We recently sent a briefing to European Union officials outlining our thoughts relating to the return of Sri Lanka to “GSP+” preferential trading status. What follows is a condensed version of that briefing:
Before too long the European Union will make a decision about the return of “GSP+” preferential trading status to Sri Lanka.
We urge the European Union to make its decision based upon three tests: the extent to which the Government of Sri Lanka is respecting the terms of the treaties upon which GSP+ is contingent, the extent to which the Government of Sri Lanka has met the criteria laid down by the European Union in 2010 when this was last discussed, and on whether the Government of Sri Lanka is generating a climate that is conducive to the reconciliation needed for a lasting peace.
We feel that the Government of Sri Lanka, while having made some welcome progress since it came to power last year, is still failing these three tests. A return to GSP+ status at this time would therefore be premature and would send a discouraging message to the victims of gross human rights abuses who continue to call for justice and accountability, and indeed to those whose rights continue to be abused.
However we would encourage the European Union to use the negotiation process over the restoration of GSP+ status to improve the human rights situation in Sri Lanka, in particular by pushing for an end to: torture and other human rights violations; impunity for such violations; surveillance of civil society organisations; and the ongoing militarisation of Sri Lanka’s Northern and Eastern Provinces.
When measuring the Government of Sri Lanka’s progress upon these issues, we would like to draw your attention to the Government’s lengthy track record – which includes periods during which current members of the administration were in power – of making impressive announcements in response to external pressure only for these announcements to be subsequently undermined by limited implementation.
Examples of this kind can be found by looking at the implementation of Sri Lanka’s Universal Periodic Review commitments, at Amnesty International’s report “30 years of broken promises”, and at the Office of the High Commissioner for Human Rights’ “OISL” report into Sri Lanka’s war time violations. This is a pattern that stretches across all Governments Sri Lanka has known in recent times. During previous terms in office both the current Prime Minister and the current Foreign Minister demonstrated this behaviour, and – despite progress in some areas – the lack of implementation of the steps outlined in the Foreign Minister’s speech to the Human Rights Council in September of 2015 suggests that it is a pattern of behaviour they have not abandoned.
For this reason we would urge the European Union to make a return to GSP+ status contingent not upon the promise of action, pledges, the announcement of new measures, or the ratification of treaties, but on concrete measurable actions that have taken place.
Test 1: the Government of Sri Lanka’s treaty commitments
To be eligible for GSP+ the Government of Sri Lanka must ratify and implement 27 international treaties. In 2010 the European Union found Sri Lanka to be in breach of its obligations under the UN Convention Against Torture (CAT), the UN Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR).
We would suggest that Sri Lanka is still in breach of its obligations under the CAT. As reports from ITJP and Freedom from Torture show, torture and sexual violence are still systematically used against the Tamil civilian population in Sri Lanka. Additionally, the UN Working Group on Disappearances uncovered evidence of a secret torture site in November of this year, yet to date there has been no progress on investigating torture cases relating to the site. Finally, a recent report by Human Rights Watch suggests that police torture is still routinely used across Sri Lanka.
Ongoing violations of Freedom of Speech and Freedom of Expression also call into question whether Sri Lanka is not in breach of its obligations under the ICCPR.
Test 2: the criteria laid down by the European Union in 2010
We understand that the European Union laid down certain criteria in 2010 when last discussing Sri Lanka’s GSP+ status. Sri Lanka still has not met these criteria. In particular:
The Prevention of Terrorism Act (PTA) has not been repealed. While the Government of Sri Lanka has pledged to replace the PTA, it has not yet done so. Given the Government’s track record of broken pledges the PTA must be repealed before any return to GSP+ status.
There is still absolutely no clarity over which, and how many, former LTTE cadres are detained under emergency regulations, and no list has been provided to family members. The Government of Sri Lanka has made various statements as to those held in detention but the numbers do not add up, raising the concern that many of those in detention may have disappeared. In addition, the Government of Sri Lanka continues to insist that there is no informal or secret detention of LTTE cadres, despite clear evidence from the UN Working Group on Disappearances that this is not the case.
Test 3: a conducive climate for reconciliation and a chance of a lasting peace.
Sri Lanka is entering a very important phase in its history. The actions it takes in the next couple of years will determine if Sri Lanka can build a lasting peace, or if a failure of reconciliation will place it upon a path which will eventually lead to a return to civil war.
If Sri Lanka’s reconciliation process fails then it is a certainty that Sri Lanka’s human rights climate will deteriorate to the point where it will be in further breach of its treaty commitments. It is therefore vitally important that the European Union use the GSP+ negotiations as leverage to push the Government of Sri Lanka into actions designed to ensure the success of its reconciliation process.
The north and east of Sri Lanka are still gripped by a culture of fear. Surveillance and harassment of activists by the security sector has a chilling effect upon civil society. Even seemingly innocuous visits and questions by security sector personnel can have a seriously damaging effect upon civil society relations, as the very recent history of these areas means that the potential threat of imminent harm represented by these visits is taken very seriously indeed.
This is reinforced by the very high military presence in the north and east of Sri Lanka – which is closely linked to ongoing human rights violations. This generates a feeling of occupation of the north and east which is enforced by military’s presence in the local economy, with military run shops and hotels undercutting local businesses, and military memorials creating a sense of triumphalism.
The consequence is that there is a complete absence of trust between the local population and the Sri Lankan Government. This absence of trust threatens to kill at birth any chance of Sri Lanka’s reconciliation process being successful.
The issue of land also remains a priority. While the Government of Sri Lanka has made some small returns, this represents a very small proportion of total land seizures. 1033 acres of land have been released thus far, the total amount of land under military control in the north and east is still unknown, but is well into the tens of thousands. According to some reports, 44,548 acres of land is still under military occupation in the north and east – 1% of the total land area. The returns thus far could therefore represent as little as 2% of the total. There have also been reports that additional land continues to be appropriated.
We therefore request that the European Union make the return of GSP+ status conditional upon the following measures designed to restore trust and create an atmosphere in which a reconciliation process might have a chance of success:
- A substantial and demonstrable reduction in troop numbers stationed in Sri Lanka’s Northern and Eastern provinces.
- The ending of military involvement in economic activity in the Northern and Eastern Provinces and the closing of all military run shops.
- The ending of surveillance and harassment of civil society activists by the Sri Lankan Security Sector. Notably the Army and the Criminal Investigation Division (CID). Sri Lankan civil society activists should report a sustained period free from visits or questions by security sector personnel.
- The return of tens of thousands of acres of occupied lands and a full disclosure of the extent of land currently under military control.
If trust can be rebuilt and the climate of fear eroded then there is a chance that the United Nations mandated reconciliation process will be successful. However for this process to succeed the Government of Sri Lanka must remain true to the spirit and the letter of the recommendations of the Office of the High Commissioner for Human Rights’ “OISL” report into Sri Lanka’s war time violations, and to the Human Rights Council’s implementing resolution which the Government of Sri Lanka co-sponsored. The GSP+ negotiations should be used to ensure that this takes place.
In particular the UN mandated transitional justice programme envisaged a “hybrid” justice mechanism with the involvement of international judges, investigators, and prosecutors in key positions. Yet Government officials have subsequently been caught referring to the mechanism as a purely domestic one. Due to the trust issues mentioned previously, the involvement of international actors in Sri Lanka’s transitional justice programme is absolutely vital.
We therefore request that the European Union make the return of GSP+ status conditional upon the Government of Sri Lanka’s willingness to implement the United Nations mandated transitional justice programme. Namely by:
- Creating a transitional justice mechanism as envisaged in the Office of the High Commissioner for Human Rights’ “OISL” report.
- Such a process to have international judges, investigators, and prosecutors in key roles.
- Fully implementing the 43 action points contained within Human Rights Council resolution 30/1.
Sri Lanka’s transitional justice programme is currently in its consultative phase. Already there is a concern that consultation will consist purely of the opportunity to state views at the outset, and will not go further or touch upon what is really needed: a degree of input and control over the process itself from the survivor community. They feel once this initial consultative phase ends the Government of Sri Lanka will make no further efforts to involve them in the process or seek their further views. This would be a grave mistake.
In order for Sri Lanka’s transitional justice programme to be successful this consultation process must be ongoing, and must run alongside the mechanism for the duration of the lifetime of the mechanism. Representatives of survivors should have decision making positions within the mechanism itself, and should play a role in appointing people to the mechanism. This way survivor groups will have ownership of the process and will be able to exert a degree of control over the process.
We therefore request that the European Union make the return of GSP+ status conditional upon the Government of Sri Lanka committing to:
- Consultation upon Sri Lanka’s transitional justice mechanism continuing for the lifetime of the mechanism, involving placing representatives of survivor groups in decision making roles within the mechanism, and involving survivor groups in the appointment of the mechanism’s officials.