The Sunday Times The Focus

In the past, our governments made particular grave errors in its handling of human rights abuses, whether it was pitting itself against the Liberation Tigers of Tamil Eelam (LTTE) or the Janatha Vimukthi Peramuna (a foe quite as deadly and almost as ruthless as the LTTE in its time).

In both contexts, an effective strategy would have been to work within a framework of legal accountability, allowing the State to take into account justifiable concerns of security while emphatically disallowing impunity for blatant human rights violations.

Instead, it merely engaged in the process of covering up violations in the South as well as in the North-East and, at an inevitable point in time, was called to account for its actions both nationally as well as internationally. Such international attention, while not resulting in the reformulation of the framework of emergency laws and practices that made such excesses possible, was sufficient to rein back the worst of the excesses. But, by that time, the damage had been done; the number of recorded disappearances stood between forty thousand and sixty thousand and the harm caused to the national psyche was incalculable.

One can only trust that the lessons of the past have not been easily unlearned today. Perhaps as much as the stringent international pressure that is being directed towards the Sri Lankan State for its lack of effective action in dealing with rights violations, these lessons of the past may also be why the Rajapaksa Presidency has now conceded to invite an international human rights monitoring mission. The concession has been accorded a mixed welcome from many quarters.

Predictably, the ultra nationalists have scorned the idea on the basis that this will afford another opportunity for unwanted international intervention. On the other extreme, domestic human rights monitors have greeted this proclamation with relief amidst the expectation that such a mission will go a long way towards alleviating the intense grievances of ordinary people targeted in the conflict.

Responding to the Government's statement, the United Nations Special Rapporteur on Extrajudicial Executions, Prof. Philip Alston's comments are of some interest. In the first instance, while re-iterating his condemnation of the barbaric acts engaged in by the LTTE, Prof Alston observes that "…it is an enduring scandal that convictions of government officials for killing Tamils are virtually non-existent, and many Tamils doubt that the rule of law will protect their lives." His point that the monitoring mission should be independent of any peace process is also important. Thus, "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."

Whichever it is, there is little doubt that establishing a mission that will act as a force towards the good, will not be easy. On a previous occasion, this column had commented in the manner in which the office of the United Nations High Commissioner for Human Rights in Nepal had established and worked its mandate. Similarly, it is imperative that the members of such a mission for Sri Lanka should be individuals whose integrity is tried and tested in the international human rights field. The comparison that is drawn with the Norwegian led Sri Lankan Monitoring Mission (SLMM) is stark. The SLMM is firstly and primarily a political mission chosen for its facilitation task due in large part to its acceptability to the LTTE. And the suspicion with which many Sri Lankans view the SLMM has, at times, been justified by its hasty responses. One good example in point are its unwarrantedly quick conclusions that government forces have been responsible for the brutal shootings at point blank range of seventeen aid workers belonging to Action Contra L' Faim, a non governmental organisation working in Sri Lanka since the 1990's.

While this may well have been the overriding views expressed by those to whom the SLMM spoke to, including the family members of the victims, its articulation as an official finding at this early stage is somewhat unfortunate given that such a statement lacked firm evidence and would undoubtedly have been pounced upon by its detractors for that very reason, which indeed, is what happened immediately thereafter.

The killing of the aid workers, in fact, exemplifies the fate of non-combatants who are strategically targeted by either party to the conflict. Action Contra L' Faim's offices in the effected North-East employed several Sinhala workers as well as Tamils and Muslims. And for those who desire enlightenment, the last statement is a rider occasioned by some bewildering comments that I found in newspapers recently questioning as to why those who were killed belonged to only two ethnic identities in Sri Lanka. Is the assumption that the general outrage would have been greater if one or two of the workers who were killed were Sinhalese? Or would the assumption that these workers were allied with the LTTE lessen to that extent? Surely the last question becomes redundant given the number of Sinhalese now being accused of collaborating with the LTTE for filthy lucre or worse? These are matters that indicate the deplorably ill judged mentality of those who are emboldened enough to pose these questions.
And there are other assumptions that are factually incorrect. The aid workers were based in Trincomalee and not Mutur itself. They had been requested to travel as part of the normal duties of their organisation to Mutur on 1st August 2006 shortly before the town was besieged by intense fighting between government troops and the LTTE. Unable to travel back to Trincomalee, the aid workers had stayed at the Mutur office of their organisation and had maintained contact with the head office till the early hours of 4th August (Friday) but thereafter lost contact.

Desperate, ACF had contacted the police, the army, the LTTE and the ICRC but was not able to obtain any information on the whereabouts or the well being of the workers. On 5th August 2006, they were told that there were some bodies lying in the office compound and on the 6th August 2006, they were further told that there were fifteen bodies lying in the compound, who had been shot at point blank range. On 7th August 2006, a team from the office travelled to the Mutur office and identified the fifteen bodies as well as two more bodies.

In principle, there is no doubt that that these are brutal acts that contravene Sri Lanka's Constitution as well as principles of international human rights and humanitarian law, particularly articles of the Geneva Convention, the International Covenant on Civil and Political Rights and the Convention Against Torture. Currently, the controversy over whom exactly was in control of Mutur at the relevant time (both the government and the LTTE had asserted that their forces were in control) is being furiously maintained by defenders of the Government on the one hand and the SLMM, on the other. Sadly, the fate of the families of the victims have received less media attention.

But matters then have become even more curious. This week, the order of the Magistrate of Mutur transferring the case to the Anuradhapura court was recorded to be consequent to a phone call given to him by the Secretary to the Ministry of Justice. Clearly, this order is wrong as the Secretary, Ministry of Justice does not have legal authority to order a transfer which has to be either by order of the Court of Appeal or by the Attorney General (AG). In this case, the AG has not assumed responsibility and there has been no transfer order by the Court of Appeal either.

The fact that the transfer was by political order (ie; Justice Secretary) shows the manner in which the court proceedings are sought to be subverted and very blatantly at that. Anuradhapura is situated in the North Central province (a predominantly Sinhala area) where the perception as well as the reality being that, given the extraordinary sensitivity of this case, witnesses will be reluctant to attend as opposed to the matter being continued in Trincomalee.

In effect, this is an extremely illustrative example as to why domestic legal mechanisms cannot independently and effectively deal with gross human rights and humanitarian violations, why the rule of law cannot be secured and why an international human rights monitor is needed. Undoubtedly, what happens in this case later on will be monitored with the greatest attention.

Conclusively, the argument that none of these meticulous safeguards apply to the LTTE is very true. But to equate the State with the LTTE (ie; to say that if one can commit blatant human rights violations without being called into account, so can the other), is to give way to the own argument of the LTTE; that it is on par with the Sri Lankan State. On the contrary, the State cannot become terrorists. If it does so, then it loses all claims to modern statehood. This is one distinction that we should keep firmly in mind. If this means that we should concede to international human rights monitoring if we cannot, as is commonly said, "put our own house in order," then so be it.