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A state’s preference for how it treats its own inhabitant’s results from balancing individual rights against national security. A state will therefore abuse the human rights of its own inhabitants when it believes doing so will promote national security. The most common justification by a State for abusing human rights of its citizens is the interests of national security. Third-world countries such as Sri Lanka never hesitate to use this excuse in matters of human rights violations, in order to avoid admonishment of the international community. It is unfortunate that it is not a herculean task for Sri Lanka to avoid responsibility in such instances as the law of land and practices and procedures within the jurisdiction defend the violators of human rights.
Although the international community has attempted to penetrate International Human Rights Law (IHRL) into the country, Sri Lanka keeps an upper hand as to whether or not to accept the terms of the IHRL. However, in certain instances countries such as Sri Lanka are compelled to recognize and apply IHRL for various reasons. Nevertheless, the procedures adopted when applying IHRL, political will in implementation and attitude towards the IHRL hinder the process of making the state accountable for human rights violations that have happened over the years.
This paper discusses about:
− The reluctance of third world countries in formulation and application of IHRL
− The importance of the same
− The famous ‘Trinco 5’ murders which amounts to a gross violation of human rights
− Failure of state to be accountable for the said human rights violation
− Impediments of IHRL to redress the said violation with the political will to implement IHRL and with the way Sri Lankan law is structured Reluctance of countries for application and formulation of IHRL It is important that many countries around the world conduct IHR litigation for IHRL to be recognized worldwide.
Since IHRL compels states to provide a remedy to victims of gross human rights violations, it is important to be so recognized and practiced. However, most third world countries are reluctant to do so for many reasons. Some countries require that there should be a link between the forum state and the human rights violation. Third world countries such as Sri Lanka considers the allegations of violations of HR to be attempts made by western powers to thwart the emerging development in the country. To demand impartial investigations to gross HR violations by the international community to be an interference in the internal matters of the island and an attack on its sovereignty, growth of the anti-western attitude in Sri Lanka, and push the country closer to countries such as China and Russia, and as an attempt of the west to exert neo-imperial influence in the internal affairs of the country, the change that IHRL makes on the domestic level by permitting direct supranational prosecution, complementarity to domestic prosecutions of certain criminal violations of international human rights law, the fact that international human rights law can change not only the behavior of the accumulated political power of the state in its interstate relations, but also alter the state behavior on grassroot levels such as subsidiary political units and agencies, courts, individuals, corporations, and other non-state actors also make third world countries more reluctant to adhere to IHRL.
Nevertheless, states such as Sri Lanka that are generally reluctant for application of IHRL may not be reluctant, when such law does not require a change in behavior of the State, or because of fear of coercion. Further to that, gaining direct development assistance or other club goods, such as access to trade preferences have compelled states such as Sri Lanka to agree to human rights obligations. Need of IHRL in conflict contexts According to Richard B. Lillich, the courts of a single state cannot provide even a partial solution to the problem of providing redress to victims of gross human rights violations. Lillich has argued that an International Convention for the redress of human rights violations would obligate state parties to enact legislation along those lines. Lillich has also argued that the Customary IHRL, domestic law and relevant foreign laws represent different policies and interests which guide the domestic courts to have best policy in HR litigations. Additionally, in third world countries, there are greater many reasons for the need of IHRL in domestic jurisdictions. IHRL can be used to make states accountable for the violations that have taken place and to redress the victims of such violations. The lack of genuine action and trust with domestic legal bodies to deliver justice to parties affected have led to the increasing calls for international involvement in investigation and actions .
Encapsulation of IHRL in domestic law is therefore vital, in order to move away from the culture of impunity in human rights violations that have been developed in countries such as Sri Lanka during and after the long civil war. The five Sri Lankan Tamil students that could not live to see the end of civil war ‘Trinco 5’ case A culture of impunity in cases of human rights violations has developed in Sri Lanka as proper investigations and prosecutions of human rights violations have not taken place during and after the war. One such case which was not served justice is the famously known “Trinco 5” case. This case is about the murders of five Tamil students in Trincomalee in 2006. On 2nd January 2006, five students, who were only 20 years at the time were allegedly gunned down by the Sri Lankan Special Task Force in the Trincomalee Beach. The government hastily claimed that the group of students were LTTE insurgents who were carrying out a grenade attack.
However, reports state that men who came to the place of the incident in a green three-wheeler threw a hand grenade to the group and drove towards the Army Headquarters. After the explosion, Navy personal have closed the entries and exits to the beach and a military jeep carrying STF members have entered the place of incident and assaulted the students with their weapons. Thereafter, the students have been forced to lie face down and they have been shot in the back of their heads. Although there were many witnesses and other evidence listed in the case before the Magistrate, there was a great reluctance in the part of the witnesses to come forward to give evidence. Dr. Manoharan, a father of one of the deceased has categorically stated that in a phone call to him, his son informed him that they were surrounded by the forces. Dr. Manoharan has also heard the explosion and rushed to the scene, only to be denied access to the scene by the Navy personnel. He has observed the place and seen 20-25 people on the ground facing down. He has noted that Security Forces and their vehicles were in the scene. While he was trying to reach the scene, he has heard cries for help in Tamil which have been followed by gunshots. He has also seen flashes of automatic gunfire aimed at the ground. Dr. Manoharan has clearly observed a high-ranking police officer in a military vehicle who has been in a commanding position at the scene. Dr. Manoharan has thereafter been approached by armed military personnel and been forced to sign a document which stated that his son was an LTTE cadre who was killed in an explosion, which was refused by him. A week after giving evidence at his son’s death inquest, Dr. Manoharan and his family have continuously got death threats. Ultimately, he was forced to leave the country and seek asylum in the UK.
Similarly, many other key witnesses have been threatened, intimidated, murdered and it had been made certain that they don’t turn up to give evidence in court. After extremely reluctant investigations and recommendations of a commissions which was set up to inquire into the violation, a few military personnel were arrested on two occasions, however, they were later discharged and released for want of evidence and for not taking action against them. Analysis Although there were plenty of witnesses and evidence, the investigators and prosecution were unable to secure a conviction in this matter due to reluctance of witnesses to give evidence. It was quite apparent that the witnesses were threatened and intimidated by the security forces that allegedly committed the heinous crime. However, no action was taken against any of the members of the security forces. Further, the high-ranking police officer who was at a commanding position at the scene of crime was never apprehended although more than a reasonable suspicion of his involvement in the murders were apparent and was established by the available evidence. It is important to note that although the government claimed the deceased boys were LTTE insurgents, the deceased were never given an opportunity to prove otherwise. It is widely known that one of the deceased has come down to Sri Lanka for his university vacation from abroad.
The state has thereby blatantly violated all aspects of Article 13 of the Constitution which guarantees fair-trial to every person. Equality before law and equal protection of law and the inherent right to life of these 5 students were also violated by the state. It is pertinent to note that this incident attracted the international human rights spotlight due to the nature of the matter and the aftermath of the highly controversial killings which took place during Sri Lanka’s long civil war. Commissions were appointed to inquire into the crime and many IHRL bodies have raised concerns over the investigations and prosecution of the matter.
Further, representatives of Sri Lankan government also have informed the international community that the Special Task Force was responsible for the killings, unfortunately, to date, no person has been convicted for the gruesome murders committed before plenty of witnesses nor was any victim redressed. Therefore, the non-conviction of these perpetrators appears to be a pathetic excuse to cover up the crime by the government itself. The culture of impunity is developed in Sri Lanka in human rights violations for various reasons such as lack of or delays with prosecutions, lack of independent investigations, deficient victim and witness protection, evidence tampering, concealment and destruction, and political interference in investigation institutions. It is unfortunate to note that, in Sri Lanka, while one government is in power, the alleged human rights violations by the other parties would be investigated and when the other party comes in to power, all such investigations would cease. This trends even continues today. Therefore, it is essential that a third-world country like Sri Lanka has a mechanism to protect its citizens from the State. Since the State is reluctant to take measures to do so when the perpetrators are a body of State, it becomes imperative that there is space for IHRL to intervene and protect the rights of the subjects of Sri Lanka.
However, due to the dualist nature of Sri Lanka, as specified in the landmark judgement of Nallaratnam Sinharasa v. AG in 1995 by Silva J, Sri Lanka has to ratify the international conventions and make enabling domestic legislation in order for the international convention to binding. Although in the recent past, Sri Lanka has ratified and made domestic laws in areas such as enforced disappearances and Victim protections, Sri Lanka has a long way to go when it comes to transparency, accountability, and redressing victims of matters relating to human rights violations. In 2015, a consensus resolution on transitional justice for Sri Lanka was adopted by the Human Rights calling for an accountability mechanism involving international judges, prosecutors, and investigators. However, this resolution has made little progress and no impact on the country as there is no political will to ratify and thereafter make it binding by an enabling legislation.
It is pertinent to note that IHRL should be an essential part of the domestic law of every country, especially in third-world countries. An emphasis is made on third-world countries as third-world countries are prone to violating the human rights of their subjects due to prevailing conflicts in the respective countries. Sri Lanka is one such country where numerous human rights violations have taken place during and after the civil war. Nevertheless, due to various extraneous reasons such as political involvement in state bodies, the attitude of the government, disregard to the protection of human rights, non-availability of a proper mechanism to secure human rights, lack of legislation to cover certain violations of human rights, and lack of political will to implement human rights, citizens of third world countries have been crippled when the matters are concerning the protection of human rights from State. Although cases such as Sinharasa have taught us that the IHRL should be penetrated into the domestic law, the dualist nature which requires ratification and passing of enabling legislation to recognize and abide by international conventions, and the lack of political will to recognize IHRL in Sri Lanka will always endanger the citizens from the State.
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