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Excerpts from the address of Ian Martin, Vice President, International Center for Transitional Justice at the Federal Department of Foreign Affairs, Switzerland, Political Affairs Division IV, Annual Conference, held in Bern, September 9.

Children of the North-East - an insecure group

You will often hear from human rights NGOs the reminder that violations of human rights and humanitarian law serve to intensify conflicts, and that even if a peace agreement is reached, peace will not be sustainable without respect for human rights. You will also hear from peace negotiators, whose priority is to bring an end to the bloodshed, that the most fundamental human right of all is to live in peace, and that respect for human rights depends first upon security.

Both perspectives are entirely valid, and both can be amply illustrated from the bitter history of Sri Lanka. In exploring the relationship between them, I want to suggest that it has three aspects. Two of these aspects are, I think, uncontroversial in principle, even if they post difficult issues of implementation in practice.

The first is that commitments to respect human rights and humanitarian principles by parties to a conflict, and the verification that they are being fulfilled in practice, can help to create the climate for an eventual peace agreement. The second is that once an agreement has been reached, its sustainability requires the reform or creation of institutions to protect and promote the human rights of those on both or all sides of the former conflict.

The third aspect of the relationship is more controversial and may pose dilemmas, or tensions, some would argue, between peace and justice: how should the legacy of past violations be addressed, having regard to the claims of victims and the accountability of perpetrators?

First, then, it is not just a theoretical proposition to say that commitments to respect human rights and humanitarian principles by parties to a conflict, and the verification that they are being fulfilled in practice, can help to create the climate for an eventual peace agreement: it is one which has been proved in practice. In both EL Salvador and Guatemala, a first major step towards the end of long and bitter civil wars was the commitment that both government and rebel forces would fully respect humanitarian and human rights principles: not just a rhetorical commitment, but a mutual signing of detailed undertakings, and an invitation to international verification of the respect of these undertakings in practice.

The presence of human rights observers then helped to ensure that the undertakings were increasingly respected and reduced the suffering of civilians, while enhancing the confidence of each side to the conflict that the mutual commitment was being sustained by the other. It should be noted, too, that the role of civil society in demanding such undertakings, and in helping to shape the human rights aspects of the agreements and to insist upon their implementation was a crucial one. It was in this increasingly positive context that negotiations progressed, in each of these two countries, towards an eventual comprehensive peace settlement.

The second unambiguous relationship is that the sustainability of peace will be enhanced by the respect for the human rights of all sectors of the population after armed conflict has come to an end - indeed it depends upon it. It is for this reason that it is now well recognised - certainly by the United Nations Secretary General, in his guidance to his Special Representatives - that human rights guarantees and the institutional arrangements necessary to sustain them should be an explicit part of peace agreements.

It is correspondingly recognised that one of the highest priorities in post-conflict peace-building is the restoration or creation of the institutions essential to the rule of law: an impartial judiciary; a civilian police force drawn from the local population whom it is to police, trained in the respect for human rights and able to maintain order while the military remain in their barracks; decent detention facilities in which the human rights of inmates are respected.

So in these two respects the positive synergy between promoting human rights and promoting peace is clear. When however one turns to consider the legacy of past violations, one encounters real dilemmas in the simultaneous pursuit of peace and respect for human rights. To what extent may it be necessary and justifiable, at least in the short-term, to compromise human rights principles of accountability in order to negotiate a peaceful solution to a conflict? And once conflict has been halted, how far may it be necessary to compromise human rights principles to preserve peace and bring about reconciliation? Does the pursuit of justice threaten or sustain the peace? What are the complex relationships among justice, truth and reconciliation?

When the ceasefire agreement was signed in Sri Lanka at the beginning of 2002, it was of course greeted with overwhelming relief. It was primarily an agreement to cease military hostilities, not a human rights agreement, but the parties also committed themselves to rapid improvements in human rights.

These included restoration of freedom of movement, an end to arrests under the Prevention of Terrorism Act, and a key commitment which I quote: "The parties shall in accordance with international law abstain from hostile acts against the civilian population, including such acts as torture, intimidation, abduction, extortion and harassment." Under the agreement a mission was established to monitor its observance by the parties - the Sri Lanka Monitoring Mission, led by Norway and composed of monitors from Nordic countries.

The human rights community in Colombo shared the general joy at the ceasefire, but urged that the parties should make more detailed human rights commitments, perhaps in the form of a separate human rights agreement such as the one reached at the beginning of the El Salvador peace process, with an effective mechanism for monitoring compliance.

As talks began, they and international NGOs argued that human rights should be given early and specific attention. It was Amnesty International which specifically suggested that a human rights adviser be invited to participate in the process, and after each of the parties agreed in principle to his, I was invited to participate for the first time as the fifth session in February this year.

The first request to me was that I draw up what was referred to as a "roadmap" for human rights issues relating to the peace process. This should include substantive human rights activities and commitments to be implemented throughout the negotiating process; effective mechanisms for the monitoring of human rights; training of LTTE cadres and Government of Sri Lanka officials in human rights and humanitarian law; and training of police and prison officers.

Some of the improvements in respect for human rights required by tbe ceasefire agreement were rapidly seen in practice, but in other respects human rights violations continued or took on a different character. Before my own involvement, the parties had already discussed within the peace talks several issues with major human rights dimensions.

First, they had determined that an immediate priority was to accelerate the resettlement and rehabilitation of internally displaced persons. Second, they had discussed the status and release of Tamil prisoners held under the Prevention of Terrorism Act. Third, they had acknowledged the need to ensure that the priorities and needs of women are taken into account in all aspects of the peace process, and had established a Sub-Committee on Gender Issues, which first met in early March.

Fourth, they had stressed the need to improve the situation for children affected by the armed conflict, and the LTTE had engaged in a partnership with UNICEF to draw up an action plan for restoring normally to the lives of children of the North and East affected by war, including redressing the problem of under-age recruitment. Fifth, they had recognized the need for efforts to clarify wherever possible the fate of persons missing in action and involuntary disappearances.

In the last session of talks which took place before the LTTE suspended its participation, at Hakone, Japan, in March, I presented as requested a suggested roadmap. The parties had already expressed their commitment to pursuing the five issues I have just referred to. They have also consistently expressed an interest in human rights training for LTTE cadres and Government of Sri Lanka personnel, and for police and prison officials of both parties.

They have recognized that the new constitutional arrangements to be the final outcome of the negotiations should fully reflect Sri Lanka's international human rights commitments, and should provide firm foundations for institutions to protect human rights effectively in a federal structure within a united Sri Lanka. This should include:

* Entrenchment of human rights standards in the constitution and federal and local law;

* Legislative reform to ensure consistency with these standards;

* Ensuring effective protection for those who are in a minority situation;

* Ensuring that institutions which will promote and protect human rights have a clear place in the new arrangements, and that their operation covers all levels of government;

* Arrangements for policing which is accountable, representative, responsive to local needs and trained in human rights standards; and

* A judiciary which is representative, trained in human rights, and with guarantees of independence.

But in the immediate, stabilization stage of the Sri Lanka process, perhaps the most crucial issue is the commitment to human rights and humanitarian standards, and to their effective monitoring, in the period before these can be enshrined in such new permanent arrangements.

At Hakone the parties asked me to draft a Declaration of Human Rights and Humanitarian Principles, which would reflect aspects of fundamental human rights and humanitarian standards, which both parties would undertake to ensure are respected in practice by their personnel, pending the full entrenchment of human rights standards in the eventual constitutional arrangements and in federal and local law.

They had an initial discussion of monitoring arrangements, and asked me to develop proposals for the strengthening of the Human Rights Commission of Sri Lanka to enable it to develop the capacity for increasingly effective monitoring throughout the country.

These proposals, they agreed, would involve international advice and assistance to the Human Rights Commission from the Office of the United Nations High Commissioner for Human Rights and other sources, and close coordination with the roles of UNICEF in relation to child protection, UNHCR in relation to the protection of returning internally displaced persons and refugees, and the Sri Lanka Monitoring Mission in relation to acts against the civilian population.

I stand ready to present such proposals, if still requested to do so, when the talks resume, as we must all hope they will do in the near future. You will understand that, as an adviser to the parties in a confidential process, my advice must first be offered to them, rather than expressed publicly.

But I want to reaffirm my conviction that a principled and effective approach to human rights issues will be critical to the outcome of the Sri Lanka peace process, as it has been to other peace processes, and that conversely the process will be imperiled if they are not addressed.

The conflict in Sri Lanka has its roots in the violation of human rights of Tamils within the Sri Lankan State. Its bitterness has been reflected in the abuses against non-combatants committed by both parties during the conflict, and the bitterness has been perpetuated by these abuses.

Tens of thousands of victims and relative of victims have been traumatized. Emergency legislation has violated the rights of other. The economic and social rights of all Sri Lankans, but particularly the population of the most directly war-affected areas, have been diminished or denied. As in all conflicts, children and women have been among those most seriously affected.

We have seen and are seeing that support for the peace process of different sectors in different parts of the island depends crucially on issues of human rights which extend beyond the cessation of hostilities. The frustration of internally displaced persons still unable to return in safety to their homes. The insecurity of the Muslim population and others who find themselves as local minorities. The wave of assassinations which has targeted members of Tamil political groups and people connected with the security forces. The continuing detention of people who have not been fairly convicted. The agony of those who still do not know the fate of their loved ones.

When I first had the opportunity to address the parties at the talks, I said that few things could give me greater satisfaction than to make even small contribution to sustained peace and enjoyment of human rights for all the people of Sri Lanka. I know that it goes for the Government of Switzerland.

I am sure it goes for all of us here at this conference, and that today will enable us to strengthen our commitment and capacity to do what each of us can towards that end.

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