Basil Fernando

The annual world gatherings on human rights issue takes the form of sessions of the United Nations Commission on Human Rights. This brings governments and human rights activists from all over the world to review the human rights situation of each country. This year the session took place from 22 March to 30 April . Sri Lanka came under serious criticism during the sessions.

EU Urges Sri Lanka to End Armed Conflict

On behalf of the European Union the Ambassador Wilhelm Hoynk, Head of the Delegation of Germany stated as follows

" While recognising positive developments of the human rights Situation in Sri Lanka the EU is still concerned about human rights violations such as disappearances, extrajudicial killings, arbitrary arrests and torture by paramilitary parties, armed forces and the police. The EU condemns terrorist attacks by the Liberation Tigers of Tamil Eelam (LTTE) and other paramilitary groups against civilian targets. The use of child soldiers by the LUE is reason for serious concern. "

"We urge all parties in Sri Lanka to end the armed conflict and to make every effort to reach a negotiated and just settlement. Whilst welcoming the continuing efforts of the government of Sri Lanka to provide relief supplies to refugees in the Vanni, displaced by armed conflict, we remain concerned by reports indicating that food and medical supplies reaching these refugees are insufficient, forcing many of them to leave the region. We therefore call on the government of Sri Lanka and others concerned to immediately remedy this unacceptable situation. We also call on the government of Sri Lanka to strengthen the capacity of the Human Rights Commission of Sri Lanka to investigate and provide for the resolution of violations of human rights. In view of the upcoming provincial, parliamentary and presidential elections the EU would like to stress the importance of free and fair elections."

Delegation Presented Positive Achievements

There were many condemnations of the Sri Lankan record by many sources. On the other hand Sri Lanka Delegation made attempts to answer some of these criticisms and try to present some positive achievements.

"Sri Lanka is now a party 14 international instruments on Human Rights. The Government submitted its report under the Covenant on Economic, Social and Cultural Rights last year. We are in the process of finalizing our reports under the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination against Women. During 1998 we submitted our first report under the Convention Against Torture following the promulgation of our own domestic legislation based on the Convention, the Convention Against Torture Act of Sri Lanka 1994. We have had an open and productive discussion with the Committee Against Torture which placed on record its appreciation of the Government’s effort undertaken in a difficult security environment. We also discussed in a forthright manner the problems concerning allegations of torture, action taken by the Supreme Court and representations made by national and international non-governmental organizations. We have found this interaction and dialogue very fruitful. Particularly useful were the Committee’s views on enhancing the effectiveness of our own domestic checks and balances in accordance with the provisions of the Convention. We have a continuing dialogue with the Committee. We would also like to acknowledge the useful contributions made by national non-governmental organizations for promoting awareness and addressing concerns. The Attorney-General’s Department, in particular, has instituted a special programme to follow up the points that emanate from Sri Lanka’s discussion with the Committee Against Torture. The Department has also taken action this year to institute legal proceedings against seven police officers under the Torture Act of Sri Lanka. Sri Lanka’s report under the Convention Against Torture will indicate the follow up action taken in this field."

Issue of Disappearances Still Wanting

One of the issues for which on which Sri Lanka was found wanting was on the issue of disappearances. There were quite a lot of demonstration on this issue at the conference

venue . One poster read 26,877 disapperarances ACCORDING TO OFFICIAL RECORDS.

At the interventions it was pointed by some delegates that what happened in Sri Lanka amounted to a crime against humanity. The government admitted that there was a serious situation relating to disappearances and mass graves and tried to assure that some actions are taken to redress the situation. Following is an extract from the statement on behalf of the government.

"The intention of the Government was not only to investigate allegations, but also to take the process to a logical conclusion of convicting the perpetrators. This was amply demonstrated when several security force personnel and others were prosecuted on the basis of the findings of government appointed Commissions. The Attorney General's Department is processing a number of other cases in continuation of this process. A special unit established for this purpose in the Attorney General's Department comprises five Attorneys and three Senior State Counsel and is under the overall charge of an Additional Solicitor General. This unit handles human rights cases in general and cases identified by the three Commissions in particular. 1,681 such cases have been identified and criminal investigations into these are on-going under the supervision of this unit."

The Asian Legal Resource Centre, made submissions on the issue of disappearances and also regarding national human rights commission.

Following are the two submissions made by Sangeewa Liyanage on behalf of AHRC and Asian Legal Resource Centre to the 55th Session of the Commission on Human Rights which was held from 22 March to 30 April 1999.



Disappearances and the Question of Effective Exercise of International Responsibility

Item 11: Civil and Political Rights, Including the Question of: (b) Disappearances and Summary Executions

The experience of the last few decades in dealing with disappearances (often where they occur in large scale) clearly shows a serious lack of understanding of the magnitude of the problem, the overall effect of such disappearances on society and in particular of the legal system where they occur, the root causes of such occurrences and the fundamental issues that need to be faced in assisting countries to overcome the aftermath and to prevent similar problems in future. A basic reason for such lack of understanding seems to be the fact that such large scale disappearances do not take place in countries which are more developed and particularly those with a highly sophisticated legal system. It is something that happen "out there", and often no more thought is given to these occurrences than attributing them to cultural factors. Besides, there too exists an understanding that if order in society is threatened in one way or another it may be restored with or without law. Thus, there is likely to be a tacit understanding that where a State party is blamed for incurring large-scale disappearances, it has done so out of necessity to maintain order, even if it has done so in violation of law. The approval of the State is generally taken as sufficient proof of such necessity.

The concentration of the efforts of the international community to deal with the issue is mostly confined to cases where individual officers, and not the government in power at the time, are the culprits. The result of this approach is that the root causes of the problem are not addressed and that much cynicism is created by selective justice which is meted out mostly to minor officers.

In recent times, there have been attempts to deal with the systematic practice of disappearances as a crime against humanity, as in the Inter-American Convention on Forced Disappearance of Persons and the UN Sub-Commission Resolution 1998/25 on the Draft International Convention on the Protection of All Persons from Enforced Disappearance.

However, in a practical sense, disappearances, even where a systematic practice can be proved, are still dealt with as individual crimes, like murder, kidnapping and torture. For such offences criminal liability is limited only to those who are involved in the individual crimes. Yet, if one group of persons creates the guidelines for disappearances and provides the lists of persons who should disappear, another group of officers arrest or kidnap the persons, then a third group maintains detention

centres and tortures the prisoners whilst doing the investigation, a fourth group murders and a fifth group disposes of bodies, how can such a situation be addressed by way of criminal trials against one or a few persons under normal murder charges? To this list, it may be added that there are other persons involved in making national security laws (emergency laws) that remove legal provisions requiring post-mortem inquiries, that suspend provisions that make judicial intervention possible, and that create a psychological climate to encourage State officers to engage in all the activities mentioned above, and even maintain a supervision mechanism on how such disappearances are carried out. Obviously, these are not matters that can be dealt with in the course of ordinary criminal trials. International agencies dealing with disappearances need to address their minds to these issues. Often, the requests these agencies make to particular governments do not amount to more than dealing with disappearance of this or that particular individual on the basis of ordinary criminal procedure.

The question that faces the international community may be posed more directly this way: Suppose a commission is appointed by a particular country after such mass disappearances have occurred. After inquiries, the commission comes to the finding that a systematic practice of disappearances has occurred. Does such a finding pose an obligation to the international community to look into the matter and to take appropriate action on its own, as well as by way of special assistance to the particular government to deal with the issues arising from such a finding? Under what criteria should the international community deal with these issues?

A very useful example that will illustrate the complex problems that the systematic practice of disappearances pose to the international community is the instance of Sri Lanka, where three government-appointed commissions have submitted reports on 16,800 cases and a fourth commission is investigating more than 10,000 other cases. The United Nations Working Group on Disappearances has acknowledged the receipt of the commissions’ reports in its report dated 28 December 1998 E/Cn.4/1999/62 in page 51.

The findings stated by the three Sri Lankan commissions establish a systematic practice of disappearances carried out by the State. This comprehensive practice includes the initial design of lifting the legal obstacles that impede disappearances, by way of carefully drafted emergency regulations; planning and executing abductions (arrests with intention to kill); establishing detention centres; training and instructing personnel to torture, kill, and dispose of bodies; the maintenance of mass graves; and general instructions to erase all records and to protect the culprits. What obligations do these well-founded facts established by the government sources pose to the international community? The Sri Lankan commissions emphasise the special character of the crimes committed by the State, which uses its power to violate the law rather than to uphold it. In all the commissions the narration by thousands of humble petitioners of thousands of abductions and disappearances bore powerful witness to the fact that what we are looking at was an orchestrated phenomenon, and not a series of isolated instances explicable in terms of "excesses" by individual transgressors.

Once such facts are established before the international community, does such revelation cast a duty on the international community? If the answer is affirmative, then how can the international community discharge such an obligation?

Clearly it is necessary to lay down criteria and guidelines on dealing with such situations and to end the practice of treating such problems as individual instances of disappearances. Besides the visits by the UN agencies to particular countries, these matters need to be raised and agreements need to be evolved in resolving them.

Following are a few recommendations, particularly in relation to Sri Lanka. The example in Sri Lanka is a strong case that has been established through documents submitted to the Working Group on Enforced and Involuntary Disappearances by the Sri Lankan government itself. First it is necessary to recommend specific actions to deal with the whole issue and not just a few individual cases. Secondly, the western states need to exercise greater scrutiny of this issue and where necessary offer assistance, such as in the area of criminal investigations and particularly that of forensic facilities. Thirdly, the gravity of the crimes and the human rights involved can be impressed upon the state by way of negotiations by UN agencies and bilaterally by other nations in order to find an adequate solution to the problem. Perhaps, whether positive or negative practices in tackling the problem will be established depends on how this issue now before the international community is dealt with.

National Human Rights Institutions and the Question of the Promotion of International Human Rights Law

Item 18: Effective Functioning of Human Rights Mechanisms: (b) National Institutions and Regional Arrangements

The international community has contributed a great deal to the promotion of National Institutions for the protection and promotion of human rights by encouraging the establishment of these institutions in many countries in the world. Several countries in Asia too have established such national commissions. The High Commissioner for Human Rights has indicated that she will be placing special emphasis on the strengthening of national human rights institutions. However, it is important that national human rights institutions live up to the expectations of the civil society. The international community needs to help such national institutions to move from the initial stage to a more advanced stage so that these institutions will win the public’s confidence as serving a useful purpose. There is also the general criticism that these institutions are used to better the image of governments before the international community, rather than to effectively protect and promote human rights locally.

Part of the difficulty in developing these institutions lies in the general inability to apply international jurisprudence on human rights to the local situations. For example, international jurisprudence on torture developed enormously during the last few decades due to the international recognition of several principles. Two judgements of the House of Lords on the Pinochet case have summed up these developments. However, the local legal institutions in many countries have not assimilated these developments.

What is worse is that an obsolete legal culture, which to a greater or lesser extent accommodates torture as a necessary component of a functioning criminal investigation system, still prevails in many countries. National institutions on human rights have to confront such legal cultures and help to introduce international human rights law. This applies not only to torture but to other issues such as fair trial, rights to freedom of expression and association, and to the introduction of ways to implement economic, social and cultural rights.

To introduce the international law on human rights, the persons who constitute the leadership of these national institutions must themselves be educated on such laws and must be persons who are deeply committed to the promotion of these new developments. Thus, much is dependent on the individuals who are chosen to be the members of the leading posts in national institutions. Persons who are aware of current developments in the human rights field and are committed to the promotion of these principles may be able to provide effective assistance despite mandate limitations and other legal impediments.

However, despite the existence of adequate mandates and resources several national institutions in Asia have been unable to perform well. To a large extent, this may be due to the influence of ingrained habits or ways of thinking which have not been able to keep up with the rapid developments of human rights law. An analysis of some failures clearly shows that they are not due solely to external forces but also to internal limitations such as the legal theoretical framework within which the members operate. At one level, the competence of the holders of office is a prime factor in the working of national institutions.

Proposed National Human Rights Commission in the Republic of Korea lacks independence and effectiveness for its proper functioning; it has a narrow mandate with limited powers and no authority to enforce its recommendations; and the participation of civil society in making the draft human rights law has been completely neglected.

Another example that we may quote is the experience of the Sri Lankan National Human Rights Commission. The commission has been given a fairly broad mandate and has considerable legal protection. The commission has not had funding problems. The commission has the power to suggest guidelines to government institutions on how to bring the policies of government institutions in line with human rights norms. Despite these powers, the commission has not been able to intervene in any significant manner in the acute problems related to human rights violations in Sri Lanka.

The following recommendations are proposed in order to support the National Human Rights Commissions of all countries. In drafting of national human rights legislation, non governmental/people’s organisations and the public need to be adequately consulted and their views need to be taken into account. Financial resources need to be made available to national institutions to perform effectively. The international community, through the United Nations agencies and through country representatives, need to encourage the countries concerned to select persons with knowledge of international human rights law and practices and who are committed to promote them as members of the leading bodies of such national institutions. Facilities must be provided by international agencies to provide in-depth training on these matters to such members and to the staff. The international community must scrutinise the practices of these commissions and take appropriate actions to improve the practices of these institutions. If such steps are not taken the initial enthusiasm created by these institutions is likely to wane, particularly among those who are most affected by human rights violations.