The visit of Ben Emmerson Q.C., aUN Special Rapporteur on human rights and counter-terrorism, to Sri Lanka from July 10 to 14 was concluded with a statement to the media in which he warned Sri Lanka of “dire consequences” unless the Government fully implemented the Geneva Resolution 30/1. An Associated Press report in The Washington Post of July 15 states: “…that even those as recently as late last year have been subjected to torture…”. Continuing he had stated: “In Sri Lanka however, such practices are very deeply ingrained in the security sector, and all of the evidence points to the conclusion that the use of torture has been and remains today endemic and routine”. His report adds that torture is routine, “for those arrested and detained on national security grounds”
Emmerson spent only three days, (discounting arrival and departure dates), the previous Special Rapporteur on torture, but Juan E. Mendez’s visit to Sri Lanka lasted seven days from April 29 to May7 2016 (discounting arrival and departure dates). His report states: “The issue of torture…is part of the legacy of the country’s armed conflict …Further contributing to this…is the real or perceived threat of international terrorism and organized crime seen by officials as the main threat to the country” (para. 8).
The comment by Emmerson that torture is “very deeply ingrained in the security sector” and that it is “endemic and routine” contrasts sharply with the statement of Mendez, who has taken into account existential realities of the legacy of the armed conflict and real international threats in making his report. Since the situation in Sri Lanka could not have deteriorated in a span of one year between visits of Special Rapporteurs,could the only explanation for the harshness and totally uncalled for severity of Emmerson’s comment bedeeplyingrained racism?
Emmerson cannot afford to be so lily-white about torture in his country of origin,because the UK is guilty of aiding and abetting torture by being an active participant in the rendition program following 9/11 where suspects from the war zones of Afghanistan and Iraq are kidnapped and tortured in several countries. An article in The Guardian of October 2012titled “Torture in U.K.: why Britain has blood on its hands” with a byline “How did the British government get involved in the torture of its own citizens?”states: “In all, nine British nationals were sent to the maximum-security prison at Guantánamo, along with at least nine former British residents. All were incarcerated for years, and from the moment they arrived they suffered beatings, threats and sleep deprivation”. Under the circumstances, while every effort must be made to prevent torture anywhere,very few countries could claim that they are free of torture. Therefore, no one, certainly not the British Government that has expressed “concern” about torture in Sri Lanka, can afford to take a holier than thou attitude, because they are not in a position to throw stones from their glass houses.
According to Emmerson, the official figures of those ‘currently charged with offences under the PTA” are 81, of which “70 had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years”. While such a situation is deplorable, can he give “official figures” of the number arrested and held without trial and in which country under the rendition program? If he cannot,wouldit not strain U.K.’s international reputation?
MANDATE of SPECIAL RAPPORTEURS
Paragraphs 3 and 6 of the UN Resolution that established the post of Special Rapporteur to examine questions relevant to torture in 1985 state:
3. “…the special rapporteur, in carrying out his mandate, shall seek and receive credible and reliable information from Governments, as well as specialized agencies, intergovernmental organizations and non-governmental organizations”.
6 ” Invites the special rapporteur, in carrying out his mandate, to bear in mind the need to be able to respond effectively to credible and reliable information that comes before him and to carry out his work with discretion”.
The instruction to Special Rapporteurs in the mandate is that they ‘shall seek and receive credible and reliable information” and that they “carry out their work with discretion”. The question is whether Emmerson lived up to the terms stated in the mandate. Holding a press briefing at the end of his visit fallsfar short of carrying out “work with discretion”, because at the end of the day if torture is to be prevented the only agency that is in a position to do anything about it is the Government of a country, and publicizing its shortcomings using very harsh language can be counterproductive. What would be more productive would be work discreetly with Governments through encouragement and persuasion, if any Special Rapporteur is to make any difference. This has certainly not been the case with Emmerson.
Updated Resolutions 16/23 of 2011 and 25/13 of 2014 relating to Special Rapporteurs are stated in Paragraphs 3(a) and 1(a) respectively. Both state:
“To receive, examine and act on information from Governments, intergovernmental and civil society organizations, individuals and groups of individuals regarding issues and alleged cases concerning torture and other cruel, inhuman or degrading treatment or punishment”.
Therefore, the critical issue is what measureswere adopted by Mr. Emmerson to ensure the credibility and reliability of the information on which he based his opinions?He claims that he met a number of Government Officials starting with the Prime Minister, 5 Cabinet Ministers that included the Minister of Justice, the Secretary of the President, the Secretary of the Ministry of Defence, the Chief of Staff of the Armed Forces, the Commanders of the Army, Navy and the Air Force or their representatives, Chief of National Intelligence, the Chairman of the National Police Commission, the Inspector General of Police, the Chief of Special Task Force Division, the Chief of the Criminal Investigation Department, the Chief of the Terrorist Investigation Division and the Commissioner General of Rehabilitation, the Chief Justice, the Attorney General, High Court Judges in Colombo, Anuradhapura and Vavuniya and the Chair and one of the Commissioners of the National Human Rights Commission,all in all amounting towell over 30persons. In addition to these meetings, he also visited the Prisons in Colombo and Anuradhapura and met privately with detainees accused under the Prevention of Terrorism Act, together with their lawyers and their families.
The claim that Mr. Emmerson met and engaged in serious discussions with all the officials cited above, to visit Anuradhapura and Vavuniyaand also meet “privately with detainees, their lawyers and their families”,all in a matter of 3 days is to stretch the credibility of any rational person.
ISSUES BEYOND MANDATE
According to the mandate Mr. Emmerson’s field of application is “To receive, examine and act on information regarding issues and alleged cases concerning torture. Therefore, unlike the previous Special Rapporteur Mr. Mendez who in 2016 devoted his entire report to issues concerning torture and only torture, Mr. Emmerson in his statement addressed issues relating to the Prevention of Terrorism Act (PTA) and the UN Resolution relating to Transitional Justice both of which were clearly outside his mandate. His comment on the PTA was that “Sri Lanka’s anti-terrorism law is one of the worst in the world” and warned Sri Lanka of “dire consequences” if it failed to implement Geneva Resolution 30/1 (The Island, July 14, 2017).
It is evident that Mr. Emmerson is on a mission to dilute the provisions of the PTAto the extent of offering the services of his team to get the “this legislation right”, despite developments in other countries. For instance, U.K.’s Investigatory Powers Actof 2016 (referred to as the Snooper’s Charter) prompted the UN High Commissioner for Human Rights to comment that it “constituted one of the most sweeping mass surveillance regimes in the world”. As it is with the U.K., most countries are strengthening their anti-terrorism laws in the hope of making their citizens safe from threats via international terrorism and organized crime; a factacknowledged by his predecessor as being a concern among officials in Sri Lanka.
There is no doubt whatsoever, that Mr. Emmerson has overstepped the mandate under which he visited Sri Lanka. In doing so he has discredited the expected professionalism of a Special Rapporteur, and possibly embarrassed the UN that engaged him. However, the fact that no statementhave been issued by the Government challenging Mr. Emmerson to answer under what provisions of the mandate of a Special Rapporteur on torture he has expressed opinions and comments regarding matters outside his mandate, is deeply regretted.
The material presented above clearly demonstrates that Mr. Emmerson has not only acted withoutthe “discretion’required when he held a highly publicized press briefing at which he resorted to threats and extremely condemnatory language, but that healso exceeded the mandate given to Special Rapporteurs. Consequently, he has violated the mandate on both counts. How the UN is likely to respond when General Assembly mandates are ignored, is up to the UN. As for this Government, the compulsion to stay “engaged” with the UN no matter the cost and humiliation to it and the nation, seems to be an overriding factor. Thus far Sri Lanka has failed to bring to the attention of the UN in a measured and professional manner thatits officials have overstepped their boundaries; a failure that has robbed the dignity of the People of Sri Lanka.
A word of caution for the future. The opinion of the UN Committee Report on Torture (February 200, para 18) states that in countries that have devolved police powers to peripheral units,the Center has little or no control over issues such as torture. Mr. Emmersonhas failed to warn Sri Lanka of such possibilities in the event Police Powers are devolved to Provincial Councils, where the Head of Police in the Province in under the control and is responsible to the Chief Minister of the Province.Therefore, the Government should adopt appropriate measures to retain control if torture is to be prevented.
Article 1 of the Convention against Torture that defines what “torture” means, concludes with the following: “It (torture) does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. The disingenuous character of this exclusion is made clear in that while it permits Governments to be “concerned” with torture in Sri Lanka, it gives those very Governments the license to inflict “severe pain or suffering, whether physical or mental…” on hundreds of thousands of innocent people through sanctions.