Comments on discussion of Sri Lanka in the GA report

The discussion of Sri Lanka in the report to the General Assembly was covered in The Island and TamilNet, and Kishali Pinto Jayawardena discussed its conclusions in her column in the Sunday Times.

Kishali Pinto Jayawardena, who is head of the civil and political rights program at the Law & Society Trust in Colombo, wrote:

There is no doubt that UN Special Rapporteur on Extra Judicial Executions, Prof. Philip Alston’s exceedingly pungent report on Sri Lanka to the General Assembly of the United Nations, (to be delivered on 23 October 2006), has important implications for this country.

His recommendation that “the General Assembly should call upon the United Nations Secretariat to establish a full-fledged international human rights monitoring mission in Sri Lanka” is key to the Report. This recommendation is sure to raise the hackles of the extreme lunatic fringe in Sri Lanka who insist on looking at efforts to improve the rights protection of individuals as part of some deep seated international conspiracy.

This column has emphasized time and time again that the critique advanced of the role and the functioning of the Norwegian led Sri Lanka Monitoring Mission (SLMM) may be justified to some extent, given some of its ill judged interventions. One good example in this regard was the attribution of responsibility (hardly before the dust had settled on the incident) on Government forces in respect of the execution style killings of seventeen aid workers in Mutur. This was used to good effect by loudly outraged government spokesmen in pointing to the mala fides of the SLMM. In the process, these findings of the facilitators (or mediators as the case may be) were counterproductive to ensuring justice for the victims of the incident.

However, the critique of the SLMM does not mean that a rights-oriented monitoring mission, (staffed by jurists and activists who are recognised for their integrity and commitment), should be equally scorned. On the contrary, Sri Lanka has urgent need of such a mission given the complete inability of our domestic processes of investigations and inquiry to be impartial and effective in this period of utmost chaos.

But let us look more closely at what Prof. Alston observes in his Report (submitted pursuant to General Assembly resolution 59/197). He re-iterates that civilians are not simply “caught in the crossfire” of this conflict but rather, intentionally targeted by both sides (viz; the LTTE as well as Government forces). In the context of his well argued point that “the conflict between the Government and LTTE is ultimately a struggle for legitimacy, not territory”, he castigates the LTTE sharply for their blatant human rights violations. His reflection that “no outside observer could wish rule by LTTE on the entire Tamil community, much less on the Sinhalese and the Muslims” would be shared by many of us in this country.

Almost immediately however, he warns that the Government should not interpret the widespread proscription of LTTE as a terrorist organization as an endorsement of its own record and goes on to observe that “Neither its past nor its present conduct would justify great faith in its ability to respect equally the rights of all citizens.”

The undermining of domestic independent oversight bodies such as the National Police Commission and the National Human Rights Commission, “both (of which) have fallen victim to politics” also forms an important part of this Report. While he points out that “It is not my place to try to resolve a domestic constitutional crisis, Prof Alston stresses the incompatibility of the current “solution” (of direct Presidential appointments disregarding the Constitutional Council) with international standards. His caution that “There is no worse means by which to ensure an oversight body’s independence from the executive than for the executive to directly appoint its members” is crucial in this regard.

The Report recommends that the international monitoring mission should command a high level of investigative and forensic capacity. Prof Alston states thus; “This requires, inter alia, persons with police training, persons with medical training, and Sinhala and Tamil interpreters. It should be independent of any peace process. Two implications of this are that regardless whether the ceasefire agreement (CFA) remains in force, the monitoring mission should not be called upon to investigate violations of CFA. The distinction between violations of human rights and humanitarian law, on the one hand, and of violations of a ceasefire agreement, on the other, must be preserved. The monitoring mission should report to a neutral body.”

Relevantly, he cites the successful prosecution of the soldiers who raped and killed Krishanthi Kumaraswamy (and her mother, brother and a friend who went in search of the missing schoolgirl) as the one exception to an otherwise extremely dismal record of prosecution successes in the North.

In this context, it is useful to recall that very many years back, the case of Wijesuriya and Another vs the State (77 NLR, 25) concerned one of the very first successful prosecutions of state agents for acts of degradation committed under the supposed authority of military law. In more recent times, both the Krishanthi Kumaraswamy case and the Embilipitiya Disappearances case resulted in convictions, the former regarding incidents in the North and the latter regarding incidents in the South. However, Wijesuriya’s Case (even though decades before) affirmed some remarkably strong judicial pronouncements emphasizing rule of law norms in times of conflict, the likes of which we are yet to see thereafter in our courts.

In this case, two army soldiers were prosecuted for the attempted murder of a suspected insurgent held in army custody after she had been arrested by the police. The accused claimed that the shooting occurred during combat where the first accused who first shot at her, was only carrying out the order of his superior officer to destroy (’bump off’) the deceased. The prosecution urged the court to hold that, whether there was a period of combat during the incident or a state of actual war, in either case, there could be no justification for the shooting of a prisoner who was held in custody. The Court of Criminal Appeal agreed with this submission. It pointed out (unanimously) that no soldier could obey an order of his superior when such order is manifestly and obviously illegal and then plead mistake of fact in good faith (a defence available under Section 69 of the Penal Code). Provisions of international humanitarian law were referred to,
in particular, the treatment of prisoners under the Geneva Conventions which had been ratified and accepted by Sri Lanka at that time.

The Court’s denunciation of terms such as “in combat”, “in the field”, “prisoners of war”, and “military necessity” which were sought to be used by counsel appearing for the accused to justify the brutal acts committed by them was notable. The argument that when a state of emergency is called, the ordinary civil law of the land is pro tanto suspended, thus entitling the military to engage in whatever acts of brutality in pursuance or supposed pursuance under emergency powers conferred on them, was not accepted. The court unanimously affirmed the convictions of the accused and by a majority, affirmed their sentences of sixteen years rigorous imprisonment.

This case manifests a successful prosecutorial strategy and a relatively sensitive response by the judiciary. However, an increasingly weak prosecutorial will and a corresponding reticence by judges to intervene in issues of rights and justice became evidenced in later years, with very few exceptions. The consequent failure to impose accountability for rights violators has now formed the mainstay of the current call for international human rights monitoring.

Taken objectively, what reason could the Government advance for its failure to ensure that rogue elements in its services are brought to account? Is it denying (astoundingly) that extra judicial killings take place at all, for which its agents are to blame? Does it maintain that its domestic laws are insufficient for the purpose of bringing the “perpetrators to justice”? Or does it say that factors such as the absence of an effective witness protection system is to blame?

If the latter is the case, (as pointed out in this column last week), it is the Government itself that again has to take the responsibility for not putting such a system into force despite its patent need for so many decades. Until a pattern of good prosecutions is evidenced to bring our rogue state agents to justice, we cannot afford to arrogantly disclaim the need for outside monitoring by the United Nations if needs be.