Tag Archives: Sri Lanka

Commonwealth hamstrung to fight abuse in Sri Lanka

This post was contributed by Frederick Cowell, a lecturer and researcher in international law in Birkbeck’s School of Law. This article first appeared on The Conversation.

The list of crimes alleged to have been perpetrated by brothers Mahinda and Gotabhaya Rajapaksa – respectively the president and defence minister of Sri Lanka – are truly horrifying. During the last few months of the civil war in 2009, the Sri Lankan army was alleged to have deliberately shelled civilian areas and since the ceasefire, as the Sri Lanka justice campaign has detailed, there have been numerous extrajudicial killings and incidents of torture.

Rather than being treated as international pariahs, though, the Rajapaskas are hosting the Commonwealth Heads of Government Meeting this week, attended by representatives of more than 40 governments from around the world.

Since 1965 the Commonwealth has been an independent intergovernmental organisation, with its own headquarters and secretariat. From 1971 it took a leading role in facilitating negotiations over ending white minority rule in Southern Africa.

Sincere commitments at the organisational level, however, did little to affect the Commonwealth’s membership. Military regimes and dictatorships were prominent members of the Commonwealth throughout the 1980s. When the Commonwealth broadened its focus to the protection of human rights with the passage of the 1991 Harare Declaration, committing Commonwealth member states to the protection of “fundamental human rights” and democracy, it was clear a more robust enforcement mechanism was needed if the declaration was to have any meaningful effect.

Suspension is easy

Article 3 of the 1995 Millbrook Action Programme allows states to be suspended from the organisation when they were clearly “in violation” of the Harare Principles, “particularly in the event of an unconstitutional overthrow of a democratically elected government”. This was the first instrument of its kind and was a radical move. At the time the UN Human Rights Commission didn’t even have an instrument for suspending serial human rights abusers or illegal governments.

In 1995 Nigeria became the first country to be suspended from the Commonwealth after General Abache’s regime rejected the results of the 1993 elections and went onto commit series of human rights abuses including the execution of activist Ken Saro Wiwa. This was followed by the suspension of Pakistan in 1999 and Fiji in 2000, both following military coups.

The Millbrook action programme also allowed the appointment of ad-hoc groups of high level officials. Zimbabwe was suspended from the Commonwealth in 2002 after a troika of officials, including then Australian prime minister John Howard, concluded Robert Mugabe’s re-election that year had been “marred by a high level of politically motivated violence”. This led to Zimbabwe withdrawing from the organisation a year later. The most recent suspension was Fiji in 2009 after the government refused to accept a domestic court ruling that a 2006 coup was illegal.

Human rights play second fiddle

The focus of the Commonwealth Ministerial Action Group (CMAG), the decision making body of the Commonwealth, has been largely on the overthrow of democratically elected governments. This has led to the relative relegation of the protection of human rights, effectively turning Article 3 into an anti-coup instrument. And even as an anti-coup instrument, it has been applied inconsistently. When Maumoon Abdul Gayoom took power unconstitutionally in the Maldives in February 2012, CMAG issued a statement urging the government to hold fresh elections, but little action has been taken since.

It is also increasingly unclear what suspension is actually for. Fiji has been suspended for nearly four years, during which time it has made scant progress towards returning to constitutional government. Fiji’s government has covered the shortfall in development aid it suffered by receiving aid from China.

Anti-coup instruments have been adopted in several other international and regional organisations including the African Union. The problem is that they can easily become mechanisms that protect governments rather than human rights.

An anti-coup mechanism is also a barrier to gaining international recognition for a new government that comes to power through a coup. This can help deter future coups, which benefits exiting governments. This is why the Millbrook Action plan has received so much support from Commonwealth members. Commonwealth states have resisted attempts to create an independent Commonwealth Human Rights Commissioner, meaning that the decision to suspend states still rests with diplomats from member states.

The situation in Sri Lanka has split opinion among Commonwealth governments about the best way to respond to the human rights abuses taking place in Sri Lanka. Until a strong independent mechanism is brought in to assess suspension, Sri Lanka will remain a Commonwealth member, despite the atrocities that occur on its soil.


Australia is playing a dangerous game with Sri Lanka

This post was written by Dr Stewart Motha, a Reader in the School of Law. It originally appeared on the Guardian’s Comment is Free on 21 February 2013.

It’s election year in Australia, and that means open season on boat migrants. Last year, 17,000 people arrived by boat, with a massive surge of 6,500 from Sri Lanka. These numbers have an alarming impact on Australia’s human rights record as the government puts in place draconian domestic measures to deal with the increase, and plays a foolhardy game of building military and security links with Sri Lanka to stem the flow.

Harsh measures for dealing with people arriving by boat are nothing new in Australia. The Howard government set the tone in 2001 by mobilising special forces to seize the Norwegian freighter MV Tampa after it rescued more than 400 refugees from a sinking vessel and brought them into Australian waters. The “Pacific solution” was then introduced, whereby outer islands were excised from the Australian territory for the purpose of migration and judicial review. Refugee claimants arriving by boat at excised territories were mandatorily detained and transported to harsh offshore camps administered by Australia in countries such as Nauru – a practice stopped in 2008, but reactivated last August.

The Australian government is now constructing permanent facilities in Nauru to detain boat migrants, and also runs a detention camp in Manus Island, Papua New Guinea. The PNG opposition were in court last week, challenging the legality of the Manus Island detention centre.

The migration amendment (unauthorised maritime arrivals) bill 2012 now seeks to implement the Pacific solution throughout Australia. What was an exception is to become the norm. A new category of “unauthorised maritime arrivals” will discriminate against people on the basis of the mode of their journey to Australia. If you arrive by boat, you face mandatory detention in a harsh and remote place. Travel by plane and you will be able to apply for a protection visa on arrival. Given most maritime arrivals are from Afghanistan, Iran, Iraq and Sri Lanka, the legal regime effectively implements a de facto form of apartheid based on country of origin (and here, let us note that article 3 of the 1951 refugee convention obliges Australia to fulfil its protection obligations without discriminating on the basis of “race, religion, or country of origin”). As such, the migration amendment bill seeks to implement a staggering legal artifice for a nation that claims to walk tall among the civilised.

The Australian government has also introduced the dangerous practice of forced repatriations of people it claims are not refugees (last September, Human Rights Watch documented the torture of Tamil men and women repatriated to Sri Lanka by the UK Border Agency). These people are returned within 72 hours of arrival, and with “screening” taking place offshore, this happens without any provision of legal assistance for the returnees, or transparency in relation to the work of immigration officials. The risk of refoulement – the return of refugees with a right to protection to their persecutors – is increased, thus flouting the fundamental obligation under the refugee convention.

Australia’s extreme measures have been prompted by a curious surge in the number of people arriving by boat from Sri Lanka. In 2012 around 6,500 people made this arduous journey. In the previous year the number of Sri Lankan arrivals was a mere 211. Department of Immigration statistics indicate that 5,215 of the 2012 arrivals were Tamil, and 1,027 Sinhalese. In the last month, the number arriving has dramatically reduced to a trickle. What explains these fluctuations, and what is to be made of the Australian reaction to it?

Earlier this month, the Australian reported that Australia’s intelligence agencies suspected an official with a high profile close to President Mahinda Rajapaksa was “responsible for authorising numerous boats in the past 10 months, fuelling the surge of asylum seekers from Sri Lanka”. The Sri Lankan government has denied the allegations. The suggestion is that Sri Lanka can “turn on the tap” and “unleash untold asylum boats”. Australia has chosen an unreliable security and surveillance partner.

The politics of people smuggling is hardly ever only about the people being trafficked and those exploiting their desperation. Because of its hysterical attitude to those seeking asylum, Australia has potentially walked into the trap of being held hostage by any authoritarian regime that colludes in people smuggling. The currency they will demand is a blind-eye to human rights violations, favourable diplomatic attention and security partnerships.

The Australian minister for foreign affairs, Bob Carr, visited Sri Lanka in December and announced training for Sri Lankan naval officers on surveillance and intelligence gathering. The shadow minister for foreign affairs, Julie Bishop, visited Sri Lanka last month and praised its postwar reconciliation and reconstruction efforts. It’s one thing for Australia to throw the refugee convention out the window, and another to weigh in on issues such as reconciliation and militarisation in another country. If they want to do the former they should do it honestly; the latter is gratuitous, unnecessary and harmful.

As Australians look ahead to the renewal they deserve in an election year, is it not time to imagine a different, better Australia? Let’s not add another episode of “unutterable shame” to Australia’s archive of atrocity. Instead, let Australia summon up the sentiments of Henry Lawson’s iconic 1891 poem, Freedom on the Wallaby, for today it is not the rebel’s blood but a callous disregard for the vulnerable that “stains the wattle”.