Jonathan Steele has written a commentary in The Guardian (London), “Failure can aid the science of comparative peace: Talks to end the war in Sri Lanka will not be held in vain if they eventually become a model for resolving other conflicts,” that looks at the Sri Lankan peace process in comparative perspective and concludes that:

In the Sri Lankan case the best tactic for the Norwegian mediators may be to highlight the issue of human rights. Arguing over the myriad violations of the 2002 ceasefire, and especially any effort to apportion blame, would guarantee failure at Geneva this weekend. It would be more useful to focus on minimising casualties among civilians and helping displaced people to go home, safely and under guarantee of protection, before yet more camps are created.

In a recommendation that could apply to other conflicts, Professor Philip Alston, the UN’s special rapporteur on extrajudicial executions, urged the general assembly this week to appoint international human rights monitors for Sri Lanka. He pointed out that each side, directly or through proxies, has used assassinations to weaken the other, or to enforce discipline. At various times both have targeted civilians.

Recommending that the current international monitors (now under Swedish control) also investigate rights abuses, Alston wants the new team to be separate from the one that looks into ceasefire violations. Breaches of international humanitarian law are different from, and in many cases more serious than, violations of a particular time-bound and locally negotiated ceasefire. The investigators must be forensically trained, Alston says, and have the right to name suspects so that the current practice of denying atrocities is weakened.

These are excellent suggestions that should be followed up in Geneva. The LTTE and the government both claim not to be involved in attacks on civilians. Here, at least, there is common ground. Flesh could be put on that pledge by having them invite human-rights monitors to check it out. Whatever doubts there are about the value of the Geneva meeting, it will not be in vain if it makes progress here. The talks could even become a model for resolving or at least ameliorating conflicts in other countries.

Human Rights Watch has sent letters to the President of Sri Lanka, Mahinda Rajapakse, and to the General-Secretary of the LTTE Political Wing, S.P. Tamilselvan, calling on the Government and the LTTE “to urgently institute concrete measures to protect civilians and promote respect for human rights,” including “the establishment of a United Nations human rights monitoring mission in Sri Lanka.”

Reporting from Vavuniya, the AFP covers killings in northern Sri Lanka:

Before the weekend was over, three more men would be pulled from their car and killed by death squads that have turned the lonely roads and forests around this frontline town in northern Sri Lanka into no-go zones.

“It might be two or three getting killed each day and it’s unclear who’s carrying out these crimes,” explains Thorfinnur Omarsson, spokesman for the Sri Lankan Monitoring Mission — the Nordic peace observers who are called out every time another body turns up in the weeds.

Both the government in Colombo and rebel Tamil Tigers have accused the other side of murdering civilians.

But Omarsson, expressing the frustration felt by many of those trying to keep the island nation from sliding back into all-out war, says “the killing goes both ways … and there are also paramilitaries”.

“It’s always quite unpredictable and tense … it’s happening all of the time,” he adds.

. . .

As the government and LTTE negotiators prepare to meet in Geneva to try to salvage Sri Lanka’s peace process, a special United Nations envoy has condemned both Colombo and the Tigers for what he says are “killings being allowed to run unchecked”.

Philip Alston, the UN’s special rapporteur on extrajudicial, summary or arbitrary executions, wrote in a recent report: “Every such killing represents a major setback … and every retaliatory death plays into the hands of those whose interests do not lie in the restoration of peace.”

He labelled the LTTE’s denials for many of the attacks ”unconvincing”, but also said the government had failed to investigate the killings, calling for the full-time presence of international rights monitors.

In remarks made in Colombo on Friday, Richard A. Boucher, Assistant Secretary for South and Central Asian Affairs, United States Department of State commented on proposals for human rights monitoring in Sri Lanka.

QUESTION: Shimali Senanayake for the New York Times. Two questions for you, sir. You mentioned that we need to investigate human rights abuses. How does the U.S. feel about the UN involvement in a human rights monitoring mechanism? Secondly, as the key supporter of Sri Lanka’s peace process, what kind of results do you expect from the Geneva talks on the 28th and 29th. What would be the international community’s benchmark for success of these talks? Thanks.

ASSISTANT SECRETARY BOUCHER: Very New York Times sort of questions. We need to start with the basic fact that there is a democratically-elected government here in Sri Lanka. A democratic government that is pledged both personally, politically and constitutionally, to the respect and defense of human rights. Therefore, that primary responsibility to respect and defend human rights is with the government. We look to the government to carry out those responsibilities. We do believe the international community can have a role in helping — whether it is with expertise, such as the Australian forensic team that is here helping with the investigation, or whether it is with the basic monitoring mechanism to observe the situation, to encourage progress and look at where that progress could be made better — that is the kind of commission that we are trying to put together with the government. They have suggested that the UN Human Rights Commission have a role in this. They have suggested that others, including some of the Co-Chairs, have people on this commission. We see this as a group of people who have a strong interest in human rights, who know a lot about how it can be respected and pursued and therefore can observe what the government is doing; observe how the government exercises its responsibility and also look at the human rights situation throughout the island and perhaps make suggestions on how they respect for human rights observance can be improved.

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.

Today, Philip Alston presented his report to the Third Committee of the General Assembly. The report and the text of the statement are available below.

Preliminary summary of the discussion in the General Assembly

• Report
• Statement

Philip Alston’s report to the 61st session of the General Assembly has been issued. The report includes sections on:

* Nigeria
* Sri Lanka
* The role of “soft law” standards
* The use of lethal force by law enforcement officials
* The concept of due diligence and disappearances
* Due diligence and deaths in custody
* Balancing State responsibilities against legal doctrines seeking to empower victims

The report makes three recommendations to the General Assembly:

65. The General Assembly should appeal to all States that have so far failed to respond meaningfully to the requests for visits made by the Special Rapporteur to take appropriate action. In particular, the eight members of the Human Rights Council that have not responded should be called upon to honour their undertakings to cooperate fully with the Council and its procedures.

66. A thorough and systematic investigation of all killings that occurred in Gaza, Lebanon and northern Israel since the beginning of June 2006 is indispensable.

67. The General Assembly should call upon the United Nations Secretariat to establish a full-fledged international human rights monitoring mission in Sri Lanka.

• Report

The New York Times published an editorial today – “Monitoring a Little-Noticed War ” – calling attention to the importance of establishing an international human rights monitoring presence in Sri Lanka.

. . . A Buddhist-led government battling a Hindu separatist group in a land with no oil draws little international interest — and no pressure on either side to end such horrors. Hoping to change that, the United Nations High Commissioner for Human Rights, Louise Arbour, called last month for international human rights monitors to be sent to Sri Lanka. All countries with influence, starting with the United States and Japan, should push the Sri Lankan government to agree.

Colombo is eager for international aid and support in its fight against the Tamil Tigers. With U.N. rights monitors bearing witness, the government may feel pressure to rein in army and police abuses. Monitors could also bolster the country’s weak judicial system, which barely investigates crimes against Tamil civilians. The guerrillas, who count the forced recruitment of child soldiers among their crimes, are less vulnerable to international shame. But shining a spotlight might help persuade overseas Tamils to choke off funding.

The Asian Centre for Human Rights has published a commentary, “Sri Lanka's proposed International Commission of Inquiry: OHCHR, eminent organisations and persons - watch out,” dealing with the proposed commission of inquiry and endorsing Philip Alston recommendations for effective monitoring in Sri Lanka.

On 12 October, Ms Ferrero-Waldner, European Commissioner for External Relations, responded on behalf of the European Commission to a written question from Sajjad Karim MEP regarding its views on the recommendations made by Philip Alston:

The Commission has examined the Report presented by United Nations (UN) Special Rapporteur Philip Alston and shares the analysis about the seriousness of the situation in relation to Human Rights, which are both at the root of the Sri Lanka conflict and one of the main direct consequences. There is no doubt that given the serious violations, Human Rights are gaining much more importance in the peace process and the discussions which are on-going concerning a possible settlement.

In relation to the specific recommendations contained in Philip Alston’s Report the Commission considers that they are well founded and they certainly deserve to be seriously considered by the parties and monitored by the international community. The recommendations will be raised in the framework of our dialogue with the Parties in Sri Lanka, which we sincerely hope will be receptive to finding solutions to these problems.

The Commission supports the proposal for the need to strengthen Human Rights monitoring. One possibility is to support an independent international monitoring mission for Sri Lanka, as suggested recently by the Special UN Rapporteur Philip Alston, but it is also important to work towards strengthening the national institutions which can guarantee a sustainable monitoring capacity.

. . .

In order to look immediately at the country’s Human Rights situation, the Co-Chairs have offered to send a mission of high-level experts to review the current situation and suggest further actions before the end of October 2006. The experts would assess the state of local capacities and institutions with regards to protecting and monitoring human rights and humanitarian norms, and would make recommendations to address violations that have been committed and to establish sustainable mechanisms and structures that could prevent further violations by all parties involved. The experts would look at the potential for international support to improve the situation. The Commission believes that this could be a useful first step to deal with the existing crisis. As a member of the Sri Lanka Co-Chairs, the Commission will certainly continue to follow it and participate in the Co-Chairs Human Rights experts’ missions.