Response to Michael Roberts’ ‘Turning Former LTTE Personnel into Sri Lankan Citizens?’

Photo courtesy Lankapuvath

Michael Roberts’ recent Groundviews piece on the government’s rehabilitation programme of alleged former LTTE combatants is generally approving of that programme, not only directly but also indirectly in making the kinds of criticisms that actually add to the approbation. Professor Roberts has added his distinguished academic authority to a set of circumstances that perhaps justifies a more discriminating analysis. His uncritical and at times inaccurate and misleading observations therefore require a response, providing also the opportunity to critique, both the policy and legal perspectives involved. In this article I will attempt to remedy the lacunae in my previous piece on this issue, published here[1] in late 2010, which did not discuss the legal dimensions nor use testimonies of persons released from rehabilitation centres[2] to substantiate certain assertions made in that article.

Statistics: Do we know how many persons have been rehabilitated?
In a section titled ‘Numbers’ Roberts discusses the number of persons who were held at rehabilitation centres. He mentions three categories of persons who were sent to rehabilitation centres- those who surrendered voluntarily, those who were identified as former LTTE cadres and those arrested in other parts of the country from 2006-2008, thereby implying that the process of identifying persons as former combatants came to a halt soon after the end of the war. What he fails to note is that more than 6 months following the end of the armed conflict the government continued to identify persons who were perceived to have had some link with the LTTE, who were then sent to rehabilitation centres. For instance, there were numerous reports that persons were separated from their families and taken away during the IDP return process in late 2009. This continued in areas of origin of the IDPs after they returned home. Further, detainees held at centres such as Boosa have been transferred to rehabilitation centres and vice versa. The population at the rehabilitation centres therefore has been fluid.

Since July 2009, when ICRC access to the rehabilitation centres was stopped, no independent agency has visited the centres to undertake protection monitoring, i.e. ascertain whether the rights of the inhabitants were violated in any manner during their detention. Since news reports and articles often mention IOM’s access to rehabilitation centres, with the implication that it constitutes oversight of an international agency, it is important to state that IOM is not a protection agency and only provides support to the re-integration process of alleged ex-combatants. The rehabilitation process was conducted entirely by the Sri Lanka armed forces acting under the authority of the Ministry of Defence. Another point to note is that although the Bureau of the Commissioner-General for Rehabilitation (CGR) comes within the purview of the Ministry of Prison Reforms and Rehabilitation, the decision making authority in relation to releases, determination of the period of detention etc. lie entirely with the Secretary to the Ministry of Defence. Therefore, there is no independent means of verifying the actual total number of persons who have subjected to the rehabilitation process and released. For instance, while certain government reports state that around 1000 remain in rehabilitation, former Attorney-General Mohan Peiris at the Convention Against Torture Committee (CAT) hearings stated that only 869 currently remain in rehabilitation centres.[3]

Surrendee, Detainee, Rehabilitee: Does Terminology Matter?
All persons held at rehabilitation centres have been labelled ‘surrendees’ by the government although many did not surrender but were taken away by the armed forces from IDP camps or were detained at some point during, at the end of, and after the last stages of the armed conflict. Many were also forcibly recruited by the LTTE with some being forced into combat by the group only for a few days or even hours during the final stage of the war.

Until the state of emergency (SOE) and thereby the Emergency Regulations (ER) lapsed on 31 August 2011, ER 22 governed the status of the surrendees. Regulation 22 (2) defined a ‘surrendee’ as anyone who surrendered in relation to an offence under certain laws, such as the Prevention of Terrorism Act. It further required the person to give a written statement that s/he surrendered voluntarily. The government however has labelled not only those who voluntarily surrendered but also those who were arrested as surrendees. Regulation 22 (13) also enabled a court to impose rehabilitation as a sentence upon conviction. This begs the question, under which law did the government subject those who didn’t voluntarily surrender to rehabilitation? The CGR Maj. Gen. Chandana Rajaguru has stated that ‘there is another category of people who had been produced before Courts and had received rehabilitation as the verdict. They are with us, and are around 1,000 in number. We intend to keep them only for one year’.[4] If rehabilitation was imposed by the courts as part of a judicial order then these persons should have been tried and convicted of an offence. To date, trials of around 1000 persons who were captured or surrendered after the end of the armed conflict in May 2009 have not been held and concluded, unless they were held in secret. Therefore, what are the court orders that Maj. Gen. Rajaguru speaks of and under which law were they issued? Maj. Gen. Rajaguru further states they intend to hold these persons for only one year. If a court has made a certain order stipulating the rehabilitation of an individual then how would the Secretary to the Ministry of Defence or the CGR have the authority to determine the period of rehabilitation? Would it not constitute the usurpation of judicial authority?

The screening process: A combatant unless proven otherwise
Senior Legal Advisor to the Cabinet and former Attorney-General Mr. Mohan Peiris stated at the CAT Committee hearings in Geneva on 9 November 2011 that Sri Lanka did not choose to charge persons thought to be LTTE cadres and jail them, but instead chose the restorative justice approach because the former would not have promoted true reconciliation. In response to a CAT Committee member’s query whether the government gave these persons ‘an offer they could not refuse’, Mr. Peiris stated that these persons were asked whether they were willing to submit themselves to rehabilitation and if so were asked to commit their acquiesce to writing. The other option he said for those who didn’t want to undergo rehabilitation, i.e. those who said ‘I don’t want to be rehabilitated- I want to remain a terrorist- charge me, indict me, jail me’, was to be left to the mercy of the criminal justice system. At no point does the former Attorney-General who was in office during the last stages of the war, consider the likelihood that some of those identified as LTTE cadres may have had no formal link with the group while others might have been forcibly recruited for a few days or even a few hours. There might have even have been those who should have been indicted for war crimes instead of being subjected to the rehabilitation process.

Who is a combatant? The ICRC note on ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ recognizes that ‘As with State parties to armed conflicts, non-State parties comprise both fighting forces and supportive segments of the civilian population, such as political and humanitarian wings. The term organized armed group, however, refers exclusively to the armed or military wing of a non-State party: its armed forces in a functional sense.’ It goes on to state that ‘Individuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities, are not members of that group within the meaning of IHL. Instead, they remain civilians assuming support functions, similar to private contractors and civilian employees accompanying State armed forces’. Within this framework those who were part of non-combat divisions and did not directly participate in hostilities would not be considered combatants under international humanitarian law.

The National Action Plan of the ‘National Framework Proposal for Reintegration of Ex-combatants into Civilian Life in Sri Lanka’, drafted by the government through a multi-stakeholder process that was supported by many international agencies, contained a sliding scale that provided a guide to categorizing those who required rehabilitation as opposed to those who should have been subject to prosecution, based on various factors including the period spent with the armed group. Yet, this Plan never received cabinet approval and was not implemented. Instead, the government considered all persons as LTTE cadres and subjected them to rehabilitation. This also means that it is possible there are those who should have been prosecuted but instead have been subjected to rehabilitation. While the intelligence agencies no doubt undertook their own method of screening, it is quite possible that such a process violated the rights of persons held at the rehabilitation centres. For instance, as discussed further in the section below, the screening process continued throughout the duration of the rehabilitation process. This meant that persons who were at the rehabilitation centres had no certainty regarding their legal status, i.e. they did not know whether they were going to be released after rehabilitation or sent to a detention centre. While Roberts lauds the government’s ‘enlightened policy’ the reality is that there is no transparent state policy on rehabilitation process.

Determination of the period of rehabilitation: Indefinite administrative detention?

ER 22 stated that a ‘surrendee’ could be held for a period of twelve months and at the end of this period:

• The person could be released following a review by the Secretary to the Ministry of Defence; or
• The period of rehabilitation could be extended for a period of three months at a time so long as ‘the aggregate period of such extensions shall not exceed a further twelve months’; or
• Three months after the surrendee being assigned to a rehabilitation centre s/he could be investigated to determine if the person committed any offences as stipulated in Emergency Regulation 22 (2) and the person could be charged with an offence.

Therefore, the subjection of an individual to the rehabilitation programme did not mean the person was precluded from being arrested for an offence at any point during the rehabilitation process, i.e. even the day before the expected date of release. Hence, the surrendee had no certainty regarding his/her legal position, i.e. whether s/he might be prosecuted, until the completion of the rehabilitation period. Hence, an individual who was held at a rehabilitation centre for the maximum period of 2 years could, the day prior to his release, be arrested. Until an individual was released from the rehabilitation centre s/he had no clarity or certainty regarding his/her plight. There have been reports of individuals who were identified for release being sent to Boossa detention centre a few days prior to the expected date of release.

The CGR Maj. Gen. Chandana Rajaguru has stated in an interview that ‘people who had come from Puthumatalan started their rehabilitation in October 2009’[5]. Although Puthumathalan was captured by the armed forces in April 2009, with persons suspected of being affiliated to the LTTE taken into custody or asked to surrender, according to Maj.Gen. Rajaguru these persons began the rehabilitation process only in October 2009. From April to October 2009 until they were subjected to rehabilitation, which at the time was governed by ER 22, under which law were these persons held? According to testimonies of those released from rehabilitation centres, none were informed of the laws under which they were being held nor produced in court during this period, which leads one to the conclusion that they were arbitrarily detained contravening not only international laws but also Articles 12 and 13 of the Fundamental Rights Chapter of the Constitution of Sri Lanka.

There have also been instances in which rehabilitees have been transferred from a rehabilitation centre, where the maximum period of detention is 24 months, to a detention centre such as Boossa where persons are held on detention orders issued for a maximum period of 18 months under the PTA, and previously the Emergency Regulations. Transfers from rehabilitation to detention centres usually take place towards the end of the maximum period for which a rehabilitee can be held- 24 months. In some cases persons have been transferred from the rehabilitation centre to a detention centre and thereafter produced before a magistrate and remanded in custody. By transferring a person from a rehabilitation centre to a detention centre or placing the person on remand, the government can hold an individual in administrative detention indefinitely.

The Post-State of Emergency Legal Framework
Following the lapsing of the SOE and thereby the ERs, the government issued new regulations under section 27 of the Prevention of Terrorism Act (PTA), which empowers the Minister of Defence to make regulations under the Act ‘for the purpose of carrying out or giving effect to the principles and provisions of the Act’. Of these the Prevention of Terrorism (Surrendees Care and Rehabilitation) Regulation No.5 of 2011 deals with both adults and children subjected to the rehabilitation process. The lapsed ER 22 has been reproduced in this regulation.

Another regulation issued under the PTA titled Prevention of Terrorism (Extension of Application) Regulation No.3 of 2011 extends until specified dates the application of a number of regulations, including the regulation on the appointment of the CGR, that were made under the state of emergency that prevailed until 30 August 2011. The regulation issued under the PTA states that the specified ERs made under the SOE will continue to be in force notwithstanding the lapsing of the SOE which resulted in the lapsing of emergency regulations made under section 5 of the Public Security Ordinance (PSO). It should be noted that regulations issued under a SOE cannot continue to be in force when the SOE lapses because only the proclamation of a SOE empowers the President to issue ERs. Therefore, in the absence of a SOE emergency regulations cannot be extended or kept in force via ‘normal’ legislation, such as the PTA. Hence, the regulation extending the CGR’s tenure is invalid since the extension of the application of the ER appointing him is ultra vires.

Lack of Procedural Safeguards and Oversight Mechanisms
At no point during the rehabilitation process did surrendees enjoy procedural safeguards; they were not provided with information on the timeframe of rehabilitation or the right to legal representation to contest the lawfulness of the rehabilitation process. Coupled with the lack of oversight mechanisms this places surrendees in a particularly precarious position with their fate decided by one individual- the Secretary to the Ministry of Defence. Heads of various missions, as stated in Roberts’ piece, have undertaken visits to the centres but one can hardly claim that a short tour of the facility conducted by the armed forces by persons who do not speak Tamil who rely entirely on (sometimes questionable) interpretation constitutes keeping ‘a weather eye on the programme’.

Donor Support for the Rehabilitation Process
According to publicly available data, except during the initial stages, donors have not supported rehabilitation centres or activities therein. This was a conscious decision made, albeit reluctantly, after they became aware of the legal ramifications of financially bankrolling centres at which persons were being arbitrarily detained. Instead, they provide financial support to re-integration activities that take place following release from rehabilitation centres. Likewise, as stated earlier, IOM is not involved in the rehabilitation programme but supports re-integration activities.

Vocational Training and Livelihood Needs
Although the government claims it has provided vocational training to all those held in rehabilitation centres, according to released persons only a handful appear to have received any form of training at all. Many stated that of thousands of persons only a limited number, around 20-30, were chosen for each training course at any given time, i.e. training was not provided to all persons held at rehabilitation centres. The most pressing need of those released from rehabilitation centres is livelihood opportunities. Although IOM provides a grant to enable them to kick-start income generation activities, some released persons have experienced delays in accessing these grants while others have utilised the grant to engage in one-off economic activities that do not provide a sustainable income. In other instances, due to lack of guidance and support in the form of market knowledge etc. some have undertaken income generation projects which they are not qualified to run and thereby have incurred losses, most often resulting in the loss of the capital as well. Also, the fixed grant provided by IOM does not cover all costs related to a certain income generation activity, which prevents some from engaging in the activity productively.

Post-Release Monitoring and Surveillance
During the past year it has been reported that those released from the ‘rehabilitation’ centres have been instructed by the local government agent, the Grama Sevaka (GS) to register with the Civil Affairs Office (CAO), which is run by the military, and thereafter report to the Office weekly, fortnightly or monthly, a decision dependent entirely on the area military commander. Some former rehabilitees have reported that during these visits to the CAO they were asked to sign documents that were in Sinhala, a language they don’t understand, and interrogated. They said they were asked the same questions that were posed to them in the rehabilitation centres- of which section/battalion/unit were you a member? Who was your commander? How long were you in the LTTE? Do you know where weapons are hidden? etc. Some who were forcibly recruited by the LTTE lament that these questions only remind them of a period they wish to forget when they are trying to move forward with their lives, while other expresses anger about the constant harassment and suspicion with which they are viewed that they say makes them feel like second class citizens. Post-release monitoring and surveillance are being conducted outside existing legal frameworks, in an ad hoc manner by multiple military/intelligence agencies, that visit homes of former rehabilitees often and interrogate them. Most often the officers/visitors do not identify themselves. Former rehabilitees are given no information on the likely duration of surveillance and reporting and some have been subjected to travel restrictions.

The continued monitoring and harassment by the security services restricts the ability of this population to successfully re-integrate into the community, as they continued to be viewed with suspicion by the community due to their imagined links with the armed forces which their regular visits to COA and/or army camps and constant visits by security agencies to their homes elicit. There were also those who complained that they were unable to engage in income generation activities due to regular visits by the intelligence agencies and/or army to their place of employment, which not surprisingly caused problems at their workplaces, particularly in the case of those who are self-employed and provide services to homes, such as electricians, plumbers and masons.

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I would like to conclude by addressing a question posed by Roberts about the releases conducted with pomp and ceremony by the government. He asks and answers the question thus– ‘how do ex-Tiger fighters and their kinfolk view such moments? The plausible answer is that these ceremonial functions are akin to a graduation ceremony and a momentous point in their life, even conceivably a “transformational” landmark’. The reality is that none of those interviewed appeared to view the graduation ceremony as a transformational landmark. Instead, all felt a sense of relief to be released from what they, at one point, felt would be a never ending ordeal, and reunite with their families. At the same time they also felt trepidation about the future- about their ability to find employment and re-build their lives free from harassment and surveillance in an environment in which they were still viewed as persons who have to be watched and monitored by the state.