Twelve UN Human Rights Council Experts Issue
Joint Report on Secret Detention around the World:
Craig Scott, Professor of Law,
Osgoode Hall Law School, Toronto;
Member, Board of Advisors, Sri Lanka Campaign for Peace and Justice
In the United Nations human rights system, various experts are provided with mandates for human rights investigation and monitoring within a system of “special procedures.” These mandates are maintained by the UN Human Rights Council, a body made up of approximately UN member states elected by all other states within the UN. It is to the Human Rights Council that these “special procedure” mandate-holders report.
On occasion, on matters of special concern that relate to more than one mandate, the experts will collaborate in issuing a report together. Such was the case two weeks ago when an advance copy of a 220-page Joint study on global practices in relation to secret detention in the context of countering terrorism (UN Doc. A/HRC/13/42, 26 January 2010) was released as part of a joint effort by four special procedures: the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (Professor Martin Scheinin of Finland); the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Professor Manfred Nowak of Austria), the Working Group on Arbitrary Detention (five experts from Norway, Chile, Pakistan, Russia, and Senegal), and the Working Group on Enforced and Involuntary Disappearances (five experts form Mexico, France, Croatia, Lebanon and South Africa).
The report is noteworthy for bringing together overview information on the use of secret detention as a ‘tool’ in counter-terrorism, as both an historical and a contemporary practice. The experience across all continents from the Americas to Europe to Africa to Asia is digested, whether one if talking about the Dirty Wars of Chile, Argentina, Uruguay or Brazil under their dictatorships, or CIA detention facilities in Afghanistan and Iraq, or the contemporary network of states providing “proxy detention sites” for the United States since the advent of the post-9/11 so-called “war on terror” – countries that include Syria, Egypt, Uzbekistan, Pakistan, Jordan, Morocco, Ethiopia and Djibouti. While there are gaps – such as a failure to discuss the transfer of detainees by NATO forces in Afghanistan to Afghan authorities, notably the National Directorate of Security (NDS), and the subsequent inability of some countries, such as Canada, to trace what happened to many of those transferred detainees – the Joint Report is on the whole an important record of a practice that violates core human rights and a reminder that, absent vigorous scrutiny and effective protest, it is a practice that continues to this day.
For anyone who has followed methods used over the years in Sri Lanka both directly related to the conflict against the Tamil Tigers and more generally as part of a pattern of repression of political and social dissent, it is not surprising that Sri Lanka receives substantial coverage in the Joint Report. While there is nothing new here for those who have followed the wealth of credible reports from credible actors on Sri Lanka over the years, the Joint Report is very important as an authoritative verdict by no fewer than 12 UN Human Rights Council “special procedures” experts (from 12 different countries) that Sri Lanka belongs on a list of serious human rights violators, whatever denials the Sri Lankan government may be skilled in claiming and whatever success the government regularly has in marshalling diplomatic support to block official condemnations by political bodies such as the Human Rights Council or the Commonwealth.
In terms of the seriousness and breadth of human rights violations, it is crucial for the reader to be aware that “secret detention” is not a discrete form of human rights violation but, rather, is connected to a web of violations of such rights as the rights not to be arbitrarily deprived of liberty, various fair trial rights, prohibitions on torture and other forms of cruel, inhuman or degrading treatment, and the right to life itself. It is also a practice that produces violations of the law of armed conflict, extending to war crimes in some circumstances, and that also, if certain thresholds are crossed, can generate crimes against humanity. (See paragraphs 17-56 where the Joint Report looks at secret detention in terms of these interconnected human rights and in terms of the interaction between international human rights law and the international humanitarian law of armed conflict).
The sections of the Joint Report that deal specifically with Sri Lanka are found at paragraphs 82, 167, and 197 to 201. After a brief historical overview (paragraph 82), Sri Lanka is included with six other countries in East and Southeast Asia – the others being China, India, Islamic Republic of Iran, Nepal, Pakistan, and the Philippines – that have used or use secret detention in the contemporary period and “where anti-terrorist rhetoric is invoked to justify detention” (para. 167). What follows are extended extracts from those paragraphs; indeed, they are reproduced almost in their entirety given that the Joint Report itself has distilled problems to their very essence. In reading these passages, the reader should bear in mind that the Joint Report deals with many countries and that references to any given country will necessarily therefore be fairly brief; also, general references in the Joint Report are often substantiated with references to various reports by each of the special procedures at earlier points in time.
(para 82, referencing the historical use of secret detention) In Sri Lanka, the protracted conflict between the Government and the Liberation Tigers of Tamil Eelam (LTTE) has perpetuated the use of secret detention. In general, Sri Lankan army officials, dressed either in military uniform or civilian clothes, would arrest ethnic Tamils and hold them in secret places of detention for a week or longer…The detainees were often interrogated under torture, the purpose of which was to make them confess their involvement with the LTTE. In 1992, the Government adopted a law giving more power to the armed forces and authorizing the use of secret detention camps. Although the emergency regulations issued subsequently in June 1993 outlawed secret detention, there were reliable reports indicating that people continued to be held in undisclosed places where torture was practised, and no action was taken against the perpetrators.
(para. 1970 (Regarding Sri Lanka), United Nations human rights mechanisms and non-governmental organizations have expressed serious concerns with regard to abductions by police and military personnel, detention at undisclosed locations, and enforced disappearances. As to the latter, the Special Rapporteur on extrajudicial executions stated in the report on his December 2005 visit to Sri Lanka that he “was very disturbed to receive reports (…) which appeared to indicate a re-emergence of the pattern of enforced and involuntary disappearances that has so wracked Sri Lanka in the past.” He specifically referred to complaints of Tamil youths being picked up by white vans, allegedly with involvement by the security forces.
In its 2008 report to the Human Rights Council, the Working Group on Enforced and Involuntary Disappearances remarked that it ‘remains gravely concerned at the increase in reported cases of enforced disappearances in the country”. Specific cases of Tamil men, possibly suspected of links to the LTTE, reportedly taken to undisclosed places of detention by security forces in a white van without number plate and since then disappeared, have been brought to the attention of the Government by Special Procedures and by non-governmental organizations without receiving a response. The Tamileela Makkal Viduthalai Pulikal (TMVP)-Karuna group, a break-away faction of the LTTE supported by the Government, was also reported to be responsible for abductions of LTTE representatives and civilians in the area around Trincomalee.
(para 198) In its concluding observations on Sri Lanka, the (United Nations) Human Rights Committee (which oversees the implementation of the International Covenant on Civil and Political Rights) expressed its regret regarding impunity for abductions and secret detentions:”the majority of prosecutions initiated against police officers or members of the armed forces on charges of abduction and unlawful confinement, as well as on charges of torture, have been inconclusive due to lack of satisfactory evidence and unavailability of witnesses, despite a number of acknowledged instances of abduction and/or unlawful confinement and/or torture, and only very few police or army officers have been found guilty and punished.” The Human Rights Committee also “note(d) with concern reports that victims of human rights violations feel intimidated from bringing complaints or have been subjected to intimidation and/or threats, thereby discouraging them from pursuing appropriate avenues to obtain an effective remedy”.
(para 199) While the conduct of the security forces in “white van” abduction cases is most likely unlawful and criminal also under the law of Sri Lanka, the Special Rapporteur on torture and the International Commission of Jurists have drawn attention to the far reaching powers of arrest and detention anti-terrorism laws and ordinances bestow upon the Sri Lankan security forces. Under the Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2005 (“EMPPR 2005′), persons “acting in any manner prejudicial to the national security or the maintenance of public order” may be arrested and held in detention for up to one year, without access to judicial review by an independent body. Persons may be similarly detained up to 18 months under the Prevention of Terrorism (Temporary Provisions) Act of 1979 (“PTA”) or indefinitely pending trial. Persons can be held in irregular and unpublicized places of detention, outside of a regular police station, recognised detention centre, penal institution or prison. Detainees can be moved from place to place during interrogation, and denied prompt access to a lawyer, family members or authority competent to challenge the legitimacy of detention. Section 15(A)(1) of the PTA, for instance, enables the Secretary to the Minister of Defence to order that persons held on remand should be “kept in the custody of any authority, in such place and subject to such conditions as may be determined by him”. As a result of his visit to Sri Lanka in November 2007, the Special Rapporteur on torture concluded “that torture has become a routine practice in the context of counter-terrorism operations, both by the police and the armed forces.”
(para 200, outlining the various denials by the Government of Sri Lanka that any human rights violations have been committed) Responding to questions raised during the Universal Periodic Review process (within the UN Human Rights Council) in May 2008, Sri Lanka’s Attorney General stated that…”it is not the policy of the State to adopt and enforce extraordinary measures that are outside the framework of the law.”…As to allegations of a pattern of disappearances, the Government was studying credible reports to identify the magnitude of the problem and the possible identities of perpetrators. The Attorney General assured the Human Rights Council that “(i)t is not the policy of the State to illegally and surreptitiously arrest persons and detain them in undisclosed locations”.
(para 201, dealing with the period since the end of the war) In recent months, since the Government announced victory over the LTTE in May 2009, reports have drawn attention to the detention of more than 10,000 persons on suspicion of having been involved with the LTTE. Human Rights Watch reported that it “documented several cases in which individuals were taken into custody without regard to the protection provided under Sri Lankan law. In many cases, the authorities have not informed family members about the whereabouts of the detained, leaving them in secret, incommunicado detention or possible enforced disappearance”. The International Committee of the Red Cross was reportedly barred from the main detention camps for displaced persons. Amnesty International expressed the same concern about an estimated 10,000 to 12,000 individuals suspected of ties to the LTTE who are or have been detained incommunicado in irregular detention facilities operated by the Sri Lankan security forces and affiliated paramilitary groups since May 2009.
Quite obviously, as tensions mount again in Sri Lanka after the recent elections and the repressive tactics that the President of Sri Lanka now seems willing to undertake in order to deepen his hold on power, there is reason to be fearful that Sri Lanka’s use of secret detention will not just continue but will grow, as will the battery of human rights violations associated with the practice.
All Sri Lankans are potentially at risk. At the same time, we cannot forget the 10,000-plus detainees “suspected of ties to the LTTE.” Whatever some of them may have done in the course of involvement with the LTTE or in the course of warfare, nothing justifies torture or even ‘lesser’ forms of cruel, inhuman or degrading treatment. Secret detention, without regular access of both the International Committee of the Red Cross and UN human rights monitors, is a breeding ground for such abuse and for the final act of disappearance (extrajudicial execution) of numberless nameless individuals. The world cannot become focused on the next general crisis in Sri Lanka to the extent it forgets about the question of secret detentions. Equally, the UN Human Rights Council experts within the special procedures system must immediately follow up the above very brief paragraph on the post-war detainees in the Joint Report with concentrated and persistent efforts to shed the light of external scrutiny on the government of Sri Lanka in an effort to secure effective access of trained monitors who can help ensure that future torture and executions – assuming, as I do, that such torture and executions may well already have occurred – are made much less likely.
Nathanson Centre web address: http://www.osgoode.yorku.ca/nathanson
Transnational Legal Theory web address: http://www.hartjournals.co.uk/TLT