Feature Article

ICJ blames Colombo for world's largest detention, cautions donors against complicity

[TamilNet, Monday, 27 September 2010, 10:18 GMT]
The International Commission of Jurists in a latest report has urged the International Community and the United Nations to extend 'rehabilitation' donor support only on condition of compliance with international law and standards, given the current legal vacuum and uncertain conditions under which at least 8,000 ‘surrendees’ are being detained by Colombo. Otherwise, those who provide support to Colombo's detention programme risk complicity in a policy of systematic mass arbitrary detention, the ICJ warned, in an in-depth report titled "Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects". In the report, the ICJ has characterised the detention as the largest mass administrative detention anywhere in the world. "[T]he mass detention has the character of collective punishment, which is prohibited in any circumstances under international law," the report said.

While the Sri Lankan President Mahinda Rajapaksa, in his address to the UN General Assembly on Thursday was demanding 'changes' in International Humanitarian Law that govern the conduct of war, the ICJ issued its 40-page report where it stated: "However, in the situation obtaining in Sri Lanka, where hostilities in the non-international armed conflict have ceased for more than one year, international human rights law is in any case the relevant legal regime applied in respect of detention and the related rights to liberty, security, fair trial, the rights of women and children, and the prohibition against torture and cruel, inhuman or degrading treatment guaranteed under the International Covenant on Civil and Political Rights (ICCPR)."

The Donors should condition their support to rehabilitation on the establishment of a legal framework that provides for due process and safeguards the internationally-recognized rights of detainees, especially children, and ensures a transparent process of ex-combatants’ rights, the ICJ report said.

The United Nations should continue to refrain from supporting Sri Lankan government activities within the camps until a legal framework has been put in place and the UN should prioritise advocacy for the establishment of a legal and policy framework for the rehabilitation and reintegration of individuals who took active part in hostilities, the in-depth report by the ICJ said.

"An authoritative, independent account of the number of detainees is not available. The Sri Lankan Government has not permitted systematic monitoring by an independent body. The screening process by which IDPs were triaged at reception centres, internment camps and other locations has lacked sufficient accountability or transparency," the report said.

Although the ICRC had access to the ‘surrendee’ camps until early July 2009, and was able to register close to 10,000 detainees by that time, there was no independent protection monitoring of the detainees in their places of detention through to July 2010.

During this period, transfers between the CGR-administered ‘surrendee’ camps and other places of detention appeared to be ongoing. The ICRC was denied full access, a key measure of the willingness of the Government to abide by international law and standards.

As of the end of July 2010, more than one year after the military defeat of the LTTE by the SLA, it was estimated that up to 8,000 adults were being held in at least a dozen centres for ‘rehabilitation’ on the basis of alleged links with the LTTE, according to the ICJ report.

At least 1300 others have been identified as “hard-core” LTTE and who have been designated by the Government of Sri Lanka to face criminal prosecution; of these approximately 700 are in a special detention centre in Omanthai, the ICJ report noted.

Statements by the Government regarding the number of detainees held have been inconsistent, the ICJ report observed.

In November 2009, the then Commissioner General for Rehabilitation (CGR) indicated that 10,992 ‘surrendees’ were under his custody. Several weeks later, the Sri Lankan Permanent Representative to the United Nations stated that 12,700 ‘former combatants’ had been identified amongst the IDPs. Informally, the previous CGR had spoken of a figure of 12,000 detainees, most recently on 2 February 2010. Yet in a later press interview, his successor quoted a figure of 10,732 individuals under his custody.

The ICJ, in its report has assessed the human rights impact of the mass detention regime, applying international human rights law as the relevant legal regime, particularly in respect of the right to liberty under article 9 of the International Covenant of Civil and Political Rights (ICCPR) and its Optional Protocol, both ratified by Sri Lanka.

The Sri Lankan Ministry of Human Rights and Disaster Management, supported by the international community, prepared a policy framework and action plan addressing the rehabilitation and reintegration of ex-combatants, but this has not been approved, the ICJ report said.

The ICJ has called on Sri Lankan government to end the state of emergency.

Approximately 3,000 detainees had been released in the past year.

Further extracts from the report follow:

"Government’s ‘surrendee’ and ‘rehabilitation’ regime fails to adhere to international law and standards, jeopardizing the rights to liberty, due process and fair trial. There are also allegations of torture and enforced disappearance. Access required for reliable and accurate monitoring by international agencies, including the International Committee of the Red Cross (ICRC), has been denied. Political expedience and secrecy have tended to take precedence over legality and accountability.

"With the end of the armed conflict, conditions on the ground cannot be considered to give rise to a threat to the life of the nation so as to justify a state of emergency in Sri Lanka, under international standards. Even if a state of emergency were so warranted, the Government has not provided sufficient evidence that the mass detention regime for the purposes of rehabilitation is strictly required to meet any specific threat."

"It was reported that 565 children identified by the security forces in May 2009 as associated with the LTTE were almost immediately separated from the adult detainees, held in separate rehabilitation centres monitored freely by UNICEF, and all released by May 2010. These figures come from reliable sources but have not been made public."

"However, notwithstanding these positive developments, the Sri Lanka Government has not accepted that 'rehabilitation' does not mean surrendees and rehabilitees are no longer entitled to due process and fair trial rights."

"Reliance on emergency regulations and counter-terrorism legislation that fall short of international law and standards effectively places detainees in a legal black hole."

"The longstanding state of emergency powers in Sri Lanka has led to a situation in which the use of exceptional powers has become the rule. The ICCPR article 4 strictly limits derogations to those strictly required in response to specific threats to the life of the nation. Even in these situations, the right to habeas corpus may not be suspended, nor the right to legal representation, access to family, and measures to protect against torture and other ill treatment."

"Prolonged and indefinite administrative detention of ‘rehabilitees’ for up to two years without charge may amount to individual and collective punishment without charge or trial."

"The ICJ is also concerned that detainees are vulnerable to the violation of other rights, including the prohibition against torture and other cruel, inhuman or degrading treatment, the prohibition against enforced disappearance, as well as of a number of particular rights applicable to children."

"Once the human rights of the detainees are properly respected, the international community should provide diplomatic and financial support to the Government’s plan for processing the detainees according to the rule of law. However, such assistance should hinge on a careful examination of the legal framework guiding Government practice. This report outlines key elements that should be taken into account."

"Given the current legal vacuum and uncertain conditions under which ‘surrendees’ are being detained, external donor support for Sri Lanka’s rehabilitation efforts must be provided only on condition of compliance with international law and standards, or else risk complicity in a policy of systematic mass arbitrary detention."

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