The innocence of Patrick Leahy
Rajiva
Wijesinha
Secretary General
Secretariat for Coordinating the Peace Process 06th November 2007
United States Senator Patrick Leahy recently delivered a statement
on Sri Lanka which has been described as damning. The use made of the
international community by local elements which, as an American put
it, have an 'unhealthy nostalgia for the Wickremesinghe regime', is
not surprising. However Senator Leahy must be taken seriously since
he seems to have been behind an amendment in the Senate that 'attached
three conditions to our assistance to the Sri Lankan military'.
Before addressing these conditions, it may be as well to deal first
with the misconception under which Senator Leahy is suffering, which
suggests that, in making several admirable general points, he may not
quite understand their applicability or otherwise to Sri Lanka. Though
he made clear his appreciation of why the LTTE 'has been designated
by the Department of State and the European Union as a foreign terrorist
organization', he says that 'we are also aware that the LTTE has, at
times, shown a willingness to participate in serious negotiations, as
well as to respond to human rights concerns. These overtures should
be pursued.'
LTTE refusal to negotiate
Sadly, Senator Leahy, like most foreign observers of the Sri Lankan
scene, has no sense of time. This is accompanied by an imprecise use
of English, doubtless promoted by those who have said loud and often
that the Sri Lankan government is responsible for the breakdown of peace
talks. Senator Leahy is more circumspect than most, in qualifying with
the words 'at times', his perception of the past willingness of the
LTTE, regarding which the use of the perfect tense seems inappropriate.
But then he moves to a present tense modal verb, which makes no sense
given factual realities.
In short, there are no overtures to be pursued, unless he is talking
about the overtures of the Sri Lankan government, which the LTTE has
steadfastly rejected. Mr. Leahy is doubtless not aware that, having
participated in peace talks with the then Sri Lankan government for
about a year from 2002 to 2003, the LTTE withdrew suddenly after the
6th round in April 2003. The government in office then seemed to be
bending over backwards in the eyes of most Sri Lankans to keep the LTTE
happy, but nevertheless they withdrew. They then repudiated all attempts
even by President Kumaratunga, who took over the reins of government
from April 2004 to nearly the end of 2005, to resume peace talks.
In 2006 they came for talks in February with the recently elected government
of President Rajapakse but then, having traveled to Norway, they refused
in June, to the evident embarrassment of the Norwegian facilitators,
to even begin talking. In October 2006 they negotiated on the first
day and then, as a British representative in Sri Lanka put it, there
was a sudden call from Kilinochchi and they withdrew.
Despite the Sri Lankan government being anxious to resume talks, and
indeed saying as much through the facilitator and otherwise, the Norwegian
ambassador on his last visit made it clear that the LTTE was unwilling
to talk.
The movement to war of the LTTE Peace Secretariat and Political
Wing
Indeed, to look at small things too, in June 2007 the Sri Lankan Peace
Secretariat tried to reactivate its hotline to the LTTE Peace Secretariat
in Kilinochchi. My staff spoke in Tamil to the lady who answered and
asked that contact be re-established, but it seemed my counterpart was
not available. A request that he call back was ignored.
I had also mentioned our desire to talk to the Norwegian ambassador
and the Sri Lanka Monitoring Mission, and the minutes of our meeting
of 12th July record that the SLMM Head of Mission (HoM) 'welcomed SG's
initiative of trying to reestablish communication between the two peace
secretariats. He offered himself to facilitate a line of communication
between the two Peace Secretariats'. However, on 30th August, the minutes
record that 'Mr. Pulideevan had rejected SG's suggestion to contact
him. HoM said that Mr. Pulideevan was of the view that the environment
at the moment is not conducive for the parties to communicate as the
LTTE were in a warlock situation with GOSL'.
Mr. Leahy thus needs to be aware that the LTTE, though 'at times' willing
to negotiate, has been in that mode only for very brief periods during
the last five years. It withdrew from negotiations with two governments
and refused ever to negotiate with the third even though requesting
and obtaining financial and other concessions from it. Furthermore,
it must be recognized that, despite the propaganda that seems to have
taken in the LTTE as well as Mr. Leahy, its political leader Mr. Tamilselvan,
was withdrawn from talks last year after the phone call from Kilinochchi,
and 'had of late preferred military clothes' as was clearly stated in
a newspaper usually very critical of the government.
Certainly, at the time of the last visit to LTTE territory by the Norwegian
ambassador, it made clear its determination to attack economic as well
as military targets. And as though to make it clear that it had foreclosed
the peace option, when Black Tigers attacked the Anuradhapura Air Base,
the LTTE Peace Secretariat celebrated this suicide squad by highlighting
pictures of them together with Tiger Leader Prabhakaran before being
sent to their deaths.
Confusing Problems with Governmental Complicity
It is in this context that the rest of Senator Leahy's statement must
be read. He is certainly right in stating that there are human rights
problems, but he cannot leap from that to the assertion that 'the Sri
Lankan government's respect for human rights and rule of law has deteriorated
even outside conflict-affected areas'. Such an assertion would be on
par with allegations against the American or British governments because
there are significant abuses of human rights by official personnel,
and not only with regard to the war on terror.
I suspect Senator Leahy is very different from the representative of
the International Commission of Jurists who addressed the Human Rights
Council in Geneva, and declared that there were four countries where
grave violations of Human Rights took place, namely Myanmar (I think),
Sudan, Sri Lanka and the United States, but I think he would appreciate
the fact that highlighting the occurrence of violations and holding
governments responsible are two very different things. Conflating the
two puts him in the category of the ICJ that, having assumed wrongly
that there was an irreconcilable difference between two experts as to
the caliber of a bullet, assumed that the foreigner must be right, the
Sri Lankan must be wrong, and this was evidence of tampering with the
object by the Sri Lankan government.
He also claims, citing the Millennium Challenge Corporation, that 'The
serious human rights abuses and excessive restrictions on freedom of
speech and association by the government of Sri Lanka merit the country's
removal from a list of eligible recipients for US Millennium Challenge
Account assistance'.
He obviously has not read the plethora of Sri Lankan newspapers that
attack the government (and its human rights record) at every conceivable
opportunity, or monitored the electronic media that denigrates the government
and its armed forces whenever possible. Had he only been around in the
days when the media was entirely state controlled, he would not have
cited such generalizations which are so demonstrably false - in comparison
with the much more forceful if subtle restrictions on reporting imposed
by other states engaged in wars against terror.
Untenable assumptions about impunity
Finally he repeats the three conditions regarding military assistance,
two of which seem unquestionable. The first is that the Sri Lankan government
brings to justice 'members of the military who have been credibly alleged
to have committed gross violations of human rights'. He seems unaware
that this is happening, and not only with members of the military. Indeed,
as the SLMM have indicated, the record of the military is comparatively
good, and there have been very few cases in which there is credible
evidence against them. The record of the police is less positive, but
a committee has been appointed to make recommendations with regard to
Human Rights Training for the Police, and preliminary suggestions have
already been submitted.
Meanwhile, with regard to actual bringing to justice, arrests have
already been made with regard to the Thandikulam case, which was one
of those referred to the Commission of Inquiry, while six members of
the armed forces were placed under arrest regarding abductions, following
which abductions in Colombo have largely ceased. 90 persons have been
indicted since 2004 for torture. Meanwhile the Public Complaints and
Investigations Division of the National Police Commission has completed
382 of the 1216 complaints made in the first seven months of this year,
with 4% of the total allegations referring to torture, 7% to unlawful
arrest and 1% to death in custody.
All this may not be perfect, but where the rule of law obtains, and
where there is a presumption of innocence unless proved guilty, justice
is necessarily slow. Without referring to delays and what seem to the
rest of the world unjustifiable acquittals in the American system with
regard to allegations against forces personnel, I should just cite a
recent British newspaper report on a problem in Iraq - 'Harrowing accounts
of the treatment of Iraqis by British troops in an incident in which
a detainee died will be handed to the high court…They say 10 Iraqis
seized in a Basra hotel in September 2003 were tortured…The incident
led to a court martial in which the MoD admitted the Iraqis were violently
treated. One soldier, Corporal Donald Payne, pleaded guilty to inhumane
treatment; six others, including Colonel Jorge Mendonca, commander of
the 1st battalion the Queen's Lancashire Regiment, were acquitted of
negligence and abuse…The MoD is conducting an internal investigation
into the incident.' This is 2007, the inquest into Princess Diana's
death in 1997 is being conducted now, but it is not likely that Senator
Leahy would suggest sanctions against Britain too.
Constructing non-existent problems
The second condition relates to ending 'unreasonable restrictions on
access in the country by humanitarian organizations and journalists'.
There are no such restrictions since such people are readily allowed
access not only to areas under government control but even to LTTE controlled
areas provided there are no security problems. The Consultative Committee
on Humanitarian Assistance, on which UN bodies are well represented,
looks at questions of access and can discuss problems if any, but these
have not figured to any appreciable extent in recent meetings.
Finally Senator Leahy wants Sri Lanka to 'agree to the establishment
of a field presence of the Office of the UN High Commissioner for Human
Rights in Sri Lanka.' This perhaps is an area where Senator Leahy has
information not accessible to the Sri Lankan government since that Office
has not formally made a request for a field presence. Significantly
though, anti-government elements ranging from the LTTE to the opposition
claimed before the visit of the High Commissioner that such a request
(or rather one for a Monitoring Mission) would be made, and then claimed
afterwards that it had been made.
It should be added that subsequently at least one paper that had headlined
this assertion admitted in an editorial that such a request had not
in fact been advanced.
As it stands, the government is engaged in discussions with the Office
how Human Rights mechanisms can be strengthened. It may be the case
that some elements in the High Commissioner's Office are anxious to
establish a field presence. Indeed one member of her entourage told
me this would be a good idea, not least because - not to criticize colleagues
in other UN agencies he said - her office could deal more professionally
with questions of Human Rights. It is possible that such a request may
come in time, but it seems premature of Senator Leahy to ask now for
agreement for something that has so far been advanced only by those
who have placed themselves in opposition to the Sri Lankan government,
some of whom have allied themselves conclusively with the opposition
or the LTTE, who talk categorically of 'the consensus that prevailed
in 2000-2004 period' without seeming to realize that the electorate
convincingly chose something else both in 2004 and in 2005.
Such persons may not have great faith in democracy, but as Forster
put it, that is the best system we can have. It needs to be combined
with the rule of law and pluralism, and that is why we should look carefully
at the concerns Senator Leahy has expressed and deal with them as possible
through the development of strong institutional safeguards. But it would
be very sad if, because of misinformation and the general proliferation
of prejudice against the elected government, the democracy that Sri
Lanka and the United States shares is subverted in the ultimate interests
of terrorists, who will be the only beneficiaries of concerted weakening
of the elected Sri Lankan government.
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