i. As the elected representatives of the worst affected victims of the war, the Tamil National Alliance (TNA) has consistently maintained that genuine reconciliation in Sri Lanka is contingent on a credible accountability process that ensures the right of victims to truth, justice and reparations. On 15th May 2010, the President appointed the Lessons Learnt and Reconciliation Commission (LLRC) and held out to the world that this Commission
would address accountability issues.
ii. The LLRC’s processes and practices have failed to win the confidence of the Tamil community. The Commission also falls dramatically short of international standards applicable to accountability processes.
iii. The ethnic and gender imbalance in the membership, the conflicts of interest and patent lack of independence of the members, the general lack of competence of the majority of members in International Humanitarian Law (IHL) and International Human Rights Law, and the absence of any consultation whatsoever with the victims’ representatives and the larger Tamil community with regard to its mandate, processes and practices, call the
independence and competence of the LLRC into serious doubt.
iv. Moreover, the LLRC’s methodology assigned relatively lower importance to victims’ perspectives. The LLRC was also under-resourced and understaffed for the task of pursuing genuine accountability for violations during the last stages of the war. For instance, the time the Commission spent gathering evidence in the North and East,
relative to the time spent in Colombo, was woefully inadequate. The Commission spent a mere twenty-two days in the North and East in total, compared to the fifty-six days spent on hearings in Colombo. The Commission often cited the lack of time as the reason for cutting short the testimony of witnesses. In many cases, prospective witnesses were never given the opportunity to testify and were requested to merely send in their concerns to the
Commission in writing.
v. The LLRC did not have an effective witness protection programme. To make matters worse, the attitude of the members towards witness protection – reflected in the lack of concern when witnesses complained of threats, and in the failure to ensure confidentiality of in camera statements after the LLRC concluded its work – continues to severely undermine the safety of witnesses in tangible ways. For instance, one witness from Kalmunai, who complained of being tortured and sexually assaulted, was later summoned to the Fourth Floor of the Criminal Investigation Department. This incident confirmed that the government monitored the LLRC’s proceedings and that the anonymity of witnesses was easily compromised. The climate of hostility prevailing in Sri Lanka towards those who accuse the government of war crimes renders any accountability mechanism futile unless witnesses and victims are convinced that testimony implicating senior government functionaries in crimes will not be met with reprisals. Moreover, the failure to seek video testimony of witnesses now living overseas deprived the LLRC of
the testimony of those who are relatively free of potential reprisals.
vi. The LLRC’s interim recommendations, issued more than a year ago, are yet to be meaningfully implemented. The Progress Report released by the Inter-Agency Advisory Committee appointed to ensure such implementation reveals nothing but the lack of genuine progress. The failure of the government to implement these modest interim
recommendations signals, if not confirms, the government’s lack of commitment to implement the Commission’s final recommendations.
vii. The final report of the LLRC was released through Parliament on 16th December 2011, and purports to deal with a number of issues including those related to IHL. Yet the LLRC disregards credible allegations made against the government with respect to violations of IHL amounting to war crimes and crimes against humanity. These
allegations include deliberately underestimating civilian numbers in the Vanni in order to deprive them of food and medicine; deliberately or recklessly endangering the lives of civilians in No Fire Zones (NFZs); targeting civilian objects including hospitals; and executing or causing the disappearance of surrendees.
viii. The LLRC’s approach and methodology in dealing with the above allegations is flawed due to two main reasons: (1) the selective application of evidence, and (2) the failure to apply the law to the facts.
ix. The Commission extensively cites the evidence of government doctors who worked in hospitals within the theatre of conflict without any reference to the context within which these doctors provided testimony to the LLRC (i.e. the fact that they were taken into custody, after which they publicly recanted their earlier statements on the situation during the final stages of the war). Thus, the credibility of the evidence provided to the LLRC by
these doctors was heavily compromised. The Commission failed to call for crucial evidence in terms of Unmanned Aerial Vehicle (UAV) footage, videos of aerial attacks and military logs – particularly since military witnesses acknowledged that every attack was videotaped and received the official sanction of the commanders. The LLRC also failed to consider the significance of population estimates provided by the then Government Agent for Mullaitivu, or consider the authenticity of a letter sent by the Commissioner General of Essential Services to the Government Agents in the Vanni directing them to refrain from requesting international agencies for food. Crucially, the Commission failed to consider the fact that the Ministry of Defence had issued statements in mid-February 2009 grossly underestimating the Vanni population. Such vital evidence points towards a systematic attempt on the part of the government to prevent food from reaching the starving population of the Vanni, and thus ought to have been closely examined by the LLRC.
x. The LLRC also fails to correctly apply the law to the facts. It neglects to examine the possibilities of violations of IHL and domestic law that are credibly alleged to have been committed.
xi. The Commission erroneously concludes that the definitions of ‘civilian’ and ‘civilian population’ in IHL are unclear. First, the LLRC ought to have elaborated upon the definition of direct or continuous participation in hostilities and its implication on the Principle of Distinction in order to ascertain the proper definition of ‘civilian’ in IHL. The law is clear that whoever does not fulfil the criteria of direct participation in hostilities is a ‘civilian’ and cannot be targeted. Instead of dealing with the law, the LLRC seeks to divert attention to the ‘unprecedented’ nature of the Sri Lankan experience. Yet the Commission does not justify why the criteria that have been adopted
to define the concept of ‘direct participation in hostilities’ are not applicable to the Sri Lankan situation. Moreover, in defining the term ‘civilian population’, the Commission makes no attempt to apply the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has held that the absolute ban on attacks against civilians extends to a population that is ‘predominantly civilian’, and that ‘the presence within the civilian population of individuals who do not come within the definition of civilians [i.e. combatants] does not deprive the population of its civilian character.’ xii. The LLRC concludes that the government security forces did not deliberately target civilians within the NFZs. While there is credible evidence that the LTTE did in fact
mingle with the civilians within the NFZs and prevented them from leaving, the only narrative that the LLRC accepts is that the security forces had no choice but to respond to LTTE attacks from within the NFZs. This analysis is flawed for a number of reasons.
xiii. First, it ignores established IHL principles with respect to the Principle of Distinction, which hold that an attack remains unlawful if it is conducted simultaneously at a lawful military object and an unlawfully targeted civilian population.
xiv. Second, the LLRC’s preferred narrative of ‘retaliation to LTTE attacks’ is an unreasonable generalisation that does not apply to numerous accounts by victims of the conflict, and particularly to the attack on the United Nations Hub at the Suthanthirapuram junction located inside the first NFZ.
xv. Third, the Commission wrongly concludes that the actions of the security forces complied with the Principle of Proportionality. The LLRC reaches its conclusion that the attacks were proportionate without actually applying the test of weighing anticipated military advantage against civilian loss. This test could not have been adequately
performed without a reasonable estimate of civilian casualties and damage to civilian objects caused due to each attack. Moreover, the Commission does not examine in detail whether the security forces could have used alternatives to the use of heavy weapons in order to minimise civilian casualties, particularly in the case of the second and third NFZs, where the government’s own stated position was that heavy weaponry was unnecessary. The LLRC chooses to cite an obscure and irrelevant precedent set in 1990 by the International Centre for the Settlement of Investment Disputes (emphasis added) to conclude that a re-construction of all the conditions under which the combat action took place is next to impossible. Yet it failed to cite the jurisprudence of the ICTY, which
has unequivocally held that commanders must consider whether striking a target is expected to cause incidental loss of life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Accordingly, the ICTY has held that if such casualties are
expected to result, the attack should not be pursued.
xvi. Moreover, the LLRC fails to evaluate the implications of the unilateral declaration of the second and third NFZs. In light of the experience with respect to the first NFZ and the LTTE’s tactics of mingling with the civilian population, it could be easily inferred that the government, at the time of declaring the second and third zones, was well aware of the likelihood that civilians would be seriously exposed to harm. This inference gives credence to the allegation that the government deliberately or recklessly lured civilians into harm’s way by repeatedly declaring NFZs with the knowledge that such zones would be subsequently attacked due to the LTTE’s presence within them.
xvii. The LLRC’s overall analysis of the allegations against the government reveals a fatal contradiction. On the one hand, the LLRC unquestioningly accepts the narrative provided by the security forces – that they carefully and meticulously planned each attack and used sophisticated means to ascertain the precise location of civilians within the NFZs. The LLRC also accepts the position of the government that strict procedures were followed
prior to each attack. Hence the military command was intimately aware of the nature and precise location of each and every target. On the other hand, the Commission concludes that the civilian deaths, which did in fact occur, were unintentional, and resulted from an unprecedented situation where no other choice was possible. It also concludes that decisions to return LTTE artillery fire were made in the heat and confusion of an armed
conflict by field commanders in situ, and thus could not be second-guessed. This narrative of field commanders being left with no option but to return fire despite the presence of civilians in the area that was being subjected to counter-attack contradicts the LLRC’s position that attacks had been carried out within the NFZs only after careful
planning and with possession of intimate knowledge of the precise whereabouts of civilians. Incidentally, it is also diametrically at odds with the internationally publicised position of the government during the last stages of the war, which was that the use of heavy weaponry was no longer necessary. If the location of civilians were known, then
their deaths could not be simply dismissed as unintentional without further investigation. Hence the LLRC’s analysis is, at best, self-contradictory, and reflects its reluctance to genuinely examine the allegations against the government.
xviii. A similar criticism may be levelled at the LLRC with respect to its analysis of the allegation that the security forces deliberately targeted hospitals. While admitting that hospitals were in fact shelled, the Commission concludes that, due to the non–availability of primary evidence of a technical nature, it was not possible to reach a definitive
conclusion that one party or the other was responsible for the shelling. This position is difficult to maintain given the purported precautions taken by the security forces to minimise civilian casualties. Evidence before the Commission revealed that the security forces had at their disposal ‘state of the art’ surveillance devices that enabled them to
closely monitor the conflict zone, often in ‘real time’, in order to monitor the movements of the civilians with a view to avoiding civilian casualties. Yet the Commission failed to call for such surveillance footage or to recommend further investigations into the shelling of hospitals.
xix. The LLRC admits to over a thousand cases of alleged disappearances of persons after surrender to or arrest by security forces. Hence it 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.
However, the LLRC makes it clear that, in its opinion, these disappearances are isolated incidents perpetrated by a few. The Commission comes to this conclusion despite specifically conceding its lack of capacity to conduct investigations. In fact, during public hearings in Puttalam, the Chairman of the LLRC refused to interpret its mandate as contemplating any investigative functions. Without even so much as acknowledging an investigative function, the LLRC still went on to conclusively determine that over a thousand incidents, many taking place in the space of just a few days between 17th and 20th May 2009, were isolated and unconnected, and not systematic. Such a mischaracterisation is prejudicial to any future investigation, and is cynically aimed at countering allegations of war crimes and crimes against humanity with respect to the systematic practice of enforced disappearances and the execution of surrendees.
xx. The LLRC does not adequately deal with the issue of the scale of civilian casualties during the final stages of the war, particularly given its own admission that it was a ‘key question’ confronting it and ‘crucial to its mandate.’ The LLRC heard specific evidence from two key sources – the Bishop of Mannar, Rt. Rev. Dr. Rayappu Joseph and Ms.
Imelda Sukumar, who served as the Government Agent (GA) for Mullaitivu during the relevant time – in relation to the number of civilians trapped in the NFZs. While the Bishop of Mannar cited official figures from the Kachcheris of Mullaitivu and Kilinochchi placing the number of persons residing in the Vanni in early October 2008 at
429,059, the GA for Mullaitivu herself testified that there were approximately 360,000 civilians remaining in the NFZ in the Puthumattalan area in January 2009. Given that only 282,380 civilians came out of the Vanni into government-controlled areas, the number of persons unaccounted for remains between 75,000 and 146,679. Even in the
light of this compelling evidence placed before it, the LLRC does not acknowledge the number of civilians unaccounted for, or the likelihood that a majority of these civilians died during the final stages of the war.
xxi. The LLRC deals with a number of human rights issues including allegations concerning missing persons, disappearances and abductions, treatment of detainees, illegal armed groups, conscription of children, vulnerable groups, Internally Displaced Persons, the Muslim community in the North and East, the freedom of expression and the right to information, and the freedom of religion, association and movement. However, the LLRC
fails to consider some of the more sensitive issues, thereby revealing selectivity in its approach. For example, the alleged involvement of one Iniya Barathi in a number of human rights violations is not mentioned in the section on human rights in the LLRC’s report. Many witnesses in fact identify Iniya Barathi as responsible for human rights
abuses. Instead of mentioning the involvement of this individual in the disappearances that took place in the Eastern Province, the LLRC only makes vague references to him in the chapter on ‘reconciliation’. The Commission makes no attempt to examine in any detail the evidence against this individual, nor to highlight his alleged connections to the
TMVP and the SLFP.
xxii. Given the circumstances, the LLRC has compromised its impartiality and credibility, and has reinforced impunity.
xxiii. On countless occasions, the LLRC assured distraught witnesses that it would ‘look into the matter,’ thereby promising some form of follow up on individual cases of disappearance, detention, land grabs, assault, harassment, extortion and death. However, the LLRC report only provides a brief statistical analysis of so-called follow-up work,
which would be of no use to the witnesses concerned. It is not clear as to how the LLRC proposes to communicate its specific findings to specific witnesses. It is, however, apparent that the Commission’s final report, assuming it is even accessible to these witnesses, does not provide the answers that were promised to them during the public
sittings.
xxiv. The LLRC also failed to evaluate its own deficiencies in dealing with gender specific issues. The composition and approach of the Commission established an insurmountable barrier to women in terms of truth telling. In fact, it was reported that the LLRC had been ‘desultory’, ‘curt’ and ‘dismissive’ towards female witnesses. There are also reports that the Commission chastised women for crying and demanded written submissions in place of oral testimony. Hence, women in general have encountered a distinct lack of sympathy when recounting their experiences before the Commission.
xxv. Many of the LLRC’s recommendations pertaining to human rights presuppose institutional independence of certain key institutions including the judiciary, the Attorney General’s Department, the National Police Commission and the Public Service Commission. However, the Commission does not address the recent repeal – by the
Eighteenth Amendment to the Constitution – of salient provisions in the Seventeenth Amendment that safeguarded the independence of public institutions. Moreover, the continued application of the Eighteenth Amendment places virtually insurmountable challenges to the implementation of the LLRC’s final recommendations.
xxvi. The LLRC also made recommendations on a number of issues that are not directly related to accountability. These recommendations have positive elements, and if implemented, would be welcomed and supported by the TNA. The TNA intends to closely monitor the implementation of these recommendations. However, these recommendations should not be mistaken for those addressing accountability issues.
xxvii. Amongst the LLRC’s recommendations unrelated to accountability are its recommendations on reconciliation and devolution of power. The Commission emphasises that a political settlement based on devolution must address the ethnic problem as well as other serious problems that threaten democratic institutions. The Commission recommends devolution to local government institutions to ensure greater peoples’ participation at the grassroots level. Moreover, it recommends that the government take into account the shortcomings in the functioning of the Provincial Councils system. Yet the only concrete suggestion that the LLRC makes in terms of an actual model is the establishment of a Second Chamber comprising representatives from the Provinces, so as to generate a sense of confidence among the political leadership and people in Provinces. These sentiments on devolution are exceedingly vague, noncommittal, and do not measure up to past proposals including the majority report of
the All Party Representative Committee’s Expert Committee appointed by the President in 2006. Yet, even the implementation of the LLRC’s modest proposals remains uncertain, particularly given the non-implementation of the provisions of the Thirteenth Amendment to the Constitution and the recent views expressed by the President in
relation to devolution of governance to the Provinces. These views validate strong fears amongst the Tamil community that the government is not genuinely prepared to deliver to the people a political solution premised on meaningful devolution.
xxviii. The LLRC in some way also acknowledges the intrusiveness of the military in the North – a fact that the TNA has already brought to the public’s attention on numerous occasions. The Commission hence recognises the need to disengage security forces from all activities related to civil administration as rapidly as possible. The TNA welcomes this recommendation and intends to closely monitor and publicise the progress of its implementation over the next few months.
xxix. Despite these positive recommendations, 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) is an urgent and important one. Given the government’s failure to institute a process that meets these benchmarks, the TNA calls on the international community to institute measures that will advance
accountability and encourage reconciliation in Sri Lanka in keeping with the recommendations of the UN Secretary General’s Panel of Experts.
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