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Home > Struggle for Tamil Eelam > Sri Lanka Accused at United Nations > UN Commission on Human Rights 1999
UN COMMISSION ON HUMAN RIGHTS
55th SESSIONS: MARCH 1999Extracts from the Report by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, (Ms. Asma Jahangir) pursuant to Commission on Human Rights resolution 1998/68
- Agenda Item on Civil and Political Rights including questions of Disappearances and Summary Executions, submitted on 9 January 1999 (E/CN.4/1999/39, E/CN.4/1999/39/Add.1 )
Introduction to Report | Terms of reference | Legal framework and methods of work | General remarks | Communications to Governments | Death threats | Deaths in custody | Deaths due to attacks or killings by security forces | Violations of the right to life during armed conflicts | Genocide | Deaths due to acts of omission | Impunity | Rights of victims | Violations of the right to life of women | Violations of the right to life of minors | Violations of the right to life of persons exercising their right to freedom of opinion | Violations of the right to life of persons belonging to national, ethnic, religious or linguistic minorities | Violations of the right to life and non-State actors | Introduction to Addendum - Country Situations | Country Situation - Sri Lanka
1. This report is submitted pursuant to Commission on Human Rights resolution 1998/68 of 21 April 1998 entitled "Extrajudicial, summary or arbitrary executions". It is the first report submitted to the Commission by Ms. Asma Jahangir and the sixteenth submitted to the Commission since the mandate on "summary and arbitrary executions" was established by Economic and Social Council resolution 1982/35 of 7 May 1982. It will be recalled that Mr. Bacre Waly Ndiaye resigned from his duties as Special Rapporteur on extrajudicial, summary or arbitrary executions on 30 May 1998. By a letter of 12 August 1998 the Chairman of the Commission on Human Rights informed Ms. Jahangir of his decision to appoint her as Special Rapporteur on extrajudicial, summary or arbitrary executions. On 26 August 1998 Ms. Jahangir formally accepted her appointment by a letter to the Chairman.
2. For reasons of continuity the present report covers communications sent and received by both the previous and present Special Rapporteur in the period from 1 November 1997 to 31 October 1998. As a close reading of this document will reveal, the number of communications processed in the last year is considerably lower than in previous years. This is mainly due to the transition of the mandate from one Special Rapporteur to another, and should not be taken as an indication of any significant changes as regards the occurrence and seriousness of extrajudicial, summary or arbitrary executions.
In an addendum to the present report, the Special Rapporteur describes 62 country situations, which include in summary form the information transmitted and received by the Special Rapporteur, including communications received from Governments, as well as the Special Rapporteur's observations where considered appropriate.
3. The Special Rapporteur wishes to emphasize that the present report is only approximately indicative of the occurrence of violations of the right to life worldwide. This is mainly due to the fact that the report is exclusively based on information brought to the Special Rapporteur's attention. The Special Rapporteur wishes to point out that the present report was drafted under strict deadlines only two months after her appointment, which has limited her opportunity to fully explore the mandate entrusted to her. As most of the material and events covered by this report refer to the period prior to her appointment, the Special Rapporteur has in the drafting of this report chosen to follow the outline and methods developed and applied by her predecessor......
4. In resolution 1998/68, the Commission on Human Rights requested the Special Rapporteur to continue to examine situations of extrajudicial, summary or arbitrary executions, to respond effectively to information which comes before her and to enhance further her dialogue with Governments, as well as to follow up on recommendations made in reports after visits to particular countries. The Commission also requested the Special Rapporteur to continue monitoring the implementation of existing international standards on safeguards and restrictions relating to the imposition of capital punishment, bearing in mind the comments made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto.
5. In its resolution, the Commission also requested the Special Rapporteur to apply a gender perspective in her work and to pay special attention to violations of the right to life of children, participants in demonstrations or other public manifestations, persons belonging to ethnic minorities, and individuals carrying out peaceful activities in defence of human rights and fundamental freedoms. The Commission further urged the Special Rapporteur to draw the attention of the United Nations High Commissioner for Human Rights to such situations of extrajudicial, summary or arbitrary executions that are of particularly serious concern to her or where early action might prevent further deterioration.
Violations of the right to life upon which the Special Rapporteur takes action
6. During the present reporting period, the Special Rapporteur acted in the following situations:
(a) Violations of the right to life in connection with the death penalty. The Special Rapporteur intervenes when capital punishment is imposed after an unfair trial or in the case of a breach of the right to appeal, or the right to seek pardon, or commutation of the sentence, and in cases where mandatory death sentences are imposed. The Special Rapporteur also undertakes action when capital punishment is imposed for crimes which cannot be considered "most serious crimes" as stipulated in article 6, paragraph 2, of the International Covenant on Civil and Political Rights. The Special Rapporteur may, moreover, intervene if the convicted person is a minor, mentally handicapped or ill, a pregnant woman, or a recent mother;
(b) Death threats and fear of imminent extrajudicial executions by State officials, paramilitary groups, private individuals, or groups cooperating with or tolerated by the Government, as well as by unidentified persons who may be linked to the categories mentioned above;
(c) Deaths in custody owing to torture, neglect, or the use of force, or life-threatening conditions of detention;
(d) Deaths due to the use of force by law enforcement officials or persons acting in direct or indirect compliance with the State, when the use of force is inconsistent with the criteria of absolute necessity and proportionality;
(e) Deaths due to the attacks or killings by security forces of the State, or by paramilitary groups, death squads, or other private forces cooperating with or tolerated by the State;
(f) Violations of the right to life during armed conflicts, especially of the civilian population and other non-combatants, contrary to international humanitarian law;
(g) Expulsion, refoulement, or return of persons to a country or a place where their lives are in danger, as well as the prevention of persons seeking asylum from leaving a country where their lives are in danger through the closure of national borders;
(h) Genocide;
(i) Deaths due to acts of omission on the part of the authorities, including mob killings. The Special Rapporteur may take action if the State fails to take positive measures of a preventive and protective nature necessary to ensure the right to life of any person under its jurisdiction;
(j) Breach of the obligation to investigate alleged violations of the right to life and to bring those responsible to justice;
(k) Breach of the additional obligation to provide adequate compensation to victims of violations of the right to life, and failure on the part of Governments to recognize compensation as an obligation.
Legal framework and methods of work
7. For an overview of the international legal standards by which the Special Rapporteur is guided in her work, she makes reference to the report of her predecessor to the Commission on Human Rights at its forty-ninth session (E/CN.4/1993/46, paras. 42-68). For the purposes of the present report, the Special Rapporteur has, as noted above, largely followed the methods of work developed and applied by the previous Special Rapporteur, Mr. Bacre Waly Ndiaye. These methods of work are described in Mr. Ndiaye's report to the Commission on Human Rights at its fiftieth session (E/CN.4/1994/7, paras. 13-67), as well as his subsequent reports to the Commission (E/CN.4/1995/61, paras. 9-11 and E/CN.4/1996/4, paras. 11-12).
8. Since her appointment in August 1998, the Special Rapporteur has held a number of consultations with the Office of the High Commissioner for Human Rights, both in Geneva and in New York....
9. The Special Rapporteur attaches great importance to her cooperation with non-governmental organizations engaged in human rights protection and monitoring, especially as regards issues falling within the scope of her mandate. ...
10. While the Special Rapporteur undertook no official visits in the period from the time of her appointment in August until the end of 1998, she has written to a number of Governments expressing her interest in visiting their countries. The Special Rapporteur believes that visits and field missions are indispensable for the implementation of her mandate, as they allow her to acquaint herself with specific country situations and to investigate not only the allegations brought to her attention, but put her in a better position to recommend remedial measures to help Governments in building their capacities for better governance....
11. The following paragraphs give an overview of communications sent to Governments in the course of the last year. The figures shown below represent only the tip of the iceberg, and should by no means be considered as indicative of the occurrence of extrajudicial, summary or arbitrary executions. Nor do these figures reflect the tragedy involved in each and every case, behind which there is the suffering and sorrow of family members which must eventually touch human society as a whole. The cries of agony, which need no language, continue to exist. We must respond to ensure them and ourselves that there is such a thing as an international conscience. No self-respecting Government can or does have peace itself where such misery and insecurity to human life surround its citizens.
12. During the period under review, the Special Rapporteur transmitted 63 urgent appeals to the Governments of the following 30 countries: ... (including) Sri Lanka ...
14. In addition, the Special Rapporteur transmitted allegations regarding the violation of the right to life of more than 2,300 individuals to the Governments of the following 40 countries: ...(including) Sri Lanka...
15. .... The Governments of Rwanda, Romania and Sri Lanka have not responded to communications for the last two years.
18. The Special Rapporteur transmitted 20 urgent appeals aimed at preventing loss of life after she received reports on situations where the lives and physical integrity of persons were feared to be in danger. In this context urgent appeals were sent to the Governments of the following countries: ...(including) Sri Lanka ..... These urgent appeals concerned .... identified persons and groups of persons such as inhabitants of certain municipalities, witnesses, indigenous groups, persons belonging to certain families and members of opposition parties or human rights groups.
19. Persons on whose behalf the Special Rapporteur acted had received, directly or indirectly, death threats from State officials, paramilitary groups and private individuals cooperating with or tolerated by the State. .... Lastly, the Special Rapporteur addressed urgent appeals to the Government.... of Sri Lanka on behalf of persons who had allegedly received death threats from private individuals cooperating with or tolerated by the authorities....
20. The Special Rapporteur transmitted allegations of the death in custody of 44 persons, of whom 40 were identified, to the Governments of the following countries: ... (including) Sri Lanka ....
21.... The Special Rapporteur notes that in most countries where deaths in custody occur, State authorities are too often slow or reluctant to investigate cases and to bring persons responsible for such abuses to justice. As noted... below, this situation has, in some countries, led to a climate of impunity. She is also deeply concerned at the reluctance on the part of most Governments to recognize their additional obligation to ensure compensation to the families or relatives of victims of such abuses.
Deaths due to attacks or killings by security forces, paramilitary groups or private forces cooperating with or tolerated by the State
24. The Special Rapporteur transmitted allegations of killings by security forces, by paramilitary groups or by private forces to the Governments of ... (including) Sri Lanka .....
Violations of the right to life during armed conflicts
27. The Special Rapporteur remains extremely concerned about the growing number of civilians and persons hors de combat killed in situations of internal strife or armed conflict in all regions of the world. In the last year many thousands of persons not participating in armed confrontations have lost their lives as a result of deliberate killings, the use of indiscriminate or disproportionate force, the utilization of anti-personnel mines, or the blockage of goods and services, including relief assistance, in countries such as ....(including in) Sri Lanka....
29. The Special Rapporteur is aware of the frequent and at times casual use of the term "genocide" in everyday political discourse, which risks eroding some of its weight as a legal term. This underscores the importance of using the term "genocide" with precision and in accordance with the criteria set out in article II of the Convention on the Prevention and Punishment of the Crime of Genocide. However, she notes with concern the reluctance on the part of the international community to use the term "genocide", even when the situations referred to constitute grave and systematic violations of the right to life which seem to match these criteria. The Special Rapporteur welcomes the decision to include the crime of genocide in the jurisdiction of the International Criminal Court, the Statute of which was adopted in Rome on 17 July 1998....
Deaths due to acts of omission
31. The Special Rapporteur transmitted an allegation to the Government of Sri Lanka concerning an incident reported to have occurred in the Kalutara prison in December 1997, when 134 Tamil prisoners were allegedly attacked by armed Sinhalese prisoners. Three persons were reportedly killed and 17 others wounded in this attack which allegedly was carried out with the acquiescence or participation of prison guards and officials....
32. The Special Rapporteur wishes to emphasize that Governments have an obligation to carry out exhaustive and impartial investigations into allegations of violations of the right to life, to identify, bring to justice and punish perpetrators, as well as to take effective measures to avoid the recurrence of such violations. However, the Special Rapporteur is deeply concerned that in most of the countries where violations of the right to life were committed, the authorities have failed in their duty to bring perpetrators to justice, which in some countries has led to a climate of impunity often leading to the perpetuation and encouragement of human rights violations, including extrajudicial, summary or arbitrary executions......
33. The right of victims or their families to receive fair and adequate compensation within a reasonable period of time is a recognition of the State's responsibility for the acts committed by its personnel, as well as an expression of respect for the human being. Granting compensation presupposes compliance with the obligation to conduct investigations into allegations of violations of the right to life with a view to identifying and prosecuting the alleged perpetrators. The Special Rapporteur wishes to emphasize that the right of the victim is important not as an instrument of revenge, but in order to ensure respect for the rule of law.
Violations of the right to life of women
34. During the period under review, the Special Rapporteur took action on behalf of 123 women, of whom 106 were identified. .... the Special Rapporteur transmitted allegations regarding.... cases of violations of the right to life of women, .... said to have occurred in .... (including) Sri Lanka ....
35. It should be noted that the figures mentioned above do not necessarily show the actual number of women on whose behalf the Special Rapporteur intervened. First, they reflect only those cases in which it was specifically indicated that the victim was female. Second, some allegations transmitted by the Special Rapporteur refer to groups of unidentified persons which likely included women. It is a fact that women and children are the main victims of armed conflict and civil unrest. Most of the women on whose behalf the Special Rapporteur took action were women who received death threats or who were killed in attacks or killings by security forces of the State or by paramilitary groups. The Special Rapporteur is alarmed by reports from Sri Lanka ...... saying that several women had allegedly been gang-raped before being killed......
Violations of the right to life of minors
36. During the period under review, the Special Rapporteur took action on behalf of 67 minors, of whom 56 were identified....
37. The Special Rapporteur transmitted 64 alleged cases of violations of the right to life of minors to the Governments of: ....Sri Lanka.... These included children who had died as a result of an excessive use of force, as well as in attacks or killings committed by security forces or paramilitary groups. ...
38. In the last year large numbers of children have been killed in the context of armed conflict or internal strife in countries such as ... Sri Lanka ....
43. During the period under review, the Special Rapporteur took action on behalf of a wide variety of persons falling within this category, including journalists, members of political parties and trade unions, as well as participants in demonstrations....
44. ... the Special Rapporteur transmitted 8 urgent appeals on behalf of 12 persons exercising their right to freedom of opinion and expression to the Governments of: Indonesia (1), Iran (Islamic Republic of) (4), Pakistan (1), Sri Lanka (1) and Turkmenistan (1).
46. The Special Rapporteur acted on behalf of a variety of persons considered to belong to national, ethnic, religious and/or linguistic minorities in their countries. Both urgent appeals and individual allegations concerning violations of the right to life were transmitted to Governments during the period under review. This included communications sent to the following countries on behalf of the following persons: ... Sri Lanka concerning over 20 persons belonging to the Tamil minority.....
Violations of the right to life and non-State actors
47. The Special Rapporteur notes that violent acts committed by non-State actors do not fall within the purview of her mandate, which only allows her to take action when perpetrators are believed to have a link with the State. However, the Special Rapporteur is aware of and has received information concerning violence committed by armed opposition groups resorting to murder and indiscriminate or arbitrary killings of civilians as a tactic of armed struggle against Governments. She is aware that violent acts committed by such groups have led to the death of many civilians, in particular in Algeria, Colombia and Sri Lanka, as well as in the Kosovo province of the Federal Republic of Yugoslavia. The Special Rapporteur condemns these acts as clear violations of basic humanitarian and human rights principles.
48. While the Special Rapporteur recognizes the difficulties that the concerned Governments face in fighting armed insurgent groups, she notes with concern that in some countries Governments have adopted counter-insurgency strategies, often involving excessive and indiscriminate use of force, aimed at targeting those suspected of being members, collaborators or sympathizers of those groups, leading to further violations of the right to life. In this context, the Special Rapporteur wishes to refer to paragraph 1 of general comment 6 of the Human Rights Committee on article 6 of the International Covenant on Civil and Political Rights, in which the Committee confirmed that there can be no derogation from the right to life, not "even in time of public emergency which threatens the life of the nation". Governments engaged in action against armed groups must ensure that its own forces act in accordance with relevant international standards when carrying out their duties. Governments are also encouraged to devise strategies aimed at good governance through an efficient investigative process and to strengthen judicial capacity for long-term relief from rampant violence...
Introduction to Addendum - Country Situations (E/CN.4/1999/39/Add.1 )
1. This addendum to the report on extrajudicial, summary, or arbitrary executions describes 62 country situations and gives an account of actions undertaken by the Special Rapporteur between 3 November 1998 and 15 November 1998. It also contains in summary form the replies received from Governments to her communications, as well as observations of the Special Rapporteur where appropriate.
2. Owing to restrictions on the length of documents, the Special Rapporteur was obliged to reduce considerably details of communications sent and received. As a result, requests from Governments to publish their replies in their totality could not be acceded to. For the same reason, responses from sources to requests of the Special Rapporteur, although of great importance to her work, are only reflected very briefly in the report.
3. In the report, the dates included in parentheses refer to the dates of Government replies and those of transmission of urgent appeals. The dates on which the Special Rapporteur transmitted allegations of violations of the right to life, that is 27 May 1998, 18 September 1998, 8 October 1998, and 23 October 1998, are not mentioned in the report.
223. The Special Rapporteur was informed of the continuing conflict between governmental forces and members of armed insurgent groups such as the Liberation Tigers of Tamil Eelam and the consequent violations of the right to life. Reports continued to be received alleging indiscriminate killings of innocent civilians and non-combatants by both the Government and opposition groups. Army personnel and other members of the Sri Lankan military are constantly being blamed for the massacre of hundreds of Tamil civilians. These reported deaths are said to result from governmental air strikes on civilian targets as well as deliberate killings by military and police personnel. It was further asserted that police and military personnel have killed large numbers of innocent civilians in retaliation for acts committed by isolated armed groups.
224. Information regarding the application and use of the death penalty was also received during the period under review. Sources claimed that under current Sri Lankan legislation, crimes which are not considered most serious, such as drug-related offences and property crimes, are still punishable by death.
Communications sent
225. The Special Rapporteur sent one urgent appeal to the Government of Sri Lanka, on behalf of Iqbal Athas, a journalist for the Colombo Times who was reporting on corruption in the security forces. He had apparently received death threats from five gunmen suspected to be connected with the security forces (20 February 1998).
226. The Special Rapporteur transmitted allegations regarding violations to the right to life on behalf of the following persons:
(a) Koneswary Murugesupillai, a 35-year-old woman who was reportedly raped and then killed in front of her son on 17 May 1997 by members of the Sri Lankan police force in Batticaloa;
(b) Thankanayaki, a 49-year-old woman, was also said to have been raped and killed by a group of Sri Lankan police in Amparai on 15 October 1997;
(c) Maruthalingam Tharmalingam, Shanmugarajah Sivanesan and Sharip Jehan, three prisoners who apparently died on 12 December 1997 after being attacked in Katutara prison by other prisoners. Prison officials and prison guards were accused of acquiescing to and assisting in the attack;
(d) Seevaratnam Sivarasa, said to have died on 31 October 1997 after being detained and tortured in the Mount Lavinia police station. He was apparently taken to hospital by the police on 30 October;
(e) Reverend Arulpalan, Francis Miranda Joseph and his 17-year-old son Joseph Surendiran all reportedly died on 25 August 1997 after being arrested by Sri Lankan armed forces. A complaint was reportedly filed and the Sri Lankan authorities failed to respond. The bodies were found with gunshot and stab wounds on 9 September 1997;
(f) Amirthalingam Surenthran (13), Amirthalingam Jagendram (17), and six other unidentified persons who were reportedly arrested by police officers, taken to the police post and killed on 1 February 1998. Sources also claimed that the police officers appeared to be drunk at the time;
(g) Thesingarasa Thangamani, Thesingarasa Vasanthakumari (17), Nadarajah Pushpamalar, Nadarajah Gajan (4), Ponnuthurai Annamalar, Thurairatnam Parameswary and three other unidentified persons who were apparently killed on 15 August 1997 when two Sri Lankan air force planes bombed a Catholic church in Vavunikulam. In a similar incident on 20 November 1997, Pararajasingam Karunamoorthy, Selvarasa and Jeyarooban died in the area of Poonakary;
(h) Chandrawathy, Appukuddy Balachandran and Kandasamy, who all reportedly died from indiscriminate firing by Sri Lankan security forces in the Mankulam area on 8 July 1997;
(i) Antony Kanapathy, Raman, Ketharani and Umashankar (14), who all reportedly died on 17 July 1997 during an army raid on the hospital at Akkarayan.
Observations
227. The reports by the Truth Commissions published earlier this year were looked upon highly by the Special Rapporteur. This was viewed as a significant step for the country in improving its human rights status, especially dealing with extrajudicial, summary, and arbitrary executions. The Special Rapporteur calls on the Government to follow up on the recommendations of the Commissions without undue delay. This includes ensuring that forensic experts are given adequate access and security in investigations into the alleged mass graves in Chemmani. The Special Rapporteur believes it is essential for the Human Rights Commission to be strengthened and fully supported by the Government in order to effectively remedy the current human rights situation.
228. The Special Rapporteur compliments the Government of Sri Lanka for containing the regional violence within the country. However, she calls upon the civil and military authorities to continue the quelling of armed conflict in strict adherence to international law. With respect to allegations that unofficial armed groups within the country are being supported by the Government, the Special Rapporteur encourages the Government to re-establish State authority over such groups in order to protect against continued extrajudicial, summary and arbitrary executions.
