Sri Lanka: Time for International Action

On 8 January 2008, the Sri Lankan Minister for Nation Building, DM Dassanayake was killed when his convoy was hit by a powerful roadside bomb blast allegedly planted by Liberation Tigers of Tami Eelam (LTTE) near the capital, Colombo. This killing follows the killing of LTTE’s Political wing chief S P Tamilselvam and Intelligence wing chief "Colonel" Charles by the Sri Lankan security forces.

These deaths bring Sri Lanka’s escalating conflict into sharp focus. On 2 January 2008, the government of Sri Lanka formally withdrew from the Norwegian brokered Cease Fire Agreement (CFA). Norway expressed concern that the Sri Lankan move was a “serious step” which would further escalate the violence in the island nation. On 3 January 2008, UN Secretary-General Ban Ki-moon regretted Sri Lankan government’s decision to terminate the CFA. He urged “all concerned to ensure the protection of civilians and enable humanitarian assistance to be provided to affected areas and underlined the urgent need to end the bloodshed in Sri Lanka through a political solution.” The European Union, the United States, Japan and Canada also expressed deep concerns over the decision.

 

The CFA ceased to function long ago. The Sri Lanka Monitoring Mission (SLMM), responsible for monitoring compliance of the CFA, has been unable to issue rulings on violations since July 2006. Despite this the CFA has provided a comfortable illusion for the international community to prevaricate. The withdrawal clarifies the reality: Sri Lanka has returned to civil war.   

 

On 4 January 2008, the United States suspended export of defence equipment and services to Sri Lanka in view of Colombo’s poor human rights record. India’s Prime Minister Manmohan Singh had to cancel his forthcoming visit to Colombo on 4 February 2008 on the occasion of Sri Lanka’s Independence Day.

 

Yet, these measures are inadequate and international community must act with the alacrity the war in Sri Lanka deserves.

 

I. How did the CFA fail?

 

The Cease Fire Agreement signed in February 2002 has been repeatedly violated with impunity both by the Sri Lankan government and the LTTE. Indeed, no Sri Lankan government (led by the majority Sinhalese) has shown any intention of resolving the problems of the ethnic Tamils so far. In March 2004 the then government of the United National Party (UNP) split the Karuna faction from the LTTE. The Sri Lankan government then began a proxy war with LTTE using the Karuna faction. The CFA was in tatters.

 

The failure of the peace process underlines the inherent weaknesses in small country peace brokerage. Norway never had the necessary leverage in the peace process, nor is it ever likely to have. In Sri Lanka, Norway has been little more than a messenger.

 

The mandate negotiated by the Norwegians for the SLMM never had sufficient powers, size, capacity or political backing to play an effective protection or confidence building role. Both the government and the LTTE felt able to ignore its recommendations from the start. Its monitors were often denied access to areas where serious incidents of human rights violations had occurred. The only real power such monitoring missions ever enjoy is a function of the level of their international backing. And in this the international community has been at best lukewarm.

 

The United States has never been able to look beyond the Al-Queda prism. In the Oslo conference in November 2002, the US representatives refused to share dais with the LTTE representatives. The US also did not allow the LTTE representatives to attend the April 2003 Washington Development Conference on Sri Lanka – the preparatory conference for the Tokyo conference.

 

India, the most important player with a stake at the national level, has always been unsure of its own role, but very certain about its veto on any external attempts to resolve the conflict. It refused to join the Co-Chairs. It participated in the Washington Development Conference but not the Tokyo conference itself that laid down the framework for development and the peace process. India is not a formal participant in the Colombo donor's group. Yet, it wants to be informed of each and every development on the issue. Norway had to brief New Delhi either on the way to Colombo or while returning from Colombo.

 

II. Violations of international humanitarian law and human rights law

 

Without reform of the security forces and the forces of non-state actors there is no reason to hope that humanitarian and human rights violations will reduce. Killings by the Sri Lankan security forces appear to be rising. According to one estimate, about 5,000 persons have been killed by both sides since early 2006 and about 70,000 since the war broke out in 1983. [1]

 

The Sri Lankan Air Force continues to bomb indiscriminately in LTTE held areas. It also continues to issue absurd declarations about the number of the LTTE cadres killed in the aerial attacks.

 

The LTTE has also been responsible for violations of humanitarian law. On 2 January 2008, at least four persons including three civilians died and about 20 others injured when suspected LTTE exploded a bomb targeting a military bus in Colombo. [2] On 5 December 2007, at least 15 civilians died and 38 others were injured in a landmine attack allegedly by the LTTE on a crowded bus in northern Sri Lanka. [3]

 

The actions of both sides constitute a clear failure to respect the basic International Humanitarian Law (IHL) principle of making the distinction between those who are directly participating in hostilities and those who are not. This amounts to indiscriminate use of lethal force. The principle of distinction between civilian objects and military objectives is a norm of customary international law applicable in non International armed conflicts: the parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects. But, indiscriminate use of lethal force increases the risks of the civilians exponentially.  

 

III. Enabling a deterioration in human rights practices

 

The resumption of war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) has been accompanied by familiar widespread human rights violations by both sides. The LTTE has continued attacks on the military and Sinhalese civilians. It continues to violently repress Tamil dissenters and as well as forced recruitment of both adults and children.

The Sri Lankan government has been committing extra-judicial killings and enforced disappearances. Disappearances and abduction are occurring at a disturbing rate. The Sri Lanka Human Rights Commission estimated roughly 1,000 cases in 2006.  

 

The Sri Lankan government demonstrated little commitment to human rights during the peace process. In November 2006, the International Independent Group of Eminent Persons (IIGEP) headed by the former Chief Justice of India, P.N. Bhagwati was established to observe the functioning of the President’s Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights set up by President Mahinda Rajapaksa. The establishment of the IIEGP was successful in one thing: the government used it to scuttle international scrutiny following the massacre of 17 aid workers, ostensibly by the Sri Lankan security forces on 5 August 2006 at Muttur, Trincomalee.

 

As expected, the IIGEP has been ineffective as the Sri Lanka government continues to disregard its observations and recommendations on the functioning of the Presidential Commission of Inquiry. The IIGEP has repeatedly expressed concerns over the functioning of the Commission of Inquiry. In its latest public statement of 19 December 2007, the IIGEP stated that the Presidential Commission of Inquiry’s process “falls short of international norms and standards. The Commission’s work also lacks transparency. For instance, all sessions conducted by the Commission have been held to the exclusion of the public, the victims and their families and, on occasions the IIGEP”. [4]

 

Rather, the Sri Lankan government has been enabling deterioration in human rights practices. It has granted ever greater powers to the security forces and diminished the value of its own democratic institutions. In 2005 the government expanded existing draconian Emergency Regulations. The Emergency Regulations granted the security forces excessive powers of detention and arrest. With high levels of prevailing impunity the government uses the legislation against journalists who dissent from the government’s security driven focus. In December 2006 the government gave further powers to the security forces under an Emergency Regulation ‘the Prevention and Prohibition of Terrorism and Specified Terrorist Activities’. The regulation is loosely worded, allowing for the criminalization of a range of legitimate activities that are protected under Sri Lankan and international law. Notably the legislation strengthens impunity allowing prosecution exemptions for members of the security forces deemed to be acting in “good faith.”

 

In December 2007 the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights – the international body that regulates national human rights institutions – reduced Sri Lanka’s NHRC to the status of an ”observer” because of government encroachment on its independence.

 

Speaking earlier in 2007 Champika Ranawake, Minister of the Environment summed up the direction of these policies:  “Of course people will die, what can we do about it? Are you asking us to spare them? They are traitors. If these traitors to the nation can’t be dealt with through existing laws, we know how to do it. If we can’t suppress them with the law we need to use any other ways and means” [5] .

 

IV. Prospects  

 

An analysis of the immediate military and political prospects for the belligerents suggests, as it always has, stalemate. On 4 January 2008, India’s Foreign Minister Pranab Mukherjee stated that there could be no military solution to the Sri Lanka crisis and the problems should be resolved through “dialogue and discussion”. [6] But such semantics have little utility if they are not backed by consequence in the face of gross human rights violations against the Tamils accompanied by the destruction of Sri Lanka’s democratic protections. With the withdrawal of the Sri Lankan government from the CFA, the protections for the civilians have been completely removed.

 

The increasingly repressive framework is couched in anti-terror justifications; arguments that stress that the existing legal and social framework is unable to adequately respond to the exigencies of the security threat.  The end of the CFA has reinforced a security dominated counter-insurgency strategy to the exclusion of a wider strategy encompassing political and development elements.  An exclusively security dominated strategy necessitates the removal of legal and societal checks and balances that are perceived as obstacles.

 

The international community must immediately act to intervene in Sri Lanka, both to address rights and to find a sustainable solution to the conflict. Key actors such as the United States, United Kingdom and India must apply sufficient pressure to realize an effective ceasefire agreement. And while the government and the LTTE are clearly opposed, they should press for an effective nation-wide system of human rights monitoring. Human rights monitoring remains the key to tackling impunity and to reduce the cycle of violence. The absence of effective monitoring is used by both sides to the conflict to deny their involvement in grave human rights violations and hence the need to take any action to prevent such activities from recurring. This in turn degrades domestic mechanisms of protection still further.

 

In ‘putting off’ human rights and accountability, the current strategy of the government is contributing to a deepening of the conflict, degrading the institutions of the State and ultimately playing into the hands of those favouring a continuation of the war.  

 

As an immediate measure, the United Kingdom must prosecute Colonel Karuna - now residing in the UK - for violations of the Statute of the International Criminal Court. While putting pressure on the Sri Lankan government, all armed groups – whether LTTE or Karuna faction – must be sent a stern message that violations of international humanitarian and human rights will not be tolerated.

 

The counter insurgency strategy of the Sri Lankan government is likely to provide the environment for a further deterioration in human rights. Impunity for violations of human rights and humanitarian norms would fuel ever deepening cycle of conflict and a descent into authoritarianism.