To: Chair and Right Honourable Commonwealth Ministers & Members of the

Commonwealth Ministerial Action Group[1]

Re: Follow-up Action to the CMAG Meeting 2009 and Deepening Humanitarian Crisis in

Sri Lanka

Dear Ministers:

Commonwealth Human Rights Initiative (CHRI) and Human Rights Watch are writing to you following CHRI's submission to the Commonwealth Ministerial Action Group (CMAG) meeting held on 4 March 2009, in which CHRI had urged CMAG to place Sri Lanka on its agenda. Since January 2009, the fighting in the northern Vanni area of Sri Lanka between government forces and the Liberation Tigers of Tamil Eelam (LTTE) has resulted in at least 3,000 civilians killed and thousands more wounded. Recently the Sri Lankan government announced that its military had captured the entire stretch of territory held by the LTTE, and that the group's senior leaders and remaining fighters had now merged with displaced civilians in a government declared ‘No Fire Zone.'

Since the CMAG meeting, the situation in Sri Lanka has deteriorated and there is mounting international concern. While welcome, the two day ceasefire, brokered by United Nations Secretary-General Ban Ki-moon, has not provided enough time to address the plight of trapped civilians, who continue to face a crisis.

On 24 March 2009, the United Kingdom House of Commons debated the Sri Lankan crisis. On April 8, 2009, John Holmes, Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, who had earlier briefed the UN Security Council about the current humanitarian situation in Sri Lanka, warned that "a bloodbath on the beaches of northern Sri Lanka seems an increasingly real possibility." A European Parliament Resolution of 12 March 2009, also expressed concern about the danger to civilian population in the afflicted area. Walter Kaelin, Representative of the UN Secretary-General on the human rights of internally displaced persons, made a visit to Sri Lanka from 2 to 6 April 2009 at the invitation of the Government. After his visit, he had stated that there would be a bloodbath in Sri Lanka unless government and rebel forces stop fighting for long enough to allow tens of thousands of civilians trapped in the war zone to flee. He added, "It's absolutely necessary to avoid a bloodbath. If the Sri Lankan army would try to go into there, if the LTTE would not be ready to let these civilians go, then we'll end up with a bloodbath, and this must by all means be avoided".[2]

We are particularly concerned about the plight of civilians caught in the fighting, the strong likelihood of serious violations of international humanitarian law by both sides, the refusal of the Sri Lankan government and LTTE to allow independent observation or reporting on the situation in the conflict zone, and the limited access of humanitarian organisations to provide assistance. It is critical for the government, LTTE and international community to establish a way in which to ensure safe evacuation, passage and treatment for trapped civilians.

It is in this respect that we are writing to you now. The Commonwealth should urgently address this humanitarian emergency and push for a solution to assist trapped civilians. We urge the Secretary General to use his Good Offices' mandate to engage directly and urgently in the crisis in Sri Lanka. In particular, we urge the Secretary General to speak out publicly and in private meetings with Sri Lankan authorities and other concerned officials on the situation in northern Sri Lanka and insist that the government adhere to its international legal obligations on human rights and humanitarian matters.

We urge the CMAG to engage in the crisis and keep it under review until the next meeting. We continue to urge the CMAG not to self limit its mandate, but to proactively examine all "serious or persistent violations of the Harare Declaration," wherever they may occur. As the Commonwealth Human Rights Initiative noted on 5 March 2009:

....CMAG has in the past limited its mandate to scrutinising countries where there has been coup d'etat or refusals to follow the rule of law and democracy. However, it has not operationalised its mandate to protect the human rights of citizens of Commonwealth countries. In a situation of mounting human tragedy, the body's silence raises serious questions about its credibility. CHRI reiterates its urgent call to the International community and to the Commonwealth in particular, to take immediate notice of the situation in Sri Lanka in order to ensure the safety and security of civilians, uphold democracy and the rule of law, and to promote and protect human rights in Sri Lanka - the Commonwealth and the wider international community must act urgently in a meaningful way, placing human rights principles at the forefront of their response to the growing humanitarian situation in Sri Lanka.

The Sri Lankan government defends its record by saying that it is a democracy and that it is fighting terrorism. Neither should be a green light for human rights abuses or failing to protect civilians caught between warring parties. Democracy requires more than elections. At a minimum, it must include good governance (with civil society participation), rule of law and human rights. Furthermore, measures conducted for the purposes of countering terrorism, while a duty of all states, must also protect human rights, as specified in UN General Assembly Resolution (A/RES/60/288) (8 September 2006),[3] which requires that States reaffirm "that the promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognizing that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing, and stressing the need to promote and protect the rights of victims of terrorism".

Furthermore, reaffirming General Assembly resolution 60/158 of 16 December 2005, which provides the fundamental framework for the "Protection of human rights and fundamental freedoms while countering terrorism", in which, amongst other things, States:

Must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law; and

Consider becoming parties without delay to the core international instruments on human rights law, refugee law and international humanitarian law, and implementing them, as well as to consider accepting the competence of international and relevant regional human rights monitoring bodies.

In addition, Security Council Resolution 1373 (2001),[4] which called for States to "take appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts [...]".

In this context, Sri Lanka must uphold its obligations under international humanitarian law, including Common Article 3 of the Geneva Conventions and customary laws of war, even in the face of violations by the LTTE.

For the above reasons, CHRI and Human Rights Watch urge that the Commonwealth:

Seek assurances that civilians are given the highest protections; that international humanitarian law is being complied with in full.

Call upon the Sri Lankan government to cease all attacks that violate the laws of war, including artillery bombardment and aerial bombing that does not discriminate between military targets and civilians, or that causes expected harm to civilians and civilian objects that is disproportionate to the anticipated military gain. Violations of the laws of war by the LTTE do not justify attacks by government security forces in violation of the law.

Call upon the LTTE to stop the use of civilians as "human shields," take all feasible steps to avoid placing military targets near civilians, stop preventing civilians from leaving areas under its control, respect and facilitate the right to freedom of movement of civilians, including the right of civilians to move to government-controlled territory for safety and end all deliberate attacks on civilians, such as on civilians who are seeking to flee LTTE-controlled areas.

State its concern for the trapped civilians, call upon both parties to facilitate the immediate creation of humanitarian corridors to allow trapped civilians to escape and offer neutral assistance to ensure safe evacuation of civilians, as well as providing aid for humanitarian camps for relocated civilians.

Consistent with the UN Guiding Principles on Internal Displacement, ensure that camps for displaced persons respect the basic rights of those residing there. The camps should be under civilian authority, residents should enjoy the right to freedom of movement due to all Sri Lankan citizens, and impartial humanitarian agencies should have access to the centres without unnecessary restrictions.

Call upon the Sri Lankan government to allow independent observers, including journalists, access to conflict zones so that accurate and timely information about the situation of civilians in such areas is publicly available.

Call upon the government to immediately lift the September 2008 order barring humanitarian agencies from the conflict area in northern Sri Lanka and allow humanitarian agencies to return to assist at-risk individuals and reach all civilians in need. Restrictions on relief should be made on a case-by-case basis and only when there is a specific and justifiable security reason for the restriction. Refusals for valid security reasons should only be for as long as necessary and should not block legitimate humanitarian assistance.

Call upon the government to ensure that nongovernmental organizations (NGOs) are able to perform their work without arbitrary government interference: regulation of NGO activities should comply with international standards, be transparent, and follow clearly defined procedures. Registration should ultimately facilitate the work of NGOs and should neither disrupt legitimate NGO activities nor put NGO workers at risk.

And,

Strongly urge all CMAG members to collectively advance action on Sri Lanka as a positive way in which to engage the crisis and such situations in the future, whilst also giving full adherence to the Harare Declaration amongst the Commonwealth's membership.

We believe that a Commonwealth statement would offer encouragement and carry weight towards the development of a solution for the humanitarian crisis and would go a long way toward the fuller realization of CMAG's potential as a protector of the fundamental principles of the Commonwealth.

Yours sincerely,

Maja Daruwala

Executive Director

Commonwealth Human Rights Initiative

Brad Adams

Asia Director

Human Rights Watch

[1] Including Right Hon Sam Kutesa, Minister of Foreign Affairs of Uganda; Right Hon Betty Mould-Iddrisu, Minister for Justice and Attorney General of Ghana; Right Hon Marco Hausiku, Minister of Foreign Affairs of Namibia; Right Hon Murray McCully, Minister of Foreign Affairs of New Zealand; Right Hon Samuel T. Abal, Minister of Foreign Affairs, Trade and Immigration of Papua New Guinea; Right Hon Datuk Abdul Rahim Bakri, Deputy Minister of Foreign Affairs of Malaysia; Ms Gillian Merron MP, Parliamentary Under-Secretary of State, Foreign and Commonwealth Office of the United Kingdom; Mr Elridge Stephens, High Commissioner of St Lucia to the United Kingdom; Mr. Sumith Nakandala, Acting High Commissioner of Sri Lanka to the United Kingdom.

[2] Walter Kaelin radio interview on Tuesday, 7 April 2009, on the Geneva-based radio station WRS.

[3] The United Nations Global Counter-Terrorism Strategy was adopted by Member States on 8 September 2006. The strategy, in the form of a resolution and an annexed Plan of action (A/RES/60/288), is a unique global instrument that will enhance national, regional and international efforts to counter terrorism. At http://www.un.org/terrorism/strategy-counter-terrorism.shtml (accessed on 9 April 2009).

[4] The United Nations Security Council Anti-Terrorism Resolution; calling for Suppressing Financing, Improving International Cooperation, Resolution 1373 (2001) at http://www.un.org/News/Press/docs/2001/sc7158.doc.htm (accessed on 9 April 2009).