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by Coalition of Muslims and Tamils for Peace and Coexistence

PART 1: The Commission of Inquiry: the search for truth

In November, 2006, the Government of Sri Lanka, under pressure from various quarters, following the onset of full scale war and rising human rights violations on the part of different armed forces and groups, set up the Commission of Inquiry (CoI), to investigate fifteen (later sixteen) cases of egregious human rights violations that had taken place from 2005 onwards, including the deaths of five students in Trincomalee in January, 2006, the aerial bombing of school children of Sencholai, the slaying of 17 ACF workers and the massacre of fleeing Muslims in Kiranthimunai, all in August 2006, the assassinations of Lakshman Kadirgamar and Kethesh Loganathan in Colombo in August 2005 and 2006, the massacre of 11 Muslim workers in Radal Kullam (Radella) in September, 2006 and the killing of 94-odd navy personnel in Digampattana, near Habarana in October, 2006. The Commission adopted a two fold process to investigate the cases and to inquire into how the investigations had been hitherto carried out: closed door inquiry followed by public hearings. It was to be assisted by an International Independent Group of Eminent Persons (IIGEP), which would monitor the process. At the time it was set up, it was welcomed by many, though rather cautiously. Today, after more than a year, we the public have seen no let up in the human rights situation. On the contrary, there has been a stupendous rise in the numbers of blatant violations, the trend spreading island wide, though the situation remains the most intense in the conflict ridden areas. The Commission was to act as a deterrent, to put pressure on all armed and powerful forces to act with restraint. But that has not happened.

This calls for an assessment of the role played by the Commission, the nature of the progress it has made, its impact on the human rights situation and its image and standing among the public of the country. In our assessment of the role of the Commission and its commissions and omissions and the role that the Government has played in obstructing/furthering the cause of justice, we wish to centre the concerns of the people here, both those of the immediate victims of these blatant violations and the people at large. We appeal for justice and the democratisation of the structures and processes imparting justice.

The fundamental question facing us is: Whom does the Commission serve? This brings up a number of related issues. Who is the Commission accountable to? What is its relation to the victims, their families and other people directly affected by the violations? What is its role in strengthening the systems and processes of justice and accountability, to salvage democratic forms of imparting justice from further deterioration? Or, is it at the mercy of a governmental attempt to offset international criticism regarding the indifference of the state to investigating the cases or to prosecution or to addressing the structural aspects that led to the violations in the first place, such as the culture of impunity? We note, with concern, that there has been little public reportage on the proceedings of the Commission. The public has access to, apart from a few newspaper articles, exchanges of letters between the Commission and the IIGEP and reports by NGO activists, both national and international, that comment on the goings-on and the challenges faced by the Commission. Based on this, we highlight some of our critical concerns as to what is and has been happening with the Commission.

The Commission has faced a number of obstacles in carrying out its task, resulting in unnecessary delays in conducting its affairs. This has stymied the smooth running of the Commission. One year on: two cases have been investigated; inquiry on another has commenced while the public hearing of one of the investigated cases is under way. The single biggest obstacle to the efficient functioning of the Commission is the counter-measures taken by governmental agents, aimed at thwarting and paralysing the work of the Commission. Furthermore, the credibility of the Commission itself has become a question, given its collaboration with the Government and given that it comes under the Government’s command in the final analysis. The government’s interference in the proceedings is unethical, turning the process into a farce rather than a genuine investigation procedure. The Attorney General’s Department has been a key player in the investigation process of the Commission. This in itself is highly problematic as the Commission is meant to investigate the way investigations have been carried out so far. The Attorney General’s (AG) Department is implicated in the investigations of the sixteen cases taken up for review and scrutiny by the Commission. The Commission’s consultation of the AG’s department, as a ‘neutral’ body, makes it, by default, complicit in the biases of the Department. In renewing the mandate of the Commission in November 2007, the Government proceeded to impose further conditions on it, stipulating in one instance that the Commission had no right to comment on the role of the AG’s Department. This smacks of an amnesty deal for those perpetrators of the violations attached to state organs. It is in effect a cover up. The AG’s Department is exempt from scrutiny and gets off scot-free. This seriously undermines the credibility of the Commission.

From its very inception the Commission has faced a very basic problem-funds. While at the beginning the Commission publicly stated that it could secure the release of promised money from the Treasury, it became clear as time went on that this would be a laborious process involving significant red tape. International donors had provided some aid for this initiative so it cannot be argued that the State lacked funds. Over the year the Commission made repeated appeals to the President’s Office seeking assistance. Instead of fast tracking the requests, the President’s Office promised to assist but in fact did little. To add insult to injury, the President’s Office had turned round and questioned the validity of the Commission’s request. The President’s office has gone to the extent of inquiring from the Commission as to why they needed to provide tea for anyone other than the Commissioners. The absurdity of the situation can be explained by an inane and yet telling example. The Commission was permitted to purchase the provisions for plain tea while milk was sent over from the President’s Office stock. The cost cutting measures imposed on the Commission may sound absurd, but in reality it is tantamount to a form of passive harassment. On one occasion, the President’s Office threatened to slash the salaries of everyone serving on the Commission, including those of the Commissioners and the private counsel. The salaries were subsequently restored after a newspaper article highlighted the ridiculous situation.

The financial situation of the Commission makes one clear point-the utter disregard of the President for not just the Commission’s investigative process but for the Commissioners themselves. The President’s conduct, his treatment of the Commissioners is disrespectful, to put it mildly. The eight individuals representing the Commission are highly respected not just in Sri Lanka but internationally, for having served their country and its people in various positions; this includes a Supreme Court Judge, Commissioners on independent commissions (including previous disappearance and human rights commissions and the National Police Commission), a Chancellor of a University, two Ambassadors, two Secretaries of Ministries and a Solicitor General. The Government exploited the reputations of these eminent persons to counter charges regarding the deplorable and deteriorating standards of human rights in the country. Having chosen them for their integrity, the President seems determined to undermine and disregard the standing they have among the general public. The President has refused to consult with them, despite appeals by the Commissioners. If the Commission, which they serve, ends up as a farce, these individuals too will risk losing their credibility in the eyes of the public. It is now common knowledge that the letters that the Commission sent to the President’s office are just filed away and not read-the President’s office has been shameless enough to tell the Commission this. The President’s office responded just once, not to the appeals of the Commissioners, but when a newspaper article in speaking of the problems faced by the Commissioners referred to this indifference. The response blatantly denied that there had been any requests for such a meeting. Interestingly a meeting was called after that. The best chance that the Commission has toward having its issues addressed is to write to the Media with copies attached to the President’s Office. It has become apparent that the State is also determining on the line up of the cases to be taken up and has accordingly used the Commission’s finances for that purpose without officially informing them. We recognise that the Commission need not take up the cases one by one, following the numbering in the warrant, but that should be a decision made by the Commission, not by the Government.

The Commission was to be assisted in its task by the International Independent Group of Eminent Persons who was to monitor the process. The investigative mechanism was set up with that intention. From early on relations between the Commission and the IIGEP were tense and resulted in frosty exchanges between the two groups. The IIGEP seems to have not understood the cultural or political contexts in which they found themselves, and have not been able to see things from the perspective of the Commissioners, in turn causing friction between the IIGEP and the Commissioners. The IIGEP trod on the sensitivities and feelings of the national Commissioners with their, sometimes, clumsy overtures. It eventually became a competition for eminence between the Commissioners and the Eminent Persons. In their rhetoric of self-righteousness, raising abstract concepts like national pride and the cause of justice, both parties forgot the claims of the victims. The IIGEP, while making critical points on the structural problems in the Sri Lankan justice system, the functioning of the Commission itself and the situation in Sri Lanka, found themselves outmanoeuvred by the Government and the AG’s Department, which continued to do everything to make their presence irrelevant while using them to enhance the state’s human rights credentials.

In December2007 the IIGEP announced that they would withdraw by March 2008. Given the current state of affairs, where the Government has used the Commission as a show piece for the international community while obstructing its effective functioning at the same time, the IIGEP had little choice but to resign. But we feel that they could have done it in a more constructive manner. What will be their legacy? Their statements are an accurate reflection of the state of the rule of law in this country and capture a sense of the of the structural inadequacies that sustain the culture of impunity, which in turn perpetuates the culture of egregious human rights violations. The IIGEP will be viewed by most as an effort by the international community to engage with the Government and assist it in an attempt to find justice for the victims of specific human rights cases. It has become increasingly apparent that this was a face-saving device by the Government to resist international human rights monitoring. Countries and international agencies extended their assistance to this effort and therefore became complicit in it. Now, as the IIGEP withdraws these self same actors need to ask themselves questions regarding their responsibility. The trickery practised by the Government is clear. So will the Eminent International Persons and their assistants issue their statement, pack their bags and leave? The Government seems all set to appoint a new body of International Eminent Persons who could be more malleable and understanding of the Government’s attempts to prevent any independent investigation and public accountability.

We call upon all members of the IIGEP and those international actors involved, to reflect clearly on the situation in any decision that they undertake. Firstly, they have a duty to explain to the Sri Lankan public (and not just the President); why their mission failed, compelling them to leave. Secondly, they need to ensure that they take this message to their capitals and make clear to their own people why their objectives were not realized. And thirdly, they have a duty to remain engaged in the Sri Lankan situation and continue to call for accountability on the part of the Government of Sri Lanka and the other armed actors. We sincerely hope that the Eminent Persons, both as a collective body and as individuals make a clarion call for justice and do not succumb to the dictates of the Government, which has time and again, shown that it does not have the political will to investigate the dismal human rights situation in the country.

The Commission soldiers on. But at what cost? The Commission has called for witnesses to come forward to make representations at the investigations and the public hearings. We have watched this process with dismay and concern as it is clear that there are numerous security risks that these individuals could face if and when they come forward. On at least two occasions the Commission has engaged in a serious breach of confidentiality As a result two of the individuals concerned received threats. If the Commissioners continued in the manner in which they conduct their affairs at present, they could endanger the safety of more individuals, which would be dangerous and foolhardy. The commission claims that it has a Victim and Witness Protection Unit but it is clear that there are leaks within the current structure that makes the unit ineffective. Also, the unit does not have the necessary where withal to function effectively. For instance, the unit cannot ensure the safety of witnesses when it does not have the means to move a victim/witness if the need arises, especially since the Commission cannot harness the necessary funds to transport key witnesses for the public hearings. If the Commissioners cannot guarantee the safety of the witnesses they should publicly say so and not claim otherwise.

From its inception in November 2006, the Commission has to all appearances moved at its own speed and on its own logic. The question of the ‘public’ is important here, and we speak in the name of the public. We see the lack of public participation as a key flaw in the proceedings of the Commission. While general public apathy and disinterest, including that of ‘civil society’ and media can be seen as fundamental problems, the Commission is very much at fault in not centering the approval, the consent and the participation of the public in the investigation process. The Commission insists that it sent out public notices a week prior to the first public hearing and in the days preceding it, but it is clear that even if it did happen it was lost on the general public. There has been no investment in an active Public Information Campaign to enlist the support and participation of the people in the proceedings of the Commission. The Public Hearings of the Commission at the BMICH are notable by the absence of a public. The location itself-a high security zone, where in December, 2006, the Vice Chancellor of Eastern University was abducted-makes it public unfriendly, particularly given the nature of the investigations that the Commission has undertaken. In the absence of a public buy-in, and a sense of responsibility and investment on the part of the ‘public,’ it becomes easier for the Commission to work on their own logic and in their own interest, which may have little to do with the interests and demands of those directly affected by the violations. The Government has sought to raise its tarnished image by flaunting the Commission and its continued functioning, while, at the same time, thwarting its efforts of serious investigation.

The choice facing the Commissioners is a simple but difficult one: to resign or to continue. We feel that the Commission should be guided by principle and not by pragmatics, because the pragmatic approach has failed. By resigning and making clear their stand and the reasons for their decision, they will be able to unambiguously make public the problems they have faced and the progress they have made on the few cases they have investigated. They would be justified in doing so. By continuing they could possibly be able to comment on one or two more cases with authority. If they, however, continue without feeling the need to report to the public, and continue to use ‘protocol’ as a shield, they risk losing the sense of integrity that they have built over a lifetime and become complicit in the duplicitous acts of this Government, particularly in its efforts to interfere with the system of justice.

Once again, the Commission needs to ask itself the question: on whose behalf are they working? for themselves? for the President? for the country? its people? The Commissioners cannot be responsible only to themselves and the Government. They need to be clear on their role and the task they have to perform. The victims of these and other multiple violations demand justice from the Commission, from all of us, for the truth to be spoken. Do we dare?

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Coalition of Muslims and Tamils for Peace and Coexistence

The coalition of Muslims and Tamils is a Sri Lanka based organization-comprising Muslim and Tamil identified persons who as a general principle are committed to pluralism and social justice in all its forms. Specifically, we are committed to the peaceful coexistence of Muslims and Tamils in the country, particularly in the north and east, and to a just and equitable solution to the ethnic conflict.

We can be contacted at: peaceandcoexistence@yahoo.com

Please visit our website : www.ctmpc.blogspot.com

His father opened the door, and the men pushed him aside and then forced us and the children into one of the rooms. Junith Rex came out of his room, covering himself with a bed sheet, and the men grabbed him by the bed sheet and seized him. They wore black pants, green T-shirts, and their heads were wrapped with some black cloth. Later I found out that they arrived in a van, but they parked it on the main road. They smashed the lights bulbs in the room and dragged him away. They told him “Come,” in Tamil. He cried, “Mother!” but we couldn’t help him.

[Tamil woman waits in line to lodge a report about a missing or abducted relative in Trincomalee February 29, 2008-photo courtesy: Reuters, Via Yahoo! News]

-Family member describing the abduction of Junith Rex Simsan on the night of January 22, 2007, following an army search of the house earlier that same day. At this writing, despite repeated inquiries by his family, his whereabouts remain unknown, his fate uncertain.

For instance, take the missing list. Some have gone on their honeymoon without the knowledge of their household is considered missing. Parents have lodged complaints that their children have disappeared but in fact, we have found, they have gone abroad. These disappearance lists are all figures. One needs to deeply probe into each and every disappearance. I do not say we have no incidents of disappearances and human rights violations, but I must categorically state that the government is not involved at all.

-Sri Lankan President Mahinda Rajapaksa, in an interview to Asian Tribune, October 4, 2007.

The resumption of major military operations between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) in mid-2006 has brought the return of a haunting phenomenon from the country’s past-the widespread abduction and “disappearance” of young men by the parties to the conflict. With the de facto breakdown of the 2002 Norway-brokered ceasefire between the parties, and its formal dissolution in January 2008, it is likely armed conflict will intensify in the coming year. Unless the Sri Lankan government takes far more decisive action to end the practice, uncover the fate of persons unaccounted for, and prosecute those responsible, then 2008 could see another surge in “disappearances.”

Hundreds of enforced disappearances committed since 2006 have already placed Sri Lanka among the countries with the highest number of new cases in the world. The victims are primarily young ethnic Tamil men who “disappear”-often after being picked up by government security forces in the country’s embattled north and east, but also in the capital Colombo. Some may be members or supporters of the LTTE, but this does not justify their detention in secret or without due process. Most are feared dead.

In the face of this crisis, the government of Sri Lanka has demonstrated an utter lack of resolve to investigate and prosecute those responsible. Families interviewed by Human Rights Watch all talked about their failed efforts to get the Sri Lankan authorities to act on the cases of their “disappeared” or abducted relatives.

The cost of this failure is high. It is not only measured in lives brutalized and lost, but in the anguish suffered by the survivors-the spouses, parents, and children who may never learn the fate of their “disappeared” loved one. And it is felt in the fear and uncertainty that remains in the communities where such horrific, unpunished crimes take place.

This report provides extensive case material and data about enforced disappearances and abductions since mid-2006. It details the Sri Lankan government’s response, which to date has been grossly inadequate. The government shows every sign of repeating the failures of past administrations, making lots of noise-including launching a spate of new mechanisms to investigate “disappearances”-but conducting little actual fact-finding and virtually no prosecution of perpetrators. The report concludes with specific recommendations on how authorities and concerned international actors can respond more effectively. The appendix to this report contains a detailed description of 99 cases documented by Human Rights Watch. A list of 498 additional cases documented by Sri Lankan human rights groups is available at: http://hrw.org/reports/2008/srilanka0308/srilanka0308cases.pdf.

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Under international law, an enforced disappearance occurs when state authorities detain a person and then refuse to acknowledge the deprivation of liberty or the person’s whereabouts, placing the person outside the protection of the law.

In Sri Lanka, “disappearances” have for too long accompanied armed conflict. Government security forces are believed to have been responsible for tens of thousands of “disappearances” during the short-lived but extremely violent insurgency from the left-wing Sinhalese nationalist Janatha Vimukthi Peramuna (JVP) from 1987 to 1990, and the ongoing two-decades-long civil war between the government and the Tamil-nationalist LTTE.

Enforced disappearances have again become a salient feature of the conflict. Figures released by various governmental and nongovernmental sources suggest that more than 1,500 people were reported missing from December 2005 through December 2007. Some are known to have been killed, and others have surfaced in detention or otherwise have been found, but the majority remain unaccounted for. Evidence suggests that most have been “disappeared” or abducted. The national Human Rights Commission (HRC) of Sri Lanka does not publicize its data on “disappearances,” but Human Rights Watch learned that about 1,000 cases were reported to the HRC in 2006, and over 300 cases in the first four months of 2007 alone.

“Disappearances” have primarily occurred in the conflict areas in the country’s north and east-namely the districts of Jaffna, Mannar, Batticaloa, Ampara, and Vavuniya. A large number of cases have also been reported in Colombo.

Who Is Responsible?

In the great majority of cases documented by Human Rights Watch and Sri Lankan groups, evidence indicates the involvement of government security forces-army, navy, or police. The Sri Lankan military, empowered by the country’s counterterrorism laws, has long relied on extrajudicial means, such as “disappearances” and summary executions-in its operations against Tamil militants and JVP insurgents.

In a number of cases documented by Human Rights Watch, family members of the “disappeared” knew exactly which military units had detained their relatives, which camps they were taken to, and sometimes even the license plate numbers of the military vehicles that took them away.

In other cases, groups of about a dozen armed men took victims from their homes, located near army checkpoints, sentry posts, or other military positions. While eyewitnesses could not always identify the perpetrators beyond doubt, they suspected the military’s involvement, as it seemed inconceivable that large groups of armed men could move around freely during curfew hours and get through checkpoints without the military’s knowledge.

Relatives frequently described uniformed policemen, especially members of the Criminal Investigation Department (CID), taking their relatives into custody before they “disappeared.” The police claimed that these individuals were needed for questioning, yet did not say where they were being taken and did not produce the required “arrest receipt.” After these arrests, the families did not manage to obtain any information on the detainees’ fate or whereabouts.

The involvement of the security forces in “disappearances” is facilitated by Sri Lanka’s emergency laws, which grant sweeping powers to the army along with broad immunity from prosecution. Several provisions of the two emergency regulations currently in force create a legal framework conducive to “disappearances.” People can be arrested without a warrant and detained indefinitely on vaguely defined charges; there is no requirement to publish a list of authorized places of detention; and security forces can dispose of dead bodies without public notification and without disclosing the results of the post-mortem examination, thus preventing proper investigations into custodial deaths.

Also implicated in abductions and “disappearances” are pro-government Tamil armed groups acting either independently or in conjunction with the security forces. Relatives of the “disappeared” have often pointed to the Karuna group, which broke away from the LTTE in March 2004 and operates primarily in the east and in Colombo. In Jaffna, eyewitnesses to several abductions have implicated members of the Eelam People’s Democratic Party (EPDP), a Tamil political party that has long been targeted by the LTTE.

Both groups cooperate closely with Sri Lankan security forces. The military and police frequently use native Tamil speakers, often alleged to be Karuna group or EPDP members, to identify and at times apprehend suspected LTTE supporters. In several cases reported to Human Rights Watch, families said that they were first visited and questioned by the military, and then, usually several hours later, a group of Tamil-speaking armed men came to their house and took their relatives away. On other occasions, the Karuna group and EPDP seemed to be acting on their own-settling scores with the LTTE or abducting persons for ransom-with security forces turning a blind eye.

The LTTE has been implicated in abductions in conflict areas under the government’s control, though the numbers reported to human rights groups and the Human Rights Commission are comparatively low. This is not cause for complacency about LTTE practices which, as Human Rights Watch and others have documented elsewhere, include bombings targeting civilians, massacres, torture, political assassinations, systematic repression of basic civil and political rights in LTTE-controlled areas, and other serious abuses. In part, the LTTE abduction numbers are low because it is not the LTTE’s primary tactic; the LTTE prefers to openly execute opponents, perhaps to ensure a deterrent effect on the population. LTTE abductions may also be under-reported because the family members of the victims and eyewitnesses are often reluctant to report the abuses, fearing LTTE retribution.

Who Is Being Targeted?

No matter who is responsible for the “disappearances,” the vast majority of the victims are ethnic Tamils, although Muslims and Sinhalese have also been targeted. The security forces appear to target individuals primarily because of their alleged membership in or affiliation with the LTTE. Young Tamil men are among the most frequent targets, including a significant number of high school and university students. In other cases, the “disappearances” of clergy, educators, humanitarian aid workers, and journalists not only remove these persons from the civil sphere but act as a warning to others to avoid such activities.

In the north and east, many arrests leading to “disappearances” have occurred during or after military cordon-and-search operations following an LTTE attack. During such operations, the military either has detained people or seized their documents and requested that they report to the army camp or another location to collect them. In both scenarios, some of these people have never returned, and the relatives’ efforts to obtain any information on their whereabouts from the military have proved futile.

Particularly in Jaffna, individuals often have been “disappeared” after being stopped by military personnel at checkpoints, or as a result of targeted raids that sometimes followed claymore mine attacks or similar security incidents. In several cases in Jaffna, family members believe that EPDP cadres participated in the raids-judging by the perpetrators’ native Tamil speech, appearance, and cars leaving in the direction of EPDP camps.

In the east, Human Rights Watch received credible reports from eyewitnesses and humanitarian aid workers of “disappearances” that took place when thousands of people fled LTTE areas during fighting in late 2006 and early 2007. The army and the Karuna group reportedly screened displaced persons entering government-controlled territory to identify suspected LTTE members. In a number of cases, young Tamil men detained as a result of such screenings then “disappeared.”

Particularly in Colombo, and in the eastern districts of Batticaloa, Trincomalee, and Ampara, the lines between politically motivated “disappearances” and abductions for ransom have blurred since late 2006, with different groups taking advantage of the climate of impunity to engage in abductions as a way of extorting funds. While criminal gangs are likely behind some of the abductions, there is considerable evidence that the Karuna group and EPDP have taken up the practice to fund their forces, while the police look the other way.

Human Rights Watch has previously reported on abductions by the Karuna group in the east for the purpose of forced recruitment, including of boys. In many such cases, while the families knew that their husbands or sons were taken away to be used as soldiers, they subsequently received no information on their fate or whereabouts.

Unpunished Crimes

Enforced disappearances are a continuing offense-meaning the crime continues to be committed until the whereabouts or fate of the victim becomes known. The continuing nature of the crime takes a particularly heavy toll, with family members left wondering for months or years or forever whether their loved one is alive or dead. Some of the “disappeared” reappear as corpses showing signs of execution or torture, or turn up alive in detention in police custody or army camps, or simply turn out never to have been disappeared after all. But the great majority never turn up again and are presumed dead, victims of extrajudicial execution or other death in custody.

A critical factor contributing to continuing “disappearances” in Sri Lanka is the systemic impunity enjoyed by members of the security forces and pro-government armed groups for abuses they commit.

Police still do not investigate most of the cases and rarely follow up with families on the progress of cases, claiming they lack sufficient information to identify perpetrators and locate victims. As detailed in this report, however, family members say that even when they provide details to the police that should at least give a start to an investigation-such as the license plate numbers of the vehicles allegedly used in the abductions and the names of people or military units the family believes were involved-police do not follow through.

Figures on accountability released by the government show how little has been done to bring perpetrators to justice. A document provided to Human Rights Watch by the Sri Lankan government in October 2007 mentions only two pending cases against army personnel for unspecified human rights violations committed in 2005-2006, and refers to a recent indictment served on an unspecified number of army personnel for the killing of five students in Vavuniya in 2007. None of the indictments for abductions and “wrongful confinement” mentioned in the document appear to be for abuses committed since mid-2006.

The only known arrests for recent abductions were of former Air Force Squadron Leader Nishantha Gajanayake and another two policemen and an air force sergeant in June 2007. Although Sri Lankan authorities widely publicized these arrests as proof of their resolute action against the abductors and promised to promptly bring the perpetrators to justice, in early February 2008 the suspects were released; it is unclear whether charges against them were dropped.

The Government’s Response

Instead of making a diligent effort to investigate and prosecute enforced disappearances, the government of President Mahinda Rajapaksa continues to downplay the scope of the problem. Many official statements suggest there is no “disappearance” crisis at all or, if there is one, the sole perpetrators are LTTE fighters and common criminals. While the government has set up various mechanisms to address abductions and “disappearances,” all have lacked the independence, power, resources, and capacity necessary to conduct effective investigations.

Sri Lanka has a long history of setting up mechanisms to address “disappearances” but not following through. Four official commissions of inquiry set up by then President Chandrika Kumaratunga in the 1990s established that more than 20,000 people “disappeared” during armed conflicts in the 1980s and 1990s. Human rights groups believe that the actual figure may be two to three times higher. These commissions identified suspected perpetrators in more than 2,000 cases, but few have ever been prosecuted, and only a handful of low-ranking officers were convicted. Nor have successive governments meaningfully implemented the commissions’ recommendations for legal and institutional reforms aimed at preventing “disappearances” in the future.

The Rajapaksa government’s response to the surge in “disappearances” starting in mid-2006 appears to be following this pattern. First, the independence of existing government bodies, the Human Rights Commission and the National Police Commission, has been significantly undermined by decisions by the president to bypass constitutional requirements and directly appoint commissioners to these bodies.

Despite the hundreds of alleged “disappearances” reported over the last two years to the Human Rights Commission, it has issued no public reports on the matter, has refused to provide statistics on the complaints it has received, and has tried to downplay the scale of the problem. The monitoring and investigative authority of the Human Rights Commission has also been effectively negated by the obstructive attitude of the security forces and lack of support from the government. As a sign of the HRC’s failings, in December 2007 the international body that regulates national human rights commissions downgraded the HRC’s status to “observer” because of government encroachment on its independence.

Second, while the government has created at least nine other special bodies to address “disappearances” and other human rights violations-all of them described in the report-as yet none of them have yielded concrete results.

Aside from periodic announcements on their establishment, the government rarely has provided any information regarding the mandate of such bodies, or the progress made in the investigations. The government also has not explained whether it continues to create new bodies because of the inability of previously established mechanisms to deal with the problem, or whether it is simultaneously correcting flaws in existing mechanisms.

Many observers believe that most of these bodies have been established to give the impression the government is taking seriously reports of widespread “disappearances” by security forces even as officials dither in initiating investigations into the cases. The government’s continuing dismal record in prosecuting perpetrators lends credence to such beliefs.

The lack of progress in investigations and the failure to halt the abuses is hardly surprising given that, at the highest levels, the Sri Lankan government continues to deny any new “disappearance” crisis or that its security forces are responsible for any significant portion of the violations. Typical in this respect are claims made by Judge Mahanama Tillekeratne, who stated that the abductions were “the result of personal grudges,” and that the majority of the missing persons have returned, neither of which claim is substantiated by the evidence.

President Rajapaksa, government ministers, and the government’s Secretariat for Coordinating the Peace Process (SCOPP) also have repeatedly dismissed reports of widespread “disappearances” as LTTE propaganda aimed at smearing the state’s image. They have claimed that most of the missing individuals have returned, left the country, went into hiding to escape criminal charges, or simply left home and failed to inform their families of their whereabouts-without providing facts to support these contentions.

These claims contradict statements made by some Sri Lankan law enforcement officials, such as the inspector general of the police, and information, albeit limited, that has been released by the governmental commissions, as well as facts and figures publicized by the media and NGOs. Such claims also invite the obvious question of why the government has felt the need to establish so many different mechanisms to look into an allegedly non-existent problem. High-level attempts to dismiss the problem of “disappearances” send a signal to security forces that the government does not take the allegations of their involvement in human rights abuses seriously.

International Response

Various United Nations mechanisms and some of Sri Lanka’s key international partners have raised concerns about the high number of enforced disappearances since mid-2006. Senior UN officials visiting Sri Lanka such as the High Commissioner for Human Rights, the Special Rapporteur on extrajudicial, summary or arbitrary executions, and the Special Advisor on Children and Armed Conflict, have all noted the alarming prevalence of impunity and the failure of law enforcement bodies and national human rights mechanisms to establish accountability. Foreign governments such as the United States and United Kingdom have also spoken out.

Sri Lanka’s response to the growing international criticism has taken two forms. The government has intensively lobbied international organizations and bilateral partners, emphasizing improvements in the human rights situation and its willingness to cooperate with UN officials and human rights specialists. At the same time it has fiercely attacked its critics, including the very same UN representatives, accusing them of being, at best, ignorant of the situation and, at worst, LTTE sympathizers.

The continued refusal of the Sri Lankan government to acknowledge and adequately address the wide range of human rights violations has led to growing national and international support for the establishment of a UN human rights monitoring mission to investigate and report on abuses by government forces and the LTTE throughout the country.

The European Union and more recently the US government have joined the calls of domestic and international NGOs for establishing an international monitoring mission under the auspices of the Office of the High Commissioner for Human Rights. During her October 2007 visit to Sri Lanka, UN High Commissioner for Human Rights Louise Arbour expressed the willingness of her office to work with the Sri Lankan government toward establishing such a presence.

The Sri Lankan government has thus far rejected the proposals for any international monitoring mechanism. This response belies the government’s claims that it is taking the measures necessary to protect the rights of all its citizens.

Key Recommendations

*The Sri Lankan government should publicly acknowledge the scope of “disappearances” in the country and the continuing role of security forces in committing such abuses.

The Sri Lankan government will not make meaningful progress in ending “disappearances” until it takes the problem seriously and is seen to be taking it seriously. However many new mechanisms the government creates, their efforts cannot be expected to succeed when senior officials deny there is a serious problem. An essential starting point is unambiguous acknowledgment of the problem, and of the role of security forces and pro-government, non-state armed groups in perpetuating the practice.

*The Sri Lankan government should reform detention procedures to ensure transparency and compliance with international due process standards.

In order to stop the spree of new “disappearances,” the government should ensure that all persons taken into custody are held in recognized places of detention, and each facility maintains detailed detention records. Detained individuals must be allowed contact with family and unhindered access to legal counsel; they should promptly be brought before a judge and informed of the reasons for arrest and any charges against them.

The Sri Lankan government should vigorously investigate and prosecute perpetrators of “disappearances.”

Lack of accountability for perpetrators is one of the key factors contributing to the crisis of “disappearances.” The authorities must vigorously investigate all cases of enforced disappearances and arbitrary arrests, including those documented in this report-until in each case the fate or whereabouts of the person is clearly and publicly established. Those responsible for “disappearances” and abductions, be it members of government security forces or members of non-state armed groups, must be disciplined or prosecuted as appropriate.

The government and the LTTE should cooperate with the UN Office of the High Commissioner for Human Rights to establish and deploy an international monitoring team to report on violations of international human rights and humanitarian law by all parties to the conflict.

Deployment of an experienced international monitoring team would save lives, curtail abuses, and promote accountability. Here, the burden rests not only with the Sri Lankan government and LTTE, but also with concerned international actors. The latter should make it clear that they view the Sri Lankan government’s position on deployment of such a team as an important test of its commitment to human rights and its willingness to take real, rather than feigned, measures to address continuing problems. Sri Lanka’s international partners, in particular India and Japan, should make further military and other non-humanitarian assistance to Sri Lanka contingent on government efforts to halt the practice of “disappearances” and to end impunity, including its acceptance of an international monitoring team.

International monitoring has proven particularly effective in dealing with the problem of large-scale “disappearances.” With sufficient mandate and resources, the monitoring mission could achieve what the government and various national mechanisms have failed to do-establish the location of the detainees through unimpeded visits to the detention facilities; request information regarding specific cases from all sides to the conflict; assist national law enforcement agencies and human rights mechanisms in investigating the cases and communicating with the families; and maintain credible records of reported cases.

Detailed recommendations to the Sri Lankan government, the LTTE, and the international community are found in the closing chapter of this report.

Note on Methodology

This report is based on field research carried out in Sri Lanka in February, March, and June 2007, and follow-up research through January 2008. Human Rights Watch conducted over 100 interviews with families of the “disappeared,” as well as dozens of interviews with human rights activists, lawyers, and international agencies working in Sri Lanka. Human Rights Watch visited Colombo and its environs, and the districts of Batticaloa and Jaffna.

Following the visits, Human Rights Watch communicated closely with local NGOs and international organizations working in Sri Lanka to update the information and obtain new data.

Human Rights Watch has raised its concerns in various meetings with the president of Sri Lanka, the foreign minister, and the minister for disaster management and human rights, among other Sri Lankan officials. Human Rights Watch sent inquiries to various Sri Lankan authorities-the Ministry for Disaster Management and Human Rights, the Inspectorate General of the Police, the Defense Ministry, the Human Rights Commission, and the Presidential Commission on Abductions, Disappearances, and Killings-requesting information related to the issues raised in this report. Human Rights Watch also sent an inquiry to Eelam People’s Democratic Party (EPDP).

Human Rights Watch received responses from the Human Rights Commission of Sri Lanka and the Sri Lankan police. The EPDP also responded to the inquiry. Their responses are incorporated in the relevant sections of this report. Other officials mentioned above did not respond to Human Rights Watch inquiries. Human Rights Watch letters of inquiry and responses we have received are appended to this report (Appendix II).

Appendix I of this report contains detailed descriptions of 99 cases of “disappearances” and abductions documented by Human Rights Watch. A list of 498 additional cases reported to Sri Lankan human rights groups is available at: http://hrw.org/reports/2008/srilanka0308/srilanka0308cases.pdf.

While all efforts were made to ensure that information in Appendix I is up to date, given the challenge of obtaining information from some parts of Sri Lanka, especially the north, it is possible that new developments may have occurred in some of the cases before the report went to print.

Human Rights Watch also notes that in some of the documented cases there were no eyewitnesses to the abduction or arrest, and such cases may not technically qualify as “disappearances.” Most such cases were excluded from this publication; where we have included such cases it is because there is other evidence, set forth during our discussion of the case, suggesting the victim was abducted by a pro-government armed group, the LTTE, or government security forces.

Related: Where is he?: The father of a Tamil man missing in Sri Lanka speaks out [BBC]

by Sebastian Rasalingam

[This is a response to Mr. Wakely Paul's article titled "Rasalingam Appropriate Candidate For Sinhala Knighthood" that was posted here on March 5th]

Thank You Mr. Paul.

Looking at the qualifications of Mr. Wakeley Paul I see that he is an extremely distingushed and educated person, with such labels like Cambridge, Stanford, London, New Jersey etc. I salute him because my heart warms to see that people can actually reach such distinction. I will address his letter as best as I can, and with the respect he desreves. I for one was brought up in Jaffna, lived in Mannar, Hatton and Colombo. Thanks to my son I managed to get to Canada for my last days. I managed to get a bit of education because our family were christians, although today I value the richer Hindu tradition (but without its caste system).

In the early days at school I had my own little stool that I took from class to class as I could not aspire to sit on normal-sized chairs. It was in Hatton that I acquired my wife who is from the Indian estate-Tamil community. When I arrived in Colombo I was actually treated with a bit more dignity by the Sinhalese and even the Tamils. Undoubtedly, things have changed a lot today.

In our days we used to cut important articles from newspapers and make scrap books. Some of the books and pamphlets published at that time are also in my possession. So I have a treasure trove of old material that perhaps only historians and archivsts have. However, what I write would be strongly coloured by my personal experience and the somewhat “self-taught” nature of my knowledge. What ever be its short coming, they come from a life experience that is very different to the world from which most Tamil writers (like Mr. Wakeley Paul) come from. This of course implies that I do not accept many things that are accepted as “valid without question” by the Wakeley-Paul stratum of society.

It is indeed true that Mr Ponnambalam Ramanathan (PR), interceeded on behalf of the Sinhala leaders like F. R. Senanayake and Baron Jayatilleke who were senselessly imprisoned after the Sinhala-Muslim riots. In fact, that was how PR affirmed his position as THE Leader of both the Sinhalese and the Tamils. His victory in the 1911 elections was mainly due to the support of Hector Jaywardana, Francis Soyza and other sinhalese. His opponent Dr. H. M. Fernando was deemed a low-caste and did not get the support of the Sinahla leaders. At that time, in the early part of the 20th century, race mattered litlle.
What mattered was that all these people were upper-caste elites of the two communities. PR was a man who even attempted to get the caste system included in the legislative enactments.

The race rivlary began later, mainly with the machinations of Governor Maitland in establishing “communal” representation. Arunachalam Ponnambalam (AP) attempted to use this to carve out a seat for himself in Colombo, and some writers claim that Sir James Peiris and E. J. Samarawikrama “promised to fix it” for him with the Sinhalese (The eminent historian K. M. de Silva disputes this claim),and then later failed to keep to their word. Even if two people “promised it”, what kind of democratic process and what kind of political simple mindedness is it to expect that there would be no contest by others who were not party to such deals?. To make matters worse, AP invited governor Manning to Jaffna, and tried to craft a private deal with the governor. The newspaper magnate D. R. Wijewardene learnt of this (through one of his reporters ?) and managed to get a copy of the secret submisson made by AP. He splashed it in his newspapers, to the utter discomfort of AP. People like AP felt that positions in the legislature were theirs almost by divine right. When that did not materialize, it became “deception”.

I know a bit about plantation workers because I lived in Hatton and got married to one. Mr. Paul says “This insidious scheme by Senanayake [Rasalingam's hero] to increase Sinhalese representation in the Central Province seems to be lost on Mr. Rasalingam.” D. S. Senanayake’s citizenship act was probabaly drawn up by Ivor Jennings, and it allowed for citizenship to anyone who had 7 years permanent residence. What is the current situation for a Hispanic worker in USA? Is it not surprising that the legislation was considered more than just by the Lords of the Privy council? It was the Indian government which
let down the Indian workers. A tactical politcal decision by Thondaman was that the Indian workers should destroy their passports and become “stateless”. G. G. Ponnambalam who had urged responsible cooperation (since the advent of the Soulbury commission) and became a moderate, supported the citizenship act. He accepted the danger posed by the Marxists who were trying to cut into the state sector.

The main issue brought up by S. J. V. Chelvanayakam in the 1952 election, in his fight against Natesan was the UNP citizenship act. Chelvanayakam lost the election. Simlarly, E. M. V. Naganathan campaigned bitterly against G. G. Ponnambalam in Jaffna, bringing up the Indian citzenship act. Here again Naganathan lost badly. Basically, many Tamil leaders like Natesan and Ponnambalam, and the Tamil voters, did not take the citizenship act in the way Chelvanayakam tried to present it. The Tamils themselves (and not just Senanayake) did not want too many “Indian Tamil” members in parliament. Even the Federal leaders did not want to have much to do with the Indian Tamils, but they saw this as a fine excuse to attack the Tamil Congress. The Jaffna public did not buy it.

In the estate sector, most people totally distrusted the Federal Party Leaders as they had always regarded the Plantation Tamils as a low-caste group who should not have the franchize. In fact, the recommendations of the Donoughmore commission in this regard were brought to nought by the joint action of the caste conscious Tamil leaders in collusion with their Sinhala collegues of the state council.

Mr Paul also raises questions about Senanayake’s colonization policy. This is a favourite emotive issue brought up by the Federal party since 1948. Ponnambalam brought up the same colonization issue in front of Soulbury. Soulbury completely rejected it, and newspapers of the time went to great lengths to point out that more Tamils had come to the south (since the opening of the Railway) and that the Colonial government had acted impartially. However, these questions remained frozen during the war. After independence, the colonization schemes were under Dudley Senanayake. I believe that he too was a man of great integrity who tried to foster a common polity rising above communalism. Dudley had appointed a number of distinguished Tamil civil servants to run the Galoya board, and this allegation of racist colonization is really directed against Dudley and his civil servants. Michael Roberts, an ex-Peradeniya-Australian historian who is reasonably impartial (at least in my view), has discussed these issues in his essay on “Tamil Nationalism, Subjectivites and Issues”. In discussing A. J. Wilson’s book he says “In his brief review of D. S. Senanayake’s policies, in the 1940s he asserts that Senanayake had a concealed agenda’ involving the colonisation of the Tamil homelands (p 71). This is a reiteration of the unsubstantiated verdict presented previously in “Break-up”(1988) where he argues that the land settlement programme ’set in motion’ by Senanayake constituted a threat to what had hitherto been an UNEXPRESSED right of possession by the Tamils of the Northern and Eastern provinces as their homelands”. The Soulbury commission had already given the rejection of this, but A. J. Wilson and other Tamil nationalists continue to harp on “rights which they themselvs recognize as “unexpressed”!

Roberts goes on to say, (among other things) that A. J. Wilson has probably “not read B. H. Farmer’s path-finding work, “Pioneer Peasant Colonisation (1957)…he does not attend to the overriding perspective that informed both Senanayake and the key officials who moulded peasent colonisation in the two decades 1935-1955. These men acted as “Ceylonese”. They did not conceive of the Eastern Province or the relevant portions of the Northern province as Tamil districts. Their conceptualization was guided by the distinction between the wet zone and the dry zone….Further, to invest Senanayake with ulterior motives is to treat a whole array of decent and excellent administrators, several of them tamils, as catspaws, fools and/or manipulators. I refer here to such individuals as Edmund Rodrigo, G. L. D. Davidson, Frank Leach, L. J. de S. Seneviratne, Sri Kanthia, K. Kanagasundaram, M Rajendra…(sic)…The historian Roberts goes on to add that “unless new evidence is forthcoming, for the moment we must say that (a) in the…context of the early 20th century most men and women of the western-educated class did not conceive of the Sri Lanka tamils as anything but Ceylonsese; and that (b) any conspiratorial theory that regards colonisation policy in the period 1920s to 1955 as a land-grabbing exercise remains unsubstantiated”

However, the views of Historians, the judgments of the Privy Council, the conclusions of the research sections of the Soulbury commission-none of these will matter to those who have already come to their conclusions because of the poltical beliefs that they have imbibed from their young days, living in
Karuvakkaatu (Cinnamon Gdns).

Mr. Paul points out that “The Vaddukottai resolution (1976) was spearheaded by Tamil students in the North and East who were denied their right to equal access to the Universities.” Right of access to universities may have been very improtant to the children of the Vellar. But let me remind him of what happend just about the same time in Mavattipuram, where Mr. Shanmugathasan (communist party, china wing) led the fight for rights of basic SCHOOL ENTRY for low-caste Tamils. S. J. V. was challanged to re-contest his seat on the caste issue. The Badudeen Mohamed’s minstry should have included quotas and some sort of affirmative action for the depressed castes, and enforced elementary democracy. Tamil society has never been democratic and that is the basic problem why a man like Prabhakaran could thrive.

Mr. Paul says that Senanayake must be one of my heros. I grew up in jaffna and I still remember the smell of the sewers in most parts of Jaffna. That is because Jaffna, although a major city, was prevented from becoming a municipality by the Colombo Tamil leaders. They were the absentee Land Lords who would have to pay extra taxes if Jaffna became a municpality. I believe it was D. S. Senanayake who forced the issue and made Jaffna a municipality.

A “Knight” in the exalted world of Mr. Paul is an honorific given to people of his ilk by the Britsh Raj. In my stratum, a “kutiraikkaran” is just a lower caste job that we have to do, to earn a living.

I don’t see a problem in doing an honest job, be it for a Tamil or Sinhala pay master, as long as I am evaluated on the quality of my work, and NOT on the basis of my caste, race or religion.

by Rajan Philips

Last week I dealt with the internal failure of the Serbian State that led to Kosovo’s declaration of independence and placed this failure in the context of the overall disintegration of Yugoslavia. Here, I turn to the external side of the Kosovo conflict that has caused some exercising in Sri Lankan political circles. The government has expressed unreserved opposition to Kosovo’s declaration of independence, while its plenipotentiary in Geneva has warned the government to be vigilant against the undermining of Sri Lankan state sovereignty by Tamil separatism within and Western hegemonism from without. On the other hand, Tamil political websites have been giving self-serving publicity to Kosovo’s declaration of independence.

Colombo’s fears after Kosovo coincided with the furor over the actions of one of the premier Sri Lankan NGOs, the International Centre for Ethnic Studies (ICES), in undertaking a reportedly well funded R2P project. R2P, or Responsibility-to-Protect, is the controversial formulation of state and inter-state responsibility to protect vulnerable populations from “avoidable catastrophe” such as mass murder, rape, starvation etc. The R2P framework first emphasizes the responsibility of states to protect their own vulnerable citizens, and transfers that responsibility to a “broader community of states” when a state fails to fulfill this fundamental responsibility.

R2P: the genesis and the controversy

How did R2P come to be formulated? What is the connection between Kosovo and R2P? How did Sri Lanka get in between?

The NATO intervention in the Serbia-Kosovo crisis that began in March 1999 with the aerial bombardment of Belgrade created new problems even as it put an end to the mindless carnage that was then swallowing Kosovo. Remarkably, it was the first time NATO had resorted to any military action since it was created in 1949 as a deterrent against attacks from the Soviet Union and its satellites, and its only action ironically took place in parts of a former country (Yugoslavia) that had not been part of the Soviet Bloc. Although the intervention was not unilateral because NATO is a multimember organization, it betrayed a surprising penchant for militarism and cowboy vigilantism among Western social democrats and liberals. Leading the pack was Britain’s Tony Blair, Germany’s Gerald Schroeder and US Secretary of State Madeline Albright. President Bill Clinton was reportedly a reluctant campaigner in the whole exercise. The military action also meant that NATO had failed in its primary objective of deterring Milosevic and his government. More importantly, it was undertaken without any UN authority. In effect, NATO had usurped the UN, unlike in East Timor where that same year a UN peace keeping force successfully began guiding the transition from Indonesia’s withdrawal to East Timor’s eventual independence in 2002.

Despite its flaws, the NATO intervention had broken the path for international intervention for humanitarian reasons, especially for those who had been dismayed by the massacres of Cambodia and Rwanda and the inability of the international community to stop them. For supporters of international intervention, NATO’s foray into Kosovo was a new opening. In September 1999, came the then Secretary General Kofi Annan’s “challenge of humanitarian intervention” to the world community. He was not speaking out of a sudden inspiration but was challenging the world community in the new millennium to find a framework that would balance state sovereignty with the responsibility of the world community in protecting defenseless people in troubled areas. Annan’s call provoked a backlash of condemnation by many governments and status quo sovereignists, but an Independent International Commission sponsored by Canada and supported by funding foundations set out to respond to the challenge. The result of the Commission’s efforts was the 91-page report entitled The Responsibility to Protect that was released in December 2001.

[UN Human rights team in Bogoro investigates the 2003 Lendu militia crimes committed against civilians in the area. UN photo Martine Perret]

By then the world had become a different world, to recall the description by President Bush of the aftermath of 9/11. The Forward to the Commission’s Report notes the difference between what R2P was trying to achieve and what was brought about by the 9/11 attacks in the US. The latter situation is adequately covered by the UN Charter which allows Member States under attack to retaliate either individually or collectively and report such retaliation to the Security Council. The R2P report, on the other hand, is “aimed at providing precise guidelines for states faced with human protection claims in other states”, such as the NATO intervention in Kosovo. But the main consequence of 9/11 was that the release of the R2P report was hardly noticed outside the esoteric circles involved in its production.

The R2P guidelines would have avoided the big-power vigilantism that was clearly present in the NATO intervention in Kosovo. But the R2P effort was given a huge body blow by the biggest big-power vigilantism of our time: the invasion of Iraq. The R2P approach has since been struggling to take-off, but seems to have got mired in the NGO-civil society universe without gaining much support among established states whose sovereignty R2P is trying to redefine. The controversy involving the ICES in Colombo suggests that Sri Lanka is straddling both sides of the R2P divide-the NGO side advocating R2P and the governmental side assailing R2P. Indeed, it would seem that the ICES has been buttering both sides of the R2P bread as well-with ICES, Colombo, promoting R2P and those associated with the ICES, Kandy, railing against it. It is also fair to say that the furor over ICES, Colombo, has been well orchestrated and the fears after Kosovo have been cleverly articulated by the government to buttress its current military policy.

[Villagers going to the local market in Bogoro walk past a Bangladeshi patrol unit of the United Nations Mission in the Democratic Republic of the Congo (MONUC). UN photo Martine Perret]

R2P: good idea, bad process

To my mind, the concept and the framework of R2P are perfectly defensible, but the process through which the R2P approach is being advanced leaves much to be desired. For an approach that strikes at the heart of the current world order, namely, the building block of the sovereign state, the process of promoting it relies too much in the NGO universe and too little in the state sector. The very status of the R2P approach has come under question. It is claimed that R2P received endorsement by a summit of world leaders in 2005, the 60th anniversary of the UN. Koffi Annan who some thought would not last long at the UN after his 1999 “challenge of humanitarian intervention”, is said to have described R2P as “one of his most precious achievements.” On 14 February this year, three days before the Kosovo declaration of independence, a new Global Centre for R2P was established at the UN headquarters in New York. The question, though, is how many UN member states have individually endorsed this and are seriously supporting it.

In bureaucratic terms, the reference to R2P is buried in two out of 178 paragraphs in the 2005 UN General Assembly Resolution. But the record of individual endorsement is not overwhelming. Many non-Western countries have not endorsed R2P, India seems not to have taken a position, while Sri Lanka appears to have endorsed it while requiring clear language in regard to the appropriate use of action associated with R2P. The language of the two paragraphs provides for the application of R2P under the authority of the UN, a requirement that was breached by the NATO intervention in Kosovo.

But as I pointed out last week, NATO intervention was precipitated by the level of violence in Kosovo and has been vindicated by the subsequent restoration of law and order, the restoration of democratic governments in Kosovo and Serbia, and their recent peaceful separation. The Iraq invasion, on the other hand, is a clear violation of every formal international tenet and has had no material justification either before or after the invasion. The search for Weapons of Mass Destruction was a spurious reason to begin with and is now thoroughly unsubstantiated. US President George Bush and British Prime Minister Tony Blair who led the war on Iraq are now spurned by their own people for totally misleading them.

Those who criticize R2P as nothing more than “a license for the white man to intervene in the affairs of dark sovereign countries,” should not overlook the fact that the application of R2P is clearly placed under the authority of the UN. As well, the preparation of the R2P report was undertaken by a representative cross-section of experts and advisers from both Western and non-Western countries and through a consultative process that touched many non-Western cities including Cairo, Maputo, New Delhi, St. Petersburg and Santiago. But the process does not seem to have made any penetration into the state sector in these countries. So while consultations were held in Cairo and Delhi, the governments of Egypt and India have not come forward to endorse R2P.

The core principles of R2P are unexceptionable and they stress that state sovereignty implies responsibility to protect its people and that when a state fails to fulfill this responsibility, the principle of non-intervention between states gives way to the international responsibility to protect the same people. But this international responsibility can only be exercised under strict guidelines involving the responsibility to prevent, the responsibility to react and the responsibility to rebuild. They also involve the role of member states, regional organizations, the UN agencies and the Security Council.

These principles are consistent with the direction of changes in the global building blocks that have for too long been fixated on the nation-state. As a concept, R2P privileges the more fundamental and less reducible principles of justice, freedom, equality and humanity, from which the categories of state, sovereignty and self-determination are derived and whose protection and enhancement they are intended for. A state that does not guarantee and provide justice, freedom and equality to all its citizens regardless of ‘pre-political’ differences loses its reason for being. Equally, an organization that claims to exercise the right of self-determination of a people becomes abominable and insupportable if its actions violate the very principles that are both the reason for and the purpose of self-determination.

While the R2P concept is supportable, ‘operationalizing’ it is to walk through a political minefield. The current attempts to promote R2P without sufficiently engaging state agencies are proving to be counterproductive. Sri Lanka supported the 2005 UN Resolution including the two R2P paragraphs during the last days of the Kumaratunga presidency, and before the election of Mahinda Rajapakse as President. Since then it has been downhill for the Sri Lankan peace process and its support by international NGOs. It is therefore puzzling that ICES, Colombo, decided to undertake an R2P related project in Colombo’s current political climate. Whether it is misplaced idealism or simple revenue motivations, by undertaking the R2P project in a hostile climate, ICES, Colombo, has shot itself in the foot and given the island’s political scoundrels another stick to attack everyone who opposes the present government’s stubborn insistence on a military solution.

(Note: An earlier version of this article published elsewhere, erroneously indicates that the present Sri Lankan government supported the UN Resolution including the two paragraphs on R2P. The error is regretted.)

Related:

-Tragic Crisis Surrounds The Colombo I.C.E.S, by D.B.S. Jeyaraj
- The Attacks on Civil Society Organizations – by Sumanasiri Liyanage