Published in The Sunday Leader :: By Easwaran Rutnam ::
The investigation on the war in Sri Lanka by the UN Office of the High Commissioner for Human Rights (OHCHR) will apply International Criminal Law to the incidents and events under investigation in determining whether crimes have been perpetrated. Submissions for the investigations were called for from the public beginning last week and OHCHR said it will continue to seek access to Sri Lanka to conduct the investigation.
In the terms of reference for the probe OHCHR says it will continue to seek to engage with the Government of Sri Lanka, as envisioned in the Council resolution. It also said that the High Commissioner will continue to request for the team conducting the OHCHR Investigation on Sri Lanka (OISL) to have access to the country to meet with Government officials and others, as well as to have access to all relevant documentation. The Government has already said it will not allow the UN team to conduct the probe inside Sri Lanka.
In its resolution A/HRC/25/1 adopted in March 2014 on “Promoting reconciliation, accountability and human rights in Sri Lanka”, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to “undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission (LLRC), and to establish the facts and circumstances of such alleged violations and of the crimes perpetrated with a view to avoiding impunity and ensuring accountability, with assistance from relevant experts and special procedures mandate holders”.
The Council requested the High Commissioner to present an oral update at its 27th session and a comprehensive report on the investigations at its 28th session. In accordance with this mandate, the UN High Commissioner for Human Rights established the OHCHR Investigation on Sri Lanka (OISL), based in Geneva. The period under investigation covered by the LLRC is from 21 February 2002 to 15 November 2011, when it presented its report to the President of Sri Lanka. The OISL will also take into consideration any contextual and other relevant information that may fall outside this timeframe which may provide a better understanding of events or which may be pertinent regarding continuing human rights violations.
The legal framework for the investigation, which was released last week, noted that the mandate of the OISL requires it to undertake investigations into alleged serious violations and abuses of human rights and related crimes by both parties to the conflict. The legal framework that underlies the investigation will comprise of all obligations assumed by Sri Lanka under international human rights treaties and those applicable under customary international law. Although a non-state actor cannot formally become party to human rights treaties, it is now increasingly accepted that non-state groups exercising de facto control over a part of the State’s territory must respect certain human rights obligations of persons in that territory.
During the period covered by the investigations, there existed an internal armed conflict, making necessary the application of International Humanitarian Law, in particular provisions of the Geneva Convention relevant to non-international armed conflicts, to measure the conduct in the conflict of both the Government and non-state armed groups. Thus, the legal framework is the same as applied by the Lessons Learnt and Reconciliation Commission. Its mandate also requires the OISL to apply International Criminal Law to the incidents and events under investigation in determining whether crimes have been perpetrated. In June 2013, the High Commissioner appointed three distinguished experts, Martti Ahtisaari, former President of Finland, Silvia Cartwright, former High Court judge of New Zealand, and Asma Jahangir, former President of the Human Rights Commission of Pakistan, to play a supportive and advisory role, as well as independent verification throughout the investigation.
As required by the Council resolution, the OISL will also obtain the assistance of specific special procedures mandate holders including on extrajudicial executions, disappearances, internally displaced persons, arbitrary detentions, violence against women and torture.
In order to establish the facts and circumstances of alleged violations, abuses and crimes by both parties, the OISL will conduct a desk review of existing documents and information, including government and civil society reports, collect and document victims’ testimonies and the accounts of survivors, witnesses and alleged perpetrators, as well as seeking information from other relevant sources such as satellite images, authenticated video and photographic material and official documents.
In analysing the information collected, it will seek to corroborate facts and accounts to meet the agreed standard of proof. It will continue to seek to engage with the Government of Sri Lanka, as envisioned in the Council resolution. The High Commissioner will continue to request for the OISL to have access to the country to meet with Government officials and others, as well as to have access to all relevant documentation. The OISL will seek regular dialogue and cooperation with other United Nations entities, including its specialized agencies, interested institutions and academics and non-governmental and community organizations.
Any state, individual or organisation may submit information in writing to the OISL. Submissions to the OISL may be sent to:email@example.com Individuals, organisations and governments have been invited to submit information and/or documentation on alleged serious violations and abuses of human rights and related crimes allegedly perpetrated from February 21, 2002 to 15 November 15, 2011 in Sri Lanka by either of the parties in the armed conflict.
Submissions must be made by midnight, Geneva time, on October 30. This is to allow the investigation team time to analyse all the information gathered before drafting its report. Drafting needs to be completed at least two months before the report is presented to the HRC in March.
OHCHR says submissions should be sent in written form and must include the contact details of the author(s). Submitting entities/individuals should specify if the submissions – or parts of them – should be treated confidentially. Upon receipt of the submission, OHCHR will take all necessary measures to protect the confidentiality of the personal details of the authors or any other persons named in the submissions.
Submissions may be in English, Sinhala and Tamil. They must not exceed 10 pages. Should the OISL require additional information, it will contact the author(s) of the submission. Any video, audio or photographic material related to the submissions should not be submitted via email. Contact the OISL to make arrangements to send it by alternative means.
In carrying out its work, the OISL will be guided at all times by the principles of independence, impartiality, objectivity, transparency, integrity and “do no harm”.
Witness protection has been a sticking issue in the investigation. OISL says it will take appropriate steps to address witness and victim protection concerns and shall adopt procedures and methods of work aimed at protecting such persons during all stages of its work.
OHCHR notes the Government of Sri Lanka also has an obligation to protect victims, witnesses and others in Sri Lanka who make contact with the OISL, and it will be requested to make an undertaking that no such person shall, as a result of such contact, suffer harassment, threats, acts of intimidation, ill-treatment or reprisals. The OISL will take all necessary measures and precautions to protect the confidentiality of information, including by not disclosing the names of individuals in its public reports as appropriate. At the end of its work, the OISL will archive all its confidential material in accordance with standard UN procedures for strictly confidential material.