“Arrested”, “Seized”, “Taken” New Tiger leader KP and “counter terrorism” intelligence

Pathmanathan.KPThe news of Selvarasah Pathmanathan the newly announced LTTE leader, better known as “KP” who was widely reported as the man who built a global LTTE business empire worth billions of dollars to fund the LTTE and procured arms and military hardware for the Tigers, falling into the hands of the Sri Lankan authorities, was no doubt headline news for the world media from 06th afternoon, after the Sri Lankan defense sources made a brief announcement on it.

On 7th afternoon in Colombo, the government’s defense spokesman, Minister Rambukwella briefing the media, had claimed the Sri Lankan intelligence officers had been after ‘KP’ and was assisted by other foreign agencies in arresting him. The responsibility of arresting and bringing KP to Colombo thus had been taken by Sri Lanka.

On the same night, BBC correspondent in Colombo, Charles Havilland when asked about KP’s arrest, told BBC World News that its a million dollar question to answer where he was arrested and that there are many confusing and contradictory statements being made on the arrest and how.

Meanwhile D.B.S. Jeyaraj, a well respected SL Tamil journalist presently domiciled in Canada and running a few news and feature websites, had a complete story and was the first to publish a confirmed news on the arrest of KP on 06th evening itself.

While his headline talked of “arrest” his first line in the story said KP “was seized”. The story does not reveal who actually “seized” KP and what legal steps were adopted to transfer this new LTTE head to Colombo. Yet it says, “Sri Lankan authorities were contacted and a team from the Police Terrorist Investigation Department flew to Bangkok in the early hours of Thursday, August 6th” and brought him to Colombo.

The narration written by DBSJ on KP’s arrest sounds a story from “X-files”. The complete story can be read in his site – http://dbsjeyaraj.com/dbsj/archives/1015

This arrest, while earning accolades from numerous quarters, including different segments of the SL Tamil Diaspora itself, also drags in India. The SL authorities concede, India which says KP is also responsible for the assassination of PM Rajiv Gandhi, may also want to question KP who is wanted by the Interpol too. Meanwhile “rumours” doing high ground in Colombo indicate Indian sleuths have already got access to KP and are questioning him somewhere in Colombo.

All of it raises an additional question to that of “what the future of the now dwindling Tigers” would be. That is, what legal rights “intelligence” systems have in operating clandestinely, crossing borders and carrying away men to where ever they wish. This new phenomenon has come to haunt the democratic life of post 9/11 societies.

We therefore reproduce below, excerpts from a comprehensive study done by an expert panel on post 9/11 human rights and international law violations due to “global war against terrorism”.

“In the past, States have used war analogies as a way of securing public support for dramatic measures – legal, financial, or other. There have been wars on drugs, on organised crime, and on poverty, but the terminology has served a largely rhetorical purpose. The description of the current phase of counter-terrorism efforts as a “war on terror”, however, differs from the rhetorical flourishes of the past. The United States, in particular, has adopted a war paradigm in the expectation that this provides a legal justification for setting aside criminal law and human rights law safeguards, to be replaced by the extraordinary powers that are supposedly conferred under international humanitarian law (laws of war). In doing so it has done immense damage in the last seven years to a previously shared international consensus on the legal framework underlying both human rights and humanitarian law, and has given a spurious justification to a range of serious human rights and humanitarian law violations.”

“Resolutions of the Security Council and the General Assembly of the United Nations required Member States to take appropriate action to counter terrorism, and to do so in accordance with the requirements of international law, including in particular human rights law, refugee law and international humanitarian law. Regional organisations, such as the Organization of American States and the Council of Europe, also adopted resolutions reaffirming the importance of protecting human rights in the struggle against terrorism.

What has happened, however, is that in the formulation and implementation of counter-terrorist policies, established principles of international human rights and humanitarian law are being questioned and at times ignored, not only by regimes whose record for doing so is well known, but also by liberal democracies that used to be in the forefront of promoting and protecting human rights.”

“The Panel received disturbing evidence that in many countries intelligence agencies have acquired new powers of surveillance, and even powers of arrest, detention and interrogation, in both criminal and non-criminal contexts. As a result, the work of the intelligence sector is increasingly overlapping with, or supplanting, the duties normally performed by law enforcement bodies, without being subject to the corresponding accountability and oversight mechanisms. This point was driven home in many Hearings including those on the Middle East, North Africa, Pakistan, and the Russian Federation. In some instances, it was difficult to avoid the conclusion that States are bolstering the role of intelligence agencies in preference to traditional law enforcement agencies, precisely because the latter have well-defined lines of accountability to the legislature and judiciary as well as the executive. Witnesses reported many abuses.”

“The transnational character of the current terrorist threat means that intelligence agencies in liberal democratic countries are increasingly cooperating with, and frequently are dependent on information from, their foreign counterparts, including those with known records of human rights violations. The Panel received evidence concerning increased powers of surveillance and data-collection, storage, and information sharing, often with insufficient safeguards built in to protect against an erosion of privacy rights. The cooperation has also extended to such illicit practices as extraordinary renditions, secret detentions, enforced disappearances, torture and other proscribed ill-treatment.”

“The Panel recommends that agencies involved in intelligence gathering, including military intelligence, must be subject to effective mechanisms of control and that their operations (domestic and transnational) must be governed by law and regulations in full compliance with all human rights standards.”

for the Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights

The report is the result of a global study carried out over three years by an eight member panel of jurists (the Eminent Jurists Panel). The initiative to convene the Panel came from the International Commission of Jurists (ICJ), but the Panel is entirely independent. The Panel’s mandate was to examine the compatibility of laws, policies and practices adopted to counter terrorism with the rule of law, international human rights law and, where applicable, international humanitarian law (the laws of war).

The Panel is composed of eight judges, lawyers and academics from all regions of the world.

Justice Arthur Chaskalson (South Africa), former Chief Justice of South Africa and first President of South Africa’s Constitutional Court (Panel Chair);

Georges Abi-Saab (Egypt), Emeritus Professor of International Law at Graduate Institute of International and Development Studies, Geneva, former appeals judge at the International Criminal Tribunals for the former Yugoslavia and Rwanda, and member of the World Trade Organization Appellate Body;

Robert K. Goldman (USA), Professor of Law at American University Washington College of Law, former President of the Inter-American Commission on Human Rights, and former UN Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism;

Hina Jilani (Pakistan), lawyer before the Supreme Court of Pakistan and former UN Secretary General’s Special Representative on the situation of human rights defenders;

Vitit Muntarbhorn (Thailand), Professor of Law at Chulalongkorn University, Bangkok, and UN Human Rights Council’s Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea;

Mary Robinson (Ireland), President of Realizing Rights: the Ethical Globalization Initiative, former UN High Commissioner for Human Rights and former President of Ireland;

Stefan Trechsel (Switzerland), judge ad litem at the International Criminal Tribunal for the former Yugoslavia, former President of the European Commission on Human Rights and Emeritus Professor of Law at University of Zurich; and

Justice Raúl Zaffaroni (Argentina), judge at the Supreme Court of Argentina, Emeritus Professor at the University of Buenos Aires, and former Director of the UN’s Latin American Institute for the Prevention of Crime and the Treatment of Offenders.

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