Manoli Jinadasa, in The Island, 24 August 2016. where the title is “ACF cruelly abandoned its workers and compensation, too. Response to Action Contre La Faim (ACF)”…. Note: highlighting emphases is the imposition of the Editor,Thuppahi
I refer to your news item (First Page – Sunday Island – 17.08.2016) which reports that the French Charity Action Contre La Faim (ACF) has urged the Sri Lankan government to hold a credible investigation into the killing of 17 of its aid workers in Muttur a decade ago, expressing the view that previous investigations into the ACF attack have been “inconclusive”.
ACF, the employer of the 17 deceased aid workers, have periodically issued press statements of this nature, in an effort to promulgate an absolute misconception that there had not been a credible inquiry into this incident. There was indeed a full scale inquiry by a panel of eminent persons, at which ACF was found to have been negligent in respect of the safety of its employees, a fact which the ACF is attempting to hide by conveniently ignoring the Commission of Inquiry that successfully conducted a full scale inquiry and tendered a comprehensive report concerning this incident.
The Commission of Inquiry was most certainly a “credible” inquiry and was set up as follows:
- On 8th August 2006, at a press conference, then Minister of Human Rights Hon. Mahinda Samarasinghe, condemned the killings of 17 aid workers and stated that an investigation would be held to find the perpetrators. Amidst the ongoing conflict with the LTTE, a police investigation was launched.
- On 3rd November 2006, a Presidential Commission of Inquiry (COI) was appointed, which included a mechanism for international observers (IIGEP). The Commission comprised eminent persons from diverse backgrounds and was a fair representation of all ethnic communities. The Commissioners were of Sinhala, Tamil and Muslim communities. The role of the Attorney General’s representatives was to assist the Commission in questioning the witnesses and this proved to be very effective to elicit the evidence. It must be emphasized that at no time did the Attorney General’s officers represent the Army and the Navy, who were represented by a team of Private Counsel led by one of the most distinguished legal luminaries of our time, Senior Counsel Mr. Gomin Dayasri. I was a part of that team of private counsel.
- The Presidential Commission of Inquiry (COI) held 76 sessions receiving the testimony of many witnesses. Its mandate was renewed in November 2007 until 2nd November, 2008. The composition of the COI was praised by the Chairman of the IIGEP Justice Bhagwati “….. as far as the commission is concerned, it has been doing very good work and the members of the IIGEP have had the best cooperation from the Chairman and members of COI. I have no doubt that the COI will continue to carry on its work with zeal and dedication as it has been doing so far”.
ACF, who was summoned to give evidence, inexplicably left midway through inquiry proceedings, just prior to being summoned for evidence and cross examined, probably as the testimony of the witnesses who came before the COI, gave rise to a number of questions for them, which to date remain unanswered, in particular:
=Why did ACF decide to send a team comprising mainly of one ethnic group (Tamil) to a predominantly Muslim town which was in a state of unrest?
=Why did ACF decide to keep this team of aid workersin Muttur when by 2nd August 2006, all civilians were abandoning their homes and town, seeking shelter elsewhere, in churches and schools and even the ICRC had left and the hospital was evacuated?
=Why did ACF insist that its staff remain in the compound when they had vehicles and drivers to take them to safety, no sooner the Muttur hospital next to ACF was bombed?
=If the deceased aid workers were there to provide safe drinking water, what was the requirement for them to remain in the Muttur town after the civilians had evacuated? To whom were they providing water?
ACF appeared briefly before the COI on behalf of the deceased parties on an application initially made by a representative of the Eminent Persons Group (IIGEP) which was observing the COI. However, when the relatives started blaming the ACF and the ACF had to give explanations for its actions, it fled Sri Lanka without tendering any reasons for their hasty exit.
From a legal perspective, exiting the COI midway through inquiry, without any explanation is tantamount to contempt. It is more than an ethical nicety to tender an explanation; it is in fact a legal obligation. ACF had the benefit of both local and foreign legal advisors for assistance. At the very least they could have tendered an explanation through the Counsel retained or even sent an explanation in writing from far away Paris. None came. The COI was left unaware of the reasons for the hurried departure of the ACF after having sought and obtained the right to make representations before the COI as the employer of the deceased persons. ACF took a flight to Paris when their own conduct was being questioned in the dock due to evidence of the family members.
On 7th April 2009 Mr K. S. Ratnavel, Counsel for the ACF, informed the COI that his client would not be further taking part in the proceedings:
Commissioner Yusoof: “So at the crucial time when the case is being inquired into we would like their presence. It is rather funny for them to leave at this point of time Mr.Ratnavel”
Mr.Ratnavel: “The decision was taken by them and they stated the decision came from the head office so I have no control over it.’
Mr.Yusoof: “I know you are not a party to that decision but it strikes me rather unusual, when they should be present to ensure their case is brought to proper fruition.”
Mr.Ratnavel: “That is so.”……………(as quoted from the Legal proceedings of Commission of Inquiry)
Mr. Ratnavel, Attorney-at-Law continued to appear before the COI on behalf of a relative of a deceased ACF employee, after he ceased to represent ACF.
The COI found ACF negligent in respect of the safety of the workers and recommended payment of 10 years of salary compensation to the families of the deceased. Did the ACF ever pay this compensation to the families of the deceased as per the recommendation of the COI? Did they pay any reasonable compensation at all, except for the meagre amount that was initially dispensed to the grieving families?
More importantly in this scenario, what moral right does the ACF, who walked out of the COI without any explanation, have to demand yet another inquiry at the cost and expense of the Sri Lankan Government?
The accountability of ACF has not been exposed or questioned so far. Their negligence is however a matter that cannot be overlooked. I cite in brief the facts that were elicited and established at the COI:
A. ACF registered itself as an NGO in Sri Lanka in July 1997 (Registration Number FL-13510). Its core activity was to be water, sanitation and food security. Its Head Office was located at 104, Barnes Place, Colombo 7 while it opened sub-offices in Trincomalee, Navaladi, Patalipuram, Sandanavate areas, all of which were uncleared areas under LTTE de-facto rule, except Muttur.
B. On 31st July and 1st August 2006, in 2 batches, 17 local staff of ACF were dispatched to Muttur from the Trincomalee office. The contingency included three drivers and three vehicles. Therefore, the teams were mobile and were in a position to evacuate at any time.
On 1st August LTTE attacked Muttur in a bid to take over this strategic town, which overlooks the entry to Trincomalee harbour and naval headquarters and overrun the Trincomalee Harbor. Four days later, on 4th August 2006, these 17 local workers of the ACF were killed in Muttur.
Since early 2006 the LTTE was escalating their violence. On 26th April 2006 they sent a female “black Tiger” on a suicide mission to kill Field Marshal Sarath Fonseka, the then Army commander, inside the Army Headquarters; he escaped miraculously but was severely wounded. On July 21st 2006 the LTTE closed the sluice gates of the Mavil Aru reservoir in Trincomalee district, cutting off water supply to around 30,000 villagers and severely affecting their paddy tracts. On 1st August 2006, a troop transport ship with 854 soldiers going on leave came under a suicide attack by nearly two dozen LTTE small boats, averted only by turning into the inner Trincomalee harbor. The Muttur bulge, which dominates the entry into Trincomalee port and naval base, was the next LTTE target and towards midnight 1st August, Muttur town came under LTTE attack and LTTE cadres infiltrated into the town occupying Government buildings and forcing the police to abandon checkpoints and retreat to the main Muttur Police Station. By 2nd August when the fighting was at its worst, all aid agencies, including the ICRC, had pulled out due to security concerns. Yet witness upon witness testified at the COI that they had appealed to the ACF workers to evacuate or take shelter in safer locations but the workers had replied that they were under orders to stay on site.
Why did the ACF staff not use the 3 vehicles and 3 drivers and drive to safety or join the ICRC convoy which left on 2nd August afternoon? Even the Hospital next door evacuated, but the ACF aid workers remained. Their mandate was to provide safe drinking water. By the 2nd afternoon, Muttur was a Ghost town. So why stay on?
A high ranking public official and the local church father testified at the COI that they had requested the workers of the ACF to leave the premises and take shelter in a refugee camp. But this was not permitted by the ACF as their office in Trincomalee had forbidden them from leaving the site because of the alleged difficulty of collecting them from various places. ACF was more concerned of their convenience than the safety of their workers. Ironically, there was not even a requirement to send transport as the Muttur office had 3 vehicles and 3 drivers. What was needed was a mere nod of approval by the ACF to evacuate.
- The people of Muttur had all left Muttur on every available vehicle including bicycles, carrying their livestock with them, while the ACF workers were asked to remain inside their compound with the ACF flag hoisted, wearing ACF t-shirts when 3 vehicles and 3 drivers could have easily taken them to safety. Why would ACF insist that its 17 staff remain in Muttur when the civilians had fled, and only the LTTE remained in control of from 1st to 5th August 2006? After all, their mission was merely to provide “drinking water” to the people?
- The forensic report established the time of death to 4th August between 6:40 a.m. and 7:00 a.m. The LTTE having attacked Muttur on 1st August 2006 controlled Muttur till 5th August 2006 which is a key factor in establishing responsibility for the killings. The evidence revealed that it was the LTTE who controlled the town during this crucial time gap, where the deaths occurred.
- The parents of the deceased testified that after giving them meagre compensation ACF had left the country. They had not been told the basis of the payment of compensation nor the salient facts taken into account to determine the correct quantum. After they obtained information of the particulars of the deceased, ACF did not pay anything more nor remained in contact with the parents thereafter.
In the final written submission tendered on behalf of the Army and Navy, it is stated that ACF should be held responsible for:
*Negligence on the part of ACF in making the workers remain in the ACF office purely for their convenience after all the other civilians left the town and it became a ghost town
*Imprudence of sending predominantly members of one community to a multi-ethnic enclave in Muttur knowing well it was a period of high tension
*Lack of care on the part of the ACF (a) in compelling the employees to remain in the office notwithstanding requests by relatives on telephone to the ACF office to bring them back from Muttur and (b) not permitting them to leave the ACF premises in Muttur notwithstanding the persuasion of the Divisional Secretary Maniwannan and Rev Father to leave Muttur
*Lack of due diligence on the part of the ACF for failing to utilize 03 vehicles/3 drivers available on the premises to transport them to a safe location while all the other vehicles in the town were being used to transport people to safety
*Abandoning the representation of the families without notice or explanation at the Commission
*Failing to complete their evidence and leaving the country after spending the morning session of the Commission, and without waiting to complete his cross-examination by the counsel for the Army/Navy;
*Failing to tender Mr. Komo, the person in control of ACF affairs in Muttur, to testify;
The ACF has no response to date for the above accusations and conveniently shifts the attention away from their negligence by undermining the COI. The evidence before the COI indicated that the deceased persons’ families were paid approximately two years’ compensation plus a bonus linked to family status and a consideration of the seniority of the employees within the ACF. Was this compatible with European or French standards? What would have been the basis of payment if it was a foreign or European national in similar circumstances? Could ACF have shrugged off liability for these lives after paying around US $ 4000 if this happened in a European country? On a comparison of compensation packages by Sri Lankan standards, the compensation paid by ACF to these workers is grossly inadequate, where death has occurred during the course of employment.
There is liability under the law of Delict for lack of duty of care by an employer. In Industrial law the employer is liable for any injury caused in the course of duty. Have these obligations been fulfilled. In fact, have these workers even been paid their statutory dues of provident and trust funds? If not, would ACF be guilty of statutory offences punishable with imprisonment as an errant employer? Is this a case where a humanitarian organization has closed its office in Sri Lanka and left the shores without any explanation, without paying proper compensation and damages, and without informing the relevant supervisory state authorities that they have duly discharged their lawful obligations? ACF requires to answer these questions and clear their own name.
It was the Counsel for the Army and Navy who canvassed for compensation on behalf of the families of the deceased workers. Ironically, the Counsel representing the civil society NGOs did not pursue the compensation claim as relentlessly as did the Counsel for the Army and Navy, before the Inquiry. On the contrary, strangely, Counsel for the civil society NGOs (which should be in the forefront of claiming enhanced compensation for the families of the deceased parties) raised objections as to why the Counsel for the Army and Navy was agitating for proper compensation to be paid by the ACF and for claiming enhanced compensation and thereby attempting to divert the central issue relating to the killings. Counsel for the Army and Navy in response stated that in terms of the warrant the Commission had jurisdiction to inquire into appropriate measures of reparation for the next of kin of the deceased. They declared that they were proceeding on this line as yet another humanitarian exercise of the Army and the Navy on behalf of citizens of Sri Lanka.
The grouse of the ACF against the COI and their demand for a fresh inquiry is understandable. The Commission faulted the ACF for their irresponsibility in compelling the workers to remain in an absolutely unsafe environment and recommended high compensation to be paid by ACF to the deceased workers. Thus the ACF’s implied criticism against the Commission by a demand for a “credible inquiry” stems from an urge to protect themselves rather than the genuine desire to secure justice for the dead.
If it is justice that ACF has sought:
* Why not pay proper compensation to the families of the victims whose lives they placed in danger by their reckless instructions?
- Why flee from an official inquiry before being summoned and face a cross examination?
- Why launch an international campaign to defame Sri Lanka?
ACF has by their above conduct forfeited their right to demand yet another inquiry at the expense of Sri Lanka!
Shenali Waduge: “LTTE attack Muttur 2006: Why did French NGO ACF not evacuate 17 aid workers when all others fled town?” 25 August 2016, … http://www.lankaweb.com/news/items/2016/08/25/ltte-attack-muttur-2006-why-did-french-ngo-acf-not-evacuate-17-aid-workers-when-all-others-fled-town/