Last week was one of the worst Sri Lanka has ever experienced in terms of foreign policy. Two international reports on Sri Lanka were put out by the European Commission (EC) and the US State Department on the human rights situation here. The US State Department report expressly states that they do not necessarily hold that the incidents mentioned in their report actually occurred. Nor do they seek to arrive at legal conclusions based on their report. However the European Commission’s final report, makes both factual and legal assertions, and they are also planning to impose a sentence on Sri Lanka based on the assertions made in their report. The sentence will be the suspension of the GSP+ trade concession which allows duty free access to a wide range of Sri Lankan products into the European market. The sentencing will have to be done by the Council of the European Union and will take place within the next several weeks. Because of the urgency of the matter, we will deal with the EC’s final report first.

The EU Ambassador in Sri Lanka Bernard Savage has gone on record saying that the EC will be willing to review their recommendation to the EU council depending on what can be agreed on in terms of a road map aimed at addressing certain concerns. So there is still time for engagement. Any available opportunity to get out of the present confrontational situation should be seized upon by the government. Of course, Sri Lanka will enter into a ‘road map’ with the EC only with a great deal of trepidation because the EC has the habit of using anything done to acknowledge and address a problem as evidence of guilt!

In the EC’s interim report on Sri Lanka put out last August, the fact that the President of Sri Lanka issued directives in 2006 and 2007 on protecting the fundamental rights of those arrested or detained was used as evidence that government security forces were frequently violating the law. The EC’s interim report also used 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. Given this background, it may be useful for the EC to give Sri Lanka a public assurance that any road map entered into with the government would not be used as evidence of guilt against Sri Lanka in other fora.

Such concerns notwithstanding, the government should not miss the opportunity to agree on a road map with the EC. What goes into the road map will of course be by mutual agreement. In this regard, there are some points raised in the EC’s final report that needs further comment. The EC’s final report released last week reiterates the accusation that the Karuna Group continued to forcibly recruit children in government held areas in 2006 to 2008 and that certain elements of the security forces "supported and sometimes participated in these abductions". The ‘evidence’ that the EC offers is the statement issued by Allan Rock, the UN Special Advisor on Children and Armed Conflict on November 13, 2006, to the effect that there was ‘strong and credible’ evidence that the armed forces were supporting and participating in the child recruitment by the Karuna faction.

Rock never revealed what this evidence was and the EC has only repeated this completely uncorroborated assertion. In the EC’s interim report released last August, they had mentioned some case studies done by Human Rights Watch as proof that the armed forces were involved with the Karuna Group’s child recruitment. However, after having read the nine HRW case studies involving 56 persons, I pointed out in my critique of the EC’s interim report that not one of those case studies says that the SL armed forces were involved. All the witnesses were very specific that it was the Karuna group that abducted their sons and not one witness said that military personnel were present among those that carried out the abductions.

The EC’s final report has no mention of the HRW case studies; they have simply reiterated Allan Rock’s assertion. It has to be respectfully pointed out that repeating an uncorroborated assertion does not constitute evidence. It was due to this lack of evidence that the EC’s interim report finally had to resort to using the fact that the Karuna Group signed a road map with UNICEF with regard to child recruits as evidence that "this group which operated within the government controlled area, had child recruits". In a footnote, in their final report, the EC has invoked Article 8 of the UN International Law Commission’s draft articles on the RESPONSIBILITY OF STATES FOR INTERNATIONAL WRONGFUL ACTS to pin the doings of the Karuna Group on the government. Thus the fact that the Karuna group had child recruits becomes equivalent to the government itself having child recruits.

That the Karuna Group had child recruits is not denied by anybody. That the Karuna group allied itself with the government is also a fact. They may even have been recruiting underaged young people as late as 2008. But the Karuna Group is a separate organization and the blame for what the Karuna group did cannot be pinned on the government any more than the doings of the pro-western Afghan war lords or the Iraqi tribal leaders can be pinned on the Americans. The Karuna group until just a few years ago was the eastern command of the LTTE. Winning allies from among the enemy is a crucial part of any war. And once a section of the enemy is won over, one does not ruffle their feathers too much; you give them some leeway as the price one has to pay for weaning sections of the community away from terrorism.

These are legitimate acts that states (including the coalition of the willing) have had to resort to in order to combat terrorism and such practices should be recognized in the implementation of international law. Underage recruitment was not the only practice carried forward by the Karuna group from their LTTE days. They even continued to collect the liquor tax of Rs 30/- per bottle of arrack sold in the east until DIG Edison Gunatillke cracked down on the practice. All that was but a small price to pay for being able to neutralize some of the LTTE’s best commanders and fighting cadres. There should be no apologies on this score.

As for the blame accruing to the SL government for the doings of the Karuna group, According to Article 8 of the UN International Law Commission’s draft articles on The Responsibility of States for Internationally Wrongful Acts, it’s not sufficient that the Karuna group be proved to have been allied to the government. It has also to be proved that the Karuna Group carried out the deed in question (child recruitment) on the instructions, direction and control of the state. The Sri Lankan state most certainly did not instruct the Karuna Group to conscript child recruits. The most that the Sri Lankan government can be accused of is that they did not assiduously investigate reports of child recruitment by the Karuna group. No apologies for this either.

The years, 2006, 2007, 2008 and the first half of 2009, saw the most intense fighting in the North and East. No government could be expected to open up a second front against allies in such circumstances. Besides, the Karuna Group of the TMVP has always maintained a separate identity as an organization that represents Eastern Tamils - like the CWC which represents Up-Country Tamils - and there is a limit to what the government could have, especially during the period of hostilities, interfered in their doings without the risk of alienating them.

The eastern Tamils are a minority within the Tamil community and one way to heal the ethnic rifts in this country is by being extremely cautious and diplomatic when dealing with leaders of that community, even if this means having to turn a blind eye to unsavory activities. When dealing with minority community leaders, there will be a hierarchy of don’ts. The first don’t is terrorism. Lower down will be extortion, still lower will be underage recruitment. In any case the government never used the Karuna group in offensive operations. It should be realized that the government is dealing with a community with leaders used to a criminal lifestyle which can’t be reformed overnight. The fact is there are no child recruits now, so the issue should be expunged altogether.

The EC is in their final report, has the same problem of numbers that they had in their interim report. The EC final report says that a number of ‘authoritative’ sources, confirmed that the government had used heavy weapons during the last stages of the war resulting in ‘a very high number’ of civilian casualties. The main such ‘authoritative source’ quoted is the UN High Commissioner for Human Rights who mentions a figure of more than 2,800 killed and over 7,000 injured between January 20 and March 13 alone. When we try to cross check where the UN Human Rights Commissioner got this information from, we are referred to the UN press release of March 13, 2009, where the Human Rights Commissioner has said that ‘a range of credible sources’ had provided her with the figures quoted. She does not say what these ‘credible sources’ were. Thus, the case against Sri Lanka in the European Commission relies mainly on two witnesses - Allan Rock, the Special Advisor on Children in Armed Conflict, and Navi Pillay, the UN Human Rights Commissioner. It was Rock who stated that he found ‘strong and credible evidence’ to the fact that the armed forces were involved in child recruitment by the Karuna Group, but he never revealed where he got his information from.

Unless both Mr Rock and Ms Pillay come forward now and tell the world what their ‘credible’ sources of information were, this would forever be unknown. No court will ever hang an accused on the grounds that some witness however highly placed, said that they had ‘credible’ evidence without revealing what exactly this credible evidence is. In the case of both Rock and Pillay, it may well be that neither of them can remember who gave them the information they referred to in the statements in question. Obviously, as is normal in such circumstances, they were both relying on gossip and hearsay in making their statements and probably never thought that these statements would become one day the grounds on which the EC would seek to pass judgment on Sri Lanka. When UN officials make such statements, they are aimed at directing the attention of the government to a certain issue and are not meant to act as evidence to prove a country guilty of the matters mentioned.

In addition to the number of 2,800 dead and 7,000 injured mentioned by Ms Pillay, the EC final report also mentions a higher figure quoted by the international press and human rights organizations which placed the civilian casualty figure at 20,000. The source quoted was The Times – a British newspaper. But The Times estimate in their issue of the May 29, 2009, which has been quoted by the EC, was not a figure of 20,000 casualties – it was 20,000 civilians DEAD. And The Times claimed that it had carried out an ‘investigation’ to arrive at this figure. The injured always outnumber the dead in any conflict, so if one adds on the injured according to the 2.8 to 7 ratio mentioned by the UN human rights commissioner, that would mean that according to The Times estimate, the number of injured had to be something like 50,000 bringing the total casualty figure up to over 70,000. What is interesting is that The Times claimed to have arrived at their figure of 20,000 civilians dead from summaries of UN documents leaked. According to these UN documents, says The Times, the number of dead in the first four months of this year was 7,000, in the month of May, the number of deaths escalated to around 1,000 deaths a day until the day after Prabhakaran was killed on May 18, thus making up the other 13,000 of the estimate. Not stopping at this, The Times says that the UN source has said that the figures were not complete and that the number of deaths was going to go up ‘way more’.

However, months later, the UN has not released any estimates of the kind mentioned by The Times. The EC would have quoted these UN figures in their final report if they did, instead of quoting The Times second hand. The question arises whether the UN documents that The Times mentioned ever really existed. To add to the confusion, The Times quotes yet another source in the UN as having said that the average death rate in May until Prabhakaran’s death was 341 per day. A few lines down in their article on Sri Lanka, The Times quotes yet another figure collated ostensibly from doctors and humanitarian workers from within the no-fire zone, where it was said that in four days in May an average of 220 bodies were taken to the medical centre every day. The estimate was that only 20% of the bodies made it to the medical centre; hence the estimated figure of 1,000 deaths per day. The Times claims that the UN had even provided them with a breakdown of the weaponry that caused the deaths - 2% from shooting and over 80% by shelling.

The EC report says that the three independent experts they hired for this investigation had been asked to do a thorough examination of both the ‘legal and factual position’ with regard to the implementation of the three conventions in Sri Lanka. The confused medley of numbers mentioned in the EC final report, can’t possibly be considered facts. Nobody knows whether the number of dead is 2,800 or 20,000 or whether the number of injured is 7,000 or 50,000. The number given is altered by many thousands depending on what seems ‘passable’. The Times says that the number of dead alone are 20,000, with no mention of the numbers injured. But when the EC final report quotes The Times the figure of 20,000, it is watered down to mean the total number of casualties which includes both the dead and the injured.

The writer of the EC report was probably too shy to use The Times figure without filing off the rough edges so as to make it look reasonable. Hence what we see is that when figures move from The Times to the EC final report, some of those who were dead in The Times report turn up injured but alive in the EC final report. It has to be respectfully pointed out that guesswork and conjecture should not be passed off as facts.

The EC final report says that the use of torture by the police and the military is widespread. Along with this assertion comes the allegation that torture cases are not promptly investigated and that victims are often reluctant to report incidents of torture to the authorities due to intimidation. Yet on the same page, in a footnote giving the source of the information that torture is widespread in Sri Lanka, the EC has quoted Manfred Nowak, the UN Special Rapporteur on Torture, who came to the conclusion that torture is widespread in Sri Lanka by counting the "high number of indictments for torture filed by the Attorney General’s Office, the number of successful fundamental rights cases decided by the Supreme Court of Sri Lanka, as well as the high number of complaints that the National Human Rights Commission continues to receive almost on a daily basis…"

Hence, what the EC should have said is that while torture is widespread, remedial action is also equally ‘widespread’. The fact is that the police welfare societies have special fund to help officers ordered to pay compensation, and having a fundamental rights case decided against them could affect their entire career as this affects their chances of promotion and they could end up saluting their juniors for the rest of their working lives. Moreover threats don’t deter victims from going to court or the HRC because a case on file is the best possible protection as it turns the torture perpetrator into an immediate suspect if something happens to the victim. These ground realities are well known to our people who are naturally litigious, and will never miss an opportunity to take an enemy to court. Hence the large number of fundamental rights cases, attorney general’s indictments and Human Rights Commission cases that impressed Manfred Nowak the UN Special Rapporteur on Torture.

There are also some other issues that need scrutiny. The EC final report says that the emergency regulations of 2006 severely limit the accountability of civilian and military authorities for their actions by providing that no action or suit shall lie against any public servant specifically authorized by the government to take action in terms of the emergency regulations, provided that such person has acted in good faith in the discharge of his official duties. This is taken as the main cause for what is described as a culture of impunity. This impression is probably due to a misreading of the emergency regulations of 2006 which deal with many matters pertaining to terrorism such as terrorist funding, harbouring terrorists and so on. Articles 11 and 12 of the same emergency regulation also provides for the appointment of a competent authority to grant approval to NGOs and humanitarian organizations to carry out humanitarian and development work in the terrorist held areas. Articles 13 and 14 of the regulations say that any person aggrieved by the decision of this competent authority can appeal to a special tribunal appointed for the purpose. Article 15 says that "No action or suit or proceedings shall lie against any public servant or any other person specifically authorized by the government to take action in terms of these regulations, provided that such person has acted in good faith in the discharge of his duties".

This clause is meant to give protection to the competent authority in fulfilling his limited role in granting or not granting approval to those interacting with terrorists. It’s not meant to grant immunity to those out in the field fighting terrorism. A military officer who engages in arbitrary killings or abductions or torture, cannot claim immunity under the emergency regulations saying that he acted in ‘good faith’ to wipe out terrorism.

The principle that ‘acting in good faith’ under emergency regulations does not include illegal acts has been long established. In the good old days, journalists virtually lived off court cases; one such being the Premawathi Manamperi case of 1971 where an Army officer killed a young woman in Kataragama while quelling the first JVP insurgency. When taken to court, the officer pleaded that his superior officer had told him to ‘bump them off’ and he was only following orders. The court decided that no one was bound to obey an order that was manifestly illegal and that the responsibility lay with the officer who had committed the act irrespective of whether he was ordered to do so or not. There are many factual and legal errors that need to be corrected in the EC’s final report, which are too numerous to deal with in one article.