No-win situation

The government-appointed commission recognises the importance of a political solution, but there seems to be no breakthrough.

in Colombo

SRI LANKAN President Mahinda Rajapaksa has a choice to make. Before him is the voluminous Lessons Learnt and Reconciliation Commission (LLRC) report. The question on many lips is What will he do with it? His decision on the report or procrastination over it will decide the direction his country takes and what happens to it in international fora. The issue at hand is disarmingly simple. What is Rajapaksa prepared to concede to the Tamils to bring them back into the national mainstream? The LLRC report, in large parts, offers him the way out. It recognises that a political solution is imperative to address the root cause of the conflict and wants the government to provide the leadership to a political process that will ensure sustainable peace and security.

The LLRC was constituted by the President on May 15, 2010, soon after United Nations Secretary-General Ban Ki-moon's visit to Sri Lanka and the decision to conduct a U.N. probe into the last stages of the Eelam War. Former Attorney General C.R. De Silva acted as the Chairman of the Commission.

The LLRC's mandate was to inquire and report on the following matters that may have taken place during the period between 21st February 2002 and 19th May 2009, namely:

i. The facts and circumstances which led to the failure of the Ceasefire Agreement operationalised on 21st February 2002 and the sequence of events that followed thereafter up to the 19th of May 2009;

ii. Whether any person, group or institution directly or indirectly bear responsibility in this regard;

iii. The lessons we would learn from those events and their attendant concerns in order to ensure that there will be no recurrence;

iv. The methodology whereby restitution to pay persons affected by those events or their dependants or their heirs can be effected;

v. The institutional, administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future and to promote further national unity and reconciliation among communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of the Warrant.

After 57 public sessions and 12 field visits at over 40 locations to talk to the people in the North and East and in other affected areas of the country, the LLRC submitted its final report to the President on November 20, 2011. More than a thousand people appeared before the commission to make representations. Additionally, the LLRC received and analysed over 5,100 written submissions.

It also held unscheduled meetings with the general public, especially in areas affected by conflict and in settlements for internally displaced persons (IDPs). The report was presented to Parliament on December 16.

Main recommendations

The LLRC's recommendations include various constructive measures to foster peace and reconciliation. It wants the government to supply information on missing persons and detainees to their relatives, take up the investigation of cases of disappearances and abductions seriously, put its heart into the promotion of a trilingual policy, ensure the deployment of Tamil-speaking officers in all offices, curb activities of illegal armed groups, reduce high-security zones (mainly in Palaly and Trincomalee-Sampur), return private lands occupied by the military, and set in motion a process of demilitarisation, including phasing out of the involvement of the security forces in civilian activities and the restoration of civilian administration in the Northern Province. The most contentious of its recommendations is that the state ascertain more fully the allegations of human rights violations against the security forces.

While the commission has detailed various acts of violence and killings by the Liberation Tigers of Tamil Eelam (LTTE) in graphic detail, it has claimed that it was faced with difficulties in attempting a reconstruction of certain incidents involving the loss of civilian lives which have been brought to the attention of the commission. The report says:

While the commission finds it difficult to determine the precise circumstances under which such incidents occurred the material nevertheless points towards possible implication of the security forces for the resulting death or injury to civilians, even though this may not have been with an intent to cause harm. In these circumstances the commission stresses that there is a duty on the part of the state to ascertain more fully the circumstances under which such incidents could have occurred and, if such investigations disclose wrongful conduct, to prosecute and punish the wrongdoers.

On the question of forced disappearances, the report says: It is the clear duty of the state to cause necessary investigations into such specific allegations and, where such investigations produce evidence of any unlawful act on the part of individual members of the Army, to prosecute and punish the wrongdoers. The commission must also stress in this regard that if a case is established of a disappearance after surrender to official custody, this would constitute an offence entailing penal consequences. Thus the launching of a full investigation into these incidents and, where necessary, instituting prosecutions is an imperative also to clear the good name of the Army who have by and large conducted themselves in an exemplary manner in the surrender process and when civilians were crossing over to cleared areas, which conduct should not be tarnished by the actions of a few.

In the chapter Overview of Security Forces Operations, the LLRC deals with in detail the larger picture of the operations and, in effect, exonerates the Army of any large-scale wrongdoing.

Regarding the sensitive question of what language to sing the national anthem in, it stops short of making a specific recommendation and lists two views to add two lines in Tamil or allow the anthem to be sung in Tamil as was the case earlier.

It also wants the government to look into discrimination in education in order to bring about genuine reconciliation. The LLRC also suggests ways to tackle the vexatious issues of resettlement and genuine reconciliation, including completion of the process of the return of IDPs and refugees to their respective homes and restoration of normal civilian life in affected areas.

The commission is of the view that consideration should also be given to providing appropriate redress to the next of kin of those killed and those injured as a humanitarian gesture that would help the victims to come to terms with personal tragedy, both in relation to the incidents referred to above and any other incidents which further investigations may reveal.

The LLRC's terms of reference did not allow it to investigate war crimes. The committee came in for criticism from international human rights groups for this.

India's stand

Making initial comments on the LLRC report 11 days after the report was tabled in the Sri Lankan Parliament, Vishnu Prakash, spokesperson for the Indian Ministry of External Affairs, said that India wanted an independent and credible mechanism to investigate allegations of human rights violations during the end stages of Eelam War IV. This needs to be done in a time-bound manner, he said.

The present situation provides a great window of opportunity to forge a consensual way forward towards reconciliation through a political settlement based on devolution of power. It recognises that a political solution is imperative to addressing the root cause of the conflict and notes that the government should provide leadership to a political process which must be pursued for the purpose of establishing a framework for ensuring sustainable peace and security in the post-conflict environment, he said.

Supporting a broader dialogue for a solution, India said that a full implementation of the 13th Amendment to the Sri Lankan Constitution was needed. (The 13th Amendment provides for the setting up of a Provincial Council and a High Court for each province and making Tamil an official language and English the link language.) There was also a need to go beyond the 13th Amendment so as to achieve meaningful devolution of powers and genuine national reconciliation. We hope that the Government of Sri Lanka, recognising the critical importance of this issue, acts decisively and with vision in this regard. We will remain engaged with them through this process and offer our support in the spirit of partnership, Vishnu Prakash said.

TNA reaction

The Tamil National Alliance has said the LLRC report categorically fails to effectively and meaningfully deal with issues of accountability. It wants the international community to establish a mechanism for accountability to bring to book the perpetrators of war crimes during the last stages of Eelam War, which ended in May 2009.

Thousands of Tamil civilians, direct victims of the war, had deposed before the LLRC. TNA leader R. Sampanthan said the findings of the LLRC offend the dignity of these victims.

The TNA said that the allegations of war crimes needed to be fully investigated. They include deliberately underestimating civilian numbers in the Vanni in order to deprive them of food and medical supplies; deliberately or recklessly endangering the lives of civilians in no-fire zones; targeting civilian objects, including hospitals; and executing or causing the disappearance of those who had surrendered.

The LLRC concludes that, on these issues, the government is not responsible. Instead, it shifts [the] blame onto individual soldiers and surmises that any violations that may have been committed were merely isolated incidents. For example, large numbers of disappearances that resulted from the surrender of unarmed persons before government forces have been cynically dismissed as isolated incidents perpetrated by a few'. The LLRC unjustifiably rules out the possibility that these violations were systematic, Sampanthan said.

The biggest shocker in the report was for the Douglas Devananda-led Eelam People's Democratic Party (EPDP), the ruling United People's Freedom Alliance's (UPFA) only ally from the North. Devananda is the lone Tamil in the Sri Lankan Cabinet. In a section devoted to illegal armed groups, the report says, The commission is constrained to observe [that] the attitude manifested by the leadership of the TMVP [Tamil Makkal Viduthalai Puligal] and EPDP in their explanations provide little or no consolation to the aggrieved parties and tend to militate against any meaningful reconciliation process. The commission wants the government to put an end to the illegal groups.

In a statement, the EPDP said: We regret to note about the comments made as regards the EPDP in the report. Whilst we deny the allegations about the EPDP, we wish to emphasise that while the leader of the EPDP was giving evidence before the commission, he had brought to the notice of the commission about the incorrect translation, which resulted in misunderstanding of what he stated. In addition, releasing this misconception to the media, prior to the tabling of this report to Parliament, makes us to believe whether it is done with any ulterior motive. But the party said it welcomed the LLRC's recommendations. It wants a parliamentary select committee to be set up without further delay and a time frame worked out for the conclusion of its recommendations. Once the select committee is in progress, our party will initiate action to have discussions with the constituent parties of the select committee with a view to promote consensus to reach early agreement, the EPDP statement said. The party also wants to initiate action to revive the Tamil Party Forum' to reach [a] common understanding among Tamil parties in this regard.

But other Tamil parties are not impressed. They hold the EPDP responsible for many problems in the Northern Province and say that the EPDP is part of the problem and that it can never be part of a solution. Devananda, who fancies his chances when provincial elections are held in the North, is apparently offering his hand in a bid to be seen as the person who took the initiative at a time when other Tamil parties were busy fighting the battles that are best fought on another, distant day.

NGO groups

Many international non-governmental organisations (NGOs) have pressed for an independent international investigation into the civil war. In its publication When will they get justice?, Amnesty International had slammed the LLRC. It said that the commission's report provides no accountability for atrocities ( Frontline, December 16, 2011).

The Brussels-based International Crisis Group (ICG) criticised the report for failing to provide a thorough and independent investigation of alleged violations of international humanitarian and human rights law that the U.N. and other partners of Sri Lanka have been asking for during Eelam War IV. It wants the international community through the U.N. Human Rights Council to establish an independent international investigation in 2012. Without such an investigation, accountability for the crimes committed at the end of the civil war was highly unlikely, it said.

The ICG also said the international community should bring pressure on Sri Lanka since there was little chance that the recommendations would be acted upon if there was no prodding from outside. It called upon the U.N. Secretary-General, the Human Rights Council and influential countries such as China, India, Japan, the United States, Canada, Britain and France, and also the European Union, to push Sri Lanka on the path of genuine reconciliation. Sri Lanka's friends in the Non-Aligned Movement, especially South Africa, Brazil, Indonesia and Mexico, have a particularly important role in reminding Sri Lanka of the importance of accountability and demilitarisation to lasting peace and reconciliation, it said.

It also wants a formal discussion of the LLRC report and the U.N. Secretary-General's panel report at the March 2012 session of the U.N. Human Rights Council. This should lead to an independent international mechanism to investigate all credible allegations and to monitor domestic efforts at accountability, it pointed out.

The Human Rights Council should also take note of the LLRC's recommendations that the government investigate and hold to account those responsible for abductions, disappearances and attacks on journalists including those committed by armed pro-government Tamil parties. These issues should be addressed on an urgent basis by the Sri Lankan government and its implementation of the commission's recommendations should be monitored on an ongoing basis by the HRC, the ICG said.

The New York-based Human Rights Watch, too, said that the LLRC turning a blind eye to the abuses of security forces highlighted the need for an international investigative mechanism into the conflict as recommended by the United Nations Secretary-General's Panel of Experts in April. Governments and U.N. bodies have held back for the past 18 months to allow the Sri Lankan commission to make progress on accountability, said Brad Adams, Asia director at Human Rights Watch. The commission's failure to provide a road map for investigating and prosecuting war-time perpetrators shows the dire need for an independent international commission.

Human Rights Watch said that the LLRC report failed to examine the use of heavy artillery against civilian areas as possible indiscriminate attacks in violation of the laws of war. While summarily rejecting the claim that the military either deliberately targeted civilians or caused disproportionate civilian harm, the LLRC did not even consider whether any attacks failed to discriminate between civilians and combatants, it said.

Among the many omissions, the LLRC report does not examine allegations that government forces executed several LTTE leaders who attempted to surrender to the government during the last days of the war in what has been called the white flag' incident. The report limits its analysis of the so-called Channel 4 video, which appears to show government soldiers executing handcuffed and blindfolded prisoners, to a technical discussion of the video's authenticity without mentioning the government's admission that its forces killed a young woman visible in the footage, it added.

We now have the opportunity, which eluded us for so long, to derive the fullest benefit from our country's natural strengths and, in particular, from the unique calibre of our human resources, said Nimal Siripala de Silva, the Leader of the House, after he presented the LLRC report to Parliament on December 16. To do so, the first requirement is inclusivity. We have to put behind us the anguish of a painful conflict and to confront the challenges of the future as one nation, he said.

Siripala said the government had a deliberate policy to withdraw security forces from all aspects of community life, promised a total end to the possession of unauthorised weapons, talked about setting up a mechanism for gathering and assessing factual evidence on allegations against security forces, and asserted that there was no move to change the demographic composition of the North and that the complex issue of land entitlement was being looked into based on the inputs given by the LLRC.

All the agony and suffering which the 30-year conflict has inflicted on our country is a matter of deep sadness. While we recognise this collectively as a nation, our acknowledgement of this reality must strengthen our determination to seize this rare opportunity which has now presented itself. We must do so in a spirit of togetherness, irrespective of considerations of language, creed or religion, he added.

A few days later, the President, in a breakfast meeting with editors of the Sri Lankan media, reiterated his views on what a political solution could include. He ruled out land and police powers to the North. This effectively puts to an end to any dream of an autonomous set-up in the North. The TNA reacted by saying that there could be no talk of a political solution without considering land and police powers.

LLRC's fate

After the LLRC made its interim recommendations in September 2010, a committee under the chairmanship of the then Attorney General was constituted to look into the aspects of implementation. The LLRC, in its final report, points out the lack of progress on its interim recommendations.

The rightist Jathika Hela Urumaya (JHU), which seeks to usurp the constituency of the Janatha Vimukthi Peramuna (JVP), contended that the LLRC had overstepped its mandate. Its general secretary, Champika Ranawaka, who is also the Power and Energy Minister, was quoted in The Island (December 27) as saying that the LLRC had overstepped its mandate by recommending devolution of power, which was a political issue beyond its scope.

Devolution of power will not be carried out to please the TNA or foreign conspirators. If there is any division of power, it will be conducted at the behest of the people, said Ranawaka.

The JHU's comments, read in conjunction with the President's views on devolution and the TNA's stand on a political solution, point to the emergence of a no-win situation. The government is talking to the TNA on the question of a political solution, but 18 rounds of talks have produced no breakthrough. Meanwhile, the Tamils are losing their patience. Some of them (including the Mannar bishop, whose quote the people have no space to grieve has been the defining feature of the situation of rehabilitated Tamils) has written to the TNA leadership on the issue of lack of progress.

For the first time since the end of the war, the TNA is under pressure from its constituency to deliver. Tamil civil society representatives claim that when they voted overwhelmingly for the TNA in the local body elections, ignoring the many incentives from the government, they had given it the mandate to stand up for them. In their view, however, the TNA is faltering. From the government side, many Ministers and also the President have likened the TNA to the LTTE for its intransigence in negotiating positions.

As the LLRC notes, Seeds of reconciliation can take root only if there is forgiveness and compassion. Leaders of all sides should reach out to each other in humility and make a joint declaration, extending an apology to innocent citizens who fell victim to this conflict, as a result of the collective failure of the political leadership on all sides.

For now, no one seems to be in a mood to apologise.