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Submission Made by the ITJP and the ACIJ 1 October 2020 James Wiblin Assistant Secretary, India and Indian Ocean Department of Foreign Affairs and Trade [email protected] Copied: David Holly High Commissioner to Sri Lanka [email protected] Country Information Section [email protected] Subject: Department of Foreign Affairs and Trade’s Country Information Report Sri Lanka, November 2019 Dear Assistant Secretary Mr Wiblin, We wish to raise concerns regarding the accuracy, methodology and validity of the conclusions reached in the latest DFAT Report entitled, Country Information Report Sri Lanka 4 November 2019 (COI Report). We note this COI Report contains serious flaws, deficiencies and inconsistencies that undermine the assessments and conclusions reached, with significant impacts for refugee protection applicants in Australia and around the world claiming protection on the grounds of future risk of harm of torture by the State in Sri Lanka. We regard the impacts as significant because of the requirement that decision makers at the Department of Immigration, the Immigration Assessment Authority and the Administrative Appeals Tribunal, take into account the DFAT’s COI Report and findings in their assessment on applications for protection and that, departure from the findings of DFAT, are rarely made, having a significant effect on the real risk of harm facing people from Sri Lanka seeking asylum in Australia. 1. About the ITJP and the ACIJ The International Truth and Justice Project (ITJP) was established in December 2013 in response to emerging evidence regarding war crimes and crimes against humanity committed in Sri Lanka both during the final phase of the civil war in 2009 and its aftermath. The Executive Director is transitional justice expert, Yasmin Sooka, who was part of the three-member Panel of Experts advising the Secretary General of the UN Ban Ki Moon on accountability for war crimes committed during the final stages of the war in Sri Lanka. The ITJP gathers and records the testimonies of victims and survivors, people who managed to leave Sri Lanka and take refuge or asylum in several countries in Europe and North America (Norway, Canada, the US, Switzerland, Holland, France, Ireland and particularly, the United Kingdom) and in Asia (Malaysia and India). It also collects and preserves evidence of serious international crimes in Sri Lanka. 1 The ITJP team includes experienced former prosecutors and investigators from the international criminal tribunals for the Former Yugoslavia and Rwanda, lawyers who have worked for the South African Truth and Reconciliation Commission, the Timor-Leste Commission, the United Nations, the Special Court of Sierra Leone and the Office of the High Commissioner for Human Rights. They collectively have decades of experience in investigation of sexual violence and torture, and in many instances first-hand knowledge of investigations relating to Sri Lanka. The Australian Centre for International Justice is a not-for-profit specialist legal centre working to develop Australia’s domestic investigations and prosecutions of the international crimes offences in the Commonwealth Criminal Code, and also employs strategies to combat the impunity of the perpetrators of these crimes to seek justice, redress and accountability for the survivors. 2. Existence and Prevalence of Torture Since 2015 In the conclusive assessment on torture in Sri Lanka, DFAT in its COI Report states: DFAT assesses that the risk of torture perpetrated by either military, intelligence or police forces has decreased since the end of the war and is no longer state-sponsored. Because few reports of torture are verified, it is difficult to determine the exact prevalence of torture.1 This conclusion, relying on in country sources, effectively denies the prevalence of ongoing torture in Sri Lanka. It is a staggering assertion by DFAT that torture is no longer state-sponsored in the face of overwhelming evidence from independent and verified sources. In addition, this conclusion is inconsistent with the recent findings, cited in your COI Report, by the US State Department and credible international organisations including the Office of the High Commissioner for Human Rights (OHCHR), UN Special Rapporteurs, the UN Committee on Torture,2 international NGOs including Freedom from Torture, the ITJP, the International Committee of Jurists3 and Human Rights Watch,4 all of whom have concluded that torture perpetrated by State agents and sponsored by the State, has been ongoing and systematic since the end of the civil war. The international bodies cited in the COI Report,5 including the Special Rapporteur to Sri Lanka on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Freedom from Torture, UN OHCHR, Amnesty International and ITJP, all conclude that torture perpetrated by State agents has been ongoing and systemic since the end of the civil war. 3. Methodology In-Country Sources In the introductory section on Purpose and Scope of the COI Report, DFAT sets out the methodology used, including that the report is “informed by DFAT’s on-the-ground knowledge and discussions with 1 Department of Foreign Affairs and Trade, Country Information Report – Sri Lanka (4 November 2019) (“DFAT COI Report”) [4.28]. 2 Nick Cumming-Bruce, ‘Torture Is ‘Common Practice’ in Sri Lanka, UN Panel Finds’ The New York Times (7 December 2016) <https://www.nytimes.com/2016/12/07/world/asia/sri-lanka-torture.html>. Original report, UN Committee Against Torture, Concluding Observations on the Fifth Periodic Report of Sri Lanka, UN Doc CAT/C/LKA/CO/5* (27 January 2017), <https://www.refworld.org/docid/596f5cc24.html>. 3 International Commission of Jurists, Human Rights Day: South Asian States Must EnD Culture of Impunity for Torture, 10 December 2019 (Press Release) <https://www.icj.org/south-asian-states-must-end-culture-of-impunity-for-torture/>. 4 Human Rights Watch, LockeD Up Without EviDence (29 January 2018) <https://www.hrw.org/report/2018/01/29/locked- without-evidence/abuses-under-sri-lankas-prevention-terrorism-act>. 5 DFAT COI Report [4.21] – [4.22]. 2 a range of sources in Sri Lanka.”6 There is no further information on how DFAT has corroborated or sought to ensure the accuracy of the information, and what further analysis and research it undertook to make a final assessment. Specifically, the COI Report, commenting on documented cases of torture reported by ITJP, concludes that: [S]everal local sources in Sri Lanka, including from the north, were not aware of the specific alleged incidents of torture documented above [in an ITJP Report] and were unable to verify their claim… . DFAT is unable to verify allegations of torture since 2016. Local sources told DFAT they were not aware of recent cases of former LTTE members being subject to torture.7 In these circumstances this assessment by DFAT of ITJP’s work, absent any real detail regarding the basis for its conclusions beyond the citing of a few unnamed local sources, is problematic. The question was also surprising in that respondents were not invited to comment on what the United Nations said about ongoing torture but rather an NGO. DFAT acknowledges that their sources are confidential but without any further detail about these sources, it is difficult to reconcile the credibility of the sources and methodology used to verify claims and conclude assessments. In this letter, we raise concerns with representations made by actors in Sri Lanka, whether they are representatives of the government, quasi-government bodies and institutions and other local sources who would not be aware of reports of claims of torture for credible reasons identified below. In this context it is worth noting the UN High Commissioner for Human Rights has publicly complained of misrepresentation by a representative of the Northern Province of Sri Lanka.8 Furthermore the interviews or ‘discussions’ by DFAT were conducted in the run up to the November elections during a period of fear, with a Rajapaksa victory an almost certainty. Journalists and NGOs in Sri Lanka were already beginning to face intense intelligence surveillance at this time, making reporting on torture cases even more difficult than usual.9 That has intensified considerably since the parliamentary elections secured a “super majority” for Gotabaya Rajapaksa. It is important to note the inaccuracy of in-country verification procedures when almost all of ITJP’s witnesses tell our investigators that they did not seek medical attention or tell anyone in Sri Lanka save immediate family members – and that too only some of what happened to them – due to threats of death they received from their captors. Therefore, it is unlikely that any local sources however well informed, would be able to provide verification to DFAT in the form of hearsay corroboration unless of course they received the information from the perpetrators, those who brokered their release, or the smuggling networks, which of course raises its own questions. We expand on these crucial points in our evaluation analysis below. Evaluation of Source Reports It is probable that DFAT’s over reliance on the verification of reports of torture by sources inside Sri Lanka has led to this completely inaccurate picture seriously minimising the prevalence of State sponsored torture in Sri Lanka. It is well established that organisations inside Sri Lanka have largely been unable to document and investigate complaints of torture and sexual violence in part due to the culture of fear that prevails in the country and also the lack of trust by victims and their families in Sri 6 DFAT COI Report [1.4]. 7 DFAT COI Report [4.23]. 8 OHCHR, Sri Lankan Official Misrepresents Discussion of UN Human Rights Report – Bachelet (27 March 2019) (Press Release) <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24412>. 9 See Inform Human Rights Documentation Centre, Repression of Dissent in Sri Lanka Before anD After the PresiDential Election: 1st July – 31st December 2019 (2019) <https://www.inform.lk/wp-content/uploads/2020/02/RODJuly- dec2019.pdf>.
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