above. Indeed, several complainants, witnesses and lawyers have been subjected to death threats, harassment, or allegedly killed;
(h) There was apparent collusion between the police and the lawyers for the suspect, to such an extent that the Magistrate felt commpelled to comment, "(a)t this stage I inquire from [prosecutor] Gamini Perera as to whether Mr. Godfrey Gunasekera, who appears with him, is in this court on behalf of the prosecution or to conduct the defence. I have seen him on several occasions secretively whispering certain things to counsel for the suspect". Mr. Gunasekera is a Senior Superintendent of Police who appeared in court that day for the first time, the day the police had been ordered to produce the suspected police officer.
128 This case is an example of the large majority of investigations into human rights violations which in Sri Lanka are not carried out by an authority which is fully independent of those suspected to be responsible for the human rights violations.
129 The Special Rapporteur urges that reports of threats or intimidation of complainants, witnesses, lawyers or others involved in the bringing of those responsible for human rights violations to justice be fully investigated, and legal action taken against those responsible. The Special Rapporteur further urges that adequate protection be provided to anybody threatened in the course of an investigation into human rights violations. He notes that the police officers assigned to protect Batty Weerakoon also received death threats, and it is unlikely that their names and assignments would be known outside police circles.
130 Case of Mr. Sarath Karaliyadda. In a report to the Commission on Human Rights (E/CN.4/1990/22, para. 389), the Special Rapporteur described the case of Mr. Karaliyadda, a lawyer who was found dead on 27 October 1989 together with four other persons, a few hundred metres away from his home in Teldeniya in Kandy district. He was reportedly abducted on 26 October 1989 by three armed men, including one in army uniform. According to the information received, Mr. Karaliyadda had been representing, in a magisterial inquiry, the relatives of a -year-old student, Jayantha Bandara, who had been shot by police during demonstrations at Teldeniya in June 1989.
It was reported that seven police officers of Teldeniya police station were questioned in the inquiry and that two of the witnesses had been killed since the start of the inquiry. In its reply to the Special Rapporteur (E/CN.4/1991/36, para. 475 (c)), the Government of Sri Lanka stated that an investigation revealed that on 26 October 1989, eight armed persons dressed in civilian clothes entered Mr. Karaliyadda's house in Teldeniya police area. These persons had ransacked the house and removed jewellery and cash. They led Mr. Karaliyadda away from the house, and his dead body was subsequently found about a quarter of a mile away. A magisterial inquest was held by the Teldeniya magistrate and was to be resumed after further investigations.
131 The Special Rapporteur did not receive any further information regarding this case. It appears that the authorities did not resume the inquiry into the death of Mr. Bandara or hold any further investigations regarding the killing of the lawyer and the witnesses.
132 On 17 May 1985, 23 young men from Naipattimunai, Amparai district, were allegedly arrested by Special Task Force (STF) personnel from Kallady camp and made to dig their own grave. Subsequently, they were allegedly shot. Mr. Paul Nallanayagam, President of the Kalmunai Citizens' Committee, was arrested and charged with spreading rumours and false statements after speaking to foreign journalists about the incident. During his trial before the Colombo High Court in mid1986, a lot of evidence emerged about the disappearance of the 23 young men but no further action against those responsible has been taken since. Paul Nallanayagam was acquitted of all charges on 17 July 1986. It was reported that the Government of Sri Lanka did not take any action and that the official position remains that none of the disappeared had been arrested. Although a lot of evidence was available at the time about the arrests and subsequent disappearances by the STF, the police did not make any further attempts to investigate the incident.
133 The Special Rapporteur urges the Government to establish a full and impartial investigation into the disappearance and alleged killings of the 23 young men. He is concerned that no action has been taken by the Government to establish the fate or whereabouts of these men, nor who was responsible for their arrest and killing in custody. He hopes that the alleged perpetrators, namely the STF officers, would be brought to justice and that compensation paid to the relatives.
134 Case of Mr. Wijedasa Liyanarachchi. On 2 September 1988, Mr. Liyanarachchi, a lawyer, died while in custody at Colombo hospital with multiple injuries resulting from torture. He had been arrested on 25 August 1988 as a suspected member of the JVP. The alleged perpetrators, three police officers from Tangalle police station, were convicted in March 1991 after the charges against them had been reduced to illegal detention and conspiracy to detain illegally. They were sentenced to suspended sentence and fined. A Deputy Inspector General of Police (DIG) was also suspected of involvement in the illegal arrest and detention of Mr. Liyanarachchi and in attempting to cover up his death due to torture, but has not been charged. The court recommended that investigations be reopened to establish who was responsible for the murder of Wijedasa Liyanarachchi and particularly to investigate the role played by the DIG. The way in which the Government proceeded after the court recommended that investigations be reopened in this case is an indication of the lack of political will to prosecute members of the security forces implicated in human rights violations in this period in the south.
135 Shortly after the judgement, the first accused reportedly committed suicide. The DIG was appointed head of a special police team (Bureau of Special Operations), but subsequently took early retirement. In March 1992, at the request of the CID, the Maligakanda magistrate's court ordered a fresh investigation into the case. It directed that the passport of the retired DIG be impounded to prevent him from leaving the country. He then went underground and issued a number of statements to the press in which he spoke of death squad activities in the south of the country, providing, for instance, a list of 830 persons whom he said had been killed between July and November 1989 in the Central Province.
He later repeated these allegations in sworn statements. Instead of ensuring that such serious allegations were properly investigated, the authorities immediately filed a case in the High Court against the retired DIG and several newspapers that had published the statements, charging them with bringing the Government into disrepute and creating disharmony among different communities. Soon afterwards, the retired DIG left the country in circumstances which were not clear. In June 1993, however, he returned. The next day, he appeared in the High Court and was granted bail.
The Attorney_General's Department was quoted as saying that they would consider withdrawing the charges against him if in turn he would withdraw the allegations he had made in the various sworn statements. On 8 July 1993, the retired DIG filed such a sworn statement, also implying that some of the earlier statements had not originated with him. The Attorney_General then withdrew all charges relating to the sworn statements. The investigation into his role in the abduction, torture and illegal detention of Wijedasa Liyanarachchi, as recommended by the High Court, remains to be implemented. On 29 July 1993, the retired DIG was appointed Vice_Chairman of the Sri Lanka Ports Authority, a senior position in the government service.
136 The Special Rapporteur believes that those thought to be responsible for extrajudicial executions must be held to account regardless of whether they are officials of a past or current Government, or whether they are members of the security forces or of semiofficial paramilitary groups. Those against whom there is sufficient evidence of their involvement in human rights violations should be tried and their trials should conclude with a clear verdict of guilt or innocence. All trials should be conducted in full conformity with internationally recognized norms for fair trial. The present situation does not encourage soldiers and policemen to respect human rights; on the contrary, disproportionate criminal sentencing emboldens policemen and soldiers to continue to violate basic human rights principles.
137 In a report to the Commission on Human Rights (E/CN.4/1993/46, paras. 539, 543), the Special Rapporteur reported that on 29 April 1992, 89 Tamil villagers, including 20 minors, were allegedly killed by a group composed of policemen and Muslim home guards in the villages of Muthugal and Karapola, Polonnaruwa. These killings reportedly took place in reprisal for a massacre, which took place some hours earlier, of 54 Muslim villagers by members of the LTTE. Most of the victims were said to have been shot or hacked to death. Six persons were reportedly captured by home guards in the surrounding countryside, and one person was said to have been taken into police custody. Their bodies were found in an irrigation ditch on the following day. A special investigation into the case was reported to have been opened, but no disciplinary or judicial procedures were said to have been opened against those responsible, nor did the families of the victims receive any compensation.
138 Information received from the Government of Sri Lanka by the Special Rapporteur is contained in the same report to the Commission (para. 543). The Government stated that the attacks had been carried out by Muslim villagers from a nearby village, in retaliation for an earlier attack by LTTE "terrorists" which had cost the lives of 56 people. This was part of the ethnic cleansing strategy used by the LTTE to drive Muslim and Sinhalese villagers out of the territory they claimed as their homeland. In the reprisal attack on Muthugal and Karapola, 74 Tamil villagers were killed and 44 others wounded. The Ministry of Defence of Sri Lanka appointed a committee to inquire into the two attacks, with a view to ascertaining who was responsible and establishing whether there was any lapse on the part of the security personnel, and to recommend measures to prevent the recurrence of incidents of this nature.
139 On 22 September 1993, the Special Rapporteur sent a followup letter to the Government of Sri Lanka in which he referred to a reply received from the authorities in 1992 concerning the killing of 130 villagers in Alanchipothana, Karapola and Muthugal in April 1992 (see E/CN.4/1993/46, paras. 539 and 543). The Government informed him that a committee chaired by a retired judge of the Supreme Court had been appointed to inquire into the killings. The Special Rapporteur requested to be kept informed about the progress of the investigations. He also asked the Government to provide him with detailed information about the working of the committee, in particular the legal basis for its inquiries, the procedures followed, its relations with other, judicial or administrative, investigations, etc.
140 On 30 and 31 December 1993, the Government provided the Special Rapporteur with information in reply to his letter of 22 September 1993, (see E/CN.4/1994/7, para. 555). The Government informed the Special Rapporteur that a threeperson committee, appointed by the Ministry of Defence to investigate the incidents, had presented a confidential report containing conclusions and recommendations. The committee had found that the killings at Karapola and Muthugal were carried out by villagers and some home guards of Alanchipothana, in reprisal for the earlier killings by the LTTE at their village. Reportedly, the Karapola police post did not attempt to prevent the violence. The committee also stated that there had apparently been no control over the issue of arms and ammunition, particularly to home guards, and recommended, inter alia, a disciplinary code of conduct for the home guards who should be placed under a defined authority such as the army or the police; the creation and training of a paramilitary force to supplement the home guards in the defence of border areas against the LTTE; investigations into all complaints and action, if necessary, against any member of the group.
141 In a letter dated 23 September 1994, the Special Rapporteur requested further details on the investigation carried out by the committee, particularly with regard to the date on which the report was submitted and the followup given to the recommendations. The Special Rapporteur also inquired whether anyone had been brought to justice in connection with the killings at Alanchipothana, Karapola and Muthugal, and whether any judicial or disciplinary measures had been taken with regard to those based at the Karapola police post.
142 While welcoming the Government's prompt action to investigate this incident, the Special Rapporteur is concerned that the full report of the committee's findings has not been made public. The Special Rapporteur has not received any further information about the prosecution of police officers, home guards and villagers allegedly involved in the reprisal killings of the villagers of Muthugal and Karapola. The Special Rapporteur has also received reports about two further instances of reprisal killings, where police investigations were announced without any independent investigative body being appointed. The first took place at Mailanthanai in Batticaloa district on 8 August 1992.
Twenty_four soldiers were accused on 83 charges relating to the murder of 39 Tamil men, women and children. The preliminary hearings in the case were concluded at Polonnaruwa Magistrate's Court in March 1994, having been transferred there from Batticaloa without any explanation in mid1993. Of the 24 soldiers, 3 were discharged and 21 were committed to stand trial in the High Court. The second case in which a police investigation was ordered is the reported killing by soldiers of about 10 people at Velaveli in Batticaloa district on 24 October 1992. The then Prime Minister Dingiri Banda Wijetunga was reported as saying that these killings would be investigated by the police, but there has been no subsequent evidence that an investigation had started.
143 Through the above_mentioned cases of executions, it appears that the most severe punishment ever handed out to human rights violators is suspension from duty, despite the gravity of the offences, including extra_legal executions, with which they were charged. While civilians who peacefully exercise their fundamental civil and political rights are charged and sentenced to years of imprisonment, soldiers and policemen who flagrantly violate the rights of innocent civilians are charged before their own peers and sentenced to only months of imprisonment. This situation encourages impunity. The Special Rapporteur believes that penalties should be imposed that relate to the seriousness of the offences in order to deter further human rights violations. Respect for the rule of law cannot be promoted unless all trials are conducted in full conformity with internationally recognized standards.
144 Impunity for those responsible for human rights violations remains a serious concern. Progress in a few court cases against members of the security forces charged in connection with disappearances and extrajudicial executions is slow, as are investigations into many other cases. While in Colombo, the Special Rapporteur met with Mr. W.C.N. Rajapakse who recounted the case of his sister, Ms. W.W. Chandrawathie. She was 22 years old when, on 26 September 1990, she was forcibly taken from her house in Eppawala, Anuradhapura district, by a sub-inspector of police accompanied by other officers of the Eppawala police station.
According to her father and other relatives, she was dragged to the nearby jungle and allegedly raped by the sub-inspector, who subsequently shot her. They also alleged that her body was later burnt on tyres at a nearby quarry. Officials at the local police station refused to assist the family when they attempted to lodge a complaint. Her family then contacted the Deputy Inspector General of Police of the area, who initiated investigations, the results of which were presented to the Magistrate's Court.
145 As a result of the magisterial inquiry into the rape and death of Ms. W. Chandrawathie, it has been alleged that her relatives received several death threats. Her brother, Mr. Rajapakse, was allegedly arrested on the first day of the inquiry by members of the Anuradhapura police and held at Anuradhapura police station for 12 days, during which time he was allegedly beaten. The father of the victim and one of several people who identified the sub_inspector and a constable as being responsible received several threats.
146 The Government of Sri Lanka has repeatedly announced that relevant authorities have been asked to expedite court cases against members of the security forces suspected of human rights violations. It appears, however, that this case has been postponed six times now. When in Colombo, the Special Rapporteur met with the victim's brother and was informed that in the meantime, his father had died without living to witness the offenders being brought to justice. He was also told that witnesses could not afford to travel to Colombo only to have the case postponed. The continual delays were time_consuming and a financial burden for the family and the witnesses.
147 The Special Rapporteur brought this case to the attention of the Attorney-General during their meeting and he was told that the trial had been fixed for 20 October 1997 in Colombo High Court.
148 The Special Rapporteur stresses the need to reestablish accountability among the security forces by bringing to justice those responsible for past human rights violations, for the sake of the victims and their relatives, and also to prevent such abuses from happening again. A system of compensation for the families of victims should be developed, as well as a system to protect witnesses and their families who participate in criminal investigations and give testimony.
149 The visit of the Special Rapporteur to Sri Lanka, at the invitation of the Government, was facilitated by the efforts, cooperation and courtesy extended to him by the officials of the Government. All requests from the Special Rapporteur to meet with government representatives were met, except for the meeting with the President and Secretary of Defence.
150 The Special Rapporteur wishes also to express his appreciation to the UNDP Resident Representative for facilitating his stay in Colombo and his visits to Jaffna, Batticaloa and Ratnapura.
151 The Special Rapporteur is of the opinion that the question of extrajudicial and arbitrary executions in Sri Lanka is serious, and results from the interaction of multiple factors. The principal cause is the prevailing abuses against the right to life which has taken root within the internal armed conflict. The perpetrators are the armed forces and police themselves, who kill suspected insurgents and civilians perceived as supporting them; LTTE members who kill members of the security forces, members of opposing factions, those who refuse to continue the armed insurgency or to continue to support the LTTE, including civilians; paramilitary organizations allegedly linked to the security forces (home guards) who are also responsible for extrajudicial executions.
152 Human rights violations are most frequent in the context of operations carried out by the security forces against the armed insurgency. While considering it inappropriate to affirm the existence of a planned policy of "systematic violation" of human rights, the violations have been so numerous, frequent and serious over the years that they could not be dealt with as if they were just isolated or individual cases of misbehaviour by middle_ and lowerrank officers, without attaching any political responsibility to the civilian and military hierarchy. On the contrary, even if no decision had been taken to persecute the unarmed civilian population, the Government and the high military command were still responsible for the actions and omissions of their subordinates.
153 The pervasive violence generated by armed LTTE members and their increasing attacks against the armed forces and civilians are further indicators of the general deterioration of the situation and the prevalent insecurity in certain parts of Sri Lanka.
154 The Special Rapporteur understands the difficulties faced by the Government when confronted with insurgents and other armed groups who are responsible for numerous acts of violence and clearly lack respect for the lives and physical integrity of State agents and civilians. However, this does not justify excessive and arbitrary use of force on the part of the security forces. There is no excuse for extrajudicial, summary or arbitrary executions, nor for their encouragement through impunity.
155 The Special Rapporteur is particularly concerned about the massacres and extrajudicial, summary or arbitrary executions among the civilian population, especially women and children, which have become an almost ubiquitous feature of daily life in Sri Lanka.
156 The Special Rapporteur is concerned about the numerous reports he received which indicate that in many cases of violations of the right to life no compensation was provided.
157 The Special Rapporteur is also concerned about certain laws and regulations which have been enacted in Sri Lanka and which allow impunity to persist and which in some cases grant security officers immunity from prosecution. Of particular concern are the emergency regulations governing arrest and detention procedures and those governing post_mortems and inquests when deaths have occurred in custody or as a result of the official action of the security forces.
158 The Special Rapporteur is also worried by the paralysis of State institutions, particularly the judiciary in the areas of armed conflict, which is generating impunity and hence the perpetration of human rights violations.
159 The Special Rapporteur remains concerned at the contrast between statements indicating high sensitivity to, and awareness of, human rights issues at the top level of the armed forces and their practices in the field, which very often fail to respect human rights.
160 Impunity enjoyed by human rights violators in Sri Lanka is very pervasive. The judiciary is competent to deal with cases involving security forces personnel accused of human rights violations. The justice system can be tough and effective in prosecuting and punishing disciplinary offences involving manifest disobedience of orders.
However, it has proved itself equally effective in guaranteeing impunity for violations of the ordinary criminal law in respect of acts (murder, torture, kidnapping) committed in the line of duty. Thus, Sri Lanka fails to fulfil its obligations under international law to carry out exhaustive and impartial investigations with a view to identifying those responsible, bringing them to justice and punishing them.
Although in a number of cases, tribunals have granted compensation to victims, or their families, for damages suffered at the hands of state agents, the tribunals conducting criminal proceedings against the same agents do not find grounds for their conviction. This strongly suggests the lack of institutional willingness to hold the authors of human rights violations responsible.
161 Neither the Sri Lankan population, the main victims, nor the international community, a powerless witness to the frequent killings and disappearances, seem capable of halting the violence. The failure by the Sri Lankan authorities to take concrete measures which would have immediate effect and put an end to this violence and further prevent its degeneration into a civil war has also contributed to shaping the present situation.
162 The Special Rapporteur would like to stress the importance of linking the humanitarian and human rights issues involved in the challenge of peace. Throughout his mission, he stated that without peaceful management or resolution of the conflict, there can be no effective and durable answers to the problem of the protection of the right to life.
Throughout his discussions with Sri Lankan authorities, individuals and representatives of non-governmental organizations, he felt that there was an understanding that unless a political solution to the conflict is found, there can be little hope of ending it. Some of the authorities are trying to differentiate between the LTTE as an insurgent group and the Tamils as a community which is entitled to political rights equal to those of any other citizen in Sri Lanka. In making this differentiation, they are considering continuing the war with the LTTE and finding a political solution with the Tamils. However, there appeared to be a determined desire on the part of the armed forces, who control the military situation, to privilege a military solution.
163 It will only be possible for the State to reassert itself effectively, that is, with the respect and support of the population, if it can reform itself in the area that is central to the legitimacy of any State, namely, the establishment of the rule of law. Of course, this cannot be done in a vacuum. There needs to be serious attempts made to pacify the country, not just by using discrediting counter_insurgency techniques which violate international human rights and humanitarian law, but also by seeking a political accommodation. The importance of peace for the enjoyment of human rights in areas of insurgent activities and military counter_insurgency operations cannot be overemphasized. In this regard, the Special Rapporteur welcomes the efforts made by the Government with a view to restoring a normal life in Jaffna.
1644 Finally, on several occasions, the Government of Sri Lanka has acknowledged the existence of problems relating to violations of human rights and repeatedly declared its commitment to act on them. The Special Rapporteur welcomed measures taken by the Government of Sri Lanka to strengthen the protection of human rights, through the establishment of the Human Rights Commission, and the three commissions of inquiry into past disappearances, but he feels that a lot has yet to be done in order to ensure that these institutions can operate as effective instruments.
165 The recommendations that follow are aimed at reinforcing and supporting the efforts of the Sri Lankan Government to translate its commitment into reality. Particular emphasis is laid on measures that could contribute to the prevention of further human rights violations.
166 The Special Rapporteur acknowledges that peace would create the most favourable circumstances for improving the human rights situation in Sri Lanka. He therefore urges all the parties to the armed conflict to seriously seek and negotiate a peaceful solution to the conflict and, to the extent that the parties would find this helpful, suggests that the United Nations would be willing to assist in this process. However, no such peace agreement should create obstacles to providing justice for the victims of human rights violations within the mandates of the Special Rapporteur.
167 The Special Rapporteur considers it of the greatest importance to create a mechanism which would encourage confidencebuilding between the Sinhalese and the Tamils. Such a mechanism would aim at providing security and protection to all the people of Sri Lanka. In this regard, the Government of Sri Lanka should refer to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and, in that context, should take all measures required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law.
168 Reform and transformation of the security forces of Sri Lanka are needed in order to allow Tamils equal access to them; the security forces may thus come to represent the whole society, and hence enjoy the confidence of the population.
169 All efforts which might be initiated by the Government of Sri Lanka to coordinate the functions of all the security forces responsible for ensuring law and order should be strengthened. The training programmes provided by the Office of the High Commissioner for Human Rights for the security forces and which is being implemented in other countries might be a possibility. They should take into account the need to provide specialized and distinct training to both army and police officers. The relevant international standards developed by the United Nations, such as the Code of Conduct for Law Enforcement Officials, should be part of such training.
170 All sources consulted agree on the quasi_monoethnic composition of the army. Predominantly Sinhalese, the army has recruited more on the basis of ethnicity than on a truly national basis. This has provoked grave suspicions that the army is prejudiced, a fear fuelled by the fact that repeated searching operations are carried out mainly against Tamils, and that the army personnel do not speak the Tamil language. Changing the recruitment policy, perhaps by means of a quota for Tamils, should be considered. Enhancing cultural sensitivity among the soldiers should also be considered.
171 Within this context, it is important that the national police force be accepted by both communities and have as its main responsibility the protection of the civilian population and the prevention of communal violence. One of the priority tasks of the national police force would be to ensure the security and protection of all people in Sri Lanka. The police should be given the requisite substantive training in order to enable it to fulfil its role of maintaining public order. However, all elements of the police who have been involved in summary executions, massacres or other grave violations of human rights should be excluded from the national police force.
172 The armed forces must be required to accept as a priority the taking of effective action to disarm and dismantle armed groups, especially the home guards, many of which they have set up and/or cooperated with closely. Given the numerous abuses committed by such groups, as well as their ambiguous status, this is a necessity. Furthermore, it would go some distance towards establishing the credentials of the armed forces as impartial upholders of the rule of law. It would also begin to make a reality of the democratic State's need to have a monopoly over the use of force, within the limits established in the pertinent international standards.
173 If they are not disarmed or dismantled, any such auxiliary force should be subject to strict control by the security forces. The Special Rapporteur recommends, inter alia, a disciplinary code of conduct for the home guards who should be placed under a defined authority such as the army or the police. In view of the experience of other countries where paramilitary groups are responsible for numerous and grave human rights violations, the Government may prefer to strengthen the regular security forces in areas of armed conflict, rather than creating a paramilitary body.
174 The Special Rapporteur also recommends that efforts to disarm the civilian population be intensified and their efficiency increased. Strict control of weapons in the possession of civilians would be an important measure, with a view to lowering the level of common and political crime and violence in Sri Lanka.
175 Adequate provision should be made for the protection of all those who have laid down their arms and are willing to reintegrate themselves into civilian life. In particular, former combatants who organize themselves in political movements to participate in the democratic process should be able to do so without fear of suffering reprisals.
176 177 While initiatives to raise awareness of human rights among members of the security forces and the population in general through educational and other measures are to be welcomed as a necessary step, the Special Rapporteur wishes to emphasize that respect for, and thus enjoyment of human rights can only be improved if impunity is effectively fought. The Special Rapporteur calls on the Government to fulfil its obligation under international law to conduct exhaustive and impartial investigations into all allegations of extrajudicial, summary or arbitrary executions and torture; to identify, prosecute and punish those responsible; grant adequate compensation to the victims or their families; and take all appropriate measures to prevent the recurrence of such acts.
178 The need to bring the perpetrators of extrajudicial executions to justice has been established as an obligation in international human rights standards. Paragraph 18 of the Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions provides that "[G]overnments shall ensure that persons identified by the investigation as having participated in extralegal, arbitrary or summary executions ... are brought to justice ... This principle shall apply irrespective of who and where the perpetrators or the victims are, their nationalities or where the offence was committed."
The Principles also provide that persons alleged to have committed these grave human rights violations should be suspended from any official duties during the investigation and removed from any position of control or power, whether direct or indirect. They also state that steps should be taken to ensure that all those involved in the investigation, including the complainant, counsel, witnesses and those conducting the investigation, are protected against illtreatment, violence, threats of violence or any other form of intimidation or reprisal.
179 The Special Rapporteur urges that all necessary steps be taken to minimize the delays in bringing to trial members of the security forces suspected of committing human rights violations.
180 The Government and prosecuting authorities should take follow-up actions to conclude the cases that have already been initiated by the State.
181 The Government should act in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which provide, inter alia, that victims should be entitled to access to the mechanisms of justice and to prompt redress for the harm that they have suffered. Families of the deceased and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of death shall be posted and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation.
182 The rights of victims or their families to receive adequate compensation is both a recognition of the State's responsibility for the acts committed by its personnel and an expression of respect for the human being. Granting compensation presupposes compliance with the obligation to conduct investigations into allegations of human rights abuses with a view to identifying and prosecuting the alleged perpetrators. Financial or other compensation provided to the victims or their families before such investigations are initiated or concluded, however, does not exempt Governments from this obligation.
183 A system of compensation for the families of victims should be developed, as well as a system to protect witnesses and their families who participate in criminal investigations and give testimony.
184 With regard to persistent allegations of deaths of civilians in military counterinsurgency operations, the Special Rapporteur calls on the authorities to take all necessary measures to ensure full respect for the restrictions on the use of force and firearms contained in the pertinent international instruments. Counter_insurgency operations by the armed forces must be carried out in full respect for the rights of the civilian population. Under no circumstances should the army use heavy weapons against the civilian population, as has been the case on several occasions.
185 The excavation, exhumation and evaluation by experts in the forensic sciences of remains which may belong to victims of extrajudicial, summary or arbitrary executions are an integral part of the obligation to conduct thorough investigations as referred to above. They must be carried out in accordance with the highest standards of expertise by specialists in forensic archaeology, anthropology, pathology and biology.
In this context, the Special Rapporteur wishes to refer to the Model Protocol for Disinterment and Analysis of Skeletal Remains, included in the Manual for the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions, a United Nations publication. The Special Rapporteur calls on the Government to ensure that the necessary forensic expertise and ballistic analyses are made available throughout the country with a view to obtaining maximum evidence in each case under investigation. In this regard, the Government of Sri Lanka might wish, through the Office of the High Commissioner for Human Rights, to request the assistance of international forensic experts to aid local experts in establishing a local forensic unit.
186 The Special Rapporteur calls on the authorities to take the necessary steps with a view to strengthening the ordinary justice system in Jaffna so as to make it more efficient in all circumstances. To this effect, there should be an allocation of the necessary human and material resources to carry out prompt and effective investigations into alleged human rights violations. For instance, it might be necessary to have more courts than only the High Court in Colombo to inquire into deaths which fall under the ERA.
187 The Government of Sri Lanka should consider accession to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. The Government of Sri Lanka is also urged to sign Protocol II Additional to the Geneva Conventions of 12 August 1949.
188 The emergency regulations should be revised in order to bring them into line with accepted international standards. These reforms would need to include the following elements:
189 (a) Removal of provisions which dispense with post_mortems and inquests when deaths have occurred in custody or as a result of official action of the security forces. This could be simply done by returning to normal inquest procedures under ordinary law;
(b) The Government should allow public access to the records of all inquiries, into deaths in custody or as a result of action by the security forces held in the High Court under the provisions of the ERs;
(c) Time_limits for bringing a person before a judge following his arrest should not exceed a reasonable maximum time_limit;
(d) The emergency regulations should be compiled and codified.
190 The fundamental right to life should be reflected in the new Constitution and the death penalty abolished in order to fully reflect the de facto situation.
191 The Government should publicize the reports of the three commissions which examined the cases of alleged disappearances, and prosecuting authorities should prepare cases against identified offenders.
192 Legislation for the issuance of death certificates in respect of missing persons should be enacted and provincial mechanisms for the implementation thereof should be established.
193 The Human Rights Commission should be strengthened, in accordance with the Principles relating to the status of national institutions (Paris Principles), annexed to Commission on Human Rights resolution 1992/54 and General Assembly resolution 48/134. Such an institution should be based on the recommendations of the Commission on Human Rights concerning the competence, responsibilities, composition, guarantees of independence and pluralism, methods of operation, status and functions of national human rights institutions. The Human Rights Commission might consult the Office of the High Commissioner for Human Rights for advice and technical cooperation in this particular field. Such a Commission should, inter alia, be able to achieve the following goals:
(a) Give a full public accounting of the scope and extent of the crimes committed in the name of the State and the political and institutional factors that contributed to the impunity of their authors;
(b) Formally identify the individual responsibility for such crimes, including the direct perpetrators and those who may have given the explicit or implicit orders for their commission;
(c) Instigate the corresponding criminal and disciplinary proceedings, to be carried out by the competent organs;
(d) Ensure effective reparation to the victims or their dependants, including adequate compensation and measures for their rehabilitation;
(e) Make recommendations that would help to prevent further violations in the future.
Members of the Commission should have access to all places of detention without prior notification, be assured of repeated visits and meet prisoners in private.
194 The Government of Sri Lanka should continue to elaborate and implement without delay the policy to improve security, which would enable the displaced and dispersed Tamil populations of the country to return to their homeland and would facilitate their reintegration and reinstallation. The international community should be ready to respond to requests by the Government of Sri Lanka for assistance in this matter.
195 The Government of Sri Lanka should also implement the recommendations made by the representatives of various United Nations human rights mechanisms that visited Sri Lanka, such as the Working Group on Enforced or Involuntary Disappearances and the Special Representative of the Secretary_General on internally displaced persons.
196 The level of violence, both politically motivated and due to the internal conflict, has risen in the recent past, despite legislative reforms and other initiatives taken by successive Governments. The current Government recognizes the gravity of the human rights situation, has identified its causes, in particular impunity, and has repeatedly expressed its willingness to take radical measures to redress the situation. It is clear that the Government will encounter resistance from various powerful quarters defending their interests. The Special Rapporteur believes that the international community should support the Government's efforts to translate its expressed political willingness into practice.
The advisory services and technical assistance programme of the Office of the High Commissioner for Human Rights should consider favourably any request from the Government of Sri Lanka to help it to put the above recommendations into effect. The involvement in this process of the United Nations Development Programme (which already provides assistance to the Government on human rights issues) would be welcome. In this context, the Special Rapporteur wishes also to emphasize the importance of the role of nongovernmental human rights organizations in Sri Lanka and the need to strengthen them and provide them with adequate protection. Their full participation in human rights assistance programmes is essential for their effectiveness.
197 The Government of Sri Lanka should establish a national institution to find ways and means for national reconciliation. This institution will provide a forum for a discussion on crucial issues facing Sri Lankan society - peace, security and confidence-building measures to attain protection of human rights, the protection of minorities, strengthening of democracy, reconciliation and coexistence, national unity and restoration of confidence in the institutions of the Government. Non-governmental organizations and civil society should be fully involved in this process.
