Delusion of democracy

The sentencing of Sri Lankan journalist J.S. Tissainayagam is only one example of the repression of the media in Sri Lanka. The South-Asian community as well as large sections of the international community have allowed themselves to be deluded by what one would call a willing suspension of disbelief. It shows how an allegedly democratically re-elected government has used a very authoritarian way to deal with all kinds of dissent.

http://ibnlive.in.com/news/human-rights-activists-rally-for-lankan-journo/100481-2.html

Multipurpose national ID cards: Some concerns

The celebratory mood regarding the Multipurpose National ID Card project needs to be tempered with some introspection as to how it might impact data protection and privacy rights. In the absence of data protection laws and effective privacy-related legislation, the risk of misuse of the information held by the State should not be underestimated. Further, since much of the data will be collected and processed by private companies, ensuring accountability will be difficult if strong safeguards are not in place.

My organization, the South Asia Human Rights Documentation Centre (SAHRDC), had raised some of these concerns in a 2007 article, reproduced below:

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Multi-Purpose National Identity Cards: Protection or restriction of rights?

In May 2007, the Indian Government launched a pilot project on Multi-purpose National Identity Card (MNIC) and issued cards in select regions of the country in contemplation of later implementing a nation-wide identification system. The Ministry of Home Affairs (MHA) claims the identification system will strengthen national security while facilitating efficiency in e-governance. The system will gather the personal data of Indian citizens—including gender, age, marital status, permanent address, names of family members—into a national register, the maintenance of which will be outsourced to a group of technology corporations. Each citizen will be assigned a specific number that will be used as a reference for various socio-economic databases including passports, driving licenses, and for accessing health care and education. The government hopes that the MNICs, which will require regular editing and maintenance, will ease interactions between the State and the citizen, and keep track of illegal immigrants. However, upon further examination of the MNIC system, it is clear that it has flaws that could jeopardise the fundamental rights of India’s citizens.

Impact on the right to privacy

The right to privacy of citizens will be greatly compromised if MNICs are made compulsory. Although there is sometimes a tension between individual privacy rights and national security, international law and India’s domestic law expressly set a standard in tort law and through constitutional law to protect an individual’s privacy from unlawful invasion. Under the International Covenant on Civil and Political Rights (ICCPR), ratified by India, an individual’s right to privacy is protected from arbitrary or unlawful interference by the state. The Supreme Court also held the right to privacy to be implicit under article 21 of the Indian Constitution in Rajgopal v. State of Tamil Nadu. Moreover, India has enacted a number of laws that provide some protection for privacy. For example the Hindu Marriage Act, the Copyright Act, Juvenile Justice (Care and Protection of Children) Act, 2000 and the Code of Criminal Procedure all place restrictions on the release of personal information.

Privacy is a key concern with respect to the MNIC scheme as all of an individual’s personal information will be stored in one database where the possibility of corruption and exploitation of data is far greater than when having the information disbursed. Risks that arise from this centralisation include possible errors in the collection of information, recording of inaccurate data, corruption of data from anonymous sources, and unauthorised access to or disclosure of personal information. Other countries with national identification systems have confronted numerous problems with similar risks such as trading and selling of information, and India, which has no generally established data protection laws such as the U.S. Federal Privacy Statute or the European Directive on Data Protection, is ill-equipped to deal with such problems. The centralised nature of data collection inherent in the MNIC proposal only heightens the risk of misuse of personal information and therefore potentially violates privacy rights.

In consideration of the risks involved in the creation of a centralised database of personal information, it is imperative that such a programme not be established without the proper mechanisms to ensure the security of each individual’s privacy rights. Unfortunately, India’s proposed MNIC programme lacks any provision for judicial review at the present time. Without credible and independent oversight, there is a risk of ‘mission creep’ for MNICs; the government may add features and additional data to the MNIC database bureaucratically and reflexively, without re-evaluating the effects on privacy in each instance.

Discrimination as an outcome

Furthermore, the implementation of a national identification system represents a vast increase in police power—a troubling prospect given the state of Indian policing and the excessive control of the Executive in its functioning. Indian police and other security forces have a history of abusing their power, from torturing those in their custody and setting up fake ‘encounter deaths’ to more mundane abuses like petty corruption and harassment. Such police abuses typically go unpunished. Thus it does not take a large leap of imagination to expect that some in the security services would abuse the MNIC programme—whether to discriminate against minorities, carry out arbitrary arrests and detentions, facilitate the targetting of opposition groups by political parties in power, and perhaps even blackmail people. According to Simon Davies of Privacy International, national ID cards in virtually every country where they have been introduced have facilitated discrimination. India need only consider the history of national identity cards in other countries and the history of police misconduct within its own borders to realise the potential threats that the MNIC scheme poses. Any perceived advantages of the MNIC programme must therefore be weighed against these very real costs.

As the former Privacy Commissioner for the Australian state of Victoria Paul Chadwick argued, the responsibility of proving whether one is acting lawfully or not should be on the state, not on the citizen. He gives examples of precautions taken to prevent abuse of police power in countries with centralised personal identification databases including parliamentary scrutiny, judicial review, statutory regulators, and protection for whistleblowers, but he argues that even these mechanisms are not enough to completely keep bureaucracies honest.

In the United States, there is at present a debate concerning the implementation of the REAL ID Act, which is meant to regulate all U.S. state-issued identification cards at a national level. As Professor Mark Rotenberg of Georgetown Law Center explained in a report to the Electronic Privacy Information Center, new stronger precautions are needed because of evidence of abuse of police power through security measures such as the REAL ID Act and the Patriot Act. Rotenberg suggests that an effective way to monitor how government uses the information it collects is to have entities independent of the government conduct oversight, and he adds that the potential abuse of police power will remain until there is effective judicial oversight of the use of the collected information.

Issue of access

Although a widely-implemented MNIC programme risks violating individual privacy rights and facilitating security forces’ violation of other fundamental rights, an MNIC programme that leaves some people outside its reach carries its own risks of denying human rights. The MHA seeks to make the possession of the card a prerequisite for citizens who wish to avail of certain governmental schemes, such as passports, driving licenses, health care, school enrolment and the like, in order to encourage all citizens to obtain one. Thus, no card, no services.

Switching to an MNIC system for the delivery of social services could result in the denial of fundamental rights of equality to Indians left without a card. Under Articles 13 and 14 of the Indian Constitution, the fundamental rights of citizens must be protected by the state, and the government is required to follow a policy consistent with the goals of equal opportunity and justice for all. Millions of Indians are at risk of never receiving MNICs and therefore may be excluded from accessing certain services, denied the freedom to travel, or prohibited from certain employment opportunities. The likelihood that MNICs will not reach all of India’s one billion plus citizens is high considering the government’s historic inability to account for everyone within the national borders. This is illustrated by the shortcomings of India’s electoral photo identity card (EPIC). According to records obtained from the Election Commission by the Hindustan Times, over 186 million Indian citizens eligible to vote do not posses EPICs even though the programme was created over a decade ago.

Proponents of the MNIC programme argue that people without MNICs could use alternative means of identification in order to obtain benefits until they are incorporated into the MNIC system. But those without MNICs—most likely the poor and members of tribal groups—would almost certainly also lack other sufficient forms of identification for the simple reason that they have never needed any. There is also the related issue concerning directive principles of the state policy in Part IV of the Indian Constitution. Among other things, the directive principles provide that the government should make laws with a view to ensuring for each citizen equal rights to an adequate livelihood, and social and economic equality and justice. Denying minority tribal groups or the rural poor certain government services and entitlements based on the lack of an MNIC is contrary to the guidelines set out by the directive principles. The net result of the MNIC programme may be a denial of access to government services in such a disproportionate and discriminatory manner that it would amount to violation of the fundamental right to equality.

Conclusion

The concerns mentioned above do not necessarily mean that India’s planned MNIC programme must be discarded, but they signal a need for oversight to protect the privacy and equality rights of India’s citizens from the inherent risks of a national database for personal information. Implementing and maintaining the MNIC system will generate high costs along with risks to safety, security, privacy, freedom, and liberty. MNICs should not become compulsory until there is an established judicial overview to ensure that the privacy rights of India’s citizens are not unlawfully violated. It is important that India confront and manage these risks and consider all alternatives before implementing the MNIC programme nationwide.

Source: Human Rights Features

Lalgarh: The futility of the law-and-order approach

It is disappointing to see that the preferred State approach to the recent events in Lalgarh in West Bengal continues to be framed in terms of ‘law and order’. Whatever happened to the Central government’s 'blueprint', drawn up less than two years ago, that had envisaged various development initiatives in addition to security-strengthening measures in order to counter the Naxalite insurgency?

In the following article, published in August 2007 in the Rights and Development Bulletin of the Centre for Development and Human Rights (New Delhi), I had argued for a human rights approach perspective on the Naxalite insurgency. The problem is knotty but not irreparable. But the State must first break out of its security-first mindset…

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The Naxalite Insurgency – Time for a New Strategy

In early October 2007, the Central government drew up a “blueprint” to counter Naxalism, the armed Maoist movement that is spread across nearly half of India’s states. The plan reportedly includes various development initiatives in addition to measures to strengthen the security set-up in those areas.[1] It can only be hoped that the development approach will be give adequate attention and emphasis.

The Naxalite insurgency, for the most part, has been conceptualised as a security issue. Using that approach, the Indian government has taken a number of measures to stamp out the insurgency, but the movement shows no signs of abating. It must be recognised that it is a social, economic, cultural, and political problem just as much as it is a security issue. It is an outgrowth of wider societal ills, and therein lies the crucial human rights dimension of the conflict.

Taking the state of Chhattisgarh as an example, this article will recommend a number of reforms which, taken together, would significantly undermine the appeal of armed revolution.

Education

Over the past decade, education in Chhattisgarh has improved substantially. Since the launch of the Education Guarantee Scheme (EGS), according to which a new school is opened whenever the parents of 30 or more children petition the state government to set one up, literacy has improved for both males and females, enrolment has gone up, and dropout rates have been reduced.[2] Around 255,303 children are currently enrolled in EGS schools.[3] This is clear evidence that Chhattisgarh is moving in the right direction.

It is absolutely essential that the government of Chhattisgarh preserve and further these positive developments. The most obvious way to accomplish this would be to continue the highly successful EGS, and to ensure that the schools opened under the scheme maintain a high standard of academic quality. High pupil-to-teacher ratios are a major obstacle to educational advancement, so the government should take active steps to increase the number of qualified teachers in the state. This can be accomplished by offering higher salaries and better benefits to teachers, as well as by putting greater emphasis on the development and recruitment of teachers within Chhattisgarh. It is also vitally important to ensure that schools remain distanced from the ongoing Naxalite conflict, and that school buildings are not used by security forces for shelter or for any other purpose.

Health

Improving public health in Chhattisgarh is a complex undertaking, yet this goal can be achieved through sustained attention and investment. The most glaring need is to provide universal access to medical care— because Chhattisgarh’s dense forests and poor infrastructure make transportation difficult, many rural-dwellers are not within reach of basic medical facilities or trained health professionals. One promising strategy for rectifying this situation would be the continuation and expansion of the local-level community health programmes that have been so successful in reducing infant mortality. Even where it is financially or logistically impractical to build a hospital, the government should ensure that each village has immediate access to trained doctors and nurses, as well as to basic medical equipment that can be used to provide at least a rudimentary level of care. Training more healthcare professionals would therefore be advisable, as would offering better compensation packages to doctors working in rural areas and working in concert with international bodies and NGOs to supply medical resources to neglected areas.

Land reform

Although the underlying causes of the Naxalite movement are complex and multifaceted, it is clear that conflicts over land are at its core. The vast majority of India’s rural poor is landless and enjoys very little upward mobility.[4] Overall, the landless and the near-landless (owning less than half an acre of land) make up 43 percent of rural Indian households[5], thus creating a steep socio-economic inequity that supplies much of the impetus for the Naxalite movement.

Tenancy reforms, and land reforms in general, have fallen well short of their objectives, and the consequent discontent of poor rural Indians has been vital to the Naxalite resurgence. Legal ambiguities, inadequate enforcement, and landlords’ practice of rotating tenants to prevent them from acquiring ownership rights are obstacles that must be tackled for land reform to succeed.

Forest rights

The issue of forest management has also long been contentious in India, pitting the interests of developers and industrialists against the rights of indigenous tribal communities that depend on forests for sustenance. The long struggle of indigenous peoples to preserve their rights over ancestral lands has played a pivotal role in the recent spread of the Naxalite movement— most new Naxal recruits are reported to be poor tribals.[6] In the hope of alleviating the problems facing forest-dwelling tribals, the Central government adopted the Provision of Panchayat Extension to Scheduled Areas Act (PESA) in 1996. Although PESA presented a bold reform package on paper, implementation has left much to be desired, with many state governments yet to operationalise the reforms that the Act was to have brought about.

Similarly, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 sought to improve upon the draft Scheduled Tribes (Recognition of Forest Rights) Bill. It rightly made the envisaged reform measures more inclusive. However, this, coupled with the later cut-off date and higher land ceiling, gives state governments and local elites more room to exploit the situation.[7] Moreover, it is likely to create or worsen local conflicts between tribal communities and non-tribal indigenous peoples, and between indigenous forest-dwellers and those who have only recently settled on forest land, often at the expense of the traditional inhabitants.[8] These problems will be worsened by the Act’s failure to create a voluntary resettlement programme for forest-dwellers who wish to relocate, a provision that might defuse nascent conflicts over forest lands.[9]

The 1988 National Forest Policy, PESA, and the 2006 Forest Rights Bill were all steps in the right direction, but until they are fully implemented and given more legal muscle to safeguard the rights of vulnerable forest-dwellers, the deep-rooted conflict over forest lands will continue to feed into the Naxalite insurgency.

Economic opportunities

A lack of economic opportunities in the countryside is one of the main spurs to the expansion of the Naxalite movement. Alienation arising from heavy-handed government and corporation-run development projects, coupled with endemic rural poverty, has given the Naxalite insurgency much of its forward thrust in recent years.[10]

The National Rural Employment Guarantee Act (NREGA) 2005, which was intended to improve the economic conditions of the rural poor, suffers from a number of practical difficulties. These are exacerbated by corruption, confusion and mismanagement, which brought the programme to a standstill in some states.[11] Careful revision and substantial improvements in the implementation of the NREGA, coupled with making credit available and affordable, would go a long way in reducing rural poverty and taking the edge off the armed Maoist campaign.

Rule of law

The foremost responsibility of a government is to provide security to its citizens, but democratic institutions lose their integrity when a government seeks to impose this security by extra-legal means. The government must come to the forefront and cut off its support for the unaccountable Salwa Judum militia. More than that, it must put a definitive end to the culture of impunity by which the Salwa Judum has thus far been allowed to operate. Special courts should be set up to examine and prosecute human rights abuses by Salwa Judum members, including but not limited to extrajudicial killings, illegal detentions, and torture.

Citizens must also be assured the full range of civil and political rights without which democracy would not be worthy of the name. One recent piece of legislation— the Chhattisgarh Special Public Security Act 2005— is sharply inimical to this end, and will only serve to clamp down on essential freedoms and exacerbate the climate of fear and arbitrariness that allows the Naxalite insurgency to thrive.

Conclusion

Because it is the product of a complex confluence of factors, the law-and-order approach, by itself, will not help erode the Naxalite armed movement. This does not, however, mean that the problem is irresolvable. Through a comprehensive, holistic, carefully crafted and implemented series of positive steps aimed at improving the conditions of its poorest citizens, the Indian government can chip away at the foundations of rural discontent upon which the movement is built.

Success in combating the Naxalites cannot be attained through strictly law enforcement means, and the government must therefore break out of its security-first mindset if it hopes to quash the insurgency. The Naxalite movement is shadowy, decentralized, and elusive: it cannot be overwhelmed with a crushing display of force. It will not die with a bang, but it might fade if the problems that fuel it are meaningfully addressed. That is why the human rights perspective on the Naxalite insurgency is so instructive: it illuminates the underlying causes of Naxalism rather than the effects. The Indian government would do well to analyse the problem through the lens of human rights, and use a broad-based, non-security strategy to resolve it.

Notes

1. Aloke Tikku, “Centre declares war on Naxals”, Hindustan Times, 3 October 2007.
2. United Nations Development Programme (UNDP) and Government of Chhattisgarh, “Human Development Report: Chhattisgarh 2005,” 2005, p. 104. Available at http://www.undp.org.in/index.php?option=com_content&task=view&id=239&Itemid=322.
3. Ibid.
4. Andrew Foster and Mark Rosenzweig, “Democratization and the distribution of local public goods in a poor rural economy,” Bureau for Research and Economic Analysis of Development (BREAD) Working Paper No. 10, January 2003, at p.3. Available at http://www.cid.harvard.edu/bread/papers/working/010.pdf (last accessed 15 October 2007).
5. Patralekha Chatterjee, “Land reform in India: Necessary but not sufficient to fight poverty,” D+C Development Cooperation, March 2002, at http://www.inwent.org/E+Z/1997-2002/de202-8.htm (last accessed 15 October 2007).
6. “A Spectre Haunting India,” Economist, 17 August 2006. Available at http://www.economist.com/world/asia/displaystory.cfm?story_id=7799247 (last accessed 15 October 2007).
7. Ashish Kothari, “Rights and promises,” Frontline 23(14), 15-28 July 2006. Available at http://www.flonnet.com/fl2314/stories/20060728000706400.htm.
8. Ibid.
9. Ibid.
10. Rajat Kumar Kujur, “Underdevelopment and Naxal movement,” Economic and Political Weekly, 18 February 2006.
11. “Staff shortage, delayed wages under NREGA in Ranchi,” The Financial Express, 25 June 2007. See also Manoj Prasad, “Corruption clouds UPA job scheme,” The Indian Express, 23 May 2007.

Investigating War Crimes in Sri Lanka

Illusion and Reality

The European Union (EU) did not need a crystal ball to predict that its resolution at the special session of the United Nations Human Rights Council (UNHRC) convened on 28 May 2009 to discuss the human rights situation in Sri Lanka had as much chance of success as the cow had of jumping over the moon.

A few hopeful Tamils across the world, clueless about the Byzantine ways of the UN, thought the world’s premier human rights body would soon send in the blue helmets to save Tamils in distress. In fact, the UN cannot, on its own, send even its independent experts, the Special Procedures, to Sri Lanka since Colombo has not issued a standing invitation to any of them.

If the EU and its allies failed, the non-governmental community did no better. In view of the fact that all the dirty dozen countries in the regional blocs of Asia, Africa and Latin America were expected to gang up and shout down calls for accountability, NGOs should have sent a clear, forthright signal and proposed a sound strategy for the road ahead. But all they had to show for was non-representative discussions. Certain Asian NGOs, even those that call themselves ‘regional’ organisations, on the other hand opted for profound silence.

The road to hell…

The EU resolution failed, as the EU might have expected. It was not even a moral victory, as the EU might have been hoping. The Czech opening statement in the debate on behalf of the EU was indifferently drafted and delivered, and was not about to stir a leaf, let alone the consciences of the majority of the diplomats, most of whom have long smothered any altruistic stirrings in their individual hearts at the altar of their nations’ geopolitical priorities.

The debate started with a forceful statement by the UN High Commissioner for Human Rights, Navi Pillay. It was rebutted with a stout but disingenuous statement by Mr. Mahinda Samarasinghe who heads Sri Lanka’s aptly named Ministry of Disaster Management and Human Rights. The Cubans speaking on behalf of that cold war relic that they have appropriated, the Non Aligned Movement (NAM), launched their usual diatribe. The Indian statement did little credit to a country that is democratic. This once again underscores the need for the Indian Parliament and citizens to exercise scrutiny over what Indian diplomats get away with at forums like the UN, purporting to interpret the sovereign will of the Indian people.

The statement by Canada was uplifting. It made specific demands of the Sri Lankan government. It sought to emphasise international scrutiny and the need to strengthen key national protection mechanisms in Sri Lanka. Also, the US would have taken its place as a member of the Human Rights Council in another fortnight. Why did the EU not wait until the US brought its force multiplier effect to the Council? Old Europe has much to learn from the world across the Atlantic.

It would also have been a quantum leap if the EU resolution had sought an adequately staffed and resourced field presence of the office of the UN High Commissioner for Human Rights in Jaffna and Colombo. The current presence in Colombo consists of a solitary UN Human Right advisor to the UN system in that country assisted by two junior colleagues.

Let’s do it, but how

But the EU’s biggest failure has been its ambiguity on investigations of possible war crimes and other violations of international humanitarian law. During a meeting on 18 May 2009, the EU council called for alleged war crimes in Sri Lanka to be investigated through an independent inquiry. “Those accountable must be brought to justice,” it stated. It did not specify who or what would carry out these investigations. But briefing the media subsequently, Czech foreign minister Jan Kohout stated that “in principle, the inquiry should be carried out by Sri Lankan authorities but it could also involve non-government and UN bodies.” Smoke and mirrors, if you know what it means.

And schooled in the best British tradition, British Foreign Secretary David Miliband did not forget the importance of being earnest. There have been “very grave allegations” of war crimes on both sides of the conflict and “they should be properly investigated,” he stated.

Balderdash and fiddlesticks. What is more important is what these worthy European gentlemen did not say. Over the past few weeks, Europe has seen anger on the streets, and its calls for accountability are intended merely to assuage those sentiments. The disingenuousness of European countries, however, lies in the fact that they have not explicitly proposed making use of a robust mechanism that is to be found within their own jurisdictions, one that might actually lead to accountability and eventual justice for the horrendous crimes committed in Sri Lanka.

The national prosecution option

It might be useful for the EU to recall its report on the 10th and 11th meetings of the African Union (AU)-EU Ministerial Troika, which observed as follows:

“….. Certain EU Member States provide for the exercise of universal jurisdiction in criminal matters only where such exercise is envisaged or rendered mandatory by international treaties to which the relevant state is party. An example of such a state is Ireland. Many of these states have adapted their national laws to provide for universal jurisdiction over grave breaches of the 1949 Geneva Conventions and of 1977 Additional Protocol I, over the crime of torture recognised in the Convention against Torture 1984 and over the crimes recognized in some or all of the various conventions dealing with terrorist acts.”

Further,

“Other EU Member States grant universal jurisdiction over international crimes on the basis of customary international law as well. Such countries include Belgium (universal jurisdiction over genocide, crimes against humanity and war crimes), the Czech Republic (universal jurisdiction over genocide, certain war crimes and crimes against peace), Denmark (universal jurisdiction over genocide, crimes against humanity and war crimes), Finland (universal jurisdiction over genocide, crimes against humanity and war crimes), France (universal jurisdiction over the crimes within the respective jurisdictions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), Germany (universal jurisdiction over genocide. These states also provide for universal jurisdiction where such exercise is envisaged or rendered mandatory by international treaties to which the relevant state is party.”

The good Mr. Miliband might also wish to recall his own observation that “United Kingdom law explicitly provides for universal jurisdiction over the crimes of torture, hostage taking, participating in the slave trade, offences against United Nations personnel, piracy and certain war crimes, including grave breaches of the 1949 Geneva Conventions and its first additional Protocol.”

EU policy does state that “[i]n prosecuting serious crimes of international concern, states should, as a matter of policy, accord priority to territoriality as a basis of jurisdiction, since such crimes, while offending against the international community as a whole by infringing universal values, primarily injure the community where they have been perpetrated and violate not only the rights of the victims but also the general demand for order and security in that community. In addition, it is within the territory of the state of alleged commission that the bulk of the evidence will usually be found.”

However, surely the EU cannot be unaware of the fact that the Sri Lankan judiciary is not only grossly ill equipped to handle such an onerous the task, but that it also judicially abdicated its responsibilities on accountability and fighting impunity a long time ago.

In fact, as early as 2007, the EU had asked the Sri Lankan Government to investigate violations of international humanitarian and human rights law, adding its weight to calls by Louise Arbour, the then UN High Commissioner for Human Rights, and Manfred Novak, the UN Special Rapporteur on Torture, who had requested international monitoring in that country.

In March 2007, the International Commission of Jurists (ICJ) addressing the UN Human Rights Council said that domestic human rights mechanisms were, “insufficient to protect civilians in the escalating conflict and human rights crisis in Sri Lanka.” The ICJ added:

“An international human rights field operation is especially needed when, as in Sri Lanka, justice and human rights mechanisms of the state are struggling to function effectively and independently, and when an armed opposition group such as the LTTE has prevented any independent and effective human rights mechanism developing in territory it controls.”

As far back as 2003, when it was still relatively independent, the Sri Lankan Human Rights Commission (HRC), a statutory body, had concluded as follows:

“It is the Commission's belief that no national or regional human rights entity will be able to effectively monitor and implement human rights standards in the north and the east. No organisation or individual enjoys that kind of universal authority and legitimacy.”

The Sri Lankan Human Rights Commission has since become little more than a joke, and even the super cautious International Coordinating Committee of National Human Rights Institutions has downgraded the Commission from ‘member’ to ‘observer’ status for not being fully compliant with the Paris Principles, a UN standard that is the lowest common denominator for national human rights institutions.

The ICJ also asserts that confidence in the judiciary has declined in recent years, and that members of the judiciary and legal community who seek to uphold the law and protect rights are often threatened.

Is it this wholly inadequate judicial system in Sri Lanka that is being trusted by the EU to deliver justice? The principle of territoriality apparently did not apply to Sudan. Why must it apply to Sri Lanka?

Get real

The international human rights community and particularly the Tamil diaspora in Europe and North America need a reality check. A Paris-based international human rights organisation, clearly not having drawn any lessons from the abject rout in Geneva, has now urged that “alternative mechanisms…must be activated for an international commission of inquiry”. Shades of Don Quixote, one might say. Any new tribunal of an international nature would need UN Security Council approval. And since Beijing and Moscow are standard bearers of human rights, can we expect that remarkable agenda to find a place on the table? If on the other hand a non-governmental body of experts is being sought here, it might be useful to bear in mind that no such body will get past immigration at Katunayake airport.

Instead of pursuing pies in the sky, it would be more fruitful to look at national mechanisms that can try violations of international human rights and humanitarian law, as outlined above. For a start, the large Tamil diaspora in the United States should enter into negotiations with credible human rights NGOs and law firms to assess the possibility of seeking civil damages and bringing prosecutions. The Alien Tort Statute (ATS) and the Torture Victim Protection Act are two options in the United States. Similar assessments must be carried out in all countries of Europe and elsewhere in the world.

Caution, meticulous legal work, and collaborations with credible human rights organisations and law firms, is what will win the day, and eventually win the peace.

State of paranoia

My organization, the South Asia Human Rights Documentation Centre (SAHRDC) has received the following communication from the Centre for Human Rights and Development in Colombo, Sri Lanka. This is a good example of what the ordinary Tamil faces in a country wracked by institutionalized prejudice and the paranoia of security agencies. It also illustrates the risks faced by human rights defenders.

Sinnavan Stephen Sunthararaj, 39, an employee of the Centre for Human Rights and Development (CHRD) was abducted on Thursday, 7 May 2009, by a group of unidentified gun-wielding men. His whereabouts are not known.

Mr. Sunthararaj’s family and colleagues believe his unlawful arrest and subsequent disappearance are the result of his work as a human rights investigator. They believe that certain persons aggrieved by Mr. Sunthararaj’s activities have collaborated with the security forces who are known to unlawfully arrest members of the Tamil community under the Emergency Regulations in order to extort money.

On 12 May 2009, Mr. Sunthararaj left his office around 4.30 pm. He was stopped by some STF, police and army personnel on the road leading to Galle Road. He was questioned about the whereabouts of two persons. He was then taken to the Kollupitiya Police Station. He was detained on a Detention Order issued by the Ministry of Defence under Sri Lanka’s Emergency Regulations.

Around 5 pm, his wife received a telephone call from a man who did not identify himself. He said in a threatening tone that Mr. Sunthararaj had been arrested and that in the event he was released by the police, he would not be spared. Mrs. Sunthararaj then went to the Kollupitiya Police Station and was permitted to speak to her husband. He told her that he believed he had given an adequate response to the questions he had been asked but was still being kept in custody. He also said that one of the persons amongst those who had confronted him appeared to be a civilian dressed in civilian clothes and spoke fluent Tamil.

Mrs. Sunthararaj then spoke to the police officers who told her that her husband would be released after the conclusion of investigations. They told her he would be released without charges being framed. Mrs. Sunthararaj learnt later that the same person had gone to the CHRD office (Mr. Sunthararaj’s workplace) on the morning of 12 February 2009 and had behaved in a suspicious manner. A person in civil had entered the office and had made inquiries of matters irrelevant to the organization, while surveying the office, as though he was looking for someone. When Mr. Sunthararaj was arrested later that day, this person threatened him saying: “You have managed to escape this time; I will deal with you after you are released.”

Mr. Sunthararaj’s lawyer visited him at Kollupitiya Police Station the day after the arrest (13 February 2009) and spoke to the Officer-in-Charge of the police station. The Officer assured the lawyer that Mr. Sunthararaj would be released after the Criminal Investigation Division (CID), National Investigation Bureau (NID) and Terrorist Investigation Division (TID) submitted their reports in the matter. The lawyer was also told that since Mr. Sunthararaj had been handed over to the police by the army, it was the CID and TID that were in charge of the interrogation and that the police had no decision making powers.

In late February 2009, Mr. Sunthararaj’s wife received a telephone call which appeared to be from outside Sri Lanka. The caller, who did not identify himself, stated that unless one million Sri Lankan rupees were paid, he would make sure that Mr. Sunthararaj was not released for a long time and that he would also be assaulted and tortured in custody.

On 7 May 2009, Mr. Sunthararaj was produced before a Magistrate and subsequently released that same day around 4 pm. He was returning home with his family around 7 pm when the vehicle they were travelling in was stopped on the Dharmapala Mawatha, Colombo 7, by a group of unidentified persons in a white van.

Mr. Sunthararaj has been employed as Programme Manager at the Centre for Human Rights and Development since April 2007.

Mr. Sunthararaj is a graduate of the Jaffna University where he studied Sociology. He was Assistant Lecturer in Sociology in the University of Jaffna from 2000 to 2001 and served in the same capacity at the University of Colombo from 2001 to 2002. He worked as Coordinator of the District Child Protection Committee, Jaffna, from September 2002 to 2006 and with World Vision Lanka as Programme Coordinator (Child Protection) from April 2006 to April 2007.

During his employment as Child Rights Officer in Jaffna, Mr. Sunthararaj had in his course of duties carried out investigations into several cases of child abuses. He had managed to bring to book several perpetrators, some of whom were members of armed groups. He received several threats to his life. When the threats intensified, he moved with his family to Colombo in 2007.

Winning The Peace In Sri Lanka

This weekend or early next week will see the Sri Lankan army hoping to deliver the knockout punch to the remnants of the Liberation Tigers of Tamil Eelam (LTTE). But President Obama’s timely intervention is a signal to Colombo that its brazen disregard of international humanitarian law – even as it still claims to be mopping up the tenacious LTTE cadres – can no longer be ignored in diplomatic corridors.

It is now evident that Lankan security forces pulled some of their punches early this month, but not to minimize civilian casualties as they piously claimed. They did so mindful of New Delhi’s trapeze act between the desire to help Sri Lanka eliminate the LTTE as a military threat and the compulsions of Indian realpolitik. Any new government in New Delhi later this month cannot do without the support of either the DMK or the AIADMK, both of whom have taken public positions on Eelam.

The LTTE has lost the war on the battlefield, thanks to the absence of a political strategy for the negotiating table. Now the Sri Lankan Tamils, Indian Tamils, Tamils elsewhere and democrats everywhere will need to craft a new pragmatic strategy if they are to ensure that the Sri Lankan Tamil does not become the Palestinian of the 21st century, living perpetually in the diaspora, as the poor cousin in India, in the twilight zone of statelessness, or in Bantusans soon to be created by the Sri Lankan government.

First, form a circle

Any new strategy must have as its lynchpin a carefully crafted constitutional proposal that goes beyond the 1987 framework suggested by the Indo-Sri Lanka pact as also the now defunct 13th Amendment to the Sri Lankan Constitution and the inadequate proposals of the All Party Representative Committee (APRC). The 1987 pact, which seems to be the mantra of the New Delhi establishment, belongs in the past, as do the other proposals. The new enhanced position must demand genuine internal self-determination akin to Article 370 of the Indian Constitution prior to 1953. Sri Lankan Tamils must avoid the false god of an independent Tamil Eelam. Giving up gods that failed is heart wrenching, but a maximalist position should be avoided if solidarity is to be achieved across India, with democrats in Sri Lanka and globally. In the event of the Colombo dispensation failing to read the accommodativeness of the average moderate Tamil, it will not need a soothsayer to predict a second coming.

The new campaign will need to hinge on five concentric circles of support and solidarity.

The first circle must bring together the Tamil in India and in the diaspora, whether in Malaysia, Mauritius, South Africa, Europe, North America or elsewhere. A broad civil society solidarity committee cutting across the political spectrum will need to be created. Civil society here means political parties, trade unions, chambers of commerce, community organizations, people’s organizations, women’s organizations, media organizations, student unions, Bar Associations, the film and cultural fraternity, the Tamil literary community and voluntary organizations of every stripe.

Civil society does not mean glossy pamphlet-manufacturing donor-driven NGOs. Most have no eyesight, hindsight or foresight. Illustrations abound – for example, the head office of an Tamil Nadu NGO expresses concern for the Sri Lankan Tamils even as its sister branch in Andhra Pradesh permits the circulation of some of the most jingoistic and rabid Sinhala chauvinist propaganda against the Sri Lankan Tamils on its listserv.

The broad support and solidarity committee must have as its convener a Tamil who is above the fractious political fray in Tamil Nadu, someone who has unquestioned moral authority and gravitas. Once formed at the state level, it should be replicated at the district and block levels. The State Committee should have a small but dedicated paid secretariat in Chennai to handle the work of the committee on a daily basis. Many good causes in India are lost because in the heat of the moment everyone wants to claim ownership. In time, everybody’s baby becomes no one’s baby. The rights of Sri Lankan Tamil must be an article of faith not only for every Tamil or Indian but for every democrat globally.

As soon as the newly constituted Indian Parliament convenes, this representative body must get its act together and give a call for all parties to unanimously move and pass a resolution in the Tamil Nadu state assembly. This all-party resolution must be carefully crafted and must support the legitimate demand for self-rule by Tamils in Sri Lanka. The resolution should be formally communicated to the Central Government in New Delhi in time for the first session of the newly elected Parliament.

This committee must host an international conference of Tamils within six months of its formation to craft the outlines of a substantive political, diplomatic and media campaign on behalf of their Sri Lankan Tamil brethren, in Tamil Nadu, the rest of India and worldwide. The preparation of a comprehensive background note and a draft programme of action should precede this. A cross section of democratic opinion cutting across the ethnic divide in Sri Lanka should be invited.

The newly elected members of the Indian Parliament from Tamil Nadu must, irrespective of their party affiliation, seek to do a number of things in a time bound manner. Firstly, they should move a joint resolution in both houses of the Indian Parliament asking for a diplomatic initiative that seeks to ensure self-rule for the Tamils in Sri Lanka within a specific timeframe. The timeframe must be reasonable but not elastic. They should move another resolution demanding perpetual landing and fishing rights for Indian fishermen on the island of Kachchathivu within a year. Thirdly and most importantly, all Tamil Parliamentarians must demand an official white paper from the Indian Government on India’s engagement in Sri Lanka since the withdrawal of the IPKF. This will ensure that the initiative on policy making on Sri Lanka is returned to the legislative arena. Currently, it appears to be the preserve of a cabal of official security specialists who have only served to undermine India’s interests where its neighbours are concerned. Fourthly, they must impress upon the Indian Government that the Rs. 1 billion humanitarian aid announced by New Delhi and supplemented with Rs. 250 million from the Tamil Nadu government must be routed through the International Committee of the Red Cross (ICRC) and other credible humanitarian organizations on the ground in the North, such as local church groups. Nothing that strengthens the civil arm of the Lankan war machine must be permitted.

The Tamil members in the Indian Parliament must also lobby to ensure that Parliament directs the Indian Foreign Ministry and Finance Ministry to instruct India’s executive members in the IMF, the World Bank, the Asian Development Bank and all other multilateral financial institutions such as the Sri Lanka Aid Consortium to oppose any loans and credit lines to Sri Lanka unless there are iron clad conditionalities of time bound action on internal self determination for the Tamils in Sri Lanka. Colombo must also guarantee non-derogable constitutional amendments safeguarding the political, language, economic and cultural rights of the Sri Lankan Tamils. The Indian government must be asked to make demarches to other countries like the United States of America, the United Kingdom, France, Norway and Japan to exert their influence in this regard. The Indian government must be told to formally invite and consult the leadership of the Tamil National Alliance (TNA) on issues of common concern at an early date. These consultations must be held at the highest political level, not at the level of Smiley’s people and diplomats, as was the case earlier.

The Tamil Nadu solidarity committee must study the possibility of calling for a worldwide boycott of all Sri Lankan products and tourism if there is further intransigence on the part of Colombo. A small research team must look at all Indian and international companies that have invested in Sri Lanka and lobby for the divestment of their shareholding in these companies. The committee must seek the withdrawal of all Indian and other investment in Sri Lanka. Similar exercises must be conducted in Europe, North America and Australasia. And while we all love Sanath Jayasuriya’s cricket, there should be a boycott of all cricket and sporting contacts with Sri Lanka, as was done during the anti apartheid campaign.

The committee must study in particular all arms transfers that were made openly and surreptitiously by the shady merchants of death who camped in fancy accommodations on Lotus Road in Colombo, and must devise a campaign for outing these carpetbaggers. At the international level, it must track all countries that sold arms to Sri Lanka and find out the names of the companies involved. It must use the shareholder information of these companies in Europe and North America and publicly expose them in their next annual general meetings. It must urge union pension funds and sympathetic local governments to withdraw their investments in these companies.

The Tamil solidarity campaign must also start an international campaign against all Chinese products and companies based in India, since China has emerged as the largest supplier of arms and financial credit to Sri Lanka. Buy Godrej, Westinghouse, LG, Samsung, Electrolux and Siemens. Haier and Huawei must be given the 21st century version of the Boston Tea Party.

Bring in more players

The second concentric circle will need to involve a wider audience in all the states of southern India where there are affinities of language, ethnicity and kinship. One of the failures of the movement for solidarity for the Sri Lankan Tamil in Tamil Nadu was the Indian Tamil’s failure to build a wider constituency of support and solidarity for the beleaguered Sri Lankan Tamil. The New Delhi-based television and print media, with some honourable exceptions, also failed to catch on. At every stage of this conflict, Indian television news channels have unquestioningly swallowed all that was dished out to their embedded tank-mounted correspondents by the Sri Lankan military authorities. And they have fanned their delusions and misinformed the Indian viewer by bringing on air a supposed Tamil oracle, whose publication is named after an eccentric medieval ruler of Delhi and which has a minuscule readership. The professedly Marxist editor of venerable Chennai-based English daily played second violin in this orchestrated dissimulation on the Sri Lankan Tamil plight and the popular mood in Tamil Nadu. Both these worthies could hardly be called representatives of mainstream Tamil opinion.

The third concentric circle will have to enlist the average Indian in other parts of India. Indians must be reminded that Indian governmental policy since the unceremonious withdrawal of the Indian Peace Keeping Force (IPKF) and the dastardly murder of Rajiv Gandhi has oscillated between masterly inactivity and the helplessness of an aged puppet master whose puppets have acquired a life of their own. The Rajapakse brothers, the Chinese, the Pakistanis and a few other interlopers have brilliantly exploited this. The official Indian establishment now croons to Cliff Richard’s “Outsider, that’s me”.

The first official policy initiative by the new government at the Centre must be to underline the rights of Indian fisherfolk. Those in Temple Trees will know that New Delhi still wields clout when they are compelled to recognize the perpetual landing and fishing rights of Indian fishermen on the island of Kachchathivu on which negotiations between the Sri Lankan and the Indian Government last took place in September 2008 and have made little progress. Remember that an establishment that screams blue murder at any suggestion of giving up any “ atoot anng” (‘inseparable part’ in the Queen’s English) of India, had generously gifted away this island in 1974 to Sri Lanka, much against the wishes of every shade of political opinion in Tamil Nadu. All extant historical records conclusively prove Indian ownership of the island.

Raising the game

The fourth concentric circle will need to involve Tamil diaspora groups which must lobby in their respective countries and network in international fora. The diaspora, left rudderless in its impotent rage, has been blocking roads in London and Toronto, losing the sympathy of the average Londoner or Canadian and causing little sweat to the Brothers Grim (pun intended) in Colombo who have been enacting so many horror stories in the North. A more nuanced lobbying policy will need to be devised to harness the understandable and legitimate sense of helplessness and anger of diaspora groups. This is a tragedy that affects their kith and kin. But they find themselves in a global clime where even uttering Article 1 of the United Nations Covenant on Civil and Political Rights has come to mean high treason.

The fifth concentric circle will need to encompass all democratic Sri Lankans, Jaffna Tamils, Colombo Tamils and also the poor hill Tamils. It must actively seek to encompass the democratic Sinhalese, Muslim and Burgher. An exclusivist Jaffna Tamil position will be music to the hegemons of Colombo 7. Further, there must be open contrition and a public apology expressed to the Muslim community by the Sri Lankan Tamil. Tamil Muslims were hounded out of eastern Sri Lanka by the Quisling Karuna at the behest of a myopic LTTE leadership and used cunningly by the Sinhala ultra nationalist Buddhist fundamentalists, who in other circumstances would have had little time for them.

Fair and square

This plan is not exhaustive. It is only illustrative. There is a need to be resolute and determined, yet there must be none of the rhetoric that has been the bane of Tamil and Sinhala politics. The Tamil Robespierre is part of history. Many a good Tamil Danton, well meaning Sinhala and Muslim have died needlessly in that reign of terror. The Rajapakse brothers have unleashed a new ethno-religious authoritarian order and appear keen to usher in a militarized state. Lasantha Wickramatunga is dead, and a Vichy-like enclave is being led by a Tamil Pétain in the Eastern province. Alarmist, one may think, but read the portents and stand up now and speak out loudly in protest or forever remain silent in shame.

Summer Winds Augur Ill For The Sri Lankan Tamil

It is only a matter of time before the last redoubt of the Liberation Tigers of Tamil Eelam (LTTE) falls. Armed resistance in the conventional sense of positional warfare will soon come to an end. But for all the triumphalism of the Sri Lankan army, it is instructive to remember that since the fall of Killinochchi in October 2008, a small band of 2000-plus LTTE cadres held out against three divisions of the Sri Lankan army for over eight months. The Sri Lankan army was armed by China and Pakistan, helped by radars from India manned by Indian personnel, and also supplied with weapons euphemistically called “non-offensive” by India and half a dozen other countries. It was trained by the Indians, Pakistanis, Israelis and the Chinese. The LTTE for its part was blockaded by the Sri Lankan and Indian navies and tracked by spy satellites from a few other countries that passed on information to Colombo.

This article is no paean to the LTTE, as for all their courage they were bereft of a political strategy for many years. And while their heroic Masada-like last stand will enter the annals of Tamil folklore and mythology, it is also a classic case of the failure that awaits those who rely on armed strength alone without realising that politics must always control the gun.

The cessation of combat by the Sri Lankan army in mid April 2009 meant little. This is something the army could have done in early April, if not earlier, once it had boxed the remnants of the Tigers in a 10 square mile area. It could have easily starved out the Tigers, who also had civilians to feed, by a virtual siege, which it had already done through the encirclement from the land and sea. It is evident that the purpose was not the surrender of the LTTE, Colombo’s protestations to the contrary notwithstanding, but the elimination of the fighting capacity of the LTTE.

Meanwhile, ultra nationalist Sinhala jingoism cared little if a few thousand innocent Tamil civilians also died in the process.

The Sri Lankan government statement, on the basis of which Tamil Nadu Chief Minister M. Karunanidhi called off his fast, was another brilliant smokescreen – it merely said that the army had stopped using heavy weapons. In further dissimulation, it claimed that the security forces would confine their attempts “to rescuing civilians who are held hostage…”

Clearly this did not preclude the use of weapons such as mortars, anti tank weapons, bazookas and rocket propelled grenade launchers along with heavy machine guns firing tracers, which in any case were the only weapons that can be used in combat of such close proximity as the combatants found themselves in during the second half of April 2009.

This was no concession at all. If the Sri Lankan forces did not go in for a major push until late April 2009 into the encircled area, it was only because such close combat would have resulted in major casualties on their side. This would be a liability for the Rajapakse brothers when they do their victory lap on the Galle Face Green.

The Indian government, the European Union and most of the international community are complicit in this strategy. An alive and captured Prabhakaran would be a very big problem politically for India. In fact, the Sri Lankans, advised by their Chinese and Pakistani friends, were considering capturing Prabhakaran alive and handing him over to the Indians.

For India, this would stir the political pot not just in Tamil Nadu but also in terms of India’s projections on the anti-terror war and the consequences it would have on the domestic political scene. India would not benefit in any way with Prabhakaran being alive. And he could not be kept in Sri Lanka as a prisoner without India making a formal request for extradition due to the judgment in the Rajiv Gandhi assassination case.

With the Sri Lankan government victory, neutral humanitarian intervention from India, either official or unofficial, will become even more difficult as the Sri Lankan state will be presenting a fait accompli to the rest of the world. All other states, including India, while being critical will come to terms with the new diplomatic reality even if they do not like it. All humanitarian relief will now have to be channelised through the Sri Lankan government umbrella.

In the post-conflict situation, the Sri Lankans will keep conditions in the camps barely livable, without going to extremes. They will, through their subtle propaganda, actively encourage the displaced to leave Sri Lanka for India or join the Tamil diaspora elsewhere and in a sense depopulate part of the north of that island. They will then in the long term seek to implant Sinhalese settlers in that area over a period of time, as they did successfully in the east where there is now a sizeable Sinhalese population in what was once a predominantly Tamil area.

The present ‘IDP camps’ are a euphemism for open prisons, and in any event, given the cordon sanitaire laid down by the Sri Lankan and Indian navies, none of the IDPs will be able to come across to India. Now that the Tiger resistance is part of history, the Sri Lankan government attitude in the camps will see a change after they have completed the process of ‘screening’ of the IDPs to isolate any residual LTTE cadres. Their naval blockade will disappear and they might even conveniently furnish a number of small boats to encourage the screened IDPs to go to India.

Well-meaning Tamil politicians on the Indian side would be well advised to give up fanciful schemes of bringing the IDPs to India. This would be playing into the hands of the Sri Lankan government. If they come to India, they will not go back to Sri Lanka and that will be a double victory for the Sri Lankan government. Having won the military campaign, the Sri Lankan government will also win the political peace, albeit for a decade or two.

Any exodus of the Tamils from the north of Sri Lanka, voluntary or otherwise, to India, for good reasons would be inimical to the long-term interests of both the Sri Lankan Tamils and India – it will mean the end of the Sri Lankan Tamils as a historical community, as deeply rooted in the island nation as the Sinhalese.

The Rajapakse brothers are devious but also farsighted. The Indian, and the Tamil in particular, is more emotion-driven. The Sri Lankans are not merely looking at the military defeat of the Tigers; they want to write a new and final chapter of the Mahavamsa, which will conclude that the Sinhalese finally settled the 2000-year struggle with the Tamils under the Rajapakse brothers by sending the Tamils back in boats towhere they originally came from.

Having lost the war, the Sri Lankan Tamils must win the peace, but the how of that in the next article.