Chapter 8 - Conclusions

Dec 28, 2011

(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. 

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Chapter 7 - The Recommendations of the Panel

Dec 25, 2011

In part A of its first recommendation, the panel recommends that the Government should initiate an effective domestic accountability process to investigate into the alleged violations.   It is unlikely that the government would pay any attention to this recommendation in view of its stand that an investigation of this nature is not warranted and the present process of restorative justice is better suited to deal   with all issues of accountability than the approach recommended by the Panel.   

In part B it recommends that the UNSG proceed immediately to establish an international mechanism which should monitor the domestic process and conduct independent investigations into the alleged violations. First the arrangement suggested by the panel of concurrent independent investigations shows little knowledge of what is administratively feasible; it is unprecedented in the UN system and totally impractical. Second, the UNSG cannot “immediately” establish an international mechanism. He simply does not have the authority to do so. The Panel which is the expert body on these issues should have known better than to recommend a mechanism which was not a modality that could be adopted under the UN system. The manner in which it has made this recommendation seriously calls to questions its commitment  to perform its task adequately.

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

Dec 24, 2011

The panel’s survey of the justice system and measures to strengthen the domestic process of accountability is useful as a framework for addressing shortfalls and making the necessary improvements.  It should be noted however that the Panel’s review does not contain anything new. It reiterates the critical assessments and the recommendations that have been made in various other reports of civil society organisations and human rights activists. The ongoing policies and programmes of government are also addressing most of these issues.  The problems relating to detainees and their  access to remedies has been  raised  by human rights  lawyers and organizations over a long period of time and government has repeatedly  referred to the problems which result in prolonged detention.  The defeat of the LTTE has now created conditions that would be conducive for speedier disposal of these cases.  In presenting its account the Panel does not examine some of the causes that have resulted in the pervasive derogation of human rights in Sri Lanka – the activities of the LTTE during the last 25 years and its impact on governance. Had it done so its critique and its recommendations for correcting the shortfalls would have found greater acceptance and the urgency of making the corrections in the post war context more compelling. The LLRC would need to give close attention to this section of the Panel’s report as the full restoration of civil and political rights and a sound system of justice which protects them would be the bedrock of the process of reconciliation.

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The nitty-gritty of ‘moving on’

Dec 19, 2011

Even as the world focussed on what the LLRC (Lessons Learnt and Reconciliation Commission) would produce after months of hearings, President Mahinda Rajapaksa set up a ‘National Reconciliation Unit’ to facilitate the work of his Adviser on Reconciliation. All these in addition to the natural processes of reconciliation that the end of conflict engenders, boosted of course by concrete policies to put in place necessary infrastructure, resettle the displaced, clear landmines and reinvigorate economic activity, not to mention the rehabilitation and reintegration of thousands of ex-combatants - a practice unheard of in many parts of the world when it comes to people affiliated with terrorist organisations. The Advisor’s terms of reference included monitoring and reporting to the President on progress with regard to the Interim Recommendations of the LLRC, and promoting appropriate activities for this purpose through the relevant Ministries. ‘The Nation’ spoke with Pushpi Weerakoon, Coordinator of the Unit, on the mandate, work and challenges of this body.

Q: Could you elaborate on the power, authority and capacity of the unit?

The Office has no powers or executive authority. Apart from two minor staff, it has only an IT officer. MP’s secretary and office aide also contribute. However, much support is provided by members of the Reconciliation Youth Forum that comprises committed youngsters worked in the North and East in related activity developing initiatives and record achievements.

In addition to the Reconciliation website, www.peaceinsrilanka.org, we have started a blog – www.reconciliationyouthforum.org – and a You Tube channel – www.youtube.com/ReconcileSriLanka. You can also follow us on twitter @rcncilesrilanka and on Facebook on Sri Lankan Reconciliation Youth Forum.

Other initiatives include Civil Society Partners for Reconciliation which brings together relevant government organisations with civil society and ambassadors and non-governmental organisations (Rotary, Save the Children etc) to suggest initiatives. This has led to a project in sustainable agriculture to support ex-combatants. We hope the Japan would support it through IOM. In addition, a proposal for vocational training in Mullaitivu with socialisation and soft skills on the lines of the programmes Aide et Action is now being materialised in Vavuniya.

We have also set up a body called Religion, Education and Pluralism to develop educational initiatives as suggested when the Adviser was appointed, and feel this is particularly important in view of the vision advanced by the President in his budget speech.

Based on recommendations of some of these groups, we have set up District Reconciliation Committees in three Northern Districts and hope to do the same in the other two as well. We had productive input from the local officials who attended about problems and possible solutions with the police. Some committed social workers also actively contribute.

We have initiated discussions with UNESCO about school activities, and begun a discussion group on international relations though we are awaiting a response from the Ministry of External Affairs in this regard. We were pleased that an NGO which was sending young parliamentarians abroad initiated a familiarisation session in this regard, and hope we could start something within Parliament too, perhaps through the Friendship Associations, since there are a number of young parliamentarians with the capacity to develop into excellent international communicators if only we do some initial familiarisation with relevant issues.

We do not really influence policy, since we need to liaise with the Secretary to the President. However a meeting is planned shortly to enable us to move ahead.

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Moving Forward: An Assessment of Ongoing Initiatives, A Listing of Productive Possibilities

Dec 16, 2011

Text of a lecture by Prof Rajiva Wijesinha Adviser on Reconciliation to HE the President given at the panel discussion on Reconciliation arranged by The Consortium of Humanitarian Agencies' Reconciliation and Development for Peace Section - December 15th 2011

We must love one another or die

Auden’s reminder of the need for togetherness to avoid annihilation, which he expressed in ‘September 1939’, evoking the horrors of the war that caused such destruction in Europe, is of particular significance in Sri Lanka today. We have got over the horrors of the terrorism that plagued us for two decades and more. We have also got now to get over the bitterness and suspicion that prompted that terrorism.

What happened in Post-War Europe can perhaps provide object lessons for us, especially when contrasted with the settlements following the First World War, which led not to peace and reconciliation but to continuing confrontation. The victors of 1918 were determined to rub in their triumph, and engaged in self-aggrandisement of horrendous proportions. The pretext that they had fought for freedom was nullified by the even more oppressive controls they imposed on Asia and Africa and the Middle East. In the last named area, with continuing catastrophic effects on the world at large, exploitation of resources by the victors of 1918 replaced the comparatively benign and economically inclusive control of the Turkish Empire. The fierce competition to plunder Africa, sanctified by the preposterous carving up of the continent in the 1884 Treaty of Berlin, was refined by the elimination of Germany, and the incorporation of Tanzania and present-day Namibia and other entities into larger empires. And India saw the extraordinary spectacle of refined repression, combined with an insidious policy of sowing division and dissension through the presentation of the oppressor as the only hope for minorities - a game that continues to be played, to the finish as Noel Coward might have averred, in so many theatres of potential conflict around the world today.

That card had proved useful in the destruction of the great land empires of Europe. But while the creation of small nation states by the dismembering of Germany and Austria could have been justified by the burgeoning nationalism of the areas they had previously controlled, no such indulgence can be granted to the triumphalism that screwed down the nails on the coffin of German aspirations. The result was Hitler and September 1939, following on the swallowing of Austria and Czechoslovakia, where the race card had been played in reverse.

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Chapter 5 - Issues of Accountability and Justice

Dec 11, 2011

“The weak can never forgive.  Forgiveness is the attribute of the strong”  - Mahatma Gandhi 

The Panel’s Chapter on Sri Lanka’s concept of accountability and discussions of restorative justice provides the best opportunity   for constructive engagement with the report. It   deals with the foundational issues that apply to the process of accountability.

• The Government’s Concept of  Accountability and  Justice 
• The Panel’s Concept of Accountability and Justice 
• The Differences in Approach
• The Panel’s conclusions about the government’s process of accountability.

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Chapter 4 - Issues Concerning the Application of International Law

Dec 07, 2011

The Panel’s treatment of the government version of the military operation has other serious consequences affecting the way in which the issues of criminality are framed against the government and the way international law and the rules of war are applied.

(i) Failure to define  the armed conflict as a legitimate operation to counter terrorism.

The Panel  quotes the EU  response to the military operation in which it recognizes the government's right to undertake operations to counter terrorism on its territory – para 47.  But the Panel does not examine the implications of this statement and does not explicitly deal with the character of the military operation undertaken by the government.

(ii)  Failure to define the special character of the armed conflict.

For the purposes of the Panel the armed conflict they were examining for war crimes is not different from any other armed conflicts where the behaviour of both warring parties has been such that they can be expected to  act in compliance with the international rules of war. The Panel takes the position that the terrorist   character of the LTTE does not make any difference to the nature of the actions taken by the government to deal with the LTTE.  In the Panel’s view the fact that government must be guided by the knowledge that LTTE as terrorists are capable of actions that  are in fundamental violation of the rules of war  are not relevant for judging the army’s actions. The panel also does not consider the problem of civilians being used as buffer or hostage relevant to the issues pertaining to the actions of the government and the military.  They had already come to the conclusion that the government’s actions did not have the rescue of the hostages as one of its main objectives.

(iii) The lack of relevance in the comparative international experience  surveyed.

The Panel deals with comparable international experience in conflicts which have little relevance to Sri Lanka – Yugoslav experience, Rwanda, Truth Commissions in varying situations very dissimilar to the case of Sri Lanka.  The closest would have been the Peru Government’s war on the Shining Path. (The issue of war crimes committed by government troops in crushing the Shining Path may have been raised  and it would be useful to examine how they were dealt with.  Human rights organizations organized protests against the Peruvian president when he came to San Francisco.)  For the  comparable experience  dealing with similar extreme  military  situations,  the panel would have to go to the recent experience coming out of  the global war on terror – issues of civilian killings in the wars in Iraq  Afghanistan  and Checknya  and  military operations  mounted  against terrorists in Pakistan -  and inquire,  how or whether at all,  these have been dealt with under the UN system . 

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Chapter 3 - The Narration of Events and Allegations

Dec 02, 2011

“The truth is more important than the facts” Frank Lloyd Wright

The narration of the relevant events and actions is the vitally important centre of the report on which all the other parts depend and therefore should be the main focus of the evaluation. The narration has to be evaluated in terms of two fundamental questions

• Is the panel’s account complete or if not complete, adequate , and has it been able to access all  sources of information that are essential for coming to fair and just conclusions concerning the events and actions ?

• Has the panel examined all possible explanations and interpretations of the events and actions before coming to its conclusions?
   

The Panel’s narrative deals with the actions of both GOSL and the Liberation Tigers of Tamil Eelam (LTTE ) from September 2008 and the fall of Kilinochchi and Mullaitivu to the final defeat of the LTTE, the flight of civilians to government controlled areas and the arrangements made for them as IDPs. The main actions and events are reported in terms of the strategies which the Panel perceives as the strategies of the two main actors, GOSL and the LTTE, leading to the allegations of war crimes and violations of human rights.

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Chapter 2 - Analysis and Appraisal of the Report - Criteria

Nov 30, 2011

Regardless of the controversial nature of the Panel’s appointment, our final appraisal of the value of the Panel’s report depends on how it satisfies the essential criteria by which it has to be judged.  These criteria have to be derived from the main objective which the panel was expected to fulfill. The panel report had to be an instrument for strengthening the process of accountability at both the domestic and international level.  For this purpose it had to advise the UNSG on the modalities that were available to him and the international standards that were applicable to all the circumstances governing the actions and events during the final stages of the Sri Lankan war.  In order to do this it had to have sufficient information on the scope and nature of the allegations which raised the issue of accountability and all the conditions pertaining to them.

The report covers four major areas - the armed conflict and the events which gave rise to the allegations, the law applicable to such allegations, the conceptual basis of accountability and justice in such situations and the domestic process of accountability that was available to deal with such allegations.

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

Nov 28, 2011

The set of issues covered in the first category has been analyzed and discussed extensively by spokesman for the government. They can be summarised as follows:

i.  The UNSG’s justification of the Panel on the ground that it was in pursuance of a joint commitment is not correct. The joint statement did not contain any provision which envisaged or enabled the UNSG to take an independent initiative on “allegations of war crimes.”

ii.  The selection of the Panel by the UNSG violated the standards that should have been applied to the appointment of a panel that was wholly objective and impartial and without any prior involvement in Sri Lankan human rights issues in which positions were taken. From the evidence that was available and the objections raised by the Government of Sri Lanka (GOSL) the panel fell short of these standards. (The Chairperson Marzuki Darusman was a member of the International Independent Group of Eminent Persons (IIGEP) who was invited to serve as observers at the sittings of the Presidential Commission of Inquiry appointed to inquire into alleged violations of Human Rights. Having been present at some sittings, Mr. Darusman subsequently withdrew alleging that the Government of Sri Lanka did not have the will to improve the human rights situation in the country.  Steven Ratner has been an advisor to an NGO called the Human Rights Watch (HRW) one of the organizations which had expressed disappointment that UNHRC had not passed a resolution calling for an international investigation on war crimes committed by the GOSL and LTTE.  Ms. Yasmin Sooka is the Head of the Sooka Foundation, funded substantially by the European Union which had supported an investigation into war crimes and actions of the Sri Lanka government.)

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