CSI Position Paper on the Sooka report
Date of publication: 29/04/2014
The author of the report, Yasmin Sooka
The Sooka Report:
How NGOs serve governments
"Many of these NGOs espouse the universalist language of human rights, but actually use it to defend highly particularist causes: the rights of particular national groups or minorities or classes of persons."
Michael Ignatieff, I. Human Rights as Politics. II. Human Rights as Idolatry, The Tanner Lectures on Human Values, Princeton University, 4-7 April 2000, p.291
The political context
Ever since the end of the civil war brought peace to Sri Lanka, there has been a concerted attempt in the Western media to criticise and undermine the victory Sri Lankan won against the LTTE terrorists (the "Tamil Tigers") in 2009.
The most notable examples of this have been the series of highly misleading news reports issued by Channel 4 news on "Sri Lanka's killing fields" which allege widespread and systematic killing of civilians in the final months of the conflict.
This campaign of attacks bore fruit in March 2014 when the United Nations Human Rights Council adopted a resolution calling for the UN High Commissioner on Human Rights to open an investigation into human rights abuses in Sri Lanka during the war and after it.
The Council dismissed Sri Lanka's argument that its own national Lessons Learned and Reconciliation Commission was the appropriate body to manage the process of healing the wounds of war. It is difficult to think of a clearer example of political interventionism in the internal affairs of a state by foreign and international busybodies. The fact that the UN Human Rights Commissioner herself, Mrs Navi Pillay, who is of Tamil descent, has not recused herself from this task, only shows the very low standards of neutrality expected from such bodies.
The vote on 27 March 2014 was driven largely by European Union states (especially Britain), states which want to join the EU, and the USA. As we shall see below, these states have now financed so-called non-governmental initiatives to bolster their political campaign at the international level.
Who is Yasmin Sooka?
"For those who lead the major NGOs, there is also a need to examine the consequences of allowing their organizations to become politicized. Joining forces with nations, which are subject to political wheeling-and-dealing, horse-trading, and arm-twisting, constitutes a failure of principle when this leads to an emphasis that is unbalanced, biased, and negligent."
Professor Don A. Habibi, 'Human Rights and Politicized Human Rights: A Utilitarian Critique', Journal of Human Rights, 6:1, p. 22.
The recently released report "An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009 - 2014" represents a new line of attack, concentrating as it does on allegations about events which allegedly happened after 2009. This suits the interventionist remit given to the High Commissioner by the March 2014 resolution, which calls on her to "to monitor the human rights situation in Sri Lanka and to continue to assess progress on relevant national processes."
A former Commissioner of the South African Truth and Reconciliation Commission, Yasmi Sooka, who is also of Indian descent, is described as "an expert in the field of transitional justice and gender." Yet she seems to have herself made the transition from "truth and reconciliation" to "justice and an end to impunity" as she does in this report on Sri Lanka, without noticing that the two approaches are completely contradictory: the one is based on amnesty, the other on punishment. The contradiction is made even greater by the fact that Mrs Sooka herself protested when the National Prosecuting Authority in South Africa decided in early 2006 to abandon the amnesty approach of the by then disbanded TRC, and to make it possible to prosecute apartheid-era offenders.
Yasmin Sooka is Executive Director of the South African "Foundation for Human Rights". This body was set up by the European Union in 1996. Its role was to monitor human rights in South Africa. It continues to be funded by the European Union (and by Belgium) to this day. It has in the past received funding from Ireland and from CARE, the international humanitarian agency which is itself funded by the EU and a host of UN bodies. The Foundation for Human Rights also receives money from an American Foundation.
Mrs Sooka's foundation is not only funded by the EU: it works for it. She has admitted, "We submit annual work plans with indicators to the European Union and this forms an important part of our monitoring and evaluation programme."
This means that the group of states which voted for of the Human Rights Council resolution in March 2014 - all the EU states on the Council voted in favour, namely Austria, the Czech Republic, Estonia, France, Germany, Ireland, Italy, Romania and the United Kingdom - is in fact Mrs Sooka's employer.
This specific report is published by the Bar Human Rights Committee of England and Wales. It also provided the witnesses quoted in the report. But, as it admits on its own web site, the Bar Human Rights Committee mainly carries out projects paid for by the British Foreign Office. The British government has been leading the charge against Sri Lanka on the diplomatic level. (The other body which has published the report, the International Trust and Justice Project, Sri Lanka, appears to be an empty shell internet organisation with no existence other than as the publisher of this report.)
Moreover, the Sooka report was compiled with the help of a barrister, a QC, who earlier worked at the International Criminal Tribunal for the former Yugoslavia, a kangaroo court where the main prosecutors are British and which is a mouthpiece for British, American and EU foreign policy. Finally, the government of Canada has given substantial support to publicising the report and yet Canada is also one of Sri Lanka's accusers.
As Yasmin Sooka herself says, the report was produced with the specific purpose of influencing the vote in the Human Rights Council. "We released the report in time before the Geneva resolution because we wanted to influence the Geneva resolution." In other words, Mrs Sooka's supposedly law-based report has in fact been produced to order by government-paid lawyers and activists for the purpose of waging a political campaign at diplomatic level.
The International Criminal Court, which like the ICTY gives apparent judicial cover to the foreign policy of Western states (indicting Libyan leaders at the time of the NATO attack, opening investigations into Mali at the time of the French intervention in that country, accepting jurisdiction over Ukraine for the period leading up to the overthrow of President Yanukovich but not for the period after the seizure of power by pro-Western forces in Kiev), is fronted by a black prosecutor, Fatou Bensouda from Gambia. Could it be that the US and its EU allies deliberately choose people from the developing world as a front for their diplomatic activities?
Yasmin Sooka's activity from 2004 as Commissioner for Truth and Reconciliation in Sierra Leone, a former British colony subject to British military intervention in 2000 and then to judicial intervention by the British-controlled Special Court for Sierra Leone, established in 2002, strengthens this suspicion.
In any case, Mrs Sooka has already made her views on Sri Lanka very clear. She has claimed that 70,000 may have died in the last stages of the war and that more than 147,000 people remain unaccounted for. Absurdly, Mrs Sooka has also vehemently condemned the findings of Sri Lanka's own Court of Inquiry on this issue without even reading it or studying its evidence.
Mrs Sooka's claims indicate that her grasp of mathematics is weak. Her allegations are in sharp contrast to the findings of the UN High Commissioner for Human Rights, Navi Pillay, who cited a figure of 2,800 deaths by 13 March 2009. (The war ended on 18 May 2009.) The UN then cited a figure of 6,432 deaths by 24 April 2009. The UN Panel of Experts, which reported in 2011, and of which Yasmin Sooka was herself a member, itself quoted a UN source saying that 7,721 had been killed between August 2008 and 13 May 2009. (It is, incidentally, not clear whether these figures included combatants as the LTTE naturally had an interest in passing off its combatant deaths as civilians for propaganda purposes.) In reality, out of the approximately 300,000 civilians within the affected area, 294,000 were accounted for after the war. Are we really expected to believe that many tens of thousands of civilians were killed in the last days of the war?
A "legally unassailable" report?
"Human rights activism likes to portray itself as an antipolitics ... In practice, impartiality and neutrality are just as impossible as universal and equal concern for everyone’s human rights. Human rights activism means taking sides, mobilizing constituencies powerful enough to force abusers to stop. As a consequence...human rights activism is bound to be partial and political."
Michael Ignatieff, "I. Human Rights as Politics. II. Human Rights as Idolatry", The Tanner Lectures on Human Values, Princeton University, 4-7 April 2000, p.292.
Mrs Sooka has said she compiled her report in such a way that it would be "legally unassailable." She says that in producing the report she made "every effort to ... stand the test of legal scrutiny." Yet far from being legally unassailable, the report is assailable on many levels.
First, its methodology is flawed. The report is based on 40 anonymous witness statements, all of which allege abduction, torture and rape by Sri Lankan soldiers or police. In the foreword, Desmond Tutu writes, "This report ... shows how anyone remotely connected with the losing side in the civil war is being hunted down, tortured and raped, five years after the guns fell silent" (emphasis added).
However, nothing in the report qualifies this irresponsible statement by the ageing archbishop. The 40 witnesses have been pre-selected because they allege they have been adducted, tortured etc. This is quite clear from the text. To pre-select a small sample of people on the basis that they claim to have been victims of torture and rape, and then to allege that 100% of all people connected to the LTTE Tamil Tigers have been abducted and tortured, as Tutu does, is to commit a very elementary mistake of statistical logic.
In order to find out whether "anyone remotely connected with the losing side" is being "hunted down" etc., it would be necessary to study all those "remotely connected with the LTTE," or at least a representative sample of such people, and then examine what has allegedly happened to them. The report does not do this. Instead it put its conclusions into the starting-point by selecting only witnesses who say they have been tortured and raped.
It is important to note that by June 2012, 11,000 former LTTE combatants had been released back into the community in Sri Lanka. This contrasts not only with the message of the Sooka report but also with the record of Guantanamo Bay, where scores of detainees being held indefinitely without trial at Guantánamo Bay. Many have been held for more than 10 years.
Moreover, in order to allege, as the report goes on to do, that Tamils as an ethnic group are being persecuted (i.e. not just people connected with the Tamil Tigers) it would be necessary to take a sample of all Sri Lankan Tamils and then see what they say. The report does not do this either. It instead elides LTTE sympathisers with the Tamil population as a whole, an approach which is the result of Mrs Sooka's own stated view that the LTTE was widely seen as "a liberation movement" by Tamils.
Second, as the report says many times, the 40 witnesses are not only pre-selected on the basis that they allege torture. They have also been pre-selected among the even smaller subset of Sri Lankan Tamils (or Sri Lankan Tamil LTTE sympathisers and activists) currently in the United Kingdom. Yasmin Sooka has never travelled to Sri Lanka to conduct her investigation and she has refused to read the evidence of the Sri Lankan Court of Inquiry.
The 40 witnesses are moreover in a very particular legal situation: they are seeking to stay in the UK by claiming asylum. Indeed, early on the report admits that its political message is directed to foreign policy-makers: "This report has immediate implications for asylum policy, donor funding and the international community as a whole. (Emphasis added.) Action must be taken to bring the perpetrators to justice using the International Criminal Court and / or an international tribunal ..."
Nowhere in the report is the witnesses' special legal situation taken into account, even though the report admits that some of them have had their asylum applications rejected. For anyone familiar with British asylum policy, this admission is a bombshell. The United Kingdom is notoriously lax on asylum. It is very difficult to expel someone from the UK who has applied for asylum, even if the application is rejected. Given this level of indulgence shown by the British system, it is inconceivable that these Tamils would have had their asylum claims rejected, and still less be sent home, without the Home Office having very strong grounds for doing so. Yet the report never for a moment doubts the veracity of their claims, which have perhaps been subsequently strengthened in order to obtain a review of their cases. Instead, it and the witnesses - unsurprisingly - often attack the Home Office and its procedures.
This brings us to the third point: precisely because of this rejection of some of their applications, we have to entertain the possibility that some or all of the witnesses are lying. This is evidently what the British Home Office thought about earlier claims these people made.
There is an old saying in the law, "He lied like an eye witness." The meaning of this joke is that people who actually have witnessed things often give very contradictory accounts of what they have seen. Consistency in witness statements can paradoxically be a reason for suspecting, and testing the suspicion, that a story has been made up in advance.
On several occasions, the report claims that "every single one" of the witnesses claimed that he or she had given testimony in order to save others from the same fate in Sri Lanka. Yet is it really credible that traumatised victims of torture, many of whom claim to be monoglot and therefore uneducated Tamils (they speak neither Sinhala nor English), and who can hardly bear to tell their tale, spontaneously tell sophisticated British international lawyers who themselves would like jobs prosecuting war crimes in an international tribunal, what those lawyers most of all want to hear?
By the report's own admission the "eminent and well-qualified experts" anonymously quoted on page 39 have said they made their own statements "in the hope that it will contribute to the prevention of further torture ... in Sri Lanka". There is, then, an interesting complicity between the anonymous witnesses and their anonymous lawyers and experts who took their statements. Have they been egging each other on?
The suspicion that the witnesses may be lying is strengthened by a careful reading of the report. It is clear from the report that all 40 witnesses were genuinely involved in or associated with the LTTE. The report admits that "a small number of this group had been involved in active combat" while the "vast majority ... worked as medics or aid workers or low level operatives functioning as courriers and messengers ...".
In other words, ALL the witnesses carried out important functions inside a rebel movement which most countries in the world classify as terrorist. Nowhere does the report gives this fact the prominence it deserves; instead it tries to hide it and downplay it. Nowhere does the report take on board the fact that the LTTE is notorious for having waged a very effective propaganda campaign, in addition to having waged a 30-year civil war.
The Sooka report's astonishing indulgence towards these ex-LTTE militants is in striking contrast to the attitude adopted by the Canadian courts in 2011 to a man who claimed to have been merely a tax-collector for the LTTE. He was branded a "war criminal" and expelled from the country. The court reasoned that as an active member of an organisation which committed crimes against humanity, the applicant was guilty of crimes against humanity himself.
Instead of giving as much information about what these witnesses actually did, the report refers only to "a small number" who were active combatants (i.e. terrorists). This imprecision is in stark contrast to the precise breakdown of alleged crimes given per witness on pages 54 - 57. Remember: these former "active combatants" of the LTTE are now applying or reapplying for asylum in the UK.
Doubt about their truthfulness is further strengthened by the fact that some of the former active LTTE combatants were indeed expelled from the UK and sent back to Sri Lanka. It is obvious that such people have a motive for lying about what happened to them after their return. The fact that this report is addressed partly to the Home Office is made clear in the report itself. The witnesses have the same motives as do those barristers who make a living from working on asylum policy.
The witnesses have an even stronger motive for lying: "many of them" (the report does not say how many although it would be interesting to know) were interrogated about arms caches. Many of them signed statements admitting that they had knowledge of such caches (page 64). Perhaps these admissions were made under torture as they claim; or perhaps the admissions were true and these really are LTTE operatives whose stories about torture are lies. In such a hypothesis, the witnesses have an obvious motive for claiming now that they did not sign their admissions of their own free will.
None of the above proves that the witnesses (or their translators) are lying. However, this is undoubtedly what an opposing barrister would try to prove. Unfortunately the authors of the report have not divulged the identity of the witnesses (or of those who took their statements) so there is no possibility of the claims, at least in their present form, being tested in court. It is a basic principle of justice that an accused has the right to know the identity of his accuser but this principle is not respected in this report.
A political report
Far from being legally unassailable, this report begs a number of questions which would be hotly debated in any court of law. Who are the witnesses? How were they contacted and who brought them into contact with the lawyers? Who are the lawyers? Who are the medical experts? Who were the translators and how can we be sure they were translating accurately what the witnesses said?
We cannot accept at face value a report whose sources remain shrouded in mystery, especially when the political motives behind the report are so transparent and when the witnesses themselves may have a motive for inventing their stories.
The report demonstrates its political nature because there are plenty of passages attacking the way Sri Lanka is governed now. Such claims are quite irrelevant to the forensic question of whether rape and torture have been committed. They are not even sufficient to demonstrate command responsibility, a clear legal requirement for imputing a role to the state. Strict levels of proof are required for this which the report does not even try to give.
On occasions, the report is simply dishonest. At one point, it alleges that, "Sri Lanka also says that it is 'unnatural' for the North to be predominantly Tamil." However, the quotation given in the footnote does not say this. The Permanent Secretary at the Ministry of Defence in fact alleges that Sinhalese have been expelled from the North. He does not say that it is unnatural for the North to be predominantly Tamil.
Elsewhere, the report tries to bolster its credibility by saying that the witness statements have been taken by "independent lawyers" (page 16). But there is no such thing as an independent lawyer: lawyers have clients whose cases they represent. Who were these lawyers working for? The only "independent lawyer" is a judge who works for a state court, or an investigating magistrate in the French tradition who is also an employee of the state. Likewise Mrs Sooka is not "independent": the NGO of which she is Executive Director works for the EU.
There are too many unknowns for this report to be taken at face value. The Sooka "report" - in reality a piece of political campaigning - must not be allowed to influence policy at the international level, in case decisions taken there have an adverse effect on peace in Sri Lanka. The process started in March 2014 at the Human Rights Council needs to be stopped before it is too late. International bodies are not necessarily the best means to ensure peace and accountability; they are, on the contrary, often prone to political influence and, as such, to making matters worse.
CSI, April 2014
Michael Ignatieff is a renowned international human rights expert, former liberal politician and academic. A former director of the Carr Center for Human Rights Policy at Harvard, he is presently the Edward R. Murrow Professor of Practice at the Harvard Kennedy School.
" Human Rights Council adopts a resolution on reconciliation, accountability and human rights in Sri Lanka," UN Commissioner for Human Rights, 27 March 2014, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=14447&LangID=E
available (by subscription) at http://dx.doi.org/10.1080/14754830601098410.
Catherine Cole, Performing South Africa's Truth Commission: Stages of Transition, Indiana University Press (2010), pp. 126-27.
Mrs Sooka says, "Canada has played an incredibly positive role" with the report (at 21:09 in the Youtube video). She says that "Canada" (i.e. the government of Canada) arranged for her to brief states in Geneva, they did the launch in London, in New York plus of course in Ottawa.
Yasmin Sooka, "The empty findings of Sri Lanka’s Military Court of Inquiry", Ground Views, 4 November 2013, http://groundviews.org/2013/04/11/the-empty-findings-of-sri-lankas-military-court-of-inquiry/
'Serious violations of international law committed in Sri Lanka conflict: UN human rights chief', Office of the High Commissioner for Human Rights, United Nations, 13 March 2009, available at <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=9499&LangID=E>.
See 'Sri Lanka war toll near 6,500, UN report says', The Guardian (London), 24 April 2009, The figure given was 6,432.
Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, United Nations, New York, 31 March 2011, p.40, available at <http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf>.
Report to Congress on Incidents During the Recent Conflict in Sri Lanka, US Department of State, Washington-DC, 2009, available at <http://www.state.gov/documents/organization/131025.pdf>, p.15.