Month: February 2015

UN deferral must be used to make Sri Lanka war crimes report stronger

Article first published at http://www.ucanews.com/news/un-deferral-must-be-used-to-make-sri-lanka-war-crimes-report-stronger/73047 on 23rd February 2015

This month, the UN Human Rights Council announced it would defer publication of a major report that investigates allegations of serious human rights violations and related crimes during the last years of Sri Lanka’s civil war. The UN High Commissioner for Human Rights, whose office had been entrusted with the task, had asked the council to delay the report’s release, originally scheduled for March, until September, based on a request by Sri Lanka’s new government. According to High Commissioner Zeid Ra’ad Al Hussein, one of the reasons justifying a deferral was “clear commitments” from the government to cooperate with his office “on a range of important human rights issues”. These commitments were detailed in a letter Sri Lanka’s new foreign minister, Mangala Samaraweera, sent to the high commissioner. But the foreign minister’s letter avoids saying anything directly related to the UN investigation, and thus, it appears that the new Sri Lankan government could follow the previous regime in relation to the UN investigation. First of all, the letter doesn’t state that Sri Lankans are free to cooperate with the UN investigation and gave no assurances that there will be no reprisals for any individuals or groups who do so. Secondly, the letter says nothing about inviting the UN investigation team to Sri Lanka and creating an enabling environment for such a visit. Thirdly, there is nothing contained in the letter about the Sri Lankan government sharing information and cooperating with the investigation. In this context, it will be challenging to realize “the possibility that important new information may emerge which will strengthen the report”, which was the second reason the high commissioner gave for justifying his request to defer the report’s release. The new government likely believes that cooperating with the UN investigation would be suicidal for the parliamentary elections expected to be held in June or July. Another reason for reluctance may be the fact that very senior figures in the present government could also be implicated in serious abuses in the final UN report. The newly elected president, Maithripala Sirisena, has claimed to be the acting defense minister during the final weeks of the war, and the army commander during the last years of the war is now a key political ally of the new government. The new president has declared that he will not cooperate with UN processes for wartime accountability and some of his key ministers have reiterated this. Hence, it doesn’t surprise me that many Sri Lankans whose families have been killed, disappeared and tortured feel accountability will be shelved forever if the UN process is constantly delayed, and a purely domestic process is set up. Another reason for the lack of confidence in a domestic process is “the history of failed or obstructed domestic human rights inquiries in Sri Lanka”, as the UN High Commissioner himself has noted. Granted, the current environment in Sri Lanka feels less repressive than it was under Mahinda Rajapaksa’s regime. There have been several positive actions such as the passing of the Victim and Witness Protection and Assistance Act, consultations on the Right to Information Act and the appointment of civilian governors in the North and East. But at the same time, a gazette notification has been issued calling on armed forces to maintain law and order throughout the country, as well as extending a controversial law allowing police to arrest and detain people for up to 48 hours without a warrant in cases where serious crimes are suspected. Last week, when I was in Batticaloa with a religious group, a colleague who organized a visit for us was questioned by intelligence agencies and another activist from Batticaloa, who went to visit some ex-detainees, got a call from the army asking about the visit. In Mannar, a Tamil ex-detainee was intimidated through phone calls. Two activists from Jaffna, still in hiding after receiving death threats during the Rajapaksa regime, continue to be hounded. These are just some examples indicating that one should not be so naive as to think that the situation has improved everywhere. In this context, building confidence in domestic processes will take time and effort. Although international involvement in a domestic process has been hinted at, there are no indications how this will be different from previous international involvement, such as the International Independent Group of Eminent Persons and present International Advisors to the Presidential Commission looking into Missing Persons. Both are failures, underscoring why it’s crucial to seek international involvement beyond monitoring and advising. In voting for change in Sri Lanka’s January elections, large numbers of Sinhalese voters rejected the anti-UN and anti-West propaganda of the extremist Sinhalese nationalist and Buddhist fundamentalist groups. Large numbers of Tamils also voted for the new president, despite Sirisena’s categorical rejection of international accountability processes. Rather than being emboldened by this and engaging the Sinhalese and Tamil population in an objective manner, the government appears to be using the rhetoric of defeated extremist Sinhalese-Buddhist groups, and sadly, the Sinhala-Buddhist population as a whole, as an excuse not to cooperate with the UN investigation and engage with it constructively. The UN investigation covers allegations of violations and abuses by both parties — meaning the government and the Liberation Tigers of Tamil Eelam (LTTE) — as has been the case with the previous UN report by the Secretary-General’s Panel of Experts, related to accountability in Sri Lanka. Also, UN processes in relation to accountability in Sri Lanka have so far been fact-finding and investigative. It’s unlikely that there will be an international tribunal for Sri Lanka or that Sri Lanka will be taken up at the International Criminal Court. The present investigation team’s mandate is not to prosecute, but simply “to establish the facts and circumstances of alleged violations, and of the crimes perpetrated, with a view to avoiding impunity and ensuring accountability”. So a key challenge for all those genuinely interested in accountability in Sri Lanka should address is how the findings of this investigative report can inform any future accountability process — domestic or international — and any truth and reconciliation initiatives. These UN reports could contribute substantially to achieving what Pope Francis said was key to reconciliation in Sri Lanka — ensuring that the tragedies of the war are not forgotten. International involvement alone will never bring reconciliation and democracy to Sri Lanka in the long term. But ruling out any international involvement, particularly in today’s transitional stage, is not wise. Accountability is the responsibility of both Sri Lankans and the international community. We should not let either wash their hands of this. The UN investigation has become an immensely controversial political issue in Sri Lanka and beyond. This has sadly overshadowed the fact that for many Sri Lankans, especially Tamils, this is a deeply personal and emotional issue — searching for truth and acknowledgment about what happened to their mothers, fathers, sons, daughters, husbands, wives, brothers, sisters, and even extended families and the entire community. In a recent discussion in Colombo with hundreds of people representing ethnic and religious groups from different parts of the country, a mother stood up and held up the photo of her young son. “I can’t wait 100 days to know where my son is or what happened to him,” she said. “I have already waited for many years.” Many Sri Lankans like her, from within Sri Lanka and overseas, have taken great effort and risk to give testimony to the UN investigation team as well as previous UN efforts like the Panel of Experts. It would be a mistake to ignore their aspirations and contributions, and look at the report purely as one based on the interests of other states, NGOs, the Tamil diaspora, the media or other groups. The investigative report may polarize Sri Lankan society and inflame Tamil and Sinhala nationalists. But the long-term answer to this is not to run away from this reality or postpone it, but to engage objectively with local populations, particularly rural Sinhala-Buddhist communities. Not doing so could push some Tamils toward more extreme measures and demands. As a Sinhalese, I have been involved in discussing the Panel of Experts report and successive Geneva resolutions, with Sinhala-Buddhist communities in rural areas. These have been challenging, yet enlightening, despite the threats it posed at the time. Last year, in the midst of the UN Human Rights Council sessions, I was detained by the Terrorist Investigation Department (TID) and much of the intense interrogation I was subjected to during those days was in relation to my visits to Geneva and my involvement with the UN processes. But it also gave me an opportunity to explain the nature of UN processes and why some victims and their families, including Sinhalese and Muslims, take their grievances to the UN, and one TID officer even said “there is a point in what you say”. These conversations came during the height of the repressive Rajapaksa regime. Surely there is more space to have such conversations now? The high commissioner appeared to have given serious consideration to the aspirations of victims and their families before his decision to seek a deferral. “I am acutely aware that many victims of human rights violations in Sri Lanka, including those who have bravely come forward to provide information to the inquiry team, might see this is as the first step towards shelving, or diluting, a report they have long feared they would never see,” he said in his statement announcing the report’s deferral. The high commissioner emphasized that the deferral is “for one time only” and gave his “personal, absolute and unshakable commitment that the report will be published by September”. Now that the report has been deferred, victims and their families will have to wait. But during this time, they can try to find ways to further strengthen the report. The high commissioner and member states of the UN’s Human Rights Council, who agreed to the deferral, have an obligation to strengthen the report. This can be partially achieved by ensuring that the human and financial resources needed for the investigation team to continue its work are provided. They should also seek assurances from the Sri Lankan government that it will cooperate with the investigation, that it will facilitate a visit by the investigation team in an enabling environment and offer public guarantees of zero reprisals for Sri Lankans who want to cooperate with the investigation. The UN should make it clear whether they are still open to receiving submissions for the investigation. The Sri Lankan government must also tell us its position on the UN investigation. Politicians, journalists and civil society activists should take advantage of the less repressive environment to engage with the report objectively, including local populations who may oppose it. The debate about whether follow-up steps to the UN investigation should be purely domestic, purely international or both, must be discussed internationally. But this is a debate that should happen primarily in Sri Lanka.

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Pattani Razeek: No justice 5 years after abduction and killing

Article first published at http://groundviews.org/2015/02/11/pattani-razeek-no-justice-5-years-after-abduction-and-killing/ on 11th February 2015

On 11th February 2015, it will be five years since the abduction of Pattani Razeek, a well-known human rights defender in Sri Lanka. His body was exhumed on 28th July 2011. At the time of his abduction, he was the Managing Trustee of the Community Trust Fund (CTF) (www.ctfsrilanka.org) and an Executive Committee Member of the Asian Forum for Human Rights and Development (FORUM-ASIA) (www.forum-asia.org).

The case has still not been resolved. A key suspect arrested has been released and later made a witness, at least one more person likely to be involved has not been named a suspect nor been arrested and it’s not known whether a third person identified as a suspect has been arrested or not. Compelling evidence appears not to have been examined, Police appear to me mismanaging the investigation and in leading evidence in Courts. The Post Mortem report seems to indicate that the delay in exhumation of the body has made it impossible to determine the exact cause of death.

Court cases:

Initially there were several court cases filed at Puttalam and Polonnaruwa Courts relating to the disappearance of Mr. Razeek. Some have been concluded and others have been amalgamated into one case now – case number 92264 at the Pollonnaruwa Magistrate Courts. Next date for hearing of the case is 25th February 2015.

Police case BR 177/10/P before the Puttalam Magistrate Courts, Police case A.R 142/2010 before the Pollonnaruwa Magistrate Courts and Police case 651/2011 before the Polonnaruwa Magistrate Courts have been combined to above case (922264). Land case before the District Court, Puttalam (No. 57913) regarding a land dispute between Mr. Razeek’s brother and Mr. M. Nihmath’s (who Mr. Razeek’s family, friends and colleagues suspect to be involved in the abduction and killing) relatives who lived near Mr. Razeek’s residence in Mundalama has been concluded.

DNA & Post Mortem reports and Death Certificate:

In August 2011, following a court order, four teeth, muscle samples, a femur bone acquired from Mr. Razeek’s body, and a blood sample from Mr. Razeek’s son Rikshan were sent to the Gene Tech Computer lab for a DNA analysis by Colombo Crime Division (CCD). When DNA Report submission was late, Riskhan called Genetech regarding the DNA report on 2nd February 2012 and he was informed that the DNA report will be submitted to court in two weeks. However, 9 months after the court order, on 29th May 2012, it was informed to the court that the DNA testing was unsuccessful. The reasons mentioned were that DNA contained in the bone, muscle and teeth may have been subjected to degradation due to prolonged exposure to environmental conditions such as high humidity or high temperature and also the amount of biological material may have been insufficient.

The Post Mortem report has been released on 12th June 2012 after the Post Mortem conducted in July 2011 and it appears to conclude that exact cause of death is unascertainable due to the body being in an advanced state of putrefaction. However, it was mentioned that gagging, smothering, ligature strangulation, manual strangulation cannot be excluded as cause of death.

The Death certificate, issued only on 28th October, also says the cause of death cannot be determined.

Releasing the 1st suspect and making him a witness:

The first suspect, Sahabdeen Nowshaadh was released after being arrested, and was named as a witness by the Attorney General’s Department. Through a letter dated 4th April 2012, the Department had advised Senior Superintendent of Police (SSP) in Polonnaruwa to inform the Magistrate Court that they no longer expect to take legal action against the first suspect and that he could be released. Through another letter dated 24th of April 2012, the Department had informed the Colombo Crime Division (CCD) that they have decided to release Sahabdeen Nowshaadh, and to name him as a witness of the case.

There are doubts whether the conversion of Nowshaadh from a suspect to witness is due to his links with Minister Baududeen. In the Anticipatory Bail (Revision Petition, case no. HCR 08/10) concluded in the Puttalam High Court, Nowshaadh has admitted that he is a close associate of Minister Rishad Badudeen and he had met Mr. Razeek on 11th February 2010 and to being in the same area (Pollonnaruwa) at the time Mr. Razeek disappeared.

Nowshaad was arrested under the Prevention of Terrorism Act (PTA) on 9th July 2011 and released on bail on 4th November 2011. As per the report submitted to Polonnaruwa Magistrate by Officer in Charge of the Colombo Crime Division (CCD), on 10th February 2012 (Court case B/651/2011), charges against Nowshaad were requesting a 20 million Rupees of ransom, appearing as LTTE, disappearance of Pattani Razeek, collecting funds for LTTE, purchasing weapons with that money, and conspiring to fight against government forces. Charges concerning Nowshaad’s connection with LTTE, fundraising for LTTE, and conspiring to fight against government forces seem to be fabricated charges because during this time, similar kind of claims were made against those arrested under PTA. These fabricated charges might have underestimated his connection with Mr. Razeek’s disappearance.

In the court hearings, Mr. Nowshaad’s lawyer has admitted that the phone which was used to make ransom calls belonged to Nowshaad. Also Nowshaad’s lawyer argued that no phone call was made from a SIM belonging to Nowshaad. But in the police investigation, it was revealed that the SIM cards used for the ransom were Mr. Razeek’s and the ransom calls were made using a phone belonging to Nowshaad (Police case before Puttalam Magistrate BR/177/10 P – report submitted by the Officer in Charge of the Puttalam Police). Mr. Razeek’s son also alleges that investigations have revealed that several phone calls received by Mr. Razeek prior to the abduction were from 4 numbers, the sim cards of which had been purchased in the name of one of the Trustees of CTF, Mr. Rafeek. Nowshaad was the President of the Citizens Committee, an initiative of CTF.

Mr. Razeek’s son has also expressed his disappointment regarding the release of Nowshaadh, the first suspect, despite of many evidences available against him, including the fact that Nowshaadh has admitted in his anticipatory bail application that he has met Mr. Razeek on the day of abduction and to being in the same area (Pollonnaruwa) at the time that Mr. Razeek disappeared.

Other suspects:

Only one person is named as an accused at the moment and his name is Mushdeen who confessed about the abduction of Mr. Razeek. He too has also been released on bail on 2nd March 2012. It was based on his confession, that the body of Mr. Razeek was unearthed. But his motive of murdering Mr. Razeek seems not clear. Therefore Mr. Razeek’s relatives suspect that Mushdeen was not acting alone in this case and was supported by people who know Mr. Razeek personally. This point can be supported through the demands of the abductors. According to a statement given to the Police by the son of Mr. Razeek, the demands of the abductors were following; Rs.20 million be paid as pocket money to the abductors, the family should provide details of CTF assets and that the trustees should transfer any properties held in their name to the ‘Nujoom Trust’ a trust set up by Mr. Nihamath a former trustee. These demands indicate that the abductor(s) knew Mr. Razeek’s activities more than Mushdeen who seem to be unaware of relationship between Mr. Razeek and CTF.

It is surprising that the first suspect, Nowshaadh has been named as a witness of the case, and Nihmath has never been named as a suspect. Thus, Mushdeen appears to have become the main suspect of the case. It is difficult to understand that Mushdeen, who was a total stranger to Mr. Razeek, had committed the murder of Mr. Razeek without an influence from Mr. Razeek’s enemies at workplace and wanted to gather information on CTF, and to transfer CTF funds to another organization. It is more likely, according to relatives of Mr. Razeek, that Mushdeen was hired by either Nowshaadh or Nihmath who were connected to CTF and who had several disputes with Mr. Razeek. One of the demands of the abductors was to provide details of CTF assets and that the trustees transfer any properties held in their name to the ‘Nujoom Trust’ a trust set up by Mr. Nihamath (the former Trustee General of CTF) in 2009. However no investigations appear to have been conducted regarding Mr. Nihmath’s connection with the disappearance except two verbal statements taken from him by Mundalama Police and CCD.

Also Police appear not to have reported to Magistrate regarding abductors’ demand to transfer the CTF funds to the ‘Nujoom Trust’ a trust set up by Mr. Nihmath, even though Razeek’s family members have mentioned this in their verbal statements given to the Police.

Police had also identified another suspect, Mohamed Shammi, the driver of the van which has been suspected as having been used for the disappearance of Mr. Razeek. It is not clear whether sufficient effort was taken to conduct proper investigations on his connection with Mr. Razeek’s disappearance. Although the Police had requested a court order to be issued to arrest him on arrival from overseas, follow up action on this is not known.

To the best of our knowledge, the Police also don’t appear to have questioned or produced before courts, the following who appear to have information related to abduction and killing of Mr. Razeek.

– Mr. Irshard, the then Parliamentary Secretary to Minister Rishard Bathiudeen, who stated publicly, in October 2010, that Mr. Razeek was held by the Defense Ministry;
– Persons traveling in the vehicle with suspect Mushdeen, in which Mr. Razeek was abducted;
– Persons traveling with suspect Nowshaadh, who admitted to meeting Mr. Razeek in Polonnaruwa on the day he disappeared. According to Nowshaadh, he and several others were traveling in a vehicle belonging to the Resettlement Ministry, then headed by Minister Bathiudeen at the time;

Weaknesses in Police investigations and pursuance of the case:

In some occasions, the case appears to have been delayed due to weaknesses of the Police. For example, the Judge has mentioned that the evidences have not been presented properly and had not been filed according to code of criminal procedures (Case no. B/651/2011on 6th August 2012). As a result, the statements from Mr. Razeek’s son, Mr. Razeek’s wife, and employees of CTF were recorded by CCD following instructions of the judge which resulted in prolonging the trial.

When will Justice be done?

More than 3 years ago, in November 2011, the final report of the Presidential Commission of Inquiry, the Lessons Learnt and Reconciliation Commission (LLRC), dedicated several paragraphs to comment on the case of Pattani Razeek. It’s comments on page 162 are worth repeating;

(Paragraph) 5.31 “Among the many disturbing allegations concerning missing persons submitted to the Commission by the general public, especially during its visits to conflict-affected areas, the case of Mr. Razik Pattani in Puttlam, is referred to here on account of the Commission’s own disappointing experience concerning that case. It highlights the deplorable absence of conclusive law enforcement action, despite the Commission itself bringing this case to the attention of the concerned authorities of the area. Mr. Razik’s body was reportedly discovered while the Commission was writing its report. Timely action could probably have saved this life.”

(Paragraph) 5. 32 “Mr. Razik who had been an official of an NGO providing assistance to the IDPs in Puttalam was abducted allegedly due to the fact that he had questioned the manner in which some of the expenditures have been incurred by the NGO as well as the purchase of some properties under the names of some of its directors. When inquires were made from the relevant Deputy Inspector-General of Police in the area as to why there was a delay in arresting the alleged abductor following a court order, he has reportedly said that the Police was not aware of the suspect’s whereabouts and if the people know where he was, let the police know so that they could arrest him. It was alleged in this regard that the suspect evaded arrest due to his ‘political connections’. If this is established, it must be mentioned that such an attitude would completely erode the public confidence, in particular in the Police, and make the maintenance of law and order much more difficult. The Commission is equally concerned that undue political interference has also contributed to the lapses on the part of the Police.”

Sadly, it seems that absolutely no attention has been paid to LLRC’s comments on the case, and we are not closer to justice more than three years after the LLRC’s report.

It remains to be seen whether there will be justice for Pattani Razeek and his family under the new government, which has promised “yahapalanaya” (good governance) and rule of law.

Ruki Fernando & Damith Chandimal
11th February 2015

Note: For more detailed reports on background and developments in the first two years, see
http://groundviews.org/2012/02/11/who-killed-razeek-and-why-unanswered-questions-two-years-after-his-abduction/ andhttp://groundviews.org/2011/08/18/who-killed-razeek-2/