Sunday, March 20, 2011

Wars and Disappearances

Wars and Disappearances

-E .Thambiah-

[Given below is a slightly edited text of the address by Comrade E Thambiah, International Organiser of the New-Democratic Marxist-Leninist Party, at the First Plenary Session of the Sixth International Conference Against Disappearances from 9th to 12th December 2011 in London.]

International Humanitarian Law is specifically dealing with or concerned about individuals and groups at war or where there is armed conflict between resistance movements / liberation movements and the state/government security forces.
Resistance against injustice, unreasonableness and social injustice is an inherent right of an individual as well as communities. Resistance perhaps would lead to violence that is not individual terrorism or group terrorism or crime. Suppression of resistance through armed operation of the state security, alone or with the help of paramilitaries, is more or less war. Therefore war does not only mean armed operations between two state security forces or alignments of security forces.
In such situations states or governments tend to claim that the international humanitarian law is wrong and only relevant under a normal situation.
Besides, the state/government passes special laws to suppress resistance and to justify its violation of human rights and humanitarian norms. On the other hand, even under a normal situation there is no value for humanitarian norms within the framework of the so-called rule of law, other than shallow regulations/rules (of military discipline) on paper.
In these circumstances International Humanitarian Law is indulged as the means of protection of individuals and/or groups. It was believed that the Humanitarian Law, unlike International Human Rights Law, was inspired by feelings of humanity and centred on the protection of the individual in times of war and/or internal armed conflict, and the treatment of prisoners of war, hostages, surrendered persons and civilians.
International Humanitarian Law is mostly contained in the four conventions of 1949 and the protocols of 1977. It is about war and warlike situations and deals with the protection of victims of armed conflict. It has very specific provisions forbidding killings, involuntary removal or forced disappearances, torture of captives, taking of hostages, imposition of collective punishment and inflicting of avoidable hardships on civilians, among others. Moreover, the International Humanitarian Law imposes obligations on government forces as well resistance and/or liberation armed groups.
The International Committee of the Red Cross has formulated the contents of treaty and customary law under humanitarian law with regard to armed conflicts, as follows:
 A Persons hors de combat and those who do not take a direct part in hostilities are entitled to respect for their lives and their moral and physical integrity. They shall in all circumstances be protected and treated humanely without any adverse distinction.
 B It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
 C  The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the Red Cross or the Red Crescent is the sign of such protection and must be respected.
 D Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
 E  Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.
 F  Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
G  Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives.
The rules may not be complete and may not be acceptable to all, but they are the basic rules put forward before the world community. The violations of same are tantamount to war crimes.
The international institutions that are expected to observe and take action against governments or individuals who disobeyed or acted in contravention of the rules are in the hands of hegemonic forces such as the US and powerful Western states, and have, except in one or two instances, not strictly pursued the matters when the rules were violated by the forces of the state themselves and constituted war crimes.
Apart from the above hegemonic forces, most of the countries are either aligned with them or their client states. Therefore attempts to charge them for war crimes, where they have violated the said rules, have proven futile before the so-called international forums.
This situation encourages parties to armed conflicts, mainly the state or the government, to implement repressive measures such as the involuntary removal of persons and forced disappearances of combatants as well as civilians. It can be seen from the wars in Bosnia, Afghanistan, Iraq and other Asian, African and Latin American countries during and after the period of war or armed conflict. In short, disappearances have become day-to-day occurrences.
On that basis, I will share some of my opinions and information about disappearances during and after the period of war.
The call for the fulfilment of the aspirations of the Tamils and other minorities (especially the Muslims and Hill Country Tamils) of Sri Lanka, denied to them by the Sinhala Buddhist chauvinistic elite classes of Sri Lanka, got transformed into armed resistance by Tamil nationalist youths since around 1980. From the very inception, there were forced disappearances of Tamils. The government as well as the Tamil nationalist movements are responsible for the disappearances, but successive governments have been responsible for most.               
It has been reported in the newspapers, despite denial by President Mahinda Rajapaksa, that approximately 287 000 people were displaced and 40 000 were killed in the last days of the war in May 2009 in the Vanni region which was controlled by the LTTE. He accepted that one or two civilians could have been trapped and killed and that the Sri Lankan security forces attacked only the terrorists but not civilians.
The Government claimed that the number of arrested persons was 10 000 and that between 5000 and 6000 of them have been released after screening and rehabilitation, whereas unofficial reports reveal that more than 30 000 people were arrested and that very few of them have been released, and that some of those released were taken into custody again and some are missing.
According to Lakshman Kiriella opposition (UNP) Member of Parliament, there are 9000 political prisoners in Sri Lanka (Thinakkural, Tamil daily 3rd December 2010), and around 11 000 according to an Australian parliamentarian (Thinakkural, Tamil daily 5th December 2010).
According N Sathasiva Iyer, Additional Registrar General, the Department of the Registrar will issue death certificates for disappeared or missing person as soon as possible and the number of persons reported as missing in the Jaffna Peninsula since 1990 is 1000; and so far no parent of a missing person has been compensated.
It has been reported in the media that 87 000 women (50 000 in the Northern Province and 37 000 in the Eastern Province) became widows as a result of 30 years of armed conflict, which implies that 87 000 men have been killed or have been disappeared.
During the war and in the post-war period, Tamil businessmen and personalities were abducted and some of them were released after paying large sums as ransom to the abductors. Bodies of some abductees were found and the whereabouts of the rest remain unknown.
It was continuously reported that people in the Northern and Eastern Provinces made submissions about the disappearance of their loved ones before the Lessons Learnt and Reconciliation Commission appointed by the President of Sri Lanka to make recommendations to him about measures to be taken to prevent the re-emergence of separatism and terrorism, although the LLRC had no mandate to inquire into disappearances.
There are detainees belonging to the Sinhala community branded as ‘Sinhala Tigers’, who have allegedly aided the LTTE. Some army and police personnel too have been held in custody on suspicion of helping the LTTE. Among the Sinhalese detainees are leaders of trade unions, journalists and teachers who have raised their voice on behalf of the Tamil people. There are a few left/revolutionary activists and leaders who have been detained for long as they were involved in resistance movements against anti-people programmes of the governments and demanded a political solution to the ethnic problem of Sri Lanka. The oppressive measures, seemingly against the minorities, are actually and basically against democracy, the right to self determination of the minorities, and human rights.
There have been journalists subjected to threats: Ekneligoda, a Sinhala journalist who has allegedly reported in his on-line news the security forces of Sri Lanka had used chemical weapons during the war in May 2009, has been missing for the past one year.
There are reports and advertisements that appear daily in the media about disappearances of Tamils, including businessmen: Kanapathy Kunaratnam, a Tamil businessman from the Colombo suburb of Wattala disappeared on 24th November 2010, and his body was found in Colombo 6 on 25th November 2010; another businessman, Melo Kunja disappeared on 22nd November 2010 from Colombo 13 and his body was found later by the side of the rail track in Colombo 6. The police say that they are investigating the deaths to ascertain whether the dead committed suicide or were murdered. Bodies of some members of the Muslim community have been found. And it was claimed that they were involved in drug peddling and were killed by their enemies: Patani Razeek of Puttalam, the founder of a social trust fund is missing for the past 10 months. Thus, disappearances in Sri Lanka do not exclude any nationality but mostly affects Tamils.
National and international laws warrant all governments to answer and be held responsible for the disappearances of their citizens and residents in their respective territories. Nationally, a writ of Habeas Corpus application before the Court of Appeal is the prerogative remedy for disappearances, but now the scope of such applications has become senseless. There was also a committee comprising some parliamentarians to receive complaints of disappearances, but it has done no justice to the victims.
The Human Rights Commission of Sri Lanka has the mandate to look into disappearances, but that serves no purpose since the SLHRC has no enforcing authority.
Internationally, there have been some commendable measures taken against states which were responsible for disappearances. For example, in 1981, the Inter-American Commission held the Honduran government responsible for the disappearance of Velaquez Rodriguez, a university student. Now the so called International Community, comprising the world’s hegemonic forces, is directly or indirectly patronising states which force disappearances and violate human rights.
There have been calls from political parties, social organisations and individuals demanding the Government of Sri Lanka as well as international institutions to investigate disappearances and/or war crimes alleged to have been committed during the war (the ‘humanitarian operation’ according to the Government of Sri Lanka), that ended on 19th May 2009, to release political prisoners, to resettle the displaced people with proper compensation and facilities, and to establish justice for the victims.
The need for investigation into war crimes including disappearances is totally rejected by the Government of Sri Lanka, and despite mutterings by the ‘Committee of Experts’ of the UN Secretary General, no meaningful step has been taken.
Therefore this conference should urge the Government of Sri Lanka and international institutions to take meaningful measures in this regard, at least with the available mainstream resources. This course of action should be followed with respect to other governments on the question of disappearances and violation of human rights.
Apart from these, I invite local organisations as well as international organisations like the International Committee Against Disappearances, with their alternative approaches, to accept complaints about, and investigate and inquire into disappearances and violation of human rights, with the view to exposing the truth to the people of the world for them to implement justice, transcending the limitations of sovereign states and the ‘International Community’.
Finally, only a political solution acceptable to the Tamils, Muslims and Hill Country Tamils of Sri Lanka would heal and soothe the wounds of war and violation of human rights.

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