Photo courtesy of Twitter

In the name of counter-terrorism countries enact repressive laws that restrict human rights. They claim these laws will make us safer. Yet, contrary to claims of increasing national security, the tendency of many counter-terrorism initiatives to target, discriminate, demonize and marginalize certain communities, such as Tamils as well as Muslims lately in Sri Lanka has undermined social cohesion and created social instability. While visible erosions of human rights protections and state accountability mechanisms are documented, the insidious erosions that have had the same effect have largely gone unnoticed and undocumented.

In a recent journal article, Fionnuala Ni¢ Aola¢in, the UN Special Rapporteur on Countering Terrorism while Protecting Human Rights, has meticulously documented the evolution of this process within the global counter-terrorism architecture. Ni¢ Aola¢in illustrates that the process of norm creation within the global counter-terrorism architecture is increasingly based on ‘soft law’, i.e. guidelines, standards produced by entities such as task forces or practices, that do not create enforceable rights and obligations but nevertheless produce certain legal effects. These ‘human rights-deficient’ soft laws are thereafter adopted by countries to circumvent/override/avoid the application of human rights standards and scrutiny of counter terrorism measures at the national level. I use Ni¢ Aola¢in’s analytical framework to illustrate the evolution of this process in Sri Lanka.

Terror, terror, terror is all we see: it is nothing new, it is a continuum

In the past, Tamils, and following the Easter attacks the Muslims, have been securitized and viewed as potential national security threats. The militarization of Tamil majority areas, such as the North can be attributed to this. During the first Rajapaksa regime, even activities of Tamil political parties were deemed dangerous and dependent on the approval of the then Secretary Defence who is the current President. For instance, on June 16, 2011, a meeting of the Tamil National Alliance (TNA) held in Jaffna was attacked by a group of army officers. In response to reports of the attack, Gotabaya Rajapaksa stated that he had received a letter from the leader of the TNA seeking assistance for his party to engage in political activity in the Northern and Eastern Provinces. While he was in the process of making the necessary arrangements to meet the TNA’s request, according to him, a group of TNA MPs who sought to undermine the TNA leader’s agreement with the government held an ‘unauthorized’ meeting in Jaffna with the aim of derailing the national reconciliation process.

The government’s perception of threats includes dissent and criticism. This is demonstrated by the Parliamentary Sectoral Oversight Committee on National Security (hereinafter the Sectoral Oversight Committee), which claims that “from a defence perspective, it is important to prevent the circulation of information and news against the state”.

Insidious pathways to altering facts

The various entities created within the global counter-terrorism architecture to aid in the soft-law making process are also part of creating narratives that reshape and recreate common understandings and legal definitions. A similar phenomenon can be witnessed in Sri Lanka whereby concepts without legal definitions are created, and based on these altered norms and processes, arbitrary and repressive state action that violates rights is normalized. Ni¢ Aola¢in explains that the narrative building takes place through “cross-fertilization, cross-referencing, message duplication and recurrent invocations of the same rules, formulated in processes that are non-transparent and non-accessible”.

The use of this strategy in Sri Lanka becomes evident when the reports and recommendations of certain entities are observed.  The Sectoral Oversight Committee is one such entity. The Committee through its report on the Easter Terror attacks duplicated, platformed and amplified Islamophobic messages. Despite the Committee’s declaration it would not use terms such as ‘Islamic terrorism’ or ‘Muslim terrorism’, it asserts that “Islamic values can be a threat to the Sri Lankan nationality, inter-ethnic harmony and the national security”. Such messages, which perpetuate the notion of the existence of an ever-present threat to Sri Lanka from Islam, set the stage for future repressive legal interventions by the state.

The ‘extremism’ label is however not bestowed upon Buddhist monks and ethnocentric Sinhala Buddhist groups affiliated to the current regime that incite violence against Muslims. The anti-Muslim bias is evident in the Sectoral Oversight Committee’s description of organized anti-Muslim violence only as “challenging events such as clashes of communal nature”. Extremism is hence interpreted subjectively by state entities to suit political needs.

According to the Committee, civil society too can become a threat to national security by being “controlled through terrorist financing”. Like in many countries, in Sri Lanka too terror financing law is weaponized against civil society. In early 2020, at the behest of the Financial Intelligence Unit of the Central Bank of Sri Lanka, the Terrorism Investigation Division summoned several civil society organisations in the North and East to Colombo for inquiry, supposedly regarding remittances they had received to support their work. These funds were suspected of originating from sources with links to terror groups. To date, no evidence of wrong-doing by the organisations has been found.

The Presidential Commission of Inquiry (PCoI) on Easter Sunday Attacks is another entity that has played a critical role in the current regime’s narrative building process to justify repressive measures in the name of counter-terrorism. Witnesses who were summoned to appear before the Commission supported the Commission’s seemingly unofficial mandate to enable the state’s construction of perpetual security threats to justify the expansion of the powers of the security apparatus. Deputy Inspector General (DIG) of Police Ajith Rohana Magistrate for example told the Commission that DIGs should be given the power to issue detention orders rather than a judge, because a judge “who operates in an area where terrorism or religious extremism is rife is somewhat unsafe. Pressure can be exerted on the Magistrate. But since the investigators are trained, armed and are in camps they have no such worries”. The police advocating the curtailment of judicial powers that are critical to prevent the abuse of state powers, in the name of national security, should be considered a brazen attempt to undermine the powers of the judiciary. Yet, it caused no outrage and was normalized through Commission hearings.

Amorphous unmaking of the law and denial of due process

Historically, countering terrorism has been used to justify the creation of several informal rules and processes with no legal basis. The military administered these rules in the conflict-affected areas during the 30 year armed conflict. The rules were known to the local population, but most often unknown to those living outside these areas. For instance, when the A9 highway from the south to the north of the country was closed, people in the Jaffna peninsula had to register motorbikes and even telephones with the military as part of the military’s surveillance of the population. Following the end of the armed conflict in 2009, those deemed former LTTE members and sent to government run rehabilitation centers were subjected to the process of ‘signing in’ at army camps and military run ‘civil affairs offices’ following their release.

These unwritten rules and informal processes were applied at the expense of laws. While the creation and application of informal rules and processes are not particular to the Rajapaksa regime, they began to attain formal status during the first Rajapaksa regime. During the second Rajapaksa regime, this practice continues, albeit in different forms.

Other than well-documented violations that have been enabled by the PTA since its enactment, over time, additional practices that exacerbate the denial of due process have come into being. Persons who are remanded in judicial custody are produced before the magistrate every two weeks. After the investigating authorities refer the case file to the Attorney General’s Department (AGD) for the decision whether or not to indict, it can take months or even years for the decision to be made. During this period, the person has to be produced before the Magistrate every fortnight.

Producing a person before the magistrate is imperative to ensure their well-being while in custody, particularly given their protracted detention. However, in the past this protection was sometimes denied to persons detained under the PTA because when the case file was sent to the AGD, the judge would sometimes no-date the case, (i.e. no next date is given). At present, on the basis of COVID-19 regulations, many cases in which the files have been sent to AGD are being no-dated, with the magistrate ordering the person to be produced in court only when the directions of the AG are received. If this becomes common practice it can further undermine the due process rights of persons detained under the PTA. It should be noted that according to the statistics of the Department of Prisons, there are 85 persons held in remand for offences related to the LTTE and 205 persons in remand for offences related to the Easter attacks as at October 28, 2021. Of these, there are 14 persons who have been in remand for more than ten years, and 10 persons in remand for five to ten years.

Rights busting triad: conflation of radicalization, violent extremism and terrorism

Globally, terrorism, violent extremism and radicalisation, all terms with no agreed legal definitions, are being conflated and instrumentalized by countries to justify arbitrary and abusive state action. In Sri Lanka, post-Easter attacks, these terms have entered the lexicon of the security apparatus, thereby enabling the creation of legally undefined and uncodified nebulous offences, which are used to justify arbitrary state action that violates human rights.

Despite their commonplace usage, there is as yet no agreement on what constitutes extremist ideas, how a person holding such ideas becomes radicalized and when that person becomes a threat to society. Many countries however arrest persons not based on acts they commit but on what the state infers persons believe; these beliefs are considered deviant, dangerous and a threat to national security by the state and are equated with being radicalized. The supposed radicalization is deemed adequate to arrest the person under anti-terrorism laws.

Certain members of the Tamil have long been viewed as more of a threat to national security than others and at risk of being detained on spurious justifications. Tamils, such as former combatants, or certain acts, like memorialization, are considered deviant and dangerous. Since the current government denies enforced disappearances took place, protests and demands for justice by the families of the disappeared are also deemed deviant and a threat to national security. They are hence subject to both formal (court orders banning protests) and informal (intelligence officers surveilling protestors and phoning them to warn them against protesting) attempts to crush them. This is an illustration of subjective factors and the biases of the person with decision-making power driving what is considered deviant and dangerous.

Due to the lack of a definition of terrorism in the PTA, decision making regarding what constitutes a terror offence has always been based on subjective rather than objective standards. In the absence of a definition of terrorism, the PTA contains offences that exist in other legislation, to which the PTA makes reference. For example, Sections 2(1) (a) and 2 (1)(b) state that an act that causes of the death of a specified person which would be punishable with death under the Penal Code constitutes an offence under the PTA. The case of the detention of poet Ahnaf Jazeem under the Prevention of Terrorism Act (PTA) for nearly two years for allegedly spreading extremism through his poems is illustrative of this. Jazeem was recently indicted though the poems show no indication of elements that constitute incitement to violence or terrorism.

Radicalized by the state

Experts, such as John Horgan maintain that the evolution of a person to a point where s/he commits acts of violence is “a complex process, which depends on a lot of circumstances, luck, and ultimately a person’s unpredictable ability to make specific choices”. Ni Aolain points out that, “Human rights-deficient counter-terrorism practices grounded in soft-law norms result in sustained human rights violations across the globe and have been identified as a substantial factor conducive to the production of violence and extremism at the national level”.

The Sri Lankan experience substantiates these conclusions. For decades, boys have become adults in prison. In the past they were Tamils. Muslims have now joined their ranks. Recent examples include young men who have been detained for nearly two years for acts that would not constitute terrorism. There are teenage boys who were taken by male relatives to a religious camp run by Zahran where they spent a couple of days and were thereafter arrested and detained for nearly two years. There are young men who were arrested for possessing decorative knives, or for an emotional rant in a WhatsApp group that contained words which, though have violent connotations, are used in everyday conversation by people without any intent whatsoever of engaging in violence, but when taken out of context could be viewed as deviant. How would imprisonment shape these young men’s trust in the state? How will they feel about their detention being extended by another two years in the name of rehabilitation?

Young men being radicalized by the state as a result of abusive treatment by the state is not a new phenomenon in Sri Lanka. The abuses to which young Tamil men were subjected by the state acted as a push factor in their path to the use of violence. The state assumed the use of violence would prevent persons resorting to violence. To the contrary, it drove persons to join armed groups to escape or avenge state violence and free the community from it. Likewise, the state through its abusive action against young Muslim men is creating an environment in which they might feel the only option to safeguard themselves and their communities is to use violence against the state.

Responsibility of the international community

In addition to the role of the government of Sri Lanka, the role of the international community and the United Nations in enabling counter-terrorism measures initiated by the government requires scrutiny, as they provide “well-funded technical assistance to states in the implementation of soft counter-terrorism standards”.

Although the PTA demonstrates the “weakness of the human-rights footprint” in the Sri Lankan counter terrorism framework, the international community has continued to provide “technical assistance and capacity-building” as substitutes for actual change in the hope of mitigating the adverse impact of counter-terror measures. An example is the provision of training to defence lawyers on how to conduct PTA trials according to international standards. Nonetheless, the question how lawyers will be able to ensure that international standards are followed when the PTA itself does not adhere to international standards, that too in a criminal justice system increasingly averse to international standards, remains.

These interventions are attractive to the government because, as Ni¢ Aola¢in’s describes, “there is a strong articulation of the ‘non-legal’ character of the products involved, often expressly denying any role (and intent) in the creation of legal rules”. Hence, the government likely views them as benign interventions that help keep the international community and the United Nations at bay. Yet, as Ni¢ Aola¢in demonstrates, these “informal standards and practices do affect international legal norms and regimes” and entrench and normalize abusive practices that undermine human rights norms and violate human rights.