President Rajapaksha appointed the Lessons Learned and Reconciliation Commission LLRC) of Sri Lanka by extraordinary gazette notification dated 16th June 2010. The establishment of the commission was a direct response to the growing call for independent international investigation in to alleged violations of International Human rights and Humanitarian Law during the last phase of war between the Government of Sri Lanka (GOSL) and the Liberation Tigers of Tamil Eelam (LTTE).
The report of the commission was present to the parliament on 16th December 2011. Since then the report has been on the public domain and has become a topic for informed and in depth discussion. The report contains 407 pages and hundreds of recommendations. It has 8 chapters beginning form the introduction and ending with principal observations and recommendations.
In short the LLRC rejects the war crime charges leveled against GOSL, level charges against the LTTE and advocates far reaching reforms aimed at the democratic governance and reconciliation in Sri Lanka.
No war crimes committed by the GOSL
The report contains lengthy arguments on International Human Rights Law (IHL) which justify military actions of the GOSL and its security forces in the final phase of the war against the LTTE on the ground that it was an internal conflict against brutal terrorist force. There by it absolves the GOSL and its security forces of any violations of IHL and war crimes. The longest chapter of the report, Chapter 4 of the Humanitarian Law Issues is devoted to discuss and to arrive at conclusions on IHL in relation to the Sri Lankan situation. At the end commission concludes that security forces had not deliberately targeted civilians during the final stages of war. In arriving at this conclusion the LLRC base themselves mainly on the evidence of Sri Lankan military commanders. It is clear from the report itself that the investigation is lopsided.
This chapter and the arguments it presents are the most decisive section of the report in the context of the on going debate of war crimes and accountability during the last phase of the war.
The report argues that ”Some Principles of International Humanitarian Law applicable in non international armed conflicts or in “internal conflict” situations, are shrouded in uncertainty and a number of legal concepts remain vague and undefined. Article 3 Common to the Geneva Conventions of 1949 and Additional Protocol (II) applicable to non international armed conflicts, contain only the most rudimentary set of rules unlike, in the case of the Geneva Conventions and Additional Protocol (I) applicable to international armed conflicts. (4.4)”
Commenting on the interpretations given by the LLRC on International Human rights Law , the International Crisis Group said that ”equally worrying deficiency in the LLRC’s conclusions is the fundamental misstatement or misapplication of principles of international law. This is most evident in its failure to present a fair exposition of the principle of distinction under international humanitarian law. Indeed, even though the LLRC claimed to have considered the April 2011 report of the UN Secretary-General’s panel of experts, it did not engage the panel’s legal or factual analysis in any meaningful way. Allowing the LLRC’s regressive statement of international law to stand could have consequences beyond Sri Lanka.’’
The report admits that civilian deaths have taken place during the last phase of the war in unavoidable circumstances: ”It is the considered view of the Commission however, that eye witness accounts and other material available to it indicate that considerable civilian casualties had in fact occurred during the final phase of the conflict. This appears to be due to cross fire, the LTTE’s targeted and deliberate firing at civilians, as well as due to the dynamics of the conflict situation, the perils of the geographical terrain, the LTTE using civilians as human shields and the LTTEs refusal to let the hostages get out of harm”.
In this regards the commission has made 3 recommendations:
1. To investigate the specific instances referred to in observations.. And any reported cases of deliberate attacks on civilians. If investigations disclose the commission of any offences, appropriate legal action should be taken to prosecute/punish the offenders.
2) Conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain first-hand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of the conflict.
3. The Government of Sri Lanka should institute an independent investigation into the execution videos of the film Sri Lanka killing fields with a view to establishing the truth or otherwise of these allegations and take action in accordance with the laws of the land.
Thus while clearing the chain of command of any violations of IHL during the last phase of the war the LLRC report leaves room for investigations in to specific incidents of such violations.
Reforms towards Democratic governance and reconciliation
On the other hand LLRC report sets out a course of action if implemented that will result in a paradigm shift towards democratic governance in Sri Lanka. Chapter 5 of the report deals with the human rights issues arising form the conflict. It analyses the alleged “white van” abductions, unlawful arrests, arbitrary detention, involuntary disappearances, internally displaced persons, freedom of expression issues, freedom of religion etc and provides valuable recommendations.
LLRC reiterates the collective responsibility for the ethnic conflict and resulting war. “The process of reconciliation requires a full acknowledgement of the tragedy of the conflict and a collective act of contrition by the political leaders and civil society, of both Sinhala and Tamil communities. The conflict could have been avoided had the southern political leaders of the two main political parties acted in the national interest and forged a consensus between them to offer an acceptable solution to the Tamil people. The Tamil political leaders were equally responsible for this conflict which could have been avoided had the Tamil leaders refrained from promoting an armed campaign towards secession, acquiescing in the violence and terrorist methods used by the LTTE against both the Sinhala and Tamil people, and failing to come out strongly and fearlessly against the LTTE, and their atrocious practices.”
Overall recommendations of the LLRC towards democratic governance and ethnic conflict have been welcomed by even its most stern critics. The group Left Platform listed the most important recommendations as fellows:
- Political interference has resulted in an erosion of confidence in the criminal justice system. A Special Commissioner must be appointed to investigate alleged disappearances.
- Action should be taken to disarm and put an end to illegal activities of armed groups in the North and East.
- The land policy of the Governments should not be an instrument to effect unnatural changes in the demographic pattern of a given Province.
- It is important that the Northern Province reverts to civilian administration in matters relating to the day-to-day life of the people, and in particular with regard to matters pertaining to economic activities such as agriculture, fisheries land etc. The military presence must progressively recede to the background to enable the people to return to normal civilian life and enjoy the benefits of peace.
- Attacks on journalists and media institutions and killing of journalists have not been conclusively investigated and perpetrators brought to justice.
- There should be effective judicial review of legislation.
- An Independent Public Service Commission and Police Commission should be set up (Readers will note that the independence of these Commissions were done away with by the Eighteenth Amendment).
- Legislation should be enacted to ensure the right to information.
If fact none of them are new to Sri Lankan political discourse. (A longer list of recommendations is attached as annex 01) These steps have been advocated by civil society and various other commissions time and again in the recent past too. The post war Rajapaksha regime has in fact turned its back to these democratic reforms instead of accommodating them. It is in this context that the number of political commentators and human rights organisations has raised the issue of implementation of the LLRC recommendations as most crucial challenge for Sri Lanka.
Challenges before democratic civil society
Since the report was made public there is growing consensus among the different stake holders that although the LLRC report has shown a clear bias in its investigation in to the crucial issue of violations of International Human rights and Humanitarian Law, implementation of its both set of recommendations should not be lay to rest. First set of recommendations call for investigations in to accountability issues as individual cases. Second set of recommendations are related to reconciliation and democratic governance. The million dollar question is that given the inherent anti democratic and autocratic nature of post war Rajapaksha regime will there be any political space and wiliness for carrying out these recommendations?
The other pivotal question is that now as the domestic accountability mechanism, the LLRC, has recommended remedial measures at length an international investigation in to the alleged war crimes and accountability issues is still necessary?
Emphasising that the conclusion about the intentions of the armed forces are disappointing the Centre for Policy Alternatives, a think tank based in Colombo argues that it reinforces the demands for an international investigation rather than addresses and lays them to rest. These demands are further augmented by the critique of the LLRC of the current state of governance and the rule of law, …. The state of governance and the rule of law described by the LLRC, begs the question as to how the investigations it recommends can be conducted nationally, given the erosion of the integrity of the institutions that will be involved in such investigations.
The track record of the present regime does not leave any room for complacency that LLRC recommendations will be carried out earnestly. The official position of the GOSL has been that LLRC recommendations could be implemented only according to the government road map. No time frame or bench marks for the implementation has been established.
The major Tamil political party the Tamil National Alliance has rejected the report findings on accountability issues and called for an independent international investigation. Sri Lanka’s closest and most influential neighbour India has welcomed the report and noted that “We have also noted the Government of Sri Lanka’s intention to set up a mechanism to carry out further investigations relating to instances of alleged human rights violations and incidents involving loss of civilian life. It is important to ensure that an independent and credible mechanism is put in place to investigate allegations of human rights violations, as brought out by the LLRC, in a time-bound manner.”
Instead of closing the on going campaigns on accountability issues during the last phase of war in Sri Lanka LLRC report has invigorated and broadened the scope of the discussion. Now the issues of democratic governance also has come in to the picture and one of the challenges will be to articulate a holistic and balanced approach encompassing all relevant issues.
Compiled by Sri Lanka Brief
- Further investigations should be carried out regarding 4 particular incidents which caused death or injury to civilians, on possible implication of the security forces.
- Necessary investigations should be carried out into specific allegations of disappearances after surrender/arrest, and where such investigations produce evidence of any unlawful act on the part of individual members of the Army, the wrongdoers should be prosecuted and punished.
- Take due account on surrendered LTTE cadres against whom investigations reveal prima facie material for prosecution.
- IHL regime should take into account the grey areas in the existing legal framework applicable to internal conflicts involving states and non state armed groups.
- A professionally designed household survey should be conducted covering all affected families in all parts of the island to ascertain firsthand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of the conflict.
- Institute an independent investigation into Channel 4 videos.
- A special commissioner should be appointed to investigate alleged disappearances and provide material to the Attorney general to initiate criminal proceedings as appropriate.
- Death certificates should be issued and monetary recompense should be provided where necessary. Steps should be taken to effectively implement the amendment to the Registration of Deaths Act (2006).
- Appoint an independent advisory committee to monitor and examine detention and arrest of persons under any regulations made under the Public Security Ordinance or the Prevention of Terrorism Act (PTA).
- Domestic legislation should be framed to specifically criminalize enforced or involuntary disappearances.
- Prepare a centralized and comprehensive database containing a list of detainees and make that available to their next of kin.
- All illegal armed groups should be disarmed.
- Grant the legal ownership of land to those who have been resettled.
- In instances where there is prima facie evidence of conscription of children as combatants (by both LTTE and TMVP), any such alleged cases should be investigated and offenders must be brought to justice.
- Increased employment opportunities should be provided to those in the former conflict affected areas.
- An inter-agency task force mandated to addressing the needs of vulnerable groups like women, children, elderly and disabled, must be established.
- Investigate and inquire into alleged incidents of serious violations of human rights including the 2006 Trincomalee massacre and the 2006 massacre of 17 aid workers.
- The land policy of the governments should not be an instrument to effect unnatural changes in the demographic pattern of a given province.
- A National Land Commission (NLC) should be established in order to propose appropriate future national land policy guidelines.
- All political parties should arrive at a bipartisan understanding on national land policy and recognize it as a national issue. Land policy should not be used as a tool to gain narrow political advantage.
- The role and capacity of the Rehabilitation of Persons, Properties and Industries Authority (REPPIA) should be reviwed, giving its primary focus in providing compensatory relief for persons affected by the conflict. Ex-LTTE combatants and next of kin should also be considered eligible for compensatory relief.
- Involvement of the security forces in civilian activities in NorthEasternProvince should be phased out. Private lands should be used giving reasonable time lines.
- A proper investigation should be carried out on the alleged involvement of Vinayagamoorthy Muralitharan alias Karuna Amman and Sivanesathurai Chandrakanthan alias Pillayan in the 1990 massacre of Sri Lankan Police officers.
- A full investigation should be done on the alleged acts of extortion committed by members of the Eelam People’s Democratic Party (EPDP).
- Steps should be taken to neutralise the activities of a gang led by a person called Major Seelan in connection with offences of abduction, extortion and robbery using the security forces facilities as a cover.
- Units of the Attorney General’s department should be set up in the provinces to guide and advise the Police regarding criminal investigations, prosecutions and other matters touching upon the criminal justice system.
- An independent Public Service Commission should be established without delay to ensure that there is no political interference in the public service.
- A good-faith effort should be taken to develop a consensus on power devolution, building on what exists – both, for maximum possible devolution to the periphery, as well as power sharing at the centre.
- Learning of each others’ languages should be made a compulsory part of the school curriculum.
- All Government offices should have Tamil-speaking officers at all times. Police Stations should have bi-lingual officers on a 24-hour basis.
- A proactive policy should be implemented to encourage mixed schools serving children from different ethnic and religious backgrounds.
- Government should engage with the so-called ‘hostile diaspora groups’ constructively and address their concerns.
- National anthem should be sung simultaneously in two languages to the same tune.
- Laws should be strictly enforced on the instances of hate speech that contributes to communal disharmony.
- A separate event should be set apart on the National Day (4th of February) to express solidarity and empathy with all victims of the tragic conflict and pledge the collective commitment to ensure that there should never be such bloodletting in the country again.