AN Analysis of UNHRC Resolution on Sri

Lanka; Reasons for the Changes

( Sri Lanka FM made a huge impact on HRC through his address to the council in Sep. 2015)

04/10/2015
HRC 30th Session Draft Resolution.
Item 2: Promoting reconciliation, accountability and human rights in Sri Lank.a
The Human Rights Council,
Preambular Paragraphs.A
Comment: Preambular paragraphs in a resolution are drafted to reflect the background
and spirit of the resolution. They are not the binding part of the resolution as the
operative paragraphs are, but explain the thinking and logic behind the resolution.
They are also useful tools in interpreting the text of the operative paragraphs. Often, in
the event an operative paragraph is unclear or could be interpreted in more than one
way, the preambular paragraphs could be useful in determining what the text of the
resolution actually means.
Readers will not that many of the revisions to the text effected to the previously
circulated draft reflect the incumbent governments own political messaging and
discourse related to accountability, UN processes and reconciliation.
Pp1
Reaffirming the purposes and principles of the Charter of the United Nations,
Pp2

Guided by the Universal Declaration of Human Rights, the International Covenants on

Human Rights and other relevant instruments,
Pp3
Recalling also Human Rights Council resolutions 19/2 of 22 March 2012, 22/1 of 21
March 2013, and 25/1 of 27 March 2014 on promoting reconciliation and accountability
in Sri Lanka,
Comment: The above three paragraphs are standard paragraphs typically found in
resolutions of the Human Rights Council.
Pp4
Reaffirming its commitment to the sovereignty, independence, unity and territorial
integrity of Sri Lanka,
Comment: This language is taken from previous Human Rights Council resolutions on
Sri Lanka, and makes clear that the resolution is not aimed at the creation of a
separate state, as alleged by a few.
Pp5
Reaffirming that it is the responsibility of each State to ensure the full enjoyment of all
human rights and fundamental freedoms of its entire population,
Comment: International Human Rights Law holds that it is the state who is primarily
responsible for protecting human rights.
Pp6

Co group that presented the SL resolution

Welcoming the historic free and fair democratic elections in January and August 2015and peaceful political
transition in Sri Lanka,

Comment: The co-sponsors of the resolution were very keen that the text of the
resolution reflect the change that took place in Sri Lanka in January 2015 and
thereafter in August. The US Ambassador to Geneva Keith Harper repeatedly stated
that the resolution should reflect two realities: first, the change that has happened in
Sri Lanka, and second, the gravity and seriousness of the violations of human rights
and crimes contained in the OISL Report.
Pp7
Taking note with interest of the passage and operationalization of the nineteenth
amendment to the Constitution of Sri Lanka and its contributions to promoting
democratic governance andindependent oversight of key institutions,including the
provision on promotion of national reconciliation and integration as among the
Constitutional duties of the President of Sri Lanka,
Comment: This paragraph was likely included to strengthen the governments
argument that nineteenth amendment to the constitution strengthened Sri Lankas
ability to deal with accountability related issues. The final phrase relating to the duties
of the President was included in keeping with Sri Lankas proposals made at the
informal session on the draft resolution held on the 22nd of September.
Pp8
Welcoming thesteps taken by the Government of Sri Lanka since January 2015 to
advance respect for human rights and to strengthen good governance and democratic
institutions
Comment: Once again, the text reaffirms its commendation of the positive change
since January 2015.
Pp9
Welcoming the efforts of the Government of Sri Lanka to Investigate allegations of
bribery,corruption, fraud, and abuses of power, and stressing the importance of such
investigations and the prosecution of those responsible in ending impunity and
promoting good governance;
Comment: This is an important paragraph as it stresses the connection between
human rights issues and corruption issues. It potentially opens the door to
mechanisms that deal with corruption and human rights issues at the same time. In
fact, Government Spokesman and Minister DrRajithaSenaratnewas quoted in The
Island newspaper as suggesting that the same judicial mechanism with foreign
participation may be used to deal with both issues. While this is unlikely to be definitive
government policy, it is possible that some quarters within government may be thinking
on these lines. http://www.island.lk/index.php?page_cat=article-details&page=articledetails&code_title=131974
Pp10

Welcoming as well, the steps taken to strengthen civilian administration in the former
conflict-affected provinces of the North and East, and acknowledging the progress
made by the Government of Sri Lanka in rebuilding infrastructure, demining and
resettling internally displaced persons, and calling on the international community,
including the United Nations, to assist the Government of Sri Lanka in furthering these
efforts, especially in expediting the process of delivery of durable solutions for all
internally displaced persons;
Comment: The language of this paragraph was amended in favour of the Sri Lankan
government on its request. The initial draft read: Welcoming and acknowledging the
progress made by the Government of Sri Lanka in rebuilding infrastructure, demining
and resettling internally displaced persons, while noting nonetheless that considerable
work lies ahead in the areas of justice and reconciliation and to deliver durable
solutions for all internally displaced persons. Instead of noting that considerable work
lies ahead, the paragraph calls on the international community to assist the
Government of Sr Lanka in furthering these efforts. This change was also proposed by
Sri Lanka at the informal session held on 22 September.
Pp11
Recognizing the improved environment for members of civil society and human rights
defenders in Sri Lanka, while expressing concern at reports of ongoing violations and
abuses of human rights and recognizing the expressed commitment of the
Government of Sri Lanka to address issues including those involving sexual and
gender-based violenceand torture, abductions, as well as intimidation of and threats
against human rights defenders, and members of civil society,
Comment: This paragraph was also amended to soften the language towards Sri
Lanka, but nevertheless express concern at reports of sexual violence and torture, as
well as incidents of threats against some civil society members and human rights
defenders particularly in the North and East. The initial version of the draft before it
was changed read: Expressing concern at the continuing reports of violations of
human rights in Sri Lanka, including those involving sexual and gender-based
violence, torture , abductions, as well as intimidation of and threats against human
rights defenders, and members of civil society
Pp12
Reaffirming that all Sri Lankans are entitled to the full enjoyment of their human rights
regardless of religion, belief or ethnicity, in a peaceful and unified land;
Comment: Once again, the text affirms the equality of all Sri Lankans and the desire
that Sri Lankas peoples be united.
Pp13
Reaffirming also that States must ensure that any measure taken to combat terrorism
complies with their obligations under international law, in particular international

human rights law, international refugee law and international humanitarian law, as
applicable,
Comment: This paragraph was also contained in the resolution passed in March 2014
at the Human Rights Council. It indicates that even counter-terrorism measures much
comply with the law.
Pp14
Welcoming the governments Declaration of Peace of 4 February 2015 and its
acknowledgement of the loss of life and victims of violence of all ethnicities and
religions,
Comment: This paragraph is a further indication of the drafters willingness to
acknowledge and welcome the change that has taken place in Sri Lanka.
Pp15
Emphasizing the importance of a comprehensive approach to dealing with the past
incorporating the full range of judicial and non-judicial measures, including, inter alia,
individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public
employees and officials, or an appropriately conceived combination thereof, in order
to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote
healing and reconciliation, establish independent oversight of the security system,
restore confidence in the institutions of the State and promote the rule of law in
accordance with international human rights law, with a view to preventing the
recurrence of violations and abuses, and welcoming in this regard the Governments
expressed commitment to ensure dialogue and wide consultations with all
stakeholders;
See comment on below paragraph
Pp16
Recognizing that mechanisms to redress past abuses and violationswork best when
they are independent, impartial, and transparent; are led by individuals known for
displaying the highest degree of professionalism, integrity, and impartiality; utilize
consultative and participatory methods that include the views from all relevant
stakeholders including, but not limited to, victims, women, youth, representatives from
various religions, ethnicities, and geographic locations as well as marginalized groups;
and designed and implemented based on expert advice from those with relevant
international and domestic experience;
Comment: The two above paragraphs are critical. The earlier draft circulated by the
co-sponsors used the term Transitional Justice, but it is understood that the Sri
Lankan Ministry of Foreign Affairs preferred the use of the phrase dealing with the
past instead. There is no major difference in the two phrases, and the difference is
primarily one that is discussed in academic circles. It is not clear why the Ministry of

Foreign Affairs prefers not to use the term Transitional Justice.

These two paragraphs provide a very comphrensive idea of what constitutes
Transitional Justice or dealing with the past. It contains the key notions of truth
seeking, criminal prosecutions, reparations, vetting to remove and prevent those who
are responsible for human rights abuses from the military and police, and institutional
reform to prevent recurrence of crimes.
It also speaks of the important principles of independence, impartiality and
transparency combined with a consultative approach to making policies which deal
with the past. These consultations must involve all sectors. Finally, expert advice from
outside and within the country must be relied on in making decisions on mechanisms
to deal with the past.
PP17
Recognising that a credible accountability process for those most responsible for
violations and abuses will safeguard the reputation of those, including within the
military, who conducted themselves in an appropriate manner with honor and
professionalism.
Comment: This paragraph was introduced by the co-sponsors of the draft with a view
to signaling to the country and its military that a process of accountability was not one
that was aimed at punishing the military as a whole. Instead, by isolating blame in the
hands of those who violated the law and abused their power, those who did not violate
the law would have their reputation safeguarded.
Pp18
Recalling the responsibility of States to comply with their relevant obligations to
prosecute those responsible for gross violations of human rights and serious violations
of international humanitarian law constituting crimes under international law, with a
view to ending impunity,
Comment: This paragraph merely restates what is accepted international law with
respect to international crimes. The identical language appeared in resolution 25/1
passed in March 2014.
Pp19
Taking note of the review of High Security Zonesundertaken by the government
andwelcomes the initial steps taken to return landto its rightful civilian owners and to
help local populations to resume livelihoods andrestore normality to civilian life,
Comment: This paragraph recognizes the progress made by the government with
respect to the release of civilian lands. However, the use of the phrase initial steps
taken to return land which the Sri Lankan government proposed be deleted, but
nevertheless has remained in the text, indicates that the Councils view and now the
Sri Lankan governments view that land releases must go beyond what has already
been done.

Pp20
Welcoming the Government of Sri Lankas commitments to the devolution of political
authority,
Comment: See comment on Operative Paragraph 16 below.
Pp21
Requesting the Government of Sri Lanka to implement effectively the constructive
recommendations made in the report of the Lessons Learnt and Reconciliation
Commission,
Comment: This language has been consistently found in all of the Human Rights
Council resolutions passed by the Human Rights Council since 2012: March 2012;
March 2013; March 2014 and now September 2015.
Pp22
Welcoming also the 30 March 3 April 2015 visit and observations of the Special
Rapporteur on the promotion of truth, justice, reparation and guarantees of nonrecurrence, and the planned visitof the Working Group on Enforced and Involuntary
Disappearances in November,
Comment: The March 2014 resolution encouraged these mandate holders to provide
technical assistance and advice to Sri Lanka. This paragraph welcomes Sri Lankas
engagement with these offices.
Pp23
Recognizing that the Investigation into alleged serious violations and abuses of human
rights and related crimes in Sri Lanka requested in Human Rights Council resolution
25/1 was necessitated by the absence of a credible national process of accountability,
Comment: This late inclusion into the draft (it was not included in the original draft
circulated by the co-sponsors) presumably on Sri Lankas request is significant. It
recognizes that the absence of a credible national process of accountability gave rise
to the need for the UN investigation mandated by HRC resolution 25/1. In this it
mirrors the political arguments and discourse that has come to characterize the
incumbent governments response to the now completed UN investigation on Sri
Lanka.
1. Takes note with appreciation the oral update presented by the High Commissioner
to the Human Rights Council at its twenty-seventh session, the report of the Office
of the High Commissioner for Human Rightson promoting reconciliation and
accountability in Sri Lanka and the report of itsInvestigation on Sri Lankarequested
in Human Rights Council resolution 25/1 including its findings and conclusions, and
encourages the Government of Sri Lanka to implement the recommendations

contained therein when implementing measures for truth seeking, justice,

reparations, and guarantees of non-recurrence;
Comment: The paragraph notes with appreciation the High Commissioners report and
the OISL Report including its findings and conclusions; and encourages the
government to implement its recommendations. The initial draft circulated by the cosponsors used the word welcomes. Sri Lanka proposed the use of the word notes
and a compromise was reached through the use of the phrase takes note with
appreciation. The phrase is used often in UN resolutions, and is a half-way measure
between welcomes which conveys full acceptance of a report etc and notes
which indicates acknowledgement of a report etc but unwillingness to fully accept all
its contents. However, in the second part of the paragraph, Sri Lanka has agreed to be
encouraged by the Council to fulfil the recommendations of the OISL Report without
reservation. This is highly significant.
2. Welcomes the positive engagement between the Government of Sri Lanka and the
High Commissioner and his Office since January 2015 and encourages the
continuation of such engagement in the promotion and protection of human rights
and in exploring appropriate forms of international support to and participation in Sri
Lankan processes for seeking truth and justice,;
Comment: This language was not part of the initial draft circulated by the co-sponsors
and was included in line with Sri Lankas proposals. It reflects the governments desire
to be perceived to be cooperating with the High Commissioner and his Office since the
Presidential elections of January 2015.
3. Supports the Government of Sri Lankas commitment to strengthen and safeguard
the credibility of the processes of truth seeking, justice, reparations, and guarantees
of non-recurrence by engaging in broad national consultations with the inclusion of
victims and civil society, including non-governmental organizations, from all affected
communities that will inform the design and implementation of these processes,
drawing on international expertise, assistance and best practices;
Comment: This paragraph deals with the need for consultations of a broad range of
stakeholders, with a view to informing the design and implementation of these
processes, and also to draw on international assistance with respect to these
consultations. The previous draft resolution circulated by the co-sponsors. The
language of this paragraph was softened from the language of the previous draft
circulated by the co-sponsors, which began with the phrase: Encourages the new
Government of Sri Lanka to respect its positive commitment to bolster and safeguard
the credibility of these justice processes by engaging
4.Welcomes the Government of Sri Lankas commitment to undertaking a
comprehensive approach to dealing with the past incorporating the full range of judicial
and non-judicial measures; welcomes in this regard the proposal by the Government
of Sri Lanka to establish a Commission for Truth, Justice, Reconciliation, and Non
Recurrence, an Office of Missing Persons, and an Office for Reparations;; welcomes
the Governments willingness to give each mechanism the freedom to obtain
assistance, both financial, material and technical from international partners including
the OHCHR; and affirms that these commitments, if implemented fully and credibly,

willhelp to advance accountability for serious crimes by all sides and help achieve
reconciliation;
Comment: This paragraph underlines two important ideas. First, it welcomes the
governments commitment to a process of deal with the past. The phrase full range of
judicial and non-judicial measures is a familiar one in Transitional Justice literature
and forms part of the International Center for Transitional Justices definition of
Transitional Justice. It encapsulates the idea that the government has consented to
judicial prosecutions as well as non-judicial measures such as truth commissions,
other tracing mechanisms, reparations and security sector reform.
The second main idea incorporated into this paragraph is borrowed from the speech
made by the Foreign Minister MangalaSamaraweera at the UNHRC sessions in
September. In his speech, he stated that the mechanisms established by Sri Lanka
would have the freedom to obtain assistance, both financial, material and technical
from international partners. Sri Lanka also sought these inclusions among others at
the informal session relating to the resolution held on 22 September. This paragraph
appears to merge previous draft OPs 6 and 7.
5. Recognizes the need for a process of accountability and reconciliation for violations
and abuses committed by the Liberation Tigers of Tamil Eelam as highlighted in the
OISL report;
Comment: This paragraph was included with the view to also covering LTTE abuses,
which are not specifically mentioned in any other paragraphs. Its inclusion was sought
to bring balance to the resolution.
6.Welcomes the governments recognition that accountability is essential to uphold the
rule of law and build confidence in the people of all communities of Sri Lanka in the
justice system,takes note with appreciation of the Government of Sri Lankas proposal
to establish a Judicial Mechanism with a Special Counseltoinvestigate allegations of
violations and abuses of human rights and violations of international humanitarian law,
as applicable; and affirms that a credible justice process should include independent
judicial and prosecutorialinstitutions led by individuals known for integrity and
impartiality;andfurther affirms in this regard the importance of participation in a Sri
Lankan judicial mechanism, including the Special Counsels office, of Commonwealth
and other foreign judges, defence lawyers, and authorized prosecutors and
investigators;
Comment: This paragraph is arguably the most important of the entire resolution. It
seeks to build on the Foreign Ministers own speech where he referred to a Judicial
Mechanism with a Special Counsel. This reference to Special Counsel ostensibly
refers to a prosecutor. It further affirms the importance of credibility and impartiality of
judges and prosecutors. The final phrase is key in that affirms the importance of the
participation in a Sri Lankan judicial mechanism, including in the prosecutors office,
of Commonwealth and other foreign judges, defence lawyers, and authorized
prosecutors and investigators. Each word is of critical important. By including the
phrase Sri Lankan judicial mechanism, the resolution allows the government the

political space to claim that the process is not an international process, but a local one.
Nevertheless, it affirms the importance of Commonwealth and other foreign
personnel. The importance of this phrase, and the fact that the use of Commonwealth
judges was always within the contemplation of the government is seen in Foreign
Minister MangalaSamaraweeras comments to an Indian magazine in January 2015,
immediately following the Presidential election. In it , he said, We hope for technical
assistance from the UN, perhaps judges from the Commonwealth whom we chair at
the moment too. However, the text specifies that judges could also be chosen from
outside the Commonwealth. In fact, it is arguable whether or not there it is permissible
not to have judges from outside the Commonwealth.
The text refers to authorized prosecutors and investigators. It is understood that this
inclusion of the word authorized, which does not feature in the previous text, was a
late inclusion on the request of the Sri Lankan government. It appears to be redundant
because all personnel participating in a judicial mechanism must necessarily be
authorized. Notably, to prevent any room for argument that the reference to
authorized prosecutors and investigators is unconnected to the words
Commonwealth and other foreign personnel, the phrase including in the Special
Counsels Office has been included for avoidance of doubt.
The text did change from the initial circulated draft in some ways. The initial text
referred to international personnel, while the current drafts refers to Commonwealth
and other foreign personnel. The current draft uses participation in while the previous
draft refers to involve. There is also the use of the word inclusion, as noted above.
The debate about whether this is a hybrid court or a domestic court is a moot point. It
is also irrelevant. The word hybrid court has no fixed definition. It could mean many
things. As a recent press article notes, the Sri Lankan Supreme Court was a hybrid
court according to some definitions as there were foreign judges until 1955, 8 years
after independence. The Udalagama and Paranagama Commissions of Inquiry were
also arguably hybrid commissions since they included foreign personnel as monitors
and advisors. The debate over hybrid or domestic is essentially a mask for two
central questions: how do you ensure the independence of judges and prosecutors
participating in the trial of international crimes that are highly politicized; and second,
how do you ensure such participants have the capacity to try serious international
crimes.
For Foreign Ministers comments on Commonwealth judges, made in January 2015,
see:http://swarajyamag.com/world/new-sri-lankan-foreign-minister-our-tilt-towardschina-needs-a-course-correction/
7. Encourages the Government of Sri Lanka to reform its domestic law to ensure that it
can effectively implement its own commitments, the recommendations made in the
report of the Lessons Learnt and Reconciliation Commission, as well as the
recommendations of the report by the Office of the High Commissioner for Human
Rights requested in resolution 25/1, including by allowing for,in a manner consistent
with its international obligations, the trial and punishment of those most responsible
for the full range of crimes under the general principles of law recognized by the
community of nations relevant to violations and abuses of human rights and

violations of international humanitarian law, including during the period covered by

the LLRC;
Comment: There are three key ideas in this paragraph. First, the idea that Sri Lanka
has legal obligations under international law to try and punish those most responsible
of certain crimes, and that it must reform its law to do. This is a standard international
law principle in relation to international crimes the state must at the least investigate
and punish those most responsible. This therefore calls for the inclusion in Sri Lankan
law of modes of responsibility such as command responsibility.
Second, the idea that these trials must be for the full range of crimes under the
general principles of law recognized by the community of nations which are relevant
to violations of human rights and IHL. The phrase general principles of law recognized
by the community of nations is taken from the ICCPR Article 15(2) and the Sri Lankan
Constitution Article 13(6) and has been interpreted by the Sri Lankan Supreme Court
in SepalaEkanayakes case to mean customary international law. Thus, the full range
of crimes under customary international law relating to human rights and IHL include
war crimes and crimes against humanity. The resolution therefore encourages Sri
Lanka to reform its law to include war crimes and crimes against humanity as offences
under domestic Sri Lankan law.
Third, the idea that these laws must cover the period covered by the LLRC which is
2002 to 2009 at the very least. Thus, the resolution does not merely call for the
incorporation of international crimes into domestic law, it makes reference to the need
for retroactive incorporation of these crimes in line with Article 13(6) of the Constitution
to go back to 2002.
8. Encourages the Government of Sri Lanka to introduce effective security sector
reforms as part of its transitional justice process that will help enhance the
reputation and professionalism of the military and include ensuring that no scope
exists for retention in or recruitment into the security forces of anyone credibly
implicated through a fair administrative process in serious crimes involving human
rights violations or abuses or violations of international humanitarian law
includingmembers of the security and intelligence units; and increasing training and
incentives focused on the promotion and protection of human rights of all Sri
Lankans;
Comment: Security sector reform is an important component of Transitional Justice.
One of the stated outcomes of such a process is to enhance and reputation and
professionalism of the military. The purpose of security sector reform is to limit the
prospects of recurrence and orient the security sector in a manner that protects human
rights, rather than endangers it. Two specific security sector reforms are mentioned:
first, the use of fair administrative processes to prevent retention and recruitment into
the security forces of those involved in violations of human rights and IHL. Second, to
provide training and incentives aimed at the promotion and promotion of human rights.
The first set of reforms are likely be to controversial, but have been effectively carried
out in other parts of the world, particularly in the former Balkans.
9. Welcomes the Government of Sri Lankas recent passage of an updated Witness
and Victim Protection Law and its commitment to review the law, andencourages

the Government of Sri Lanka to strengthen these essential protections by making

specific accommodations to effectively protect witnesses and victims, investigators,
prosecutors, and judges.
Comment: The language in the latest draft was strengthened to include reference to
the Foreign Ministers speech wherein he committed to review the Witness and
Victim Protection law. The OISL Report also highlights the need for a review of the law,
and strengthened protection for witnesses and victims. Although Parliament has
passed a law which was drafted by the previous administration, the law has not yet
been operationalized.
10.Welcomes the initial steps taken to return land and encourages the government to
accelerate the return of land to its rightful civilian owners, , and to undertake further
efforts to tackle the considerable work that lies ahead in the areas of land use and
ownership, in particular theending of military involvement in civilian activities, the
resumption of livelihoods and the restoration of normality to civilian life, and
stresses the importance of thefull participation of local populations, including
representatives of civil society and minorities, in these efforts,
Comment: This paragraph in this latest draft resolution was revised to reflect the
government in a more positive light. An earlier draft contained stronger language. It
read: Underscores the importance of the government taking additional steps on return
of land previously taken by defense forces to its rightful civilian owners, encouraging
the acceleration of such transfers of land back to the rightful owners, and encouraging
the government to undertake further efforts to tackle the considerable work that lies
ahead in the areas of land use and ownership, in particular the ending of military
involvement in civilian activities, the resumption of livelihoods and the restoration of
normality to civilian life, and stressing the importance of the full participation of local
populations, including representatives of civil society and minorities, in these efforts,
11.Encourages the Government of Sri Lanka to investigate all alleged attacks by
individuals and groups on journalists, human rights defenders, members of religious
minority groups and other members of civil society, as well as places of worship,
and to hold perpetrators of such attacks to account and to take steps to prevent
such attacks in the future;
Comment: This paragraph is almost identical to the paragraph from the March 2014
Resolution (25/1) and was included in that resolution in the light of communal violence
targeting primarily Muslims in that year as well as other attacks.
12.Welcomes the Government of Sri Lankas commitment to review the Public
Security Ordinance Act and review and repeal the Prevention of Terrorism Act and
replace it with anti-terrorism legislation in line with contemporary international best
practices;
Comment: This paragraph reflects the comments in Foreign Minister
MangalaSamaraweeras speech at the Human Rights Council in September 2015.
They were also mentioned in the OISL Report, suggesting that the Foreign Ministers
speech may have incorporated certain OISL recommendations even though the OISL
Report was not public at that stage. The government did receive an advance copy of
the OISL Report prior to FM Samaraweeras speech at the Council.

13.Welcomes the Government of Sri Lankas commitment to sign and ratify the
International Convention for the Protection of All Persons from Enforced
Disappearances without delay, to criminalize enforced disappearances and to begin
issuing Certificates of Absence to the families of the missing as a temporary
measure of relief;
Comment: This paragraph reflects the comments in Foreign Minister
MangalaSamaraweeras speech at the Human Rights Council in September 2015.
They are highly significant as they reflect the decades long demands of antidisappearance human rights activists. These are 1) the ratify the Disappearances
Convention; 2) criminalize enforced disappearances; and 3) issue certificates of
absence to families of the missing.
14.Welcomes the Government of Sri Lankas commitment to release publicly previous
Presidential Commission Reports
Comment: Earlier drafts speficially mentioned certain reports, but reference to them
was excluded during negotiations between the government at a late stage. The
previous draft made reference to the Udalagama and Paranagama reports by the end
of this month, and calls for the release of the results of its investigations into alleged
violations by security forces, including the attack on unarmed protesters in Weliweriya
on 1 August 2013, and the report of 2013 by the court of inquiry of the Sri Lanka
Army.It is notable that the Foreign Minister told the Human Rights Council in
September 2015 that the Udalagama and Paranagama Commission reports would be
released this month. Nevertheless, they have yet to be released. This change gives
rise to the assumption that the government may not be willing to release one or more
of these reports, though it is not immediately apparent why that is the case.
15.Encourages the Government of Sri Lanka to develop a comprehensive plan and
mechanism for preserving all existing records and documentation relating to human
rights violations and abuses and violations of international humanitarian law,
whether held by public or private institutions;
Comment: This provision reflects the duty of the state to preserve records and
documents relating to violations of human rights and IHL. This obligation is now
entrenched as a best practice and legal obligation under international law.
16.Welcomes the governments commitment to a political settlement by taking the
necessary constitutional measures andencouragesthe Government of Sri Lankas
efforts to fulfill its commitments on the devolution of political authority, which is
integral to reconciliation and the full enjoyment of human rights by all members of its
population; and encourages the Government of Sri Lanka to ensure that all
Provincial Councils, are able to operate effectively, in accordance with the 13th
amendment to the Constitution of Sri Lanka;
Comment: This paragraph was contested and was negotiated. The second part of the
paragraph relating to the Provincial Councils and the 13th Amendment are taken from
the March 2014 resolution (25/1). However, the reference to the governments
commitment to a political settlement by taking the necessary constitutional measures
refers tacitly to the Foreign Ministers speech before the Council where he made
reference to a political solution that would address the grievances of the Tamil people

through a new constitution. Thus, the Foreign Ministers formulation was slightly
revised to refer to constitutional measures in place of a new constitution. Reference
to a political solution and devolution in the text of the resolution was a key demand of
the Tamil National Alliance
17.Welcomes the Governments commitment to issue instructions clearly to all
branches of the security forces that violations of international human rights law and
international humanitarian law, including those involving torture, rape, and sexual
violence, are prohibited and that those responsible will be investigated and
punished, and encourages the government to address all reports of sexual and
gender-based violence and torture;
Comment: Once again, this recommendation was initially in the OISL Report, was then
incorporated into the speech of the Foreign Minister at the Human Rights Council, and
subsequently incorporated into the draft resolution. It did not figure in the initial draft
text, and was included subsequently.
18.Requests the Office of the High Commissioner to continue to assess progress on
the implementation of OHCHRs recommendations and other relevant processes
related to reconciliation, accountability, and human rights; to present an oral update
to the Human Rights Council at its thirty-second session, and a comprehensive
report followed by discussion on the implementation of the present resolution at its
thirty-fourth session;
Comment: The evolution of this paragraph is interesting. The typical formulation for
this sort of paragraph is to request the Office of the High Commissioner (OHCHR) to
monitor progress. It is understood that the Sri Lankan government preferred
alternative phraseology. The initial draft text therefore contained the words assess
and verify the human rights situation in Sri Lanka.
References to monitoring/assessing the human rights situation in Sri Lanka have now
been excluded. Instead, OHCHRis asked to continue to assess progress on the
implementation of other relevant processes related to reconciliation, accountability and
human rights. This reference to processes related to human rights among others will
provide the necessary interpretive space for OHCHR to in effect carry out human
rights monitoring.
The reporting periods are as follows: an oral update by OHCHR to the Council in June
2016, and a final comprehensive report in March 2017. This period coincides with the
18 month period which the Foreign Minister said Sri Lanka would take to implement its
accountability mechanisms.
See: The Foreign Minister told Daily FT the Government hopes to get the mechanism
off the ground within a year or 18 months. See more at:
http://www.ft.lk/article/471161/Accountability-framework-for-Lanka-s-own-sake
Mangala%C2%A0#sthash.XFOh9J7P.dpuf
19.Encourages the Government of Sri Lanka to continue to cooperate with special
procedures mandate holders, including responding formally to outstanding
requests;
Comment: This is a standard provision found it most country-specific Human Rights
Council resolutions. The earlier text was shortened to omit reference to specific

mandate holders.
20.Encourages the Office of the High Commissioner and relevant special procedures
mandate holders to provide, in consultation with and with the concurrence of the
Government of Sri Lanka, advice and technical assistance on implementing the
abovementioned steps.
Comment: This is also a standard provision found it most country-specific Human
Rights Council resolutions. It has been a feature of all resolutions on Sri Lanka since
2012.
South Asian Centre for Legal Studies.
Posted by Thavam