Too little too late? | Sunday Observer

Too little too late?

‘Too Little Change: Ongoing Torture in Security Operations in Sri Lanka,’ a report published by ‘Freedom from Torture’ (FT) an organisation in the United Kingdom working for over 40 years with people from war torn countries all over the globe points out that, though change could be seen after 2015, there has been too little change where torture is concerned in Sri Lanka.

The report published last month examines medico-legal reports ( reports written by a doctor in the role of a medical expert witness, in legal cases) of 16 Sri Lankans who had sought FT’s independent medico-legal services between April 2016 and August 2018.

While noting that “The Sri Lankan military, police and intelligence services continue to practice torture in a network of torture facilities across Sri Lanka, including unofficial detention centres; the lack of due process reported, and the heavy scarring left on the bodies of victims, suggest that the perpetrators commit torture with impunity and without fear of consequences,” stated the report, calling for the government to make its ‘zero tolerance policy on torture’ a reality.

Due process

It proposed suspending torture accused from their duties, launching investigations and prosecuting those responsible in an impartial manner; creating public awareness on zero tolerance policy and providing information on how survivors could access rehabilitation and accountability to achieve this end.

It also urged the government to ensure anyone arrested is afforded the due process including access to legal representation and independent medical examinations, by releasing detainees unless they are charged and sentenced after a fair trial; and by exclusion of all ‘confessions’ and other evidence obtained through torture.

It also recommended the funding of the Human Rights Commission (HRC) to facilitate effective delivery of its mandate across the country and reaffirming the country’s commitment to promoting reconciliation, accountability and human rights through a renewed HR Council resolution which includes a clear timeline for implementation.

The medico-legal reports belonged to12 men and four women between the ages 17 and 43, who had been detained and tortured between 2015 and 2017 during ‘ongoing security operations’ by the military and special police units for a period of a few days upto six months.

They had been arrested in Colombo as well as in the districts of the Northern Province.

The most prevalent methods of torture had been beating, with all 16 experiencing it. Sexual torture including rape comes second with 13 out of the 16 detainees reporting this form of torture.

All were detained arbitrarily and without the due process and access to legal facilities and had not been presented before a magistrate, the report stated.

Out of the 16 detained, two were released unconditionally, two were released with reporting conditions and two escaped. The majority had been “released from detention after the payment of a bribe, usually paid by a family member,” said the report.

Speaking to the Sunday Observer, Freedom from Torture’s Director of Policy and Advocacy, Steve Crawshaw said that the way forward for Sri Lanka is accountability.

Accountability

“Sri Lanka was in a dark place sometime ago. There was deep fear and terrible crimes were committed. Denial won’t help. It seems that the government is very reluctant to take the country forward. There seems to be no political will. We heard the President saying that the war crimes did not happen. It is not an answer to the crimes that had been committed,” he said.

Though some good measures were taken to serve justice to the war victims throughout the country, such as the establishment of the Office on Missing Persons, strengthening the National Human Rights Commission and becoming a signatory to HR Council resolutions; many important issues are yet to be addressed permitting torture to continue. There seems to be no proper investigation , prosecution and punishment process.

There is no serious will or sufficient enough change. “Tolerance cannot be real if torture is continued,” Crawshaw said.

For the country to go forward in the reconciliation process, international engagement would be important as there are unclear and mixed signals from the government, which moves the country backward. Sri Lanka would have to “have some time-bound markers. Need to take action against those who are directly involved, so far not taken any action against. Prosecute the perpetrators and stop the lawlessness and impunity,” said Crawshaw.

Landmark judgment

Meanwhile, the Supreme Court of the United Kingdom in a landmark judgment last Wednesday (March 6) asserted the role of medical experts in asylum claims by torture survivors.

Hearing an appeal from a Sri Lanka asylum seeker known as ‘KV’ whose appeal for asylum had been dismissed by the Asylum Tribunal ruling it as ‘self-infliction by proxy’ (the infliction of injuries by a third party in order to leave fabricated evidence of torture scarring), and the subsequent ruling of the Court of Appeal, that the medical expert had “trespassed” into the territory of the Asylum Tribunal, the Supreme Court ruled that the lower courts were wrong to override the conclusions of a medical expert when considering forensic evidence of torture in an asylum claim.

Expert medical opinion presented to the tribunal, as evidence of torture, concluded that the physical evidence of torture, mainly comprising scarring from having hot metal rods applied to his skin, was highly consistent with his account.

The Supreme Court ruled that the conclusion of the Court of Appeal was in contravention of the Istanbul Protocol, the internationally recognised standards for documenting torture and ill-treatment endorsed by the United Nations. The Court of Appeal was wrong to conclude that medical experts should limit themselves to documenting the immediate cause of each individual scar without coming to any conclusion about the overall clinical picture and its consistency with the account of torture.

Wake-up call

In a media release, Sonya Sceats, Chief Executive of Freedom from Torture stated that “This judgment by the highest court in Britain is a wake-up call for President Sirisena and others who continue to deny Sri Lanka’s responsibility for war crimes including torture. The Supreme Court has accepted that there was extensive torture by state forces in Sri Lanka in 2009 and noted that evidence of fabricated torture injuries by asylum seekers was almost non-existent”.

“We call on the Sri Lankan government to stop dismissing our voluminous medical evidence of torture in the country, past and present. The government must show it is serious about its ‘zero tolerance’ policy by strengthening prevention mechanisms, investigating and prosecuting perpetrators and delivering on its promise of an internationalised justice process for survivors,” the media release stated.

Three leading organisations with expertise in assessing evidence of torture - Freedom from Torture, the Helen Bamber Foundation and Medical Justice, jointly intervened in the case at the Supreme Court.

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