The Human Rights Bind

by Amantha Perera, The Sunday Leader, Colombo, October 29, 2006

Renewed push for international monitoring mission

Sri Lanka is among seriously bad company. Human rights activists are slotting the country with others like Nigeria, Burma and Sudan. The country's human rights record has been under tremendous scrutiny and last week once again calls renewed for the setting up of an international human rights monitoring mission.

 It was Philip Alston, UN Secretary General's Special Rapporteur on extra-judicial, summary or arbitrary executions who led the call. Addressing the Third Committee of the General Assembly on October 20, Alston set aside a major portion of his speech to, in his view, the fast deteriorating human rights situation that was waiting to collapse.

On the brink of a crisis

 "Today the alarm is sounding for Sri Lanka. It is on the brink of a crisis of major proportions," he said. "The practice, however, sometimes appears to be one of an alarm followed by silence followed by disaster. The problem of course, is that when the alarm sounds, governments and others can opt to simply put in their ear plugs, hope for the best, and express surprise when disaster strikes."

He along with other UN officials have sounded the alarm since September, during the sessions of the UN Human Rights Council in Geneva. It was UN Human Rights Commissioner Louis Arbour who first put the subject to the Commission when she said that she supported the setting up of an interntional mission. She was followed by Alston and in between interntional watchdogs like Human Rights Watch, Amnesty International, Asian Centre for Human Rights have joined in with support. HRW in fact released a 53-page briefing on Sri Lanka during the week when Alston and Arbour first came out with their suggestions.

The UN Human Rights sessions commenced a month after the killing of 17 local aid workers attached to the French charity - Action Contre le Faim - that hit interntional headlines. Things were further compounded when 10 Muslims were killed in Ampara, on September 10, a little over a month after the August 4 killing of the ACF workers in Muttur.

No proper investigation

No proper investigation has been concluded on either of the two incidents and accusing fingers have been pointed at government forces in both cases. In August President Mahinda Rajapakse was in Washington to address the UN sessions, soon after his return he announced that he was inviting interntional experts to form a human rights mission. But several days after the announcement was made, the participation of the interntional experts was reduced to that of observers. If anything the calls for the mission have intensified since then, despite efforts taken by Human Rights Minister, Mahinda Samarasinghe to project an impression that there would be interntional participation in the commission.

No commission

Samarasinghe told The Sunday Leader earlier this month that the Presidential Commission to investigate human rights abuses would be set up during the first half of this month. No commission has been set up as yet and last week too the government said it was to be set up soon. He also said that the government had held discussions with interntional organisations and that they had expressed their willingness to participate in the commission. He went as far as to say that the government was waiting for the response from organisations like HRW and AI on the terms of reference.

Representatives from HRW and AI were in Sri Lanka along with a legal officer from the UN Human Rights Commission recently. However, HRW's senior legal advisor James Ross told The Sunday Leader that at no time had HRW opened any official dialogue with the government and also denied that it had been informed of the terms of reference or was considering sending an observer to the commission. Ross who had met President Rajapakse and Minister Samarasinghe separately said that HRW was pushing for international observers and nothing short of it.

Alston's thinking

Alston appeared to be thinking along the same lines. He nevertheless, acknowledged that the influence of the UN Human Rights Council was limited, "the issue was placed squarely before the Human Rights Council last month, but the signals are that any action the Council might take in November (at the next sessions) will do very little to make a difference as this tragic situation swells and threatens to reach bursting point."

He requested the General Assembly to push for the setting up of a mission, a highly unlikely scenario, given the influence of Asian countries on such issues. "My report thus urges the General Assembly to call upon the United Nations Secretariat to establish a full-fledged international human rights monitoring mission in Sri Lanka."

The Asian Centre for Human Rights suggested that the government had actively resisted moves at the council meeting to react favourably to any such request. The governemnt appeared to be hedging its bets on the commission.

Minister Samarasinghe had earlier told The Sunday Leader that there was no need  for the interntional monitors, as the local commission would be adequately empowered. Others like Defence Spokesperson, Minister Keheliya Rambukwella said that the government was not about to dance to every tune set by the international community.

But given Sri Lanka's track record on investigations and prosecutions of human rights cases, no one who was supporting the setting up of the international mission was about to believe that the local commission would be successful. "I have welcomed some of the government's recent initiatives. It would be a mistake, however, to think that the national commission of inquiry will be anywhere  near sufficient to meet the challenge. This is so even if the government undertakes, as I believe it now should, to make public all of its findings and to act affirmatively on its recommendations," Alston said.

Intl.  involvement

He has called for more vigorous international involvement in the country. "The first challenge is to acknowledge the need for significantly more sustained and high level international involvement than thus far been the case in efforts to pressure the parties to move towards a peaceful resolution of the conflict."

He believes that interntional monitors would prevent all the parties in Sri Lanka appearing to be respecting interntional human rights.

"The parties feel that they are able to violate human rights and humanitarian law without losing international legitimacy so long as they commit abuses in a manner that permits them maximum deniability. Monitoring could foreclose the strategy of deniability and push the parties to show actual respect rather that simulated respect for human rights."

The visibility that has been generated by the likes of Alston and HRW on the human rights issue has pushed it into the limelight.

"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 defence 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," US Assistant Secretary of State, Richard Boucher said in Colombo.

Upkeep of HR

The upkeep of human rights was even included in the MoU signed by the SLFP and the UNP. "The United National Party reiterates its commitment to extend support to the government in the pursuit of a negotiated settlement to the on-going conflict while opposing terrorism in all its manifestations and upholding human rights," the MoU read.

Last week Foreign Minister Mangala Samaraweera indicated that the government might be thinking of working with the UN Human Rights Council. "As a part of this constructive engagement, the government recently consulted the Office of the High Commissioner for Human Rights with regard to the decision taken by President Rajapakse to invite an international independent group of eminent persons to observe the conduct of investigations and inquiries into certain alleged human rights violations by the Presidential Commission of Inquiry, which will soon be appointed.

The Government of Sri Lanka appreciates the contribution made by the Office of the High Commissioner for Human Rights in this regard and we look forward to working with OHCHR in this endeavour," he said at the UN compound in Colombo on the 61st anniversary of the UN.

Samaraweera also brought attention on the resumption of talks. "Let there be no romanticising of the LTTE, with whom we are now negotiating to find a lasting peace. Sri Lanka is not a run of the mill case of conflict resolution but one of the most complex and nuanced conflicts in the world. There are no easy answers. As such, it behoves everyone involved to keep this in mind when considering our situation."

Violations

Talks itself did kick the human rights issue back into the forefront. HRW wrote to both the government and the Tigers, and said that all parties, including the Karuna group have been violating international norms and whatever the outcome of the talks, both sides should take measures to safeguard human rights.

"Whatever the outcome of those talks, both sides can implement measures to significantly improve the protection of the civilian population. Should you so desire, we would welcome the opportunity to discuss these measures with you," HRW Asian Division Director, Bard Adams said in the letter. The week also witnessed a push to get human rights on to the agenda of the talks.

Though, the onus has been on the government, international agencies have been critical of the Tigers and the Karuna group as well.

According to Alston the proposal for the setting up of an international human rights mission first came about almost an year ago when he was in the country last December. Even then there was resistance and lack of consensus on how to set up the mission.

"It was generally understood that no domestic mechanism could respond effectively to conflict-related killings, and that remains the case today.  Most interlocutors from civil society thought that a United Nations monitoring mission would be the most effective mechanism, in light of the organisation's established expertise in human rights monitoring and lack of political involvement in the peace process.

In contrast, government officials and representatives of LTTE expressed their shared preference for strengthening the Sri Lanka Monitoring Mission (SLMM), the body established by CFA to monitor ceasefire compliance, rather than introducing an additional monitoring mechanism focused on human rights compliance," he said in a report presented to the UN Human Rights Council last month.

Capacity of monitors

The violence that erupted from July with the closure of the Mawilaru sluice gates has however  prompted to Alston re-evaluate the capacity of the monitors.

"In April 2006, SLMM began to exhibit a greater concern with violence directed against civilians, referring for the first time to the 'extra-judicial killings of civilians.'  The creativity of the Government of Norway and the increasing assertiveness of SLMM on behalf of human rights are truly commendable; however, for reasons beyond their control, the insufficiency of SLMM to meet the need for human rights monitoring in Sri Lanka is now evident. SLMM was never going to be a perfect human rights monitoring mechanism, but today even the opportunity for it to serve as a 'second best' option may be passing," he said in the report. Ironically new SLMM Head Lars Solvberg too has come out supporting the formation of the interntional human rights mission.

"The fundamental reason for SLMM is that it exists at the mercy of the parties. At the time of writing, CFA remains in force. However, the Government or LTTE could elect to unilaterally terminate CFA at any time, thus withdrawing the mandate of SLMM. Regardless whether CFA comes to be terminated, the ability of SLMM to conduct monitoring has been gravely undermined

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Excerpts from the Alston Report

The requirements for effective monitoring in the particular situation of Sri Lanka today:

 The details of alleged incidents, the results of investigation, and the basis for the monitoring mission's determination of responsibility should be made public (even if information is redacted to protect individuals).

 The investigative process should be designed to prioritise the protection of witnesses against intimidation and violence.

 The mandate of the monitoring mission should not be geographically limited, inasmuch as conflict-related human rights violations occur throughout the country.

 Because a key purpose of monitoring is to limit the possibility of conducting deniable human rights abuses, the monitoring mission should command a high level of investigative and forensic capacity. This requires, inter alia, persons with police training, persons with medical training, and Sinhala and Tamil interpreters.

 The monitoring mission should be independent of any peace process. Two implications of this are that: Regardless whether 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.

This list should not be considered remotely comprehensive. In particular, the design of any monitoring mission must draw upon the lessons learned from past initiatives. The intention of this list is simply to highlight certain requirements for effective monitoring that are specific to Sri Lanka in light of the dynamics and logic of human rights abuse in that country. The United Nations would be well situated to establish a mission fulfilling these requirements.

The undermining of independent oversight bodies: While my report was critical of the government's near-complete failure to prosecute or even discipline members of the security forces who commit extra-judicial executions, I credited the government with taking an important step towards accountability by constitutionally guaranteeing the independence of key oversight bodies, including the National Human Rights Commission (HRC) and the National Police Commission (NPC).

I reported that, however, the constitutionally granted authority of NPC to reform the police force had already been challenged by the Inspector General of Police (IGP) and that NPC had received relatively little support from other political actors in this turf war. I noted that, "While most members of civil society and government that I talked with had favourable impressions of NPC's efforts thus far, some also feared that, in struggling to insulate the police from politics, it would fall victim to politics itself." Since my visit, HRC and NPC have both fallen victim to politics.

The very concept of a body designed to oversee the conduct of the executive branch of government is that it be independent of that branch. The mechanism for appointments to HRC and NPC laid out in the 17th Amendment to the Constitution was designed to ensure such independence. Under its provisions, there are two stages of appointments.

First, various political actors, including parties in opposition, are permitted to select members of the Constitutional Council. The Constitutional Council, in turn, selects the members of various bodies, including HRC and NPC.

The Constitutional Council has not operated since a controversy over who has the authority to select one of its members erupted in March 2005. When the terms of the commissioners of NPC and HRC ended, in November 2005 and April 2006, respectively, those bodies became defunct. The President has subsequently selected and appointed individuals to HRC and NPC, circumventing the procedure specified by the 17th Amendment.

Numerous domestic actors have argued that for the Constitutional Council to carry out its duties despite the failure to appoint one of its members would comply with the constitutional procedure. It is not, however, my place to try to resolve a domestic constitutional crisis.

But it does seem essential to stress the incompatibility of the current 'solution' with international standards. 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.

Similarly, the appointment of a Cabinet-level Minister for Disaster Management and Human Rights cannot, despite some clear achievements on the part of the Minister, be considered to substitute for independent human rights oversight.

Source - Interim report on the worldwide situation in regard to extra-judicial, summary or arbitrary executions submitted by Philip Alston, Special Rapporteur, September 6, 2006.

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