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Beyond lawful constraints: Sri Lanka's mass detention of LTTE suspects

Sep 26, 2010 12:39:12 PM- transcurrents.com

ICJ926.jpg'Surrendees' and 'rehabilitees' in Sri Lanka: ICJ Report addresses concerns arising from what may be the largest mass administrative detention anywhere in the world

By International Commission of Jurists

Summary of Human Rights Concerns

The Government of Sri Lanka’s ‘surrendee’ and ‘rehabilitation’ regime combines measures to address the ‘surrender’ of former combatants, screening for security threats, rehabilitation, and criminal prosecutions. Each of these areas of law and policy contain measures that violate the right to liberty and security of the person (ICCPR, art. 9), the right to due process and fair trial (ICCPR, art. 14), and the rights of the child. They also risk violation of the prohibition against enforced disappearance, torture and other illtreatment, and extrajudicial killing.

[Click to read full report on Scribd]

i. Clear and transparent legal framework for surrendees and rehabilitees

The ICJ is concerned at the lack of a transparent and publicized and effective framework setting out lawful and human rights compliant parameters for effective rehabilitation and reintegration. The existing framework appears ad
hoc and piecemeal, without due regard for international policy and best practice in disarmament, demobilisation and reintegration (DDR). In fact, the lack of transparency and accountability engendered through this ad hoc approach will tend to heighten mistrust and detract from a sustainable political settlement. International support to such a process would potentially implicate the donors in enabling violations of international law and human rights, and thereby undermine the prospects for a viable national reconciliation based on rule of law.

The ICJ remains concerned that the existing detention regime violate international legal standards and creates a legal black hole in which detainees are vulnerable to serious violations. These concerns well founded when set against the well-documented history of arbitrary detention, torture and other ill-treatment, extra-judicial killings and enforced disappearances in Sri Lanka.

Mass internment clearly falls outside the limitations imposed by the principles of necessity and proportionality under international law.

Individuals have a right in all circumstances under international law to access to a court to challenge the legality of detention and to legal counsel, both denied in this regime.

ii. Procedural safeguards need to be put in place

The ICJ is concerned that the rehabilitation regime sidelines ordinary criminal proceedings and fair trial related due process and fair trial rights.

Administrative detention for up to two years is prescribed even for low risk ‘rehabilitees’, indicating that the mass detention has the character of collective punishment, which is prohibited in any circumstances under international

The existence of a legal gap creates the risk that the Government’s approach, which lacks accountability and transparency, will displace the normal criminal justice system and its safeguards against abuse. Detention for the
purpose of gathering information, which often happens in Sri Lanka, has the consequence of blurring intelligence aims with the distinct purposes of criminal investigation and “rehabilitation”. Without clear legal parameters governing the exercise of these powers and strong accountability mechanisms, serious human rights violations are more likely to occur with impunity and without recourse to a remedy.

The legal guarantees that must be provided:

 Safeguards against involuntary ‘surrender’ and coerced ‘confessions’

 Transparent and verifiable screening and registration of detainees, to protect against human rights violations,
including torture and ill-treatment and enforced disappearance

 Access to legal counsel

 Right to be informed of the reason for detention

 Prompt judicial control of detention

 Right to challenge lawfulness of detention before a judge

 Protection against inherently arbitrary detention, including prolonged and indefinite administrative detention, that
permits the Government to hold someone without charge for up to two years in ‘rehabilitation’ and where an
administrator determines whether release is ‘appropriate’

 Protection against obligatory ‘rehabilitation’ that is imposed without judicial authority and outside the criminal justice

 Proper screening procedures to ensure identification of children and channelling on individualized needs basis into separate mechanisms for recovery, reintegration, and care

 Avoid detention of children with adult ‘surrendees’

 Protection against broad and vague grounds for arrest and detention on security grounds, leading to prolonged
arbitrary ‘preventive detention’ without charge

 Guaranteed visits by family

 Protection against overly broad and vague grounds for criminal prosecutions, including assimilation of innocent
actions or normal criminal offences to acts of ‘terrorism’ with severe punishments

 Protection against double punishment where criminal conviction and sentencing are added to time served as
detainee under administrative detention (‘rehabilitation’)

iii. Need for an independent monitoring agency with a protection mandate

The lack of verifiable public information points to a larger absence of a comprehensive policy and legal framework and transparent process for detention, screening, rehabilitation, release or prosecution, accompanied by unhindered monitoring access by international agencies to adult detention centres. It is this lack of accurate, independent information that makes the presence and participation of such independent protection agencies critical to the well-being of the surrendees and rehabilitees.


A To the Sri Lankan Government

i. Voluntariness of surrender and rehabilitation

• Ensure prompt judicial review and supervision to determine if ‘surrender’ and participation in ‘rehabilitation’ is

• Ensure that rehabilitation, where voluntary, is carried out in a manner demonstrably for such purposes and not
amounting to a disguised form of criminal punishment.

ii. Due process rights

• Guarantee right to legal representation and access to a lawyer of the detainee’s choosing at all stages, family visits, medical visits, and access by an international and independent humanitarian agency

• Guarantee right to challenge the lawfulness of detention before judge or other competent authority

• Guarantee prompt charge and trial, release, or genuinely voluntary participation in rehabilitation based on
transparent and lawful criteria • Guarantee the additional due process rights enumerated on
pages 35-36 of this report

iii. Children

• Verify that no children remain in detention, and more broadly ensure full implementation of recommendations by
UN Special Envoy for Children and Armed Conflict, particularly with regard to screening procedures and risk of

iv. Amnesty

• Consider amnesty for ex-combatants except where alleged acts amount to crimes under international law.

B To the Sri Lankan Parliament and Government

• End the state of emergency.

• Support legislation establishing the parameters for rehabilitation, prosecution and possible amnesties for individuals who took active part in hostilities.

• Review, reform, and repeal provisions of the PTA and Emergency Regulations (2005 and 2006) identified above, to bring them into compliance with international law and standards

• Take steps to eliminate the practice of administrative (or ‘preventive’) detention, including statutory, regulatory, and administrative reform.

• Where administrative detention is invoked, ensure that this is done only in exceptional situations during declared states of emergency pursuant to ICCPR article 4.

C To the Donor Community and the United Nations

• Donors and the United Nations should offer technical assistance to support the development of a legal framework
that complies with international law and standards and that is cognizant of the wider implications of reconciliation.

• 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 United Nations should continue to refrain from supporting Government activities within the camps until a legal framework has been put in place which provides for due process and safeguards the rights of all detainees,
especially children.

• The United Nations 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.

Executive Summary

This report addresses human rights concerns arising from what may be the largest mass administrative detention anywhere in the world. The Government of Sri Lanka is currently holding approximately eight thousand individuals under administrative detention without charge or trial. They are alleged former associates of the LTTE and therefore required to undergo ‘rehabilitation’ under Sri Lanka’s 2005 emergency regulations. Hundreds of others have been screened and held separately for criminal prosecution.

The ICJ is concerned that the 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. In any event, these questions of whether detention is strictly necessary must be subject to judicial review on
an individual basis and such review has been unavailable.

The ICJ acknowledges the enormity of the challenge faced by the Government since the end of the armed conflict in May 2009. It has dealt with both massive displacement and security risks. It has the ongoing task of identifying the scope and nature of rehabilitation and other post-conflict assistance needs, including the special needs and rights of children.

Important progress has been achieved. As of August 2010, approximately 200,000 IDPs had been returned or released from camps, with 70,000 that remain displaced or in transit sites near their home areas and less than 35,000 others that still await release from emergency sites. 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. There is no recourse to an independent and competent tribunal to determine their rights. Obstructed access for independent monitoring further clouds these practices and has made it impossible to verify reports of enforced disappearance, torture and other ill treatment, or the continuing presence of children among the adult detainees.

In assessing the human rights impact of the mass detention regime, this report applies 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. It is the State’s duty to respect and protect these rights and to provide a remedy when these rights are violated. International humanitarian law in non-international armed conflict is contested regarding internment and detention, as there are few express rules in IHL treaty sources. In any case, hostilities in Sri Lanka’s internal armed conflict ceased
more than one year ago.

There are at least two bases for this detention under Sri Lankan legislative and emergency regulations. First, preventive detention without trial on security grounds for up to one year is authorized under ER 2005, Regulation 19. While magistrates are to be informed of such detentions (21(1)), the regulation excludes judicial review (19(10)), declares all such detentions lawful (19(3)), and denies the Magistrate power of bail without consent by the Attorney General (21(1)). This regulation remains applicable to those to whom it was applied before May 2010, when the maximum detention period was reduced to 3 months and the appearance before the Magistrate required
within 72 hours (1651/42, 2 May 2010).

Preventive detention is the administrative restriction of liberty not undertaken in contemplation of criminal charges, but instead based on suspicion of future criminal behaviour. The substantive grounds for such detention include offences contained in the Prevention of Terrorism Act No. 48 (1979) (PTA), which itself authorizes preventive detention under patently vague and overbroad grounds for up to 18 months (s.9) and indefinitely
pending trial.

Administrative detention without charge or trial is also permitted for purposes of the rehabilitation of ‘surrendees’ under Regulation 22 of the Emergency Regulations 2005 (ER 2005 as amended by ER 1462/8, 2006). Administrative detention of a ‘rehabilitee’ may continue without judicial review or access to legal representation for up to two years. These regulations and procedures deny the right of detainees to have the lawfulness of their detention and other rights determined by a court, as established in ICCPR article 9.

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. In addition to this disguised form of punishment for alleged criminal offences, ‘rehabilitees’ face the prospect of a second punishment upon conviction for crimes if criminal prosecutions are eventually initiated. 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.

While the ICJ recognizes Sri Lanka’s obligation to protect its population, including from threats that may be posed by members of armed groups such as the LTTE, this should not be done at the cost of detainees’ rights, or outside the framework of the law. Measures taken by the Government of Sri Lanka to ensure that those suspected of serious crimes, such as war crimes, are brought to justice must also ensure that others are given assistance, including human rights compliant rehabilitation services, to facilitate assimilation into civilian life.

This is as much a matter of confidence building and reconciliation at this delicate post-conflict juncture in Sri Lanka, as a question of respecting and strengthening the rule of law – both, in fact, are mutually constitutive. For example, except where alleged acts amount to crimes under international law or serious human rights abuses, the Government could consider adopting a reconciliation program that provides for the possibility for amnesty for excombatants as a way to foster reconciliation in post-conflict Sri Lanka.

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.

Part II of this Briefing Paper provides the background to ongoing mass internment of LTTE suspects. Part III (A) outlines international human rights law and standards applicable in Sri Lanka. Part III (B, C) sets out the violations of these laws and standards under the current administrative detention regime. Part IV provides recommendations for addressing these violations.