In a significant development that would further strengthen the growing calls for international impartial inquiry into the alleged war crimes and crimes against humanity against the Rajapaksa regime, the British judiciary has upheld the UK government’s position that Sri Lankan authorities have involved in “a widespread and systematic attack” against the Tamil population “as a part of the government’s strategy”.

Secretary MOD

The UK’s Upper Tribunal, the Immigration and Asylum Chamber’s  judges Lane and Pitt, a couple of weeks ago have made these finding while determining an asylum appeal of an anonymity direction protected appellant, a Sri Lankan Police Officer, who has been named as “Mr. AS”

Mr. AS began his career as a Police Officer in Sri Lanka in 2003.  From 2007 until he left the Unit in January 2010, Mr. AS worked in a Special Unit within the Sri Lankan Police department that was tasked with the job of abducting Tamil civilians.

Mr. AS feared that he was at risk either from the government who may have suspected him of disclosing information about the torture and murder of Tamil suspects or from the criminal underworld who had been informers for and victims of the Special Unit. He decided to leave the country. His asylum claim was based on the fear that the Sri Lankan authorities would persecute him if he were returned to Sri Lanka. His asylum claim was refused by the Home Office.

Mr. AS appealed against the Secretary of State for Home Department’s (SSHD) decision to the First Tier Tribunal (Immigration and Asylum Chamber). The First Tier Tribunal dismissed his appeal and upheld the decision made by the SSHD and he appealed to the Upper Tribunal.

Dismissing the appeal, senior Upper Tribunal judges found that “…during the period of the appellant’s service in the special unit that the actions of Sri Lankan authorities were well-characterised as “a widespread and systematic attack” directed at the civilian population, in particular those of Tamil ethnicity. Indeed, it was difficult to conclude otherwise, this being the consistent view across the human rights and country reports on Sri Lanka for that period.”

“We were satisfied that there was ample evidence of a “widespread” and “systemic” attack conducted by the Sri Lankan authorities, the AI and EU reports referring in terms to the abuse of the Tamil population being part of a government “strategy,” the Judges said in their determination..

Ruling that they “did not find it credible that, if only from his service in the police from 2003 to 2009 that the appellant did not know of the routine and serious abuse of Tamils”, the Upper Tribunal Judges said “…it is our view that the country evidence shows overwhelmingly that the Sri Lankan authorities were specifically attacking the Tamil population, the police force being agents in that attack, certainly by the way of torture and kidnapping.

They have  also citied to the US State Department report which  referred to “numerous reports that the army, police, and pro-government paramilitary groups participated in armed attacks against civilians and practiced torture, kidnapping, hostage-taking, and extortion with impunity” and to the use of torture by police to extract confessions being “endemic”.

“..It was our view that the appellant could only but have known of the treatment of Tamils by the police,other services and of the government strategy to attack the Tamil population,” the UK’s Upper Tribunal Judges have said in their determination.

During his time within the Special Unit, Mr. AS was not informed who his commanding officers were, nor was he ever given the opportunity to meet them. Within the Special Unit, secrecy was of the utmost importance. The Special Unit used unmarked vehicles to carry out their orders.

Targets for abduction by the Special Unit were only disclosed immediately before the Unit was dispatched to a location. Mr. AS would be told the destination for the civilian only after the civilian had been successfully abducted. The Unit would take the abductees to a variety of places, including abandoned houses. He would usually hand them over to other agents in unmarked vehicles or leave them at abandoned properties.

The SSHD, in her refusal to grant asylum decided that Mr. AS should be excluded from the Refugee Convention as he was directly involved and/or complicit in human rights violations or war crimes carried out by the Sri Lankan Government against the ethnic Tamil population in Sri Lanka.    Mr. AS’s Barrister, Ms. Shivani Jegarajah argued that the SSHD was wrong and the Home Secretary had not made out the primary part of her case in that the Sri lankan authorities had not committed human rights violations and breaches of the Geneva Conventions in a systematic and widespread manner and the abuse of the Tamil population was not being part of the Sri lankan Government’s strategy.  In their determination, the senior Upper Tribunal judges have rejected her submissions and dismissed Mr. AS’s appeal.

Legal sources in the UK described UT’s determination as “an important reported judgment which has given the UK Judiciary an opportunity to apply the Geneva Conventions and other UN Conventions in respect of the abuses committed by the Sri Lankan forces during the civil war”.

They say that this judgment will more crucially, affect employees, agents and abettors of the Sri Lankan state.

“Significant to the case is the position taken by the Home Secretary Ms. Theresa May.  Her position endorses the fact that the Sri Lankan authorities have committed human rights violations and breached the Geneva Conventions in a systematic and widespread manner. In addition, the Home Secretary has taken the view that the Government of Sri Lanka’s racial policy and strategy manifested into pervasive abuse, unlawful imprisonment and torture of the Tamil civilian population”.

“This view is consistent with those held by the UK Prime Minister and the Foreign Secretary as evidenced by the statements they made during the recent Parliamentary debates and in their recent visit to Sri Lanka in November 2013,” the Legal sources pointed out.

“The Court has upheld the UK Government’s view that the widespread and systematic nature of the attacks against the Tamil population and the abuse of the Tamil population is an inherent part of the Sri Lankan Government’s strategy. This judgment is an endorsement of the effective response by the UK Government to the attempts by perpetrators to claim asylum after carrying out acts of torture, extra-judicial killings and disappearances in Sri Lanka. It will undoubtedly have wider implications in the Sri Lankan victims’ quest for justice and accountability,” the sources said.