The Innocence of Patrick Leahy - 7th November 2007

'''United States Senator Patrick Leahy recently delivered a statement on Sri Lanka which has been described as damning. The use made of the international community by local elements which, as an American put it, have an ‘unhealthy nostalgia for the Wickremesinghe regime’, is not surprising. However Senator Leahy must be taken seriously since he seems to have been behind an amendment in the Senate that ‘attached three conditions to our assistance to the Sri Lankan military’.'''

Before addressing these conditions, it may be as well to deal first with the misconception under which Senator Leahy is suffering, which suggests that, in making several admirable general points, he may not quite understand their applicability or otherwise to Sri Lanka. Though he made clear his appreciation of why the LTTE ‘has been designated by the Department of State and the European Union as a foreign terrorist organization’, he says that ‘we are also aware that the LTTE has, at times, shown a willingness to participate in serious negotiations, as well as to respond to human rights concerns. These overtures should be pursued.’

LTTE refusal to negotiate.

Sadly, Senator Leahy, like most foreign observers of the Sri Lankan scene, has no sense of time. This is accompanied by an imprecise use of English, doubtless promoted by those who have said loud and often that the Sri Lankan government is responsible for the breakdown of peace talks. Senator Leahy is more circumspect than most, in qualifying with the words ‘at times’, his perception of the past willingness of the LTTE, regarding which the use of the perfect tense seems inappropriate. But then he moves to a present tense modal verb, which makes no sense given factual realities.

In short, there are no overtures to be pursued, unless he is talking about the overtures of the Sri Lankan government, which the LTTE has steadfastly rejected. Mr. Leahy is doubtless not aware that, having participated in peace talks with the then Sri Lankan government for about a year from 2002 to 2003, the LTTE withdrew suddenly after the 6th round in April 2003. The government in office then seemed to be bending over backwards in the eyes of most Sri Lankans to keep the LTTE happy, but nevertheless they withdrew. They then repudiated all attempts even by President Kumaratunga, who took over the reins of government from April 2004 to nearly the end of 2005, to resume peace talks.

In 2006 they came for talks in February with the recently elected government of President Rajapakse but then, having traveled to Norway, they refused in June, to the evident embarrassment of the Norwegian facilitators, to even begin talking. In October 2006 they negotiated on the first day and then, as a British representative in Sri Lanka put it, there was a sudden call from Kilinochchi and they withdrew. Despite the Sri Lankan government being anxious to resume talks, and indeed saying as much through the facilitator and otherwise, the Norwegian ambassador on his last visit made it clear that the LTTE was unwilling to talk.

The movement to war of the LTTE Peace Secretariat and Political Wing.

Indeed, to look at small things too, in June 2007 the Sri Lankan Peace Secretariat tried to reactivate its hotline to the LTTE Peace Secretariat in Kilinochchi. My staff spoke in Tamil to the lady who answered and asked that contact be re-established, but it seemed my counterpart was not available. A request that he call back was ignored.

I had also mentioned our desire to talk to the Norwegian ambassador and the Sri Lanka Monitoring Mission, and the minutes of our meeting of 12th July record that the SLMM Head of Mission (HoM) ‘welcomed SG’s initiative of trying to reestablish communication between the two peace secretariats. He offered himself to facilitate a line of communication between the two Peace Secretariats’. However, on 30th August, the minutes record that ‘Mr. Pulideevan had rejected SG’s suggestion to contact him. HoM said that Mr. Pulideevan was of the view that the environment at the moment is not conducive for the parties to communicate as the LTTE were in a warlock situation with GOSL’.

Mr. Leahy thus needs to be aware that the LTTE, though ‘at times’ willing to negotiate, has been in that mode only for very brief periods during the last five years. It withdrew from negotiations with two governments and refused ever to negotiate with the third even though requesting and obtaining financial and other concessions from it. Furthermore, it must be recognized that, despite the propaganda that seems to have taken in the LTTE as well as Mr. Leahy, its political leader Mr. Tamilselvan, was withdrawn from talks last year after the phone call from Kilinochchi, and ‘had of late preferred military clothes’ as was clearly stated in a newspaper usually very critical of the government.

Certainly, at the time of the last visit to LTTE territory by the Norwegian ambassador, it made clear its determination to attack economic as well as military targets. And as though to make it clear that it had foreclosed the peace option, when Black Tigers attacked the Anuradhapura Air Base, the LTTE Peace Secretariat celebrated this suicide squad by highlighting pictures of them together with Tiger Leader Prabhakaran before being sent to their deaths.

Confusing Problems with Governmental Complicity.

It is in this context that the rest of Senator Leahy’s statement must be read. He is certainly right in stating that there are human rights problems, but he cannot leap from that to the assertion that ‘the Sri Lankan government’s respect for human rights and rule of law has deteriorated even outside conflict-affected areas’. Such an assertion would be on par with allegations against the American or British governments because there are significant abuses of human rights by official personnel, and not only with regard to the war on terror.

I suspect Senator Leahy is very different from the representative of the International Commission of Jurists who addressed the Human Rights Council in Geneva, and declared that there were four countries where grave violations of Human Rights took place, namely Myanmar (I think), Sudan, Sri Lanka and the United States, but I think he would appreciate the fact that highlighting the occurrence of violations and holding governments responsible are two very different things. Conflating the two puts him in the category of the ICJ that, having assumed wrongly that there was an irreconcilable difference between two experts as to the caliber of a bullet, assumed that the foreigner must be right, the Sri Lankan must be wrong, and this was evidence of tampering with the object by the Sri Lankan government.

He also claims, citing the Millennium Challenge Corporation, that ‘The serious human rights abuses and excessive restrictions on freedom of speech and association by the government of Sri Lanka merit the country’s removal from a list of eligible recipients for US Millennium Challenge Account assistance’.

He obviously has not read the plethora of Sri Lankan newspapers that attack the government (and its human rights record) at every conceivable opportunity, or monitored the electronic media that denigrates the government and its armed forces whenever possible. Had he only been around in the days when the media was entirely state controlled, he would not have cited such generalizations which are so demonstrably false – in comparison with the much more forceful if subtle restrictions on reporting imposed by other states engaged in wars against terror.

Untenable assumptions about impunity

Finally he repeats the three conditions regarding military assistance, two of which seem unquestionable. The first is that the Sri Lankan government brings to justice ‘members of the military who have been credibly alleged to have committed gross violations of human rights’. He seems unaware that this is happening, and not only with members of the military. Indeed, as the SLMM have indicated, the record of the military is comparatively good, and there have been very few cases in which there is credible evidence against them. The record of the police is less positive, but a committee has been appointed to make recommendations with regard to Human Rights Training for the Police, and preliminary suggestions have already been submitted.

Meanwhile, with regard to actual bringing to justice, arrests have already been made with regard to the Thandikulam case, which was one of those referred to the Commission of Inquiry, while six members of the armed forces were placed under arrest regarding abductions, following which abductions in Colombo have largely ceased. 90 persons have been indicted since 2004 for torture. Meanwhile the Public Complaints and Investigations Division of the National Police Commission has completed 382 of the 1216 complaints made in the first seven months of this year, with 4% of the total allegations referring to torture, 7% to unlawful arrest and 1% to death in custody.

All this may not be perfect, but where the rule of law obtains, and where there is a presumption of innocence unless proved guilty, justice is necessarily slow. Without referring to delays and what seem to the rest of the world unjustifiable acquittals in the American system with regard to allegations against forces personnel, I should just cite a recent British newspaper report on a problem in Iraq – ‘Harrowing accounts of the treatment of Iraqis by British troops in an incident in which a detainee died will be handed to the high court…They say 10 Iraqis seized in a Basra hotel in September 2003 were tortured…The incident led to a court martial in which the MoD admitted the Iraqis were violently treated. One soldier, Corporal Donald Payne, pleaded guilty to inhumane treatment; six others, including Colonel Jorge Mendonca, commander of the 1st battalion the Queen’s Lancashire Regiment, were acquitted of negligence and abuse…The MoD is conducting an internal investigation into the incident.’ This is 2007, the inquest into Princess Diana’s death in 1997 is being conducted now, but it is not likely that Senator Leahy would suggest sanctions against Britain too.

Constructing non-existent problems.

The second condition relates to ending ‘unreasonable restrictions on access in the country by humanitarian organizations and journalists’. There are no such restrictions since such people are readily allowed access not only to areas under government control but even to LTTE controlled areas provided there are no security problems. The Consultative Committee on Humanitarian Assistance, on which UN bodies are well represented, looks at questions of access and can discuss problems if any, but these have not figured to any appreciable extent in recent meetings.

Finally Senator Leahy wants Sri Lanka to ‘agree to the establishment of a field presence of the Office of the UN High Commissioner for Human Rights in Sri Lanka.’ This perhaps is an area where Senator Leahy has information not accessible to the Sri Lankan government since that Office has not formally made a request for a field presence. Significantly though, anti-government elements ranging from the LTTE to the opposition claimed before the visit of the High Commissioner that such a request (or rather one for a Monitoring Mission) would be made, and then claimed afterwards that it had been made.

It should be added that subsequently at least one paper that had headlined this assertion admitted in an editorial that such a request had not in fact been advanced.

As it stands, the government is engaged in discussions with the Office how Human Rights mechanisms can be strengthened. It may be the case that some elements in the High Commissioner’s Office are anxious to establish a field presence. Indeed one member of her entourage told me this would be a good idea, not least because – not to criticize colleagues in other UN agencies he said – her office could deal more professionally with questions of Human Rights. It is possible that such a request may come in time, but it seems premature of Senator Leahy to ask now for agreement for something that has so far been advanced only by those who have placed themselves in opposition to the Sri Lankan government, some of whom have allied themselves conclusively with the opposition or the LTTE, who talk categorically of ‘the consensus that prevailed in 2000-2004 period’ without seeming to realize that the electorate convincingly chose something else both in 2004 and in 2005.

Such persons may not have great faith in democracy, but as Forster put it, that is the best system we can have. It needs to be combined with the rule of law and pluralism, and that is why we should look carefully at the concerns Senator Leahy has expressed and deal with them as possible through the development of strong institutional safeguards. But it would be very sad if, because of misinformation and the general proliferation of prejudice against the elected government, the democracy that Sri Lanka and the United States shares is subverted in the ultimate interests of terrorists, who will be the only beneficiaries of concerted weakening of the elected Sri Lankan government.

Rajiva Wijesinha

Secretary General

Secretariat for Coordinating the Peace Process

.