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VIII. Sri Lanka and the International Community

Position of the international community

The Sri Lankan government’s unwillingness to seriously address the problem of “disappearances” has come at increasing cost to its relations with concerned foreign governments. The United States and European Union governments have raised concerns about the deteriorating human rights situation in an increasingly forceful manner, but the Sri Lankan government has to date spent more energy dismissing their concerns than taking action to put them to rest. Ultimately, more concerted action is needed by the international community, particularly the Indian and Japanese governments, to respond to the crisis and help bring about tangible improvements on the ground.

In 2007, US public criticism of the Sri Lankan government’s human rights record, as well as that of the LTTE, was bolstered by the threat of financial and military sanctions and calls for a UN monitoring mission in the country.

A number of US congressmen have also addressed the human rights crisis in Sri Lanka, highlighting the issue of large-scale abductions and killings and urging the US government to take action to address the situation.³²⁹

The State Department also took a stronger stance. During his visit to Sri Lanka in May 2007, Assistant Secretary of State for South and Central Asian Affairs Richard A. Boucher voiced his concerns about the worsening human rights situation in the country, and specifically about the growing number of abductions and killings.³³⁰

At meetings with leading Sri Lankan human rights activist Sunila Abeysekera in late October, Under Secretary of State for Political Affairs R. Nicholas Burns and Under Secretary of State for Democracy and Global Affairs Paula Dobriansky also expressed “great concern about the human rights situation in Sri Lanka.” They added that “the Sri Lankan government needed to work far more intensively to end such grave human rights violations as extrajudicial killings, forced disappearances, and torture, as well as on-going media censorship by government security forces.”³³¹

The suspension of military assistance has been the most significant demonstration of US concern about the developments in Sri Lanka.

The US suspended the issuance of licenses for the sale or transfer of military equipment and services to Sri Lanka in accordance with the Consolidated Appropriations Act, 2008, signed into law in December 2007. The Act provides that no military assistance, including equipment or technology, will be made available to Sri Lanka unless the government brings to justice members of the military responsible for gross human rights violations; provides unimpeded access to humanitarian organizations and journalists; and agrees to the establishment of a field presence of the OHCHR “with sufficient staff and mandate to conduct full and unfettered monitoring throughout the country and to publicize its findings.”³³²

In support of the legislation, Senator Patrick Leahy emphasized the gravity of the human rights problems in Sri Lanka and dismissed efforts by Sri Lankan authorities to belittle these concerns. Addressing the Senate on November 2, 2007, he stated:

We have been increasingly concerned with reports of abuses by Sri Lankan Government forces—not from the LTTE or their supporters as some have inaccurately claimed but from the United Nations, the Department of State, and international human rights organizations. These reports are not “disinformation” or “misinformation” as some Sri Lankan officials have alleged. Rather, they contain specific, documented, consistent information indicating a steady increase in serious human rights violations by both Sri Lankan Government forces and the LTTE since the collapse of the ceasefire.³³³

In December 2007, the Millennium Challenge Corporation (MCC), a US government corporation that provides assistance to developing countries, “deselected” Sri Lanka as a country eligible for funding because “of concerns about the escalating conflict and significant human rights problems such as forced disappearances, extra-judicial killings and challenges to media freedom.”³³⁴

Following the visit of the UN High Commissioner for Human Rights to Sri Lanka in October, the US government expressed its strong support for the expansion of the OHCHR office in Sri Lanka as an international monitoring mechanism (see below).

The European Union has also repeatedly voiced concern about human rights violations by both the government and the LTTE, including widespread enforced disappearances. In April 2007, the EU stated:

In recent years, Sri Lanka has seen a gradual erosion of human rights standards and a systematic increase of abuses and human rights violations. The human rights and humanitarian situation in Sri Lanka has deteriorated drastically since April 2006. Credible sources - including the UN and reputable Human Rights advocates and organizations - reported growing human rights problems, including unlawful killings, high profile killings by unknown perpetrators, child soldiers, politically motivated killings and disappearances.³³⁵

At the 6^th Session of the UN Human Rights Council, an EU representative emphasized that the EU is “very concerned with the serious and continuous violations of human rights and international humanitarian law in Sri Lanka,” and specifically mentioned the high number of abductions and enforced disappearances and extrajudicial executions.³³⁶

The efforts of the US and the EU to press for improvements in the human rights environment in Sri Lanka have been undermined by the inaction of the Indian and Japanese governments. India, while having a complex relationship with its far smaller neighbor, is well positioned to play a positive role. Japan is Sri Lanka’s largest bilateral donor and one of the co-chairs of the Tokyo donors’ conference.

To date India has refrained from publicly criticizing Sri Lanka over human rights and at this writing still has not supported any international action to address the human rights situation there, including UN human rights monitoring. Responding to Louise Arbour’s September 2007 address to the Human Rights Council, the representative of India welcomed the “positive attitude” of the Sri Lankan government to the high commissioner’s visit rather than enunciate genuine human rights concerns.³³⁷

Media reports on the Sri Lankan president’s October visit to India gave no indication that human rights issues were discussed in a serious way.³³⁸

Notably during Louise Arbour’s visit to Sri Lanka, the president’s brother and senior advisor, Basil Rajapaksa, cited India as an example of a power, which, unlike the UN, “was not acting as the policeman of the South Asian region, but was helping Sri Lanka solve its problems.”³³⁹

Japanese officials have made some statements calling for an improvement in the human rights situation in Sri Lanka, but as the single largest donor to Sri Lanka the Japanese government should speak out more often and more clearly, and do more to back up general statements of concern by pressing the Sri Lankan authorities toward greater accountability and expressing support for a UN human rights monitoring mission.

In June 2007, the Japanese special envoy to Sri Lanka, Yasushi Akashi, said during a visit that he “was aware that President Mahinda Rajapaksa was determined to safeguard human rights,” and pledged Japan’s continued assistance.³⁴⁰ Remarks from Japanese Foreign Minister Taro Aso just weeks later were less praising, but nonetheless were unlikely to elicit changes from Colombo. Following a Japan-Sri Lanka foreign ministerial meeting, Aso said that “he expected an improvement of the human rights situation in Sri Lanka,” and added that the deteriorating security situation “could affect economic cooperation.”³⁴¹ In January 2008, Yasushi Akashi also took a stronger position, noting that Japan “could be forced to review” its aid policy “if military action keeps escalating.”³⁴² Yet, so far, this cautious expression of concern has not translated into any change in Japanese policy.

Since October 2006, the position of Sri Lanka’s Asian partners has helped to thwart attempts to pass an EU-sponsored resolution on the human rights situation in Sri Lanka at the United Nations Human Rights Council.

In particularly critical commentary on the performance of the UN from a UN human rights envoy, Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, noted in his report to the 62^nd Session of the General Assembly that while the situation in Sri Lanka has “erupted into crisis” since 2006, “neither the [Human Rights] Council nor the [General] Assembly have seen fit to take any action” to address the “spate” of human rights abuses, specifically extrajudicial executions, being reported.³⁴³

In addition to Alston, a number of UN representatives and special mechanisms, as mentioned above, have expressed their grave concerns about the developments in Sri Lanka and called for urgent measures to address the situation. Some have specifically referred to the ongoing abductions and enforced disappearances and the failure of the government to bring the perpetrators to justice.

At the end of her October 2007 visit to Sri Lanka, Louise Arbour stated:

There is a large number of reported killings, abductions and disappearances which remain unresolved. This is particularly worrying in a country that has had a long, traumatic experience of unresolved disappearances and no shortage of recommendations from past Commissions of Inquiry on how to safeguard against such violations.³⁴⁴

She called for an adequate accountability process and urged the government to consider an early ratification of the new International Convention for the Protection of All Persons from Enforced Disappearance.³⁴⁵

The UN Working Group on Enforced and Involuntary Disappearances has raised the issue of continuing and new cases of “disappearances” with the Sri Lankan government, but with little meaningful response from the government. As mentioned above, the UN Working Group reported in January 2007 that it transmitted more cases of “disappearances” as urgent appeals to the Sri Lankan government in 2006 than to any other country in the world.³⁴⁶

The Working Group continues to name Sri Lanka specifically in its press statements, but with little meaningful response from the government. In March 2007, the Working Group expressed its worry over the large number of “disappearances” reported from Sri Lanka.³⁴⁷ Following its June 2007 session, the Working Group noted that its members “expressed deep concern that the majority of new urgent action cases are regarding alleged disappearances in Sri Lanka.” It reported that the government had yet to schedule a Working Group to visit the country, requested in October 2006 – though it is unclear to what extent the Working Group has followed up on its request.³⁴⁸ In a November 2007 statement, the Working Group named Sri Lanka as one of two countries with an “important number” of new cases of enforced disappearances.³⁴⁹

The government response to the international criticism

In dealing with the international community, the Sri Lankan government has engaged in both subtle diplomacy and public bluster. While conducting careful diplomacy with foreign governments and international institutions, it has publicly launched vicious personal attacks on respected international civil servants and others.

For example, in response to findings by Allan Rock, the UN Special Advisor on Children and Armed Conflict, that the pro-government Karuna group was abducting children into its forces with state complicity, the Sri Lankan government accused Rock of being an LTTE sympathizer.³⁵⁰

After John Holmes, the UN undersecretary-general for humanitarian affairs, said that Sri Lanka was for humanitarian workers “among the most dangerous places in the world,”³⁵¹ several government officials angrily rejected his remarks with personal attacks. “We consider people who support terrorists also terrorists,” said Cabinet Minister Jeyaraj Fernandopulle. “So Holmes, who supports the LTTE, is also a terrorist. This person tries to tarnish the image of Sri Lanka internationally.”³⁵² When UN Secretary-General Ban Ki-moon called such comments “unacceptable and unwarranted,” Fernandopulle was quoted in The Nation (Colombo) as saying that he “didn’t give a damn” what the UN secretary-general had to say.³⁵³

More recently, after UN High Commissioner for Human Rights Louise Arbour visited Sri Lanka and called for a UN monitoring mission to the country, the head of the government’s Peace Secretariat described her as having become “a football, to be kicked about at will, to score goals for terrorists and others who do not mind sharing a terrorist agenda provided it gets them their goals too.”³⁵⁴

Despite these remarks, the government repeatedly sought credit for its willingness to cooperate with UN human rights mechanisms.³⁵⁵ Sensing increased international dissatisfaction with the human rights situation in Sri Lanka, in 2007 the government engaged in a vigorous campaign to persuade various UN mechanisms and donor governments that the situation had substantially improved.

At the UN Human Rights Council in Geneva, the government left no stone unturned to block the EU-proposed resolution on the human rights situation in Sri Lanka. In the words of Human Rights Minister Samarasinghe, the Sri Lankan delegation had “to go the extra mile” and was “even out of breath” by the time it had concluded discussions with all the countries, which they “approached individually, collectively and went also to regional groups.”³⁵⁶

Government advocacy at the Human Rights Council sought to discredit reports by Sri Lankan and international rights groups without a sound factual basis for doing so. Officials portrayed allegations of widespread abuses as unfounded and exalted the various internal mechanisms the government has set up to address them.³⁵⁷

Also illustrative in this respect was the government’s response to proposed US legislation imposing human rights conditions on military assistance to Sri Lanka. In a letter to the US Senate Appropriations Committee, the Sri Lankan ambassador to the US insisted that Sri Lanka had already met all of the human rights conditions mentioned in the bill. On the issue of impunity, he argued that the government has “consistently taken action to bring the offenders to justice.” In fact, statistics attached to the letter demonstrate that since 2004 not a single member of the security forces has been indicted for an abduction or “disappearance.”³⁵⁸

In November, US Senator Patrick Leahy responded to the personal attacks as well as criticisms of the need for the proposed legislation:

It is regrettable that rather than explain why the Sri Lankan Government should not meet such reasonable standards when it is seeking millions of dollars in U.S. taxpayer assistance, some Sri Lankan officials have attacked our motives and falsely attributed our actions to LTTE propaganda. Others have insisted that they are meeting these standards already, when the facts clearly indicate that far more needs to be done.³⁵⁹

Instead of addressing the concerns expressed by foreign governments, the Sri Lankan government has persistently tried to create an impression that its aggressive advocacy is indeed winning over the international community. Following the 6^th session of the UN Human Rights Council in October, Minister Samarasinghe triumphantly reported that the government was “finally successful in convincing the member States that the human rights reports released on Sri Lanka were factually incorrect and the allegations are baseless.”³⁶⁰

Overall, the Sri Lankan government puts enormous resources into challenging the reputations and motivations of its international critics, while demonstrating little willingness to listen to the substance of their concerns and to take real measures to address them.

The need for a UN human rights monitoring mission

The failure of the Sri Lankan government to adequately address widespread human rights and humanitarian law violations has prompted growing national and international support for a human rights monitoring mission under the auspices of the UN Office of the High Commissioner for Human Rights.

Since 2006, Sri Lankan and international human rights groups, including Human Rights Watch, have sought the establishment of a UN monitoring mission. In 2007, some of Sri Lanka’s key international partners joined these calls, dissatisfied with the measures taken by the Sri Lankan government.

At the 6^th Session of the UN Human Rights Council, the EU representative Ambassador Francisco Xavier Esteves encouraged the UN High Commissioner for Human Rights and the government of Sri Lanka to “agree on the establishment of an OHCHR field presence” in the country. Esteves noted that while the government has taken certain steps to address the situation, more effective measures are necessary to “put an immediate end to all human rights and international humanitarian law violations.”³⁶¹

In October, the US State Department stated that “an international human rights presence in Sri Lanka would be an important step in improving human rights, accountability, and the rule of law, and ultimately resolving the conflict in Sri Lanka,” and called on the government to “reconsider its opposition to expansion of the OHCHR office and mandate in Sri Lanka.”³⁶²

During her October 2007 visit to Sri Lanka, UN High Commissioner for Human Rights Louise Arbour made it clear that the cooperation between her office and the Sri Lankan government should go beyond training and capacity-building programs for national institutions. Emphasizing the “need for independent information gathering and public reporting on human rights issues” and the lack of progress made in this area by national bodies, such as the Presidential Commission of Inquiry and the Human Rights Commission, the high commissioner expressed her willingness to support the government in this task.³⁶³

Referring to “the gravity of the reported ongoing abuses, and in particular of threats to life and security of the person,” she called on the government to “urgently resolve” the ongoing discussions “about the future of a productive relationship between OHCHR and the Government of Sri Lanka.”³⁶⁴

The Sri Lankan government has thus far rejected the proposals for an international monitoring mechanism, including the expansion of the OHCHR’s field presence. The arguments have ranged from polite assurances that international involvement is not necessary because national institutions are capable of addressing the problems, to indignation with the OHCHR and foreign governments for trying to “police” Sri Lanka and undermine its sovereignty.

In December 2007, in her address to the Human Rights Council, the high commissioner noted that her office has “reached no agreement on a formula by which independent, public reporting by OHCHR could be ensured.”³⁶⁵

The Sri Lankan government’s opposition to the establishment of the international human rights monitoring mission is unfortunate. Instead of viewing the creation of such a mission as pointing to failings of the government, it should recognize that UN monitors would report on abuses by all parties to the conflict, including the LTTE. If the LTTE is the primary perpetrator of abuses, as the government has stated repeatedly, and the government indeed has “nothing to hide,”³⁶⁶ the government should welcome the role international monitors could play.

A team of experienced UN monitors based throughout the country could prevent the further deterioration of the human rights situation, deter abuses from taking place, and promote accountability.

International monitoring has proven particularly effective in dealing with the problem of large-scale “disappearances” and abductions. With a sufficient mandate and resources, the monitoring mission could achieve what the government and various national mechanisms have not been able to do so far—establish the location of “disappeared” persons through unimpeded visits to government and LTTE 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 the reported cases.

The mission, despite the claims of some critics, would have nothing to do with a military intervention or peacekeeping, as it would consist of civilian monitors charged with investigating and deterring abuses by all parties to the conflict. At the same time it would be able to play a more effective role than the existing tiny OHCHR office, with a handful of professional staff or any of the national institutions.

Ultimately, the Sri Lankan government should not view the proposal for a UN human rights monitoring mission as a burden to be avoided, but as an opportunity. Continuing “disappearances” attributed to Sri Lankan security forces will only damage the government’s standing at home and its reputation abroad. By accepting and fully participating in the development of a monitoring proposal and putting it into effect, the Sri Lankan government will be sending a powerful message that it is serious about accomplishing what previous Sri Lankan governments have not done: putting an end to Sri Lanka’s scourge of “disappearances” once and for all.