Solidarity

Refugee Jesus: Christmas & Refugees in Sri Lanka

First published at http://groundviews.org/2016/12/25/refugee-jesus-christmas-refugees-in-sri-lanka/ on 25th December 2016

Jesus was born as a refugee child. When Mary, the pregnant mother on the move couldn’t find a place to give birth, it was poor shepherds that welcomed them to their stable. Immediately after Jesus was born, Mary and Joseph had to flee, to save the baby Jesus’s life from assassination attempt of a cruel King. This is the story of Christmas.

This story of Refugee Jesus, the stable and poor but generous shepherds and fleeing parents had a huge resonance for me during Christmas 2008 in when babies were born in refugee camps and later in bunkers amidst showers of bombs and shells, in Northern Sri Lanka. Last week, when I attended a Christmas gathering of Pakistani refugees in Sri Lanka, I was again stuck by the story of this original Christmas.

Compared to grand Christmas parties and Christmas Carols in luxurious hotels, decorated and lighted up Christmas trees on streets, malls and churches in Colombo, the refugee’s Christmas party was a simple event. A few Catholic priests and sisters were present and helped to organize the event. But otherwise, it was attended and run only by refugee families including children. More than the Christmas Carols, I remember them singing “we shall overcome some day…we shall live in peace some day…we shall be free some day”.

Refugees from Sri Lanka and Refugees in Sri Lanka

More than a million Sri Lankans are estimated to have fled the country as refugees to India and western countries during the war and afterwards. Even this year, those subjected to abductions and inhumane torture in Sri Lanka have fled to England. Many activists and journalists who had criticized and challenged the Rajapakse’s dictatorial and corrupt family rule were also compelled to flee Sri Lanka. Some years ago, I also left Sri Lanka due to imminent threats. I and many others have benefitted from the care and support from our friends and strangers in foreign countries.

At the same time, a small number of people facing persecution in their own countries have come to Sri Lanka seeking refuge here. Christians, Ahmadi Muslims and Atheists as well as activists, journalists, bloggers and gay persons from Pakistan and Bangladesh have been amongst those who had come to Sri Lanka seeking refuge in the last few years. I have become friends and gotten to know some of them a bit better during this time. On one hand, I feel proud that they have trusted us and come to us, hoping that we would care for them in their time of need and desperation. But my predominant feeling is of sadness and shame, that we as peoples and our government has not been able to welcome them warmly and care for them.

UNHCR, Refugees and Asylum seekers in Sri Lanka

Through an agreement in 2005, the Sri Lankan government has agreed to facilitate the United Nations High Commissioner for Refugees (UNHCR) mandate to determine refugee status of those from other countries who come to Sri Lanka and apply for refugee status.

According to UNHCR[1], there are 576 refugee claimants (asylum seekers) in Sri Lanka as of 31st August 2016, whose refugee applications are pending. These include 35 who registered in August. 439 are from Pakistan and 106 from Afghanistan, while others are from Iran, Maldives, Myanmar, Sudan, Syria, Ukraine, and Yemen. The decisions on the refugee applications by UNHCR in Sri Lanka can take several years, with a longer process for those who have to appeal against rejections. In August, 10 persons were rejected refugee status by UNHCR, including 4 after an appeal.

According to the same UNHCR report, there were 649 persons in Sri Lanka who have been accepted as refugees as of 31st August 2016, including 23 recognized in August 2016.  529 were from Pakistan and 73 from Afghanistan, with others coming from Bangladesh, Iran, Maldives, Palestine, Somalia, Syria, Tunisia and Yemen.

Sri Lankan Government and Refugees in Sri Lanka

Despite the 2005 agreement, several refugee claimants were arrested, detained and deported in 2014. Although the new government has been more tolerant of refugees and refugee claimants, they continue to live a miserable and uncertain life in Sri Lanka. Most Sri Lankan politicians, activists and journalists are focused on issues considered “Sri Lankan”, such as economy, corruption, new constitution, transitional justice etc. We are of course quick to seek international assistance from abroad in relation to these. But sadly, our government doesn’t permit refugees recognized as needing international protection to stay in Sri Lanka, despite the number of refugees in Sri Lanka being around 0.003% of the population. This is indeed a sad indictment of our religiosity, culture, laws, policies and practice.

Hence, those recognized as refugees have to wait several years even after being recognized as refugees before a third country accepts them for permanent resettlement. According to UNHCR, 272 persons have left for USA, 11 to Canada and 1 to Sweden under UNHCR resettlement process between January to August 2016. Separately, 14 persons had left for Canada under Canada’s Private Sponsorship of Refugees (PSR), a program separate to UNHCR, where private individuals and organizations in Canada can sponsor the resettlement of refugees. The waiting period for this too can be about 3 and half years[2].

Challenges facing Refugees in Sri Lanka

Refugee claimants in Sri Lanka don’t get any support from the government in terms of housing, food and other living expenses. UNHCR doesn’t provide any assistance to them either until and unless they are granted refugee status. Thus, they are totally depended on any of their own savings, support from relatives and friends, or other well-wishers such as NGOs and church groups. In Sri Lanka, there is hardly any such well-wishers, despite the extensive support hundreds of thousands of Sri Lankan refugees and internally displaced persons have received from foreign organizations.

For those who are accepted as refugees, UNHCR provides an all inclusive amount of Rs. 10,000 (approximately USD 67) per person for a month, for accommodation, food, communication, transport etc. Families with up to one child receive Rs. 16,000 (approximately USD 107) and families with two or more children receive Rs. 22,000 (approximately USD 148). It is almost impossible to survive in Sri Lanka with such meagre amounts. There are very few groups who have shown interest to support refugees in Sri Lanka.

The government prohibits refugee claimants and refugees from engaging in employment. But in desperation, some work illegally. One refugee told me that he works as a construction worker a few days a week, earning Rs. 1,000 (approximately USD 6.70) per day. He explained difficulties in language and also due to the fact that he had never done such work in his home country. The inability to work legally has made them extremely vulnerable, with no recourse to legal remedies if they are abused by employers. Recently, an Australian volunteer initiated a livelihood project for two refugee woman and had managed to sell most of the initial products. But sustaining sales and marketing their products in Sri Lanka remains a major challenge.

Education for children is another major challenge. UNHCR covers school expenses of children between the age of 6 to 10 years. But this means that children are unable to attend school or pre-school until they are 6 and after 10. As a result, many refugee children are unable to attend school. Although some initiatives were taken in the past to organize teachers within the community, these were difficult to sustain and could not become a viable replacement for a formal school system.

Refugees have sought and received primary health care through hospitals, but when more serious health care is needed, and when external medication and medical tests are required, refugees are unable to access such services due to lack of money. Persecutions suffered in home country, prolonged periods of stay as refugee claimant / refugee, lack of basic needs and uncertainty about future has resulted in trauma for many refugees and their families, but a refugee told me recently that mental healthcare and counselling is not easily available for them.

According to the government[3], 78 (69 males and 9 females) refugees/refugee claimants are presently in detention, with the largest number of 36 being from Bangladesh. Last week, one lady told me her son had been in detention for around two years and another lady told me her husband has been in detention also around two years.

Refugees in Sri Lanka & Legal protections 

Sri Lanka is not a party to the 1951 Refugee Convention. Although Sri Lanka is a party to the UN Convention Against Torture[4] there are no specific legislative provisions in Sri Lanka to give effect to article 3 (1) of the convention, to prevent the state from returning or extraditing a person to another state when there are substantial grounds for believing that such persons would be in danger of being subjected to torture or to cruel, inhuman and degrading treatment, despite this also being a well-established principle of Customary International Law.

In the Constitution, article 12(2) dealing with prohibition of discrimination excludes non-citizens. And protections from arbitrary arrest, detention and punishment provided for in article 13(1-6) in the constitution has been denied to persons arrested, detained and deported under immigration related laws under article 13 (7).

Thinking about refugees in Sri Lanka during Christmas & beyond

Reflections about a giant Christmas tree and millions of rupees being spent on Christmas celebrations and inspiration from Refugee Jesus could hopefully enable Christians to offer more care and support to refugees in coming years. Beyond Christmas, the constitutional reform process in 2017 offers Sri Lankans a good opportunity to do away with legal provisions that are discriminatory and unjust towards refugees. And to enable a more welcoming and supportive environment for refugees where their rights, dignity and wellbeing are guaranteed through our constitution, laws, policies and practice.

[1] Monthly report of Asylum Seekers & refugees by UNHCR Colombo, August 2016

[2] http://www.cic.gc.ca/english/information/times/index.asp

[3] Written Additional Information submitted by the Government of Sri Lanka on the 5th Periodic Report to the UN Committee Against Torture (CAT), Nov. / Dec.2016, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=1085&Lang=en

[4] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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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.

Disappearances in Sri Lanka & Role of Civil Society

This is an expanded text version of a talk at a forum organized by the Law & Society Trust (LST) on “Recognizing the Struggle: State’s responsibilities towards families of the disappeared”, on Friday 18 March 2016.

It is significant for me to talk about civil society’s role on disappearances at an event organized by Law and Society Trust (LST) because it was at LST that I was thrust into working with families of disappeared persons. Families have always been and will remain central to the struggle against disappearances. They remain my primary inspiration, perhaps the reason I have not been able to give up, even when I often felt like giving up.

Context:

I remember that on this day, exactly two years ago, I was in detention at the Terrorism Investigation Division with another friend, Fr. Praveen. The nearest trigger for our arrest appeared to have been our efforts to look into the arrest of a mother of a disappeared child, Balendran Jeyakumary (who was also a vocal campaigner seeking truth and justice for disappearances) and other Tamils in the North. More than a year after “good governance”, Jeyakumary. Fr. Praveen and me are still being investigated under the Prevention of Terrorism Act (PTA).

Ironically, at the same time, I have been invited for various meetings of the government and to be part of an Expert Advisory Committee related to Transitional Justice (which I didn’t accept due to various other reasons), despite still being a “terrorist suspect” and having a court order restricting my freedom of expression.

Although Jeyakumary was conditionally released two months after President Sirisena took office, she was re-arrested last year under “good governance”. She also faces serious social isolation due to this and struggles to find livelihood and has been compelled to keep her young daughter in a hostel. There has been no news about her disappeared son, who she claims has appeared in a photo taken at a government rehabilitation facility.

We are also no closer to the truth or justice in relation to the disappearance of Lalith and Kugan, two campaigners against disappearances, who disappeared in Jaffna in December 2011.

Families of disappeared and activists don’t face the kind of attacks, threats, intimidations, discrediting etc. that we experienced under the Rajapakse regime. But monitoring of families of disappeared persons and activists in the North and East continues. And there is total impunity for the reprisals we faced in the past.

It is in this context that I talk about disappearances, the Government’s promises of Transitional Justice (TJ), and role of civil society.

Transitional Justice promises in the context of disappearances

The Government has promised to deliver Truth, Criminal Justice (prosecutions / convictions), Reparations, and Guarantees of non-recurrence. All these four are rights of families of disappeared persons.

The Government has also committed to set up four specific Transitional Justice (TJ) related institutions and has appointed a Task Force to conduct nationwide consultations regarding the setting up of these institutions. The institution proposed to solely focus on disappearances is the Office of Missing Persons (OMP). Given the nature of disappearances in Sri Lanka, the other three proposed mechanisms (the Truth Commission, the Judicial mechanism, and the Office of Reparations) will also likely be relevant. Commitments by the Government to criminalize disappearances, ratify the international convention against disappearances, issue certificates of absence and repeal the PTA are other key TJ promises of the Government in relation to disappearances.

As we focus on TJ promises and a TJ approach, we should also be careful of it’s limits, including addressing old injustices and inequalities pre-dating the war, such as class, caste, gender etc.

Civil society’s role in relation to disappearances

The Government has primary responsibility to prevent disappearances and address disappearances that have happened. But I will not dwell on this and will go on to focus on the role of civil society. I will take a broader definition of civil society to include lawyers, artists, academics, religious clergy, NGOs, trade unions etc. I will share some personal experiences and what I see as twelve challenges.

Personal experiences and reflections

I have given many talks in relation to disappearances in different places in Sri Lanka and overseas. I have written several articles[1] and given interviews. I have shared individual stories[2], statistics, general trends, threats, intimidations etc. But last night, I struggled to think of what I will say today.  As I was asked to talk about the role of civil society, and I consider myself to part of civil society, I felt it had to involve some personal introspection, which is often difficult.

None of my family members have disappeared. But I have worked very closely with a few families of disappeared persons and had chances to interact and join many more. They have included Tamils, Sinhalese, and Muslims.

Since 2015, some new possibilities have opened up to address disappearances of the past. I will deal with some when I talk of challenges.

As a civil society activist, we had to sometimes deal with blurred lines of who is a victim and who is a perpetrator. In August 2012, when we were organizing a protest against disappearances in Vavuniya, I had to argue with Tamil activists why we should join forces with families of missing soldiers, when the Army itself stands accused of being responsible for many disappearances plus many other crimes and rights violations. Around 2010, I had to struggle within LST and argue with close colleagues why I was supporting the wife of a prominent LTTE leader who disappeared after surrendering to the Army, as this person has been accused of child recruitment and other crimes.

In some ways, looking back, our work on disappearances during the Rajapakse regime was simple, despite being dangerous and controversial. During the height of the war, my colleagues and I spent a considerable amount of time accompanying families of disappeared to hospitals, camps, and police stations in their searches. We spent time talking to them in their homes, offices, churches etc. We joined them in protests in the streets, in Colombo, Jaffna, Geneva. We joined them in religious services. We went with them to meet government officials and politicians. We went with them to Courts, the Human Rights Commission, and various other Commissions of Inquiries. We helped them write letters, speeches, and sometimes helped translate them and became their interpreters. We introduced them to others we thought who could help them – lawyers, journalists, clergy, writers, film makers, student activists, diplomats, UN officials, international and regional NGOs. We helped them organize events and we tried help link families with each other. We also tried to tell their stories to as many people as possible.

But in the recent past, I have found it difficult to do even the simple things we used to do with families of disappeared, which I believe is central to dealing with disappearances.

Sandya Eknaligoda, who is well known now, was one of my strongest inspirations[3]. She was a regular visitor to LST when I was working there, and I spent a lot of time with her. But lately, I have not been able to spend as much time with her as before. About two weeks ago, I was sad I couldn’t go to join Sandya at a religious service she organized. A few days later, I was very sad to read that Sandya had to go to courts alone – on International Women’s Day. And both days, I was also sad at my inability to convince any friends or colleagues to join her in solidarity.

A few months ago, a lady whose husband had disappeared called me and asked for help to buy milk food for her two young children. She was keen to pursue legal action, but I was unable to find a lawyer who was willing to appear pro bono. There are other families of disappeared who I have met in the last two months, whose cases I have not been able to follow up properly. In recent times, it has been difficult to find someone to help a family draft a complaint or letter to the UN, Human Rights Commission etc. or to do a translation.

Unlike in the past, in more recent months, my colleagues and I have been unable to have sustained long term relationships with families of disappeared persons we met. We have failed to communicate regularly and to go beyond one-off or occasional meetings and events. We have failed to respond to the specific needs of families and we have been unable to take forward the pursuit of truth and justice, even when opportunities and possibilities existed.

These have been real challenges, real frustrations.

Estela Carlotta from the Grandmothers of the Plaza de Mayo in Argentina described how they used to “cry at home and fight in the streets”. This is probably true for some of the most courageous and determined families of disappeared I have worked closely with. It’s also true for me. Working against disappearances has been traumatic and sometimes a lonely journey. Powerlessness and helplessness have been pre-dominant feelings. I have spent a lot of time, a lot of energy, took lot of risks, lost a lot, and achieved very little. Despite often feeling like giving up, I don’t regret what I have done.

Twelve challenges

Primarily based on my personal experiences and considering the present context, I would like to share twelve challenges facing civil society in terms of addressing disappearances.

  1. Recognizing and addressing a deeply personal tragedy which has become immensely political and has legal dimensions. This will involve a holistic approach, including emotional, financial and legal support, advocacy etc.
  1. Sustained accompaniment and support to families of disappeared (not one off events and long gaps with no communication).
  1. Balancing intensive support for a few families in their struggles and the broader struggles against disappearances.
  1. Getting the support of fellow activists, lawyers, journalists, academics, clergy, politicians, etc.
  1. Recognizing the activism and agency of families and being careful not to undermine them.
    • Ensuring that families make informed decisions when we ask them to join activities we initiate and organize – like protests, seminars etc. Families need to be provided clear information about why their engagement is sought, including who is organizing an event, the nature of an event, the objectives of an event, the issues being protested at a protest, the demands being sought etc.
    • Looking critically and speaking out when we feel families are used as pawns of politicians, NGOs etc.
    • Being careful not to undermine families of disappeared as mere pawns without having minds and agency of their own.
  1. Civil society involvement in movements of families – how much leadership, influence do we take up and how much do families have? How much support is there from civil society when a family of a disappeared person or group of families initiate some actions, such as what Sandya has been doing?
  1. Finding ways to advocate for truth, criminal justice, reparations in a way that will not undermine families’ rights to all three, and will minimize the need for a tradeoff. This will also have to take into consideration different priorities of different families in terms of the above rights. Making available the full report of ICRC’s needs assessment survey to all families of disappeared who participated in it could be helpful tool in assessing this. Supporting and advocating for interim reliefs (not compensation for crime), such as scholarships for children and special assistance for the elderly and disabled in families, housing, employment etc. of disappeared should be taken seriously, in a manner that will not undermine but enhance capacity for families’ rights for truth and justice.
  1. Exploring multiple approaches to truth seeking.
    • Criminal investigations. The few cases I know where we are closer to the truth are based on this – such as the discovery of the body of my friend Pattani Razeek[4] and arrests and information related to Prageeth Ekneligoda.
    • When there is strong evidence indicating who the perpetrators are and when arrests, prosecutions and harsh penalties on conviction are imminent, alleged perpetrators could be encouraged to provide further and detailed information by providing incentives (such as reduced penalties) taking into consideration also wishes of families of disappeared.
    • Encouraging information to surface from alleged perpetrators and institutions implicated by providing them incentives like those used in ordinary criminal cases (such as confidentiality, anonymity and, on a case by case basis, possibly even assurances of immunity), taking into consideration also wishes of families of disappeared.
    • Soliciting information from independent eyewitnesses who are not part of primary perpetrator institutions.
    • Use of DNA and forensics – in relation to mass graves and discovery of human remains in various parts of the country
  1. Engaging and contributing to the proposed Office of the Missing Persons (OMP), considering the past failures and the lack of transparency of the process so far. Some considerations could be:
    • Maximum involvement of the families of disappeared in setting up of the OMP and its operations, including in oversight structures. Their exclusion from the discussions so far is ominous and should be rectified urgently.
    • Ensuring that criminalization of disappearances in Sri Lanka and ratification of the convention against disappearances happens before the enactment of legislature that will establish the OMP.
    • Discussion of how its work could facilitate the pursuance of criminal justice, reparations, and guarantees of non-reoccurrence while focusing primarily on truth seeking (clarification of the fate and whereabouts).
    • Ensuring that the domestic and international agencies involved in the OMP will advance and not block in anyway the pursuit of truth and justice.
    • Defining the scope of crimes that could be covered (based on clear definitions, such as enforced disappearances, missing etc.).
    • Not restricting the consideration of incidents based on date of disappearance (looking at all disappearances, irrespective of the date it occurred)
    • The structure and different units that will form the OMP (such as Forensics, DNA bank, investigations, psychosocial support, victim and witness protection etc.).
    • Who will be in it – overall leadership, leadership of specific units, oversight, staff etc. And who will make appointments.
    • Given the clear expression of the lack of confidence in domestic mechanisms by many families of disappeared, the importance of ensuring maximum international involvement.
    • Possible ways to transfer pending cases from previous Commissions of Inquiries (E.g. Paranagama Commission, Mahanama Tillekeratne Commission, LLRC etc.).
    • Dealing with findings and progress on complaints that have been lodged to the Human Rights Commission, Police and cases pending before Magistrate Courts, High Courts, and Supreme Courts, especially in relation to Habeas Corpus cases.
    • Complementarity and harmonizing of the existing database of the Human Rights Commission.
    • Security of the database.
    • What should be the powers – such as to request and seize any documents and materials, summoning of any persons, visit private or public spaces without prior announcement, conduct exhumations, dealing with institutions and persons not cooperating with its work etc.
  1. Advocating for quick realization of other key commitments of the Government. Criminalization of disappearances, ratification of the UN convention against disappearances, and issuance of certificates of absences and benefits based on that.
  1. Raising awareness amongst the general population and gaining more support from the public – especially the Sinhalese (the mainstream media will have to play a major role in this).
  1. Money.Can we sustain activism beyond donor funding? How do we use funding? E.g. is it ok to spend for one day for one person for a hotel room (to attend a meeting on disappearances), when the amount could be more than what most families of disappeared earns for a month? Gaining donor’s attention to support economic justice by stimulating local economies, generating sustainable employment, alongside their existing support to protests, seminars and such efforts. The private sector could also contribute, but their involvement should be looked at cautiously, to ensure that it will not exacerbate existing economic inequalities or damage to local economies.

[1] For example, see http://groundviews.org/2015/11/11/disappearances-in-sri-lanka-and-the-visit-of-the-un-working-group-on-disappearances/,http://groundviews.org/2014/08/30/disappearances-and-the-struggle-for-truth-and-justice/, http://groundviews.org/2013/08/30/sri-lankas-disappeared-visit-navi-pillay-and-another-commission-of-inquiry/,http://groundviews.org/2011/11/07/destroying-monuments-for-those-killed-disappeared-the-catholic-church-and-the-sri-lankan-government/and http://www.una.org.uk/magazine/autumn-2012-and-winter-2012-special/one-every-five-days-ruki-fernando-disappearances-sri-la

[2] For example, see http://groundviews.org/2016/02/15/where-is-journalist-subramanium-ramachandran-9-years-after-he-disappeared/,http://groundviews.org/2015/08/20/9-years-after-disappearance-of-fr-jim-brown-mr-vimalathas/, http://groundviews.org/2015/02/11/pattani-razeek-no-justice-5-years-after-abduction-and-killing/ andhttp://groundviews.org/2013/01/23/11073/

[3] http://groundviews.org/2013/01/23/11073/

[4] http://groundviews.org/2015/02/11/pattani-razeek-no-justice-5-years-after-abduction-and-killing/

Solidarity Actions and Struggles for Justice in Sri Lanka

First published at http://groundviews.org/2015/12/30/solidarity-actions-and-struggles-for-justice-in-sri-lanka/ on 30th December 2015

On 28th December 2015, the Nuwara Eliya High Court delivered a historic judgment: two men were each sentenced to 23 years rigorous imprisonment and ordered to pay Rs. 200,000 in compensation after being convicted for the abduction and rape of Rita, a 17 year old Tamil girl from Talawakele in the hill country, on 12th August 2001.

It was a happy moment for Rita and those of us who were in courts with her. It was a victory for exceptional courage and determination of Rita and all those who supported her long struggle. But it also showcased the exceptional decay of Sri Lanka’s justice system – more than 14 years to ensure justice for abduction and rape of teenaged girl. In his introduction to the judgement, the Judge also highlighted this delay in justice and also referred to delays at Police stations.

Rita’s challenges, struggles, courage and determination 

It is rare that victims of rape, especially a teenage Tamil schoolgirl from an estate area, will fight for justice. She will be victimised, again and again, in the verbal comments made to her, in the way people look at her, in her village, school, work place. The Police, the Attorney-General’s Department, the Judiciary, the family, the media, and society in general are not sympathetic. Even the sympathetic may not be committed to help pursue justice. She and her family are likely to encounter threats, intimidation, and attempts to discredit her if she decides to pursue justice instead of keeping quiet.

But Rita perused justice with exceptional courage and determination, right from the time she was raped. Her first step after the incident was to go and complain to the Police and then accompany the Police to show the place of the incident and search for the suspects. These steps were referred to by the Judge in positive way yesterday in his reasoning given for the judgment.  The state counsels prosecuting her case had changed 15 times. At least 9 judges had heard her case. There were more than a hundred court hearings – in Kandy and Nuwara Eliya High Courts, non-summary proceedings, and another civil case in the District Courts. She had to go through the trauma of repeatedly explaining what happened to her in detail over a number of years, including in the face of harsh and probing cross examinations, and she even fainted once. But Rita had remained consistent in her story. The Judge also recognized this and highlighted that the defence lawyers were not able to cast doubt

on Rita’s testimony, which appeared to be corroborated by medical evidence, observations of the Police, circumstantial evidence some statements by accused

Rita had lost her father when she was young. Her grandfather died in 2009, midway through her struggle for justice – he had supported and encouraged her, and had given witness in her court proceedings. She pursued justice, despite intimidations to her and family and attempts to offer money and get her to withdraw the case. She was compelled to stay in 21 safe houses for security. She had to leave her friends and familiar surroundings and change school, village. She even had to seek employment in the Free Trade Zone, far away from the hill country she had lived all her life.

Solidarity and support for Rita 

Within a few weeks of Rita being raped, I participated in a protest in Hatton in the hill country, demanding justice for Rita. That protest was spearheaded by Fr. Nandana Manatunga, a Catholic Priest. He has remained an inspiration and good friend since then. He was the director of Caritas Kandy then, but has moved on to take new positions, in various parishes and institutions. But he had never wavered from accompanying and supporting Rita, and was in court yesterday, as he had been with Rita and numerous other victims, hundreds of times. He and his dedicated band of staff and volunteers at the Human Rights Office (HRO), Kandy, had protected Rita; finding safe houses, facilitated her education, employment, provided legal and medical assistance and counselling, provided some financial assistance, and even assisted in family funerals, sicknesses, and Rita’s own wedding. The Catholic Bishop of Mannar appealed to the then President Kumaratunga to expedite the case. National and international campaigns have been organised to exert pressure to expedite the case.

As I write this on my way back in the train from Nuwara Eliya to Colombo, I remembered stages of Rita’s struggles over the years and my meetings with her, what she had told. I also wondered whether there would have been justice even after 14 years, if not for Rita’s unwavering courage, her family’s and others support?

Rare successes due to survivors and victim’s families courage & determination

Courage and determination of survivors and their families have brought about justice in several other cases, in a country where justice has been, and still remains, elusive and inaccessible to many. In many of these cases, there has been long term accompaniment and significant support from individuals and organizations.

In May 2012, a man was sentenced for 20 years and ordered to pay compensation of Rs. 100,000 for raping 13 year old Divya, who like Rita, was also a Tamil girl from the estate community. Earlier this month, two Police officers were sentenced to 7 years rigorous imprisonment each for torturing two persons from Kandy. HRO had also managed to obtain the release of several persons who were detained for long periods under the PTA, after long years of support to the detainees and the families.

In a rare judgement from the highly militarized and war ravaged North, in October 2015, four soldiers from the Army were sentenced to 25 years imprisonment for the rape and sexual abuse of two Tamil women from Vishvamadu, in 2010. A determined struggle by Mrs. Sandya Ekneligoda[1]for six years in Sri Lanka and beyond, supported by strong national and international campaigns, has led to the arrest of several persons, including those from the military and intelligence units, who are suspected to be responsible for the enforced disappearance of her husband, cartoonist and journalist Prageeth Ekneligoda in January 2010.

But, in contrast, to the best of my knowledge, there has been no progress in investigations, no arrests in the 2007 enforced disappearance of Ramachandran Subramanium, a Tamil journalist from Jaffna, despite what appears to be eye witness accounts of military involvement. Is it because his elderly parents could not campaign like Sandya and they did not get the national and international support Sandya got? Tens of thousands of survivors and families of victims of rape and sexual abuse, torture, arbitrary detention, extrajudicial executions, and disappearances await justice in Sri Lanka for decades.

Reforming justice system

The few successes in struggles for justice in Sri Lanka have been largely due to exceptional courage and determination of survivors and victims’ families and the solidarity and support from few individuals and groups, rather than effectiveness of the state and statutory institutions established to deliver justice.

It’s a major fault of our justice system that justice is not accessible and available independently and as of right, and quickly, but rather, appears to depend on a victim’s courage or ability to garner support. 14 years is way too long for teenaged girl who was raped to wait for justice. Thus, in the longer term, reform of the justice system will be key.

Solidarity and accompaniment – how important is it?

At the same time, I believe it is also important for all of us who believe in justice to reflect how much of our time and energy we should invest in accompanying survivors and victim’s families, in their struggles for justice. It would be particularly important to reflect on ways to sustaining accompaniment and solidarity for long years, as the justice system itself tries to wear us down and make us give up. Rita’s case is a good example of sustained struggle, accompaniment and solidarity despite the delays in the system.

I have been privileged and inspired to have worked with and encountered survivors and families of victims, who had braved extreme odds and risks to pursue justice. Rizkhan, the son of my murdered friend Pattani Razeek; Sandya Ekneligoda, who I mentioned above; Mayuri, whose husband was abducted in 2013; Dr. Manoharan, whose teenaged son was executed 10 years ago; some villagers in Mullikulam whose village has been occupied by the Navy since 2007; and several wives of those who have been unjustly detained are amongst those who come to mind. There are more of course.

I have also come to admire the work of individuals and groups in different parts of Sri Lanka and beyond, who have been supporting such struggles. Together with some colleagues and friends, I have also tried hard to support some such struggles. But despite the risks we have taken, personal sacrifices we have made, and our best efforts, we have not been able to do enough. It has been heart breaking to ignore or say “no” to some desperate appeals and being unable to find others who could support where we could not. I have also been frustrated at my inability to motivate and encourage others, including colleagues and friends, to work more with survivors and victims’ families and invest more in accompaniment and solidarity.

Research, campaigning, advocacy, legal action, trainings appear to be considered more important than accompaniment and solidarity.  But in my experience, simple things standing by their side on street protests, like accompaniment to courts and other institutions, visiting them in their prisons and homes, providing moral support, helping with translations, introducing them to others who could help their cause, have been key in survivors and victims’ families obtaining justice, as has been the case with Rita and several others I mentioned above. And it’s likely to be so in the immediate future, till we have more independent, accessible and effective justice system.

[1] For a more detailed account of Sandya’s struggle in first three years, seehttp://groundviews.org/2013/01/23/11073/