Basil Fernando

Recently the Asian Legal Resource Centre based in Hong Kong launched a publication entitled Article 2 [1]. The aim of the publication is to study the implementation of human rights by proving adequate legal and administrative remedies for the violations of rights. This applies to all rights.

The elimination of violations of one of the fundamental human rights is linked to the elimination of the violation of other fundamental human rights. Thus, the indivisibility of rights needs to be understood in a practical sense. The strategies for the actual realisation of a single right or group of rights needs to take into account the impact it can have on the other rights. Understanding the impact of a violation of one right or group of rights on other rights is a very important component in developing such strategies. This paper attempts to illustrate the links between violations relating to extra-judicial killings and the Convention Against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment and violations of other rights, particularly those covered under the International Convention on Economic, Social and Cultural Rights (ICESCR). establishing a link between the eradication of poverty and the elimination of extra-judicial killings and torture.

The main agent of the realization of the rights contained in the ICESR is the individual him or herself. The State functions to respect, protect and fulfill these rights. For the individual to take all steps necessary to realize his/her rights, he/she must be free from intimidation. When the level of intimidation is high, the individual loses their capacity to participate in the realisation of their rights. Torture contributes to the maintenance of a high level of intimidation in a society and encourages those who take advantage of the system to maintain various forms of violence against people who are poor. Thus, extra-judicial killings and torture have a double edge: it is itself violence used by the State, and it also perpetuates violence by non-state actors. However, these violations are not usually looked at in this way.

There is enough empirical data to develop an extensive exposition of this subject. We will look into some case studies from Sri Lanka that highlight this issue:

Case Of Fr. Michael Rodrigo

Fr. Michael Rodrigo, a Sri Lankan Catholic priest, was assassinated by the military in 1987. He had obtained two doctorates from French universities and opted to work among the poorest in his country, particularly among the rural poor. He started a community house in one of the remotest villages in the hill country, in a village called Butthala. He was well aware of the adverse impact of globalisation on waterways, mountains and other natural resources that people used for their livelihood. He was a deeply religious man who believed in non-violence and education. He helped the people to understand how some development activities could lead to loss of rain, deforestation, drying up of rich waterways and loss of soil fertility. He also helped the womenfolk to learn simple, economically useful skills. The local elite saw the activities as obstacles to their continuing profits. They needed a high level of intimidation among the poorer people if they were to maximise profit. Awareness of the natural consequences of their activities too was an obstacle to their way of life. Making use of the situation of civil instability, Fr. Rodrigo was assassinated with the help of the military. Until now, the State has failed to conduct any inquiry. This high level of intimidation prevented the community from continuing their activities and diminished the close cooperation that was developing among the people. Fr. Rodrigo was not a civil rights activist; his work was directed towards the elimination of poverty.

Case of a Death-and-Torture Camp

For about two and half years – beginning from the time of Fr. Rodrigo’s death – there was a period of mass extra-judicial killings and torture in Sri Lanka. Most of the extra-judicial killings took the form of ‘disappearances’. The lowest estimates of the number killed are around 30,000. According to the reports of government appointed commissions, the majority of the persons who disappeared belonged to very poor families. About 15 percent of disappearances were of persons below 19 years of age. All disappearances were after arrest. The Government at the time tried to justify the disappearances on the premise of suppression of an insurgent group engaged in violent activities. However, as the killings took place after arrest, this explanation has no basis as a legal defence. In fact, the State was engaged in brutally suppressing the rural protest that the State’s own economic policies were causing. Instilling terror in the population was the aim of the exercise.

Many of the killings and torture took place in detention centres established throughout the country. We reproduce below a survivor’s account of what took place in one such camp.

Wehera detention camp was well known to people of the Kurunegela district and in fact it was quite well known in other parts of Sri Lanka too. Detainees from the following villages and towns were brought there: Chilaw, Galgamuwa, Tabutthegama, Giriulla, Mawathgama, Ridigama, Polgahawela and other nearby places.

At the time I was brought to the camp there was only one detention room. It was about 20 feet long and 10 feet wide. When I arrived there were about 40 people there.

All the detainees were kept chained to each other all the time and only unchained when going to the toilet.

About two hundred soldiers were there in the camps. They were separated into several groups. There were those who went to make arrests, those who interrogated (consisting altogether of about 50 persons who were always in civilian clothes) and those who guarded the camp.

Every day new persons were brought. When the room was too full, new prisoners were kept tied up in the hall outside.

Every night a few people were taken out. Their names would be called and they had to come out. These persons did not come back. Sometimes, detainees were told that they had been taken to Colombo, but everyone knew they were taken out and killed. Soon we learned that dead bodies were found in the junctions of roads and rivers.

Sometimes groups as large as 20 persons were brought from one single village. Usually all of them were killed.

About two months after my arrival, another hall was built and small rooms were created as cells. By then the number of detainees had increased. In this new construction there were places for hanging people by the arms or legs and for performing torture on the prisoners.

There were some common methods of torture. One was to tie the hands and feet (with legs bent backwards) of a person behind their back. Then a nylon rope was put between the legs of the person and their whole body was pulled upwards and downwards, using a pulley system. The moving rope on their crotch supported their entire weight.

Another method was to hang the person upside-down by the legs with a rope and pulley system and to pull him up towards the roof and then down again towards a fire lit on the floor. Sometimes chili powder was put into the fire so that the person would inhale the fumes along with the heat and smoke.

Another method was to put a polythene bag around the head of the person and to tighten it at the neck. In this state of suffocation and with their hands tied behind their backs, they would be pulled up and down with ropes and then jabbed at both sides of the waist with the torturer’s fingers.

Yet another method followed at this camp was to use some of the detainees themselves as torturers. These were persons who turned to be informers after being brought to the camp. One day, as a result of assaults by these persons, one person died inside the camp itself.

Some of these things were done to me, and I saw these things done to others every day. Seeing this being done to others while you are in the same cell is as frightening as if it was being done to you and leaves a tremendous fear in your mind.

During the time I was there, 400-500 persons were taken out at night and never returned. There is no doubt they were killed and their bodies put in various public places.

Out of the people in the camp, the cases of two persons were raised in public inquiries. One was a person called Wasantha from Polgahawela, about whose disappearance questions were asked in Parliament. Another was a woman called Kumari from Mahawatte. I saw both of them at the camp prior to their disappearance.

A few months after my arrival at the camp, all of the detainees were put on a lorry and taken out. Several fainted, thinking that they were being taken to their deaths. We were taken to a jungle and kept there until nighttime and were then brought back to the camp. I learned later that Red Cross officers had come on that day to inspect the camp.

Some detainees including myself were taken to Poonai camp (run by police). Before being transferred, police officers took statements from us and also took photographs of us. Thus we managed to pass from the military custody (in Wehera) to police custody. This I know was due to international pressure. I also learned that those who were not transferred were killed before the Wehera Camp was closed.

If the complaints of persons made during and immediately after these times from the places mentioned above are taken it would not be difficult to make a list of persons who were detained at Wehera camp.

However, people have ceased to complain. It is no use. There was and is no real inquiry. If it is possible to convince people that there would be such an inquiry the people will come forward. I will also. And I can think of so many others. Till then, I too must look after my own safety.

The story of the Wehera detention camp is no secret. It is very much known publicly. The images of what people saw are bound to remain quite vivid in everyone’s minds – more so of course in the victims’ families.

Torture and Extra-Judicial Killings in the North and the East

The conflict between the largest ethnic minority (Tamil) and the Sri Lankan government also intensified during the same period, when the new economic policies were introduced. Later, this intensified into a serious armed conflict, which is now quite well known to the world. At the moment there is a discussion on peace with the intervention of the Norwegian government as a third party facilitator. The use of intense violence against legitimate protest was one of the causes of this civil conflict. On the other hand, war crimes and crimes against humanity such as the killing of persons after arrest and widespread torture of the cruellest kind (including gang rape of women) are violations of international law. As an example of a policy of unleashing terror in order to crush protest, the experience of the North and East of Sri Lanka provides an extreme example.

Case of Shooting and Killing of Fisherfolk

Another Sri Lankan case is of the shooting and killing of protesters against the Sand Pumping Company (SPC), which was engaged in extracting sand from the seabed. The use of heavy machinery to pump the sand was destroying the traditional livelihood of the fisherfolk in the area (on the coast of Sri Lanka near Colombo, at Hendala and Uswetakeiyawa), as it disturbed fish movement and created dangers for small craft. There were no discussions with the fishermen prior to the start of the project. Thus a big company and a poor fishing community were pitted in a fight. The Company had the support of powerful interests and the fisherfolk only the lip service of their local politician, who in fact was supporting the company. However, due to some pressure by the people, the Company agreed to pay compensation. Once the protest had subsided, the company went back on its word. The fisherfolk after discussion with local people including priests, started a protest at the work-site of SPC. Gradually the protesters found the support of their community and around 4,000 people attended the protest. However, SPC did not try to negotiate genuinely. Instead they brought police to the site where, without any provocation, the police shot at the people. The police firing injured about 50 persons and killed three. An eye-witness account of the incident is as follows: "All the disturbances by the fishermen started only after the police started shooting indiscriminately and more have received gun shot injuries by trying to save their fallen kith and kin. Police assaulted fishermen mercilessly…The indiscriminate police shooting has resulted in injuring many passers-by and even people inside wooden and cadjan houses…[The police were obviously] intervening not to keep peace, but to intimidate the protesters and bring the protest to an end."[2]

Case of Torture of Four Workers at the North Pole Company

The latest incident was the torture of four workers on the 19^th and 20^th of February, 2002. This led even to picketing in front of the police station by about 1,000 persons, organised by the trade union movement. The names of the tortured workers are: Bandula Rajapakse (forklift operator); R.P. Sampath Rasika Kumara (in charge of the stores); Mr. Ranaweera (security guard); and Chaminda Dissanayake (an Executive Officer).

The assault was allegedly at the instigation of the Officer in Charge (OIC) of Crimes Mr. Suriyakumara, and was carried out by two police officers who have not yet been identified. The manner of assault was as follows: the Policemen attacked the three suspects using rubber hose and PVC pipes on the backsides for 15 minutes. Before the attack the suspects were asked to keep their hands on the wall; when Rasika turned the other way he got blows on the knees and fingers as well. Ranaweera got blows only from the PVC pipe; Chaminda was spared of much assault but was kicked by a Policeman. Bandula was not given even a glass of water. Rubber hose is apparently used to avoid making marks on the bodies of the persons.[3]

This case points to another of the reasons for torture: to cover up corporate corruption. The inquires into the reasons for the police action showed that, in fact, the management was trying to cover up for a huge loss of materials from the store house by using these workers as the scapegoat, and that the police were knowingly or unknowingly dragged into this process.

The background

These cases have been selected from numerous others to highlight the variety of circumstances under which extra-judicial killings and torture are used by the State to crush protest by people adversely affected by deprivation of their economic, social and cultural rights. It may be useful to go into the general background of Sri Lanka, particularly in terms of the economic perspectives pursued in the country, to understand the link between the new economic policies restraining these rights and the violence unleashed to intimidate and silence the victims.

In 1977 the United National Party (UNP) formed a government with a very definite economic and political agenda. The economy was to be reshaped to allow full play of the structural adjustment programmes and economic reform programmes, paving the way for privatisation and a free market economy. Politically, power was to be administered by an executive president, relegating the legislature and executive to a secondary position. To achieve these purposes, the existing Constitution of the country, based on the liberal democratic model, was abrogated and a new one adopted. This has no parallel in any liberal democratic country. In fact, an underlying principle behind the new Constitution was that liberal democratic practices are obstacles to the economic programme the political regime was undertaking. In short, the political leadership of the new regime understood that the economic policies they planned to introduce would cause considerable hardship to many sections of society, and hence the government’s capacity to react to any form of protest should not be restrained by the liberal democratic practices prevailing through the legal system.

The period that followed was characterised by attempts to fully co-operate with the demands of international financial agencies, and attempts to create an open economy, to privatise and to cut down welfare. The consequence was a serious level of tension in all areas of life. In the early years of the government, it was able to suppress the more organised political opposition and even trade union opposition with considerable yet moderate use of force.

However, what was more difficult to deal with was the type of opposition that began to grow from unexpected quarters, the natural social groups which felt threatened by the new developments. On the one hand there were the youth, both in formal and non-formal sectors, who were threatened with unemployment. Neither did they have much hope in traditional forms of employment such as agriculture, animal husbandry, fishing and the like. For this natural grouping there was no place in the new economy.

It was this economically threatened group on which the State repression was to be unleashed. This happened both in the South and the North. The State repression of these natural groupings was met with a variety of natural forms of resistance. Soon, the conflicts between State forces and resistance groups turned into violence – in fact ferocious violence. The horrific tale of this violence, beginning from around 1978 in the then relatively unknown Sri Lanka, caused Sri Lanka to become a household word all over the world. Sometimes the violence that took place in the South is described as a means of crushing a Marxist rebellion and that of the North and East as crushing a rebellion based on ethnicity. However, in fact, the underlying cause in both cases was the new economic and political process that was unleashed in the country during this time, despite the deep threat it caused to a large section of the younger people in the country.

What the state had to offer to the threatened groups in the country was extra-judicial killings and torture. Thus, these violations are not accidents but necessary policies arising out of the major premises which are basically economic in nature.

In order to achieve this policy of repression the state needed to loosen the discipline that that is usually imposed on law enforcement agencies. Even the limited processes of accountability that existed in the earlier period had to be abandoned so law enforcement officers might be "protected" from the operation of normal laws.

This "protection" took place in two ways: On the one hand, the internal controlling mechanisms of law enforcement agencies were weakened and displaced. The persons at the top of these institutions were handpicked and expected to rigorously follow a policy of accommodation. On the other hand, those within the institution who represent the old tradition were displaced from their positions; those that resisted were humiliated. Thus an institutional ethos that easily tolerates extra-judicial killings and torture was put in place as the "normal law enforcement" culture. It is not only the police and military that under went this change: the prosecution system too underwent the same change. Thus, prosecution of perpetrators of gross human rights violations became as difficult as moving mountains.

Challenges facing the Human Rights Movement

The human rights movement needs to develop a comprehensive strategy to face the dangers people face in the present context of economic policies. Two major components of such a strategy should be:

To avoid a merely abstract understanding of violations of economic, social and cultural rights. Instead the concrete situation of the violations needs to be studied. In the concrete situation the violations under the two sets of rights (civil and political rights, and economic, social and cultural rights) would appear inseparable;
The attempts to defend civil and political rights need to expose the root causes for such violations. Thus, the link between the realisation of all rights needs to viewed in the context of implementation of rights by way of adequate remedies against violations, as required under Article 2 of the ICCPR

End Notes

The title refers to the ‘right to adequate remedy’ article of the International Convention on Civil and Political Rights

Quintus Perera- Dickovita Incident- An AHRC Report

From an AHRC press Release dated 1^st March 2002

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Published on: 2002-10-23 (1037 reads)

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