A/HRC/25/23
proceedings.44 The High Commissioner heard from lawyers about large numbers of
fundamental rights applications, including in cases of arbitrary detention and torture,
that are discouraged or not given leave to proceed by the Supreme Court.45
69.
One consequence of this situation is the understandable reluctance of victims
and witnesses to come forward in the absence of any effective system for their
protection. In many cases, witnesses have been intimidated to discourage their giving
testimony, and even killed. This has been a major constraint on criminal
investigations, as well as on the work of previous commissions of inquiry and the
Lessons Learnt and Reconciliation Commission. The Attorney-General himself
informed the High Commissioner that the reluctance of witnesses to come forward
was the main reason for the lack of progress in such emblematic cases as the ones
concerning Trincomalee and Action contre la Faim.
70.
A bill on assistance and protection for victims of crime has been in preparation
since 2007, and was tabled in Parliament in June 2008. The previous drafts contained
many provisions that were not compliant with international human rights law.
Although the Supreme Court recommended several amendments, it is not clear
whether they were incorporated. According to the Government, the legislation is
being finalized, even though the final version has yet to be released for public
consultation.
71.
At the same time, new evidence -- including witness testimony, video and
photographic material -- continues to emerge on the events that took place in the final
stages of the armed conflict. Human remains are also still being discovered, for
instance in Matale, in November 2012, and Mannar, in December 2013.
72.
As the emblematic cases highlighted above show, national mechanisms have
consistently failed to establish the truth and achieve justice. The High Commissioner
believes this can no longer be explained as a function of time or technical capacity, but
that it is fundamentally a question of political will. The Secretary-General’s Panel of
Experts and the initiatives taken by international non-governmental organizations
have shown that witnesses are willing to come forward to testify to international
inquiry mechanisms that they trust and can guarantee their protection. For this
reason, the High Commissioner remains convinced that an independent, international
inquiry would play a positive role in eliciting new information and establishing the
truth where domestic inquiry mechanisms have failed. In the absence of a credible
national process, she believes the international community has a duty to take further
steps, which will advance the right to truth for all in Sri Lanka and create further
opportunities for justice, accountability and redress.
73.
The High Commissioner reiterates her concern at the continuing trend of
attacks on freedom of expression, peaceful assembly and association, particularly
against human rights defenders, journalists and families of victims, the rising levels of
religious intolerance, and continued militarization, which continue to undermine the
environment where accountability and reconciliation can be achieved. She therefore
reiterates and updates the recommendations made in her previous report to the
Human Rights Council, most of which remain unimplemented.
44
45
As seen, for example, in the transfer of the magistrate overseeing the case of the Matale mass graves.
For example, the Fundamental Rights application (SCFR115/2011) submitted by the parents of
Ganeshan Nimalaruban, who died in custody following the attack on the prisoners in Vavuniya in
June 2012.
17
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