However, it has expressed strong dissatisfaction with the Commission’s findings on accountability. ICG was one of a trio of international human rights NGOs that were invited to make representations before the LLRC but refused to do so. They found fundamental flaws in the composition of the Commission, which consisted mostly of former government officials and also in its mandate, which was too restrictive in terms of investigating human rights violations.
The two other international human rights organizations have also commented on the LLRC. Together with ICG, Amnesty International and Human Rights Watch have taken a common position that there continues to be a need for an independent international investigation into the issues of human rights violations and war crimes. So far, the response of international governments has been rather muted. The United States government which, has been one of the first foreign governments to respond, has said there are gaps in the LLRC report. The US has also noted that the Commission has addressed a number of the crucial areas of concern to Sri Lankans, in particular in the areas of reconciliation, devolution of authority, demilitarization, rule of law, media freedom, disappearances, and human rights violations.
With regard to an independent international inquiry the US State Department spokesperson has expressed the view 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’. When pressed to the wall either by terrorism (as in the World Trade Centre attack in New York) or by their compelling geopolitical interests (as in Libya) international governments have not hesitated to resort to drastic and violent measures that result in collateral damage to civilians.
Governments operate within the realm of the possible, while NGOs express the ideal and seek to push governments in that direction. The Sri Lankan media recently carried a news item citing Norwegian Defence Minister Espen Barth Eide, responding to a New York Times (NYT) exclusive that it had obtained evidence to prove the NATO air campaign in Libya claimed the lives of civilians. He emphasized that Norway’s aim was to operate within International Humanitarian Law (IHL). The minister is reported to have declared that it was wrong to assert IHL was violated because of civilian losses unless something unacceptable took place during a conflict. This is also the point of dispute where the Sri Lankan government has been at loggerheads with a section of the international community.
The Sri Lankan government’s initial reaction to the LLRC report was positive. Minister Nimal Siripala de Silva who presented the report to Parliament on Nov. 16 said that it was of great importance to the government to have the truth relating to the death of civilians in the last phase of the war established in a manner that put the controversy to an end for all time. He also said that the government had asserted on many occasions that if reliable evidence was available the law of the land would be set in motion. However, President Mahinda Rajapaksa has not yet commented on the report. The LLRC itself has noted that recommendations made by previous commissions of inquiry had not been implemented. The failure of the government to implement even the LLRC’s own interim recommendations in a conclusive manner has led to an exacerbation of the problem of credibility. The challenge is to ensure that there will be governmental follow-up to the final recommendations of the Commission.
The Commission has accepted the government’s position that military operations were conducted with the highest priority being given to issues of civilian safety. At the same time it has also found evidence of violations of international law in the conduct of military operations in several instances and has asked that these incidents be inquired into. However, apart from piecemeal investigations into individual incidents that could be done fairly soon, there is also the need for a comprehensive accounting of the past that could take a longer period of time. A Truth and Reconciliation Commission to go more deeply into the entire tragedy of the war could be a longer term mechanism to ensure that victims are heard, their grievances addressed, compensation given and perpetrators identified and provided with an opportunity for repentance and amnesty.
Practically, the possibility of a full accounting of what happened in the whole course of our thirty year war would only come when the government is headed by those who had nothing to do with the war. This is the experience internationally as well where internal processes for accountability and truth seeking are concerned. If Sri Lanka hopes to gain its place amongst the respected countries in the world with regard to the practice of human rights in the future, the government is obliged to hold individual members of its armed forces and government members accountable for their violations even if justifications are available and provisions for amnesty are made available. The experience of other countries is that such an accounting usually takes decades and more.
The LLRC report deals with much more than the killings and disappearances that took place during the war. It also deals with issues of governance that have contributed to the loss of confidence of people in democratic institutions and induced them to violence. The centralization of power, and disregard for the rule of law, has reached an apogee with the passage of the 18th Amendment to the Constitution with abuse of power and corruption also reaching high levels. Among its many recommendations, the LLRC has advocated the removal of the Police Department from the Ministry of Defence. It has also recommended that the police be placed under an independent commission. This refers back to the practice under the 17th Amendment, which was effectively repealed by the 18th amendment, which further concentrated power inadvisedly in the Presidency.
The experience of other countries in which there are conflicts between ethnic communities shows that these problems have to be consciously dealt with. The problem is that governments that are in a dominant position seldom see a need for reform. It is on the issue of a political solution that would address Tamil grievances that the LLRC has made its most commendable stand which places it in a different frame of thought as compared to what the present government leadership in particular has been asserting. But, without such reform there cannot be lasting peace as the LLRC report implies. The report of the All Party Representatives Conference headed by Prof. Tissa Vitharana, which was submitted to the President last year, would be a suitable starting point in finding a political solution. Unfortunately, this report which was over two years and over a hundred meetings in the making has still not been released to the public by the President who appointed the Committee.
Such action can dispel concerns that the LLRC report will suffer the same fate of countless other commission reports and fail to be implemented. Although the government has won itself a breathing space from the international community thanks to the LLRC report, it cannot rest on its laurels. The Tamil political parties remain deeply skeptical of the government. The Tamil people who were the victims of the war are concerned that the report will make no quick difference to their lives. The government’s New Year resolution needs to be to undertake reform and reconciliation with a sense of urgency in the coming year itself and not leave it for the succeeding years or the next government. As a follow-up to the Commission report the government would do well to appoint a Presidential Task Force of independent persons selected with the concurrence of the Opposition to oversee the implementation of the Commission’s recommendations