The Sri Lankan ambassador in Brussels Ravinatha Ariyasinghe, sent the interim report of the European Commission’s three external experts investigating Sri Lanka, to ministers Rohitha Bogollagama, Mahinda Samarasinghe, G.L.Peiris, and ten other officials involved in the GSP+ case from the Sri Lankan side. The European Commission’s committee of inquiry comprises of Professor Francoise Hampson of the university of Essex, Leif Sevon, former president of the Supreme Court of Finland, and Professor Roman Wieruszewski of the Polish Academy of Science.

The EC decision of the 14th October 2008, instituting the ongoing investigation against Sri Lanka, mentioned three UN documents as the basis on which the investigation would be conducted. The three UN reports specifically mentioned were the report of the Special Rapporteur on extra-judicial, summary and arbitrary executions (Philip Alston) of the 27th March 2006, the statement by the Special Advisor to the United Nations Special Representative for Children and Armed Conflict (Allan Rock) of the 13th November 2006 and the report of the Special Rapporteur on Torture, and other Cruel, Inhuman and Degrading Treatment or Punishment (Manfred Nowak) of the 28th October 2007.

Over the past three weeks we took these reports for consideration one after another and I pointed out that while Allan Rock’s report was biased and unfair, the other two reports by Manfred Nowak and Philip Alston were balanced, fair and generally above board. If the EU’s investigation was based on the Nowak and Alston reports, Sri Lanka could have expected a balanced and fair conclusion. But the verdict the EU investigating team has come up with is that Sri Lanka was not in compliance with the International Covenant on Civil and Political Rights, the Convention against Torture and the Convention on the Rights of the Child. The GSP+ trade concession from the EU is thus in jeopardy. It will be interesting to examine the way in which the EU investigating team has arrived at their conclusion.

The EU interim report refers only to the government of Sri Lanka and omits the LTTE altogether. The period covered by the report is from mid 2005 up to the time the inquiry was instituted in October 2008. Nothing of what was done or not done in this country during the period in question can be understood or considered without taking into account the LTTE. The reason why the UN reports by Nowak and Alston were not biased is because they took the LTTE as a factor in the events they examined. Indeed, during the past three decades the LTTE has been the decisive factor in Sri Lankan politics. The LTTE changed the history of both Sri Lanka and India by assassinating key politicians. This was not just another run of the mill terrorist organization, but the terrorist organization officially declared by the FBI to be the deadliest in the world barring none. Sri Lanka is the nation that has suffered the highest number of suicide attacks in the world and the LTTE was a trail blazer in this respect.

Everything in Sri Lanka was overshadowed by the LTTE and it is impossible to give Sri Lanka a fair hearing without taking this aspect into consideration. Prosecutors in the developed world are specifically instructed to take into consideration both the facts of the case as well as the ‘surrounding circumstances’ before deciding to prosecute. This is sound advice because even the facts of the case can be skewed without taking the ‘surrounding circumstances’ into account. For instance if someone wants to know why this EU interim report is full of allegations, but very short of facts, that’s due to the confusion and displacement of the ‘surrounding circumstance’ of war.  This point will become clearer when we examine the allegations made in the report itself. For the sake of convenience we will restrict ourselves largely to the three main areas mentioned in the original EC decision of the 14th Octover 2008, instituting this investigation – extrajudicial killings, torture and child recruitment.

The section on unlawful killings in the report is ten pages long and has over 4,000 words. But killings by the LTTE are mentioned only in one short paragraph of less than sixty words. The period under review extends from the latter half of 2005 to October 2008, and this period began with a public statement by Hagrup Haukland, the head of the Sri Lanka Monitoring Mission, which went thus: "The recent escalation of violence n Jaffna Peninisula is of great concern to everyone, and the SLMM strongly condemns the cowardly attacks that have resulted in the deaths of several SLA soldiers and Tamil civilians. In addition, many people have been injured. However, the violence has not escalated out of control as of yet. In this respect, the SLMM commends the Security Forces for reacting with restraint in a very difficult situation". This was during the period when the LTTE was spoiling for war. The SLMM statement also says that the "escalating violence is jeopardizing the Ceasefire and is also endangering the whole peace process".

Well, some months after this statement was issued war did break out, mainly due to the escalation of killings by the LTTE.  The section on Killings in the EU interim report is completely at sea when it comes to numbers. Imprecise terms like ‘many killings’‘many violations’, ‘widespread allegations’, ‘it was claimed,’ ‘high rate of unlawful killings’ and ‘large number of killings’ is what is used to give an impression of the numbers involved. But this raises the question as to how many is ‘many’? Is it a dozen or a thousand? And how widespread is ‘widespread’? Imagine how surprised a Sri Lankan High Court judge would be if the Attorney General’s department  filed an indictment claiming "Your honour, this man has committed several murders, dozens of robberies and quite a few rapes."

The only number mentioned in the section on killings in the interim report is the estimate of 300 killings by all parties in 2005 mentioned by Special Rapporteur Philip Alston in his report of the 27th March 2006. Even this number is imprecise. It’s a rounded off figure (295) suggested to Alston by the Foundation for Co-existence. In any case, it is clear that Alston in his report on extra-judicial killings considers the LTTE to be the main perpetrator of killings. He takes the international community to task for not pressing the Tamil diaspora to stop funding terror and for not holding the LTTE responsible for human rights violations. In any event, the Sri Lanka Monitoring Mission during their entire period catalogued 3,830 violations of the ceasefire by the LTTE and only 351 by the security forces. That too is an indicator as to where the burden of responsibility lies. In any event, only a kangaroo court can arrive at conclusions based on allegations, speculation and imprecise data. The EU report does acknowledge that "during period of armed conflict, it may obviously be difficult to determine whether a missing person has been disappeared or killed in the fighting".  The EU interim report says that Human Rights Watch has provided documentation on ‘several hundred’ cases of disappearances compiled by local human rights groups between mid-2006 and March 2008. The Human Rights Watch document quoted is entitled "Recurring Nightmare: State Responsibility for Disappearance and Abductions in Sri Lanka". However the said document contains documentation relating only 99 case studies. How less than a hundred became several hundred is anybody’s guess.

The EU interim report takes liberties with figures. Quoting the HRW ‘Recurring Nightmare’ document mentioned above, the EU interim report claims that Judge Mahanama Tillekeratne of the presidential commission appointed to probe disappearances claimed that 1,100 persons missing or abducted during the past two years were still unaccounted for. But what HRW actually said was that "On June 28, 2007, the chairman of the Presidential Commission on abductions, disappearances, and killings, Judge Tillekeratne, told the media that 2,020 abductions and "disappearances" were reported to his commission between September 14, 2006, and February 25, 2007 (1,713 cases of "disappearances" and 307 abductions). According to Tillekeratne, 1,134 persons were later "found alive and reunited with their families," but the fate of the rest remains unknown. Although Judge Tillekeratne presented the figures as proof that the majority of the "disappeared" had returned to their homes, it shows in fact that at least 886 people "disappeared" without a trace in less than 12 months".

Disappearances are highly politicized in Sri Lanka. When presidential commissions of inquiry were set up to probe the disappearances that occurred in the late 1980s, the commissions got over 33,000 complaints but the commissions were able to verify and confirm only 26,877 cases. Thus in many cases, they could not verify even the simple fact that the said individual actually existed, and that he has now disappeared. Apart from the actual combat, there’s the propaganda war as well and this has to be kept in mind at all times.

In the past few weeks, I have spoken highly of the report of the UN Special Rapporteur on Torture Manfred Nowak. One of the things I found attractive in his report is the use of verifiable, precise data. In order to establish that torture is widespread in Sri Lanka, Nowak resorted to the simple expedient of counting the number of torture related fundamental rights cases before the Supreme Court and  the National Human Rights Commission. The EU investigative committee has not adopted this procedure in their section on torture, obviously because this approach makes necessary the admission that while torture may be widespread, the state was also doing something about it. Nowak in fact speaks well of the many measures taken by the government in this regard, such as the criminalization of torture, formal medical examinations by forensic experts, and special departments set up in the police department and the attorney general’s department to deal with torture cases.

Even though this investigation is supposedly based on Nowak’s report, the EU investigation has taken a different track. On the 7th July 2006, the president of Sri Lanka issued a directive on protecting the fundamental rights of those arrested or detained. The directive stipulated that the person making the arrest has to identify himself by name and rank, reasons for the arrest should be given, the details of the arrest should be documented and the person arrested should be allowed to make contact with family and friends etcetera, etcetera. This directive was re-issued in April 2007. Instead of taking this presidential directive, as a sign that the government was trying to establish certain guidelines, the EC investigating committee holds in agreement with Human Rights Watch that the fact that the president had to issue this directive twice shows that government security forces were frequently violating the law and that the government lacked the will to hold those responsible accountable! They also averred that these presidential directives were just window dressing for the consumption of the international community.

This strategy of trying to hang Sri Lanka with its own rope shows the clear prejudice of the EU investigating committee. Even though Novak also used the expedient of counting the number of cases in the Supreme Court and the Human Rights Commission, he did so in a positive way. If the approach used by the EU investigating committee is condoned, that will make every third world country disband all mechanisms to receive and investigate complaints of torture or disappearance so that there will be no self-incriminating evidence. In Sri Lanka’s case, there is evidence because this country has been trying to do something about the problems that exist. And to say that democratic rights are established in this country to assuage the international community is the height of condescension. Sri Lanka is not a banana republic. It is Asia’s oldest democracy.

When it comes to the question of child combatants, the EU investigative committee has shown the same bias that UN Special Advisor Allan Rock displayed in his report of the 13th November 2006. The EU report mentions the figure of 1,469 child recruits held by the LTTE and 214 by Karuna. As the Karuna group was the eastern command of the LTTE, it was inevitable that they would have some underage recruits within their ranks. Despite the fact that it was the LTTE that was responsible for the vast majority of child combatants, it is always the Karuna group that has to bear the brunt of western accusations. The EU report quotes Allan Rock to the effect that "It found strong and credible evidence that certain elements of the government security forces are supporting and sometimes participating in the abductions and forced recruitment of children by the Karuna faction". That the government forces were involved is plain nonsense, and there is not a shred of evidence to support such an accusation. The EU report draws attention to a Human Rights Watch report with the title " Sri Lanka Complicit in Crime: State Collusion in abductions and child recruitment by the Karuna Group". This HRW report is touted as documenting a pattern of abductions and forced recruitment by the Karuna group in Sri Lanka over the year 2006, "with case studies, maps and photographs".

That too is plain nonsense. The HRW report mentioned here does not have a map giving the pattern of abductions. It has a map giving the provincial boundaries of Sri Lanka! They have nine case studies of forced recruitment involving 56 individuals, but not one of these case studies say that the Sri Lanka security forces were involved. What witnesses had said was that Karuna faction members dressed in green khaki uniforms took away their sons. Every witness was very specific in naming the Karuna faction and not the Army. In just once instance, the army had photographed seven young men and boys in the morning and four of those photographed had been taken away by Karuna cadres in the night. But that means nothing because the Army photographed everybody. Some witnesses said that when they complained to the army that their sons were being taken away, soldiers had talked to Karuna faction members and they had assured them that their sons would be released. These were soldiers not trained to settle disputes or carry out investigations. Their first reaction would be to try and ‘shape things up’ as best as they knew how. To the soldier, the Karuna faction was not the enemy and there was no need for confrontation. So they politely asked them to release the young men and the Karuna faction equally politely promised to do so; and this was conveyed to the parents by the soldiers on the spot. No one can blame these untrained soldiers for not doing police work. In a few instances the parents of forced recruits had complained to the police and the police had not taken action. Once again that is natural. This was the year 2006 when the war began in earnest. Going out to investigate may mean that the policeman might not ever come back.

Because of this lack of evidence in this whole case of state complicity in forced recruitment by the Karuna faction, the EU report once again resorts to the practice of using steps taken to remedy the situation as evidence that the problem existed. The EU report mentions the fact that the Karuna faction signed the action plan developed by UNICEF to stop child recruitment as evidence that this group which ‘operates in government controlled areas’, had child recruits (The smoking gun!) Many GSP+ recipient countries have child labour problems. If they learn of the EU’s approach to these matters, no such country will sign any agreement with UNICEF with a view to solving the problem because that very act of trying to solve the problem will be used as evidence against them!

There are many grounds that render the EC’s interim report unsatisfactory. It’s heavy on sensational words and phrases but very light on facts. The shortcomings in this report are too numerous to elucidate in an article of this length. But just one example may suffice to highlight the faulty methodology adopted by the three EU investigators. No scandal will be complete without sex. And to be sure, there’s sex in this report as well. On page 61 of the report, under the heading "Proscribed ill-treatment of those detained under emergency regulations and/or those detained in the North East of Sri Lanka", one finds the following in the first paragraph – "There are particularly widespread allegations of torture, CIDT in and near recent conflict zones. The allegations include claims of sexual assault, including rape". Coming immediately under the relevant heading, this conveys the impression that Tamil detainees in the north and east were being raped by the security forces.

The EU committee makes this allegation about sexual assault and rape, quoting the UNHCR Eligibility Guidelines for Assessing the International Protection Need of Asylum Seekers from Sri Lanka, April 2009. This UNHCR document in turn quotes the International Crisis Group document titled "Sri Lanka’s Return to War: Limiting the Damage". What was said in the Crisis Group document went as follows:

From where did the International Crisis Group get this bit of information? They have  quoted a document entitled "Report on the fact finding mission to the north and east of Sri Lanka to assess the state of Displaced Persons", written by a group calling themselves South Asians for Human Rights (SAHR). Mercifully, the trail stops there.

But what do we find? Firstly, in the passage quoted from SAHR, there is no mention of the words ‘sexual assault’ or ‘rape’ the use of those were embellishments to what was actually said that had been added on as the information went from one report to another. Secondly, this was not said about women in IDP camps or those under arrest, even though the EU report’s heading under which this allegation was made clearly leads the reader to think so. Thirdly, this was not something said about Tamil women in IDP camps or otherwise, but about SINHALA women living in the border villages! What was actually said in the SAHR report was this:

Readers can judge for themselves that what was said in the actual passage was a far cry from the twist the International Crisis Group and the EU committee report has given it. There is a brief reference to families both within and outside the IDP camps fearing sexual violence against young women leading them to arrange marriages for their teenage daughters. Here again, there was nothing said about anybody having actually been raped or sexually assaulted by government soldiers or by anybody else. Having a fear or anticipation of sexual assault is not the same as actually having been raped. Every mother in Sri Lanka lives in perpetual fear that her daughter will be ravished, or worse, will have consensual sex! So what was said by South Asians for Human Rights about (Sinhala) villages in the border areas was in the International Crisis Group document altered to include those within the refugee camps. By the time the same bit of information reaches the EU interim report, the sexual demands on Sinhala women become outright sexual assault and rape of Tamil women in detention!

The EU investigators come back to this question of raping Tamil women later in the report. On page 111, they say "Incidents of rape of Tamil women in police or military custody in the north, including women who are held in government run IDP camps are reportedly occurring." This time they have got their information from TamilNet - the LTTE website! The EU’s interim report is much more of a damning indictment of itself than of Sri Lanka. This report will be a valuable piece of evidence to prove intent to discriminate once the GSP+ matter goes before the WTO. The British House of Lords case Porter v. Magill lays down the test for perceived bias -  "Whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the Tribunal was biased".