Sri Lanka ushers in another New Year in just six days, with some of the most difficult challenges staring in the face of the government.
Matters arising from the military defeat of Tiger guerrillas in May 2009 will no doubt be one of them. The end of the separatist war has rid the countrywide fear psychosis and brought about an unprecedented wave of development activity. Yet, the peace dividend arising from the victory is still to be declared. Both the government and the Tamil National Alliance (TNA) are at loggerheads. Their dialogue is floundering and a proposed Parliamentary Select Committee has not got off the ground. Hence, the formulation of any political package to address whatever 'Tamil grievances' there are has not emerged so far. The question is whether it will in 2012.
Last Tuesday, the TNA called upon "the international community to acknowledge the consistent failure of the domestic accountability mechanisms in Sri Lanka and take steps to establish an international mechanism for accountability." The appeal came in a statement which said that the Lessons Learnt and Reconciliation Commission (LLRC) "has dramatically failed the victims of the conflict." It charged that the Commission has granted "immunity to civilian and military leaders responsible for devising the policies that led directly to the commission of war crimes and crimes against humanity."
Govt.-TNA warfare
Six days before the statement was issued, TNA leader Rajavarothayam Sampanthan told Parliament, "the responsibility to protect (or R2P), the right of the international community to intervene in situations when the local state itself has failed in its responsibility to protect its citizens was recognized." In other words, the first duty is on the part of the local state, the country concerned to protect its citizens, he said. The remarks were to infuriate his counterpart, Eelam People's Democratic Party (EPDP) leader Douglas Devananda, who is vying for political supremacy in the north. He sought a ruling on how to react from President Mahinda Rajapaksa at the weekly cabinet meeting on December 14. Rajapaksa declared that not only Devananda but others were also free to strongly counter such remarks coming from those in the TNA. It would be no easy task for Devananda because the LLRC has called for an investigation on his "alleged disrespect for the law."
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| Victoria Nuland: US State Department spokeswoman |
The political warfare between the government and the TNA seems to have reached its zenith. Therefore, the task of formulating a political package in the coming year has become more difficult if not impossible. Last Tuesday, during a media briefing, President Rajapaksa accused the TNA of getting "instructions from abroad" and declared this was a considerable obstacle when it came to conducting "fruitful negotiations" with the government. He ruled out police powers to the north and east as an impracticable proposition. Though the President did not name the country behind the TNA, diplomatic circles were agog with the question. It is no secret that TNA delegations have travelled frequently to New Delhi in the past to meet government leaders and officials. On the other hand, they also visited the United States of America on an official invitation by that country. This was during various phases of their talks with the government. The police powers referred to, together with land use powers, were conferred on Provincial Councils under the 13th Amendment to the Constitution. That amendment came during the administration of President J.R. Jayewardene. It was after consultations with the then Indian government of Prime Minister, Rajiv Gandhi.
A new dimension to these developments has come from the LLRC's final report. In addressing the question of devolution, it says, two matters require attention. One is "empowering local government institutions to ensure greater peoples' participation at the grassroots level." The other, it says, "is also imperative that the lessons learnt from the shortcomings in the functioning of the Provincial Councils system be taken into account in devising an appropriate system of devolution that addresses the needs of the people." It adds that, "it should at the same time provide for safeguarding the territorial integrity and unity of Sri Lanka whilst fostering its rich diversity."
It is clear that the LLRC has given consideration to the functioning of the Provincial Councils. If they were originally conceived as an instrument of power sharing, particularly in the North and the East, only the Eastern Provincial Council is now in existence. Thus, other than the Eastern Provincial Council, seven Provincial Councils that function in other parts of the country, though intended for the same power sharing process, were largely different due to the diverse ethnic compositions in those areas. It may not be wrong to say the declared objective in introducing Provincial Councils as a means for power sharing with the minorities was therefore not served. In fact, the LLRC quotes Central Bank data which says that from 1999 to 2008, the Western Province contributed 50 per cent to the country's GNP. This was in marked contrast to the Northern and Eastern Provinces that together contributed only nine per cent of the GNP. Now, the LLRC has sought a review of this by recommending that Local Government institutions "be empowered." It wants the government to devise "an appropriate system" learning from the shortcomings of the Provincial Councils. If the government accepts these recommendations, that may see the end of the Provincial Councils system, which is not a bad thing at all. There would be the birth of another system based on local government institutions, more relevant to a small country like Sri Lanka.
An additional mechanism, the LLRC says, "is the possibility of establishing a Second Chamber comprising Representatives from the Provinces." Such a mechanism, it notes, is likely to generate a sense of confidence among the political leadership and among the people in the provinces. The proposal for the setting up of a Second Chamber was first mooted by Basil Rajapaksa, now Minister of Economic Development. He was then President Rajapaksa's special envoy to India and discussed this subject with Indian political leaders and officials. In fact, he declared that such a mechanism would be in place soon. However, other developments overtook the issue.
More than two weeks after the final report of the LLRC was tabled in Parliament (on December 16), not even countries regarded as friends of Sri Lanka have issued any formal statement so far welcoming the report. Not surprisingly, the External Affairs Ministry has not been vigorous enough to pursue diplomatic efforts in this direction. Even External Affairs Minister, G.L. Peiris told Parliament last week "Mey ratey vimarshana, deshiya ho jathiyanthara vimarashana kisi deyak nehe….. Api Mekata ida denney nehe…… Angili gahanta kaatath ida denney nehe…..Mey ratey prashna jathiyanthara police karakeyukuta bara denna apita kisima adishtanayak nehe….. Jathiyanthara Police Karayek apita oney nehe….."
In essence, Dr. Peiris insists that there would be no investigation, either domestically or internationally over Sri Lanka. "We will not give room for that. We have no plans to hand over problems of our country to an international policeman. We will not allow them to poke their finger. We do not need an international policeman," he declared.
Minister Nimal Siripala de Silva, Leader of the House, presented the LLRC report in Parliament. In a five-page statement de Silva carefully spelt out what seemed a "declaration of intent" on how the government would handle some of the salient recommendations in the LLRC's final report. That did not give a "road map" or "specify clear mechanisms" on how all the recommendations of the report would be studied or implemented. There have, however, been some pronouncements that matter. The LLRC report said in view of the volume of evidence that was led before it in relation to disappearances and those who surrendered during the last stages of the military campaign against the LTTE in 2009, they needed to be investigated by the Attorney General. Significantly, the President's Office has not made any comment on the LLRC report even though it had a picture taken of the President reclining on an arm-chair wearing a sarong and reading the report very intently.
President meets editors
If it came to parliament more than a month after the Commission led by President's Counsel and former Attorney General, C.R. de Silva, handed over the report to President Rajapaksa, the situation has been further confounded. More than two weeks after the report was tabled in Parliament, thus bringing it into the public domain, there appears to be no strategy on the part of the External Affairs Ministry (EAM) to launch a diplomatic campaign overseas to stem any adverse fallout. The only exception has been the air freighting of copies of the report to various Sri Lanka diplomatic missions abroad. Other than that, the EAM seems blissfully unaware that the international community is girding itself to raise issue at different forums. One such case is the March 2012 sessions of the United Nations Human Rights Council (UNHRC).
The Sunday Times has learnt that some western nations will move a strongly-worded resolution at this event in Geneva. Diplomatic consultations for such an exercise are now under way and leading Asian nations, reportedly disillusioned about some aspects in the report, have also been approached.
Rajapaksa was asked at his regular breakfast meeting with editors last Tuesday: Is there are response on the LLRC report?
President - The government has given its response in Parliament.
President: All parties including the TNA should take the responsibility. (The response came when asked about the LLRC recommendation that all parties should tender an apology to the people of Sri Lanka)
Q: There was an article recently by a professor who had given estimates about the casualties in the war. Why hasn't this been given further publicity because it is a figure coming from within the Tamil community?
President - The views among some of the Tamils are different. They are blaming the LTTE for what happened. For instance a parent, during a discussion said how his two sons had been abducted by the LTTE. When someone stood up and tried to say something he shouted him down saying 'didn't you get your appointment from Prabhakaran?' What I am appealing for is not to raise communal feelings. The Tamil Media should be blamed for this.
Q: What is the position regarding government-TNA talks?
President - There is no use talking to us, we should move to the stage of appointing the Parliamentary Select Committee. They are doing what the LTTE did. There is a limit for tolerance.
Dr. Peiris: It is only the TNA which has called for an international investigation after rejecting the LLRC report. This will give the opportunity for foreign forces to enter the country.
Q: Whom do you think is behind such moves?
President - It is the LTTE sympathisers.
Q: The TNA has been asking for Police powers.
President - We know how the police powers are implemented in India. During the Mumbai attack it took two hours to contact the Chief Minister to get down the Police from New Delhi. Sonia (Gandhi) was not allowed to go. If police powers are given I will not be able to go to my village sometimes. Journalists will complain to me that they have been assaulted because they wrote something about a Chief Minister. There are good reasons not to give police powers. Already 750 Tamils have been recruited to the Police. In the past they did not allow the Tamils to join the police."
An indication of how the United States government might react emerged this week during the daily briefing at the Department of State. Spokesperson Victoria Nuland said, "While we're still studying the full report, I do have to say that we have concerns that the report, nonetheless, does not fully address all the allegations of serious human rights violations that occurred in the final phase of the conflict. So this leaves questions about accountability and - for those allegations, and so we urge the Sri Lankan Government not only to fulfil all of the recommendations of the report as it stands, but also to address those issues that the report did not cover."
The United Nations' spokesman in a note sent out to UN-based correspondents said, "The United Nations will be studying the report closely. The Secretary-General hopes that the Government of Sri Lanka will move forward with its commitment to address accountability concerns in good faith as an essential step towards reconciliation and lasting peace in the country."
The operative word in all these statements is the question of "accountability."
Ms Nuland's remarks drew an angry response from External Affairs Minister, Peiris. He told media personnel at the news briefing with President Rajapaksa last Tuesday, "I want to point out that the US State Department has put out a statement yesterday. It is not a fair statement. They have raised the question about accountability saying matters related to accountability have been left open, that there is no comprehensive plan to implement the recommendations and that it does not fully address the human rights issues in the closing stages of the conflict. The issue of accountability has been addressed and it has been explained in the report. The demand about the comprehensive plan is not a reasonable demand.
"Why does it concentrate only on the final stages of the conflict? We also wish to question whether the US position applies on other issues in other parts of the world. For instance they have introduced 'Enhanced Techniques of Interrogation.' What does this mean?"
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| President Rajapaksa meeting editors and senior journalists at Temple Trees on Tuesday. Also with the President were Ministers G.L. Peiris, Keheliya Rambukwella, Presidential Secretary Lalith Weeratunga and Media Ministry Secretary W. B. Ganegala |
There was some embarrassment for UPFA leaders when Dr. Peiris' remarks, moved by wire services from Colombo, all quoting sources at the Presidential Secretariat appeared in several world media outlets including the Washington Post. The words used for his critique to the local media were all attributed to President Rajapaksa. It is known that 'Enhanced Techniques of Interrogation' is a euphemism for various forms of cruel torture including waterboarding. Rajapaksa made no such remark, it was Dr. Peiris who said so.
Some of the recommendations made by the LLRC caused unexpected surprise in diplomatic circles. Even sections of the western diplomatic community admitted in private that some of them were "bold" and "forthright" though they had reservations on other "vital" issues. Even State Department spokesperson Victoria Nuland had a word of praise when she said, "The Commission has addressed a number of the crucial areas of concern to Sri Lankans. In particular, the report recognizes and makes substantive recommendations in the areas of reconciliation, devolution of authority, demilitarization, rule of law, media freedom, disappearances, and human rights violations."
Recommendations, like for example the call for demilitarisation, would be at some variance with government policy. The report says, "The Commission, as a policy, strongly advocates and recommends to the government that the Security Forces should disengage themselves from all civil administration related activities as rapidly as possible." It adds, "With regard to the participation of Security Forces officers in the proposed land restitution process, the Commission being cognisant of the fact that some lands are currently being utilized for security purposes recommends that such participation be confined to and used optimally to expedite releasing maximum extents of such land, while taking account of security considerations, but according primacy to the policy objective of allowing people to settle in areas convenient to them."
Last Wednesday, President Rajapaksa told Parliament that the army camps set up at district level are of 'national importance,' established 'to protect national security interests' and would not be removed. Even Minister de Silva said when he tabled the report that "Security Forces will be deployed as appropriate in all parts of the island, including the Northern and Eastern Provinces." However, he added "now that conditions of normalcy have been re-established, it will be the deliberate policy of the government to ensure the withdrawal of Security Forces from all aspects of community life, their role being confined exclusively to security-related matters."
Another is the reference made by the LLRC to the Channel 4 video. The report notes that "Representatives of the government have made public statements emphasising that the video consists of 'fake images' or staged incidents or events electronically constructed through video data manipulation and tampering." However, it says "based on the available material" and taking into account the representations it had heard it "wishes to recommend that the government initiate an independent investigation into this matter to establish the truth arising from the video footage." It has also said that arrangements should be made "to ensure and facilitate the confidentiality and protection of information and informants." A more significant remark of the report notes "The Commission strongly urges all those concerned, especially the organisations that provided the original images and the broadcasting organisation, to extend fullest co-operation by providing the necessary information to facilitate this work."
Yet another is the reference to deaths and injuries to civilians.
The government's original position was that there were zero civilian casualties. However, in the recent months, UPFA leaders and senior officials offered to investigate if there were allegations which were prima facie (Latin phrase for 'at first appearance' or 'on the face of it'). Whilst saying that the Commission finds 'it difficult to determine the precise circumstances under which certain incidents occurred,' it has nevertheless declared that the material points "towards possible implication of the Security Forces for the resulting harm." It adds, "in these circumstances the Commission stresses that there is a duty on the part of the State to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrong doers." It has also recommended "providing appropriate redress to the next of kin of those killed and those injured as a humanitarian gesture that would help the victims to come to terms with the personal tragedy…."
GTF responds
Both the Human Rights Watch and Amnesty International have also said in different statements that "accountability" and "human rights" issues need to be addressed by the government. Yesterday, even the London based Global Tamil Forum had a word of praise for the LLRC report though it expressed reservation on some aspects, especially on its findings on the issue of accountability during the final phase of the military campaign against the LTTE. Here are highlights;
"Global Tamil Forum (GTF) welcomes the long delayed publication of the 'Lessons Learnt and Reconciliation Commission' (LLRC) report. Its findings only serve to emphasize the importance of establishing an international, independent accountability mechanism to investigate whether Government forces and the Liberation Tigers of Tamil Eelam (LTTE) breached any international law, committed war crimes and crimes against humanity in the last months of the war.
"Whilst the LLRC has received extensive criticism, it must be stated that some of its judgments and recommendations deserve acknowledgement. In particular, GTF welcomes the statement from the Commission "that the root cause of the ethnic conflict in Sri Lanka lies in the failure of successive Governments to address the genuine grievances of the Tamil people." However, the LLRC's conclusions on the prosecution of the conflict contradict many of the findings of the United Nations Panel of Experts (PoE) report on Sri Lanka………..
"GTF maintains that all the allegations of abuses committed by both sides during the conflict must be investigated and that, if proven, those responsible must be held to account for their actions. However, given the degree of discrepancy between some of the key findings of the LLRC and the PoE report, an independent, international commission of inquiry is necessary to investigate and clarify these issues. The fact that the Government of Sri Lanka maintained its "zero civilian casualties" stance for two years after the war clearly indicates that a free and fair hearing on these issues is not possible within Sri Lanka's domestic institutions.
ICG criticises the report
On Friday, the International Crisis Group released a statement from its headquarters in Brussels. Here are edited excerpts:
"The International Crisis Group welcomes the public release of the report of Sri Lanka's "Lessons Learnt and Reconciliation Commission" (LLRC), presented to the Sri Lankan parliament …... The report acknowledges important events and grievances that have contributed to decades of political violence and civil war in Sri Lanka and makes sensible recommendations on governance, land issues and the need for a political solution. But it fails in a crucial task - providing the thorough and independent investigation of alleged violations of international humanitarian and human rights law that the UN and other partners of Sri Lanka have been asking for. It is now incumbent on the international community, through the UN Human Rights Council, to establish an independent international investigation in 2012. Without such an investigation, accountability for the crimes committed at the end of the civil war is highly unlikely; without accountability, and a full understanding of the nature of the violations which took place on all sides, the seeds of future conflict will grow.
"………, the LLRC has been the government's primary means of deflecting pressure for an international investigation into credible allegations of grave violations of international humanitarian and human rights law by both government forces and fighters of the Liberation Tigers of Tamil Eelam (LTTE) in the final stages of the long civil war. The government has pledged that the commission's report would fully address the international community's demands for accountability, as President Rajapaksa promised UN Secretary-General Ban Ki-moon after the government's declaration of victory over the LTTE in May 2009.
"Despite the Sri Lankan government's two and half years of propaganda that their brutal campaign against the LLTE was conducted with little or no damage to civilians, the evidence of shelling of civilians and mass deaths was too much for the commission to ignore. Breaking with years of government claims to the contrary, the LLRC has accepted that "considerable civilian casualties had in fact occurred during the final phase of the conflict" and "that shells had in fact fallen on hospitals causing damage and resulting in casualties". It also recognised the "possible implication of the Security Forces for the resulting death or injury to civilians" but in only three incidents "brought to the attention of the Commission". It calls on the government "to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrongdoers".
"Yet the report works to exonerate the government and undermines its own limited calls for further inquiry - mostly by accepting at face value the largely unexamined claims of the senior government and military officials who planned and executed the war, and by rolling back well-established principles of international law. It "concludes", for example, "that the military strategy that was adopted to secure the LTTE-held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority"; "that the Security Forces had not deliberately targeted the civilians in the [no-fire zones] NFZs"; and that their actions did not violate the principle of proportionality because they "were confronted with an unprecedented situation when no other choice was possible and all 'feasible precautions' that were practicable in the circumstances had been taken". At the same time, it claims that it is unable to determine which side was responsible for many of the reported incidents and chooses, with little explanation, to blame most deaths on the LTTE and unexplained "cross-fire".
"The LLRC's conclusions are untenable for several reasons. First, it is obvious throughout the report that it considered only the materials the government chose to place before it. There was no independent assessment of the full scope of information in the government's possession - including all communications with the UN, ICRC and sources in the conflict zone, as well as other evidence from government and international sources, such as uncensored satellite images and footage from the military's unmanned drones. (Note: the reference is to UAVs). Similarly, the record before the LLRC is inadequate to draw conclusions ruling out unlawful attacks when there are thousands of witnesses who did not come forward, partly because of the lack of witness protection, and when there is no indication that the LLRC had physical access to the final war zone where most of the civilian casualties occurred. Those areas have been off limits to everyone but the military since the end of hostilities.
"An equally worrying deficiency in the LLRC's conclusions is the fundamental misstatement or misapplication of principles of international law. This is most evident in its failure to present a fair exposition of the principle of distinction under international humanitarian law. Indeed, even though the LLRC claimed to have considered the April 2011 report of the UN Secretary-General's panel of experts, it did not engage the panel's legal or factual analysis in any meaningful way. Allowing the LLRC's regressive statement of international law to stand could have consequences beyond Sri Lanka.
"The LLRC's exculpation of government and military leaders also depends on accepting without question testimony from Tamil government administrators and doctors who had served in the war zone. The report makes no mention of the fact that the doctors were detained under anti-terrorism laws at the end of the war and forced to recant publicly their earlier claims that thousands of civilians died from government shelling. To accept at face value their statements to a government-appointed body requires ignoring the evidence of physical attacks and threats to government critics that the LLRC discusses at length elsewhere in its report. Indeed, as predicted by many in advance of the LLRC's hearings, numerous witnesses who testified to the commission about government violations have since been questioned and harassed by the military and the Police…………..
"…………….Without accepting the flaws of the LLRC's approach to allegations of war crimes and of its analysis of the government's conduct of the war, Sri Lanka's international partners should nonetheless attempt to support the openings that the LLRC makes possible in public discussions about human rights and reconciliation within Sri Lanka. The inadequacies in the LLRC's treatment of violations of international humanitarian and human rights law as well as its more useful and critical arguments about the need for serious reforms in how Sri Lanka is governed - all deserve additional analysis. Crisis Group will be pursuing this in a series of further commentaries in the coming weeks."
Year of Fire Brigade
The reaction of the international non-governmental groups, no doubt, is setting the stage for western nations in their planned move in Geneva in March next year. A Colombo-based diplomat remarked somewhat jocularly that 2012 would be the "Year of the Fire Brigade" for Sri Lanka. He was alluding to developments the government would face over issues related to the end of the separatist war, both in terms of the three-member UN Panel of experts report and the final report of the LLRC. The comments relate to official responses over issues this year which were ad hoc and hasty in carrying out damage control. He may be right if the Ministry of External Affairs continues to be lackadaisical and has no planned strategy to meet the threats that portend. Despite Dr. Peiris' bold assertions, there seems little else to show that the External Affairs Ministry is ready. That is the grim scenario as 2011 ends next Saturday.
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