Challenging tasks

Published : Dec 16, 2011 00:00 IST

The report of the Lessons Learnt and Reconciliation Commission of Sri Lanka may lack credibility in international fora.

in Colombo

EVERY time the international community pointed the finger at Sri Lanka's conduct of Eelam War IV, which ended in May 2009, and blamed the government forces for the unacceptably high number of civilian casualties, the government sought refuge in the fact that it had appointed a commission to go into the civil war and the events that took place after the breakdown of the truce with the Tamil Tigers in 2002.

At 6 p.m. on November 20, the Lessons Learnt and Reconciliation Commission (LLRC) handed over its report to President Mahinda Rajapaksa, at his official residence, Temple Trees, in Colombo. The government will now have to act on the report and show the international community that it has nothing to hide. In fact, the President himself is on record as saying that he will take action against anyone that the LLRC finds guilty of war-related crimes.

But it is not possible for the LLRC to exceed its brief. Its terms of reference did not allow it to investigate war crimes, and the committee has come in for criticism from international human rights groups. Most of them refused to depose before the commission, despite the LLRC welcoming anyone with knowledge of the period to depose before it.

A primer of what the report can possibly contain was put out by a local English newspaper, The Sunday Times, on November 20. According to it, the 400-page report has recommended that the government investigate incidents that may have occurred during the final stages of the war. The Sunday Times says: The final report of the Lessons Learnt and Reconciliation Commission (LLRC) will ask the government to investigate incidents that may have occurred during the final stages of the war that militarily defeated the Tiger guerillas two and half years ago.

This is on the grounds that there appears to be a prima facie case based on the information the commissioners have received. However, the commission has neither named the specific incidents nor identified the persons responsible for them. It has also declared that Britain's Channel 4 video on alleged massacres by the military was a total fabrication'.

Government officials have said that the report will be presented to Parliament before it is made public. This will be done probably during the Budget session of Parliament, which begins on November 21 with the presentation of the budget. First the President's Office has to study the report. After that it will be presented in Parliament, one official said.

Report to be made public

President Rajapaksa had made it clear that the contents of the report would be made public. The LLRC was constituted by the President on May 15 last year, soon after the United Nations Secretary-General Ban Ki-moon visited Sri Lanka and decided to conduct a U.N. probe. Former Attorney General C.R. de Silva functioned as the Chairman of the LLRC.

The final report of the commission was prepared after 57 public sessions and 12 field visits at over 40 locations. The commission spoke to people in the North and the East and in other affected areas of the country over a period of 11 months. More than a thousand people appeared before the commission to make representation. The commission additionally received and analysed over 5,100 written submissions.

The commission also held unscheduled meetings with the general public, especially in areas affected by conflict and in the settlements of internally displaced persons (IDPs). The commission revisited certain areas in the North and the East in order to clarify issues further and verify information.

The commission submitted its interim recommendations to the President on issues relating to detainees, law and order, land, illegal armed groups, and language, in September 2010. The term of the commission came to an end on November 15.

The LLRC said that it had also analysed submissions and other published reports, both local and international, relevant to its mandate in order to draw lessons and make recommendations on the basis of an analysis of the course of the conflict and its causes, to redress grievances and take the country forward to an era of reconciliation and peace-building.

Many countries, including the United States, the United Kingdom, Canada and India, had taken the position that the LLRC should be given a chance first. Representatives of these countries, with whom this correspondent spoke to, were of the opinion that Sri Lanka should not be prejudged on the basis of its conduct of the war or the manner in which the LLRC's mandate was drawn up. The important thing, in their collective view, was that due process should be first completed.

Sri Lanka has maintained that it will share the report with the U.N. and other bodies and will set in motion a process of reconciliation that is basically home-grown. It has held the view that world powers should desist from taking the one-size-fits-all approach when it comes to human rights issues.

Amnesty view

While some human rights organisations said that they would not be in a position to comment on the report since they had not seen it, others such as Amnesty International have slammed it since it provides no accountability for atrocities.

An Amnesty International report, released in September this year, When will they get justice?, sought specifically to highlight the internal contradictions within the LLRC and why it would not provide a basis for lasting peace.

The Sri Lankan government has, for almost two years, used the LLRC as its trump card in lobbying against an independent international investigation. Officials described it as a credible accountability mechanism, able to deliver justice and promote reconciliation. In reality it is flawed at every level: in mandate, composition and practice, said Amnesty International's Asia Pacific Director Sam Zarifi.

Amnesty International's analysis of the LLRC's publicly available transcripts found that the commission had failed to investigate appropriately credible allegations of systematic violations by the warring sides, including illegal killings and enforced disappearances, widespread shelling of civilian targets such as hospitals, and the use of civilians as shields.

One of its concerns was that the members of the commission included former Sri Lankan government officials who had publicly defended the government in the matter of war crimes. Narrating one instance, it said that in the LLRC's first field session, the panel's chairman made no mention of human rights abuses and asked witnesses to forget the past. Instead, he wanted them to tell the commission about any problems they had in gaining access to education, medical care and housing.

An analysis of LLRC sessions exposes a catalogue of missed opportunities, negligence and political bias, said Sam Zarifi. The LLRC's panel of commissioners ignored crucial questions relating to the role of the government forces in war crimes and crimes against humanity.

U.N. Panel of Experts

An earlier report by the U.N. Secretary-General's Panel of Experts (April 2011) on accountability issues in Sri Lanka held both the government forces and the Tamil Tigers responsible for war crimes in the months before the Tigers were finally defeated in May 2009. It had recommended establishing an independent international mechanism to investigate the allegations.

The report was criticised in Sri Lanka and the chairman of the panel, Marzuki Darusman, was singled out for harbouring anti-Sri Lankan feelings. The report was dismissed as the Darusman Report', and Sri Lanka refused to accept it as a U.N. report. Though the panel wanted to visit Sri Lanka before finalising the report, it did not happen. The panel made it clear that it did not have to visit Sri Lanka to prepare a report.

Despite being ridiculed and dismissed in Sri Lanka, the U.N. system has taken the report seriously. The Secretary-General should conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates, the panel had recommended, among other things.

Acting on this recommendation, the U.N., on September 24, appointed Thoraya Obaid, a former head of the U.N. Population Fund, to investigate the failings of the U.N. system during the end stages of the war. She will specifically look into whether the U.N. faltered in its implementation of the humanitarian and protection mandates during Eelam War IV and its immediate aftermath. Her report is expected to be ready in January.

While Thoraya Obaid's mandate is to look at the conduct of the U.N. and its personnel on the ground, experts here are of the opinion that the review cannot be carried out without commenting on the war itself.

The Sri Lankan government maintains that there is nothing wrong in the U.N. reviewing its own activities. If they want to investigate themselves, they can do so, said Foreign Minister G.L. Peiris. On the possible criticism that will emanate from such a report, Prof. Peiris drew attention to the report of Neil Buhne, the U.N. Development Programme country head at that time. The allegations, for instance on [the stoppage of] food supply, directly contradict the report he wrote. He was here, he was on the spot. He had firsthand knowledge of what was happening, Peiris said. He added that some ambassadors were also privy to what was happening because they were on the relevant committee. They all know that the allegations are not true.

Next steps

There is no let-up in the pressure on Sri Lanka from the international community led by the U.S., Canada, Australia and the U.K. While India has tried to talk to Sri Lanka at the bilateral level, it has been supportive of the country at all international fora. Thoraya Obaid's report will string together a new series of events at the international level, which Sri Lanka will find tough to counter.

The New Year will herald additional pressure points for Sri Lanka. The U.N. Human Rights Council meets in March. If Sri Lanka does not show the resolve to move in a path that leads to an amicable settlement to the Tamil question, it will have to brace itself for tougher challenges in many international fora. And, for once, India cannot be of much help.

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