[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for: 18 October 2006
Review: 137/06

Sri Lanka's proposed International Commission of Inquiry:
OHCHR, eminent organisations and persons - watch out

As the war between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) escalates, a number of peace envoys - Mr Yasushi Akashi, Representative of the Government of Japan for Peace Building, Rehabilitation & Reconstruction in Sri Lanka and the Norwegian facilitators visited Sri Lankan recently to salvage the peace process. The United States' Assistant Secretary of State for Central and South Asian Affairs, Mr Richard Boucher, is scheduled to visit Sri Lanka on 20 and 21 October 2006.

In the meanwhile, the Sri Lankan Supreme Court headed by Justice Sanath Nanda Silva did a rightwing hit job, and in a judgement on 16 October 2006 it held the merger of North and Eastern provinces in 1988 as “illegal”.

The judgement of the Supreme Court of Sri Lanka confirms that Sinhalese majority government has repeatedly failed to address the grievances of the minority Tamils.  Asian Centre for Human Rights (ACHR) consistently held that ethnic Tamil minorities cannot have equal access to justice before the courts in Sri Lanka. However, the Sri Lankan government sought to suppress its failure to give justice to the Tamil minorities under the carpet of the "LTTE terrorism".

If the proposed peace talks are held on 28-29 October 2006, ensuring respect for human rights and international humanitarian laws and establishing accountability must not be undermined.

In this issue of ACHR WEEKLY REVIEW, ACHR discusses the current human rights concerns in Sri Lanka.

I. Massacre of the aid workers: Another test case for justice

Accountability for the massacre of 17 aid workers belonging to French NGO, Action Contre la Faim (Action Against Hunger, ACF) at Muttur in Trincomalee district on 5 August 2006 must be considered as an opportunity to restore the faith of the Tamil minorities in the justice system of Sri Lanka.

The bodies of the 15 slain workers, majority belonging to Tamil minorities, were recovered at the front lawn of the ACF office. Two other bodies, who had apparently been killed while trying to flee the scene of the attack, were recovered in a car. "The bodies of deceased were all face downwards on the front lawn of ACF office, seemingly lined up and shot at very close range." – stated a Fact Finding Mission of the Consortium of Humanitarian Agencies.

Following the massacre, Sri Lankan military forces blocked off the area and prevented ACF officials from retrieving the bodies of their colleagues. If indeed the massacre was committed by groups other than the military, the security forces would have given unrestricted access. Not surprisingly, on 30 August 2006, the Sri Lanka Monitoring Mission (SLMM) held the Sri Lankan army responsible for the killing of 17 aid workers after conducting inquiries. The SLMM declared that it "cannot find reasons for the restrictions of movements... acceptable, thereby strongly indicating the Government of Sri Lanka's (GoSL) eagerness to conceal the matter from the SLMM".  Besides, the SLMM held that "Taking into consideration the fact that the security forces had been present in Muttur at the time of the incident, it appears highly unlikely to blame other groups for the killing.”

The Sri Lankan security forces managed to kill all the witnesses, especially those two victims who attempted to flee by car, but circumstantial evidence clearly indicates their involvement in the massacre.

Sri Lankan government reacted negatively to the report of the SLMM. It ordered a magisterial inquiry headed by Anuradhapura Magistrate Wasantha Jinadasa. If the past inquiries into similar massacres are any yardsticks, the magisterial inquiry will hush up the truth.

II. A sham inquest

In a further damage limitation exercise, on 4 September 2006, President Mahinda Rajapaksa stated that government will invite an international independent commission to probe "abductions, disappearances and extra-judicial killings" in all areas in the country. “The commission will have full powers to investigate all such incidents (like the Muttur massacre) and the Security Forces and the Police have been requested to extend their fullest cooperation” to the Commission.

In the same statement, the Sri Lankan government however rejected any international inquiry into the Muttur massacre. It stated, “The Government has totally rejected these allegations (involvement of the security forces in the Muttur massacre) and is awaiting the outcome of a judicial investigation with the assistance of foreign experts".

Sri Lankan government was forced to invite Australian forensic experts to “observe and, at the request of Sri Lanka authorities, provide technical advice and assistance for the conduct of forensic investigations” of the slain aid workers to address doubts pertaining to the conduct of post mortems. The staff at the Trincomalee Hospital reportedly complained against the unusual procedure for performing autopsies of the slain activists. The hospital's judicial medical officer was reportedly on leave. The government brought in a replacement from Anuradhapura rather than allowing the hospital director to conduct the autopsies.

The government had no other option but to exhume the dead bodies and conduct autopsies in presence of the Australian observers. The lack of sincerity of the government is reflected from the fact that the representatives of the International Commission of Jurists were not allowed to observe the inquest.

III. International Commission of Inquiry: A stamp for credibility?

President Rajapakse has made it clear that the socalled International Commission of Inquiry is being established essentially “in the light of attempts being made in various quarters to discredit the Government, Security Forces and the Police.” In other words, Sri Lankan government is setting up the International Commission of Inquiry to give "credit" to the Sri Lankan government as the SLMM has allegedly been discrediting it.

Since then, Sri Lankan government has approached a number of non-governmental organisations and eminent persons including former Chief Justice of Supreme Court of India and Vice Chairman of the UN Human Rights Committee, Justice P N Bhagwati.

In the meanwhile on 15 September 2006, a five-judge bench of the Supreme Court headed by Chief Justice Sarath N Silva literally poured cold water on President's Rajapakse's proposal by ruling that citizens have no right to lodge complaints with the United Nations Human Rights Committee. The court held that the country's accession to the Optional Protocol to the International Covenant on Civil and Political Rights was "unconstitutional and illegal" as it was signed by the previous President and not adopted by parliament.

As per the Supreme Court order of 15 September 2006, President's order on the proposed International Commission of Inquiry will not be "legal" unless approved by the parliament. It is another matter that Justice Sanath Nanda Silva may adjudicate later whether it requires simple majority or two-third majority in the parliament to make such a commission legal!

Notwithstanding the ulterior motives of the Sri Lankan government, the proposal on the International Commission of Inquiry evoked enthusiastic response. Many interested parties including the Office of the United Nations High Commissioner for Human Rights (OHCHR) have been holding parleys with the Sri Lankan government on the Terms of Reference. Those who are holding such parleys with the Sri Lankan government must first request the President's Office to clarify the legality of such an International Commission of Inquiry in the light of the Supreme Court order of 15 September 2006. 

As the United Nations Special Rapporteur on extrajudicial executions, Professor Philip Alston while welcoming the announcement by Sri Lanka's President Mahenda Rajapakse of his intention to invite an international commission stated, “the challenge is to ensure that the commission is independent, credible, effective, and empowered to make a difference. If the commission does not meet these requirements the initiative will fail and set back the cause of peace. If the requirements are taken seriously the move will prove to be courageous and could break the vicious circle that currently grips the country".

Sri Lanka has so far failed to spell out as to how the proposed international commission of inquiry will be made independent, credible, effective, and empowered. ACHR firmly believes that the International Commission of Inquiry will fail to take off as it is being established essentially to "discredit" the SLMM that any independent organisation or individual of eminence will not do such a dirty task.

As for the peace talks, both the Sri Lankan government and the LTTE must invite monitoring missions of the United Nations High Commissioner for Human Rights and necessary resolution can be adopted at the UN Human Rights Council to report to the UN. When the Cease-Fire Agreement was being negotiated, both the Sri Lankan government and the LTTE were equally reluctant to have UN monitoring. Therefore, they suggested to draft a human rights agreement (being facilitated by current UN Secretary General's Special Envoy to Nepal, Mr Ian Martin) in an attempt to avoid international monitoring and left the task of human rights monitoring to Sri Lanka's discredited National Human Rights Commission. Even the LTTE which rightly thrives on human rights violations by the Sri Lankan security forces reportedly opposed international monitoring because of its own dismal record of gross violations of human rights and fundamental freedoms. The NHRC of Sri Lanka or any other national institution of any State can not effectively monitor violations of human rights and humanitarian laws in the armed conflict situations.

As interim measures, Asian Centre for Human Rights endorses of the recommendations (not exhaustive as claimed) proposed by the Special Rapporteur Professor Philip Alston for effective monitoring in the particular situation of Sri Lanka:

 “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 prioritize 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 the CFA remains in force, the monitoring mission should not be called upon to investigate violations of the 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.”

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