In conversation with an international observer

It has been four months since the international observers of the public inquiry into human rights abuses in this country packed their bags and left for home. The Government doesn’t have the political will to uncover the truth of the various incidents that are under scrutiny, they alleged. Nothing more is to be done in the circumstances. I wondered how the situation might look with the benefit of hindsight and so took advantage of a trip back home to catch up with a member of the supervisory team - Sir Nigel Rodley.

We’d met before. I interviewed him for this newspaper just over a year ago, not long after he first travelled to Colombo to start his assignment with the International Independent Group of Eminent Persons. The Commission of Inquiry was in its infancy. Nigel Rodley had come across as a wise and genuine advocate, and I was glad to have a chance to discuss the issues with him again. He welcomed me to the office at Essex University where he is Professor in International Law and Chair of the Human Rights Centre. Time seemed to have changed very little since our initial meeting except possibly the size of the piles of books and papers lying around on the floor and almost every other available surface.

I started off feeling pretty bemused as to why the international observers had given up. I’d read all their statements, followed the reports of their press conferences, and still wasn’t clear about it. I wanted to know what I’d been missing.

Nigel Rodley explained that one of the most important problems they had encountered was the Commission of Inquiry’s seeming inability to react authentically to proposals made by the Eminent Persons. I wasn’t sure how anybody could tell whether a response was actually sincere or not, but I let it pass for the moment.

The advice given is well known and has been discussed at length already. The Eminent Persons said that progress was too slow and part of the state apparatus wasn’t cooperating. They were worried about the conflict of interest that could arise with the use of lawyers from the official bar who might also have been involved in giving advice to government bodies on the original cases. The Eminent Persons didn’t approve of starting with a period of confidential investigations before moving into open hearings. They pointed out that arrangements for witness protection were totally inadequate. And they complained that there wasn’t enough money to do the job properly. Many people have the feeling that these worries are probably fair.

Legal principle wasn’t always dispassionately reviewed in our conversation. Explaining his point, Nigel Rodley maintained that the Commission of Inquiry had been surprisingly defensive about its choice of using lawyers from the Attorney General’s office. But he was equally oddly keen to stand up for the attempt made by the Eminent Persons to organise videoconferencing to allow people to give evidence from unspecified locations abroad. I’d recently heard S.L.Gunasekara criticising this arrangement at a seminar, and I asked whether it mightn’t open up the possibility of somebody testifying against the Security Forces just for the purposes of gaining asylum while they couldn’t be prosecuted in Sri Lanka for telling lies.

Nigel Rodley looked as though he might explode. An impressive collection of near-expletives were voiced in quick succession - it was scurrilous, repugnant and demeaning. Nigel Rodley was perfectly understandably distressed at the thought of my smearing the characters of the unfortunate witnesses. I suggested that the Commission of Inquiry might well be equally determined not to cast slurs on the hardworking counsel of the Attorney General’s office.

I’ve argued before in these columns that the achievements of the Commission of Inquiry aren’t particularly less impressive than has been the experience in other countries. This is not to excuse any failings, but to suggest that the Eminent Persons ought to have expected these kind of issues when they agreed to come.

Britain provides several rather depressing examples. We have the Bloody Sunday massacre, which has so far been the subject of two public inquiries. The first is now broadly accepted as having been a deliberate whitewash, and the second hasn’t quite managed to issue its results more than ten years after being established and almost forty years after the killings actually happened. Nobody is thinking of looking into the cover-up and there is absolutely no chance of a prosecution. There is also the question of Northern Ireland Police and Intelligence Service collusion with paramilitaries in the murders of lawyers Pat Finucane and Rosemary Nelson, amongst others. Internal probes took fourteen years, and the Government insisted on passing new legislation giving them more control over the whole review system before acceding to calls from the United Nations for public inquiries.

Even the shooting dead of a Northern Irish paramilitary leader inside a British prison hasn’t been cleared up as yet. Imagine what Sri Lankan NGOs who insist that anything taking place inside a high security zone must have been directly ordered by the Government would make of that!

Nigel Rodley claimed that there are plenty of better experiences. Perhaps I should have asked him to name ten, because I really struggle to see how much worse things can be in terms of getting to the truth of what happened in cases of human rights abuses.

It seemed to come down to the confidential investigations undertaken at the outset. Nigel Rodley gave an analogy from his own area of work, and I thought it rather apt here. In preventing torture, they try to stop prisoners from being held incommunicado during questioning. It’s about removing the opportunity for mistreatment, but it also protects the interrogators against false claims.

Nigel Rodley told me that I’d be totally free to believe that the reasons he had given for withdrawing from the process were insufficient, while implying that I might not if only he could tell me what happened before the public hearings started. Well, maybe. But I’m also not sure why he isn’t telling me. If something of major importance took place, I would have thought that he ought to say as much now. He has already broken his unspoken promise to the victims and people of this country by leaving them halfway. Nigel Rodley admitted that he has already lost touch with developments, and I doubt if I’m doing him a disservice by saying that there’s no way he will be back in however long it takes for the Commission of Inquiry to finish work to check and see whether all these supposedly key points have come out.

I ended up wondering if the international observers should have come in the first place. They certainly attracted publicity, which I usually think is a good thing under any circumstances. But it quickly became only about them, and the fact that their behaviour and the issue of their assistants is still being discussed in many quarters is testimony to the diversionary nature of bringing foreigners into this kind of situation.

Action Contre la Faim has done a similar thing in a different way. By failing to acknowledge or even investigate alleged mistakes that put their staff in danger, they have transformed the nature of public debate on the case. We have almost forgotten the question of who actually killed those seventeen Sri Lankan citizens and what should be done about it in the process of asking why nobody will take on Action Contre la Faim over their behaviour. And why the French authorities show no interest in the matter. The Government is accused of trying to distract our attention whenever it tries, but there simply isn’t anybody else. University Teachers for Human Rights first raised the issue, but Sri Lankan NGOs have as usual ignored what it doesn’t suit them to pursue and decided that it can’t be important to discuss how their international counterparts treat local employees.

Nigel Rodley wasn’t impressed by this argument. He recounted the story of his last meeting with the President, at which Minister Samarasinghe apparently remarked that they were going to make sure that the Government had the last laugh. The Commission of Inquiry would do its job despite all the naysayers and their criticisms. Nigel Rodley didn’t understand why such a remark had been phrased as if the international observers were the enemy.

I explained that there are relatively large numbers of people here who genuinely feel that there is a very real threat from outsiders. Kosovan independence has sparked a lot of foolish thinking about the prospect of Western intervention to deliver Tamil Eelam, not least on the part of the LTTE. Nigel Rodley dismissed these ideas as phantasms and added that they are created for political reasons. In that, I think he is only slightly mistaken. They aren’t well-founded, but they have a good deal more basis in the historical record than he allows. The Government might well encourage concerns about foreigners, but so do Sri Lankan NGOs. The International Centre for Ethnic Studies infamously wanted to shake things up in Colombo by flying in Gareth Evans to give a talk about the Responsibility to Protect. Nigel Rodley called it a lot of rubbish. The West wouldn’t for a moment even contemplate sending resources to the Indian Ocean because of a local conflict in Sri Lanka, because it is far too committed elsewhere. It simply isn’t going to happen, according to him. And in that, I wholeheartedly agree.

It isn’t clear how long it will be until the public inquiry into human rights abuses in this country reaches an end. The Government is expected to receive a copy of their recommendations on the first two incidents next month, but there doesn’t seem to be a timetable for releasing this information to the press or any idea of how long it will take to finish work on the other dozen or so cases. Whatever happens, surely the last thing anybody should do is give up.

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