The Gloves Are Off: Reactions to Ben Emmerson’s Statement on Torture, Counterterrorism

Featured image courtesy Colombo Gazette

On July 14, 2017 the Special Rapporteur on human rights and counterterrorism, Ben Emmerson released a statement at the end of his visit to Sri Lanka, where he met with detainees, activists, and the Attorney General, the Chief Justice and High Court Judges.

Following his visit, there was some coverage in the media, with Daily Mirror and Sunday Timesreporting on his statement. However, almost immediately, Minister of Justice and Buddhasasana Wijeyadasa Rajapakshe lashed out in response, saying Emmerson lacked “diplomatic qualities” and displayed an ‘army commander like’ approach. It was this statement that got significantly more coverage.

On Tuesday, it was reported that President Sirisena’s main concern was on who had permitted Emmerson to meet LTTE detainees. This statement again received coverage in the mainstream media.

However, concerns have continually been raised over ongoing torture and police brutality as well as the draft Counter Terrorism Act by civil society.

Groundviews spoke to a cross-section of people in order to unpack the statement and its implications.

Human rights activist and Attorney At Law Nimalka Fernando said she was not surprised by the Special Rapporteur’s message. “Has the mandate holder stated something that any ordinary person in this country does not know?” she asked. Speaking further Fernando said there needed to be political will to expedite security sector reform, and address longstanding rights violations, including torture and prolonged detention. Acknowledging the Minister of Justice’s statement, Fernando pointed out that the UN Rapporteur was only reporting what had been expressed by directly affected people. “The General Assembly in its resolution 59/195 reaffirmed that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law,” she said. As such, Sri Lanka should lead by example and fulfil the international obligations they had agreed to.

“Every single report I have read from experts and those visiting have identified the same inadequacies and violations affected communities have shared with us. These reports are not false nor exaggerating. They speak of the pledge given to the people, promising reform,” Fernando said.

However, a rights activist who met with Special Rapporteur (and requested anonymity) said they were ‘pleasantly surprised’ at the tone of the statement given that their meeting had been challenging. “It wasn’t clear to us that he fully appreciated the gravity of the torture problem and the role of admissible confessions in the problem of systemic torture. I also got the impression that he was more interested in quiet engagement with the government at the expense of public criticism,” the activist said.

The shift in position, they asserted, was likely due to the reported testy exchange between the Special Rapporteur and the Minister of Justice. “The strength of the statement and its forthright criticisms are probably a direct outcome of that meeting. The Justice Minister seems to have turned a carefully choreographed diplomatic victory for the government into a stunning defeat,” the activist said.

Human rights activist Ruki Fernando said that the Special Rapporteur’s announcement that the Government – and specifically Ministry of Foreign Affairs – had agreed to consult with the Rapporteur’s office within two weeks, was welcome. However, given the recent announcements by the Minister of Justice, it remained to be seen whether this was actually a commitment the government would keep. The Special Rapporteur had also not commented on the secrecy with which the various drafts of counter terrorism legislation had been produced, nor the lack of consultation with the public on the process, he added.

“The SR also doesn’t seem to have highlighted overarching concerns of counter-terrorism mindset towards reconciliation and rights. The fact that even PTA detainees that are released continue to be harassed and subjected to surveillance and intimidation. That several activists, including me, continue to be investigated under the PTA, more than 3 years after being arrested and conditionally released,” Fernando said. The priority given to counter terrorism efforts was so strong that just a few weeks before, a military officer in the North had spoken of extensive surveillance being conducted, as justification for the continued delays in release of military occupied civilian lands. In Mullaitivu courts, just this May, the police cited the PTA in court as a justification for stopping remembrance ceremonies held by Tamils for those lost in the conflict.

Worse, some of those who met with the Special Rapporteur had suffered severe consequences, Fernando said. “I was alarmed to hear of a person who met the Rapporteur being subjected to threats and the family member of another person who met him being subjected to beating in detention few days after. It is imperative that the SR and the UN country team, as well as the government follow try to follow up these reports, ensure remedies and ensure no such reprisals happen,” Fernando said.

“The SR’s preliminary findings are nothing new. They are concerns that have been highlighted for decades by Sri Lankans and others. At least now, I hope it will ring alarm bells within the government and all Sri Lankans.” Emmerson’s comments could be used as input towards a more humane, rights oriented approach to deal with terrorism concerns. ‘I hope the SR will continue to engage with the government and people of Sri Lanka, in the lead up to the presentation of the full report and findings next year and beyond,” Fernando said.

Executive Director for the Centre for Policy Alternatives, Dr Paikiasothy Saravanamuttu said he felt Emmerson’s statement reflected the current situation. “The issue is the extent to which it will be perceived to lend credence to the accusation that the government is susceptible to encroachments on national sovereignty and taking dictation from outsiders, especially from the West,” Saravanamuttu said. As such, the international community faced a challenge in getting their message across strongly without risking the political embarrassment of the government.

Constitutional lawyer and civil rights advocate Kishali Pinto-Jayawardena meanwhile said that the Special Rapporteur’s characterisation of PTA detention, particularly as it was based in most cases on forced confessions, as an ‘industrial scale injustice’ was apt. His recognition of the State having access to, as he termed it, a “well-oiled torture apparatus” was also accurate, she added,

“The truth is, of course, that the use of torture is endemic both in relation to emergency detainees and suspects implicated in ordinary crimes. And the contradiction between assurances given by the Government and actual progress has been noted,” Pinto-Jayawardena said. For instance, there had been sparse information on recent official statistics provided to the Special Rapporteur – only 71 police officers had been proceeded against for torturing suspects since available records began. The countries abysmal record of prosecutions under the Convention Against Torture (CAT) Act was also worth noting, she added.

“The proposed draft Counter-Terrorism Act (CTA) has been stringently critiqued in reference to the continued admissibility of confessions to the police and the unacceptable over-breadth of the proposed offences. The CTA draft is also problematic in its ‘chilling of expression and information,” Pinto-Jayawardena pointed out. “Certainly the grim realities of the PTA regime, as sketched in these preliminary findings of the Special Rapporteur and reflected in studies for decades, will be increased a hundred-fold if the draft CTA is enacted. At least at this stage, this danger must inform further watchful interventions and scrutiny.’

Research Director at Verité Research, Gehan Gunatilleke also agreed with the Special Rapporteur’s assertion that the PTA had fostered the endemic and systematic use of torture, adding that statistics provided by the Human Rights Commission post 2015 confirmed this.

“However, he chooses to use the word ‘uncorroborated’ when describing confessions – as if to mean admitting ‘corroborated’ confessions is acceptable. I believe this is a dangerous distinction to make, as you will be incentivising the use of corroborating witnesses to justify the use of confessions secured through torture.” This was in line with the idea that the presence of legal counsel during an interrogation could make confessions to police officers admissible. This could invite collusion between police and lawyers, and lead to the violation of a suspect’s fair trial rights, including the right to be presumed innocent, and the right not to incriminate oneself. However, the Rapporteur had said that confessions to police officers should be excluded altogether in the proposed CTA draft, a position Gunatilleke endorsed.

The Rapporteur had not adequately addressed ‘very significate weaknesses’ in the current CTA proposals. Gunatilleke noted that the Law Commission produced a set of proposals in 2016 which was comparatively more compliant on human rights issues compared to the current CTA proposals. “Those proposals abolish confessions to police officers, and contain a definition of terrorism that is more consistent with international standards – both problems that the SR identified in terms of the current CTA proposals. Contrary to the idea that the current CTA proposals contain ‘significant improvements’ – which I think is an overstatement – I believe the current proposals are unsalvageable. The only reasonable option left is to abandon these proposals and return to the Law Commission proposals,” Gunatilleke said.

Founder of the Mannar Women’s Development Foundation, Shreen Saroor noted that Emmerson was the first UN mandate holder to state that the transitional justice process had virtually halted. However, she added the President’s  questioning Special Rapporteur’s  interaction with PTA inmates was revealing. “It implies that the President has forgotten the mandate on which he was voted in on 8th Jan 2015.”

Equally revealing is the fact that a few of those who met with the Rapporteur were threatened and in one case, beaten for speaking out. It remains to be seen whether Emmerson’s statement will result in any concrete action.

Readers who enjoyed this article might find “The Global Context of Counterterrorism: Strategy, Ethics and Sustainability in Sri Lanka’s COIN Experience” and “Continuing abuse under the PTA: Abductions, Arbitrary Arrests, Unlawful Detentions and Torture” enlightening reads. 

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