Association of Humanitarian Lawyers

 

                                                           

 

 

                                                                                    3 October 2007

 

 

 

 

Mme Louise Arbour

United Nations High Commissioner for Human Rights

 

Madame:

 

On 10 November 2006 and 29 January 2007 International Educational Development (IED) and the Association of Humanitarian Lawyers (AHL) sent letters expressing grave concern about the armed conflict in Sri Lanka. We considered that the situation had disintegrated so much that the Tamil people on the island, already victims of ethnic cleansing, were at serious risk of genocide. We were exceptionally pleased that you plan to undertake a visit to Sri Lanka to assess first- hand the serious situation of rights under humanitarian law and human rights norms, and are anticipating a fruitful outcome.

 

We have addressed human rights and humanitarian law violations in the armed conflict in Sri Lanka for 24 years. In our view, it is most important that you address the situation from the perspective of humanitarian law, as most violations occur in the context of the armed conflict. In particular, we urge you to investigate the following:

           

            1. Conditions in prisoner-of-war camps and all facilities where POWs of both sides are detained;[1]

 

            2. Military operations directed at the civilian population (as the war zones are almost exclusively in the NorthEast, these are almost exclusively Tamils) or with blatant disregard for the likelihood of undue civilian casualties in relation to the military objectives;

 

            3. Humanitarian relief to victims of armed conflict, in particular, sick and wounded combatants of both sides, POWs, and the civilian population. As provided in the Geneva Conventions, if the government of Sri Lanka is unwilling or unable to assure adequate relief, then it must allow other humanitarian aid organizations to do so. Targeting humanitarian aid workers in military operations, or in any way interfering with their work , is a violation of humanitarian law. [2]

 

            4. Use of certain types of weapons or weaponry used in a way likely to cause undue casualties;

 

            5. The conditions of persons displaced because of the war;[3]

 

 

In our past letters we indicated that the situation of the armed conflict in Sri Lanka invoked the mandates of (1) the Special Rapporteur on Housing; (2) the Working Group on Arbitrary Detention; (3) the Working Group on Dissapearances; (4) the Special Rapporteur on [Right to Life]; (5) the Independent Expert on Extreme Poverty; (6) the Special Rapporteur on the Right to Food; (7) the Special Rapporteur on Freedom of Expression; (8) the Special Rapporteur on the Right to Health; (9) the Special Representative on Human Rights Defenders; (10) the Special Representative on Internally Displaced Persons; (11) the Special Rapporteur on Racism; and (12) the Special Rapporteur on Torture, at time of writing on a visit to Sri Lanka.[4]

 

The government of Sri Lanka has been given far too much latitude by the international community, greatly hampering the ability of the Tamils to survive as a people in Sri Lanka. Sri Lanka’s promise to establish the “eminent persons” team of international experts to monitor its own investigative Commission derailed potential useful action contemplated by the Council in its 2d session. Now, a year later, the “eminent persons” team itself indicates strong doubts that the government of Sri Lanka will let it function in a useful way.

 

In our other letters to you, to a number of other UN mandate holders, and the Council we have communicated our concerns that the geopolitical interests of other countries, in particular the United States, in the Tamil areas of Sri Lanka have been a factor in the failure to resolve this conflict. Strategies used by the United States have included the labeling of the Liberation Tigers of Tamil Eelam as a “terrorist” organization, demonizing the Tamil people as a whole (including the diaspora), and blocking United States humanitarian aid organizations from provided humanitarian relief in the Tamil areas, including those under government control. These strategies are echoed by close allies of the United States, who have been strongly pressured on these points. Of course the situation is an armed conflict, not terrorism: it cannot be both.[5]

The highest government officials of Sri Lanka travel extensively outside of Sri Lanka, also carrying the same message and demonizing the Tamil people of their own country as well as in the diaspora. The combined effect has prevented any possibility of a peaceful resolution to this conflict. In particular, the use of the “terrorism” label is the elephant in the room – as long as that is there, there can be no resolution to the conflict short of the annihilation of the Tamil people.[6]

 

The government authorities have prevented UN officials from visiting freely in the Tamil areas, and has not allowed them to visit the Tamil-controlled areas at all -- even to assess either post-Tsunami or war relief needs of the Tamil civilians. The latest official denied access was John Holmes, the head of the UN’s Office for the Coordination of Humanitarian Assistance. This is completely unacceptable. In this regard, you should insist that you be allowed to visit freely both the Tamil areas, and the Tamil-controlled areas. The excuse given by the authorities that it would be unsafe for you to visit the Tamil-controlled areas is completely absurd – it is the government’s military forces that carry out military operations against the Tamil-controlled areas, and they are unlikely to do so if you are there. If you do not insist on visiting the Tamil-controlled areas, we fear for serious negative consequences for both your office and the UN as a whole – not to mention the Tamil people. Taking a firm position can also begin to undo the harsh negative consequences of the worldwide demonizing of the Tamil people.

We have hopes for positive outcomes from your visit, especially if you visit the Tamil-controlled areas. First of all, the government authorities must cease the impairment of monitoring of this long war and its devastating consequence on primarily the Tamil people of the island. Mr. Nowak’s visit is a full 9 months late; other planned and desperately needed visits of mandate holders are similarly delayed. While our suggestion to you made during the interactive debate on your report at the 6th session of the Council that you invite the new Special Advisors of the Secretary-General on genocide and conflict resolution cannot be fulfilled at this juncture, we hope that you will encourage them to seek their own missions as soon as possible given the emergency situation of so many Tamil civilians and the failure of the current cease-fire and conflict resolution mechanisms.[7] If they do so, the combination of that and your visit will hopefully finally yield affirmative results.

 

We would certainly hope that you are able to establish a field presence, providing that there would be a full mandate to look into all aspects of the armed conflict and human rights violations. A field presence should be established in the Tamil-controlled areas in addition to the Sinhala-controlled ones. Anything less than that would be used by the government in such a manipulative fashion that would severely discredit UN operations.

 

For our organizations, the most important outcome of your visit would be that the “free ride” given the government of Sri Lanka comes to an end. Until that happens, all the people on the island are in a perilous situation and the genocidal policies directed at the Tamil people will continue unabated and, indeed, fortified. The international community must begin to address Sri Lanka in the same way that it has addressed Burma and Sudan. If your visit does not terminate the “free ride,” our next hope is that you and your office do not facilitate the continuation of the “free ride” and the demonizing of the Tamil people, but are rather at least neutral in this regard.

 

Thank you for your kind attention to this matter,

 

 

Karen Parker, JD,

Chief delegate, IED

President, AHL

 



[1] Regardless of whether the armed conflict is viewed as a war in the defense of the right to self-determination, which we think it is, or a civil war, there are universally accepted norms for the treatment of persons such as POWs detained for reasons related to the conflict. As both the Sub-Commission and the Commission have indicated in numerous resolutions on situations in a number of armed conflicts, including those considered civil wars, there are both customary and treaty-based minimum rules for POWs. We note in this regard the fact that Article 3 Common to the Geneva Conventions is in Geneva Convention III relating to POWs.

[2] We note that in the past 1 ½ years, at least 59 aid workers have been killed or abducted and presumed dead. We ask that you specifically look into the situation of the Tamils Rehabilitation Organisation (TRO), one of the few NGOs allowed to operate to provide post-Tsunami aid. Some TRO members have been abducted and presumed killed, and TRO funds are essentially frozen. Blocking humanitarian assistance is an element in the crime of extermination under the Rome State.

[3] Please also look into the situation of those displaced due to the Tsunami, who were largely denied humanitarian aid. The total figures at present of internally displaced is said to be more than 600,000, or about 1/3 of the Tamil population in the NorthEast.

[4] We also draw attention to the procedures involving freedom of religion and international solidarity that are relevant to support a claim of genocidal actions and policies in Sri Lanka directed at Tamils. Special Rapporteur Jahingir has made a visit to the island and has reported on serious issues in that regards, not all of which involve targeting of Tamils based on religion. However, there have been several recent events in which Tamil religious leaders were killed and Tamil Christian churches attacked. We reference the Special Rapportuer on International Solidarity because in our view the government of Sri Lanka and prominent others have poisoned international solidarity for Tamil victims. The mandate of the Working Group on Mercenaries is also invoked in this situation due to the activities of the “Karuna” group.

[5] Of course, there can be terrorism in armed conflict, defined by the Geneva Conventions as military operations whose purpose is to inflict terror in the civilian population. While war itself is terrifying to civilians, military operations that do not violate humanitarian law norms are not terrorism.

[6] In this light we also draw attention to the “child soldier” issue. Please see out NGO statement A/HRC/6/NGO/9, as well as the letter we sent to the government of France in its capacity as Chair of the Security Council’s Working group on children and armed conflict, attached to this. The legal age is 15, not 18: the Optional Protocol is too flawed a document to support any view that the customary international law age for combatants is 18. Focus on this issue has had a profound effect on review of the other, far more serious, consequences of the armed conflict on Sri Lanka’s children and has fueled the demonizing of the Tamils.

[7] The reduction of the Sri Lanka Monitoring Mission to only two States, and the restrictions on its mandate, have essentially eliminated any forward movement towards resolution, and fueled a renewed attempt by the government to “clear” both the North and East of the Island. The government’s intentions are made very openly.