Geneva, 29 June 2016
I am honoured to present an oral update on Sri Lanka, and the report of my Office on Myanmar.
The oral update from Sri Lanka is presented pursuant to Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka, which was adopted by consensus with the co-sponsorship of Sri Lanka. The resolution sets out a comprehensive package of judicial and non-judicial measures necessary to advance accountability and reconciliation in Sri Lanka, as well as strengthen protection of human rights, democracy and the rule of law. This update serves to take stock of Sri Lanka’s progress in implementing its commitments in Resolution 30/1, identify challenges and constraints, and recommend strategies for moving forward.
I note with satisfaction that the Government has engaged with United Nations human rights mechanisms, including by issuing a standing invitation to Special Procedures. In recent months, Sri Lanka has welcomed country visits by the Working Group on enforced and involuntary disappearances, the Special Rapporteur on torture and other cruel, inhuman and degrading treatment and punishment, and the Special Rapporteur on the independence of judges and lawyers. The Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence has also made two advisory visits. I welcome Sri Lanka’s ratification of the International Convention for the Protection of All persons from Enforced Disappearance (CED) in May 2016. Government officials continue to cooperate with my staff who provide technical assistance through in-country presence and mission deployments. I also note the Government’s gracious assistance during my mission to Sri Lanka in February.
The Government has taken some steps towards promoting reconciliation. The decision to sing the national anthem in both Sinhala and Tamil on Independence Day, for the first time since the early 1950s, was a powerful gesture. Subsequently, the Tamil Chief Minister of the Northern Province visited a Buddhist temple in Jaffna. Also, the previously hubristic military celebrations of the 2009 victory were replaced by a more understated Remembrance Day.
I also note the process of constitutional reform has achieved significant momentum. In March, Parliament adopted a resolution establishing a constitutional assembly to develop a new constitution to go to referendum in 2017. This process presents an opportunity to rectify structural deficiencies that contributed to past human rights violations, and reinforce guarantees of non-recurrence such as strengthening civilian oversight over the military.
I am, however, concerned that the Government has not moved fast enough with tangible measures to build confidence among victims and minority communities. There are anxieties that the full promise of governance reform, transitional justice and economic revival, risks stalling or dissipating.
In particular, the progress in identifying and releasing land in the North and East still held by the military has been slow. When I visited Sri Lanka in February, I was told of the complexities involved but was assured that a new task force was expected to complete the process by June. The lack of transparency in this process is increasingly feeding frustration and disenchantment, particularly amongst victims and the IDP community.
The fate of remaining persons detained under the Prevention of Terrorism Act (PTA) remains a concern. The government released on bail 39 individuals detained without charge, but the fate of around 250 detainees remains unclear. The Government had promised decisions from the Attorney-General’s Office by the end of March, but there have been no further charges or releases. Moreover, reportedly more than 40 new arrests took place under the Act in 2015-16. Such cases only undermine confidence in the Government’s efforts to restore the rule of law.
Military presence in the north and east remains heavy. A culture of surveillance, and, in certain instances, intimidation, also persists. These point to a deeper challenge for the Government in asserting full control over the military and intelligence establishment.
Meanwhile, new security laws to replace the PTA are reportedly being drafted. I hope these laws will address the many observations made by UN human rights mechanisms and the drafting process will be transparent. I welcome directions issued by the President to the Commanders of the Armed Forces and the Police to enable to Human Rights Commission to exercise its powers to ensure that fundamental rights of persons arrested or detained are respected.
I encourage Government bodies to involve the Human Rights Commission in all aspects of transitional justice and constitutional reform process, including in the drafting of new security laws.
A valuable step for the Government to quickly build public and international confidence will be to advance some of the emblematic cases pending before the courts and achieve successful prosecutions. I strongly recommend that these existing cases be expedited and not be put to one side while the transitional justice mechanisms are developed.
In this context, I note the continued lack of viable protection for victims and witnesses. The review of the Assistance to and Protection of Victims of Crime and Witnesses Act of 2015 to meet international standards has not progressed. An effective witness protection system, fit for the purpose of international crimes and that has the confidence of the people, is essential for witnesses to come forward, and transitional justice mechanisms be considered credible.
Progress in setting up the necessary structures to implement a comprehensive transitional justice agenda has been hampered by a lack of clarity around responsibilities and a strategy that links together different processes. In November 2015, a Prime Minister’s Action Group was established to provide overall political coordination, supported by a dedicated Secretariat for the Coordination of the Reconciliation Mechanisms. I welcome the recent appointment of its Secretary-General and hope that the Secretariat’s institutional capacity and dedicated expertise will be strengthened.
I also welcome the Government’s appointment, in January 2016, of an 11-member Task Force of prominent civil society members, to conduct national consultations. It will be important to ensure that the centrality of victims and those traditionally excluded, including women, in the design and implementation of transitional justices processes and mechanisms. Importantly, those participating in the consultations should not be subjected to intimidation and that the voices of victims abroad should be included. It is also important for the Government not to pre-empt the results of the consultation process. There is a need to better connect the public, participatory dimensions of the process with the private, expert work that is going on behind the scenes on establishing transitional justice mechanisms.
This tension has already become apparent in the preparation of legislation to create a dedicated Office of Missing Persons (OMP), tabled in Parliament on 22 June. Addressing disappearances is an urgent need and will hopefully provide a form of immediate redress to the families and affected communities. So the Government is right to prioritise this task. However, I am informed that limited public discussions took place on the draft bill although I acknowledge late efforts to incorporate submissions from stakeholders.
Following the ratification of the Disappearances Convention (CED) in May 2016, I hope that enabling legislation that is being drawn up will include criminalizing enforced disappearances in the Penal Code. I note that on 7 June, the Cabinet of Ministers also approved draft legislation enabling the issuance of Certificates of Absence to be placed before Parliament shortly.
Experts that produced the OMP draft bill are reportedly working on different conceptual transitional justice models such as a Truth and Reconciliation Commission and the special court. Such groundwork is necessary and welcome, but if conducted without transparency, it could undermine the parallel consultation process and involvement of victims. National consultations should take the form of a vigorous and respectful dialogue whereby parties are given the space to express themselves freely, including on the participation of international actors in transitional justice mechanisms, with a view to shaping the design of transitional justice programmes.
I remain convinced that international participation in the accountability mechanisms, as stipulated in the Human Rights Council’s resolution, would be a necessary guarantee for the credibility, independence and impartiality of the process in the eyes of victims given the magnitude and complexity of the alleged international crimes, which the OHCHR investigation found could amount to war crimes and crimes against humanity.
Another challenge for the Government is to begin the process of security sector reform, including a comprehensive vetting process for members of security forces. This will be important for Sri Lanka’s Armed Forces to resume their place in international defence cooperation, in particular participation in UN peacekeeping. In advance of a prospective deployment of a Sri Lankan combat convoy battalion to MINUSMA in Mali, the UN will be working with the Government to put in place stringent screening procedures, at both national and international level, for all personnel that Sri Lanka intends to deploy.
Overall, the Human Rights Council should be encouraged by the steps taken thus far by the Government to implement some of the key commitments made in Resolution 30/1, and the consultations and preparations underway to further elaborate and design the transitional justice mechanisms. Nevertheless, more rapid, transparent and sustained progress could be made on the issues I have noted. Continuing allegations of human rights violations must be swiftly addressed, and the structures and institutional culture that promoted those practices be dismantled, to show there will be no tolerance for practices of the past.
I believe that a comprehensive and well-coordinated strategy on transitional justice is required for the Government to implement its commitments in Resolution 30/1. It should be backed up by a concerted public information campaign involving civil society in the design of transitional justice mechanisms. OHCHR continues to stand ready to provide further advice and technical assistance.
Inevitably, this transformative process will take time. Dealing with the multiple tracks of constitutional reform, transitional justice, economic recovery and security sector reform would tax the capacity of any government. Nevertheless, I urge the Government to take concrete steps to address the impatience, anxiety and reservations of victims towards the process. The encouragement and support of the Human Rights Council has been crucial, and I hope that the Human Rights Council will sustain its close engagement.
The full version of this oral update is available as a conference room paper circulated to you.
I now present my report on the human rights situation of Rohingya Muslims and other minorities in Myanmar.
The United Nations has expressed its concern at the situation of minorities in Myanmar for many years. My report today confirms the need to urgently address the serious human rights violations affecting the Rohingya and other minorities.
Significant expectations rest with the new Government that took office in April 2016 and I am encouraged by early signs of acknowledgement that change is needed. From the outset, let me acknowledge that this Government is the most ethnically diverse in decades, and that it has already taken some initial steps to address the situation of minorities in the country. These include the creation of a Ministry of Ethnic Affairs, and proposals for a 21st century Panglong Peace Conference. I also note that on 30 May, the Government set up a Central Committee on the Implementation of Peace, Stability and Development of Rakhine State, chaired by the State Counsellor Daw Aung San Suu Kyi.
It is vital that these initial steps move towards a major and comprehensive effort to address the entrenched discrimination against minorities which my report identifies. The new Government has inherited a structure of laws and policies that deny fundamental rights to minorities, and decades of impunity for serious violations against these communities has encouraged ongoing violence against them. Just last week, an unidentified mob attacked and partially destroyed a mosque and other properties in the Bago Region of Myanmar, a stark reminder of the need to take urgent steps to prevent and counter acts of incitement to discrimination, violence and hatred.
I believe that a strong effort to address violations against minorities will be essential, to provide all the people of Myanmar with a safe and peaceful environment, and to enable Myanmar’s transition to sustainable development, democracy and peace.
The Myanmar authorities have officially recognized 135 ethnic groups, but the Rohingya are not among them. Most of the Rohingya are rendered stateless and deprived of access to basic economic and social services. Since 1992, successive Special Rapporteurs have documented patterns of widespread and systematic violations against the Rohingya. My report highlights some of these patterns, including arbitrary deprivation of nationality; restriction on freedom of movement; threats to life, liberty and security; sexual and gender-based violence; denial of the rights to health, education and adequate standard of living; protracted displacement; forced labour; human trafficking and migrant smuggling; restrictions based on local orders; and limitation on political rights. The patterns of violations suggest the possible commission of crimes against humanity, if established in a court of law.
My report also features violations against other minorities in Myanmar, including in the context of armed conflict. They include deliberate and indiscriminate attacks against civilians; use of child soldiers; torture; forced labour; sexual and gender-based violence; violations of housing, land and property rights; and restrictions on freedom of religion or belief. In Kachin and northern Shan States, where fighting has intensified, we continue to receive reports of violations by all parties to the conflicts, including a wide range of human rights violations inflicted on minorities and violations of international humanitarian law. If established in a court of law, some of these violations could amount to war crimes.
At this key moment in Myanmar’s history, I urge the new Government to open a new window of hope by embarking on an urgent and concerted effort to halt discrimination against minorities, in law and in practice. I have made specific recommendations with regard to policies and practices, legislation, accountability, prevention of further violations, peace process, institutions, and implementation. In addition, by ensuring accountability for past and on-going allegations of human rights violations, the Government has an opportunity to develop a new and deeper confidence in Myanmar’s rule of law institutions.
My Office is eager to provide support to the country at this promising turning-point. I hope to continue discussions on setting up a country office, so that we can assist Myanmar to lay solid groundwork for the rule of law based on full and equal respect for the human rights of all its people.