UN HUMAN RIGHTS COUNCIL
Second Session - September 2006

Statement from Special Rapporteur on extrajudicial executions, 5 September 2006

UN expert welcomes proposed Sri Lanka commission

The United Nations Special Rapporteur on extrajudicial executions, Philip Alston, today welcomed the announcement by Sri Lanka’s President Mahenda Rajapakse of his intention to invite an international commission to inquire into recent killings, disappearances and abductions in Sri Lanka. “This is a potentially very important initiative” said Alston. “A truly independent international inquiry holds out the prospect of resolving some of the horrendous events of recent weeks and months and bringing the country back from the abyss”.

The challenge now, according to Alston, 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. Various other countries have opted for a similar approach according to Alston and he suggested that the ideal way forward would be for the Government to seek the advice of the UN High Commissioner for Human Rights in establishing the commission to ensure its independence and effectiveness.

The Special Rapporteur, who visited Sri Lanka less than a year ago, indicated that his forthcoming report to the UN General Assembly would also urge the creation of an international human rights monitoring mission.

Mr. Alston observed that the month of August had seen a series of tragedies, all serving to undermine respect for human rights as well as the prospects for peace. In addition to deploring the various military and naval engagements in recent weeks he made particular reference to several incidents of major human rights concern including the killing of a leading Tamil intellectual, the disappearance in Jaffna of a highly respected priest, Father Jim Brown, and the shooting of 17 aid workers, all in the space of a couple of weeks.

“I deplore the assassination of the Deputy Secretary-General of the Government Peace Secretariat Mr. Ketheshwaran (Kethesh) Loganathan, with whom I had met in Colombo. He was a man of great vision, insight and courage and his killing, in an incident that apparently bore all the hallmarks of the LTTE’s systematic elimination of Tamils who hold independent views, is a tragedy”, said Mr. Alston. Similarly, he noted that “the recent ruling by the Sri Lanka Monitoring Mission that the killing of the 17 civilian aid workers employed by Action contre le faim in Muttur on 4 August 2006 seems most likely attributable to the Government security forces, highlights the urgency of the Government ensuring adequate accountability on the part of those forces.”

Comment by tamilnation.org: Mr.Alston says that the killing of Mr.Ketheswaran Loganathan 'apparently bore all the hallmarks of the LTTE’s systematic elimination of Tamils who hold independent views'. But he does not say what were those 'hall marks'. This was not a suicide bombing. Was the alleged 'hallmark' the fact that gunmen in plain clothes had entered Mr.Loganathan's house and shot him dead? May not this be said to the 'hall mark' of the killings by Sri Lanka's intelligence services? Here Mr.Alston may want to consider carefully the report by Manalel Jeyaram in the Global Electro-Newsnet on September 5, 2006 Colombo:

Rajapaksa Suspected of Links with Ketheeswaran Assassination

The latest reports emerging from Colombo seem to confirm the allegation that the Presidential Security team and especially its inner junta consisting of Basil and Gothabaya Rajapaksa have had strong links with the assassins who recently murdered Dr. Ketheeswaran Loganathan, Deputy Head of the Colombo-based Peace Secretariat. Reportedly hours before being shot to death, Ketheeswaran was on the phone talking to a senior member of the presidential inner junta to express his disgust over the killing of the 17 aid workers by the government forces and stated that he no longer believes that the government has any genuine interest in peace negotiations. He is said to have had inside information regarding the premeditated killings of the 17 NGO employees. In a heated argument Ketheeswaren seem to have stated that if this happens to the aid workers what chance the ordinary Tamil civilians have in Sri Lanka. He also threatened to have said that he intends to make public his resignation as Deputy Head of the new Peace Secretariat, though Sri Lanka's hawkish President Mahinda Rajapaksha had asked Ketheeswaran to delay this decision for a couple of days.

President Rajapaksha was visibly irritated by Ketheeswaran's decision as at that time he was facing intense pressure from international organisations and the world media over the killing of the French aid workers of Action de Faim. It is said that immediately following this conversation, an unexpected visit was made by the government's notorious intelligence unit to Ketheeswaran's house. This happened minutes before the assassination took place. It is now believed that the main aim of the assassination was to divert the world media attention from the masscare of the NGO workers and to deliberately put the blame of Ketheeswaran's death on LTTE to discredit the latter.

According to Ketheeswaren's family none of the killers were Tamils. It is now a routine practice in Sri Lanka that the officials who carry out such killings are also paid in full to investigate their own atrocities. Other independent sources confirm that Ketheeswaran Loganathan's name has been on JVP's top hit list! When contacted JVP refused to comment."

The Special Rapporteur indicated that he plans to make specific proposals in relation to the situation in his forthcoming report to the 61st session of the United Nations General Assembly. In that regard he also released the following statement intended to give a preview of some of the more general analysis contained in his report.

Text of Statement

The situation in Sri Lanka has deteriorated significantly since I visited Sri Lanka and met with Government officials, members of civil society, and representatives of the Liberation Tigers of Tamil Eelam (LTTE) at the end of 2005. Recent events have confirmed the dynamics of human rights abuse identified in my report (E/CN.4/2006/53/Add.5) and demonstrate the urgent need for an international human rights monitoring mission.

International human rights monitoring is not, of course, an invariably effective response even to situations involving widespread human rights abuse, but there are specific factors indicating that such an approach would be extremely valuable in Sri Lanka. One of these is that civilians are not simply "caught in the crossfire" of the conflict: Rather, civilians are intentionally targeted for strategic reasons. Such killings are quintessentially human rights violations demanding a human rights response.

Another factor suggesting the value of international monitoring is that the conflict between the Government and the LTTE is ultimately a struggle for legitimacy, not territory. The conflict has no military solution, and mere adjustment of the facts on the ground will not fundamentally change either party's position in future negotiations. The LTTE's hopes for autonomy or independence rest on persuading the domestic and international communities that this would be the best solution in human rights terms. However, the LTTE has a record of using killings to deter civilians from exercising freedoms of expression, movement, association, and participation in public affairs. As it stands, no outside observer could wish rule by the LTTE on the entire Tamil community, much less on the Sinhalese and the Muslims of the North and East.

Comment by tamilnation.org: That Mr.Alston, as a Special Rapporteur to the UN Human Rights Council, should seek to give primacy to human rights is understandable. But at the same time Mr.Alston may want to pay heed to something Martin Woollacott said 13 years ago in relation to the Bosnian conflict -

''....Nobody involved in this war, in fighting it or in trying to stop it, was born yesterday. What matters most in any agreement, is territory, what matters secondly is international legitimacy, what matters thirdly are constitutional arrangements and what matters least are human rights provisions...' (Martin Woollacott writing on the conflict in Bosnia in the Guardian, September 1993)

The people of Tamil Eelam too were not born yesterday. The question is not about the LTTE ruling the Tamil people but whether the people of Tamil Eelam have the right to rule themselves. And if the international community is truly concerned to play a Good Samaritan role and is intent on securing the 'best solution in terms of human rights', the question that Tamils may rightly call upon Mr.Alston to explain is why it is that the international community has not been persuaded by the delaration made by the Gandian Tamil leader S.J.V.Chelvanyagam in 1975 that the 'best solution in human rights terms' to the conflict in the island is to secure the freedom of the Tamil people from alien Sinhala rule.

"Throughout the ages the Sinhalese and Tamils in the country lived as distinct sovereign people till they were brought under foreign domination. It should be remembered that the Tamils were in the vanguard of the struggle for independence in the full confidence that they also will regain their freedom. We have for the last 25 years made every effort to secure our political rights on the basis of equality with the Sinhalese in a united Ceylon. It is a regrettable fact that successive Sinhalese governments have used the power that flows from independence to deny us our fundamental rights and reduce us to the position of a subject people. These governments have been able to do so only by using against the Tamils the sovereignty common to the Sinhalese and the Tamils. I wish to announce to my people and to the country that I consider the verdict at this election as a mandate that the Tamil Eelam nation should exercise the sovereignty already vested in the Tamil people and become free." Statement by S.J.V.Chelvanayakam Q.C. M.P. , leader of the Tamil United Liberation Front, 7 February 1975

Does Mr.Alston take the view that Gandhian leader S.J.V. Chelvanayagam was wrong and that the struggle of the people of Tamil Eelam to be free from alien Sinhala rule has yet to acquire 'legitimacy'? The Tamils are a reasonable people and they will welcome a reasoned response from Mr.Alston so that they may be persuaded of the 'neutrality' of the views that he has expressed. There is ofcourse one other matter. Mr. Alston is perhaps, understandably silent on the strategic interests that the 'international community' seek to secure in the island of Sri Lanka.

The annexures to the Indo-Sri Lanka Accord reflected some of those interests in 1987. Today, as Noam Chomsky has observed, US foreign policy is directed to build on its current position as the sole surviving super power and secure a unipolar world (with a 'multi polar perspective' - a la Condoleezza Rice) for the foreseeable future. And this means preventing the rise of regional hegemons. On the other hand, the central plank of New Delhi's foreign policy is to deny any (independent) intermediary role to extra regional powers in the affairs of the Indian region and also to further the emergence of a multi lateral world. In this latter objective, New Delhi may count on the 'calibrated' support of the European Union, Russia, China and Iran amongst others.

Given all this (and more) is the international community truly concerned about the 'best solution in human rights terms' as Mr.Alston would have us believe or are the trilaterals (US, the European Union and Japan) and India (and now China) concerned to prevent a resolution of the conflict except on terms which secure each of their own differing strategic interests in the Indian region. It appears that the unfortunate political reality is something which Velupillai Pirabakaran pointed out some 13 years ago, in 1993 -

"We are fully aware that the world is not rotating on the axis of human justice. Every country in this world advances its own interests. It is the economic and trade interests that determine the order of the present world, not the moral law of justice nor the rights of people. International relations and diplomacy between countries are determined by such interests. Therefore we cannot expect an immediate recognition of the moral legitimacy of our cause by the international community." (Maha Veera Naal Address - November 1993)

Mr.Alston may find it helpful to take these views on board and to recognise that the Tamil people are mindful that the legitimacy not so much of the struggle for Tamil Eelam, but of the proposed International Monitoring Mission may be called in question if the proposed Mission acts simply as yet another vehicle to secure the geo political strategic interests of the so called 'international community'.

The Government should not, however, interpret the widespread proscription of the LTTE as a terrorist organization as an endorsement of its own record. Indeed, it is an enduring scandal that convictions of government officials for killing Tamils are virtually non-existent, and many Tamils doubt that the rule of law will protect their lives.

A resolution of this conflict that would merit the international community's endorsement will require the Government, the LTTE, or both, to demonstrate genuine respect for human rights. The strategic importance of achieving and maintaining international legitimacy grounded in respect for human rights is not completely lost on either the Government or the LTTE. Indeed, the discourse of human rights is central to the parties' own understandings of the conflict's origins and conduct. However, by using proxies, the subversion of accountability mechanisms, and disinformation, both parties have been able to commit deniable human rights abuses. Effective monitoring would foreclose the possibility of employing a strategy of deniability, pressuring the Government and the LTTE to seek legitimacy through actual rather than simulated respect for human rights.

When I visited Sri Lanka, my conclusion was that the Sri Lanka Monitoring Mission (SLMM), which was established to monitor the Ceasefire Agreement (CFA) of 2002, could be strengthened in ways that would permit it to provide relatively effective human rights monitoring. Indeed, the SLMM has played a commendable and increasingly assertive role with respect to extrajudicial killings. However, as I observed in my report,

"For pragmatic reasons [strengthening the SLMM] seems to be the best interim measure, but before long significantly more will be needed. If the ceasefire fails, and that now appears to be an all too real possibility, the SLMM's role will be in question and there will be an urgent and pressing need to establish a full-fledged international human rights monitoring mission." (E/CN.4/2006/53/Add.5, para. 47).

Since then, the SLMM has been severely weakened by the LTTE's decision to insist on the withdrawal of monitors who are nationals of EU member states, and either party could elect to unilaterally terminate the CFA at any time, thus withdrawing the SLMM's mandate. It is time for an international human rights monitoring mission in Sri Lanka.

It is thus appropriate to reiterate some of 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 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.

This list should not be considered comprehensive. It is intended 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.