OISL

Activists in an international system: pushing for change in Sri Lanka

Local and international activists have been crucial in getting a UN response in Sri Lanka. A contribution to the openGlobalRights debate,Human rights: mass or elite movement?

Stephen Hopgood argued several years ago that it is activists, not states, who will make a difference in the future, and to a certain extent this has proved to be true in Sri Lanka. Undoubtedly, the primary struggle for human rights has to be waged at home. But there are also times when international support—such as the UN High Commissioner for Human Rights is crucial. For us, 2006-2014 was such a time.

In 2005-2006, I was working at the FORUM-ASIA Secretariat based in Bangkok. As the conflict in Sri Lanka escalated in 2006, I decided to go home and came back to chaos. There were large-scale enforced disappearances, extra-judicial executions, mass displacement, forcible recruitment (including of children), and severe restrictions on traveling and communication. It was also a time where human rights activists, including non-governmental organisation (NGO) workers, humanitarian workers, independent journalists, clergy and opposition politicians with critical views of the government, were killed, disappeared, detained or threatened. Domestic human rights protection mechanisms, such as the Judiciary, National Human Rights Commission and the Ad Hoc Commissions of Inquiries, had become completely ineffective.

It was a very dangerous time to be an activist living and working in Sri Lanka, and it is in this context that international solidarity became a crucial element of our struggle for human rights. The primary focus of our international advocacy was targeting the United Nations (UN), and a secondary strategy of engagement was towards the Commonwealth. The Commonwealth’s failure to intervene severely harmed its credibility, resulting in some heads of states boycotting the 2013 Commonwealth Heads of Government Meeting (CHOGM) in Colombo. And I still believe the level of atrocities we saw in the last phase of the war, particularly in 2009, could have been less if a UN Office of the High Commissioner for Human Rights’ field presence had been established.

In September 2008, when the government ordered all UN agencies to leave the war zone, the people appealed not to be abandoned. But we failed to persuade the UN to stay. In early 2009, as the war reached its peak and civilian casualties escalated dramatically, we as human rights defenders sought a special session with the UN Human Rights Council (UNHRC). We finally got it—but only after the war—and the outcome was a disaster for Sri Lanka and the UN.

The internal UN review that followed recognised that “events in Sri Lanka marked a grave failure of the UN” and that “many senior UN staff did not perceive the prevention of killing of civilians as their responsibility.” But in March 2012 and March 2013, with continued pressure from human rights groups, the tide started to turn. In March 2014, the UNHRC passed another resolution on Sri Lanka, asking the UN High Commissioner for Human Rights (OHCHR) to conduct an investigation into serious violations of human rights and related crimes in Sri Lanka. Though late and limited, this was a victory for survivors, victim’s families and some of us who had long campaigned for this, even when it seemed to be against all odds.


Flickr/Vikalpa (Some rights reserved)

 

In September 2015, the High Commissioner’s office released the report of its investigations. It detailed horrific narratives of unlawful killings, enforced disappearances, forcible recruitment of children, obstructions of movement to safe areas, sexual and gender based violence, torture, and arbitrary detention on a mass scale and in a systematic manner. The High Commissioner recommended the establishment of a Special Hybrid Court with international judges, prosecutors, lawyers and investigators to ensure accountability for the reported violations, along with other international action such as universal jurisdiction and vetting. The “hybrid court” and “international participation” appears to be what has caught the media attention. Going beyond this to address other needs such as truth seeking, reparations, memorialization, constitutional change and introspection is where more local activism is so desperately needed.

The strong involvement of survivors and the families of victims made a huge difference to international advocacy. While the international focus of Sri Lankan human rights defenders was on intergovernmental bodies, such as the UN, the Commonwealth and individual Governments, these would only change course if others—smaller in size but perhaps bigger in passion, determination and commitment—pushed them relentlessly. The strong involvement of survivors and the families of victims made a huge difference to international advocacy. Mothers, fathers, and wives came forward courageously to give testimony to high profile representatives from foreign governments and the UN, in Sri Lanka itself or in Geneva. Amongst those regular visitors and strong advocates was the wife of disappeared Sinhalese journalist, Mrs. Sandya Ekneligoda, and Dr. Manoharan, the father of a teenage Tamil boy killed on the beach in 2006.

Despite the government clampdown on local media, some international media continued to give coverage to stories of survivors of human rights violations and families of victims, in particular their struggles for truth and justice. Though their interest was not consistent and tended to focus on specific events, such coverage was essential since it was an opportunity to share an alternative narrative with the world. Several writers spent significant amounts of time with war-affected persons in the North and wrote books highlighting their stories, while others made films using materials from the last phases of the war and afterwards. They too had to face intimidations, defamation, severe restrictions on travel to the North, and surveillance and obstacles once they got there. Some were arrested, detained and deported. But these stories, through articles, video clips, films, photography and books, went a long way in keeping alive the dwindling world attention on Sri Lanka.

Probably the most controversial group has been the Sri Lankan diaspora. I met with several diaspora groups, some exclusively Tamil and some mixed with Muslim, Sinhalese and Tamil. Some diaspora groups clearly supported and justified the war and tried to cover up violence and abuses by the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Government. But many with whom I engaged appeared to be fuelled by concern and care about what was happening in Sri Lanka, about the survivors and families of victims of human rights violations. Some groups became very influential in lobbying foreign governments and UN officials, and there is no doubt that they contributed to the developments in the UN in relation to Sri Lanka.

For us, the years between 2006-2014 were a time of desperation and emergency, when we local activists, students, artists and many other human rights defenders, needed the international system—but the international system would not have taken action if we hadn’t pushed for it. There is slightly more space now for us to work inside Sri Lanka, but it would be a mistake for our international friends to leave us now, especially after the long journey they have undertaken with us. We can only hope the UN and the Commonwealth step up.

As I give thanks, I look forward to a continuing journey.

*A longer version of this piece first appeared on Forum Asia.

Advertisements

Will UN rights chief’s Sri Lankan visit deliver outcomes?

First published at http://www.ucanews.com/news/will-un-rights-chiefs-sri-lankan-visit-deliver-outcomes/75236 on 17th February 2016

On Feb. 6, the day before a top U.N. official arrived at a camp for internally displaced people in Sri Lanka’s north it was visited by intelligence officers.

U.N. High Commissioner for Human Rights Zeid Ra’ad Al Hussein had planned to visit the camp in Jaffna province and the officers wanted to know who was organizing his visit and what they were going to talk with him about.

The camp is a sensitive issue because those living there have had their land occupied by the military for the past 25 years.

It was all a part of Al Hussein’s visit to Sri Lanka to monitor the progress of a U.N. Human Rights Council resolution that the Sri Lankan government co-sponsored in October.

Part of the resolution included a commitment by the government to return land to those who lost theirs during the country’s decades-long civil war.

Other commitments that Sri Lanka signed up to involve the repeal or reform of terrorism laws and reduction of the military’s presence in the north.

Through the resolution, Sri Lanka’s government also committed to establishing four transitional justice mechanisms covering reparations, missing persons, truth seeking and accountability through judicial mechanisms.

The intimidation of activists in the camp before Al Hussein’s visit is typical in Sri Lanka’s highly militarized north. This sadly remains a reality, despite the fact that the civil war ended nearly seven years ago.

The problems these areas face are many. They are impoverished with little economic prospects. The cemeteries of Tamil militants have been desecrated and traditional Tamil lands are now being cultivated by Sinhalese. Meanwhile Muslims struggle to return and establish themselves in majority Tamil areas a quarter century after they were evicted by the Liberation Tigers of Tamil Eelam.

These are but a few examples that some of my friends from the east discussed with Al Hussein who they met at a civil society meeting in the eastern city of Trincomalee on Feb. 7.

They said that Al Hussein and his team listened sympathetically, but despite the many issues examined, there were a few matters left out of the discussion. Among them were the predicament of survivors of Tamil Tiger massacres in Sinhalese “border villages” and how caste based divisions are resurfacing in the northern Tamil community.

Al Hussein’s visit could have been an occasion to ignite fresh momentum to deal with these issues. It could have been better used to re-energize survivors, families of victims and activists who are becoming frustrated and disillusioned with the direction the country is going in.

 

Overall, it appeared that Al Hussein took a political approach during his visit and gave priority to engaging with powerful politicians and officials.

He did though have time to visit the Temple of Tooth in Kandy (which was bombed by the Tamil Tigers) and Nallur Kovil in Jaffna, two of most sacred places of worship for Buddhists and Hindus respectively.

But the main part of Al Hussein’s visit to Kandy was to meet the influential Buddhist Chief Prelates who were later quoted in local media rejecting his rationale for international involvement in transitional justice.

Al Hussein appears to have failed to convince them about the trust deficit many Tamil survivors and victim’s families have of a process that’s entirely domestic and includes the serious deficiencies of Sri Lanka’s criminal justice system. Nor was he able to sway them about the importance of the government honoring the commitments it has made in Geneva on having international involvement in a judicial process dealing with accountability and justice for wartime abuses.

Several Tamil Catholic priests also met Al Hussein at a civil society meeting in Trincomalee. One of them told me that the U.N. official had been friendly, listened patiently and took notes diligently.

“There was not enough time to raise all issues,” the priest told me and advised me on areas I could stress on when I later had the chance to meet the high commissioner.

Overall, Christians are a minority in Sri Lanka’s North and East while also being a minority among the Tamil community. Despite this, Tamil clergy and the church have led institutions which have played a prominent and influential role in advocating for strong international involvement in pursuing accountability in Sri Lanka.

Going forward the clergy will have to analyze changes in domestic and international politics while understanding the situation at grass roots level. This will allow them to devise creative ways to engage and advocate in a way that is holistic and helps Sri Lanka reconcile with itself.

Significantly however, Al Hussein’s visit doesn’t appear to have generated any significant commitments by the Sri Lankan government, just like his agreement to defer war crimes investigation reports from March to September last year.

This is particularly worrying as the country’s president and prime minister have made public pronouncements to backtrack on key government commitments while resolutions and progress made on other commitments have been minimal. During this visit, the high commissioner could have set high benchmarks and left it to the politicians to deal with them.

Ruki Fernando is a human rights activist and consultant to the Justice, Peace and Integrity of Creation Commission of the Conference of Major Religious Superiors in Sri Lanka. He is also a member of the Asia-Pacific chaplaincy team of the International Movement of Catholic Students.

Disappearances in Sri Lanka and the visit of the UN Working Group on Disappearances

First published at http://groundviews.org/2015/11/11/disappearances-in-sri-lanka-and-the-visit-of-the-un-working-group-on-disappearances/ on 11th November 2015

In the 35 year history of the United Nations Working Group on Enforced or Involuntary Disappearances (“WGEID”), Sri Lanka ranks number two, shamefully, in the numbers of disappearance cases the WGEID has dealt with.[1] The latest figures from the WGEID are as follows: total cases transmitted to the Government for clarification – 12,341; total cases clarified by the Government – 6,551; total cases clarified by other sources – 40; outstanding cases – 5,750.[2]Further, between 2006 (when disappearances escalated drastically) to date, Sri Lanka has had the largest number of disappearance cases, 637 cases, transmitted to any government (Pakistan was second with 169 cases). There is also a clear spike visible between 2006 and 2009: 2006 had 191 cases, 2007 had 164 cases, 2008 had 147 cases, and 2009 had 123 cases.[3]

Disappearances in Sri Lanka have been in the limelight on and off, and its likely to be in the limelight once again, during the visit of the WGEID. The visit, which is already underway, will be the WGEID’s 4th to Sri Lanka, after visits in 1991, 1992, and 1999. It has been 16 years since the WGEID last visited Sri Lanka. Families of the disappeared, Sri Lankan activists, and the WGEID itself has been requesting an invitation for a visit since 2006, but the previous Government had consistently refused permission.

The WGEID

The WGEID, created in 1980, was the first UN human rights thematic mechanism established with a universal mandate.[4] It was created by the Commission on Human Rights, the precursor to the current Human Rights Council,[5] in the aftermath of the large-scale disappearances that occurred in Latin America in the 1970s.[6]

The WGEID’s primary task is to assist families to determine the fate and whereabouts of their missing family members. In pursuance of this task, the WGEID acts as an intermediary; providing a channel of communication between families of disappeared people and governments. The WGEID accepts complaints of enforced disappearances from families and those representing families, assesses the complaints against its criteria of an enforced disappearance, and transmits the cases to the governments concerned.[7]

The numbers and stories 

Beyond the cases transmitted by the WGEID, various Commissions of Inquiries, occasional statements attributed to Police, and estimates by NGOs, there are no clear statistics about the numbers of disappeared persons in Sri Lanka. But it is certainly in the tens of thousands, possibly even up to 100,000.[8] However, I feel that the numbers sometimes takes away the attention from individual tragedies and the human faces that make up the numbers.

It was in 2007 February that Tamil journalist Subramanium Ramachandran was last seen being stopped and taken away from an Army checkpoint near Jaffna. His parents told me they had received calls from his mobile phone in the hours immediately after that, but he was never seen afterwards. Amongst the most inspiring woman I have worked with is Mrs Sandya Ekneligoda. Due to her courageous and determined struggle, and the national and international support she mobilised, some military officers have finally been arrested and questioned this year in relation to the disappearance of her husband, Sinhalese journalist Prageeth Ekneligoda in 2010. A Commission of Inquiry tasked to look into the disappearance of activist Tamil Catholic Priest Father Jim Brown (along with 15 other high profile deaths and killings), who was threatened by the Navy and had last been seen at a Navy checkpoint in Jaffna, stated that they “could not carry out investigations due to non availability of evidence, importantly the inability to find the body of the alleged deceased.”[9] Sixteen habeas corpus cases, which include numerous eyewitnesses of a well-known and elderly Tamil Catholic Priest and prominent LTTE leaders surrendering to the Army at the end of the war, have been dragging on for more than three years in Mullaitivu and Vavuniya courts. A special Committee on Disappearances in the Jaffna region, appointed in 2002 under the Human Rights Commission, found that “248 Tamils had either been killed or disappeared after being taken in by the armed services, and 25 Muslims had either been killed or disappeared after being taken in by LTTE.”[10] A friend from Batticaloa narrated how he, along with thousands of others, watched 158 young Tamils being taken away by the Army from an IDP camp back in 1990, never to be seen or heard of again.[11] Despite my friend submitting names of Army officers who were responsible to several Presidential Commissions of Inquiry, nothing has been done.

The vast majority of those who disappeared after the 1990s have been Tamils. But there have also been Muslims and Sinhalese who have disappeared. The military, police (especially the Special Task Force), and various security apparatus of the state have consistently been identified as being responsible for disappearances. In some cases, family members have identified military or police personnel who took away their loved ones and the camps they were taken away to by name, but to no avail. The LTTE too have been identified as being responsible for disappearances. The breakaway factions of the LTTE in the East (led by Karuna and Iniyabharathi) and key a partner of the previous Government in the North (the EPDP led by Douglas Devananda) have also been identified as being responsible for disappearances in collusion with state forces. The bottom line is that, across the board, whether security personnel or LTTE, there is almost complete impunity for those responsible for disappearances, including under the new Government in last ten months.

Mental and financial impact

Disappearances have caused severe trauma to surviving family members, including parents, spouses, children, and siblings. The elderly mother and father of Father Jim Brown have often told me their yearning to hear news of what happened to their son before their death, but the mother passed away a few years back, without knowing what happened. I am not sure whether the father will hear any news of what happened to his son. While carrying forward the struggle for truth and justice, Sandya Ekneligoda had to also take her younger son for counseling.

Disappearances have also caused severe financial hardships. Families have been compelled to compromise their dignity and seek help from others to survive and carry forward their struggles, due to no fault of their own. Earlier this month, a young Sinhalese mother whose husband disappeared in 2013, called me in desperation to seek help to find money to feed her two young babies. It has been an overwhelming task to find financial support for families of disappeared persons, with very little sympathy from society, the Government, or donors. The lack of financial support has also impeded their struggles for truth and justice.

Threats, intimidation, defamation, restrictions 

Families of disappeared persons, other activist colleagues, and I have faced numerous threats, intimidations, and restrictions from the state in our efforts to challenge disappearances.[12]Balendran Jeyakumary, the mother of a teenager who disappeared after surrendering to the Army was arrested in 2014, and I was arrested for trying to look into circumstances around her arrest and as I was trying to find a place for her remaining teenage daughter to stay. A meeting we had last year in a Church run centre in Colombo with families of disappeared, concerned clergy, lawyers and diplomats was broken into by an angry and threatening group. When we called the Police, they refused to evict the intruders and provide protection for us. The intruders have not been held responsible despite their identities been known and Police themselves being eye witnesses.

Inspiration from a grandmother in Argentina

Since 2007, I have spent a considerable amount of time with families of the disappeared. Accompanying some to hospitals, camps, and police stations in their searches. Talking to them in their homes and in my offices. Joining them in protests in the streets, in Colombo and even Geneva. Going to meet officials and politicians. Going with them to courts, the Human Rights Commission, and various other Commissions of Inquiries. Speaking at events in Colombo, Jaffna, Geneva, and elsewhere about their stories. Writing articles. After all of this, now I also wonder what I have achieved?

But inspiration to continue comes from families of the disappeared. From people like Sandya Ekneligoda and many other mothers and wives. Sinhalese, Tamil and Muslim. Even from outside Sri Lanka. Twice this year, I met Estela de Carlotto, an 84 year old grandmother from Argentina. She founded the Grandmothers of the Plaza de Mayo, to look for their missing grandchildren who were stolen at birth and adopted out; born to people who were made to disappear during the Argentine Dirty War. Estela has had a profound impact on shaping public opinion about disappearances, in Argentina, including the Government, and the world. She found her grandson last year, after 36 years of searching after her daughter had been arrested and subsequently killed after giving birth. She is firm in her commitment to continue the search for other missing grandchildren, until all are found or she is dead. Her words “crying at home and fighting in the streets” is probably what many families of the disappeared go through in Sri Lanka. It is also very true for me.

In Sri Lanka, the biggest challenge, as an activist, has been to get the sympathy and support of ordinary Sri Lankan citizens to the struggles of families of the disappeared. However, given the range of human rights and social justice issues in Sri Lanka, particularly after the war, it has not been easy even for those who advocate against disappearances to consistently support the struggles. Opposition politicians, lawyers, religious clergy, NGOs have played a crucial role in supporting families of disappeared and raising visibility. But sometimes, it was difficult to know whether some of them were using these families to promote their own agendas. It was sad when some activists tried to undermine their struggles, portraying them as being used for political agendas. It is a struggle that leaves a heavy cost on all those involved, and at times, it is extremely difficult to muster the strength to continue. Estela’s story and the fierce struggle of the grandmothers of the Plaza de Mayo, against all odds and for decades, serve as inspiration and a source of strength in continuing with what often seems like an unending struggle.

What can the WGEID do in Sri Lanka and for Sri Lanka?

Families of the disappeared, as well as activists who have been working with them, will have high expectations of the WGEID. Answers will not flow about the fate and whereabouts of disappeared persons during the WGEID’s visit. It has neither the mandate nor powers to achieve that. But my hope is that the visit will help set in motion processes with strong involvement of families, professionals, and international actors that could lead to finding the fate and whereabouts of those who have disappeared. And further, towards justice, reparations, and guarantees of non-recurrence. In this regard, the timing of the visit is significant.

Successive Commissions of Inquiries have been appointed by previous governments to deal with disappearances. The last of which is still functioning, has received 23,249 complaints (5000 relating to the security forces). To the best of my knowledge, the Commission has been unable to find out information about even one person who is still missing.

The new Government has committed to the establishment of an Office of Missing Persons, with the assistance of the International Committee of the Red Cross. The WGIED visit comes within two months of a historic report on an investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka, commissioned by the UN to address impunity and ensure accountability in Sri Lanka. The UN Office of the High Commissioner for Human Rights dealt extensively with the issue of disappearances and concluded that there were:

[…] reasonable grounds to believe that the Sri Lankan authorities have, in a widespread and systematic manner, deprived a considerable number of victims of their liberty, and then refused to acknowledge the deprivation of liberty or concealed the fate and whereabouts of the disappeared person. This has, in effect, removed these persons from the protection of the law and placed them at serious risk.

There are reasonable grounds to believe that enforced disappearances may have been committed as part of a widespread and systematic attack against the civilian population, given the geographical scope and timeframe in which they were perpetrated, by the same security forces and targeting the same population.[13]

The WGEID visit comes within two months of the Government having committed to a range of demands that families of disappeared persons and activists have been making for many years: to ratify the International Convention against Enforced Disappearances,[14] to criminalise disappearances in Sri Lanka, and to issue certificates of absence to families of disappeared persons where death certificates cannot be issued. There are no timelines given by the Government for these commitments, nor are there any details available of how the commitments will be given effect.

The WGEID has a strong global reputation spanning 35 years of independence, integrity, and firmly supporting families of disappeared persons and activists. Sri Lanka will test that reputation. They will have to find ways to show concrete forms of solidarity with families of the disappeared and activists, privately and publicly, beyond mere words. They will have to rigorously study the past work done on disappearances and seek as much information as possible in relation to disappeared persons, especially in relation to mass graves and secret detention centres. They will have to gather information on relevant laws, institutions, and mechanisms – both in relation to the past and future. While noting positive commitments and actions by the Government, they will have to be careful not to be carried away by the allure of promising commitments and rhetoric, after all, the devil is in the details, including timelines that are not disclosed. They will have to make sure that diplomatic niceties and political considerations do not make them shy away from asking the difficult questions, sharing uncomfortable truths they may uncover, and making recommendations that may not be welcomed by the Government or even the majority of society, during the visit and also afterwards. Indeed, much will depend on their willingness and ability to do follow up work, and keep up the engagement after the visit, especially until they present a full report of the visit to the UN Human Rights Council in September 2016.


 

[1] In 2002 the WGEID stated that Sri Lanka was the county with the second highest numbers of disappearances on the WGEID’s list, second only to Iraq. Sri Lanka had 12,297 cases transmitted to the Government and 7,335 outstanding cases. Iraq had 16,514 cases transmitted to the Government and 16,384 outstanding cases – Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, fifty-eighth session, 18 January 2002, UN Doc. E/CN.4/2002/79, para 359 and pp 77-78. In 2015, based on the WGEID figures, Sri Lanka remains the second highest on the WGEID’s list, again second only to Iraq (16,555 cases transmitted to the Government and 16,408 outstanding cases) – Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, pp 27 and 29.

[2] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, p 29.

[3] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, pp 41 and 43.

[4] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, para 1.

[5] The WGEID was established by the Commission on Human Rights in 1980. Commission on Human Rights Resolution, 29 February 1980, UN Doc. E/CN.4/RES/1980/20.

[6] It was established at a time where there were no international instruments on the issue of enforced disappearance. The fact that it came into existence, in the absence of international instruments, is testament to the grave issue that enforced disappearances posed in the world and the international consensus (as represented through the UN) to take steps to address the problem. The WGEID defines an enforced disappearance based on three cumulative elements: (1) the deprivation of liberty against the person’s will, (2) the involvement of government officials, at least indirectly by acquiescence; and (3) the refusal to disclose the fate or whereabouts of the person. The WGEID considers that the definition of enforced disappearance should, at the minimum, contain the three stated elements). After the Declaration on the Protection of all Persons from Enforced Disappearances was adopted by the UN General Assembly in 1992, the WGEID was entrusted to monitor the progress of states in fulfilling the goals set out in the Declaration and to provide assistance to governments in implementing the goals and existing international rules relating to enforced disappearances. Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, Best practices on enforced disappearances in domestic criminal legislation, sixteenth session, 28 December 2010, UN Doc. A/HRC/16/48/Add.3, para 21; Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, fifty second session, 15 January 1996, UN Doc. E/CN.4/1996/38, para 55.)

[7] Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, thirtieth session, 10 August 2015, UN Doc. A/HRC/30/38, para 2.

[8] The Presidential Commission of Inquiry that is presently operating has received 23,249 complaints (including 5000 from the security forces). A submission to a previous Commission of Inquiry raised a question about 146,679 persons unaccounted in the last eight months of the war, citing official government statistics. For more statistics, see the section The numbers – if they matter” in the article http://groundviews.org/2013/08/30/sri-lankas-disappeared-visit-navi-pillay-and-another-commission-of-inquiry/.

[9] Report of the Commission of Inquiry Appointed to Investigate and Inquire into Alleged Serious Violations of Human Rights since first August 2005 (“Udalagama Commission”), May 2009, Part I, Case No. 8, p 8.

[10] Report of the Committee on Disappearances in the Jaffna Region, October 2003, pp 18-19.

[11] https://www.colombotelegraph.com/index.php/eastern-university-massacre-missing-missing-missing-for-25-years/.

[12] See some examples at http://groundviews.org/2014/08/30/disappearances-and-the-struggle-for-truth-and-justice/

[13] Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), thirtieth session, 16 September 2015, UN Doc. A/HRC/30/CRP.2, paras 1127-1128.

[14] International Convention for the Protection of All Persons from Enforced Disappearance, adopted 20 December 2006, UN Doc. A/61/488 (entered into force 23 December 2010).

The challenge of doing what is right in Sri Lanka

First published at http://www.ucanews.com/news/the-challenge-of-doing-what-is-right-in-sri-lanka/74446 on 16th October 2015

After four contentious resolutions on Sri Lanka, the U.N. Human Rights Council in Geneva on Oct. 1 adopted a “consensus resolution” for foreign judges and prosecutors to help Sri Lanka try those accused of serious crimes during the decades-long civil war.

This resolution came as a response to a report by the U.N. Office of the High Commissioner for Human Rights, which the previous Sri Lankan government had aggressively opposed — going to the extent of threatening, intimidating and arresting Sri Lankans who supported it, including my own detention.

There were many Sri Lankans — civil war survivors and their families and activists — both inside and outside the country who braved government threats to testify to the U.N. investigation team. Their stories in the U.N. report reveal a long list of unlawful killings, disappearances, arbitrary arrests, torture, sexual and gender-based violence, forcible recruitment of children, restricting fleeing war-affected areas, attacks on civilians and hospitals, food convoys, churches, etc.

The report says these are systemic crimes that may amount to crimes against humanity and war crimes if proven in a court of law that both the Sri Lankan government and the rebel Tamil Tigers are culpable. It emphasized that Sri Lankan laws and judiciary were incapable of dealing with such crimes and that human rights violations still continue in Sri Lanka. It recommended a “hybrid court” with international judges and lawyers working with Sri Lankans.

 

Ground realities

The resolution doesn’t appear to have recognized the serious nature of the violations detailed in the U.N. human rights office’s report. It has “balanced” its findings and recommendations to accommodate political and ideological considerations of the Sri Lankan government that co-sponsored the resolution.

An example of a glaring omission in the resolution is justice for those detained for up to 19 years under the draconian Prevention of Terrorism Act, without having their cases concluded.

A few days before the resolution, a local court declared a Tamil mother “not guilty” after being in detention for more than 15 years. There has been no apology or redress for her. Some detainees of the Prevention of Terrorism Act recently began a hunger strike calling on authorities to expedite their cases. But nothing has happened.

The investigation against me also still continues, restrictions on my freedom of expression are still in place and my confiscated equipment still not returned.

In my travels in Jaffna, Kilinochchi and Mullaitivu recently, I saw no signs of a reduction in military involvement in civilian affairs despite a commitment to this in the resolution. The military continues to run farms, shops, restaurants, resorts and preschools. When I was traveling from Jaffna to Allaipiddy to visit a church that was shelled in 2006, resulting in the deaths of many civilians, I was stopped at a checkpoint by a policeman and armed soldier who wanted to know where I was going and for what purpose.

There are no signs that things are changing on the ground, even after the U.N. resolution.

 

Looking forward

In principle, the transitional justice mechanisms proposed by the Sri Lankan government through the resolution are positive. But the devil will be in the details. Who will be appointed to run these proposed mechanisms? How will they be appointed? What will be their mandate and way of operating? Answers to these will be key to its success.

The government has stressed consultations with all parties — but there is nothing to indicate that insights and inputs will be taken into account, especially by victims and their families, the majority of whom are Tamils.

The commitment to pay serious attention to crimes by Tamil Tiger rebels is welcome, although there will be skepticism on this front too, given the obvious reluctance to try self-proclaimed Tamil Tiger leaders now in government ranks.

Hopeful signs include the recent convictions of soldiers for a massacre that happened 15 years ago, as well as a separate conviction for the rape and sexual abuse of two Tamil women five years ago. Military officials have also been arrested for the killing of Tamil parliamentarians and the abduction of a Sinhalese cartoonist. But these should be looked at in the context of thousands of similar cases, some detailed in the U.N. report, often with complicity at the highest level and whose perpetrators enjoy total impunity.

The government’s several consultations with the military are of serious concern, since the military stands accused of some of the most serious crimes. The government’s public statements try to appease the majority Sinhalese community by emphasizing the protection of the military, instead of trying to convince them of the importance of justice for the mostly Tamil survivors and victims. The government simply doesn’t seem to have the political and moral vision and courage to take a principled position and do the right thing.

Media, civil society and religious leaders appear to be more focused on the international dimension of a judicial mechanism and paying less attention to mechanisms for missing persons, reparation, truth and reconciliation and other practical and important commitments that can make a difference to survivors and victims’ families.

Church and religious leaders should help their communities face up to the stories of their brothers and sisters crying out through the report, and reflect about what we have done to each other. They should move away from silence and inaction, especially from defending war criminals as “war heroes” or “martyrs.” They must insist that truth, justice and accountability are a must to guarantee reconciliation and non-recurrence of what Sri Lankans have suffered.

Ruki Fernando is a human rights activist and consultant to the Justice, Peace and Integrity of Creation Commission of the Conference of Major Religious Superiors in Sri Lanka. He is also a member of the Asia-Pacific chaplaincy team of the International Movement of Catholic Students.

(Sinhalese translation at http://www.vikalpa.org/?p=25134 and Tamil translation at http://www.jvpnews.com/srilanka/130018.html)

Court acquits Tamil mother after 15 years of detention under PTA

First published at http://groundviews.org/2015/10/05/court-acquits-tamil-mother-after-15-years-of-detention-under-pta/ on 5th October 2015

Last week, Tamil children in the North of Sri Lanka reportedly took to the streets to demand the release of their parents detained for years[1] under anti-terror laws[2]. This was hardly reported in mainstream Sri Lankan media. But many Sri Lankan media reported that two suspects in the Town Hall bomb case of 1999 (injuring former President Kumaratunga and countless others and killing 26[3]) were sentenced to 290 and 300 years respectively.

15-16 years for a conviction / release of a suspect

The two suspects were remanded on 18th September 2000 (possibly arrested even before that) under the PTA[4]. One of them had told a lawyer of torture[5]. Earlier this year, an Army officer was sentenced to death, 15 years after a massacre of Tamil civilians in 2000[6]. It took 16 and 15 years respectively for convictions to happen in these two cases. If appeals are made, it could take another several years for cases to conclude.

15 years to be determined not guilty – the PTA and the innocent detainees

Mrs. Vasanthi Ragupathy Sharma, a Tamil mother of three, was remanded on 27th July 2000[7] (date of arrest likely to be earlier, exact date not known) also as a suspect for the Town Hall bomb case and indicted in 2002[8]. After 15 years the High Court has determined she is not guilty. She is not alone. In May 2015, Courts determined that Mrs. Anthony Chandra, also a Tamil mother of three, was not guilty of any crime, after being detained since August 2008[9].

Problems faced by those detained under the PTA

A recent report that I was involved in[10] indicated that as of early 2015, there were persons in detention for as long as 18-19 years under the PTA without having their cases concluded and that, in some cases, it has taken up to 15 years to even file charges.

In that report, we identified that the PTA and ER have resulted in arbitrary arrest, prolonged detention without charges, long drawn out court cases, multiple cases against one suspect, inhumane detention conditions, torture, forced confessions and that the mental and physical well-being of detainees has been severely affected due to long term detention, and in the case of many, also as a result of rigorous interrogation and torture. There have been many cases of forced/coerced confessions where the detainee had not even known he was signing a confession as he/she could not understand the language it was written in. Many detainees have spent most of their youth behind bars.

Post release harassment & problems

The stigma attached to having been a “terrorist suspect” lingers. Even after they are released by Courts, society still considers them guilty. After her release, Mrs. Sharma has been facing problems finding a place to stay. Mrs. Chandra was unable to get back her job. Both have had no compensation and struggle to survive, with no income. Mrs. Sharma’s jewelry, handed over to Prison authorities on her remand, has not been returned. Prison authorities claim the jewelry has been lost[11].

Balendran Jeyakumary, who was released in March 2015 after 362 days in detention under the PTA without any charges,[12] was re-arrested and detained for almost a week in September 2015, despite having being released on bail after 362 days in detention. She is yet to be charged. For the supposed “crime” of looking into the circumstances of her and others’ arrests, I was detained under the PTA, along with a catholic Priest, in March 2014. While I was subsequently released without charge, 18 months later I am still not free. An overseas travel restriction was in place for 15 months affecting my frequent travels for human rights work. The investigation against me continues, the restriction on my freedom of expression still remains, and confiscated electronic equipment has still not been returned to me.

The need for transparency about PTA detainees

Despite some statements[13], there is still no clear official information about those detained under the PTA. The list we examined for our report excluded those detained in places such as Boossa and TID headquarters in Colombo.

We highlighted new evidence reported to Courts by an investigating officer[14] and interviews to media by several Naval officers who had spoken to and served food to detainees held at a secret camp[15]. It is not clear what investigations have happened in relation to these and action taken against those alleged to be responsible.

In August 2015, the Attorney General’s Department is reported to have told Courts that “nothing had come to light with regard to former LTTE leader KP[16], who had been arrested 6 years ago. KP’s own public pronouncements, about his involvement with the LTTE are in the public domain[17]. After his arrest, the official Government news claimed that he was on the list of wanted persons by Sri Lanka, India and Interpol for a range of terrorism related and other criminal activities and that he has been accused of arms smuggling, conspiring the assassinations of VVIPs including former Prime Minister of India Rajiv Gandhi in 1990, and in control of billions in US dollars of LTTE funds to the LTTE’s terrorist activities, some of which was extorted from Tamils living abroad[18]. But there seems to be a reluctance to proceed on this case.

Continuing use of the PTA and continuing reports of torture

Last month, the UN Human Rights Council was discussing a long list of systemic crimes committed in Sri Lanka, such as unlawful killings, enforced disappearances, arbitrary detention, torture, sexual and gender based violence, attacks on civilians in places such as hospitals and churches, forcible recruitment etc., and widespread impunity, detailed in the reports of the UN OHCHR[19]. The resolution on Sri Lanka adopted by the UN Human Rights Council to follow up on the implementation of the recommendations has a commitment to reform/repeal the PTA – but it is silent about ensuring justice to those detained under the PTA for long years – including those released without being charged and those not found to be guilty after lengthy trials, such as Mrs. Sharma and Mrs. Anthony.

A report released by the International Truth and Justice Project – Sri Lanka (ITJP) cited 11 cases of white van abduction, unlawful detention, torture and sexual abuse in 2015[20]. We learnt of one case this year, where a man was abducted from off the roadside in the North, detained in a secret detention facility, interrogated and brutally tortured. The TID officer has informed a lawyer that 20 persons have been arrested under the PTA this year. In reality, this number is likely to be higher.

PTA detainees and reconciliation

How the Sri Lankan Government and people will ensure justice for Mrs. Sharma and Mrs. Anthony will be key factors to be addressed if we are to move towards reconciliation. And there are many other PTA detainees like them – who might end up being released as not guilty or released without even being charged after years of detention, those who are still in detention without being charged for upto 9 years, those still detained without the conclusion of their cases for upto 19 years and those being harassed after release.

Sinhalese translation at UN report on Sri Lanka and Freedom of Expression-Ruki-30Sep2015(Sinhala)

Tamil translation at UN report and Freedom of Expression in Sri Lanka-30Oct2015 (Tamil translation)

[1] http://www.tamilguardian.com/article.asp?articleid=16065 andhttp://www.tamilguardian.com/article.asp?articleid=16081

[2] Prevention of Terrorism Act and Emergency Regulations

[3] http://www.news.lk/news/business/item/10046-two-suspects-in-town-hall-bomb-blast-sentenced-to-290-and-300-yrs

[4] Based on information in a list of detainees in remand prisons examined by the writer in early 2015

[5] Interview with a lawyer in 2015, prior to conviction

[6] “The Mirusuvil case” http://groundviews.org/2015/07/02/the-mirusuvil-case-why-searching-reform-is-urgent-and-necessary/ &https://en.wikipedia.org/wiki/Mirusuvil_massacre#Case_follow_up

[7] The date of arrest is unknown, but likely to have been earlier.

[8] Based on information in a list of detainees in remand prisons examined by the writer in early 2015

[9] Interview with HRDs and lawyers who have been assisting and representing her

[10] http://groundviews.org/2015/09/05/pta-detainees-ignored-under-yahapalanaya/

[11] http://www.radiogagana.com/archives/5524

[12] https://freejeyakumary.wordpress.com/?ref=spelling

[13] http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=126154

[14] The investigating officer was from the Criminal Investigation Department (CID) – a special unit of the Police

[15] http://www.dailymirror.lk/82249/have-they-been-killed-or-hidden

[16] Popularly known as KP, full name reported to be Shanmugam Kumaran Tharmalingam

[17] http://www.channel4.com/news/exclusive-interview-tamil-leaders-concede-defeat, http://www.channel4.com/news/exclusive-interview-new-leader-of-the-tamil-tigers, http://dbsjeyaraj.com/dbsj/archives/1607,http://dbsjeyaraj.com/dbsj/archives/1631 and an formal announcement athttps://www.tamilnet.com/img/publish/2009/07/21_July_LTTE_English.pdf

[18]http://www.priu.gov.lk/news_update/Current_Affairs/ca200908/20090807kp_arrested.htm

[19] News release with summary athttp://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16432&LangID=E (The report is divided into two parts which are interlinked: The overarching Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights (A/HRC/30/61), available at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_61_ENG.docxand the accompanying report of the OHCHR Investigation on Sri Lanka (A/HRC/30/CRP.2) which can be found at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_CRP_2.docx

[20] http://www.itjpsl.com/wp-content/uploads/2015/07/Torture-in-2015.pdf

UN report on Sri Lanka and Freedom of Expression

First published at https://samsn.ifj.org/un-report-on-sri-lanka-and-freedom-of-expression/ on 30th September 2015

Earlier in September, Ruki Fernando was in Geneva as the reports of the UN Office of the High Commissioner for Human Rights (OHCHR) released the longest page-report (251 pages) narrating the horrific stories of unlawful killings and enforced disappearances out of Sri Lanka. Having been investigated himself under the grounds of terrorism Act, one which the OHCHR report has called for reviews. Ruki accounts a personal involvement and knowledge as he writes about the new UN report, its pros and cons, and how it could affect the cases of missing Sri Lankan journalists like Subramanium Ramachandran and Prageeth Ekneligoda as well as freedom of expression at large. 

In early September, I visited the parents of Subramanium Ramachandran, a Tamil journalist from Jaffna who has been reported as missing since February 200, having been last seen at an Army checkpoint[1]. There has been nothing heard since and his parents, now in their 80s, still desire for truth and justice, but appeared to have given up hope that their son will return. From Jaffna, I went on to Geneva. There the anguish of Ramachandran’s parents and many other families and survivors, was brought alive through the reports of the UN Office of the High Commissioner for Human Rights (OHCHR)[2]. The longer 251 page report (OISL) narrates horrific stories of unlawful killings, enforced disappearances, arbitrary detention, torture, sexual and gender based violence, attacks on civilians in places such as hospitals and churches. It highlighted reprisals against those seeking to challenge and question authorities in order to expose the truth and seek justice, which journalist Ramachandran had tried to do. It revealed denials, failures to carry out investigations and prosecutions such as in Ramachandran’s disappearance. It highlights inadequacy of domestic mechanisms and recommended a special hybrid court with international judges, lawyers, prosecutors and investigators, as well as actions by member states of the UN. The OHCHR report also called for review of the Prevention of Terrorism Act – under which I was arrested last year and I am still under investigation. A gag order restricting my freedom of expression is still there, after having given interviews to BBC, CNN another media outlets. Many other journalists, opposition politicians, clergy and activists have been arrested and detained under this draconian law, which has been and is still being used to curtail dissent and free expression. As the UN report was being released, I was sitting next to families of disappeared (journalists), including Sandya Ekneligoda, wife of disappeared Sinhalese journalist Prageeth Ekneligoda, outside the meeting room in the UN, as we were not allowed to go inside. I tried my best to translate the High Commissioners remarks through the webcast to Sandya. Prageeth’s case was mentioned in both reports. Sandya had waged an unrelenting battle for truth and justice, including giving testimony to the OHCHR. She welcomed the report, emphasizing the importance of looking at the past to move forward. The OISL report detailed the killing of the Sunday Leader[3] editor Lasantha Wickramatunge, the series of attacks on the “Uthayan”[4] and the alleged detention, murder and desecration of the dead body by the Army, of the well-known LTTE female TV presenter Isaipriya. Ramachandran’s was amongst the many such cases that were not mentioned by name. The reports highlighted the widespread, systemic and repeated targeting of media known to be critical of the government over an extended period of time, insufficient protection offered to media workers who faced recurrent attacks and how this led to self-censorship and exile in fear of their lives, as well as fact that the number of journalists and media workers killed was amongst the highest in the world. The report however appears not to have dealt with the connection between free expression and broader patterns of serious violations. For example, it has not emphasized the lack of access and restrictions for independent media during the last phase of war or even after the war and how this and the general repression of freedom of expression prevented serious violations being highlighted. The UN reports also doesn’t recognize the widespread use of state and private media to discredit independent-minded journalists, press freedom activists and others critical of the government, which hampered their ability to report freely and also led to exile and self-censorship and the fact that a large proportion of journalists killed during the period were Tamils. The reports noted that “surveillance, interference and harassment of human rights defenders continued to be reported from the district level” in 2015, despite a “significant opening of space for freedom of expression at least in Colombo”. Indeed, few days before the launch of the reports, Police in North and East obstructed peaceful signature campaigns for a petition to the UN. The OISL report emphasized the importance of an environment where victims and witnesses can participate without fear in transitional justice mechanisms and that such a climate does not yet exist. Truth seeking, memorialization, prosecutions will depend on the extent to which people, particularly survivors and victims’ families feel free to express themselves without fear of reprisals. Media will have a major role to play in covering these processes independently. It will have to report the contents of the OHCHR reports, reactions or lack thereof in a responsible manner. This will depend on the extent to which media can function independently, without threats, restrictions or political interference. _________

[1] http://en.rsf.org/sri-lanka-army-said-to-be-holding-tamil-23-03-2007,21420.html

[2] News release with summary at http://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16432&LangID=E (The report is divided into two parts which are interlinked: The overarching Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights (A/HRC/30/61), available at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_61_ENG.docx and the accompanying report of the OHCHR Investigation on Sri Lanka (A/HRC/30/CRP.2) which can be found at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_CRP_2.docx

[3] English weekly newspaper, well known for its fearless exposes of corruption

[4] A Jaffna based Tamil newspaper with the highest circulation, which had consistently criticized alleged abuses by the government and the military against Tamils