SPECIAL REPORT : Part 175July 18, 2017, 8:35 pm
Ben Emmerson responds to the media at UN compound in Colombo on the afternoon of July 14, 2017.UN Resident Coordinator and UNDP Resident Representative Una McCauley looks on.
By Shamindra Ferdinando
Ben Emmerson, QC, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms, while countering terrorism, is fully cognizant of Sri Lanka’s long and complex history of ethnic tensions and the tremendous security challenges this has generated. For almost 26 years, Sri Lanka dealt with violent acts of terrorism, committed by the Liberation Tigers of Tamil Eelam (LTTE), including suicide bombings and political assassinations, which culminated in a prolonged armed conflict that came to an end only in 2009.
UN Human Rights Office of the High Commissioner Britisher Emmerson succeeded the first Special Rapporteur (Aug.1 2005 – July 31, 2011), Finish national, Martin Scheinin, on Aug 1, 2011.
At the conclusion of a visit to Sri Lanka, Emmerson flayed the Sirisena-Wickremesinghe government for not implementing the Geneva Resolution 30/1 adopted on Oct 1, 2015. Addressing the media, at the UN compound, in Colombo, last Friday, Emmerson declared that the Counter Terrorism Act proposed in place of the Prevention of Terrorism Act, (PTA), could become the cornerstone of a new order in Sri Lanka.
Having pointed out that the PTA had been enacted in 1979 as an emergency measure, Emmerson alleged that it was used against the Tamil community. "Since the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus", he said.
The lengthy statement, readout by Emmerson, conveniently made no reference to the origin of the conflict, 26 years ago. Had the UN intervened, on behalf of Sri Lanka, in early 80s, despicable Indian destabilization project here could have been thwarted. Those who had bitterly complained about the security apparatus never bothered to examine the daunting challenges faced by Sri Lanka during the conflict. India, too, struggled to cope up with security challenges during the deployment of its Army in the Northern and Eastern Provinces in Sri Lanka (July 1987-March 1990).
The UN can never absolve itself of the responsibility for allowing India to destabilize its neighbour. The UN turned a blind eye as India forced Sri Lanka to accept deployment of its Army in two provinces in July ‘87, for an indefinite period, after having destabilized Sri Lanka to such an extent the government couldn’t cope up with the situation. However, the Indian project meant to establish federal administrative structure, in the two provinces, went awry due to the LTTE’s intransigence. Those who had been sent to guarantee the eelam project ended up fighting its own creation.
Although there had been some excesses, on the part of law enforcement authorities, as well as the armed forces, during the conflict, it would be pertinent to mention that the PTA was utilized against the Janatha Vimukthi Peramuna (JVP) in late 80s. Although it hadn’t been state policy, some law enforcement personnel, and armed forces, resorted to torture and extra judicial measures.
Emmerson dealt with the PTA on the basis of it had been exclusively used against the Tamil community. In fact, the police and the armed forces, in spite of being overwhelmingly comprised Sinhalese Buddhists, mercilessly crushed the JVP, though the Marxist group, consisted of almost 100 per cent Sinhalese Buddhists.
Emmerson was the former senior counsel for the Independent Inquiry into child abuse in the UK, headed by Prof. Alexis Jay. Emmerson quit the Independent Inquiry late last year following an allegation of sexual assault in a lift against him. However, Emmerson was fully cleared by his law chambers, Matrix, following an independent inquiry into the allegations of sexual assault and sexual harassment.
Emmerson should examine allegations directed against the Indian Army by the Tamil community here. India never acknowledged atrocities committed by its Army here, or accepted responsibility for training thousands of terrorists. Some of those Indian trained terrorists, belonging to the PLOTE, mounted a sea borne raid on the Maldives, in early Nov 1988. They almost succeeded in assassinating the then Maldivian President Abdul Gayoom. Western powers overlooked the regional security crisis created by India. Interestingly, the PLOTE is now a constituent member of the Illankai Thamil Arasu Kadchi (ITAK) led Tamil National Alliance (TNA), represented in parliament.
Those who hadn’t been familiar with clandestine operations, undertaken by the LTTE, would find it difficult to comprehend counter measures that were required to neutralize enemy threat.
Having had access to current, as well as former PTA detainees, Emmerson accused Sri Lanka of practicing what he called extremely brutal methods of torture. On the basis of what he had heard, Emmerson, in his media briefing, referred to beatings with sticks, the use of stress positions, suffocation of detainees by using plastic bags drenched in kerosene, pulling out fingernails, the use of various forms of water torture, suspension of people for several hours by their thumbs, the insertion of needless beneath the finger nails as well as mutilation of genitals. Emmerson declared that these allegations had been backed by independent medical evidence. Emmerson’s unsubstantiated allegations reminded me of one-time US Secretary of State Hillary Clinton alleging Sri Lankan Army had raped Tamil women as a tactic. Subsequently, release of some emails, sent and received by Clinton, during 2009, revealed the circumstances under which uncorroborated accusations had been directed at the Sri Lankan government at a time Western powers were trying to take the shine off the country’s triumph over terrorism.
The emails, released by the US State Department, disclosed the issuing of a clarification without actually retracting baseless claim made by Clinton that rape had been used as a tactic of war in Bosnia, Burma, and Sri Lanka, and elsewhere. The statement was made on Sept. 30, 2009, at the UN Security Council. That was a calculated move to appease those who had been calling for an international inquiry into the Vanni offensive, at Sri Lanka’s expense.
Self-infliction by proxy
Against the backdrop of Emmerson’s obvious faith in what he had been told by PTA detainees, during his stay here, let me examine a high profile case involving a Tamil seeking political asylum in the UK.
British judges ruled, in April, this year, a Sri Lankan asylum seeker allowed himself to be tortured, with hot iron rods, to support his bid to stay in the UK.
The Sri Lankan Tamil claimed five scars on his back were evidence of how he was badly treated by security authorities in Sri Lanka.
However, the Court of Appeal ruled that the Sri Lankan probably consented to the torture as part of a ruse called ‘self-infliction by proxy’ or SIBP.
The court asserted that a ‘cooperative and clandestine’ doctor might have put the asylum seeker under general anesthetic while the heated iron rods were placed on him.
In a 22,000-word appeal ruling, one of UK’s most senior judges, Lord Justice Sales, questioned why the 35-year-old man had not experienced any significant infection as a result of the burning.
The judge said an earlier immigration tribunal which threw out the man’s asylum claim was justified in highlighting the ‘highly unusual’ type of scarring as a ‘central implausibility’ in his account.
The UK court also raised doubts about his relationship with the LTTE and his alleged detention and escape from the country.
The Sri Lankan had arrived in the UK on a fake passport after the conclusion of the war, in May 2009 before seeking asylum. The Sri Lankan is alleged to have racked up enormous legal bills at taxpayers’ expense in his desperate bid to avoid deportation.
Sri Lankan claimed that he was detained in the aftermath of LTTE attack on Colombo airport in 2007 over possible links to the organization.
His alleged torture occurred in August 2009, where it was claimed he ‘felt intense pain from the first burn’ before falling unconscious while receiving other burns. In support of his torture claim, he produced a medical report from a professor that backed the theory.
The man also claimed he would face ‘a real risk of persecution’ if deported because authorities would regard him as having been ‘actively involved’ with the LTTE.
Dismissing the Sri Lankan’s appeal, Lord Justice Sales said the earlier tribunal hearing – which rejected the asylum seeker’s claims – had ‘conscientiously balanced the probabilities of infliction of the scarring by SIBP and by torture’.
The SIBP was the ‘only real possibility’ that could not be discounted, the court ruled.
In a majority decision, Lord Justice Sales and another senior judge, Lord Justice Patten, rejected the challenge by the claimant, identified only by the initials KV.
Those wanting to humiliate Sri Lanka had accepted all sorts of allegations directed at security authorities without bothering at least to verify them. British politicians had shamelessly sought the backing of UK voters, of Sri Lankan origin, at general elections. Presence of all major political parties at the inauguration of the Global Tamil Forum (GTF) in the House of Commons in February 2010 is proof of this.
The GTF was launched on Feb 24, 2010 with the participation of the then British Foreign Secretary, David Milliband, Conservative Shadow Foreign Secretary, William Hague, and Liberal Democrats Shadow Foreign Secretary, Ed Davey, as well as delegates from 14 countries. The formation took place in the wake of a failed joint UK-French bid to throw a lifeline to the LTTE. They made a desperate effort as Sri Lankan troops were closing in on the LTTE-held area on the Vanni east.
Terrorists take refuge overseas
Sri Lanka successfully brought the war to a successful conclusion, in May, 2009, on the banks of the Nanthikadal lagoon. Since the conclusion of the war, thousands of those who had fought for the LTTE had entered other countries, illegally. In addition to them, a substantial number of Sri Lankan Tamils, who had escaped forced conscription, as well as those who weren’t in Sri Lanka, during the war, sought asylum in the West on the false pretext of being persecuted by Sri Lanka. Asylum seekers had accused Sri Lanka of torturing them. Interestingly, Western powers hadn’t been really bothered about those receiving asylum, on the basis of unsubstantiated allegations, being guilty of human rights violations, including torture, during the war here. The LTTE had operated ‘prisons’ in the Northern and Eastern Provinces during the conflict where they held Tamil speaking people opposed to them, members of rival Tamil terrorist groups, dissident members of the LTTE, and captured and surrendered police and armed forces personnel. They had been organized to such an extent, the London headquartered Amnesty International was given an opportunity to examine some of their facilities in the Northern Province years ago. The Amnesty International recommended legal status to the LTTE against the backdrop of the grouping having ‘courts.’
The LTTE had subjected those who revolted against the group, or suspected of working against it, to torture before execution. The likes of Emmerson pursuing an agenda against Sri Lanka will never accept transformation of Sri Lanka. They cannot stomach Sri Lanka’s triumph over the ruthless LTTE terrorists whose capabilities even stunned one of the largest armies in the world in late 80s. Having trained the LTTE in India, India experienced its fighting capabilities as LTTE units killed well over 1,000 Indian officers and men and caused injuries to 3,000.
Sooka reveals terrorists living in UK, Norway...
An expensive survey conducted by the International Truth and Justice Project (ITJP), affiliated to the Foundation of Human Rights, in South Africa, last year, revealed how LTTE cadres, including those who had been with Shanmugalingam Sivashankar alias Pottu Amman’s dreaded intelligence service, secured citizenship in European countries, including the UK.
The releasing of the survey titled ‘Forgotten Sri Lanka’s exiled victims’ coincided with the commencement of the 32 sessions of the UN Human Rights Council in Geneva.
The report inadvertently revealed the existence of clandestine networks, facilitating Sri Lankans of Tamil origin, including former members of the LTTE, reaching Europe, through illegal means.
The report dealt with information acquired from 75 Tamils, living in the UK, France, Switzerland and Norway. Almost all of them had fled Sri Lanka after the conclusion of the war, in May, 2009. The vast majority of interviews had been conducted in London. However, an ITJP bid to include some of those ex-LTTE cadres, based in Germany, in the project, had gone awry. The report claimed that the targeted group declined to participate, in protest against the role of the international community in supporting the transitional justice process in Sri Lanka.
Surprisingly, ITJP didn’t bother about those who had taken refuge in India during the conflict and post-conflict period.
A group of human rights experts, international prosecutors, investigators and transitional justice experts, who had previously served the United Nations (UN) International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC), produced the report under the guidance of Yasmin Sooka, one of the three persons on UNSG Ban Ki-moon’s panel of experts. Sooka teamed up with Marzuki Darusman and Steven R. Ratner to produce Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka.
On the basis of the interviews conducted, with the help of Sri Lankan Tamil interpreters, who had either worked for the UN or other International NGOs, in the Vanni, during eelam war IV, the report estimated that 72 per cent of the 75 interviewed had served various LTTE units. The report named those combat and support units as Radha, Sothiya, Imran Pandiyan and Malathy regiments as well as the Intelligence Wing. The non-combat units included the LTTE Media Unit, the TV station, the Political Wing, the Peace Secretariat, the International Secretariat, the Medical Wing, the Transport Unit, the Computer section and the Education Section.
Those who had been interviewed, but not members of the LTTE, were either at school or university, or were in some cases housewives, photographers, teachers, accountants, office administrators, farmers, businessmen, or fishermen, during the conflict. Eighty per cent of the interviewed had survived the last phase of the war on the Vanni east front.
Sooka’s team claimed having unhindered access to those who had fled Sri Lanka during the eelam war and post-war period as well as the largest collection of witness testimony and other evidence, outside Sri Lanka, pertaining to the final phase of the conflict and post-war torture and sexual violence. (The claim as regards having the largest collection of witness testimony and other evidence outside Sri Lanka should be closely examined against the backdrop of UNSG Panel of Experts declaration that it received 4,000 submissions from 2,300 persons. Interestingly, Sooka also served the Panel of Experts which released its report on March 31, 2011).
Sooka appreciated the support extended by wartime BBC correspondent in Sri Lanka, Frances Harrison, to the ITJP project. Declaring that the project couldn’t have been brought to a successful conclusion without Frances’ support, Sooka referred to the role played by lawyers in facilitating interviews with those who had clandestinely left Sri Lanka. (Obviously, they had repeated to Sooka’s team what they told their lawyers engaged in the lucrative business of obtaining asylum for aliens.)
Thanks to Sooka, the OMP, and those wanting to know the truth, now have an opportunity to verify the situation in the wartime Vanni with the help of former UN and INGO workers living overseas. In fact, no other INGO had so far claimed to have access to former UN and INGO workers who had experienced war and were lucky to survive the final assault on the Vanni east front. They can help establish the circumstances under which the LTTE forced the population in the Vanni west to cross the Kandy-Jaffna A9 road and move towards the Vanni east coast. The LTTE imposed severe restrictions to prevent civilians fleeing the war zone to secure refuge in army-held areas. The LTTE went to the extent of detaining UN workers responsible for helping some civilians to escape.
But most importantly, former LTTE cadres, now living overseas, should be subject to scrutiny by the UN.
Did they secure citizenship in European or Scandinavian countries on the basis of false claims? Had they been really in northern Sri Lanka during the war or lived in the South and sought to exploit the situation at the expense of Sri Lanka’s impugned notoriety?
Perhaps, premier contemporary French director Jacques Audiard’s Dheepan that secured the Palme d’Or in Cannes in 2015 is evidence how blatant lies had enabled Sri Lankan Tamils to secure citizenship. Dheepan dealt with a Tamil terrorist trying to make a new life in France with a fake family. The bogus family succeeded in France. Dheepan is the story of thousands of former terrorists and fake terrorists.
Sri Lanka, obviously paying a very heavy price for not properly countering propaganda. The war-winning previous Rajapaksa government cannot absolve itself of failure to defend Sri Lanka. Instead of countering lies, the former government played politics with the issue until it was too late.