Photo courtesy GlobalPost. Stephen Hird/Reuters.
In January 2012 I traveled to Sri Lanka with a group of fellow students from the University Virginia School of Law. We wanted to learn about legal issues in other countries, and we arrived in Sri Lanka eager to hear views from government officials, NGO workers, and local citizens. I chose to focus on arbitrary detention in a number of settings including the internment of IDPs from May to December 2009, the rehabilitation of former LTTE members, and the labyrinth of Sri Lanka’s prison system, including many who have disappeared while in custody or are being held without charge. The following is a brief summary of the testimony gathered from nearly three weeks of interviews in Sri Lanka. My interviews took place primarily in Colombo and the Vanni. A more in-depth exploration of arbitrary detention in Sri Lanka based on these interviews, including a substantial examination of Sri Lanka’s obligations under Article 9 of the International Covenant on Civil and Political Rights, will be published in May 2012. Please contact me if you wish to be notified when the final paper is published or if you would like to be interviewed on this topic.
The first type of detention I looked at was the internment of IDPs from May 2009 to December 2009, immediately following the war. This form of detention has received a fair amount of international coverage, but beginning in December 2009 most of the IDPs were allowed to move about more freely and attention to this issue receded. An argument could be made, however, that the IDPs are entitled to some type of compensation for the time they were detained if such detention was in violation of International Covenant on Civil and Political Rights (ICCPR) Article 9, as Article 9 states, “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” The information below came from interviews with IDPs who were held against their will in the IDP camps from May to December 2009. Seven of the interviewees are still living in Menik Farm, one of the IDP camps, because of land issues that have prevented their resettlement. The rest were released in December 2009 and have moved in with family members or returned to their home villages.
For the most part the stories of life in the IDP camps reiterated the reports I had read before coming to Sri Lanka. The IDPs, who were mostly Tamil civilians from the North, reported feeling like they were persons of interest and that the Army was there to guard them rather than protect them. The story of one middle-aged woman, now returned to her home in Mannar district, serves as a typical example. This woman had no affiliation with the LTTE, yet she still suffered degrading treatment when she first arrived at the IDP camp after fleeing the conflict zone. Upon arriving in the camp she and the other IDPs were placed under close surveillance while the Army questioned people and attempted to screen out LTTE members – she was subjected to a strip search and was forced to go to the bathroom in front of the Army men, as they would not allow the IDPs to leave the presence of the guards even for these private acts. She began crying while telling this part of her story, saying that she felt shame because of this degrading treatment. She reported that the conditions in Menik Farm, the camp where she ended up, were initially very bad – the camp was overcrowded, she had to wait in line for hours to receive water, and there was sand mixed in with the rice they were served.
Even as life began to settle into routine at Menik Farm, she still felt that she and the other IDPs were under suspicion. She was not allowed to visit with her mother, who was held in a different section of the camp across the street, but she snuck out to see her mother even though she said she would have been beaten if she had been caught. She reported being interrogated repeatedly while in Menik Farm, saying that every family was questioned at least twice per month during the first six months at Menik Farm. She also said that there were daily head counts to make sure no one had escaped. The interrogations and close surveillance made her feel like she was under arrest, and that the camp was not created for her benefit or protection. She reported knowing several people who had tried to escape from Menik Farm during those first six months, by climbing the barbed wire or burning the entrance checkpoints, but that those who were caught doing so were severely beaten. During this time she applied to go live with relatives, but said her petition was denied until the general release in December 2009. The only people she was aware of who were able to leave the camp between May and December were the elderly or expecting mothers. When she was released in December 2009, she received some aid from humanitarian organizations, but nothing from the government – a fact that she says hinders her trust and reconciliation with the government to this day. She said that no matter what the government did now to try to win her trust, she could not give it because of how she was treated in Menik Farm.
Other stories from IDPs on the internment period between May and December 2009 echoed the sentiment of feeling trapped and under suspicion by the government. During the initial period of internment from May to December 2009, many reported difficulty in leaving the camp, even for medical emergencies. One woman was allowed to accompany her child to the hospital, but said that they were under a police escort the entire time, had to register multiple times during the journey, and were forced to leave their ID cards as collateral to make sure they returned to the camp. One man reported that he knew several people who had died while in Menik Farm because their illnesses were not considered “serious enough” to warrant a trip to the hospital. In addition, the inability to move freely in and out of the camp essentially precluded employment, and also made it very difficult to locate family members following the war or reestablish community connections. This calls into question the government’s claims that the IDP camps were set up as humanitarian measures, as it is difficult to imagine a justification under a humanitarian framework for preventing people from working or reuniting with their families. It was also reported that if someone died in the camp, the body would be removed by camp authorities, who would bury it without allowing the family to leave the camp in order to hold a funeral. These conditions caused one man to summarize the internment period by saying, “Even in prison you have some freedom, but here we did not even have that.”
Other IDPs again reported substandard living conditions in the camps, including four families living in a 10 foot square room, one toilet being used by up to 60 people, and lines for drinking water that sometimes were as long as 2 km. Petty theft and rape of young girls, by both the Army and camp residents, remain problems even now for those still living in Menik Farm, and the current residents expressed concern that life in the camps was destroying their culture and morality. Furthermore, it was reported that when some members of Menik Farm met with workers from an Indian NGO to discuss the camp conditions, the drinking water in the camp was shut off for five days afterwards – with the camp authorities explicitly saying that the water was withheld as punishment for talking to the NGO.
These accounts deserve attention. Even though many of the 300,000 IDPs have since been released from the camps, their forced internment from May to December 2009 and degrading treatment they suffered there should be brought to the attention of the international community. This internment, particularly the harsh conditions and extreme surveillance, was not justified as necessary to national security, and IDPs who were detained deserve some sort of remedy for this violation of their rights. The government should also be sharply criticized for this policy, and further investigation should be conducted into the IDPs claims that the internment was a cover for maintaining control over the Tamil population. Furthermore, some IDPs are still living in Menik Farm, and their concerns about rape in the camps and the government-created obstacles to resettlement on their lands should be addressed.
Immediately after the war ended in May 2009, the government began announcing in the IDP camps that anyone who had spent “even a minute” with the LTTE should surrender themselves to the Army. Fearing that worse would happen to them if they refused to surrender and were found out later, 11,982 Tamils surrendered. These people were then separated from the rest of the IDPs in the camps and, after a few days of screening, given five minutes to gather their belongings before being sent to rehabilitation facilities. Although the Sri Lankan government has touted its rehabilitation program as an example of its mercy to the LTTE, the international community has failed to question the true motives of the government. Interviews with Tamils who completed the rehabilitation program show that the government propaganda surrounding rehabilitation does not accurately portray the program and its effects on the Tamil community.
To fully understand the story of rehabilitation, it is necessary to first see the picture the government paints. While I was in Sri Lanka, I met with the Commissioner General for Rehabilitation, a Psychologist who helped design the program, the Ministry of Defense, and visited Poontottem Rehabilitation Centre. They all told essentially the same story – the rehabilitation program was nothing but successful, and that “beneficiaries” from the program (as the surrenderees are called) had all chosen to go willingly and none wanted to leave while there. The government described categorization and screening as efficient and thorough – with those who had been forcibly recruited or had only tangential involvement being released very quickly, and explained that beneficiaries spent most of their time completing various vocational trainings that were intended to give them a fresh start after release. Although the beneficiaries did not have access to legal counsel at any point during the process, I was told that counsel was not needed since no one wanted to challenge their position in rehabilitation or leave. I received the same answer when I asked about judicial review or a process for complaints. I was also told that interrogations in rehabilitation were very infrequent, requiring a special court order before they could take place. Although a full list of people in rehabilitation was never published, I was told that the centers made every effort to contact family members and any relative who wanted to inquire about the status of a person could do so quite easily.
The bright vision painted by the government was a far cry from the reports I heard from people who had gone through rehabilitation. I met with a total of twelve individuals who had participated in the rehabilitation program. The first concerning element was the lack of correlation between time spent with the LTTE and the time assigned to rehabilitation. Some young people who were forcibly recruited and spent only a few days or months with the LTTE were forced to be in rehabilitation for the maximum stay. For example, one man had been forcibly recruited and acted as a watchman for ten days for the LTTE in 2007 before bargaining his release, yet he was in rehabilitation from May 2009 to August 2011. Another man was forced to do just twenty days of labor for the LTTE at the very end of the war, yet the government confined him in rehabilitation from May 2009 until July 2011. There were several other stories of individuals who had no field participation, but had been forced to work for a few months in the kitchen or building bunkers who then had to spend years in rehabilitation. These accounts seem directly contradictory to the government’s claims of effective categorization and quick release for those who had minimal involvement or were forcibly recruited.
Although in some post-conflict settings rehabilitation for former soldiers may be necessary to deal with the trauma of war and “de-radicalize” the patterns of violence they learned, rehabilitation seems inappropriate for those who had such minimal involvement and no history of violence or willing participation in the LTTE movement. The number of people in each of the government’s internal categories for rehabilitation confirm that the majority of people who went through rehabilitation had been classified as having no involvement in operations or attacks. It is difficult to imagine that the government would be lenient in categorizing, yet by the government’s own numbers only 1,351 of the surrenderees were considered leadership or members who took part extensively in operations or attacks. In contrast, over 8,000 surrenderees were classified as either forcibly used or not having taken part in any LTTE operations. It is difficult to see why these citizens, who by the government’s own classification had very little connection to the LTTE, deserved to be separated from their families and undergo a full rehabilitation program for months or years. Since the first group of “beneficiaries” (or surrenderees, as I will call them) was not released until October 2010, it appears that those even with the most minimal and forced involvement were detained in rehabilitation from at least May 2009 until October 2010.
Despite the government’s claims that the surrenderees were grateful for the rehabilitation, the surrenderees’ descriptions of that time show little differentiation between the rehabilitation setting and formal detention. First, no surrenderee that I spoke with was aware that they had any choice about being in rehabilitation, discrediting the government’s claims that everyone who entered rehabilitation did so voluntarily. While the government assured me that every surrenderee had signed the proper consent forms, no one that I spoke with remembers signing anything. The surrenderees reported that several people had tried to escape the rehabilitation centers, but that these were either removed (presumably to a formal detention setting) or beaten. Although rumors began to circulate after about six months that you could go before a judge instead of being in rehabilitation, the surrenderees viewed this option as simply a way for the government to take money from their families, as they were told that appearing before a judge would cost about 1-2 lakhs (a lakh is about $8,700 USD) and would probably be simply rubberstamped at the court and sent back to rehabilitation anyways. The surrenderees also reported that they were interrogated every fifteen days, and many reported being beaten during interrogations in rehabilitation. The government conceded that information from these interrogations was sometimes used to remove people from rehabilitation and place them in formal custody, further undercutting the government’s picture of rehabilitation as an amnesty tool. Most surrenderees felt that they were being closely watched, and that feared that they could be sent to prison at any time from rehabilitation, so most chose to censor their speech and tried to keep as low profile as possible during their time in rehabilitation.
One group of surrenderees laughed when I told them the government claimed that they wanted to be in rehabilitation, saying that they had wanted to be with their families not wasting time sitting in a center. Some referred to it as a very dark and painful time, saying that while maybe some had benefited from being in rehabilitation, none of them had personally found it to be a transformative or useful experience and that it was difficult to be away from their families. They also reported that the trainings were not as frequent as the government claimed, as only four of the twelve individuals I spoke with had completed a training program in rehabilitation, and even these were often very short courses lasting only a few weeks. No one reported any of these trainings leading to actual employment afterwards, and many have struggled to earn money since being released. One girl, who had completed a training in sewing, was told that she would receive a sewing machine from the government after her release, but it was never delivered.
Although the rehabilitation officials claimed that most of the beneficiaries’ time was spent in trainings, the numbers also do not support this – as there were only 10,154 total participants in the vocational programs out of 11,982 surrenderees. The total participant number includes people who took part in more than one training, so if someone did three trainings they would have been counted three times in the 10,154 total. This means that by the government’s own numbers, on average each surrenderee participated in less than one training. Since the government acknowledges that many of the trainings lasted only a few weeks, or at most three to six months, if each person is doing only one or maybe no trainings, one wonders what the surrenderees spent all of their time doing in rehabilitation. Their answers to this are perhaps not surprising – surrenderees I spoke with reported doing manual labor such as clearing jungle or working in gardens for the majority of the day. Some created handicrafts, which they said the government sold along with the produce from the gardens where they worked. They also reported that at the center a group of twenty surrenderees would be assigned each day to doing all of the cooking for the center. Some women were also sent to garment factories to work, but they were not fairly compensated for this (5000 rupees per month, which barely covered the living expenses they had during that time) and also reported sexual harassment during their time at the factory. The surrenderees said that counseling was only offered on Saturdays at the rehabilitation centers, and that during the week most of the time was either spent working or waiting around for the next interrogation.
Finally, when the surrenderees were eventually released, they were given exit forms in Sinhala (which very few could read) and told that they would have to check in regularly with the military in their home village. Many reported harassment from the Army, including frequent interrogations and home visits, which intimidate the community and surrenderee’s family. Many expressed concern over the home visits, saying they do not feel safe leaving their family, especially mothers or sisters, alone if the Army might show up at any time. Limitations on travel continue, which impacts employment opportunities. This on-going suspicion, coupled with the apparent lack of substance to the rehabilitation program (with reports on such limited training, counseling, etc), raises concerns that rehabilitation is being used as a cover for prolonged detention.
These issues, including the frequency of interrogations, the wide swath of low-ranking or forced LTTE recruits kept in rehabilitation, the frequent transfers between rehabilitation and formal detention, and the lack of monitoring of the rehabilitation programs by either the Sri Lanka courts or outside observers raises concerns that the primary purpose of rehabilitation was not altruistic as the government claims. Some activists believe it was used to maintain tight control over a population that the government wanted easily accessible for questioning. Some also believe that it has been used to “make an example” of those associated with the LTTE and remind them how complete the government’s control is over them now, a threat that impacts the surrenderees’ comfort with open expression of political views or other opinions. Regardless, it is difficult to see how this program of rehabilitation, especially when applied to forced LTTE recruits and Tamil citizens with very minimal involvement, has brought about any form of reconciliation or built trust between the government and the North.
3. Surrenderees in the Prison System and Disappearances from Custody
Another topic that I touched on briefly during my interviews was the on-going problem of people being detained without charge in prisons such as Boosa and reports of disappearances. On disappearances, I met with people related to two cases in particular. Both were last seen in military custody (a 15 year old girl who was seen with the surrenderees right before they went to rehabilitation and a husband who was last reported as being a rehabilitation center in Vavuniya before being transferred out to a formal prison). Both cases had witnesses, including a letter from a fellow surrenderee in Vavuniya telling the wife that her husband had been taken from rehab by a government intelligence group (CID), but in both cases the witnesses are too afraid to testify in court, which would be necessary to start a formal inquiry. I made inquiries with the government for these families, but, although the government initially promised to help, they have not provided any information to date.
Lawyers in Colombo report that people getting “lost” in the detention system is common. The government has restricted access of lawyers in all of the prisons, requiring them to get advance permission and putting a guard in the meetings to prevent confidentiality. Prisoners are also frequently transferred without notice to the attorneys or the family. One attorney group reported that on average they receive permission to visit only about half of the clients they request, with the other half being either flatly denied or the government responding that the person requested is no longer at that detention facility. Most of these prisoners are surrenderees who were either sent immediately to prison instead of rehabilitation or were transferred from rehabilitation. They have not been charged with a crime, even though most have been in detention since the war ended in May 2009, and their continued arrest is based only on a rubberstamp given by a Magistrate who visits the prison each month and re-approves all detentions. That Magistrate is not required to give any reason for the re-approval, and his power to release or set a bail is severely curbed by the Prevention of Terrorism Act, which gives most of the discretion on these matters to Executive officials such as the Attorney General, the Defense Minister, and the High Court.
Although a fundamental rights petition could be filed to challenge the detention, most detainees are too afraid to do so. They are afraid that if they challenge the detention, the only result will be expediting their indictment. The attorneys I met with, who have 300 open cases of prolonged detention of surrenderees without charge, were not optimistic that filing a fundamental rights petition would result in actual release in most cases. They believed the court would not be fair and would put too much weight on fabricated government evidence or confessions that were obtained through torture (confessions are allowed as evidence under the PTA, a departure from the standard Sri Lankan prohibition on the use of confessions during a hearing). Those who have had expedited indictments have typically received life sentences even for minor involvement. The attorneys stressed that the vast majority of their cases are not high level LTTE, most of whom bargained with the government and never spent time in either rehabilitation or detention, but instead low level LTTE members. They believe people in detention were not the ones giving orders, but instead the ones simply carrying them out – which raises questions of the appropriateness of legal action in these cases. The attorneys believed the government was simply making an example out of these low-level members – detaining those who had minor involvement in order to send a message to the LTTE diaspora.
This system of punishment seems counterproductive to reconciliation. Many of the ex-cadres and citizens in the North that I spoke were not naive about the nature of the LTTE. Many had encountered the LTTE’s forced conscription policy, either personally or through one of their family members, and this has left some deep wounds in the community. In this aspect, the citizens of the North and the government might be aligned – punishment for the highest leadership of the LTTE, including those who committed war crimes under international definitions, may provide a sense of justice for those both in the North and the South. Punishing low-level LTTE recruits who had limited involvement or were forced to carry out orders under the threat of death, however, is only going to further alienate the North. When the government detains low-level cadres while reintegrating some of the LTTE’s most prominent leadership, it serves as a double betrayal – first, by the LTTE who forced civilians to fight for them, and second, by the government who is punishing those very same civilians with lengthy detentions and sham trials. A general amnesty for political prisoners and LTTE members who simply carried out orders rather than planned attacks might serve as a much better bridge to reconciliation and unity with the North than any rehabilitation program ever could.
Without adequate records or monitoring by independent observers, the surrenderees in detention are vulnerable such abuses and have little hope of obtaining a fair trial or justice. In addition to the looming prospect of a life sentence, there have also been reports of torture and, as the cases I mentioned at the opening exemplify, the restrictions on contact and lack of notice about transfers opens the detainees up to torture, disappearance, and extrajudicial killing.
Everyone I spoke with, both in the North and the South, wants to see lasting peace and true reconciliation. My interviews on the current detention policies, however, suggest that such reconciliation is simply not going to come easily with the present system of rehabilitation and detention. The program of rehabilitation and on-going detention without charge of surrenderees continues to breed distrust among Tamil populations in the North, and many are still struggling to rebuild their lives after they were severely disrupted by the IDP internment. Opening up the detention system to independent monitoring and full accountability, including an honest investigation with possibility of compensation for those wronged by internment and rehabilitation, may go a long ways to restoring trust between the citizens of the North and the Sri Lankan government.
 The views herein are my personal opinions or opinions recounted to me by individuals in Sri Lanka. They should not to be attributed to the University of Virginia.
 International Covenant on Civil and Political Rights, art. 9(5), Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171. “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Id. at art. 9(1). Sri Lanka acceded to the ICCPR on June 11, 1980. While Sri Lanka claimed derogation from Article 9(2) and 9(3) (relating to notice of charges and appearance before the judiciary) for the period from May 30, 2000 to June 9, 2010, the properness of this derogation requires further examination.
 As provided by the Ministry of Defense, the classifications used on the surrenderees were:
A – Senior LTTE Leaders – Legal actions to be taken
B - Other LTTE Leaders – Legal actions to be taken
C - LTTE members extensively took part in operations / attacks – Legal actions to be taken
Combined total: 1,351 individuals (889 currently held, but not yet charged, in formal detention)
D - General LTTE members (military wing) - Long term rehabilitation
E – General LTTE members (not military wing) – Long term rehabilitation
Combined total: 2,325 individuals (about 678 of these are still in rehabilitation under court order, but have not been charged with any crimes)
F – Members underwent military training, but did not take part in any operations / attacks – Short term rehabilitation
Total: 6,090 individuals (this “short-term” rehabilitation appears to have been typically one to two years, with many serving the maximum time allowed without a court order (May 2009-October 2011).
G – Other members forcibly used by the LTTE – to be immediately released
Total: 2,216 individuals (it seems that “immediate” was at least one year in rehabilitation, as the first groups of beneficiaries reported for release was not until October 2010 , see note xx, http://groundviews.org/2011/10/28/turning-former-ltte-personnel-into-sri-lankan-citizens/#_edn20).
 Many of these high level officials are now working for the government, such as Vinayagamoorthy Muralitharan (Karuna) – now a Member of Parliament for the United People’s Freedom Alliance, Sivanesathurai Chandrakandan (Pillayan) – now Chief Minister Eastern Province, and Kumaran Padmanathan (KP) – who is now collaborating with the government on NGO projects, including reportedly running a children’s home. While the government should not be faulted for choosing to “forgive and forget” with these LTTE leaders, such forgiveness seems hypocritical when many other low-level LTTE members remain in detention. If amnesty and full reintegration without criminal proceedings was possible for these three men, who were among the most active planners and highest leadership, it should be possible for all former LTTE.