The state of Human Rights in Sri Lanka - 26th March 2008

Since Sri Lanka is to be subject in a few weeks to the Universal Periodic Review of the United Nations Human Rights Council, it has been the subject of a spate of attacks by many organizations with interests in this subject. Though many of them repeat the same points, with more or less exaggeration and unwarranted generalization, it is sadly necessary to respond in detail to as many of them as possible. This paper will address the issues put forward by the Sri Lanka Democracy Forum. Sadly its confrontational approach, beginning in the very first paragraph with a sectarian characterization of the current government that insinuates it is not concerned about all Sri Lankan citizens, suggests that its assertions should be treated with care.

1. Failure by the State to address the grievances of minorities The second paragraph asserts that, following the abrogation of the Ceasefire and the subsequent pulling out of the Sri Lanka Monitoring Mission, there has been a marked increase in the terrorizing of Tamil and Muslim communities. This smacks of wishful thinking, in a context in which repeated terrorist attacks have led to the deaths of dozens of Sinhalese civilians, though in at least one case a Tamil schoolboy was killed along with his Sinhalese mates when they were victims of a suicide bomber at a railway station.

Though the Government has continued with its struggle against terror, civilian casualties have been minimal, as was the case during its campaign to liberate the Eastern Province from terrorists. The reports of the Sri Lankan Monitoring Mission makes it clear that, except in the case of one incident, and another single individual, there were no civilian casualties at all during military operations.

The massive publicity given to that one incident, which occurred after firing based on mortar locating radar, makes it clear that any civilian casualties would be highlighted. The relative paucity of such media campaigns, despite the ongoing struggle in the North, makes clear the caution exercised by the military with regard to all Sri Lankan civilians, whether Muslim or Tamil or Sinhala.

SLDF goes on to criticize the LTTE in its third paragraph but then claims that historically ‘the state has failed to protect the minorities from armed non-state forces such as the LTTE and the Karuna faction’. In such a context SLDF, if it is sincere in its criticism of the LTTE, should be glad that at last Sri Lanka has a government which is willing to take on the LTTE, and ensure that the terrorism SLDF attacks is crushed. At the same time no credit is given for the manner in which the Karuna faction, consisting of many individuals brutalized from childhood by LTTE practices, have now been brought into the political mainstream and are participating in electoral politics, something the LTTE always eschewed. Reclaiming former terrorists is not easy, but the task is now proceeding much more smoothly, with Karuna himself being in Britain whilst leadership has passed to a younger generation which may be more easily brought into a pluralistic process.

In this context it is also preposterous that SLDF does not accept that the government, in expediting immediate political reforms, has made clear that it agrees with SLDF about a political solution to the problem of the minorities. This, as SLDF recommends, has been attempted through significant changes to the current system of extreme centralization of power. SLDF has in parallel pronouncements blindly followed the assertions of parties supportive of the LTTE and its claim to be the sole representatives of the Tamil people, that the APRC proposals are inadequate and an imposition by the President. The fact that 13 of the 14 parties participating in the APRC signed the proposals, and that all Tamil and Muslim parties freely engaging in democratic politics have supported these, evidently means nothing to an organization that claims to be a forum for democracy.

Arguments regarding the positive nature of these proposals are available elsewhere, but meanwhile it is absurd that the SLDF does not realize that these proposals will ensure the ‘substantial devolution of power to the regions’ that it advocates, and that such power will be available to areas in the North and East, that have not had elected representatives exercising any powers in those provinces for several years.

With regard to the SLDF concern about ‘significant power sharing at the centre, which would empower minorities at not just the regional level but also at the national level’, this is a general concern, but it should be noted that, while other minority parties were willing to engage in discussions about a second chamber based on regions, the TNA, the surrogate of the LTTE, declared that such discussions were meaningless except in terms of a final settlement with regard to devolution – which, going on past history, means an interim LTTE authoritarian administration.

2. Political killings etc

Though abuses in this area occur, SLDF notes the difficult circumstances under which the government operates, beginning with ‘the assassination of Foreign Minister Lakshman Kadirgamar by the LTTE’. Shortcomings are not targeted specifically at minorities except in terms of information that must be acted upon in the context of terrorism, as to which precautionary measures are essential if the population at large is not to suffer. The incidents to which SLDF draws attention in Para 9 confirm the determination of the government to operate according to the law in enforcing security. In the first incident, a search operation was conducted with regard to Tamils from other parts of the country who had no reason for being in Colombo. Thousands of Tamils ordinarily resident in Colombo were not affected, nor were hundreds who could explain the rationale for being in the city though they were ordinarily resident elsewhere. However, expelling several of the rest, as done by some of the security personnel involved in the search operations, was wrong and was condemned as such by the Supreme Court, leading to prompt remedial action.

With regard to the incident in December 2007, the term detention is inappropriate for questioning in which most were released on the very day. Again it was those who could not establish the rationale for their presence who were actually detained, and most of these were released within a few days. Though the action might seem harsh, it must be seen in the context of bombs that had exploded and information received about the infiltration of the city by several suicide bombers. The ultimate responsibility of a government must be to all its citizens. Given a Supreme Court that has often found against the government, it may be assumed that generally the government does not violate fundamental rights, and that is will stand corrected when any agent does. The situation is a far cry from the days of impunity that characterized the 1980s, when in the very few instances when the Court ruled against the state the police officers concerned were promptly promoted.

3. Internal Displacement

In this section SLDF reproduces a number of canards that have been falsified by independent monitors such as those of the United Nations. Certainly much displacement occurred during military operations in the East during 2006/2007, but this was because the forces gave good notice which led to virtually no casualties. Unlike in similar situations all over the world, resettlement was prompt after the East had been cleared of the LTTE, and this was certified as such by the UNHCR report - ‘Our staff monitoring the situation on the ground say the majority of people are eager to return home, the returns are voluntary and in line with international protection standards …. UNHCR will continue to monitor the returns and report directly to the government on any problems regarding the voluntariness and any deviation from the civilian characteristics of the move’. (p 32).

Though several persons (though just about half the figure alleged) are still displaced, this is because a few areas still need to be cleared of the landmines laid by the LTTE. Only with regard to the Sampur Security Zone are alternatives required, and this is for just 10,000 persons, as opposed to the original assumptions. Alternatives within the same district have already been found.

SLDF is right to focus on the Muslims ‘”ethnically cleansed” from the Northern Province in 1990 by the LTTE’. The failure of successive governments to address this issue is a disgrace, and also testifies to the enormous influence of the LTTE, which for many years presented itself as the only organization with whom governments had to negotiate, thus forestalling firm action in this regard. The current government is determined to remedy the situation, and though many areas are still risky for return, it is hoped that soon these displaced persons will be restored safely, if they wish it, to their places of origin.

SLDF again propagates the LTTE myth that the closure of the A9 southward from Jaffna is a horrendous act of the government. That had to be closed because the LTTE, disguised as civilians, launched attacks on troop forward lines, in gross violation of the Ceasefire. No government can permit such risks to be repeated. However, despite attacks on shipping by the LTTE (including on a vessel carrying SLMM monitors), and a refusal to provide guarantees to the ICRC so that food ships could proceed safely (as SLDF reports), the government has ensured steady supplies to Jaffna. The last report of the UNHCR on Jaffna Welfare Centres testifies that most items, and all essentials, are not only available but also affordable.

Another canard relates to free movement southward. Earlier the LTTE had tried to suggest that the government was restricting this, but in fact it was the LTTE that had refused earlier to give guarantees to keep the checkpoint open all week. Though as SLDF notes the LTTE has tried to prevent civilians ‘from fleeing areas where there are military attacks, with the aim of using them as human shields’,it is apparent that now the LTTE’s reign of terror is ending, and that the people of areas still under LTTE control are asserting themselves more and more, albeit only gradually.

4. Right to reparations and remedies and lack of prosecutions of violations

SLDF begins by noting the problems in this respect caused by the LTTE, but after half a paragraph about these it has seven and a half that are critical of the government. Certainly prosecutions in Sri Lanka are slow, but this is a problem, if not a fault, derived from the system of justice that it has inherited from the British. Without making odious comparisons, we must realize that slowness in what is often considered a model of justice, and what seems comparative impunity, as in the Abu Ghraib cases, are part and parcel of a system that insists on particular procedures and high standards of proof before conviction.

Sri Lanka also has problems of capacity and technical skill, as have been pointed out by a Scotland Yard review that was commissioned by the government with regard to a particularly worrying case, that of the MP Mr Raviraj. In that case the Yard commended what the police had done with what was available. It should be noted that, in this case, identified suspects, though initially thought to be associated with a political party in government, have fled to territory controlled by the LTTE.

To make up for worries with regard to several well-publicized cases, the government has instituted a Special Commission of Inquiry, with observation by an Independent International Group of Eminent Persons. Though some of the prestige attached to this group has been vitiated by the procedures adopted by their representatives on the ground, who made no secret once of wanting to issue a report in time for the meetings of the Human Rights Council in Geneva, the system adopted showed that the government appreciated the difficulties and the lack of confidence that could result, and was attempting to make up for these. It should be noted that amongst the cases to be considered are the assassination of the former Foreign Minister, Lakshman Kadirgamar, who was bitterly opposed by the LTTE. No one could be more anxious than the government to bring the culprits to book in this instance, but the failure to solve the case has to be endured.

Comments on the cultural insensitivity etc of the police are understandable given that, though applications have always been called from all citizens of the country, for various reasons, including diffidence caused by previous language policies, very few Tamils have joined in the recent past. More recently, there have been fears amongst Tamils, given the terrorist approach that Tamils serving in security forces were specifically to be targets of attack, being denigrated as traitors.

Precisely for this reason, the government has begun a practice that successive governments in the past did not think of, which is recruitment specifically of Tamils. The first batch of these, dedicated to service in the predominantly Tamil speaking Eastern Province, passed out last month, and recruitment of several more is planned. Concerted efforts in language teaching have also commenced, at all levels of all the security forces.

5. National Institutions

The assertion of SLDF that authoritarianism is on the rise suggests complete ignorance of the current situation as well as of the sufferings of the past. First and foremost, the country has independent courts which have not hesitated to give verdicts against the government, in particular with regard to human rights applications.

With regard to the national Human Rights Council, efforts of the opposition to make a political issue of the Constitutional Council, the full membership of which had not been recommended as required by the Speaker until very recently, have led to international assistance not being forthcoming to strengthen it as requested, despite a UNDP Stocktaking Report affirming the need for this.

The failure of Civil Society members to attend meetings of the advisory committee set up by the Ministry of Disaster Management and Human Rights confirms what government has begun to worry about, that concerns are expressed more to obtain publicity than with a genuine will to correct things. Clearly the government will have to proceed with reforms on its own, but this it has now planned to do, with a revitalization of advisory institutions, in particular regional ones, through strengthened civil military liaison in key areas.

The categorical assertions regarding engagement with international actors also seem self-contradictory. The continuing stress on Sir John Holmes’ comments on the country being a dangerous place for aid workers ignores his acknowledgment that that comment was an isolated remark, and also that it was based on a single incident which needs further inquiry. He has failed to respond still to the point that the agency concerned had not acted according to UN principles in unnecessarily exposing local employees to a dangerous situation without the safeguards expected, at a time when all other agencies were evacuating staff.

Criticism of the government in this respect is based on the response of a single Minister which the government made clear did not represent the government position. However, until very recently, when employees of the UN make untoward remarks that do not represent the UN position, no apologies or corrections have been offered. This situation has now changed, with a new set of senior UN officials in place, which will help to avoid the impression of association with oppositional forces that previously characterized some individuals.

6. Child soldiers

The issue of child soldiers is vital, but SLDF has also fallen into the trap, first perpetrated by the LTTE, of equating the LTTE abuse of children with that of the Karuna faction. It is clear from detailed reports that this was systemic in the LTTE. Naturally the Karuna faction, which broke away from the LTTE, still has individuals who see nothing wrong with the practice, particularly in the context of the LTTE having begun to rerecruit all those disbanded by the faction soon after it split from the LTTE in 2004.

However, with a change of leadership in the Karuna faction, which has shown itself anxious to enter the democratic process, it is hoped that old habits will die and the Eastern Province at least will be cleaned of this scourge. The main problem however requires more concerted action, and the tolerance displayed by the international community, not only to defiant violation of norms but continuing forced conscription, must stop forthwith, without hiding behind a cloak of balance.

7. Freedom of Expression

The idea that freedom of expression is threatened in Sri Lanka is ridiculous, when international agencies actually provide funding to an online paper that talks about Sri Lanka as ‘a country at war and democracy that’s hostage to the whim and fancy of a President and his coterie of murderous brutes’. The amount of criticism of the state and its organs that is contained in print and electronic media would astonish anyone who had to live through the massive censorship and controls of the eighties.

There is however danger for Tamil language journalists, in particular in Jaffna, which is a legacy of the internecine warfare between the LTTE and former militants, whom it ruthlessly eliminated at the beginning of the Ceasefire period. The government is committed to stopping this phenomenon, but this has not been easy in the context of continuing action by the LTTE.

Conclusion

Certainly there are problems in Sri Lanka and the government welcomes assistance to overcome these, through training of relevant personnel, through the development of local institutions and in particular regional branches of these, through assistance with better maintenance of records.

But most useful of all would be assistance to destroy the scourge of terrorism and of forced conscription. That would allow for relaxation of restrictions that have proved essential in the face of enormous and ruthless terrorist power. Certainly no government facing such power has as good a record as the Sri Lankan government and its armed forces, and the failure to appreciate the great regard shown for civilians, as compared with what occurs in conflicts elsewhere, it most regrettable.

Prof Rajiva Wijesinha

Secretary General

Secretariat for Coordinating the Peace Process