Accept International Mediation
Malcolm R. Grace,
Amnesty-International, Australia

I am honoured to attend today's conference and address you on behalf of the Australian Section of the International Commission of Jurists ("ASICJ"). I am here today in a representative capacity on behalf of the Honourable Mr Justice John Dowd AO,. who is the current president of the ASICJ and the Honourable Justice Marcus Einfeld, the ASICJ National Vice-President.

By way of background and introduction, Justice Dowd was a former leader of the New South Wales State Opposition and was appointed Attorney-General for the State of New Wales in 1988 until his retirement from politics in 1991. His Honour is a former chairman of the Council of the Australian Constitutional Convention and is well known in Australia and throughout the world for his dedication to the cause of human rights. He represented the case of East Timor at the UN Decolonisation Committee Meetings in New York and Vanuatu and has attended trials as an international observer in Indonesia in 1975 and 1997 and in the Philippines in 1977. He led an Australian Government election observer mission to Palestine in 1996 and advised the Palestinian Authority on the establishment of its Legislative Council. He was made an officer of the Order of Australia in 1991 for his services to human rights and his Honour was awarded the Queen's Silver Jubilee Medal in 1977.

Unfortunately Justice Dowd is unable to attend today's conference due to court commitments but he has asked me on his behalf to convey his support and best wishes.

As I mentioned the other distinguished jurist whom I am today representing is the Honourable Justice Marcus Einfeld. the National Vice-President of the ASICJ. His Honour is a Justice of the Federal Court of Australia, the Australian Capital Territory Supreme Court and has a special appointment to the Eastern Carribean Supreme Court. His Honour was the foundation President of the Australian Human Rights and the Equal Opportunity Commission and is AUSTCARE's Ambassador for Refugees and UNICEF's Ambassador for Children. His Honour is also a world recognised exponent of human rights, democracy and the rule of law.

Justice Einfeld is also Chairman of the Australian Legal Resources International("ALRF') of which justiceDowd is Vice-Chairman. ALRI is an Australian non-profit, non-governmental organisation dedicated to the promotion of democracy, human rights and the rule of law in developing nations. Its members are mainly from professional backgrounds and the ALRI provides advice and assistance on legal and political matters so that the ICJ and ALRI have an obviously close relationship with common purposes. I have also been asked by Justice Einfeld to convey his support to the conference and his apologies for being unable to attend.

It is humbling for me to speak to you on behalf of those two eminent jurists and internationally recognised supporters of human rights who preside over the ASICJ.

For those who are unfamiliar with the International Commission of Jurists("ICJ"), the ICJ was established in 1952 and has its headquarters in Geneva. The ICJ has a consultative status with the United Nations and is dedicated to the protection and support of human rights, the independence of the judiciary and the observance of the rule of law. The ICJ works closely with other non-govemmental organisations in related fields, including Amnesty International, the International Bar Association through its Human Rights Institute, Law Asia and various UN agencies and organisations.

Membership of the Australian Section of the ICJ (which also has branches in several States and Territories within Australia) is comprised mainly of judges, practising barristers and solicitors and legal academies, although membership is open to all persons interested in human rights whether or not they are legally qualified.

One of my roles as a member of the Executive Council of the ASICJ is that I act as the convenor of the sub-committee concerned with Sri Lanka, In that tapacity, I attended Sri Lanka as an international observer at the request of the Electoral Commissioner of Sri Lanka to observe the November 1994 Presidential elections where I was assigned the Jaffna District. That is what we in Australia call "drawing the short straw" probably because as the younger member of the team of international observers I was also the most expendable. Aside from a Queen's Counsel from the Australian Section and myself, the remainder of the International observers were either judges, retired judges or politicians from either India, Pakistan and Bangladesh. They wisely organised for themselves far less interesting but more comfortable assignments.

The ICJ has been actively involved in issues affecting human rights in Sri Lanka for a considerable period. It condemned the genocidal nature of the anti-Tamil riots in 1983 and found mistreatment of persons in the custody of the military in 1983 to have contravened Article 11 of the Sri Lankan Constitution which states that "no person shall be subject to torture or cruel, inhumane or degrading treatment or punishment".

In 1983 when approximately 2,500 Tamils were massacred in Colombo, a report was prepared by the Chariman of the British Section of the ICJ, Mr Paul Seighart, who concluded in his fact finding mission of March 1984, that:

"This (massacre) was not a spontaneous upsurge of communal hatred among the Sinhala people. It was a series of deliberate acts, executed in accordance with a concerted plan, conceived and well organised in advance".

In 1984, the ICJ in its report entitled "Ethnic Violence in Sri Lanka (1981-1983)" concluded that torture in Sri Lanka was an "almost universal practice".

The ICJ has also regularly joined other NGOs since 1983 on the UN Sub-Commission on the prevention of Discrimination and Protection of Minorities and the UN Commission on Human Rights in declaring the actions of the Sri Lankan Government and its military against the Tamil people as constitution a gross violation of human rights and international humanitarian law. It also recognised that such violations are intended solely to terrorise and subjugate the Tamil people in their national struggle in the north and east of Sri Lanka and to oppress Tamil political factions in the south.

The ICJ recognised and believes that law and justice are the keystone of human rights. The rule of law is the protection of citizens against the authority of the State. Those rights amount to nothing if they are not recognised and cannot be enforced.

More generally, the United Nations Special Rapporteur, Barcre Waly N'diaye during his visit to Sri Lanka in August 1997 reported that Sri Lanka had the second highest number of disappearances reported in any country ( The Sunday Times (Colombo), 31 August 1997)

Amnesty International in its report of 27 November 1997 has again confirmed what we all know and fear.

The Amnesty team which visited the Jaffna peninsula in August 1997 reported that approximately 540 people "disappeared" after being arrested by the army in mid 1996 and that nearly all of that number are likely to have died under torture or to have been deliberately killed in detention.

Amnesty confirmed that security forces had resorted to widespread "disappearances" to reprisal for attacks on its members by the L1'1E. Amnesty did not find any evidence to suggest that the sanction for the "disappearances" came from the political leadership of Sri Lanka but did recognise that the government has to take responsibility for its failure to protect the lives of civilians under its jurisdiction. The government's response to the reported cases if disappearances was to have the Ministry of Defence set up a board of investigation which is presently conducting enquiries together with an investigative unit of the military police. The newly established Human Rights Commission is also investigating 274 cases of disappearances. In the meantime, reports of disappearances continue to be received by Amnesty including a further 41 cases in the first few months of 1997 from the Jaffna area.

One question for the Tamil people in Sri Lanka is whether devolution or separation will provide the best chance of any meaningful protection and basic respect for their human rights.

The Tamils are victims of the tyranny of the majority. There can be no social and political cohesion where a minority people have no rights or where the rights that they do have are not or cannot be protected.

As Professor Virginia Leary in her report of a mission to Sri Lanka on behalf of the ICJ in 1981 commented:

"The Tamils . . . have a distinct language, culture, a separate religious identity from the majority population, and to an extend a defined territory . . . the application of the principle of self-determination in concrete cases is difficult. It seems nevertheless, that a credible argument can be made that the Tamil Community in Sri Lanka is entitled to self-determination. .. What is essential is that the political status of the 'people' should be freely determined by the 'people' themselves"(Ethnic Conflict and Violence in Sri Lanka – Report of a Mission to Sri Lanka on behalf of the International Commission of Jurists, July/August 1981)

The problem of devolution as an answer is that it fails to recognise the unique cultural, social and historic attributes of the Tamil people. It also fails to ensure the need for special protections to guarantee that legal and political institutions cannot be manipulated by the majority against the minority. Is there any other solution?

The ongoing human rights abuses against the Tamil people are a direct result of the continuing conflict in the north and east of Sri Lanka. That conflict has been described as "a war without witnesses" because of the disappearances of Tamil civilians and the restrictions on media access and reporting by international organisations.

The continued cultural deprivation and hindering of medical and humanitarian assistance underline the reluctance and inability of the Sri Lankan government to meaningfully deal with the human rights issues affecting the Tamils.

If the Tamils are going to be continually deprived of their basic human rights, then it is little wonder that military force has been the result of their aspirations for partition.

It appears unlikely that as long as the Emergency Regulations and Prevention of Terrorism Act allows people to be detained incommunicado for long periods of time that there will be any abatement in the current number of widespread disappearances or any real response by the Sri Lankan government for a proper and thorough investigation of reported cases of disappearances.

With such unresolved problems, few could reasonably argue against the need for a negotiated settlement of the present conflict. The Australian government has expressed its willingness to assist in any mediation but the Sri Lankan government has repeatedly rejected any suggestion of third party government assisted mediation. That is unfortunate.

The Australian government has again confirmed its position that it will not support home rule for the Tamil people. Some members of Federal parliament in Australia have, however, actively supported such home rule. They include Mr. Paul Zammit of the House of Representative and Senator Margetts of the Upper House of the Federal Parliament.

Justice Einfeld (and I) attended the Peace with Justice International Conference on the conflict in Sri Lanka in Canberra in 1996 held under the auspices of the Australian Human Rights Foundation and the Australasian Federation of Tamil Associations.

At the Peace with Justice Conference in Canberra, Justice Einfeld stated:

"To date, the complete failure of the international community, including successive Australian governments, to recognise the Sri Lankan issue.... and raise it in every available international level represents an extraordinary abdication of our responsibilities selectivity".

The important point of international opinion is not whether it supports Tamil separatism or not. The International Community must recognise the undisputable fact of ongoing human rights abuses against the Tamil minority and continue to pressure the Sri Lankan government to resolve that complex issue. Only then will the government be forced to reach a meaningful solution.

At the 53rd Session of the UN Commission on Human Rights on 9 April 1997, the ICJ joined 52 other NGOs in the making of a joint statement calling for an end to the current war and for the attainment of a political solution "which recognises the right of the Tamil people to determine their political status and the need to ensure full human rights of all persons in Sri Lanka".

The NGO joint statement also called upon the Sri Lankan government to lift the economic blockade in the North and East and to allow humanitarian aid to the Tamil homeland,

The right of the Tamil people to basic human rights, to obtain access to medical assistance, humanitarian aid and to be guaranteed protection from disappearances, torture and extra-judicial killings are an obvious pre-condition to any exercises of the right to self-determination under international law. The desire of the Tamil community to self-determination is no longer simply a credible argument but now an imperative on moral, political, social and legal grounds in order to preserve the human rights of the Tamil people. The Sri Lankan government has clearly failed in its obligation to protect and preserve those rights and in that context the ongoing conflict understandably shows no signs of abating.

The ASICJ urges the Sri Lankan government to immediately:

1. Punish all perpetrators who have acted with excess by causing or participating in extra-judicialkillings, torture and disappearances under the present anti terrorism and emergency law.

2.Allow the media and NGOs to visit the affected areas in the North and East of Sri Lanka without any restriction.

3. Allow adequate food and medical supplies to the affected areas and for NGOs to operate freely in their humanitarian work.

4.Abolish detention camps and allow refugees to relocate themselves in places of their choice.

5. Allow an international observation team access to the affected areas and report on their observations.

6. Accept international mediation gestures.

7. Downsize military operations with a present view to a ceasefire and ultimately the withdrawal of Sri Lankan government troops to enable the mediation process to be meaningfully pursued.

Although Some of these matters have been covered by the resolurion of today's Convention, they are all worth repeating. I welcome their adoption in that resolution.

On behalf of Justice Dowd and Justice Einfeld I thank you for your kind invitation to address today's Convention and personally thank you also for the warmth and hospitality which you have all shown to me.