Time for international action to address violence against women and girls in crisis situations

London, 13 November 2013
The International Planned Parenthood Federation (IPPF) has thrown its weight behind an initiative by the UK's Department for International Development (DFID) to ensure global action to address violence against women and girls in humanitarian situations such as the on-going crisis caused by Typhoon Haiyan.
In the wake of disaster or conflict women and girls face very particular sets of challenges – and the risks associated with sexual violence escalate in situations where large parts of a population are displaced or where law and order have broken down.
Women who are pregnant at the time of a crisis, young people separated from their families – the challenges are varied and enormous and must be given equal weight in any humanitarian response.
IPPF's Director General Tewodros Melesse said: "Imagine what it must be like to be separated from your family, forced to flee your home and then find yourself living in a tent, among strangers, vulnerable to sexual violence.
"The risks faced by women and girls need particular attention – whether it is the danger of sexual exploitation by the people controlling the food supply or being able to deliver a baby in safe, hygienic circumstances.
"IPPF is a grassroots organization – we work through 152 Member Associations in more than 170 countries. So when disaster strikes we are already there working for sexual and reproductive health and rights. Our emergency packs (the Minimum Initial Service Package or MISP) contain vital supplies from equipment to enable the delivery of babies, through to emergency contraception, condoms, anti-retroviral drugs and much more."
By 2015, IPPF will provide more than 1.2 million sexual and gender-based violence services to women and girls.
Dfid's summit – on 13 November 2013 – will bring together a host of international agencies and Civil Society Organizations (CSOs) including IPPF.
As a global service provider and leading advocate of sexual and reproductive health and rights (SRHR) for all, including those living in humanitarian settings, IPPF is at the forefront when it comes to assisting women and girls during conflict, in its wake and when natural disaster strikes.
We also work with women and girls in situations arising from trafficking, early and forced marriage and harmful practices including female genital mutilation.
All of these situations result in specific vulnerabilities and dangers to women and girls. IPPF together with its Member Associations works with a wide variety of other agencies to make sure essential medical life-saving services and support get through.
And we're there for the long haul, ensuring that these solutions are matched with long-term needs and that they have a developmental impact for the whole community.
Notes for editors
IPPF is a pioneer and key implementing agent of the Minimum Initial Service Package (MISP) for Sexual and Reproductive Health in Crisis).
Since 2007, IPPF has trained more than 400 lead trainers and 4,000 national co-ordinators across 95 countries. Our work continues to evolve and expand to meet the needs of those affected by crises.
This includes both sides of the Syria crisis through our Syrian Member Association based in Damascus and through our Jordanian Member Association working in the refugee camps.
We are also expanding services in the Democratic Republic of Congo following a recent visit by IPPF's Director General, Tewodros Melesse and by the Special Representative of the UN Secretary-General on Sexual Violence in Conflict and UNFPA's Executive Director.
Working through our Member Association in Uganda, our SPRINT programme supported the provision of sexual reproductive health services to approximately 9,000 refugees in Uganda affected and fleeing the protracted conflict in the Democratic Republic of Congo.
We have also made a number of key advocacy advances for instance in Pakistan, the government has integrated the MISP into National, Provincial, and District Disaster Management Authority policies.       

SRI LANKA: A short report on the features of the increasing authoritarianism

SRI LANKA: A short report on the features of the increasing authoritarianism

In her media statement from Colombo on 31 August 2013, Dr. Navi
Pillay, the United Nations High Commissioner for Human Rights, said,

"I am deeply concerned that Sri Lanka, despite the opportunity
provided by the end of the war to construct a new vibrant,
all-embracing state, is showing signs of heading in an increasingly
authoritarian direction."

It would be useful to mention what some of the features of this
increasing authoritarianism are. The following observations may be
made:

1. There is no place in this authoritarianism for law. During British
colonialism in Sri Lanka, from 1815 to 1948, law was established as
the overall organizing factor in society. There was a law for more or
less everything. The operational principle was that whatever any
legitimate authority does should be defined in terms of law. It can be
said that after over a century of government based on law, law became
imbedded in the Sri Lankan consciousness, and therefore a basic
foundation for the rule of law was quite settled in Sri Lanka.

However, the constitutional changes introduced in 1972 and 1978, and
the events of the last 40 years, have undermined that functional
system in which government actions had legitimacy and justifiability.
It is difficult to determine what is legal and what is illegal at any
given moment. This uncertainty and ambiguity runs into everything,
including the criminal law, public law and, to a great extent,
property laws.

This uncertainty and ambiguity have also placed the courts in a very
difficult situation. The importance of the courts has been undermined
to a very significant extent. The overall public perception that has
developed increasingly treats the courts as somewhat irrelevant.

The citizen has lost their belief in the possibility of legal redress
for wrongs they may have suffered. In fact, the uncertainty of the
legal situation also results in ambiguity about what legally
recognized wrongs are. As mentioned this has spread into criminal law
and public law, as well as the property laws.

Thus, the creation of uncertainty and ambiguity about the law, legal
wrongs and legal remedies has permeated into every aspect of life.

2. Resulting from what is stated in the above paragraph, there is also
uncertainty and ambiguity about all public institutions. What the
parliament is and what it is supposed do are questions that citizens
would find difficult to answer. What practical experience shows is
that the parliament merely does what the Executive President wants and
there is nothing that the parliament can do that the Executive
President does not want. The idea of making laws in line with the
consent of the people is a notion that does not have even the remotest
meaning.

The capacity of the Executive President to do whatever he wants and
get a stamp of approval, either before or after such actions, gives
the appearance of legitimacy to whatever he does. In fact, even that
appearance of legitimacy is not really a requirement, as there is no
real capacity to challenge anything on the basis of legitimacy. Thus,
even the very notion of legitimacy is not a matter of real
significance in many affairs.

3. Undermining of the independence of the judiciary. First of all,
what is said above about the undermining of the law and the problems
that exist in relation the parliament itself have affected the idea of
the independence of the judiciary. Besides that, the system of
appointments and the removal of judges from the highest courts have
created great doubts in the minds of the citizens, including the
lawyers, about what kind of outcome are possible in litigation. The
idea of pursuing litigation on the basis of the belief that the final
outcome would be in terms of the merits of the case has diminished a
great deal. The notion that there are many ways through which
political influence can affect what might happen in a case is deeply
widespread among the people, as well as the lawyers themselves. The
idea that litigation is also a matter of market practices has also
gained ground. All this poses questions as to what might be expected
from the courts.

4. The displacement of civilian policing. What was said above about
public institutions and the manner in which their role and capacity
have become ambiguous is starkly revealed by the nature of the
policing system in Sri Lanka. Its ineffectiveness is not merely due to
the incapacity of the police force itself. Rather, its ineffectiveness
is mostly a product of the overall crisis of the legal and political
systems. Police officers, including high-ranking officers, are often
"powerless".

It is difficult for any officers to fathom what he/she should or
should not do, as extraneous forces often play a role in determining
what should and should not be done. For the most part, the actions of
public institutions are controlled from outside and there is hardly
any practical way for officers not to succumb to these influences.

Besides this, the intelligence services, special security forces and
the armed forces themselves are being called upon to engage in actions
that, in previous times and under a rule of law system, would have
belonged only to the civilian police. These outside forces are
directly controlled by the Ministry of Defence and are only
accountable to those who hold power within that ministry. The crisis
of law and the courts mentioned

A further factor that affects the nature of the police is the
ever-lessening importance given to criminal law and procedure. Both in
terms of the powers and resources given to the police (particularly
from the point of view of budgetary allocations for the actual work of
criminal investigations) the police establishment is treated as an
institution of the least importance. The Sri Lankan police force today
is extremely backwards, both from the point of view of training and
capacity, as well as in terms of the space available for it to
exercise its functions independently.

One of the consequences of undermining this institution is the extreme
use of brutality on suspects by the police. There is a great deal of
documentation on the routine torture that is exercised almost on
everyone brought into a police station.

Resulting from these factors, there has been a breakdown of discipline
within the police establishment. The disciplinary control exercised in
former times no longer exists. Higher-ranking officers are very much
involved in wrongdoings, both from the point of view of political
subservience as well as corruption, as are many of their subordinates.
The hierarchy of the police lacks the authority that their forerunners
enjoyed in previous times.

This collapse of the policing institution aggravates the situation
relating to the law as described in the earlier paragraphs.

5. Political control of the Attorney General's Department. One of the
legacies of the British was the Attorney General's Department, which
was modeled after the British Advocate General's Office. For a long
period of time, this department produced very competent prosecutors
and leading lawyers on behalf of the state. They were aware of the
basic traditions and guarded their independence. The department
developed a very strict protocol in dealing with government
ministries. As the chief legal advisor for the government, the
Attorney General advised the government on the legality of proposed
laws and actions. The whole system was geared to ensure that the
government conformed to the law.

Unfortunately this situation has been undone and the process of its
undoing went on for several decades. It is now in a state of deep
degeneration.

The department is now directly under the Presidential Secretariat. The
protocols that guaranteed independence have been abandoned. The
department has been brought under direct political control.
Prosecutions are filed against political opponents directly under
political instructions. On the other hand, indictments that have
already been filed on sound legal bases are withdrawn or modified to
suit powerful politicians. The Attorney General is supposed to oppose
proposed legislation that is illegal and against the rule of law; this
function is no longer carried out. Even on the matter of the unlawful
removal of the Chief Justice, Dr. Shirani Bandaranayke, the Attorney
General's Department went out of its way to support the government.
Now the Attorney General has himself filed an action against the Court
of Appeal's judgement against the Parliamentary Select Committee, a
judgment that the government refused to carry out. The earlier
tradition of the Attorney General not to support the alleged
perpetrators in cases of human rights violations, particularly
fundamental rights violations, has been abandoned and department
lawyers take an active part in opposing fundamental rights
applications from citizens. There is a deeply negative impression of
the department among the people.

6. The emergence of the all-powerful propaganda machinery of the
state. What is being offered in place of legality and legitimacy is a
propaganda machinery of extraordinary power, which attempts to
convince the people that any action taken by the government is right
and that those who oppose those actions are evil. These attacks on any
kind of rational opposition are part of a most vicious campaign,
unleashed through the media and brought into every house in the
country. Many of the government's actions are prepared for beforehand
through prolonged propaganda, and this includes attacks on anyone whom
the government wants to take action against. The attack on Chief
Justice Dr. Shirani Bandaranayake while she was still in office was
one such vilification campaign, the likes of which had never been
witnessed before. The campaign started with the view to force her out
of office on her own. When that did not take place, propagandizing was
intensified in order to create the impression that the government was
right in what it was doing and that every move taken for the purpose
of her removal was correct. The content of such propaganda is
viciously manipulative, as is the language used.

The lowest levels of language are used to humiliate opponents. The
opponents themselves are not given any opportunity to have their
version of events heard. The hate campaigns against opponents are
reminiscent of the type of medieval campaigns that we read about in
Western history books.

Heavy repression against the free media has also become a permanent
feature in Sri Lanka. Assassinations, abductions, forced
disappearances, causing of physical harm and threats of assassinations
to journalists have created an overall environment of fear and
intimidation. Large numbers of competent journalists have left the
country to live in exile. Besides journalists, media establishments
and publishers have also been targeted in attacks. Creating
circumstances that force private media establishments to sell those
establishments to persons with close association with the ruling
political regime is also a feature of the contemporary situation. As a
result of this repression people have lost the opportunity to listen
to alternative views on matters of public importance.

The consequences of these radical departures

All these radical departures from what existed in the country have
already continued to have extremely disastrous consequences. Some such
consequences are as follows:

a) Resorting to direct violence. This direct use of violence is
facilitated by various developments. One is a change in the practices
relating to arrest and detention. There has been a large-scale
practice of killing persons after detaining them. This began in the
aftermath of the 1971 JVP insurrection, during which, in general
estimations, around ten thousand persons were killed. These killings
were not combat killings. People were arrested, often interrogated,
and thereafter disposed of. This practice was again continued in the
South, from 1987 to 1991. The government appointed Commissions into
Involuntary Disappearances, which recorded that there were around
30,000 such disappearances. As the commissions pointed out, the word
'disappearance' during this time meant abductions in place of arrest,
followed by interrogations, killings and the disposal of bodies. A
similar practice was also carried out in the North and East throughout
the 27 year conflict between the LTTE and the government.

In Sri Lanka, the idea of taking political prisoners does not seem to
exist (except in rare instances), particularly after the killing of
several prisoners during July 1983 Riots. Instead, killing after
arrest became a frequent practice. There may be complex reasons that
give rise to this situation. The overall approach seems to be based on
the fact that that this method is the most convenient and does not
carry many logistical and administrative obligations. The whole matter
is over within a short time; after the disposal of the body. If
political prisoners are to be kept, arrangements need to be made for
recording their statement and other matters, and this leads to
obligations under the criminal procedure laws. Perhaps the most
difficult obligation is to ensure that there is an investigation that
could lead to evidence justifying the arrest and detention in front of
the courts. On the other hand, when people are made to disappear after
arrest, large-scale administrative arrangements are not required.
Disposal of persons in this manner also removes the obligation to keep
people in prisons. Keeping political prisoners in prison imposes very
heavy obligations. There are the ordinary obligations of giving
prisoners food, space and facilities for sleep, health and sanitation.
Equally important are the heavy security obligations. As political
prisoners may have their organizations, there may be attempts to
rescue them from prisons or on their way to and from the courts. There
are even greater difficulties from the heavy political propaganda that
comes as a result of keeping political prisoners. So long as prisoners
are in custody there will be agitations for their release from
political organizations, human rights groups and the families of the
prisoners. During elections, matters relating to political prisoners
can weigh heavily against the incumbent government. From the point of
view of the media, the existence of political prisoners generates much
news and political commentaries. All such complex issues can be
conveniently avoided by disposing of persons after arrest.

This method also has the further effect of creating enormous
intimidation in the population. Such intimidation deters many people
from participating in political agitation and protests. Keeping this
level of intimidation high is quite advantageous when maintaining an
authoritarian form of government.

The decisions in relation to such extrajudicial killings are left to
the security forces or the police. In such extrajudicial killings, the
functions of arrest, interrogation, execution and disposal of body are
all left to the decision of whoever does such killings. Due process
and decision-making by the courts are thus taken away. Of course, the
possibility of appeals does not arise at all.

Fabrication of charges

Arrest and detention, sometimes leading to charges being made in
courts, sometimes leading to extrajudicial executions, are often done
after fabricating accusations without any factual basis. Sometimes
such accusations are made by the police or security officers
themselves and, on some occasions, false witnesses are found to make
some complaints that enable arrest. Sometimes such fabrication of
charges is done for political purposes. There are many occasions on
which this has been done for other purposes, such as for eliciting
bribes or to intimidate persons. Often, charges of drug possession are
made on innocent persons when they bring complaints against the police
or security forces regarding violations of their rights. The threats
of bringing such charges have frequently been used to intimidate
persons.


b) The loss of the memory of the law, legal procedures and legal
redress. Further consequences include the problems of the legal
system, described as a loss of memory regarding law, legal procedures,
courts, and other aspects of legal redress. During the period of over
a century under colonial rule, a system of law was introduced and, as
a result, mental and social habits were developed. During the last 40
years, along with the undermining of the legal process, much of this
memory has been wiped out. Lawyers complain about many judges having a
much lower quality of legal understanding than in previous
generations, which helps to create the crisis of law. There is also a
stark degeneration in relation to legal knowledge and ethical
practices amongst the lawyers themselves, and it is also spreading to
litigants.

In fact, the entirety of the population is losing this memory of the
law. With time, such loss of memory becomes much greater.
Additionally, extra-legal methods for resolving conflicts develop.
Through this, new mental habits and attitudes are formed, which spread
to everybody; ordinary people, lawyers, judges, politicians,
prosecutors and the like. Thus, while positive knowledge about the law
is lost, there is a negative kind of knowledge about doing things by
illegal means that is being spread. As a result of this, there is a
development of underground and powerful elements, which attempt to
intervene to resolve problems through direct violence.

c) The spreading negligence in the machinery of administration. As a
result of the loss of the relevance of law, and the loss of law-based
administrative practices, negligence has spread to all areas of the
administration, including local government administration. In earlier
times there were supervisory and monitoring mechanisms inbuilt in all
programmes and projects. However, such supervision and monitoring has
weakened so much that many negative developments are not noticed and
there are no attempts to take preventive action to avoid serious
adverse consequences.

Some glaring instances have already surfaced. For example in
Mullative, Kilinochchi and Vavuniya in the Northern Province, there
are problems relating to severe shortages of clean drinking water.
People undergo severe difficulties and there has been an increase in
health problems due to poor quality drinking water. Similar complaints
about drinking water also exist in the North Central Province and Uva
Province, and there are complaints about the large number of cases of
chronic renal failure. The problems relating to drinking water in
Rathupaswela, Weliweriya (in the Western Province) surfaced recently,
caused, it is believed, by the operation of a factory dealing with
rubber products, where the release of waste water into the surrounding
lands has resulted in increased acidity levels in the ground water.
Under the previous administration there were regular checks of such
factories because of the possible effect on the health conditions of
the people in the surrounding areas. However, such monitoring has been
neglected. Also, for several years now, Dengue Hemorrhage Fever has
spread to the point where it has reached epidemic level. Earlier there
existed an efficient system of mosquito control and other such
parasite controls, and significant achievements were made. However,
the problems caused by neglect in the present system of administration
prevent concerted efforts from being made to overcome this problem.

The efforts to control illegal narcotics have also seriously failed.
There are regular reports about the drug trade, which is widespread in
the cities, as well as in other areas of the country. The prosperous
drug trade operates with impunity and manipulates the already weakened
legal system in the country. As a result, drug addiction has become a
serious problem.

Associated with this problem is the spread of money laundering.
According to reports, Sri Lanka has become a hub for money laundering
in the region.

These are only few examples of the manner in which the spirit of
neglect has now spread throughout the administration. It is very
likely that many other unforeseen problems will occur due to this
neglect, in all parts of the country and all areas of life.

d) Unprecedented levels of corruption. The success achieved by the
Commission to Investigate Allegations of Bribery or Corruption is very
limited. In the past these issues were not such big problems, but now
one of the areas in which law enforcement is most ineffective is in
relation to bribery and corruption. The present administration of the
commission has failed to take any effective action relating to those
who are part of the ruling political regime and its associates. The
commission is instead being manipulated for political purposes. It is
used as part of reprisals against those who are politically targeted
by the government. A clear example of this is the action taken against
Chief Justice Dr. Shirani Bandaranayake. Corruption has spread to the
extent that the country's business sector, including the foreign
investment sector, is deeply affected by this problem.

There are reports about many persons being threatened to sell their
properties far below value. When so threatened, these persons have no
option but to comply. Law enforcement officers are often a part of
such corruption networks. The recent arrest of a Deputy Inspector
General of Police, who is alleged to have been involved in the killing
of a businessman on a contract given to him and a gang that operated
under him, is an indication of the extent of the linkage between law
enforcement agents and the networks involved in corruption. Many
scandals that have come to public notice relating to the stock
exchange also manifest the depth of the prevailing corruption. Given
the crisis of law explained above, there is no solution to this
problem of corruption. It is likely to spread even more and negatively
affect all areas of life.

The loss of memory also affects the whole of the civil administration.
Previously, traditions were established to ensure rational
administration within the civil service. However, all these habits
have now been lost due to political manipulation, which the civil
servants have been unable to resist. The loss of the discipline that
was established through long years of education and development of
individuals who personified the best aspects of rational
administration will be one of the greatest problems that the country
will be faced with in the future.

One of the results of the collapse of the discipline in the civil
administration is the large scale brain drain. Educated, well-trained
and highly motivated persons who do not want to be a part of corrupt
system of administration look for other avenues of employment, which
they often find outside the country. This brain drain will also be one
of the factors that will create very serious negative consequences for
Sri Lanka in the future.

e). Rising intolerance. Undermining the law and administration of
justice has provided a base for any kind of fanatic to provoke
violence against others. There are often attacks on minority religious
groups. There have been reports of attacks on mosques and churches.
Hate speech against one religious group by another is also common.
Thus, the crisis of law has removed the environment that is needed for
tolerance and peaceful coexistence. When government comes under
criticism about the failure to prevent such attacks, it makes some
public pronouncements about protecting minorities. However, when the
whole legal system is in chaos, the government does not have the
capacity to do anything beyond making such pronouncements. The
provocateurs manipulate the crisis of law enforcement to their
advantage.

f). The North and East, and prolonged conflict related issues. The
overall crisis relating to the law and system of administration will
remain the greatest obstacle for achieving a solution to the specific
problems in the North and East, including conflict-related
accountability and the reconciliation issues. The displacement of the
civilian police, and the replacement of it with military, intelligence
services and special security services, have had a profound impact on
the situation in the North and East. The government's propaganda,
carried out through its media channels, about the possible return of
the LTTE also profoundly affects this situation. If law is not going
to be the basis of social organization, then how could the problems
affecting the people of these areas be resolved on the basis of
equality before the law? The crisis of the legal environment of Sri
Lanka is the most fundamental problem that affects all its minorities,
including the Tamils. Unfortunately this issue is not being raised
with adequate seriousness by the Tamil diaspora, who still want to
find the solution to problems in the North and East alone. However,
such a perspective is practically impossible to implement as the
overall crisis of the legal environment is the unavoidable obstacle in
every step of the way to finding a solution to the minorities' issues.
Additionally, those who oppose special attention being given to the
minorities' issues are able to manipulate the crisis of the legal
system to the disadvantage of the minorities. The highly provocative
political environment in the country could be manipulated to cause
disturbances for some time to come.

g) No implementation of the LLRC recommendations. The precondition for
the implementation of the LLRC recommendations is the rule of law. As
repeatedly shown in this report, the overall crisis of the
administration of justice is incompatible with the rule of law. It
this incompatibility that effects the implementation of LLRC
recommendations, which have been the core issue of the contestation
between the government and the international community's demands for
peace and reconciliation.

h) Overall negative psychological impact of the crisis of law and
administration of justice, and the resulting insecurity of the entire
population. The entire population of Sri Lanka is psychologically
oppressed due to the environment of lawlessness and the absence of
protection through a functioning system of administration. This
psychological condition affects the health of the people. While all
are very badly affected, it is the children who suffer the most. They
lack an environment within which they could develop their
personalities on the basis of positive human values. The scars caused
by these psychological situations will have a lasting impact on the
future of all these children. Students studying in the universities
are being adversely affected by this psychological environment. The
government often treats the students as a possible threat to security.
The highly disturbed environment also prevents a regular way of life
for these students and exposes them to many difficulties in engaging
in their academic work. The women are especially affected by this
environment where insecurity becomes the normal way of life. Thus
everyone is facing a traumatic situation all the time and there is no
way of out of it.

References

1. Fernando, Basil, Gyges' Ring -- The 1978 Constitution of Sri Lanka,
Asian Human Rights and Rehabilitation (AHRC) and Research Centre for
Torture Victims (RCT), August 2011
Internet link: http://www.humanrights.asia/resources/books/AHRC-PUB-002-2011/GygesRingSL.pdf/view

2. Fernando, Basil, Recovering the authority of public institutions -
a resource book on law and human rights in Sri Lanka, Asian Human
Rights Commission, 2009
Internet link: http://www.humanrights.asia/resources/books/AHRC-PUB-002-2009/RecoveringTheAuthorityOfPublicInstitutions.pdf

3. Kishali Pinto-Jayawardena and Jayantha de Almeida Gunaratne, Habeas
Corpus in Sri Lanka; Theory and Practice of the Great Writ in
Extraordinary Times, Law & Society Trust, January 2011
Internet link: (Click Here)

4. Fernando, Basil, The privileging of impunity in Sri Lanka's
prosecutorial process and legal system, LST Review- Vol.306 and 307 in
May 2013

5. Fernando, Basil, 'Sri Lanka; The politics of habeas corpus and the
marginal role of the Sri Lankan Courts under the 1978 Constitution',
LST Review Issue 275 &276, Vol. 21, September and October, 2010, pp
20-34, Law & Society Trust, 2010.

6. THE IMPEACHMENT Documenting the Rajapaksa Regime's Scheme, Compiled
by. Asian Human Rights Commission, March 2013
Internet link: http://www.humanrights.asia/resources/books/the-impeachment-motion-against-shirani-bandaranayake/AHRC-PRL-052-2012.pdf/view

7. Fernando, Basil, Narrative of Justice in Sri Lanka: told through
stories of torture victims, Asian Human Rights Commission, 25th June
2012
Internet link: http://www.humanrights.asia/resources/books/narrative-of-justice-in-sri-lanka/narrativeofjusticesl.pdf

8. AUTHORITY WITHOUT ACCOUNTABILITY: The Crisis of Impunity in Sri
Lanka, International Commission of Jurists Report, 2012

9. WRITTEN SUBMISSIONS ON BEHALF OF THE 12TH RESPONDENT-RESPONDENT ON
MAIN ARGUMENTS for the application of the Attorney General in case No:
SC Appeal No. 67/2013

10. AMICUS CURIAE WRITTEN SUBMISSIONS ON BEHALF OF THE COMMONWEALTH
LAWYERS ASSOCIATION AND THE BAR HUMAN RIGHTS COMMITTEE OF ENGLAND AND
WALES for the application of the Attorney General in case No: SC
Appeal No. 67/2013

11. SRI LANKA: Rapid fall into Dictatorship, Sri Lanka Chapter, in the
Annual State of Human Rights Report of the Asian Human Rights
Commission 2012

12. SRI LANKA: International Human Rights Agencies failed to notice
the Collapse of the Sri Lanka's Public Institutions of Justice, Sri
Lanka Chapter, in the Annual State of Human Rights Report of the Asian
Human Rights Commission in 2011

13. Constitutionally entrenched impunity, Sri Lanka Chapter, in the
Annual State of Human Rights Report of the Asian Human Rights
Commission in 2010

14. Abysmal lawlessness & zero status of citizens, in the Annual State
of Human Rights Report of the Asian Human Rights Commission in 2009

15. The loss of the supremacy of the law, in the Annual State of Human
Rights Report of the Asian Human Rights Commission in 2008

16. Human rights violations rise further in 2007, in the Annual State
of Human Rights Report of the Asian Human Rights Commission in 2007

17. SRI LANKA: The Situation of Human Rights in 2006, in the Annual
State of Human Rights Report of the Asian Human Rights Commission in
2006

18. SRI LANKA: Deliberate neglect of U.N. treaty body recommendations
adds to general lawlessness in Sri Lanka, in the Annual State of Human
Rights Report of the Asian Human Rights Commission in 2005

AHRC urges Nepal to tale all measures to save Adhikari couple's life

An Open Letter from the Asian Human Rights Commission to the Home Minister of Nepal

NEPAL: An urgent call to save the lives of Krishna Prasad Adhikari's parents, on hunger strike for 41 days demanding justice

Mr. Madhav Prasad Ghimire
Home Minister
Government of Nepal
Simha Darbar, Kathmandu 
NEPAL

Fax: +977 1 42 11 232

Dear Sir,

The Asian Human Rights Commission (AHRC) wishes to voice its deepest concern regarding the sharp deterioration in the health of Mr. Krishna Prasad Adhikari's parents, Mrs. Ganga Maya Adhikari and Mr. Nanda Prasad Adhikari. They have been on hunger strike for 41 days today, asking for concrete progress in the investigation and prosecution of their son's abduction and murder allegedly by Maoist cadres in 2004.

The AHRC has repeatedly drawn your attention and that of other officers of your government to their obligation in ensuring that this human rights violation - the abduction and murder of Mr. Krishna Prasad Adhikari - is independently and promptly investigated.

We are informed that unidentified men on a motorcycle abducted Mr. Krishna Prasad Adhikari on 6 June 2004 from Bakullahar Chowk in Chitwan District. He was reportedly beaten up; allegedly tortured by Maoists cadres before being brought back to the crossroad he was abducted from and shot dead.

A local Maoist leader reportedly informed his father that his son had been "wiped out". It is believed that Krishna Prasad was killed in retaliation for a land and family dispute, upon which a dispute was pending before the local Maoist's "people tribunal".  The family has repeatedly been threatened by the perpetrators not to seek justice and were displaced from their home and land.

The AHRC condemns the lack of investigation in this case in spite of the family having immediately filed a complaint in the Chitwan District Police Office and repeatedly approached the Chitwan and Gorkha District Administration Offices, the Gorkha District Police Office, the National Human Rights Commission, the Ministry of Peace and Reconstruction, the Prime Minister's and the President's Office, to no avail. The AHRC is informed that the alleged perpetrators have been benefiting from high level political protection, which has reportedly brought the investigation to a standstill.

In 2009, the NHRC recommended that the victim's family should be provided with Rs. 300,000.00 as compensation, rehabilitated to their home and their security should be ensured. However, those recommendations have remained unimplemented so far.

Krishna Prasad's mother and father, Mrs. Ganga Maya Adhikari and Mr. Nanda Prasad Adhikari, started a hunger strike in the streets of Kathmandu in January 2013 and have been repeatedly arrested and harassed by the police. On 14 June, they were arrested and forcefully confined to a mental hospital for 35 days, their family members and human rights activists were not provided with an easy access to them. Upon their release they resumed the hunger strike on 21 July, and their health has quickly deteriorated.

The couple was forcefully admitted to the Bir Hospital, and since 20 August have been kept at the intensive care unit under police guard. They are not allowed to receive visitors. According to their doctors, the couple is on the path of metabolic derailment and have only accepted to receive intravenous drip.

Gang Maya's health is the most concerning, her blood pressure is reportedly low, she is suffering from deep vein thrombosis, and gastrointestinal bleeding. Her husband's muscle mass is diminishing although his health is more stable for now. The AHRC reiterates its deep concern for the couple's health and urges you to ensure that all measures are taken to guarantee their physical integrity, give them access to all the medical care required and yield to their demand for justice.

The AHRC is encouraged to learn that on 11 August, in a meeting with the NHRC, you had committed to see that tangible progress would be made in this case.

We wish to recall the provisions of the United Nations' updated set of principles for the protection and promotion of human rights through action to combat impunity mandates: "tates undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished."

The Comprehensive Peace Agreement contains commitments by the parties not to condone impunity and to protect the victims' rights. Furthermore, The AHRC wishes to underline that the Supreme Court of Nepal has repeatedly ruled, that transitional justice institutions did not supersede the authority of the criminal justice system and has ordered the authority to conduct independent investigations and prosecute the perpetrators in a number of landmark cases of human rights violations committed during the conflict.

Therefore the AHRC urges you, as the Home Minister of Nepal, to uphold those principles and the victims' fundamental rights to a legal remedy.

We urge you to ensure the implementation of the recommendations of the NHRC, in particular the much-delayed impartial and independent investigation of the circumstances surrounding the murder of Krishna Prasad Adhikari, for the prosecutions of perpetrators in proceedings that meet international standards of justice delivery. Furthermore, please make sure that the Adhikari couple receives the medical attention they need and are protected from threats and retaliations from the perpetrators.

Sincerely

Bijo Francis
Executive Director

CC. 1. Mr. Khil Raj Regmi, Chairman, Council of Minister of Nepal

Sri Lanka heading towards authorotarianism: UNHCR Chief Navi Pillay

A Statement from the Asian Human Rights Commission

Before leaving Sri Lanka after her week-long visit the UN High Commissioner for Human Rights, Navanethem Pillay, made a media statement in which she expressed her deep concern about Sri Lanka heading in an "increasingly authoritarian direction". She said,

"I am deeply concerned that Sri Lanka, despite the opportunity provided by the end of the war to construct a new vibrant, all-embracing state, is showing signs of heading in an increasingly authoritarian direction".

The Sri Lankan government has criticised this statement as transgressing her mandate and the basic norms which should be observed by a discerning international civil servant. Authoritarian governments always try to portray the issue of authoritarianism as being a political one rather than a human rights issue. That is quite understandable as the heart of authoritarianism is the destruction of the civil liberties of the individual.

However, authoritarianism is the most crucial problem of human rights and where it appears no one who holds a mandate for the protection and promotion of human rights and no discerning civil servant, international or otherwise, can ignore it. High Commissioner Pillay in boldly raising this issue has shown her maturity as a great human rights defender and proven her capacity for leadership in the field of human rights when dealing with the most difficult problem which negates human rights, authoritarianism.

In raising the issue of authoritarianism in relation to Sri Lanka she has virtually given a new direction to the United Nations in its efforts on human rights as well as to the international community and the civil society in Sri Lanka. From now on in all efforts relating to human rights in Sri Lanka the focus needs to be on the fundamental negation of human rights by way of authoritarianism.

Long years of conflict between the LTTE and the government resulted in creating great confusion on the actual nature of political development in Sri Lanka. The 1978 project of displacing Sri Lankan democracy by way of a new order imposed through the Constitution was done subtly and every effort was made to camouflage the actual aim of the Constitution which was aimed at introducing authoritarianism.

The enormous violence that was a result of this conflict diverted everyone's attention to what was then called "the war". This environment did not leave must room for reasonable discourse and the absence of such discourse was also one of the reasons why the overall transformation into authoritarianism went unnoticed. The architect of the constitution, J.R. Jayewardene, quite cleverly manipulated "the war" to prevent popular resistance against his attempt to displace Sri Lankan democracy.

The more things became polarised in military terms the more the political project became invisible. The LTTE also took advantage of the situation and attempted to portray the idea that Sri Lanka's fundamental conflict was about ethnicity. The propaganda stance was necessary in order to justify the demand for a separate state and to justify armed conflict as the only way to get it.

"The war" not only confused the local population but it also thoroughly confused the international community. No one noticed the transformation of Sri Lanka into a dictatorship and the demands of the international community including also the UN agencies were to find a solution to the military conflict. The discourse of about 25 years was totally confined within the paradigm of the ethnic discourse and the peace discourse.

There were some voices in the wilderness like that of the Asian Human Rights Commission which kept the focus on exposing the scheme behind the 1978 Constitution and the ever increasing authoritarianism in the country. However, such voices were unable to get much attention as the violence and the war occupied everyone's minds.

It took nearly four years for the people of the world to even begin to recognise that they had been mislead and that the fundamental problem of Sri Lanka was one of undermining democracy and the rule of law which, in turn, was a problem affecting the human rights OF ALL.

The High Commissioner, Navanethem Pillay's intervention will now inform the world of a new perspective on the human rights issues in Sri Lanka. Within this overall perspective of the ever-increasing authoritarianism and the ever growing polarization of the population against such authoritarianism new strategies will need to be developed. She has identified the heart of the problem. What is needed now is to identify the ways to overcome this problem.

It is to be hoped that the local civil society and the international community will rise to the occasion and respond to the call of the High Commissioner and begin to grapple with the ways to overcome authoritarianism and the reestablish the rule of law within the framework of democracy.

Photo of Dr. Pillay courtesy of UN Multimedia

ASIA: Statement on the Commemoration of International Day of the Disappeared 2013 by the International Coalition against Enforced Disappearances (ICAED)

ICAED's Voice: Honor the Disappeared through incessant call for States' Accession to the Anti-Disappearance Convention 

It has been 32 years ago since our Latin American sisters and brothers from the Latin American Federation of Associations of Relatives of Disappeared-Detainees (FEDEFAM) initiated the commemoration of what is now officially recognized by the United Nations as the International Day of the Disappeared (IDD). Today, 30th of August, third year after its official recognition from the United Nations, we continue to honor our beloved desaparecidos from Africa, Asia, Europe, Euro-Mediterranean region, Latin America and the United States.

The International Coalition Against Enforced Disappearance (ICAED) continues to honor all the world's desaparecidos through its incessant call on states to act and decisively put to a stop enforced disappearance and eradicate it from the face of the earth. We honor them through the continuous call, in various ways, for states to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance (Convention), to recognize the competence of the Committee on Enforced Disappearances and to ensure full implementation. The Convention stresses the importance of the non-derogable human right not to be disappeared. The treaty's strong provisions on the right to truth, justice, reparation and guarantees of non-recurrence, if implemented, will go a long way to the realization of a world without disappeared persons.

We, advocates of human rights and human dignity, firmly believe that the right not to be subjected to enforced disappearances be granted to all citizens of the world. We are aware that people, especially the poor and the vulnerable, have been subjected to this atrocious violation even after states have acceded to the Convention, for which reason, full implementation of the treaty is important.

The urgency of the adoption of the United Nations Working Group on Enforced or Involuntary Disappearances speaks of 53,986 outstanding cases from 84 countries since its inception in February 1980. More than three years since the entry into force of the anti-disappearance Convention, enforced disappearance cases of the past remain unresolved and we still witness the occurrence of new cases. There are only 40 States that have acceded to the Convention and only 16 of them have fully recognized the competence of the UN Committee on Enforced Disappearances. Considering the global scale of enforced disappearances and the limited number of states that ratified the Convention, the urgency of universal implementation, therefore, is imperative.

This international mechanism envisioned to prevent the crime of enforced disappearance from recurring and to punish the perpetrators is far from reaching universal accession. As an example, Asia, noted as the biggest region of the world in land mass and population, has registered the highest number of recent cases of disappearances and also the least number of global-local (glocal) mechanisms and domestic laws including the Convention that translate their human rights obligations to resolve this scourge. Even so, laudable improvements that we have seen in the recent months particularly the unexpected accession of Cambodia to the Convention in June, are humble steps towards our vision of a world without disappearances. We look forward to the plausibility that other Asian states and the rest of the world will follow such steps in the coming days, months and years and join our call to the universal accession to the aforementioned Convention.

The ICAED, as one voice, compels all states of their responsibility to protect their citizens from being subjected to the crime of enforced disappearance through their accession and full implementation of the Convention. We, as one voice, are seeking for justice to all the disappeared and their families who suffer and are continuously suffering from the pain of having lost loved ones, whose whereabouts are still unidentified.

As one voice, we invite all concerned to join the struggle towards a world free from injustices and disappearances.

We, as one voice, urge all stakeholders to act and step up against the blanket of impunity.

We, as one voice, demand to the responsible states to give us the peace we have been longing for - a peace where an atmosphere that brings about respect of basic human rights exists, a peace where enforced disappearances are resolved and have no room in a civilized society; a peace springing from the wells of justice.

The ICAED, as one voice, compels all states to accede to the CONVENTION NOW!

China’s Motivation to Act on Clean Energy and Climate Change

New Issue Brief Explores China's Motivation to Act on Clean Energy and Climate Change

by ChinaFAQs on May 29, 2013

In April, the United States and China announced a new joint partnership that recognized the danger of climate change and "inadequacy of the global response." Next month, China is expected to launch its first pilot regional cap and trade system. China similarly is taking additional actions to reduce its carbon intensity by 40 to 45% compared to 2005 levels by 2020, and has become the world's number one investor in clean energy. Together, these steps show that China understands the challenges it faces and is serious about making progress.

However, one important question remains mostly unexamined: what are the motivations behind China taking action?

By looking at the 'why' along with the 'how,' a new ChinaFAQs issue brief provides important insights into how seriously China will take implementation of existing goals, why China is likely to persevere, and what the United States, China, and other countries can learn from each other about the need for and value of stronger action on clean energy and climate. ("Why is China Taking Action on Clean Energy and Climate Change?")

The issue brief explains the reasons why China is taking action on clean energy and climate change and the benefits it seeks. The brief shows how other countries, including the U.S., can benefit from taking action. The brief demonstrates that both countries have strong reasons for engaging and working together to confront climate change.

This issue brief identifies five key drivers that motivate China's actions. An examination of China's motivations shows that on all five of these fronts, China has a powerful self-interest in action:

1. A higher priority for environment in development policy: along with a need to encourage more domestic consumption and innovation to sustain growth, people in China are increasingly demanding better environmental quality. These factors have led the Chinese government to begin to move away from unrestricted economic development towards a notion of "building a resource-saving and environment-friendly society," as was mentioned in China's Twelfth Five Year Plan.
    
2. Economic competitiveness: China sees an immense economic opportunity in clean energy. Some analysts have forecasted that the global market for low carbon technology will reach $1.5 to $2.7 trillion annually in 2020. A separate UNEP report projected that by 2030, there would by 8.4 million jobs in solar PV and wind energy, and 12 million in biofuels, globally. With the potential for millions of jobs and over $620 billion in investment in China between 2010 and 2020, gaining a large share of these benefits is an important part of China's plans for future development.
    
3. Energy security: Although China is beginning to ramp up its clean energy deployment, China today relies on fossil fuels for almost 90% of its energy, and is increasingly dependent on foreign imports. Domestic deployment of renewables and efficiency improvements can help alleviate these problems by greatly improving the reliability of China's domestic energy supply.
    
4. Threats from climate change: China's leaders are increasingly concerned about declines in livelihoods and the increased unrest that could arise from the impacts of climate change. For example China's first national report on climate change projected that yields of rice, corn and wheat could fall by as much as 37% within a few decades due to climate change. Studies have also shown that a third of China's coastline is "high vulnerable" or "very highly vulnerable" to sea level rise, with 90% of the coastline "moderately vulnerable" or worse. With coastal zones hosting 42% of China's population and 51% of its GDP, sea level rise has the potential to be a very serious problem for the country.
    
5. An opportunity to assert leadership in the international community: China views climate change as an issue where it can show positive international leadership, as well as leadership among developing nations. In 2009, in a first for the country, a Chinese President addressed the United Nations and stated "out of a sense of responsibility to its own people and people across the world, China has taken and will continue to take determined and practical steps to tackle this challenge."

The U.S., although not currently on track to meet its international commitment to reduce greenhouse gas emissions by 17% below 2005 levels by 2020, does have options available to ensure that such reductions become a reality. Looking at the reasons why other countries are acting can help reinforce our own reasons for action, as well as show us why we will not be acting alone. Like China, the U.S. needs to be concerned with climate impacts, as was demonstrated by America's vulnerability to Hurricane Sandy. The U.S is concerned with energy security, and with economic opportunities.

Some people in the U.S. still claim that China is not taking significant action on clean energy and climate change—and some use this as an excuse for the U.S. government to drag its heels as well. This misconception is fed in part by looking exclusively at the environmental problems China is facing, while ignoring the positive developments in China and its reasons for action. The truth is that while China does face significant environmental challenges, it is taking important steps to address climate change. As the issue brief shows, the misconception that China is not acting should no longer be seen as a reason for inaction on the part of the U.S., or any other country.

It is also in the interest of China and the United States to work together to address this critical issue. While China and the United States face tensions across many areas, addressing climate change and shifting to clean energy represents an area for mutual benefit, with the two countries having complementary strengths. Improved diplomacy can help strengthen relations between the countries, as well as make progress on one of the world's greatest challenges. This, indeed, would benefit both countries and the planet.

Read the full Issue Brief: "Why is China Taking Action on Clean Energy and Climate Change?"

Mohan Malik 2007 - India-China Competition Revealed in Ongoing Border

[Read the original version form the link at the bottom of this article]

Disputes 

By Mohan Malik 

October 9, 2007 

Yet another "useful and positive" round of Sino-Indian boundary negotiations was held 

on September 24-26 against the backdrop of a general consensus in both capitals that no 

breakthrough to the territorial dispute could be achieved for a long period of time. Talks 

for a settlement have now gone on for more than a quarter of a century (since 1981, to 

be precise) -- with a "big push" given to them by Prime Minister Rajiv Gandhi's visit to 

China in 1988, the second one by Atal Bihari Vajpayee's sojourn in Beijing in 2003 and 

a third one by Manmohan Singh's talks with Premier Wen Jiabao in 2005 and President 

Hu Jintao in 2006 -- yet all were in vain. 

As a result, the 4,056-kilometer (2,520 miles) frontier between India and China, one of 

the longest inter-state borders in the world, remains the only one of China's land borders 

not defined, let alone demarcated, on maps or delineated on the ground. While Indians 

doubt China's sincerity in border negotiations, Chinese question India's leaders' will and 

capacity to settle the dispute in a "give-and-take" spirit. 

Up until 2005, there was a great deal of optimism about a possible breakthrough. 

Evidence of this came during Prime Minister Vajpayee's China visit in June 2003 when 

New Delhi's readiness to address Chinese concerns on Tibet was matched by Beijing's 

willingness to resolve the Sikkim issue by recognizing the trade route through the Nathu 

La Pass on the China-Sikkim frontier with India and later showing Sikkim as part of 

India in its maps. 

For its part, New Delhi reiterated its stance on the Tibetan Autonomous Region as part 

of China. This visit also paved the way for border talks to be held through special 

representatives of the leaders to find an early "political solution" to the boundary 

question, rather than going only by the legal and historical claims of the two sides. India 

indicated its willingness to settle for the territorial status quo by giving up claims to the 

Aksai Chin in Ladakh and hoped China would give up its claims to Arunachal Pradesh 

in the eastern sector and recognize the McMahon Line just as Beijing had accepted 

Tibet's British-drawn boundaries with Afghanistan and Myanmar (formerly known as 

Burma). 

In order to give a new thrust to the ongoing border negotiations, an "Agreement on the 

Political Parameters and Guiding Principles for the Settlement of the Boundary 

Question" was signed during Chinese Prime Minister Wen Jiabao's visit to India in 

April 2005. The joint statement issued at the end of the visit talked of a "Strategic and 

Cooperative Partnership" between India and China. No Movement 

Since then, however, Beijing has upped the ante by demanding major territorial 

concessions in populated areas of Arunachal Pradesh on terms that many in New Delhi 

see as "humiliating and non-negotiable." Tawang, in particular, has emerged as a 

sticking point since the Chinese claim it to be central to Tibetan Buddhism given that 

the sixth Dalai Lama was born there. 

Ties between China and India were strained even further in May 2007 when the Chinese 

government refused a visa to an Indian official from disputed Arunachal Pradesh to visit 

China, and the Indian government's invitation soon thereafter to Taiwan's opposition 

Kuomintang (K.M.T.) party presidential candidate, Ma Ying-jeou, to visit India in June 

2007 to hold talks with senior Indian officials. China voiced its opposition to Ma's visit 

and called on India to abide by the "One China policy." 

Thereafter came media reports of the People's Liberation Army (P.L.A.) encroachments 

across the Line of Actual Control (L.A.C.) and Chinese small arms supplies to 

insurgents in India's volatile northeast via Bangladesh and Myanmar. Then, in August 

2007, Beijing demanded the removal of two old Indian Army bunkers near the trijunction of Sikkim, Bhutan and Tibet, claiming that these were located on their 

territory. This move raised questions about China's declared policy of treating Sikkim as 

part of Indian territory. Not surprisingly, China's increasing assertiveness over the 

disputed borders has led to a rapid meltdown in the Sino-Indian border talks and a 

"mini-Cold War" has quietly taken hold at the diplomatic level during the past two 

years, despite public protestations of amity. 

Some observers argue that Hu Jintao's desire to control the choice of the next Dalai 

Lama has led to pressuring India to concede access to the Tawang Monastery, which is 

crucial to this choice. The deterioration in Sino-Indian relations under Hu, however, 

should not have come as a surprise given his reputation as a hardliner over Tibet. (After 

all, Deng Xiaoping had groomed him for the Chinese Communist Party leadership 

because of his prominent role in the successful suppression of the Tibetan revolt in 

1988.) In this context, the rapid pace development of road, rail and military 

infrastructure in Tibet close to its borders with India and Nepal is seen as preempting 

any possible destabilization of Tibet post-Dalai Lama. 

Others, however, do not see any sinister designs in western China's development. 

Instead, they attribute the recent downturn in Sino-Indian relations more to domestic 

power struggles within the Chinese Communist Party (C.C.P.) than to the Dalai Lama 

succession issue or to Chinese concerns about India's growing tilt toward the United 

States. 

While there may be an element of truth in all these arguments, there are other more 

fundamental reasons behind the recent chill in Sino-Indian relations. Apparently, the 

strategic consequences of India's economic resurgence coupled with U.S. Secretary of 

State Condoleezza Rice's offer in March 2005 to "help make India a major world power 

in the 21st century" have greatly bothered the Chinese. This offer, and the long-term 

India-U.S. defense cooperation framework and the July 2005 U.S.-India nuclear energy 

deal that followed soon after, have been compared by Chinese strategic analysts to "the 

strategic tilt" toward China executed by former U.S. President Richard Nixon in 1971 to 

contain the common Soviet threat. Claiming that these developments have 

"destabilizing" and "negative implications" for their country's future, China's India-watchers have started warning their government that Beijing "should not take India 

lightly any longer." 

Chinese leaders were led to believe that China's growing economic and military might 

would eventually enable Beijing to re-establish the Sino-centric hierarchy of Asia's past 

as the U.S. saps its energies in fighting small wars in the Islamic world, Japan shrinks 

economically and demographically while India remains subdued by virtue of Beijing's 

"special relationships" with its South Asian neighbors. However, a number of "negative 

developments," from Beijing's perspective, since early 2005 -- the Indian and Japanese 

bids for permanent seats on the U.N. Security Council, the formation of the East Asia 

Summit that includes India, Australia and New Zealand, the Indo-U.S. nuclear deal, 

India's ability to sustain a high economic growth rate of eight to nine percent and the 

strategic implications of India's "Look East" policy -- have apparently upset Chinese 

calculations. 

Therefore, after a hiatus of a few years, Chinese media commentaries have resumed 

their criticism of Washington's "hegemonic ideas" and for drawing "India in as a tool 

for its global strategic pattern." Some Chinese analysts express serious reservations 

about U.S. efforts to draw "India in as a tool for its global strategic pattern," arguing 

that "India's DNA doesn't allow itself to become an ally subordinate to the U.S., like 

Japan or Britain." Nonetheless, most see India as a "future strategic competitor" that 

would be an active member of an anti-China grouping due to the structural power shifts 

in the international system and advocate putting together a comprehensive "contain 

India" strategy based on both economic tools (aid, trade, infrastructural development) 

and enhanced military cooperation with "pro-China" countries. 

India-wary China 

An internal study on India undertaken in mid-2005 (with inputs from China's South 

Asia watchers such as Cheng Ruisheng, Ma Jiali, Sun Shihai, Rong Ying, Shen Dingli, 

among others) at the behest of the Chinese leadership's "Foreign Affairs Cell" 

recommended that Beijing take all measures to maintain its current strategic leverage (in 

terms of territory, membership of the exclusive Permanent Five and Nuclear Five 

clubs); diplomatic advantages (special relationships, membership of regional and 

international organizations); and economic lead over India. Although the evidence is 

inconclusive, the most plausible deduction is that this internal re-assessment of India 

lies behind the recent hardening of China's stance on the territorial dispute and a whole 

range of other issues in China-India relations. 

The Chinese are concerned that the U.S.-India nuclear deal and related agreements 

would bring about a major shift in the power balance in South Asia that is currently 

tilted in China's favor. The recent strengthening of China's strategic presence in 

Pakistan, Sri Lanka, Bangladesh, Myanmar and overtures to the Maldives should, 

therefore, be seen against this backdrop. Despite protestations to the contrary from India 

and the United States that New Delhi is unwilling and unlikely to play the role of a 

closely aligned U.S. surrogate such as Japan or Britain, China's Asia strategy is based 

upon the premise that maritime powers such as the U.S., Japan, Australia, and India 

would eventually form an informal quadrilateral alliance to countervail continental 

China. 

As a commentary in Huanqiu Shibao noted: "The fact is that Japan, Australia, and India 

are respectively located at China's northeast, southeast, and southwest, and all are Asian 

powers, while U.S. power in the Pacific is still unchallengeable. Hence, should the "alliance of values" concentrating military and ideological flavors in one body take 

shape, it will have a very great impact on China's security environment." 

From Beijing's perspective, the responsibility for this "negative development" lies solely 

at New Delhi's door. In their writings, Chinese analysts seem upset over their southern 

neighbor's all-consuming passion to become "a big power," and see the nuclear deal as 

its key to unlocking the door leading to the big league in world politics. 

As a Renmin Ribao commentary noted in August: 

The U.S.-Indian nuclear agreement has strong symbolic significance for India in 

achieving its dream of a powerful nation…In recent years, it introduced and 

implemented a 'Look-East' policy and joined most regional organizations in the East 

Asian region…In fact, the purpose of the United States to sign a civilian nuclear energy 

cooperation agreement with India is to enclose India into its global partners' camp, so as 

to balance the forces of Asia [read, China]. This fits in exactly with India's wishes. 

Once the nuclear deal crosses all the "big four hurdles" (opposition from pro-Chinese 

Communist parties in India; negotiations on I.A.E.A. safeguards; approval by the 

Nuclear Suppliers Group (N.S.G.); and its passage by the U.S. Congress), Beijing 

believes that it would end the nuclear symmetry between New Delhi and Islamabad (or, 

de-hyphenate the sub-continental rivals) and put India on par with nuclear China (rehyphenate China with India). 

This, from Beijing's perspective, is quite disconcerting because a major objective of 

China's South Asia policy has been to perpetuate parity between India and Pakistan. 

Add to this India's military exercises with the U.S., Japan and Australia, support for the 

concept of "concert of democracies," and attempts to establish strategic ties with 

countries that fall within China's sphere of influence (Mongolia, South Korea, Vietnam, 

the Philippines, Taiwan, and Myanmar) -- all of these reinforce Beijing's fears about its 

containment. However, despite its strong disapproval of a pact that would narrow the 

power gap between India and China, Beijing would not want to take a stance that 

pushes India further into Washington's camp. Most likely, Beijing would use its N.S.G. 

membership to further its own and its allies' interests by: 

 Using the "double standards" argument to question Washington's commitment to 

non-proliferation goals in light of its decision to back India's nuclear industry while 

opposing the right to nuclear energy for Iran and Pakistan; 

 Insisting that any changes to the N.S.G. guidelines to accommodate the deal must 

not be "country [i.e., India]-specific" but "universal criteria-based" so that "all countries 

[read, Pakistan] can benefit from the peaceful use of atomic energy under the I.A.E.A. 

safeguards." This formulation, outlined by Foreign Minister Yang Jiechi, would pave 

the way for the Chinese construction of the Chashma III and IV nuclear reactors in 

Pakistan; 

 Using the deal to extract major concessions from Washington, including an end to 

the arms embargo and the lifting of bans on high-tech dual-use technology exports to 

China; 

 Seeking new assurances that U.S.-India ties are not related to any "contain China" 

strategy. The fact of the matter is that China and India are locked in a classic security dilemma: 

one country sees its own actions as self-defensive, but the same actions appear 

aggressive to the other. India feels the need to take counter-balancing measures and 

launch certain initiatives to stay independent of China -- such as the "Look East" policy 

-- which are perceived as challenging and threatening in China. Like China, India is 

actively seeking to reintegrate its periphery with the framework of regional economic 

cooperation. Like China, India seeks greater international status and influence 

commensurate with its growing economic power. 

However, like any other established status quo great power, China wants to ensure that 

its position remains strong vis-à-vis challenger India for strategic, economic and 

geopolitical reasons. Through closer strategic ties with India's neighboring countries, 

China is warning India not to take any counter-measures to balance Beijing's growing 

might. 

Tibet is the Key 

Tibet remains the key to China's policymaking on the India-China boundary dispute. 

The Chinese still suspect that India prefers an independent Tibet and covertly supports 

Tibetan separatists. Unless and until Tibet is totally pacified and completely Sinicized 

as Inner Mongolia has been, Beijing would not want to give up the "bargaining chip" 

that an unsettled boundary vis-à-vis India provides it with. An unsettled border provides 

China the strategic leverage to keep India uncertain about its intentions, and nervous 

about its capabilities, while exposing India's vulnerabilities and weaknesses, and 

ensuring New Delhi's "good behavior" on issues of vital concern to China. 

Several recent commentaries in Chinese language sources confirm a shift toward a 

tougher Chinese stance on the territorial dispute with India. Articles on "Future 

Directions of the Sino-Indian Border Dispute" published in Guogji Zhanlue in 

November 2006, Liu Silu's "Beijing Should Not Lose Patience in Chinese-Indian 

Border Talks" in Wen Wei Po on June 1, 2007, and Professor Wang Yiwei's interview 

"Helping U.S. May Derail Border Talks" with the Asian Age on July 25, 2007 are 

broadly representative of the official thinking in China's national security establishment 

on this subject. The key arguments and major themes presented in these and other 

writings are summarized below. 

First, since India controls 90,000 square kilometers of the richest part of Tibet and the 

Himalayan region, equivalent to two and a half Taiwans and as large as Jiangsu 

Province, "the Chinese government will not easily give up its territory." Wen Wei Po

commentator Liu Silu contends that as "it is equally difficult to get India to spit out the 

fatty meat it is chewing…Beijing had better be patient at the negotiation table [because] 

time is on China's side." Apparently, many Chinese strategic thinkers believe that 

China's comprehensive national power vis-à-vis India is likely to increase over time, 

and that would enable Beijing to drive a better bargain on the boundary question in the 

future. 

Second, as Professor Wang Yiwei puts it, "China showed 'greatness' once, after the 

1962 Indo-China war, when it gave up the land it controlled [in Arunachal Pradesh] and 

it could not be expected to show magnanimity again…India 'lost an opportunity' to 

settle the boundary question when Deng Xiaoping and Mao Zedong were alive. 

President Hu Jintao is not Deng or Mao. He is strong but cannot be compared with 

them." In other words, the ball is in India's court. If New Delhi wants a settlement, it 

must hand over a large chunk of territory in Arunachal Pradesh to China. Third, the Sino-Indian border issue is linked with sovereignty, territorial integrity, and 

the respective status of the two countries in the global hierarchy. Hence, a Guogji 

Zhanlue commentary advises that Beijing "should not adopt any hasty step or make big 

compromises on principles" because this issue, "if approached in a hurry, could impact 

the respective rise of the two nuclear powers." One Chinese concern is that a border 

settlement, without major Indian territorial concessions, could potentially augment 

India's power position and thus impact negatively China's rise. An unsettled boundary 

suits Chinese interests for the present because China's claims in the western sector are 

complicated by the Indo-Pakistan dispute over Kashmir, Pakistan's interests in the SinoIndian territorial dispute, and Beijing's interest in keeping India under strategic pressure 

on two fronts. 

Fourth, a "fair and reasonable settlement" implies that "India will need to give up 

something to get something." Ideally speaking, Wen Wei Po argues that China should 

"recover the entire area. But it is negotiable for the disputed territory to be split equally 

between China and India, as was the case of Heixiazi [Bolshoy Ussuriysky] Island in 

the northeast [on the Russian border]. A third option would be for Beijing to recover at 

least the 2,000 square kilometers covering Tawang and Takpa Shiri. It is believed that 

this is Beijing's last resort and it will not accept any deal worse than this." Having 

wrested substantial territorial concessions from Russia, Vietnam, and Tajikistan in their 

land border disputes with China, Beijing is now expecting the same from India. 

Fifth, China should economically harmonize/integrate Tibet, Nepal and the border 

regions with India into China's economic sphere through increased economic links and 

infrastructure projects, such as the Qinghai-Tibet railway, before proceeding for a 

boundary settlement with India. Underlying this is the belief that economic 

interdependence would soften India's position, leading to a settlement on China's terms. 

Last, if negotiations, coercive diplomacy and economic harmonization (a carrot and 

stick policy) fail to produce the desired outcome, the use of force at an appropriate time 

in the future to recover "China's Southern Tibet" (a new Chinese term for Arunachal 

Pradesh) is not ruled out. Many Chinese analysts believe that the military balance has 

shifted in their favor with the completion of the 1,118-kilometer (695 miles) QinghaiTibet railway and other military infrastructure projects in Tibet and that negates the 

need for any territorial concession to India in the eastern sector. 

These views and arguments clearly (a) advocate a "constraining India" strategy; (b) 

foretell a long and torturous course of future border negotiations; and (c) indicate an 

uncertain and unpredictable future for India's relations with China. 

Chinese Foreign Minister Yang Jiechi's statement to his Indian counterpart Pranab 

Mukherjee made in June 2007 that the "mere presence of populated areas in Arunachal 

Pradesh would not affect Chinese claims on the boundary" should then be seen against 

this background. However, in Indian policy circles, this statement is seen as repudiating 

Article VII of the "Agreement on Political Parameters and Guiding Principles" signed 

during Chinese Premier Wen Jiabao's India visit in April 2005, which states: "In 

reaching a border settlement, the two sides shall safeguard populations in border areas." 

The inclusion of the phrase "settled population in the border areas" was then interpreted 

as a diplomatic concession that India had extracted from China as it protected India's 

interests against Chinese claims to Tawang and other areas in Arunachal Pradesh. India 

reportedly conveyed to China in June 2007 that it could not be pushed beyond a point 

on the boundary dispute. Describing the Chinese move as "a serious retrograde step," Mukherjee publicly rebuffed Beijing, saying that New Delhi would not part with 

populated portions of the state of Arunachal Pradesh: "Any elected government of India 

is not permitted by the constitution to part with any part of our land that sends 

representatives to the Indian Parliament." 

Sending a clear signal against any Chinese designs over Arunachal Pradesh, he added: 

"The days of Hitler are over. After the Second World War, no country captures land of 

another country in the present global context. That is why there is a civilized 

mechanism of discussions and dialogue to sort out border disputes. We sit around the 

table and discuss disputes to resolve them." 

The Indian government has also responded by unveiling plans for economic 

development and major infrastructure projects (the building of 72 roads, three airstrips 

and numerous bridges) in the border areas along the undefined L.A.C. that would enable 

the Indian military to "swiftly move forces into the region and sustain them logistically 

in the event of any untoward trouble or emergency." Indian Defense Minister A. K. 

Antony told the Combined Commanders' Conference in July 2007 that "China has been 

building a lot of infrastructure -- railways, airports and roads [along the Indian border]. 

We are also doing the same thing." 

Reacting to recent reports of some military skirmishes, Antony acknowledged that 

"there may have been an odd instance," but he ruled out "chances of any confrontation." 

Indian Chief of Army Staff General J. J. Singh has done the same, assuring the country 

that "a 1962-like situation will not be repeated. We are fully prepared to defend our 

borders." In response to the establishment of four new airbases in Tibet and three in 

southern China, the Indian Air Force is reportedly beefing up its presence by deploying 

two squadrons of Sukhoi-30MKIs near the Chinese border. 

Although the probability of an all-out conflict is extremely low, the prospect that some 

of India's road building projects in disputed areas could lead to tensions, clashes and 

skirmishes with Chinese border patrols cannot be completely ruled out. Should a 

conflict break out, the P.L.A.'s contingency plans emphasize a "short and swift 

localized" conflict (confined to the Tawang region, along the lines of the 1999 Kargil 

conflict) with the following objectives in mind: capture the Tawang tract; give India's 

military a bloody nose; and deliver a knockout punch that punctures India's ambitions to 

be China's equal or peer competitor once and for all. 

The ultra-modern civilian and military infrastructure in Tibet is expected to enable 

Beijing to exercise the military option to achieve the above-mentioned objectives should 

that become necessary at some stage in the future. 

Present Imperfect, Future Tense 

In short, there is little or no sign of an early resolution to the conflicting claims, despite 

continuing negotiations and the recent upswing in diplomatic, political, commercial and 

even military ties between the world's two most populous countries. The border disputes 

have simmered in the background for more than 50 years, threatening to disrupt 

relations between Asia's two giants. 

With China insisting on the return of Tawang on religious, cultural, and historical 

grounds, Indians have a more powerful case for the return of the sacred Mount KailashMansarovar in Tibet, since it is a sacred religious place associated with the Hindu 

religion. Additionally, there is the contentious issue of the Shaksgam Valley that Pakistan handed over to China in 1963, which China's Foreign Ministry spokespersons 

now claim is a non-issue. 

Negotiating these issues will not be easy and will test diplomatic skills on both sides. It 

is worth noting that historically China has negotiated border disputes with neighbors in 

their moment of national weakness (Pakistan, Myanmar in the 1960s, and the Central 

Asian republics in the 1990s) or only after the overall balance of power had shifted 

decisively in China's favor and/or after they had ceased to be a major threat (land border 

settlements with Russia and Vietnam in the 1990s). It has not, however, negotiated with 

those who are perceived as present rivals and future threats (India, Japan, Vietnam, the 

Philippines and Taiwan). 

In the meantime, both sides will have to learn to live without an early resolution to the 

dispute. Even if the territorial dispute were somehow resolved, India and China would 

still compete over energy resources, markets and for geostrategic reasons. A new 

potentially divisive issue for the future appears to be the ecological impact on the Indian 

subcontinent of Chinese plans to divert the rivers of Tibet for irrigation purposes in 

China. With China controlling the Tibetan plateau -- the source of Asia's major rivers -- 

there looms a potential conflict over depleting water reserves. Water is increasingly 

becoming a divisive issue in India's bilateral relations with China. 

Simmering tensions over territory, Tibet, energy resources and rival alliance 

relationships ensure that Indian Prime Minister Manmohan Singh's assertion that "there 

is enough [geopolitical] space for the two countries to develop together" will remain 

more a "hope" than a conviction. The relationship between the two rising Asian giants 

with overlapping spheres of influence and disputed frontiers will be characterized more 

by competition and rivalry than cooperation. Indeed, the possibility of confrontation 

cannot be ruled out completely. 

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