Situation in

Mayam Vije

Bern, February 16, 2004

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1 Political situation ...... 1 1.1 Ceasefire agreement ...... 1 1.2 Ongoing political tensions ...... 1 1.3 Interim administration ...... 2 1.4 Norwegian withdrawal ...... 2 1.5 SLFP -JVP agreement ...... 2 1.6 General election 2004 ...... 3

2 Security situation ...... 4 2.1 High security zones ...... 4 2.2 Fonseka report ...... 4 2.3 Recognition of ...... 5 2.4 Indian concerns ...... 5 2.5 Long Range Patrols ...... 5 2.6 Religious intolerance ...... 6

3 Law and order situation ...... 6 3.1 Sri Lankan judiciar y ...... 6 3.2 Law and order ...... 7 3.3 LTTE administration ...... 7

4 Human rights situa tion ...... 8 4.1 Peace process decision ...... 8 4.2 Human rights institutions ...... 8 4. 3 Prevention of Terrorism Act ...... 9 4.4 Arrest and detention ...... 9 4.5 Torture ...... 10 4.6 Disappearances ...... 11 4.7 Attacks on civilians ...... 11 4.8 Violations by the LTTE ...... 12 4.9 Child recruitment ...... 12 4.10 Muslims ...... 13 4.11 LTTE taxes ...... 13 4.12 Freedom of movement ...... 13

5 Humanitarian situation ...... 14 5.1 SIHRN ...... 14 5.2 IDPs and refugees ...... 14 5.3 Returnee needs ...... 15 5.4 Landmines ...... 15 5.5 Legal problems ...... 16

6 Conclusion ...... 16

Annex 1 Abbreviations Annex 2 Permit to travel along

1 Political situation

1.1 Ceasefire agreement

After a 20 -year war, the Sri Lankan government and the Liberation Tigers of Tamil (LTTE) signed a ceasefire agreement on 22 February 2002, with the active involvement of Norwegian peace diplomats, ushering hope that a lasting solution to the 50 year -old conflict was a re al possibility. A truce monitoring team called the Sri Lanka Monitoring Mission (SLMM), led by was appointed. Peace negotiations began on 16 September that year and six rounds of talks were held over six months. The Sri Lankan government lifted the ban on the Tigers and the LTTE agreed to give up its struggle for a separate Tamil state in the north -east of . At the peace sessions in Oslo in December 2002, both pa r- ties decided to explore a political solution founded on internal self -determin ation in areas of historical habitation of the Tamil -speaking peoples, based on a federal structure within a united Sri Lanka. Four sub -committees for peace, creation of normalcy, rehabilitation and gender affairs were formed.

1.2 Ongoing political tensions

Th e LTTE withdrew from peace talks on 21 April 2003, accusing the government of failing to implement decisions of six rounds of peace talks. The Tigers particularly referred to military occupation of Tamil lands and denial of the rights of displaced people t o return home. The LTTE was also furious over their exclusion from the US -sponsored donor conference in Washington on 14 April and blamed the government of being pre -occupied with creating an ‘international safety net’ to pressurize them to accept a watere d-down political solution. The US say legal constraints had prevented an invitation to the LTTE to attend the conference. The LTTE remain a banned terrorist organisation in the US, Britain, Canada and .

A bipartisan approach to peace efforts by the ru ling United National Front (UNF), led by Prime Minister Ranil Wickremasinghe and the opposition People’s Alliance (PA) headed by Sri Lankan President Chandrika Kumaratunge, is vital to the peace process. A two -thirds majority is needed in Parliament for th e adoption of a new constitution incorporating agre e- ments on a federal arrangement and none of the parties can muster such majority without co -operation. But all efforts for consensus have failed and since the PA lost the general elections in December 2001 , the relationship between the parties has become more acrim o- nious. A four -member Consensus Committee was appointed on 18 November 2003, to e x- plore ways for both sides to co -operate. But at the beginning of February 2004, there was no breakthrough.

Preside nt Chandrika complained that she was not consulted on the February 2002 ceasefire agreement. She threatened to dissolve Parliament where the UNF has a majority and b e- came increasingly critical of Norway, accusing them of infringing the sovereignty of Sri Lanka and supporting the LTTE. She took over the Development Lotteries Board from go v- ernment control on 9 May 2003. The government threatened to impeach the President and attempted to curtail her powers to dissolve Parliament by introducing the 19th Amendme nt to the Constitution. But the Supreme Court struck down the Amendment on grounds that Parliament has no power to change the fundamental features of the Constitution so as to destroy its identity.

Situation in Sri Lanka / February 2004 Page 1 of 18 1.3 Interim administration

Following the LTTE demand for an in terim administration in the north -east, the government submitted proposals on 17 July 2003. It envisaged a Provisional Administrative Council for the north -east, with an LTTE majority and arrangements to take part in the exercise of go v- ernment powers in re spect of regional administration, excluding areas of police and sec u- rity, land and revenue. The Tigers submitted their own proposals on 31 October for an I n- terim Self -governing Authority (ISGA). The proposed ISGA, with an LTTE majority, will co n- trol admini strative and financial functions, including taxation with powers to borrow inte r- nally and externally, receive aid directly and engage in internal and external trade. The ISGA will control land in the north -east, natural resources, marine and off -shore reso urces of adjacent seas and will have power over law and order. The separate judiciary for the north -east will continue.

The government said that the LTTE proposals were far beyond devolution, leading to a co n- federal type of governance, but indicated that i t was prepared to negotiate. The President, the PA and the opposition People's Liberation Front (JVP), however, condemned the LTTE proposals alleging that they were a challenge to the sovereignty of Sri Lanka and a ste p- ping -stone to secession. On 4 Novembe r 2003, the President took over the ministries of Defence, Interior and Media and suspended Parliament until 19 November. The Sri Lanka Muslim Congress (SLMC) declared in December that the LTTE proposals fail to reflect Mu s- lim aspirations and would submit its own proposals. 1

1.4 Norwegian withdrawal

Norwegian Deputy Foreign minister Vidar Helgesen announced on 14 November that No r- way was suspending participation in the peace process, declaring that there was no space for further peace efforts until the emergenc e of a clear political authority in . A l- though the SLMM will continue its work, Norway expressed concern that the ceasefire would be difficult to sustain in a political vacuum and lack of progress in peace negotiations. The President has asked the P rime Minister to continue the peace negotiations with the LTTE, but he has refused to comply without full control of the Defence Ministry. It is clear that the President herself is unable to take forward the peace process, as the LTTE have been s e- verely cr itical of the President's actions.

1.5 SLFP -JVP agreement

Despite ideological incompatibility, PA's main constituent the (SLFP) and the JVP signed an agreement of co -operation on 20 January 2004 forming the United People's Freedom Allia nce (UPFA), for the main purpose of electoral opposition to the UNF. The JVP has long been opposed to any talks with the Tigers and has advocated a military solution. The SLFP believes that the Sri Lankan conflict could be solved through ‘devolution of pow er’, but the JVP says there should be only ‘administrative decentralization’ to the local authority and is opposed to devolution. This difference between the two parties has been written into the agreement.

1 Cancellation of LTTE -SLMC MOU: NE Muslim leaders concerned – Sunday Observer , 28 December 2003.

Page 2 of 18 Situation in Sri Lanka / February 2004 The agreement says that the government -LTTE peace process threatens the sovereignty and integrity of Sri Lanka and that a solution to the ethnic problem should be found 'through a correct dialogue with the LTTE and other relevant groups and communities' . The LTTE maintain that negotiations should be held only with them and describe the agreement as a threat to peace that may provoke war. The JVP and the SLFP have questioned the role of the Norwegian mediators. The JVP, particularly has held many demonstrations demanding the removal of the Norwegians and t he SLMM. Now both parties say that the ceasefire agreement must be re -negotiated. On 2 February 2004, four more parties, including the Muslim (NUA) and People’s (MEP), joined the UPFA. But the leftist members of PA, the Community Party (CP) and the Lanka Equal Rights Party (LSSP) have refused to join as they disagree with the policies of the JVP. 2 In recent years, the Marxist JVP has shown nationalistic tendency and chauvinistic propensity and may e x- ercise great influenc e over the policies of the UPFA. The new alliance would no doubt be a stumbling block for the advancement of peace.

1.6 General election 2004

President Chandrika dissolved Parliament on 7 February 2004 and announced general ele c- tions for 2 April. The extreme v iolence that elections generate in Sri Lanka is now a major concern. In the run -up to and during the last two general elections in October 2000 and D e- cember 2001, there were 4,300 violent incidents, including 110 murders and 200 attempted murders. 3 The Pre sident has also appointed two of her party members as ministers in the Cabinet without any discussion with the Prime Minister. 4

The Tamil party Eelam People's Democratic Party (EPDP) has already indicated support for the (PA) while the Sinhalese nationalis t party Sihala Urumaya has announced that it will not join any alliance. The SLMC has said that, unlike the last election, it will contest separately and not in coalition with the UNF. Among the Hill Country parties, the Ceylon Workers Co n- gress (CWC) will support the UNF and the Up -Country People's Front (UPF) may join the (TNA) 5 – a coalition of four Tamil parties. A hung Parliament again is predicted and in such an eventuality the UNF would expect the support of the TNA and the SLM C. The UNF will face a difficult election with escalating cost -of -living, continuing industrial unrest, rising crime and lack of results in the peace process.

If the UPFA wins the election, any progress in the peace process is unlikely and a return to viol ence is a distinct possibility. If UNF gains victory, it may not be able to take the peace process forward, with a more hostile and powerful President and a Supreme Court which appears to be on her side.

The economic recovery seen after the ceasefire agree ment has been affected by the power struggle. The Sri Lankan Joint Business Forum says that the political crisis is undermining economic growth and warns that the country faced a major cash flow crisis because direct foreign investments and foreign aid flo ws have been seriously affected. 6

2 JVP alliance expands further – Gulf News , 3 February 2004. 3 Reports on election violence – Centre for Monitoring Election Violence (CMEV), Cololmbo. 4 as Minister of Information and Communication and DM Jayaratne as Minister of Posts and Mass Communication. 5 TNA was forme d on 20 October 2001 and is composed of the Tamil United Liberation Front (TULF), the Se l- vam Faction of the Eelam People's Revolutionary Liberation Front (EPRLF), All Ceylon Tamil Congress (ACTC) and Liberation Organisation (TELO). 6 Crisis da mpens Lanka’s economic growth – Gulf , 2 February 2004.

Situation in Sri Lanka / February 2004 Page 3 of 18 2 Security situation

2.1 High security zones

In light of problems caused by high security zones (HSZ) and military occupation of buil d- ings in the north -east, the Sub -Committee on De -escalation and Normalization (SDN) was appoint ed in November 2002 to ensure resettlement and return of private property, while accommodating security concerns of both parties. Under the ceasefire agreement, the mil i- tary was expected to vacate buildings within 140 days of signing the agreement. But as this has not happened, the issue of HSZs has continued to cause tension in the north -east.

In , some 90,000 internally displaced persons (IDP) are unable to resettle because of HSZs. There are 15 HSZs in the peninsula, covering 160 sq kms or 18% of t he landmass. Nearly 30,000 houses and more than 42,000 acres of cultivable land are within the zones. 7 In addition, there are over 200 military bases and each is a security zone. There is no legal basis for the establishment of the HSZs. On 13 December 200 3, the Supreme Court i n- structed the Attorney General to provide information on the legality of the HSZs, following a petition by Jaffna MP . 8

2.2 Fonseka report

The work of the SDN came to a standstill in December 2002, after Jaffna military co m- mander demanded the LTTE lay down arms. In a detailed report, he said that while humanitarian issues are important, adjustments to the HSZs should not create political turmoil in southern Sri Lanka. The report said that resettlement of ci vilians in HSZs will create an opportunity for the LTTE to bring long -range weapons into areas of resettl e- ment and pose a threat to the military.

In December 2002, the LTTE said that they were not demanding the withdrawal of the sec u- rity forces from the no rth -east but only the dismantling of military bases in densely pop u- lated areas. The Sri Lankan government requested retired Indian Army officer Lt. Gen. Sa t- ish Nambiar in December 2002 to advise on the HSZs. The 9 May 2003 report of Satish Nambiar proposes that the Sri Lankan Army’s HSZs and LTTE’s military bases should be removed simultaneously, observed by international monitors. It also says that Army’s and LTTE’s long -range weapons should remain in specified areas where they can be inspected by the SLMM .9

During the ceasefire period, the security forces arrested many LTTE cadre, accusing them of entering Army -controlled areas with weapons. The LTTE have also taken police and so l- diers into custody accusing them of similar offences.

7 Sri Lanka Monitor (British Refugee Council newsletter), December 2002. 8 Supreme Court investigates petition against high security zones – ColomboPage, 13 December 2003, www.colombopage. com. 9 Sri Lanka weapons plan – BBC , 9 May 2003.

Page 4 of 18 Situation in Sri Lanka / February 2004 2.3 Recognition of Sea Tige rs

In April 2003, the LTTE proposed the recognition of the Sea Tigers as a naval unit on a par with the Sri Lankan Navy and the demarcation of a line of control extending 200 nautical miles along the north -east coast from Jaffna to , for trainin g and live firing exe r- cises. The SLMM, which has emphasized that a ‘balance of forces’ is vital to maintaining peace, submitted a working paper on 20 April advising that the Sea Tigers should be reco g- nized as a de facto naval unit and excluded from the app lication of some regulations under the Prevention of Terrorism Act (PTA). 10 The SLMM came under severe criticism in India and Sri Lanka for its proposal. Prime Minister Ranil told Parliament on 6 May that retired Indian naval officer Vice Admiral PJ Jacob h as been requested to advise the government on issues relating to the ceasefire in the sea.

Clashes between the Navy and Sea Tigers have continued. Eleven Sea Tigers died when the Sri Lankan Navy sunk a Tiger ship off the Mullaitivu coast on 10 March 2003. The SLMM criticized both parties and called for safety mechanisms. The Sri Lankan Navy attacked and sank the Tiger ship MT Shoshin off the coast of on 14 June, killing 11 more Sea Tigers . Press reports suggest that the sinking of the LT TE ships was directed by President Chandrika as commander in chief of the armed forces and that Defence Minister Tilak Marapane was informed only after the incidents. The SLMM has concluded that the Navy had the right to inspect the LTTE vessel MT Shoshin according to the UN Convention on the Law of the Sea and the Tigers violated the Convention by failing to fly an appropriate flag.

2.4 Indian concerns

The provision in LTTE’s October 2003 proposals, which says that the ISGA should have control of marine and of fshore installations and resources adjacent to the coastline of the north -east, has worried India. The involvement of Indian military officers in Sri Lanka seems to stem from these concerns. The Tamil National Alliance members have accused India of lending intelligence support to the PA and JVP in order to destabilize the peace process. The LTTE have criticized the proposed Defence Cooperation Agreement between India and Sri Lanka to supply military equipment to Colombo and train defence personnel. LTTE's chief peace negotiator has pointed out to Norway that such an agre e- ment might upset the balance of forces to the disadvantage of the LTTE and would encou r- age the Sinhala political leadership to take a hard -line attitude towards the . 11 He alleges that the agreement is part of the 'international safety net' set up by Mr Wickr e- masinghe to involve external forces. On 30 January 2004, the Sri Lankan government signed a defence pact with Russia.

2.5 Long Range Patrols

The Sri Lankan government' s Directorate of Military Intelligence (DMI), has set -up Long Range Reconnaissance Patrols (LRRP), which include Tamil members of other militant groups, particularly for infiltration and sabotage in LTTE areas. The LTTE have accused the

10 The SLMM referred to Prevention of Terrorism (Outboard Motors) Regulations No. 6 of 2001, which prohibit the use of outboard motors with power exceeding 10 horsepower in the eight districts of the north -east and Kalpitiya area in Puttalam District. 11 Indian Express , 27 January 2004.

Situation in Sri Lanka / February 2004 Page 5 of 18 LRRP of the assassi nation of several of their senior cadre, including Mr Prabhakaran’s co n- fidant Shanker .12 The killing of Inspector Sunil Thabrew, the head of the intelligence unit in June 2003 at Dehiwela police station in Colombo is said to be a retaliatory act. The LTTE have also complained that government spies have taken up residence in the during the ceasefire, as contractors and workers in new projects.

2.6 Religious intolerance

There is concern over increasing attacks on Christians in southern Sri Lanka. Christians form about 7% of the population. 13 Buddhist nationalists accuse the Christian Church of religious conversions and involvement in the death of Buddhist monk Ven. Gangodawila Soma Thera, who died of a heart attack in Moscow in December. He had been an outspok en critic of conversions. According to the Evangelical Alliance, 136 Christian places of worship were attacked from January 2003 to the end of January 2004, and 56 churches came under attack between 24 December 2003 and 31 January 2004. 14 The Anuradhapura o ffice of the Christian humanitarian agency World Vision was firebombed on 8 February 2004. The a t- tackers included three Buddhist monks and a university professor. 15 Colombo University Professor Jayadeva Uyangoda says that the police are reluctant to take ac tion against o f- fenders even when there is evidence. 16

3 Law and order situation

3.1 Sri Lankan judiciary

The Judiciary in Sri Lanka consists of the courts of the first instance – Magistrate’s Court, District Court and High Court – and the appellate courts – Court of Appeal and Supreme Court. Under the 17 th Amendment to the Constitution, the President can only recommend appointments to the Supreme Court and Court of Appeal and is obliged to appoint the judges approved by the Constitutional Council. 17 But before Octo ber 2001, the President was the sole authority for such appointments. President Chandrika appointed the current Chief Justice Sarath N. Silva over the heads of other senior judges. The President has r e- cently admitted that she took oaths twice after preside ntial elections in 1999 in order to e x- tend her term in office by another year. The second oath was taken in secret, in the pre s- ence of Chief Justice Sarath Silva. 18 The Supreme Court, headed by Mr Silva, ruled on 4 November 2003 that Defence is inherent in the presidency and the Defence Minister has no authority to amend Defence regulations.

12 Sri Lanka Monitor , April 2003. 13 Anti -Christian feeling rises in Buddhist Sri Lanka – , 30 January 2004. 14 Anti -Christian nationalism creates debilitating fissure s in Lankan society – Hindustan Times , 2 February 2004. 15 Arsonists torch charity office – Herald Sun , 9 February 2004. 16 An Ayodhya in the making in Lanka by Dr Jayadeva Uyangoda – , 30 January 2004. 17 Article 41C. The 17 th Amendment came i nto force on 3 October 2001. 18 According to Colombo's Sunday Times (21.12.2003), the first swearing in took place on 22 December 1999 and the second on 11 November 2000.

Page 6 of 18 Situation in Sri Lanka / February 2004 In August 2001, the International Bar Association (IBA) criticized the judiciary for lack of accountability and breach of natural justice. The IBA expressed concern that the institutions which should protect the Rule of Law, including the President, government and the Chief Justice, are acting to undermine it. The UN Special Rapporteur on the Independence of Judges and Lawyers, Dato Param Cumaraswamy, said in July 2003 th at corruption in the judicial system is on the increase. He had severely criticized the Supreme Court in February 2003, for denial of justice to teacher Michael Fernando. 19

3.2 Law and order

Law and order is the responsibility of the Sri Lankan police force who se current strength is 80,000. The police have been accused of corruption and involvement in crime, sometimes in collaboration with some of the 51,000 soldiers who have deserted the Army with their wea p- ons. According to a report by the Graduate Institute o f International Studies, many deserters are involved with organized crime, in contract and revenge killings, large -scale robbery, extortion and illegal arms sales. 20 The report says these crime networks are protected by politicians and senior police officer s – some of who have been put in place by the criminal gangs. Recently it has been discovered that weapons from police armories are in circulation and used by gangsters for criminal operations. 21 International and national human rights agencies have express ed grave concern over the involvement of police in torture. 22

Police and politicians’ support has made the criminal gangs bolder and has contributed to a rise in crime, including political murders. Opposition PA member and Southern Provincial Council minist er R Ranjit was shot dead just outside the Police Criminal Investigation D e- partment (CID) headquarters on 25 May 2003 in the heart of Colombo. 23 There were 1,282 murders in 2002 and the number increased to 1,387 in 2003. 24 The courts have also b e- come dangero us grounds. An attempt was made to assassinate the Chief Magistrate at Mt Lavinia courts in Colombo on 29 January 2004. 25 Earlier in the month, a member of orga n- ized crime, Dhammika Amerasinghe was killed in the Colombo Magistrate’s Court pre m- ises. 26

3.3 LTTE ad ministration

The LTTE have established a police and justice system in the north -east. The LTTE propo s- als of October 2003 envisage that the ISGA will have power over law and order. The Tigers' Tamil Eelam Police force was established in June 1991 and is hea ded by former Sri Lankan police officer P Nadesan. It is clear that the police force is not yet independent of the mil i- tary wing. There are 16 police stations in the Vanni and, following the ceasefire, the LTTE opened new police stations in and Trincomalee.

19 Sri Lanka: Internally displaced persons and safe returns – Refugee Council, Septem ber 2003. 20 In the shadow of a ceasefire: The impacts of small arms availability and misuse in Sri Lanka by Chris Smith – Occasional Paper No 11, Small Arms Survey, Graduate Institute of International Studies, Geneva, October 2003. 21 Gang leaders using p olice weapons – Daily Mirror , 24 January 2004. 22 Special report on torture in Sri Lanka – Asian Human Rights Commission, October 2002. 23 Sri Lanka Monitor , May 2003. 24 Daily Mirror (Colombo), 13 January 2004. 25 Attempt to kill Chief Magistrate in court – Daily Mirror , 30 January 2004. 26 Countdown for Thilanga – Sunday Leader (Colombo), 11 January 2004.

Situation in Sri Lanka / February 2004 Page 7 of 18 Since the February 2002 ceasefire, the LTTE have opened a number of courts. There are six District Courts (, , Mannar, Mullaitivi, Trincomalee, Batticaloa) and High Courts in Kilinochchi and Mullaitivu. 27 A Tamil Eelam Appeal Court functions in Kil i- nochchi. A Special Bench , similar to the Sri Lankan Supreme Court, has also been set -up for final appeals. The head of the judiciary E Pararajasingham says that the courts have heard 24,000 cases and delivered judgments in 20,000. 28 The judges who dispense justice in these courts are former LTTE fighters and have no formal legal training. The LTTE have introduced their own laws such as the Tamil Eelam Legal Code and the Tamil Eelam Penal Code and have amended , the customa ry law applicable to the Tamils of the Northern Province and an integral part of the laws of Sri Lanka. The LTTE courts are not independent as the two codes specifically provide that the courts will function ‘under the direction of the LTTE’s national lead er’. The civilians in areas under the Tigers have no o p- tion but to seek justice in the Tamil Eelam Courts .

4 Human rights situation

4.1 Peace process decision

International human rights expert Ian Martin was included in the peace process in December 2002. At the sixth session of the peace talks in March 2003 in Japan, Mr Martin was r eques - ted to develop three aspects: 1) draft a declaration on human rights and humanitarian pri n- ciples; 2) plan human rights training for government officers and LTTE cadre; 3) sugges t proposals to strengthen the Human Rights Commission. During peace talks it was clear that the parties were reluctant to give prominence to human rights, and violations by both parties continued after the ceasefire agreement. Between February 2002 and 31 December 2003, the SLMM received 3,617 complaints of violations by the LTTE and 768 by government forces. During this period, the SLMM ruled that 1,545 violations were committed by the LTTE, and 147 by government forces. The violations included intimidatio n, torture, abdu c- tion of adults and children and child recruitment. 29

4.2 Human rights institutions

Although the Supreme Court has exclusive jurisdiction over fundamental rights, it can only order compensation for violations but has no power to punish offenders . The mandate of the SLMM, gives express authority to inquire into complaints of violations of the terms of the ceasefire agreement. However, there are many cases where the SLMM has failed to take steps or act decisively. The Tigers have refused to dismant le the military base at Kurang u- panchan in Trincomalee, despite a directive from the SLMM. Under the agreement, the other law enforcement agencies are precluded from inquiring into criminal conduct which falls within the ambit of the agreement. Many violati ons thus go unchecked and unpunished. Furthermore, the SLMM has no presence in Kilinochchi and Mullaitivu districts.

27 A Tamil Eelam Law College was established in 1991 and the Tamil Eelam Judiciary in the Vanni in mid 1993. 28 Tamil Eelam judiciary a basis for re -bui lding north -east – TamilNet , 30 October 2003. 29 Summary of recorded complaints and violations from all districts – 2002 and 2003 – SLMM.

Page 8 of 18 Situation in Sri Lanka / February 2004 The Sri Lankan Human Rights Commission (HRC) is weak and unable to guarantee the needed protection. The Act establishing the HRC needs amen ding, in order to give it both credibility and effective powers, including adequate financing, financial independence and powers to enforce the decisions. 30 The work of the HRC needs greater scrutiny to ensure integrity and independence.

4.3 Prevention of Terro rism Act

The UN Human Rights Committee said in November 2003 that victims of human rights abuses in Sri Lanka feel intimidated from bringing complaints or have been threatened thereby discouraging them from seeking remedy. The Committee also expressed conc ern that the provisions of the PTA, which are incompatible with the International Covenant on Civil and Political Rights (ICCPR), still remain legally enforceable, although the ceasefire agreement says arrests will not occur under the Act. 31 These provision s include arrest wit h- out warrant, detention for 18 months without court approval and lack of legal provisions to challenge such detention. The Act does not define ‘terrorism’, leading to arrest on frivolous grounds. It denies bail, removes discretion of th e courts, permits confessions to police off i- cers admissible as substantive evidence courts leading to torture by security forces to o b- tain a confession.

4.4 Arrest and detention

Following the assassination of police Inspector Sunil Thabrew of the Terrorist Inv estigation Division (TID) on 23 June 2003 in Dehiwela, cordon and search operations and mass a r- rests took place in Colombo and the surrounding regions. The police set up 14 checkpoints in the capital and arrested over 500 Tamils detaining 18. Tamil houses, shops and vehicles were searched. MPs of the TNA condemned the targeting of the Tamil community as a vi o- lation of human rights. 32 On 14 and 15 July, 70 Tamils were taken into custody in the capital for not having National Identity Cards (NIC).

K Renganatha n, who was released from Kalutara prison after detention for three years u n- der the PTA, was re -arrested, without adducing any reason, in Colombo on 4 July. Police believe several LTTE units have infiltrated Colombo and have been responsible for a nu m- ber of assassinations. 33 There are still some 60 Tamil men held under the PTA in Kalutara prison and six women in Colombo Magazine prison. Most of them are in detention for long periods, despite the Attorney General’s (AG) promises to deal with cases expeditiousl y. S Lingaratnam is held for the last 11 years without trial.

MPs have complained to the Prime Minister about arrests in Batticaloa and Trincomalee by suspected members of intelligence services in Colombo. Those arrested have been taken away in ‘White Vans ’, a hallmark of military death squads before the ceasefire. Relatives have informed the HRC that they were not given any information on the reasons for the a r- rests or their whereabouts. Before July 2001, Presidential Directives under Emergency

30 HRC was established under the Human Rights Commission of Sri Lanka Act No. 21 of 1996. Additional pr o- visions are f ound in the 17 th Amendment to the Constitution. 31 Concluding observations of the UN Human Rights Committee on the fourth and fifth reports of Sri Lanka at its 2164 th meeting – 6 November 2003. 32 Sri Lanka Monitor , June 2003. 33 Report on fact -finding vis it to Sri Lanka – 2 nd -15 August 2003 – Dr Anthony Good, University of Edinburgh, UK.

Situation in Sri Lanka / February 2004 Page 9 of 18 Regulations provided for safeguards and required the police to issue arrest receipts indica t- ing reasons for the arrest and the place of detention and provide information to the HRC. After July 2001, arrest and detention of LTTE suspects continued under the PTA. The ceasefire agreement provides that arrests will take place under normal law – the Code of Criminal Procedure Act (CPC) – and not under the PTA.

Under the CPC, there is no obligation for police to provide any information to relatives or to the HRC. In terms o f the CPC, a suspect must be produced before a Magistrate’s Court within 24 hours, excluding the time necessary for the journey from the place of arrest to the Magistrate. 34 But the CPC does not require that the suspect must be produced before the Magistrat e’s Court having jurisdiction over the area where the arrest took place. Some pe o- ple arrested in the north -east are produced before courts after several days and the police often claim that time was spent on travelling.

4.5 Torture

The UN Human Rights Committe e expressed concern in November 2003 about persistent reports of torture of detainees by police and the armed forces. 35 Although a law to punish perpetrators of torture was introduced in 1994 36 , up to now, no one has been convicted for torture. The Supreme C ourt has awarded compensation to victims of torture in many cases and has urged the Attorney General to bring offenders to justice. The Court ordered co m- pensation of Rs 800,000 ($8,420) and medical cost in a case of illegal detention and torture in April 2 003 and observed that the number of complaints of torture and degrading treatment in police stations shows no decline. 37

The HRC analyzed 718 complaints of torture in 2000 and 2001 and concluded that in 402 instances torture occurred in police stations and in 372 cases the victims identified the pe r- petrators. 38 The Police Department has failed to take any meaningful action against those identified and the AG has filed action in only a few cases. The UN Committee expressed regret that the majority of prosecuti ons initiated against the police or armed force members on charges of abduction, unlawful confinement and torture have been inconclusive due to lack of satisfactory evidence and unavailability of witnesses.

According to the Asian Human Rights Commission (A HRC), Galin Sanjeeva who was a r- rested by Kadawatte police in Gampaha District, was found dead on 28 August 2003. Sixty year -old Loku Bandara was also found dead after his arrest by Maturata Police in Nuwara Eliya District on 28 August. Katugastota police a rrested Ramanpillai Asokan on 6 Septe m- ber and subjected him to severe torture. police arrested Saman Priyankara on 5 January 2004 and tortured him by pouring boiling water on his genitals. 39 The World O r- ganisation Against Torture (OMCT) says minors a re also tortured in Sri Lankan police st a- tions and police officers appear to enjoy total impunity. Chamila Bandara, 17, testified b e-

34 Section 37. 35 UN Human Rights Committee, op.cit. 36 Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment Act of 1994. 37 Sri Lanka M onitor , March 2003. 38 Final report on project monitoring and raising awareness about torture – Human rights Commission Sri Lanka, May 2003. 39 Urgent Appeal 26 January 2004 – Asian Human Rights Commission (AHRC).

Page 10 of 18 Situation in Sri Lanka / February 2004 fore the UN Human Rights Committee in November 2003 about torture he suffered at the hands of the Ankumbura police in Kandy. 40

Three soldiers are accused of attempting to rape a woman on 26 August at Inbaruty in Jaffna. Two other soldiers are alleged to have attempted rape on 19 year -old Anthony M a- jula on 9 October in , Jaffna. Two policemen are accused of rape of a T amil woman named Mrs Selvarajah, 32, at Uyilankulam in on 23 October 2003. Over a thousand people, led by Mannar Bishop Rayappu Joseph joined a demonstration demanding action against the perpetrators.

4.6 Disappearances

Three zonal and an all -island Presidential Commissions investigated 37,662 cases of disa p- pearances, which took place between January 1988 and December 1995, and found ev i- dence in 21,115 cases. No further action has been taken in these cases where the commi s- sions have recorded the names of the security personnel responsible for disappearances. Most continue to hold positions in the forces, contributing to the climate of impunity. A fu r- ther 16,742 complaints have not been investigated. The Sri Lankan HRC has stated that there is no information about 46 people disappeared in Batticaloa and Amparai districts in 2002.

The PA government did not allow commission investigations into disappearances that took place during its period in government after 1995, particularly the disappearance of 540 Tamils following the capture of Jaffna by the Army, although human remains were found in Chemmani mass graves in Jaffna. The HRC appointed Devanesan Nesiah on 30 November 2002 to probe Jaffna disappearances. However, it is most unlikely that this one -man co m- mittee would help to bring perpetrators to book.

The previous PA government and the present UNF government have not taken any action to implement the recommendations of the UN Working Group on Disappearances such as 1) revision of the PTA to bring i t in line with international standards; 2) making the act of e n- forced disappearance an independent offence under Sri Lankan law; 3) speeding up efforts to bring perpetrators to justice; 4) awarding compensation to families of victims; and 5) i n- cluding proh ibition of disappearances as a fundamental right in the constitution. 41 The LTTE and other Tamil militant groups are also responsible for a large number of disappearances.

4.7 Attacks on civilians

The police Special Task Force (STF) shot dead seven Tamil civili an protesters who were demanding the removal of a military camp in Amparai District on 9 October 2002. This was followed by grenade attacks on Tamils in killing three. The security forces in the north -east have carried out many attacks on civilians after the ceasefire came into force. Nine people were injured when soldiers fired on demonstrators at Nelliady in Jaffna on 10 December 2002. Soldiers ran amok attacking people on the Ketpali Housing Scheme on 17 May 2003 in Mirusuvil, Jaffna , injuring two people and attempting to rape a

40 Sri Lanka: OMCT presents a report on st ate violence to the United Nations Human Rights Committee – World Organisation Against Torture (OMCT), 3 November 2003. 41 Report of the Working Group on Enforced or Involuntary Disappearances, 21 December 1999, E/CN.4/2000/64/Add.1.

Situation in Sri Lanka / February 2004 Page 11 of 18 woman. Twenty people were wounded when soldiers assaulted civilians at Munai near Point Pedro on 22 October. Jaffna came to a standstill by a hartal (general strike) on 11 Dece m- ber 2003, after a soldier shot a nd seriously wounded a bus conductor.

4.8 Violations by the LTTE

The LTTE controls vast areas in north -east Sri Lanka and the population in these areas as well as government -controlled areas is under pressure to toe the line. As freedom of e x- pression is almost non -existent, people fear to voice their opinion. The LTTE have also o r- dered institutions not to freely carry out any programme in the north -east without their a p- proval.

In addition, suspected LTTE assailants have carried out selective assassinations in b oth LTTE -controlled and Army -held areas and in Colombo. Around 50 people have been killed since the ceasefire, another 60 wounded and hundreds have been threatened. The LTTE targets are members of other Tamil groups and Tamils working with government intel ligence agencies. The offices of these groups have come under regular grenade attacks. This has led to some killings of LTTE members, supporters and attacks on its offices. Senior EPRLF member Thambirasa Subathiran was assassinated in Jaffna town on 14 Jun e 2003. 42 TELO's Subramaniam Kirubakaran was shot dead in Batticaloa on 4 October. 43 According to press reports, an EPDP member was abducted by the LTTE in Jaffna on 29 December 2003 when he came from the EPDP stronghold of Kayts Island to the mainland for m edical trea t- ment. 44 In August 2003, and Human Rights Watch condemned the LTTE for violation of the ceasefire and systematic human rights abuse, and called upon the SLMM to investigate the killings. 45

4.9 Child recruitment

The LTTE have cont inued recruitment of children despite agreements with the UN Repr e- sentative on Children and Armed Conflict in May 1998 and UNICEF in March 2003. The SLMM says more than 80 complaints of recruitment were received by them in October 2003, the month when a re habilitation centre for former child soldiers was opened in the Vanni. Very few former child soldiers have been sent by the LTTE to the centre. 46 UNICEF says in a report released on 22 January 2004, the LTTE recruited 709 children in 2003 and released 202 t o the rehabilitation centre or parents. There are still 1,301 children with the LTTE. The LTTE recruited 1,722 children after the February 2002 ceasefire agreement and subjected 1,252 to intense military training. The UN agency has called on the LTTE to re lease all the child soldiers immediately. 47 The LTTE have denied having large number of children in their custody.

42 Sri Lanka Monitor , June 2003. 43 Peacemakers retreat amidst power struggle – Sri Lanka Project briefing, 12 December 2003. 44 Daily Mirror , 31 December 2003. 45 Sri Lanka: Political killings during the ceasefire – Human Rights Watch, 7 August 2003. 46 Tigers still ‘enlisting ’ children – BBC, 10 December 2003. 47 Progress report calls for ‘increased commitment’ to improve the lives of Sri Lanka’s children – UNICEF, www.unicef.org.

Page 12 of 18 Situation in Sri Lanka / February 2004 4.10 Muslims

Muslim refugees, who were driven out of the Northern Province by the LTTE in October 1990 and currently living in camps in Puttalam an d other districts are reluctant to return to their home areas, without proper guarantee of security from the LTTE. There have been a number of attacks on Muslims and Muslim businessmen have been abducted by the LTTE for ransom, particularly in the east. Th e LTTE continue discussions with local Muslim lea d- ers, but suspicion persists about the motives of the LTTE.

Mainly because of the insecurity caused by LTTE massacres of Muslims in the 1990s, Mu s- lim leaders have demanded the formation of a Muslim devolutio nary unit in the Eastern Pro - vince. The LTTE is opposed to such a demand and in December 2003 announced that it was abrogating the memorandum of understanding (MOU) signed with the Sri Lanka Muslim Congress (SLMC). 48 The MOU provided for resettlement of som e 65,000 Muslims expelled by the LTTE, return of agricultural lands of Muslims, security for Muslims in Tamil -domina - ted areas and participation of a separate Muslim delegation in the peace process. Since the ceasefire, there has been tension between the T amils and Muslims in the Eastern Province, particularly in Trincomalee and many people, both Muslims and Tamils, have been killed. 49

4.11 LTTE taxes

LTTE taxes in territories it controls are imposed in addition to government taxes. All mater i- als taken into LTTE areas are taxed except personal effects and household goods brought in by government and NGO officers on transfer and those who wish to take up permanent residence in LTTE areas. Duty varies from 5% to 25%. There is a 25% tax on electronic items and buildi ng materials and 10% on agricultural implements and kerosene. In January 2004, the LTTE attempted to impose a tax on fuel supplied by the Petroleum Corporation in government -controlled areas of . 50

4.12 Freedom of movement

In government -contro lled areas of the north -east, the security forces have set -up new check points and new camps since the ceasefire. During search operations in Colombo and surrounding areas, security forces establish checkpoints. Fourteen checkpoints were esta b- lished during operations in the capital in June 2003. These and the HSZs have restricted the freedom of movement of people. The LTTE have also set -up restricted zones in their areas, where civilians are disallowed.

Permits are needed to enter LTTE -controlled Vanni, and this causes huge delays (see A n- nex 2 for travel permit). People say it takes two to three hours to obtain a permit at the checkpoint in Puliyankulam to travel along the Vavuniya -Jaffna A9 road and more than six hours for a pass to travel within the Vanni region. These permits allow visits only to places indicated. Foreign Tamil visitors must undergo a separate interview at the checkpoint and sign a form giving details such as addresses and employment. At the checkpoint, a foreign visitor must pay Rs 1,000 (US $11) and a local visitor Rs 100.

48 SLMC leader Rauf Hakeem and LTTE chief V Prabhakaran signed the MOU on 13 April 2002. 49 Peace makers retreat amidst power struggle – Sri Lanka Project Briefing, 12 December 2003. 50 Public outcry compels LTTE to stop fuel levy – Lanka Academic, 13 January 2004.

Situation in Sri Lanka / February 2004 Page 13 of 18 The fishermen in the north -east suffer because of constraints on the freedom of movement. Several regulations made under the PTA continue to remain in force. Prohibited Zones e x- tend from Hambantota in the south, through Trincomalee and Jaffna, to Puttalam in the west, encompassing the entire coast of the North -East Province. No person or vessel can enter the zone without a permit. 51 These restrictions were reiterated in new PTA regulations introduced after the ceasefire a greement. 52 Although fishing is allowed in several places, coastal areas for one mile on either side of a military base and two miles out to sea are r e- stricted zones. Because of the huge number of military bases, a greater part of Jaffna coas tline falls wit hin the restricted zones. 53

5 Humanitarian situation

5.1 SIHRN

The international community confirmed its support for the peace process by pledging US $ 4.5 billion for reconstruction of north -east Sri Lanka, at a conference in Tokyo in June 2003. But the Tokyo De claration makes clear that there must be parallel progress in the peace process. Substantial progress in reconstruction is unlikely under current circu m- stances. Since April 2003, when the LTTE withdrew from peace talks, the work of the Sub - Committee on Imm ediate Humanitarian and Rehabilitation Needs (SIHRN) has come to a standstill. The Tigers have said that SIHRN is unacceptable without legal authority and has no role in the future.

5.2 IDPs and refugees

At the time of the ceasefire, some 800,000 IDPs were rec eiving assistance from the go v- ernment, but some NGOs estimated the total number of IDPs at one million. UNHCR est i- mates that 917,000 Sri Lankans have sought asylum in 50 countries including 115,000 in India, 65,000 of who are in camps in the southern India n state of . According to UNHCR, 335,656 persons had returned to home areas by the end of December 2003 and 4,610 returned from India. 54 The others are reluctant to return, because of massive pro b- lems faced by returnees, particularly in relation t o physical, material and legal safety. A c- cording to Refugees International, camp refugees in India do not want to return because there has been no political settlement, their homes lie in military HSZs or they fear LTTE recruitment of children. 55

In Sri Lan ka, there are 396,076 IDPs receiving assistance from the government – 93,630 in refugee camps and 302,446 with friends or relatives – nearly 80% in the north -east districts. Government estimates say that in the there are 25,770 widows, 90% of who lack food, clothing and medicines for their children. 56 UNICEF estimates that 50,000

51 Prevention of Terrorism (Prohibited Zone) Regulations No 8 of 2001 – Government Gazet te No 1193/31 of 21 July 2001. 52 Prevention of Terrorism Act (restricted Zones) Regulation No. 1 of 2002 dated 23 May 2002. 53 Report of Dr Anthony Good, op.cit. 54 Summary of returns of internally displaced persons within Sri Lanka – UNHCR and Ministry o f Rehabilitation. 55 Sri Lankan refugees in India: Hesitant to return – Refugees International Bulletin, 21 January 2004. 56 Sri Lanka Monitor , May 2003.

Page 14 of 18 Situation in Sri Lanka / February 2004 children in the north -east are out of school, around 140,000 displaced from their homes and landmines have killed 20 and maimed 17 children in 2003 alone. 57

In light of the enormous problems involved in resettlement and lack of resources, the Sri Lankan government adopted the pragmatic policy of first resettling the IDPs, then receiving refugees from India and thereafter welcoming refugees in other countries under vol untary return programmes. 58

5.3 Returnee needs

The needs in the north -east have been estimated by internationals agencies. Out of 400 health institutions in the north -east, 55 are totally destroyed and 49 are not functioning and out of 9,542 posts in the health sector, 3,251 (34%) are vacant. Hospitals lack medicines and there is malnutrition among women and children. Lack of water supply and sanitation facilities threaten to cause disease.

There is a shortage of 4,650 Tamil medium teachers and 240 Sinhala mediu m teachers. Around 15,000 class rooms in 500 schools are damaged or destroyed, requiring about 521,000 sq.metres of additional space, equipment, IT facilities, laboratories and furniture. An estimated 326,700 houses have been damaged and nearly 58% of them remain uninha b- itable. Nearly 84% (144,890 units) of the housing owned by IDPs is located in the north -east and 90% of these houses were damaged during the conflict. Some 12,000 to 15,000 da m- aged house belong to refugees in India.

Only 10 -15% of the road s urface in the north -east is still intact. Three of the four railway lines have suffered serious damage and the five ports also need repair and development. Lack of capacity and poor conditions of roads are among the main constraints preventing IDPs from ga ining access to services, employment, education and health. The north -east needs 700,000 telephone connections in the next five years. In the north, 90% of the ele c- tricity distribution system suffered damage, Vavuniya 70% and Mannar 50% and the sy s- tems in Mullaitivu and Kilinochchi are totally destroyed. A total of 323,700 hectres of land need irrigation in the north -east, but over 30% of the 2,398 irrigation tanks need rehabilit a- tion. Farm animals died in large numbers with a resultant decrease in producti on of milk, meat and eggs. Around 12,000 fishermen’s houses, boats and boat engines have been d e- stroyed and the annual fish production has fallen by nearly 40%. 59

5.4 Landmines

Landmines and unexploded ordnance are affecting resettlement in the north -east. They are not only dangerous for returnees but also a threat to humanitarian workers and as a result reconstruction work is likely to be hampered. Estimates of landmines in the north -east vary from 1 million to 3 million and there are four to seven victims each month. According to the UN, 107 were killed and 794 wounded by landmines. 60 There were 65 victims in Jaffna in

57 UNICEF, op.cit. 58 Statement of Bradman Weerakoon, Secretary to the Sri Lankan Prime Minister, at t he 53 rd session of the Executive Committee of UNHCR, 1 October 2002. 59 Sri Lanka: Assessment of needs in the conflict affected areas – Prepared with the support of the Asian D e- velopment Bank, United Nations and World Bank on the request of SIHRN, May 2003 . 60 ibid.

Situation in Sri Lanka / February 2004 Page 15 of 18 2002 and 30% were children. Agencies working to clear landmines face difficulty in obtai n- ing maps of landmines and information. 61

5.5 Legal problems

Returnees also face many legal problems. The lands and houses of returning refugees may be occupied and under prescription laws, an occupier can claim ownership if uninterrupted adverse possession for ten years can be established. Land ownership documents m ay be lost because of displacement or destruction of houses and Land Registry offices have been destroyed in some areas. Without death certificates, successors may find it difficult to inst i- tute testamentary proceedings. There may have been forcible transf er of property and there are hundreds of orphans who are unaware or unable to assert their rights over property. 62

6 Conclusion

On 20 January, the Elections Commissioner postponed local elections in seven of the eight north -east districts to 23 October 2004, because Returning Officers expressed security co n- cerns. 63 On Sri Lankan Independence Day, 4 February, people in the north -east observed a day of mourning and a group of IDPs began a fast unto death in Jaffna, demanding to be allowed to resettle in their vil lages which lie within HSZs. The SLFP -JVP alliance and the consequent rekindling of Sinhala -Buddhist nationalism have instilled great fear in the minds of the Tamil people and a violent election is on the cards. These are indicative that the situation in S ri Lanka is far from normal. While a political crisis is preventing return to peace negotiations, human rights violations continue in both the north -east and the south. The experience of the ceasefire period shows that improvement in human rights standards is extremely difficult without a solution to the political problem and sustainable peace.

61 Explosive remnants of war in Sri Lanka – Landmine Action (London), May 2003. 62 Legal analysis of property issues affecting internally displaced persons and refugees in Sri Lanka – UNHCR, January 2003. 63 The local elections were scheduled fo r 21 February 2004, but postponed to 23 October 2004.

Page 16 of 18 Situation in Sri Lanka / February 2004 Annex 1

Abbreviations ACTC All Ceylon Tamil Congress AG Attorney General AHRC Asian Human Rights Commission CID Criminal Investigation Department CP Commu nist Party of Sri Lanka CPC Code of Criminal Procedure Act CWC Ceylon Workers Congress DMI Directorate of Military Intelligence EPDP Eelam People's Democratic Party EPRLF Eelam People's Revolutionary Liberation Front HRC Human Rights Commission of Sri Lanka HSZ High security zone IBA International Bar Association ICCPR International Covenant on Civil and Political Rights IDP Internally displaced persons ISGA Interim Self -governing Authority JVP People's Liberation Front (Janatha Vimu kthi Peramuna) LRRP Long Range Reconnaissance Patrols LTTE Liberation Tigers of Tamil Eelam LSSP Lanka Equal Rights Party (Lanka Sama Samaja Pakshaya) MEP People's United Front () MOU Memorandum of Understanding MP Membe r of Parliament NGO Non -governmental organisation NIC National Identity Cards NUA National Unity Alliance OMCT World Organisation Against Torture PA People's Alliance PTA Prevention of Terrorism Act SDN Sub -Committee on De -escalation and Norm alization SIHRN Sub -Committee on Humanitarian and Rehabilitation Needs SLFP Sri Lanka Freedom Party SLMC Sri Lanka Muslim Congress STF Special Task Force (police) SLMM Sri Lanka Monitoring Mission TELO Tamil Eelam Liberation Organisation TID Terrorist Investigation Division TNA Tamil National Alliance TULF Tamil United Liberation Front UNF United National Front UNICEF United Nations Children's Fund UPF Up Country People's Front UPFA United People's Freedom Alliance UN United Natio ns UNHCR United Nations High Commissioner for Refugees US United States of America

Situation in Sri Lanka / February 2004 Page 17 of 18 Annex 2 (Translation from Tamil)

Permit to travel along the A9 road (Transport Supervision Division) Liberation Tigers of Tamil Eelam Tamil Eelam No ………………….

• Permission is granted to travel only along the A9 road. • Please record the times of the vehicle passing Puliyankulam, Murikandy and Palai at the registr a- tion offices at these places. • No permission is granted to stop at any place other than the places referre d ab ove.

Particulars of vehicle Sri Lanka Registration Number: ...... Engine Number ……………………… Chassis Number ...... Colour of Vehicle ………………….. Type …………………. Model ......

Particulars of owner of vehicle Full Name ...... Permanent Address ...... Current Address ...... Indentity Card Number ......

Particulars of passengers No Name Identity Card No Address 01 ...... 02 ...... 03 ...... 04 ...... 05 ...... 06 ...... 07 ...... 08 ...... 09 ...... 10 ...... 11 ...... 12 ...... 13 ...... 14 ...... 15 ...... Number of people arriving in the vehicle ……………………………..………………………………………….. Signature of person completing the form ………………………………… ………………Date…………………

Official use

Vehicle arrival times No Date Place Time Person checking

Notes:

Page 18 of 18 Si tuation in Sri Lanka / February 2004