NOTEBOOK OF A NOBODY/Shanie
The final report of the Lessons Learnt and Reconciliation Commission was unexpectedly released on Friday last week, after a lot of uncertainty as to when and how it would released - whether in full, only selected parts or not at all. In the end, good sense seems to have prevailed, in striking contrast to the reports of previous Commissions of Inquiry and of the All Party Representative Committee which still seem to be gathering dust in the Presidential Secretariat.
But the government had made pronouncements and commitments that it would address issues of accountability and violations of humanitarian law through the LLRC. Not releasing the LLRC report in full would have seriously affected the credibility of the government. Whatever the reason, we need to acknowledge with appreciation the early release of the report in full.
It is too soon to make a proper analysis of the near 400 page report. But a cursory study of the report seems to indicate that the Commissioners have done well out of a difficult task. As with the Report of the UN Secretary-General Panel of Experts on Accountability in Sri Lanka, many have been quick either to praise or condemn the report as being biased, a white-wash or plain flawed. Both the UNSGPoE and the LLRC suffered from being pre-judged negatively. As a result, many who could have contributed to more informed observations and recommendations in the two reports failed to make submissions or give evidence. The UNSGPoE was not even allowed to visit Sri Lanka and to make their independent observations and to talk to the security forces, to government officials and to people in civil society. In retrospect, the government hopefully recognized that it would have been in their own interests to permit the Panel to visit Sri Lanka and freely meet anyone they wished to meet in a transparent manner. The LLRC also suffered on a similar way, though not to the same extent. Being a government appointed body, many individuals and some civil society groups expressed a lack of confidence in the LLRC’s independence and integrity. They pointed to the fact that some of the key members of the LLRC were former public servants who had been publicly defending the strategy of the government and the conduct of the security forces during the war.
LLRC and UNSG Panel
In the end, it appears that fears of the sceptics were exaggerated. The emphases in each of the two reports are different but they both arrive at similar conclusions – that further independent investigations are necessary. The mandates received by both Commissions (for the sake of convenience, we shall refer to the UNSGPoE also as a Commission) were different. The UNSGPoE’s mandate was to advise the UNSG on issues of accountability with regard to alleged violations of international humanitarian and human rights law by all parties during the final stages of the war – from about September 2008 to May 2009. This was in terms of a process stated in the joint statement of Secretary-General Ban Ki-moon and President Mahinda Rajapaksa issued at the conclusion of the UNSG’s visit to Sri Lanka on 23rd May 2009. The mandate of the LLRC was wider. They were required to investigate the facts and circumstances of the failure of the Cease-Fire Agreement signed by the then UNP government with the LTTE in February 2002 and the sequence of events thereafter up to the end of the war in May 2009; the lessons to be learnt and the measures needed both to prevent any recurrence of such events and to promote national unity and reconciliation.
The methodology followed by both Commissions was similar. They invited submissions from interested persons and groups and also consulted/invited groups who had not previously made submissions. Both Commissions considered allegations as credible only when they were based on primary sources deemed relevant and trustworthy and corroborated by other information, direct and indirect. The UNSGPoE in their report state that they requested the Government of Sri Lanka to facilitate a dialogue with the LLRC but unfortunately this did not materialize. The Government sent a panel to meet the Panel in January 2011 but the Panel did not include any members of the LLRC. This was a pity because such a dialogue between the members of both Commissions would have been mutually beneficial.
The narration of events and the observations made by the two Commissions are quite different. This is probably understandable. The UNSGPoE is openly critical of some of the actions of both the LTTE and the Security Forces. LLRC on the hand downplays any criticism of the security forces but is openly critical of the LTTE. Despite these differences, there is remarkable similarity in their recommendations.
Common Ground
On the question of disappearances, the LLRC recommends: "Given the complexity and magnitude of the problem and considering the number of persons alleged to have disappeared, and the time consuming nature of the investigations involved, the Commission recommends that a Special Commissioner of Investigation be appointed to investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate. The Office of the Commissioner should be provided with experienced investigators to collect and process information necessary for investigations and prosecutions. This mechanism should also devise a centralized system of data collection at the national level, integrating all information with regard to missing persons currently being maintained by different agencies." The UNSGPoE recommends in this regard: "The Government of Sri Lanka should investigate and disclose the fate and location of persons reported to have been forcibly disappeared. In this regard the Government of Sri Lanka should invite the Working Group on Enforced and Involuntary Disappearances to visit Sri Lanka."
On the question of those under detention, the LLRC notes: "The next of kin of the detainees have the fundamental right to know the whereabouts of their family members who are in detention. Therefore there is a need for a centralized comprehensive database containing a list of detainees, which should be made available
to the next of kin with names, place of detention as well as record of transfers so that families have access to such information…The next of kin have the right of access to detainees. Therefore, any practices that violate this principle should be removed." The UNSGPoE notes in this regard: "Publish the names of all those currently detained, whatever the location of their detention, and notify them of the legal basis of their detention; allow all detainees regular access to family members and to legal counsel;….charge those for whom there is sufficient evidence of serious crimes and release all others, allowing them reintegrate into society without further hindrance."
The LLRC was also strongly critical of illegal armed groups operating in the North and East. They named a particular political party of a Minister in the Government which allegedly was operating in an environment of impunity affecting the basic rights of the people such as the right to life. They also named a particular person close to another Minister in the Government who was reportedly involved with illegal activity in the Ampara District. They recommended: "Action should also be taken to disarm and put an end to illegal activities of these groups, as it would otherwise present a serious obstacle to the on-going process of reconciliation." UNSGPoE wanted an "end to violence by the State, its organs and all paramilitary and other groups acting as surrogates of, or tolerated by, the State."
The Channel 4 video ‘Killing Fields’ was examined by the LLRC. The Commission noted that there were conflicting versions by "experts" on the authenticity or otherwise of the video. If the footage represented evidence of real incidents, it would be necessary to investigate and prosecute offenders as they would clearly be illegal acts. The acts of a few should not tarnish the good name, honour and professional reputation of the Sri Lanka Army and its soldiers. The Commission said that it shared some significant doubts expressed on the integrity of the video. Nevertheless, the LLRC recommended ‘the Government of Sri Lanka institute an independent investigation into this issue with a view to establishing the truth or otherwise of these allegations and take action in accordance with the laws of the land.’ The UNSGPoE did not make any reference to the Channel 4 video but found that allegations of violations of international humanitarian and human rights law were credible. They urged the Government to initiate an effective domestic accountability process by immediately commencing a genuine investigation. They went further by asking the UNSG to monitor and assess the extent to which the Government of Sri Lanka was carrying out an effective accountability process; and to conduct an independent investigation ‘having regard to genuine and effective domestic investigations.’
Because of its wider remit, the LLRC has gone into quite some detail as to the political process needed for reconciliation, in the immediate post-conflict context and in the longer term. They have urged the establishment of an independent Public Services Commission and an independent Police Commission. They have regretted that some of their interim recommendations on meeting minority grievances have still not been dealt with. The praises and criticisms of the LLRC report we believe are pre-mature. What is needed now is to make a careful study of its recommendations and ensure that an effective mechanism is set up to implement them. There can be flaws and under-statements by the Commission. They were working under pressure in difficult conditions. Yet, it has to be acknowledged that their observations and recommendations have generally been fair. As we have seen, their conclusions are similar to that of the UNSGPoE.
Indeed, the Panel commented in their report: "Taking into , but distinct from, the work of the LLRC, Sri Lanka should initiate a process, with strong civil society participation, to examine in a critical manner: the root causes of the conflict, including ethno-nationalist extremism on both sides; the conduct of the war and patterns of violations; and the corresponding institutional responsibilities." It is time now to request once again that the process of reconciliation requires a Truth and Reconciliation Commission on the South African model.
IS
The final report of the Lessons Learnt and Reconciliation Commission was unexpectedly released on Friday last week, after a lot of uncertainty as to when and how it would released - whether in full, only selected parts or not at all. In the end, good sense seems to have prevailed, in striking contrast to the reports of previous Commissions of Inquiry and of the All Party Representative Committee which still seem to be gathering dust in the Presidential Secretariat.
But the government had made pronouncements and commitments that it would address issues of accountability and violations of humanitarian law through the LLRC. Not releasing the LLRC report in full would have seriously affected the credibility of the government. Whatever the reason, we need to acknowledge with appreciation the early release of the report in full.
It is too soon to make a proper analysis of the near 400 page report. But a cursory study of the report seems to indicate that the Commissioners have done well out of a difficult task. As with the Report of the UN Secretary-General Panel of Experts on Accountability in Sri Lanka, many have been quick either to praise or condemn the report as being biased, a white-wash or plain flawed. Both the UNSGPoE and the LLRC suffered from being pre-judged negatively. As a result, many who could have contributed to more informed observations and recommendations in the two reports failed to make submissions or give evidence. The UNSGPoE was not even allowed to visit Sri Lanka and to make their independent observations and to talk to the security forces, to government officials and to people in civil society. In retrospect, the government hopefully recognized that it would have been in their own interests to permit the Panel to visit Sri Lanka and freely meet anyone they wished to meet in a transparent manner. The LLRC also suffered on a similar way, though not to the same extent. Being a government appointed body, many individuals and some civil society groups expressed a lack of confidence in the LLRC’s independence and integrity. They pointed to the fact that some of the key members of the LLRC were former public servants who had been publicly defending the strategy of the government and the conduct of the security forces during the war.
LLRC and UNSG Panel
In the end, it appears that fears of the sceptics were exaggerated. The emphases in each of the two reports are different but they both arrive at similar conclusions – that further independent investigations are necessary. The mandates received by both Commissions (for the sake of convenience, we shall refer to the UNSGPoE also as a Commission) were different. The UNSGPoE’s mandate was to advise the UNSG on issues of accountability with regard to alleged violations of international humanitarian and human rights law by all parties during the final stages of the war – from about September 2008 to May 2009. This was in terms of a process stated in the joint statement of Secretary-General Ban Ki-moon and President Mahinda Rajapaksa issued at the conclusion of the UNSG’s visit to Sri Lanka on 23rd May 2009. The mandate of the LLRC was wider. They were required to investigate the facts and circumstances of the failure of the Cease-Fire Agreement signed by the then UNP government with the LTTE in February 2002 and the sequence of events thereafter up to the end of the war in May 2009; the lessons to be learnt and the measures needed both to prevent any recurrence of such events and to promote national unity and reconciliation.
The methodology followed by both Commissions was similar. They invited submissions from interested persons and groups and also consulted/invited groups who had not previously made submissions. Both Commissions considered allegations as credible only when they were based on primary sources deemed relevant and trustworthy and corroborated by other information, direct and indirect. The UNSGPoE in their report state that they requested the Government of Sri Lanka to facilitate a dialogue with the LLRC but unfortunately this did not materialize. The Government sent a panel to meet the Panel in January 2011 but the Panel did not include any members of the LLRC. This was a pity because such a dialogue between the members of both Commissions would have been mutually beneficial.
The narration of events and the observations made by the two Commissions are quite different. This is probably understandable. The UNSGPoE is openly critical of some of the actions of both the LTTE and the Security Forces. LLRC on the hand downplays any criticism of the security forces but is openly critical of the LTTE. Despite these differences, there is remarkable similarity in their recommendations.
Common Ground
On the question of disappearances, the LLRC recommends: "Given the complexity and magnitude of the problem and considering the number of persons alleged to have disappeared, and the time consuming nature of the investigations involved, the Commission recommends that a Special Commissioner of Investigation be appointed to investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate. The Office of the Commissioner should be provided with experienced investigators to collect and process information necessary for investigations and prosecutions. This mechanism should also devise a centralized system of data collection at the national level, integrating all information with regard to missing persons currently being maintained by different agencies." The UNSGPoE recommends in this regard: "The Government of Sri Lanka should investigate and disclose the fate and location of persons reported to have been forcibly disappeared. In this regard the Government of Sri Lanka should invite the Working Group on Enforced and Involuntary Disappearances to visit Sri Lanka."
On the question of those under detention, the LLRC notes: "The next of kin of the detainees have the fundamental right to know the whereabouts of their family members who are in detention. Therefore there is a need for a centralized comprehensive database containing a list of detainees, which should be made available
to the next of kin with names, place of detention as well as record of transfers so that families have access to such information…The next of kin have the right of access to detainees. Therefore, any practices that violate this principle should be removed." The UNSGPoE notes in this regard: "Publish the names of all those currently detained, whatever the location of their detention, and notify them of the legal basis of their detention; allow all detainees regular access to family members and to legal counsel;….charge those for whom there is sufficient evidence of serious crimes and release all others, allowing them reintegrate into society without further hindrance."
The LLRC was also strongly critical of illegal armed groups operating in the North and East. They named a particular political party of a Minister in the Government which allegedly was operating in an environment of impunity affecting the basic rights of the people such as the right to life. They also named a particular person close to another Minister in the Government who was reportedly involved with illegal activity in the Ampara District. They recommended: "Action should also be taken to disarm and put an end to illegal activities of these groups, as it would otherwise present a serious obstacle to the on-going process of reconciliation." UNSGPoE wanted an "end to violence by the State, its organs and all paramilitary and other groups acting as surrogates of, or tolerated by, the State."
The Channel 4 video ‘Killing Fields’ was examined by the LLRC. The Commission noted that there were conflicting versions by "experts" on the authenticity or otherwise of the video. If the footage represented evidence of real incidents, it would be necessary to investigate and prosecute offenders as they would clearly be illegal acts. The acts of a few should not tarnish the good name, honour and professional reputation of the Sri Lanka Army and its soldiers. The Commission said that it shared some significant doubts expressed on the integrity of the video. Nevertheless, the LLRC recommended ‘the Government of Sri Lanka institute an independent investigation into this issue with a view to establishing the truth or otherwise of these allegations and take action in accordance with the laws of the land.’ The UNSGPoE did not make any reference to the Channel 4 video but found that allegations of violations of international humanitarian and human rights law were credible. They urged the Government to initiate an effective domestic accountability process by immediately commencing a genuine investigation. They went further by asking the UNSG to monitor and assess the extent to which the Government of Sri Lanka was carrying out an effective accountability process; and to conduct an independent investigation ‘having regard to genuine and effective domestic investigations.’
Because of its wider remit, the LLRC has gone into quite some detail as to the political process needed for reconciliation, in the immediate post-conflict context and in the longer term. They have urged the establishment of an independent Public Services Commission and an independent Police Commission. They have regretted that some of their interim recommendations on meeting minority grievances have still not been dealt with. The praises and criticisms of the LLRC report we believe are pre-mature. What is needed now is to make a careful study of its recommendations and ensure that an effective mechanism is set up to implement them. There can be flaws and under-statements by the Commission. They were working under pressure in difficult conditions. Yet, it has to be acknowledged that their observations and recommendations have generally been fair. As we have seen, their conclusions are similar to that of the UNSGPoE.
Indeed, the Panel commented in their report: "Taking into , but distinct from, the work of the LLRC, Sri Lanka should initiate a process, with strong civil society participation, to examine in a critical manner: the root causes of the conflict, including ethno-nationalist extremism on both sides; the conduct of the war and patterns of violations; and the corresponding institutional responsibilities." It is time now to request once again that the process of reconciliation requires a Truth and Reconciliation Commission on the South African model.
IS