(Thamil people are under the clutches of a ruthless military regime unable even to breathe freely. Sri Lanka intends to use the LLRC report as a fig leave to cover its blood soaked hands come UNHRC sittings in Geneva in March.)
The million dollar question in everybody’s lips is whether the much fancied LLRC report will meet the same fate as previous Presidential Commission’s reports. Sri Lanka enjoys the disreputable record for burying reports produced by presidential Commissions appointed by governments.
The first such Commission under former Chief Justice M.C.Sansoni was appointed by J.R.Jeyawardene (then Prime Minister) on 9th November, 1977 to report on “the circumstances and causes” of the August 1977 riots and identify “any person or body of persons or organisation, etc.” that were in any way the cause of the violence. After prolonged sittings the Commission, in effect, told the Thamils ‘you asked for it and you got it.’ Sansoni said the communal violence was retaliation by a section of the Sinhala people, because a section of the Thamil leadership asked for a separate state and fostered the militant movement.
Thus, Sansoni propounded a new judicial theory that political demands by a minority community that are unpopular with, and resented and resisted by, the majority community is sufficient cause for the members of the majority community to indulge in violent activities against the members of the minority community.
In November, 1994 newly elected President, Chandrika Bandaranaike Kumaratunga, appointed three commissions of inquiry to investigate the fate of thousands of people who “disappeared” in Sri Lanka since January 1, 1988. The three presidential commissions, each assigned a specific geographical area of the country, began investigations in mid- January of that year. The reports by the three Commissions never saw the light of day.
A three member presidential Commission appointed in 2006 to probe allegations of corruption in procurement of “high value weapons, military equipment, material and services between 2001 and 2005’’ was never published for “national security concerns.”
The 2006 Trincomalee massacre of NGO workers, also known as the Muttur massacre, took place on August 4 or 5, 2006, when 17 employees of the French INGO Action against Hunger (known internationally as Action Contre la Faim, or ACF) were shot at close range in the city of Muttur, close to Trincomalee. The victims included sixteen Thamils and one Muslim.
Under increasing pressure to investigate this incident by the international community, Sri Lanka president Mahinda Rajapakse in September 2006 announced the formation of a Commission of Inquiry with a mandate to look into 15 specified alleged violations, including the Muttur massacre of ACF staff. With the dubious track record of previous Commissions of Inquiry in mind, a group of bilateral donors negotiated for the formation of a group of International Independent Eminent Persons (IIGEP) that, invited by the president, have the mandate to observe the investigations of the Commission of Inquiry.
The Sri Lankan government denied responsibility, but the Sri Lanka Monitoring Mission suspected that the Sri Lankan Army was responsible for the killings. According to the SLMM, the killings were carried out by the armed forces. The head of the Mission, retired Swedish Colonel Ulf Henricsson was quoted as saying that this was “ ….. one of the most serious recent crimes against humanitarian aid workers worldwide.”
On April 1, 2008, the Organisation “University Teachers for Human Rights”, who are known to be openly critical both of the LTTE and the Government of Sri Lanka, released their “Special Report #30” which exclusively dealt with the massacre of ACF staff. UTHR names one member of the Sri Lankan Home Guard (now the Civil Defence Force) and two Police Constables based in the Muthur Police Station as perpetrators, but adds that several Sri Lanka Navy Special Forces were part of the group that entered the ACF compound and remained passive as the ACF staff were murdered.
The IIGEP members withdrew from the Commission, after accusing the Attorney General department had a conflict of interest in its participation in the Presidential Commission’s proceedings, that the presentation of facts by counsel from the AG’s department on some earlier dates at the Presidential Commission have not been impartial, and that it is not correct to portray the Presidential Commission as being capable of dealing with the human rights violations in the country.
The Attorney General (AG) of Sri Lanka, C R de Silva, on 18 June 2007 issued a letter to the Chairman of the International Independent Group of Eminent Persons (IIGEP) retaliating to two public statements made by the IIGEP on some serious shortcomings in the manner in which the Presidential Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights is being conducted.
The AG claimed that his letter was written “in view of the serious harm and prejudice caused by your Public Statements to the Commission of Inquiry and to the Attorney General’s Department.”
The criticisms to which the AG had objected were that the Presidential Commission has suffered needless delays, that the IIGEP had thus recommended that the commission speed up its work, be allowed to use independent lawyers and not be used to claim that there is more robust monitoring of human rights abuses in Sri Lanka, either through local measures or through the presence of international human rights monitors.
To anyone who has followed the working of Presidential Commissions and the AG’s department, the IIGEP’s criticisms, if anything, are understatements. Prominent Human Rights Organizations like the AI, HRW, AHRC have for years criticised Sri Lanka for the collapse of the rule of law. The AHRC had stated throughout that the purpose of appointing the Presidential Commission was merely to deflect scathing international criticism.
Sri Lanka wanted to create an impression before the international community that it is taking remedial action about alleged grave violations of human rights when in fact the country’s criminal investigation system is both unwilling and incapable of dealing with those violations. The AHRC categorically stated that the AG’s department itself is both unwilling and incapable of dealing with the gross abuses of human rights taking place in the country. It has repeatedly described Sri Lanka is now among the most lawless places in the world.
Not surprisingly, in July 2009 the Presidential Commission of Inquiry exonerated the army and navy in the ACF killings, instead it blamed the LTTE or Muslim militia. The commission made it difficult for witnesses to testify and made no effort to remedy a botched police investigation. Its full report to President Mahinda Rajapaksa remains unpublished.
Back to LLRC’s report, the HRW slammed its failure to provide a road map for investigating and prosecuting wartime perpetrators and, therefore, the dire need for an independent, international commission.
The LLRC report claimed some isolated allegations of civilian abuses by security forces needed to be investigated further, suggesting that any violations could only have resulted from soldiers who were not following orders. That assertion flew in the face of the UN experts panel’s report that accused the government of deliberately shelling civilian areas and possibly killing tens of thousands of people in the final months of the war.
Incidentally, the Attorney General accused of impartiality was none other than C.R.de Silva, Chairman of the LLRC! The TNA in its analytical critique blamed the LLRC of having failed to fulfill “the need for an accountability process that meets international standards while delivering on the right of victims to truth, justice and reparations including guarantees of non-recurrence” and specifically mentioned that there was ethnic and gender imbalance in the membership, conflicts of interest and patent lack of independence of the members of the Commission! The TNA went on to identify by name C.R.de Silva’s impartiality and competence in the following scathing terms:
“Moreover, three of the eight Commissioners including the Chairman have defended the Sri Lankan government against allegations of war crimes in the media, in international foray or both. Mr. C.R. de Silva and Dr. Rohan Perera in their capacities as Attorney General and Legal Adviser to the Foreign Minister respectively were members of the Sri Lankan delegation to the UN Human Rights Council on a number of occasions during and immediately after the last stages of the war, at which concerns were raised about the conduct of the government………. It is noted that the Chairman of the LLRC, Mr. C.R. de Silva was party to a public feud between the Attorney General’s Department and the International Independent Group of Eminent Persons (IIGEP) appointed to monitor the work of a previous Commission of Inquiry (i.e. the Presidential Commission of Inquiry Appointed to Investigate and Inquire into Alleged Serious Violations of Human Rights arising since August 2005).
Mr. de Silva was then the Attorney General and was accused by the IIGEP of participating in the proceedings of the commission – and particularly in the examination of witnesses – while having a ‘fundamental conflict of interest.’ The improper role of the Attorney General’s Department later prompted the IIGEP to resign. In this context, Mr. de Silva’s appointment as Chairman of the LLRC was highly inappropriate.”
What this means is the absolute impossibility of inquiring into violations of human rights committed by the armed forces by Presidential Commission or any other inquiring body due to blanket impunity. The processes surrounding the appointment, composition and finalization of the LLRC was deeply flawed and not at all independent. Hence, the accusation the LLRC has taken pains to justify the conduct of the war and whitewash the crimes committed by the armed forces during the war. The LLRC took extra pains and expended resources to discredit the Channel 4 video and this was reflected in devoting 168 pages out of the 375 pages to analyse same.
TNA without mincing words accused “The Government of 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, war surrendees.” For instance the Defence Ministry claimed only 70,000 people remained in the war zone when in fact the number was 282, 380 four times the estimate. As of October, 2008 there were 429,059 registered at Kachcheris of Mullaitivu and Kilinochchi.
Canada’s Foreign Affairs Minister John Baird did some tight rope walking when he claimed “Although we are still studying the report, the commission has addressed and provided recommendations in some areas of concern, including reconciliation, the rule of law and demilitarization. He continued “Canada strongly urges the Government of Sri Lanka to implement the commission’s recommendations and develop an implementation road map with clear timelines while also addressing the issues the report did not cover. The report’s recommendations if implemented can contribute to the process of political reconciliation that must now take place to address the root causes of deadly strife and division. However, to date, we have seen a lack of both accountability and meaningful attempts at reconciliation on the part of the Sri Lankan government. Decisive action is now required.
Canada remains concerned that the report does not fully address the grave accusations of serious human rights violations that occurred toward the end of the conflict. Many of the allegations outlined by the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka have not been adequately addressed by this report. We continue to call for an independent investigation into the credible and serious allegations raised by the UN Secretary-General’s Panel that international humanitarian law and human rights were violated by both sides in the conflict. The Government of Sri Lanka must demonstrate the principles of freedom, democracy, human rights and the rule of law.”
The position of US was some what muted. Answering a question whether like the human rights groups, US will demand “for an independent, international probe into what happened in 2009. Is that the U.S. position? Does the U.S. think that there should be an international effort at this point? Or do you think the Sri Lankan effort is still – will suffice for the time being?” Ms Nuland responded saying “Well, obviously, we’ve long said that it is better for Sri Lankans to take these issues themselves and address them fully. That remains our position, so now we want to see if the Sri Lankan Government will lead their country in the next step to ensure that there is full implementation of the recommendations that we have and filling in of the gaps. So let’s see what they are willing to do going forward.”
This is a step backward in comparison to what Ms Nuland told the media in August 2011. Asked ” about the possibility of bringing the Sri Lankan president “to the International Criminal Justice Court” for “atrocities” committed against Thamils, Ms Nuland answered “We would like the Sri Lankan Government to take its responsibility … [on issues of] justice and accountability … But if that does not happen and does not happen expeditiously, then we reserve the right to discuss international mechanisms.”
The Presidential Secretariat understandably – and triumphantly – showcases the LLRC’s words of total exoneration: “In evaluating the Sri Lankan experience in the context of allegations of violations of international humanitarian law (IHL), the Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority. The Commission also notes in this regard that the movement of the Security Forces in conducting their operations was deliberately slow during the final stages of the conflict, thereby evidencing a carefully worked out strategy of avoiding civilian casualties or minimizing them.”
Since the public release of the LLRC report on December 16, 2011 no concrete action regarding the implementation of LLRC’s recommendations are forthcoming. This is not surprising when the interim recommendations sent to the government on September 13, 2010 remain unimplemented.
Notwithstanding the many LLRC report’s negatives and blatant shortcomings, there are a few positives, if implemented, will mitigate the hardship and pain experienced by the Thamil people and help in the reconciliation process.
(1) The disarming of those holding weapons illegally in the hunting grounds of government politicians in the South as well as the paramilitaries in the North and East.
(2) Systematically improved access of family members to detainees.
(3) Safeguard against unlawful arrests and detentions, punishment of those who abuse their powers.
(4) The ceasing of enforced disappearances as well as showing political will to investigate acts of extra judicial executions and disappearances. Convenor of ‘We are Sri Lankans’ Udul Premaratne told The Sunday Leader that some 500 people have been reported missing in the North and East alone over the past few years. Journalist Pradeep Eknaligoda missing since January 2009 and two JVP rebel activists abducted in Jaffna, Lalith Kumar Weeraraj and Kugan Murugesan, remain missing since January 13, 2012. Lalith Kumar had been repeatedly threatened by military officials to give up political activism in Jaffna.
(5) The ‘strong’ reminder that the recommendations of the 2005 Udalagama Commission in relation to the killings of Thamil and Muslim civilians in Mutur and Trincomalee in 2006 should be implemented.
(6) The enactment of right to information legislation.
(7) The call for the Northern Province to be returned to civilian administration by the withdrawal of security forces from all aspects of community life and restrict their role exclusively to security matters. In tabling the LLRC Report before Parliament, Minister Nimal Siripala de Silva, promised that the armed forces would be withdrawn from community life and decision-making at those levels. It is unclear whether the armed forces will be withdrawn to their barracks.
(8) To investigate and “and if such investigations disclose wrongful conduct, to prosecute and punish the wrong doers.”
(9) The delinking of the police force from the charge of the Defence Ministry. Creating branches of the Attorney-General’s office in Provincial capitals to speed up legal advice for the police.
(10) A politicalsettlement based on devolution must address the ethnicproblem as well as other serious problems that threatenthe democratic institutions.
(11) In relation to land issues, while the Commission recommended that the government issue a clear policy that private lands would not be used for settlements by any government agency, no such policy statement has been made thus far. In fact, land appropriation by the military and by government functionaries has continued unabated.
However, the chances that the Sri Lankan government will swiftly move to implement any of the above recommendations of the LLRC are infinitesimal. The LLRC report will suffer the same fate of countless other commission reports consigned to dustbins earlier. Rajapaksa’s government has shown its unwillingness to learn lessons or initiate reconciliation. It will be unrealistic to expect Mahinda Rajapaksa’s siblings to investigate themselves honestly, find themesleves guilty and punish themselves. Mahinda Rajapaksa is now an elected dictator enjoying unlimited power over every aspect of the state. One has to wait for a regime change for independent investigation into war crimes.
The Government intends to use the LLRC report as a fig leave to cover its blood soaked hands come UNHRC sittings in Geneva in March. President Rajapaksa has dispatched his Ministers and diplomats to countries represented in the UNHRC on a misinformation campaign.
In the meantime, Thamil people remain deeply sceptical whether Mahinda Rajapakse and his Government will learn lessons and embark on genuine reconciliation. Being victims of the war, Thamil people are concerned that the report will make no difference to their lives. The divide between the Sinhalese and Thamils are deep and the wounds far from healing is festering by the day. During the war, Mahinda Rajapakse bragged that he is engaged not in war but humanitarian operations to free the Thamil people from the clutches of the LTTE. Today, the Thamil people find they are under the clutches of a ruthless military regime unable even to breathe freely.
Posted 21st February 2012 by Tamil Mirror