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Anglo-Saxons and Impunity
Setting Sri Lanka's Human Rights record straight
Secretariat for Coordinating
the Peace Process (SCOPP)
29th May 2008
Bloody Sunday - Northern Ireland, on 30 January 1972
- 26 civil rights protesters were shot by members of the 1st Battalion
of the British Parachute Regiment
Amidst the plethora of allegations launched against Sri Lanka recently
with regard to Human Rights, clearly there are a few with regard to
which some action is necessary. Whilst we can dismiss as ridiculous
charges with regard to indiscriminate attacks on civilians in the course
of military operations, or about complicity in the recruitment of child
soldiers, it is clear that some questions remain as to abductions and
extra-judicial killings.
With regard to these it has been accepted that there was a period in
which these seemed common and, though the situation has improved, contrary
to the claims of the more sensational critics, clearly the government
must strive to ensure that such incidents do not occur at all, or are
at least minimized considerably. It is noticeable that, when Philip
Alston the Special Rapporteur on extra-judicial killings visited Sri
Lanka and made his report, a couple of years ago, he showed understanding
of the situation, in which several conflicting forces were engaged in
overt and covert hostilities, and took pains to suggest remedial measures
that government should have undertaken to remedy the situation.
Unfortunately it seems that his report was not kept confidential and
was used to criticize the government by interested parties, which led
to less attention being paid to its very positive qualities than was
deserved. Recent experience of the way in which some junior officials
working for the office of the UN High Commissioner for Human Rights
function, concealing material that is favourable to Sri Lanka, publicizing
what is unfavourable, arranging press briefings contrary to agreements,
suggests that Philip Alston was not to blame for what happened. In any
case it would have made sense to implement some of the measures he suggested,
and to work with his assistance to improve the situation.
Coincidentally a Committee on Human Rights Training set up by the Inter-Ministerial
Committee on Human Rights made similar recommendations, and it is hoped
that even now his undoubted professionalism could be used to further
these.
However, leaving aside the question of training to develop professional
competence and increased awareness of need to uphold human rights in
terms of the rule of law, it also seems essential to address more carefully
the question of dealing with abuses that have already occurred. This
raises the question of what has been termed impunity, which is an emotive
term since it suggests that government as a matter of policy will not
punish those who have committed violations. This is not however the
policy of the government, and there are several cases in the last few
years that prove the contrary, unlike in the eighties when impunity
did in fact exist.
In those days it was not the state but individuals who brought fundamental
rights actions against state officials and, on the few occasions on
which they were convicted, the state made clear its commitment to impunity
by promoting those found guilty, and itself paying their fines - as
will be recalled happened in the cases of both Udugampola and Ronnie
Gunasinghe, with the state in one case arranging transport for a demonstration
outside the homes of the judges. The person who organized the demonstration,
one Kalu Lucky, claimed that he was an ordinary citizen who wanted to
show the consequences if the Supreme Court found in favour of demonstrators,
but his claim was exploded when the Island published photographs of
his wedding, at which Ranil Wickremesinghe had acted as a witness.
That, if you like, is real impunity, exemplified by the Supreme Court
judge (Rodrigo, I believe his name was, and it should be noted that
this was a minority judgment) who ruled in one particular case that
bringing an action against the government was improper because the people
had shown their commitment to the government by voting for it. This
would sound quite preposterous, were it not that in America too something
of the sort was tried recently, when the government was preparing for
the invasion of Iraq.
According to a report in Time magazine on April 14th this year, the
Pentagon recently declassified 'a key memo used to justify the abuse
of prisoners by the US military in Iraq, Afghanistan and Guantanamo
Bay.' Written by deputy legal counsel John Yoo, it was 'rife with shockingly
broad edicts about prisoner treatment, like this barely constitutional
chestnut: "In wartime, it is for the President alone to decide
what methods to use to prevail against the enemy."'
In all fairness to the official American position, the memo was withdrawn,
'nine months after it was written'; but of course the problems continue,
as described graphically in a recent book entitled 'Standard Operating
Procedure', reviewed recently in the 'Economist'. To quote from the
review, '"I don't give a fuck what you do to him," the Army
Criminal Investigation Command (CID) agent told the American guards
at Abu Ghraib as he handed the new Iraqi prisoner over to them. "Just
don't kill him."…..Beyond a single sheet of paper, the guards,
most of them reservists trained for combat, with no experience of prison
duty, were never given any written rules. Nor did they have any training
in the Geneva Conventions. Not that it would have done much good if
they had, for they were told that the protections afforded by those
conventions did not apply to the "security detainiees" they
were holding.'
And yet, despite all this, despite the British weighing in with their
own games too in Iraq, there is no international outcry against the
Anglo-Saxons, no efforts by the Tutus to claim that Britain has no right
to sit on the United Nations Human Rights Council (the Americans sensibly,
after their defeat in an election some years ago, have decided not to
stand). At one level this is obviously because these are powerful countries,
and even Jimmy Carter is not going to make an ass of himself by demanding
sanctions against them. But in another sense one has to grant that,
with sublime Anglo-Saxon skill, the perpetrators of the abuses at Abu
Ghraib - and others, for doubtless these are not isolated incidents
- have adopted a formula that makes clear charges of impunity are untenable.
And, in actual fact, far from this being another example of the classic
Anglo-Saxon vice of hypocrisy, it can also be seen as in fact a very
practical way of getting the message across that - notwithwtanding Mr
Yoo's memo and what particular agents insinuate at times - such practices
are not in order.
For what the Anglo-Saxons do is prosecute. Those of us old enough to
remember the horrors of the Vietnam War will recall the episode that
finally put paid to the idealistic view that America was fighting for
human freedom and dignity, namely the My Lai massacre. Despite much
hype about the unfairness of prosecuting callow youngsters brutalized
by war - in those days Louse Arbour was not around to talk about command
responsibility - some at least of the perpetrators were charged, and
one of them, Lt William Calley, was found guilty and spent a short time
in prison.
One of our local papers highlighted a column which claimed that Jimmy
Carter subsequently, in one of his bleeding heart moments, called for
clemency for Calley. But even that perhaps is understandable. Though
the Vietnamese who suffered his brutality may not have appreciated the
point, young Calley was part of a machine, and I presume Carter's point
was that it was unfair that he alone should have been punished. But
in a sense the point was not that Calley alone was deemed guilty, this
was simply the American way of acknowledging that what had happened
was unacceptable, and should not be repeated. Doubtless it did not expect
that the trial would ensure no other American soldier behaved as Calley
did, but the message was clear, that if they did they were liable to
be court-martialled.
Reflecting on all this, I was reminded then of what Richard de Zoysa's
mother claimed happened after his murder, that those responsible for
the death squads that had hunted down the JVP in the late eighties had
a party after his death. There it was announced that there would be
no question of prosecution for what had happened up to that point, but
henceforward any abuses would be subject to law. In that sense, she
claimed, Richard had not died in vain.
I have no idea if her story was true, but certainly what had seemed
open season before that stopped, and after that there have been prosecutions
of members of the forces for human rights abuses, although till that
time there had been none. Impunity, which had been a principle in the
eighties, no longer obtained.
However the fact remains that in recent years there have been fewer
prosecutions than the number of reported incidents would lead one to
accept. It is understandable therefore that there are allegations of
impunity, though clearly the situation is nothing like it was in the
eighties, when it was only the state and its agents who were responsible
for the brutal crackdown on dissidence. Now there are obviously more
players involved, which makes attribution of responsibility more difficult.
At the same time the paucity of action even when there seems to be at
least prima facie evidence of state complicity has given rise to understandable
suspicion that the state is unwilling to act.
This is unfortunate, for it allows blanket accusations that go far
beyond what the facts warrant. In particular there are relentless allegations
against the armed forces, which are then used to spread the canard that
they indiscriminately attack civilians in the course of operations.
That is unfortunate, given the comparatively disciplined way in which
the forces have operated over the last couple of years, with a record
far better than that of other forces fighting against terror, not just
the Anglo-Saxons in Iraq, but even the far more professional Israelis.
If only for the sake of our hard-pressed sevicemen then, who do not
need false propaganda against them in the midst of their other difficulties,
it would make sense for the government to institute prosecutions where
material is available, to get out the message that violations of human
rights will be prosecuted. And another benefit of this approach is that
it would deter those violators who are nothing to do with the government,
but who believe they will have impunity since no concerted attempt will
be made to apprehend them.
It has been argued however that launching prosecutions is easier said
than done, that our legal system is weighted in favour of the accused,
and therefore indictments should not be issued unless there is virtual
certainty of success. Failure could after all prompt a fundamental rights
case, as happened in a particular instance, and the state could ill
afford this.
But this is to miss the point of the role of the state in such a situation.
Punishment is after all about deterrence and reform as much as it is
about retribution, and the deterrence factor is vital for the state
at this juncture. And the decision as to guilt or not is for the judiciary
to make, once the case has been put forward.
A failure to achieve a conviction is not after all a particularly serious
matter. One has only to consider the way the British dealt with their
own little sideshow in Iraq. Seven soldiers including their commanding
officer were tried for a single incident, the death of a man 'who had
93 injuries' after being taken into custody in Basra. Only one, a Corporal,
was found guilty. He was jailed for just a year, the trial having concluded
four years after the incidents in question took place.
In this case the outcry was so grave that, according to the report
in the 'Daily Telegraph' of May 15th, the 'Government admitted that
it breached human rights and said it would pay damages' and also decided
to set up a public inquiry into the matter. This will not of course
lead to any further punishment for anyone, and in any case there is
no certainty as to when the inquiry will report. The 'Telegraph' noted
after all that 'The Bloody Sunday inquiry, launched ten years ago, has
yet to report into the deaths of 14 demonstrators in Londonderry in
1972'.
But the point has been made. Justice for the victims is not the main
purpose of such government action, it is to make it clear that such
violations are not acceptable. In Ireland admittedly the admission of
this has come very late, but the procedure makes sense in the context
of the need to build up confidence in the system. Instead then of wondering
at the practicalities of all this, we should note the positive impact
of such efforts, and replicate them as appropriate as we seek to develop
inclusivity and confidence in the state and its institutions.
Prof Rajiva Wijesinha
Secretary-General
Secretariat for Coordinating the Peace Process
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