“The ‘ethnicization’ of territory has heightened ethnic polarization and aggravated ethnic conflict. It has led to a climate where even those individuals and groups who have not been directly targeted experience greater insecurity and move to areas where their fellow ethnic community members live in larger numbers.”_____________________________
by Shahul H. Hasbullah
Displacement in Sri Lanka
(March 28, Colombo, Sri Lanka Guardian) The conflict in Sri Lanka over the last two and half decades has seen many waves of large scale displacement. It is estimated that 3 million of Sri Lanka’s population (whose total is approximately 20 million) have been displaced. About a third of this population has fled the country and sought refuge in foreign countries; the rest have remained as Internally Displaced Persons. In some contexts, displacement has been a secondary effect of armed conflict; not surprisingly, as conflict intensified, the short and long term impact has included a rise in displacement.
Many people in conflict ridden regions moved because of difficulties in meeting basic needs regarding security, food, health care, jobs and education. This has been an indirect but significant impact of the conflict across the country, but particularly in the North and East. In other contexts however, displacement has been a more direct dimension of the conflict; specific populations have been targeted by the government or the LTTE because of their ethnicity and forced to move in a conscious effort to change regional demographics through ethnic cleansing. National and regional minorities have been the worst affected in this process.
The ‘ethnicization’ of territory has heightened ethnic polarization and aggravated ethnic conflict. It has led to a climate where even those individuals and groups who have not been directly targeted experience greater insecurity and move to areas where their fellow ethnic community members live in larger numbers. Thus the militarizatertion of ethnic identity and territory has ensured that the ethno-political conflict is also an ongoing process of regional ethnic homogenization that has made remaining minorities even more insecure and rendered inter-ethnic relations more tense.
The Northern Province has experienced a particular high toll in militarized forced displacement. Two notable examples in this respect are Tamil people who were evicted by the military from those regions declared to be High Security Zones (HSZ) and the Muslim community forced out of the Province en masse by the LTTE in claiming the region as an exclusively Tamil ‘homeland’. Given their numbers and their historic contribution to the regional identity, addressing the right of return of these two categories of displaced people will be particularly significant in long term peace building.
The cessation of hostilities from 2002 saw the cautious, gradual return of many IDPs during the early period of the CFA. However, victims for forced displacement such as the HSZ Tamils and Northern Muslims were not able to return in significant numbers because the security situation remained fraught. The issue of the remaining IDPs is not only a humanitarian issue but also political issues which need the attention of the peace talks in order to progress in its task of creating normalcy in the war affected areas.
The paper addresses the issue of right to return of the Muslim community that was forcibly evicted by the LTTE. The vast majority of this community continues to live in IDP camps in Puttalam as forgotten victims of the conflict. While focusing on the Northern Muslims, we see the HSZ Tamils as similarly situated.
As noted already, addressing forced displacement is a necessary element of peace building – and in particular an effort to rebuild a Sri Lanka where territory is demilitarized and ethnic pluralism embraced in all regions by recognizing and facilitating the right to return of displaced people. For Muslims from the Northern Province, the fact that the LTTE has formally announced that the Muslim community can return to their homes is a positive sign. Moreover, the historic links between the Muslim and Tamil people of the Northern Province provides the ground for rebuilding those ties, and building conditions of the re-integration of returning Muslims.
Situation of Muslims displaced from the Northern Province
The issues confronting displaced Northern Muslims will have to be placed in its proper context to recognize the gravity of the problem and develop a constructive approach. The eviction took place at the time of what is now termed the Second Eelam War. Muslims were 5 percent of the total population of the province. The LTTE gave a 48 hours ultimatum for Muslims to leave the Province; In Jaffna, the provincial capital where there was a concentration of Muslims, the ultimatum was two hours. The majority left with only the clothes on their back; they were ordered to leave leaving all movable and immovable assets. A significant proportion of the displaced live in IDP camps in the Puttalam region (see Hasbullah,2001).
Notwithstanding the enormity of this event, the ethnic cleansing of Muslims from the Northern Province and its consequences has gained little attention nationally or internationally. The ethnic conflict continues to be described as a Tamil-Sinhalese conflict and the main actors remain the government and the LTTE. This is the case in times of war, but it was also the case in times of peace. The importance of rectifying the impact of ethnic cleansing as part of a peace building effort has not been recognized and there was little progress towards finding a durable solution to the problems of displaced people even during the course of the ceasefire period. The return to conflict has made the prospects of return even more remote. Relatively, the gravity of the human rights violations suffered by those forcibly displaced has been unacknowledged.
The studies (Hasbullah, 2003) done for the Sub-Committee for Immediate Humanitarian and Rehabilitation Needs (SIHRN) of the Peace Talks 2002 on the issue of the return of forcibly evicted Muslims reveal that there are many barriers to return. This includes insecurity given the continued militarization of the region, and difficulties with access to their property given the destruction or take-over of their houses and lands in the preceding years. In some cases assets and properties belong to Muslims of the North have been changing hands because displaced Muslims have sold them under duress. In other cases they have been occupied and used by the local Tamil population and the LTTE. In yet other cases, government officials, knowingly or unknowingly, have allocated these lands for development and resettlement activities. It is evident that the landscape of the places where displaced Muslims lived over17 years ago has transformed into a mono ethnic region which may discourage Muslims from returning and aggravate their sense of isolation and insecurity. Given this backdrop, further research is needed to better understand the living condition of Muslims in those conflict affected regions where they do live (such as Mannar); we also need to better understand the current aspirations of displaced Muslims in the areas where they are living as displaced.
The rights of the displaced in International Law
The rights of the displaced are supported by the international legal and normative framework. The Guiding Principles on Internal Displacement are unequivocal in saying that everyone has a right to protection from displacement (See Section II of the Guiding Principles), right to protection and humanitarian assistance during displacement (See Section III and IV of the Guiding Principles) and a right to return, resettlement and reintegration (See Section V). This latter issue is especially important to us and has been reiterated in several other international instruments. Article 13(2) of the Universal Declaration of Human Rights (UDHR) states that "everyone has the right to leave any country, including his own, and to return to his country”. The right to return is most clearly enshrined in the 1966 International Covenant on Civil and Political Rights (ICCPR) under its provisions on the right to freedom of movement (Article 12). International refugee law and international human rights law mutually reinforce each other on the right to return. United Nations General Assembly Resolution 194 (III) of 11 December 1948 resolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date.
Moreover, it is understood that to make exercise of this right meaningful, there needs to be guarantees of security (See Principle 28 of the Guiding Principles on Internal Displacement). The properties and lands of the displaced need to be recovered to the extent possible and when not possible the government has to provide just compensation or reparation (Principle 29 of the Guiding Principles). These responsibilities also extend to an obligation to provide all necessary assistance to facilitate reintegration in the community and full participation in public life (Principle 29 and 30 of the Guiding Principles). Participation is also a critical dimension in determining the conditions of return and the entire reintegration and resettlement process; there is emphasis in the Guiding Principles that the point is not only to affirm the right to return but to return with dignity (Principle 28 of the Guiding Principles). In the Sri Lankan context it means that IDPs need to be consulted on their needs and priorities and creative ways need to be found to ensure that they can participate in different tiers of peace processes and other policy making venues that could determine their fate. Without such participation there is little hope that their issues will be recognized and that meaningful steps will be taken to advance their interests and enable IDPs to exercise their right to return.
The return of the displaced and peace processes
There are approximately 25 million people displaced by conflict internationally so addressing the right of return has been increasingly recognized as an important dimension of resolving conflict and building peace. Thus, most peace agreements in recent years recognize importance of making special provision for the return of the displaced people. For instance, peace agreements in El Salvador, Guatemala and Burundi made reference to the right of return and called for measures to facilitate reintegration. Chapter Seven of Dayton Agreement focuses entirely on the issues around the return of the displaced people. Likewise, the Kosovo Accord too had a clear mandate to protect the interests of the returnees. Moreover, many successful (relatively speaking) peace accords strengthen the general affirmation of the right to return with specific provisions that detail the steps that the authorities need to take to create the preconditions for return of the displaced. For example the peace agreements in Guatemala, Liberia, Burundi, Bosnia, Cambodia and elsewhere note the need for guarantees of security; in countries such as Bosnia, there was an ethnic and racial dimension to the conflict so reintegration of the displaced had to be an integral dimension of peace building. Thus in Bosnia the peace accords also specify sanctions against those who interfere with the security of returnees and proactive protection efforts for minorities who are returning after displacement. When these peace agreements were drafted there was significant concern that the conflict should not have been seen to enact and confirm regional ethnic homogenization; rather, ethnic cleansing efforts needed to be rolled back if pluralism and security were the foundation of a durable peace.
Recent international experiences reveal that parties to peace talks ought to agree and implement effective measurers that would address and redress the question of right to return. Drawing Balkans’ experience as an example, it seems that it is necessary to recognize right to return and facilitate through legal protections and appropriate mechanisms. The Dayton Agreement, for example, while recognizing the important of right to return in peace agreement, set up two commissions to implement the agreement. The two commissions appointed in the Dayton Agreement are a Commission for Real Property Claims of Displaced Persons and Refugees and the Human Rights Commission. The first commission that was setup under Dayton Agreement was to re-establish property rights of displaced people who had ethnically cleansed in order to guaranteeing them a right to return. The second commission that was setup was to provide protections to the returnees especially to those who feel vulnerable on return home.
Future peace building efforts in Sri Lanka need to move beyond the CFA (which has no reference to the issue of right to return) to affirm the right of return. Peace talks need to recognize and facilitating the right to return is a confidence building measure for minorities and as a fundamental dimension of the return to normalcy. This is important for humanitarian reasons because IDPs have suffered too long. This is also important for pragmatic purposes to ensure a sustainable peace that will gives all communities a stake in the peace process. Additionally, it is important because it complies with international law principles and international best practices for peace building. Most of all it is important because IDPs have a right to return and we owe it to them to deliver on that right.
Recognizing and facilitating the right to return
A holistic approach to the right of return will require recognition that there are many factors that need to be set in place to ensure that such return is supported and viable in terms of immediate humanitarian needs, as well as dependable physical security, sustainable economic security and positive long term relations with other ethnic groups.
Participation in Policy Making: As noted already the IDP community should participate in processes that will determine how return and reintegration will take place. The dignity and self respect of the displaced must be recognized setting up appropriate institutions and consultative mechanisms for their participation. This is not only a humanitarian need but an important political priority.
• Security: In recognizing the rights to return of this particular displaced community, it is necessary to recognize that the community as a whole has a genuine feeling of insecurity, including the fear of the possibility of another expulsion. There is also fear regarding the prospects for participation in civic life such as the possibility of not having free mobility and expression and challenges to practicing the community’s religion and culture.
• Restitution: The return of Muslims has to be accompanied by a number of other preparatory measures such as regaining assets and properties that were lost and left behind. As has been noted already, the property issues are likely to be complicated because title will be difficult to prove given the passage of time. Many of the former homes of the Muslim community have been occupied, destroyed in fighting or sold under duress. Moreover, much of the land has been taken over or reallocated. Whatever can be traced and restored to their original owner must be done and the rest needs to be adequately compensated. Steps should be taken to ensure that legal provisions of the state of Sri Lanka concerning property rights, and those of the LTTE in the areas of LTTE control, should incorporate and address the property rights of displaced groups. In addition to individual property claims, steps should also be taken to rebuild the physical and social environment where these communities lived (this includes buildings such as schools, markets, mosques) that had been destroyed, taken over or left to decay for more one and half decades.
• Resettlement and reintegration: Reintegration is a complex process that promotes inter-ethnic unity while also promoting appreciation of the ethno-cultural distinctiveness of each community. This requires peace building work with the Tamil and Muslim community and measures to build mutual confidence in reintegration and resettlement. This also ensures that basic humanitarian needs of all communities are met. Civic integration will also be helped by work done in schools, workplaces and in public life to engender political participation by the Muslim community.
Provision for Alternatives: While the right of return is fundamental and must be guaranteed to all who want it, provision must be made for those displaced people who do not want to return. This must include compensation that makes provision for resettlement in other parts of the country.
• Reparations: We have already noted restitution and compensation of property owned by displaced individuals. In addition there needs to be reparations for the original displacement which was itself a human rights violation. Moreover, the impact of the eviction, living nearly one and half decades in a miserable life of displacement, warrants compensated. Reparation measures should affirm that fundamental rights were violated when forced displacement took place, and provides some measure of finances and services in order for them to re-start their lives.
• Justice/Truth/Acknowledgment: Ethnic cleansing is a violation of constitutional rights in Sri Lanka and international human rights law. ‘Victims’/survivors have a right to official acknowledgment that this was wrong. They also need to be able to convey their experiences to the public and share the truth of their experience with the whole nation. ‘Victims’/survivors also have a right to justice and accountability to redress this wrong.
From the time of CFA, several ad hoc measures have been implemented concerning the resettlement of IDPs. It is the time to go beyond such ad hoc initiatives and develop a more systematic and holistic policy as outlined above. Moreover, we need to build acceptable and accountable legal mechanisms and institutions to address the question of right to return of all refugees and displaced especially those who were evicted and ethnically cleansed during the height of ethnic tension and war during the last two and half decades in Sri Lanka.
It is undoubtedly true that the smooth return of Muslims to their places of origin in the north will strengthen the possibility for a lasting solution to ethnic conflict. In this respect, facilitating the return of Muslim IDPs may have to accompany cessation of any activity that may discourage or prevent their spontaneous return; Taking necessary confidence building measures including giving re-assurance for their return; Providing immediate humanitarian assistance to address their current resettlement needs and priorities; Re-establishing necessary infrastructure facilities in the places of origin for group and community return; Planning for a stage-by-stage return; Protecting and preparing the displaced where they are now; Giving alternate options to resettlement in their original places and so on.
Conclusion:
Recognizing and facilitating right to return would be one of the major steps in the progress of any peace negotiation. Such attempts would not only contribute to a durable solution to displacement but would promote pluralism and demilitarization.
Even at this time of war, where safe return looks ever more challenging; all Sri Lankans need to recognize, promote and seek to facilitate the right to freely return. The international community has to play a major role in facilitating the right to return and ensure effective measures that facilitate exercise of that right. Recognizing the right to return and facilitating the return will be important not only in reversing ethnic cleansing but also in contributing to a durable solution to the ethnic conflict.
- Sri Lanka Guardian
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