Renewed need for independent human rights presence

On 2 January 2008, the Sri Lankan government called off the 2002 ceasefire agreement with the Liberation Tigers of Tamil Eelam (LTTE), a quasi-governmental entity fighting for an independent Tamil state. 

The ceasefire agreement had been severely undermined by the resumption of hostilities in 2006. However, the formal termination of the agreement indicates a deliberate hardening of positions by certain elements in the Sri Lankan government, clearly spurred by recent military successes in the LTTE strongholds in eastern Sri Lanka and hopeful of similar gains in the north. 

Peace vs arms 

The international community has rightly warned of the pitfalls of a move that effectively forecloses chances of a negotiated settlement. In its response to the abrogation of the agreement, India sensibly stated: “…[W]hat is required in Sri Lanka is a settlement of political, constitutional and other issues within the framework of united Sri Lanka with which all communities in Sri Lanka are comfortable… We strongly believe that there is no military solution to the issue.”[1] Driving the point home, Indian Prime Minister Manmohan Singh declined an invitation to attend Sri Lanka’s Independence Day celebrations in February.[2] 

The international community must, however, back its pleas for peace by reviewing its policy of arms sales to Sri Lanka. A number of countries – including China, India, Israel, the United States, as also the Czech republic, Slovakia and Ukraine – have continued to provide weapons to Sri Lanka, purportedly for use against the LTTE.[3] India is reported to have recently increased military aid to Sri Lanka, which New Delhi claimed consisted of ‘largely defensive’ equipment[4]. Defence support is reportedly also provided by Pakistan, particularly to the Sri Lankan Air Force (SLAF) [5]. Colombo claims the air strikes target LTTE infrastructure, but the SLAF is known to have indiscriminately bombed Tamil areas after hostilities resumed in 2006, killing a number of civilians.[6] 

The United States recently withheld all but a small amount of military aid to Sri Lanka, making any further aid conditional on prosecution of military officials responsible for human rights abuses, providing access to humanitarian groups and the media to the Tamil areas, and allowing the establishment of a UN human rights office.[7]  

The rest of the international community must follow the US example. Further, military aid must be made conditional on the pledge that the Sri Lankan government will not continue with indiscriminate aerial bombing and shelling of Tamil areas. 

More of the same 

In a conflict that has already seen a large number of human rights violations and high levels of impunity, the abrogation of the agreement is likely to result in an escalation of violence. Independent and impartial reports on violations will also be hard to come by. The Sri Lanka Monitoring Mission, mandated by the ceasefire agreement to report on violations of the agreement by both parties to the conflict, will now come to an end. The International Independent Group of Eminent Persons (IIGEP), set up to observe investigations and inquiries carried out by the Presidential Commission of Inquiry on human rights violations (COI), recently complained that its observations were being persistently disregarded by the Sri Lankan government.[8] It reportedly said COI sessions did not include the victims and their families, and sometimes not even the IIGEP.[9] 

The end of the ceasefire makes an independent monitoring mechanism indispensable. However, the Sri Lankan government has been increasingly hostile to calls for international observers, claiming its domestic mechanisms are more than adequate. 

During her recent visit to Sri Lanka, Louise Arbour, the United Nations High Commissioner for Human Rights called for an Office of the UN Commissioner for Human Rights to be set up permanently in that country. Currently, a Senior Human Rights Adviser (SHRA), attached to the United Nations Country Team in Sri Lanka, works to build the human rights capacity of local institutions, civil society and the United Nations.[10] The United States’ Department of State also called on Colombo to “reconsider its opposition to expansion of the OHCHR office and mandate in Sri Lanka”. 

In response, Mr. Mahinda Samarasinghe, the Minister of Human Rights and Disaster Management in Sri Lanka, said no “office” exists for the Office of the High Commissioner in Sri Lanka to expand. He added, “Any discussion of its "expansion", therefore, will be redundant. The ambassador of Sri Lanka to the United Nations, Dr. Dayan Jayatilleka, further rebuffed claims that Sri Lanka needed a permanent OHCHR office stating that, “…we are also justly proud of our national institutions.”[11]  

The Human Rights Commission of Sri Lanka (HRCSL), however, is a shadow of its former self. Recently, the International Coordinating Committee of National Institutions downgraded its status from full member to observer after concluding that the appointment of its commissioners had been irregular and that the commission’s functioning had not been balanced and objective. As Human Rights Watch pointed out, the commission had been “absent and inactive” even as human rights abuses against civilians increased from mid-2006 onwards.[12] 

Need for monitors 

The first and arguably the strongest reason for the establishment of a permanent office of the OHCHR is the protection of civilians from human rights violations. The LTTE has continued its deliberate attacks on the government military and Sinhalese civilians in addition to violently repressing Tamil dissenters. In response, the government is using extrajudicial killings and enforced disappearances as part of a counter-insurgency campaign. There have been increasing reports of enforced disappearances and unlawful killings, including over 1000 reported extrajudicial executions and unlawful killings in 2006 and hundreds of disappearances across the country.[13] The government of Sri Lanka itself has acknowledged that some of its defence personnel may be involved in abductions, killings and disappearances.[14]  

Further, the official website of the Sri Lankan government’s secretariat for the co-ordinating of the peace process (SCOPP) notes that “Sri Lanka, as a party to a number of international human rights treaties and as a member of the UN Human Rights Council, is taking every possible step to protect and preserve human rights in the country.”[15] In the same breath, it goes on to say that, “...the Government of Sri Lanka and the Sri Lankan Armed Forces are not deterred by the attempts made by the LTTE to place the blame on the Government Sri Lanka for the myriad human rights violations perpetrated by the LTTE.”[16] This indicates a dangerous bias that overshadows the impartiality of the government and more importantly the judiciary.  

Further, in a 2006 ruling, the Supreme Court of Sri Lanka held that Sri Lanka’s accession to the Optional Protocol to the International Convention on Civil and Political Rights, which allows individuals to send complaints to the United Nations Human Rights Committee after having exhausted domestic legal remedies, was unconstitutional.[17] Home for Human Rights, a reputed civil liberties organisation in Sri Lanka, expressed concern that the Supreme Court judgment holding that Sri Lanka cannot be bound by the Optional Protocol without going through a long process of constitutional amendment, could be the first step towards abdication of all State obligations under international law.[18] It supported the call for an independent and international human rights presence in Sri Lanka as “only an independent Commission of Inquiry consisting of figures of international repute in the field of human rights will generate confidence in such a mechanism and extend some guarantees of impartiality and confidentiality…”[19] 

A further argument for the establishment for a permanent OHCHR field presence in Sri Lanka is the history of impunity for perpetrators of violations of international human rights and humanitarian law demonstrated by the failure of authorities to investigate and prosecute such perpetrators. This is evidenced by the investigation in the murder of the 17 humanitarian workers of ‘Action Contre la Faim.  

The second argument by Colombo is that Sri Lanka is opening itself up to international scrutiny, support and assistance. Dr. Jayatilleka supported his argument by showcasing the visit of Dr. Walter Kälin, the Representative of the Secretary General on Internally Displaced Persons. The agreement to a visit by Mr. Santiago Corcuera, Chairperson-Rapporteur of the United Nations Working Group on Enforced or Involuntary Disappearances was also highlighted to make the point that by remaining open to scrutiny by all the core treaty monitoring mechanisms, Sri Lanka did not require a permanent field office of the OHCHR. [20] 

In her statement on 13 October 2007 in Colombo, Ms. Arbour discussed the key institutional failures in the protection of human rights in Sri Lanka. She observed that “there is a lively national debate about the need for international support in human rights protection. In light of the gravity of the reported ongoing abuses, and in particular of threats to life and security of the person, I believe that we should urgently resolve our ongoing discussions about the future of a productive relationship between OHCHR and the Government of Sri Lanka.” In response, Somawansa Amarasinghe, the leader of the Sinhalese chauvinist Janatha Vimukthi Peramuna (JVP), asked Ms. Arbour “why she was keen on establishing one of her offices in Sri Lanka and not in Afghanistan, Iraq [or] even in [the] US to investigate allegations of human rights abuses in Guantanamo Bay.”[21] 

The argument is specious. Sri Lanka must ask itself if it prefers being compared to other states that carry out or condone human rights violations, rather than looking inwards and finding the best possible way to guarantee the lives and liberty of its citizens. The use of indiscriminate violence by the LTTE can on no account be condoned. However, the Sri Lankan government must also bear the blame for the often arbitrary and excessive application of force that has killed, wounded and displaced a large number of ordinary Tamil civilians. Its refusal to seriously consider the devolution of power to the provinces is the greatest obstacle to a peaceful resolution of the conflict.  

The international community, particularly Sri Lanka’s neighbours, must continue to emphasise this crucial point. It must, in the meantime, continue to press for independent monitoring of the conflict even as Colombo seeks to push the war to the north. Establishing an OHCHR field presence with a robust mandate is currently the only viable option in this regard.

 Human Rights Features