(i)  The Main Deficiencies in the Panel’s Report

A wise judge knows that in the imperfect domain of human knowledge there are many versions  of the truth and  steers  himself conscientiously  through all these versions, seeking the truth. The outcome of the Panels report falls far short of such wisdom.  

 

The conditions in which the panel was constrained to work and its inability to gain access to vital sources of information render the report practically worthless as an account of the final stages of the war. If this is all that has to be said we might lay aside the report as a harmless exercise but this is certainly not the case. The panel has to be faulted for very serious deficiencies in the report that could have  fallout of a very negative character for the process of accountability both at the global as well as the local level. Had the Panel kept steadily in view that they were missing the information from the government side and had they examined the full implications of this lacuna they could have produced a credible report. Had the panel done so they would have had to produce a different report. The tone of their report would have reflected both the humility and the professional integrity that it lacks in its present form.  What we would have is a statement to the effect that the panel has been able to gather a great deal of information from sources other than the government concerning allegations of war crimes of both the government and the LTTE which have not been verified and that they   have not been able to get the government version which is vitally important for their task. They would have then had to list the allegations in a neutral objective tone and would have not written the dramatic account of what they thought had actually happened. They would have then proceeded to advice the UNSG regarding the international law applicable and recommended that the UNSG should use his good offices to induce the government to provide a full version of the last stages of the war and strengthen the domestic process of accountability.  This of course was far from what was expected from the panel by the constituencies which pressurized  for the  appointment of the panel after their effort in the UNHRC in May 2009 was thwarted.

What has been stated above is a somewhat lenient verdict on the report. The verdict would be sterner when we list the flaws in more specific term. There is a selective approach to the gathering of the information with exclusions and omissions which give a blatantly tendentious character to the report. The Panel has set out to prepare a prosecutor’s  brief .  Even the evidence before them is not analysed with an open and impartial mind.  For example the panel  had enough information on the LTTE’s activities in the no fire zone  which it chooses to ignore when it  concludes that the  SLA  were deliberately targeting civilians and hospitals. Some parts of the report reveal a curious pettiness of spirit as when they describe the assistance given by soldiers using the term “individual soldiers” so as to take care not to associate the humanitarian approach with the army as a whole because the soldiers actions were not consistent with their interpretation. The root of the problems in the report lie in their outrageous interpretation of the government’s military strategy as designed at the extermination of Tamils without any humanitarian intention or effort at rescuing hostages. With this interpretation the panel puts on the blinkers that distort all their perceptions of the government’s actions. The report also gives a deliberately truncated view of the government’s action by excluding what would have provided a different and more positive explanation of these actions. This deficiency is seen in every part of the report that deals with government actions.

The Panel’s application of international law to government’s actions is based on its faulty interpretation of the character and the nature of the war as well as the government’s strategy and actions. For the panel the war in Sri Lanka was like any other armed conflict. The panel does not ask how a war on a terrorist organization is different from any other armed conflict and what that distinction signifies to the assessment of intentionality and proportionality  of government actions.  It does not ask how a government could or must respond to a hostage situation. It does not make any distinction between the army of a democratic state carrying out a legitimate military operation and a terrorist organization whose strategy has been one of terrorism which included massacres of rival Tamil groups, assassinations of leaders, conscription of children, suicide cadres and missions as a regular part of their operation and finally using civilians as human shields and hostages.

Given the  Panel’s interpretation, the Panel  positions itself comfortably on what it describes as “the existing law”.  It avoids examining the implications that the war on terror has on the existing law. It has not taken the trouble to refer to the available body of scholarly work and practical knowledge relating to the war on terror.  The comparable international experience it cites has little in common with the Sri Lankan case to provide any guidance for the process of accountability. Consequently the panel’s painstaking work on the application of international law  to war crimes in armed conflicts of a conventional nature  have little relevance or value in the Sri Lankan context. The Panel has shown no capacity to frame the more challenging issues arising out of the unique conditions of the Sri Lankan case. By shutting itself within the framework they have selected, the Panel is unable to make any worthwhile contribution to advancing the process of accountability that takes into account the extreme conditions generated in a war on terrorism. The Panel’s final output is for that reason sadly disappointing.

The Panel dismisses the government’s policy of restorative justice without a full understanding of its conceptual underpinnings and its moral and spiritual foundations. It opts for the secular process of accountability which is essentially based on the principles of punitive justice. It rejects the deeper effort of restorative justice at uncovering truth for the purpose of contrition, forgiveness, reparation and reconciliation. It misses altogether the greater capacity of the restorative approach to heal past wounds, bring a closure to the past and promote a genuine process of reconciliation and peaceful co-existence. While granting that the processes of dealing with the truth will not be the same for all countries and there is no single template for all situations it invokes the template of the ICTY as though it is final and unquestionable. There is no awareness that international humanitarian law like any other law is a dynamic process responding creatively and imaginatively to changing human conditions and that “man is not [The eleventh chapter of the Mahabharata, Sthreeparva, depicts women, led by Gandhari, mother of the evil Kauravas, mourning those who died in the battle of Kurukshetra. Husband, brother, son, uncle, lover, demon lover - the identity of the lost one varies for the women who lament. One woman's pain is as searing, the void scooped out in her life as raw, as the next one's, regardless of whether the man she cries over fought on the 'good' side or the 'bad' side. Some tragic facets of the human condition are common, regardless of which side you are on.

This simple fact is lost on those who are distraught at Prime Minister Manmohan Singh's empathy with the plight of the relatives of terror suspects rounded up by the police. Dr Manmohan Singh's humanitarian mettle is not the point. The point, rather, is that underlining protection of what is humane as the central objective of the war on terror is integral to its success. Revenge is not, should not be, the goal of any modern criminal justice system  -  K. N Arun Economic Times of India ].

made for the law but the law is made for man”.

Panel’s recommendations, judged from the criterion of what they do to advance the process of accountability produces little of substantive value. Its main recommendation on the appointment of an international mechanism by the UNSG cannot be implemented by the UNSG. Its recommendations for a separate mechanism for domestic accountability  again is based on the premise that the government  and the Sri Lankan army must faces charge of war rimes based on its interpretation of the government strategy and the events during the last stages of the war.  The government had already made it clear that the mandate of the LLRC while it is framed within a policy of restorative justice which allows for investigation of individual violations does not begin on an accusatory basis for the purpose of prosecution and punishments. In this context the Panel’s recommendation is not likely to serve any constructive purpose. What is missing in the Panel’s recommendation is any set of specific recommendations for follow-up on LTTE crimes and its residual organization abroad, the accountability of the Diaspora and the responsibility of the developed countries. Again this is characteristic of the bias that flaws the entire report.

The panel in many parts of its report adopts a tone towards the Sri Lankan government which is unseemly for a Panel assigned a task by the UNSG. Its comments on triumphalism, its recommendation for a public acknowledgement by the government are characteristic of this tone. It is these emotive eruptions found in several parts of the report that confirm the impression that the panel is driven by a personal animus and “righteous indignation” against the government While these have their place in the category of advocacy documents of the human rights activists, in the case of the Panel, it has seriously inhibited the full impartial gathering of information and   disinterested adjudication.      

 
Although  assessed on its substantive worth  the Panel’s report has little to contribute to the process of accountability at the global or domestic level, the publicity  and accolades it as received from the like minded and the way it is being used for advocacy purposes by certain  groups particularly the pro-LTTE groups demands serious attention.  Action has therefore to be taken at all levels, domestic regional and global, to counter its pernicious fall out.  In this context  the UNSG  could  revisit  the Panel’s report  and, in  consultation  with the Sri Lankan Government  and the Panel ,  respond  constructively  to  the issues raised regarding its major deficiencies . The UNSG could take into account  the constraints within which the Panel  worked  and the circumstances in which it was denied access to  vital  sources of information  and  on the basis of such a reappraisal  withdraw the report from the  public domain while retaining it  for his personal reference  as he may consider  fit.

(ii) Accountability in Terms of the Government’s Military Strategy

“Of course we have to close the books. But the books have to be opened before they can be closed for the last time” Archbishop Tutu in a televised address on the South African Truth and Reconciliation Commission. 

When all this has been stated about the Panel’s report it should be noted that laying aside the Panel’s report and its story of what happened is certainly not the end of the whole story. The commitment of the government, as stated in its explanations of the mandate of the LLRC, is for uncovering the complete truth through a process of restorative justice. The panels report and the allegations that have been made may be seriously detrimental to the process of reconciliation. If they are not examined and dealt with appropriately ,  a hard core of   wrongs  not atoned for  and a deep- rooted sense of grievance on the part of the victims of the final stages of the war would remain to undermine the process of reconciliation and undo what has been achieved by the defeat of the LTTE.

The Panel report begins with the dramatic statement that “the war in Sri Lanka ended tragically”.  It goes on to say that there was relief that the LTTE “renowned” (unfortunate choice of word! probably a Freudian slip) for its brutality was defeated but “many people were deeply disturbed about the means that were used by the Sri Lankan army to achieve the victory”.  These sentences encapsulate the tragedy as perceived by the Panel and would have been a good starting point to explore the nature of the tragedy that occurred in the Sri Lankan situation.   Regrettably the Panel goes on a different track without keeping at the centre of its attention the LTTE   brutality and the way in which it shaped the means that were used to end it.  The Panel uses the word tragic in its clichéd sense to evoke the sense of a great calamity, but the end of the war was also tragic in the deeper sense of the term – tragic for the impossible dilemmas that were created, the inevitable choices that had to be taken and for the human cost it involved. The government has consistently denied that any war crimes were committed by the government or the Sri Lankan army and have not responded to the specific allegations that have been made. They have stated that the process of accountability and restorative justice is adequate to deal with all the issues pertaining to the final stages of the war including the allegations that have been made. This would mean that the Government expects the final report of the LLRC to provide an adequate response to the concerns that have been expressed by a section of the international community regarding the actions taken in the final stages of the war.

When we discard the interpretation of the Government military strategy as given by the Panel we are still left with unresolved issues of a critical nature. When we start on the premise that the main objective of the government’s military operation was the ending of the terrorism and brutality of the LTTE regime and freeing the civilians we still have to define the issues of accountability within this framework. After the initial phase of the operation the actions of the LTTE in using the civilians as shield and hostage placed new demands on the government and the army. How did the government meet this challenge? Could the civilians have been separated from the LTTE before they were compelled to move into the narrow coastal zone? The search for the truth about the hostage situation would have to go further. Analysts of the situation  have pointed out that the civilian population consisted of a hard core of about 15% to 20% who were strong supporters of the LTTE and that the expectation that  foreign countries  might intervene encouraged the LTTE  to adopt the hostage strategy. Could the impossible situation that arose in the coastal area have been averted? Could the international community have been more active at this point and provided strong material and moral support to the Sri Lankan government to rescue the civilians? Examining these and similar issues would mean a critical evaluation of the operation and eliciting the lessons to be learnt from it.

Finally however the final stages of the war in Puthukuddiyiruppu and the NFZs have to be examined independent of all what went before. The LTTE had deliberately integrated the civilian population into their military effort and turned the NFZs to battle fields. By the mass conscription of civilians for military activity in the NFZ the building of fortifications with civilian conscripts and the use of all means available for military purposes, the LTTE had effectively blurred the distinction between civilians and combatants.  How is intentionality and proportionality of army actions to be judged in such a situation?  The LTTE was refusing to surrender. It was becoming clear that the defeat of the LTTE and the rescue of the hostages would entail heavy human cost- deaths of the LTTE combatants, conscripted civilians, soldiers and non combatant civilians. At this point the army after weighing the options available and their likely consequences had apparently decided that it could not halt the offensive and had to go ahead and put a speedy end to the resistance of the LTTE.  It has to be noted that the government would have had to take into account that the LTTE in their desperation might resort to acts of the utmost brutality that might involve deaths of civilians on a massive scale.

We are then left with the human cost of the operation as it took place.  The final estimate of civilian deaths would have to await the estimate of the persons dead or missing as given by the IDPs. This is a task that should be high on the agenda of the LLRC. But until such an estimate is available we have to rely on the well considered estimates that are available  which place  all  deaths including those caused by the LTTE from 8th August up to 13th May at around 7700  and  all  deaths from 13th to the 16th May when the civilians finally escaped,  at about  1000 a day.  More reliable estimates could be constructed by gathering information from the surviving families and making a  thorough search for the remains of the dead.

The government has not given an estimate of all deaths in the last stages of the war. An estimate of zero civilian casualties is meaningless in the face of incontrovertible evidence that there were a large number of deaths, unless it is argued that all those who died were combatants by virtue of the fact that they were conscripted for military work and resisted the advance of the army. These questions point to the indefinable plight of the helpless civilians caught in the battlefield and the humanitarian issues that are involved. The truth about the deaths of civilians is therefore vital to the process of reconciliation regardless of all other issues of accountability.

It is within the conditions that have been described above that the issues of accountability as well as restorative justice may have to be framed and conclusions drawn. In that process the deaths of civilians and their plight in the battlefield have to be at the centre. 

<< Truth and Accountability : The Last Stages of the War in Sri Lanka - Introduction

<< Chapter 1 - Issues relating to the Appointment and the Status of the Panel

<< Chapter 2 - Analysis and Appraisal of the Report - Criteria

<< Chapter 3 - The Narration of Events and Allegations

<< Chapter 4 - Issues Concerning the Application of International Law

<< Chapter 5 - Issues of Accountability and Justice

<< Chapter 6 - Measures for Advancing Accountability : The Domestic Justice System and further Obstacles

<< Chapter 7 - The Recommendations of the Panel