| by Kalana Senaratne
(December 20, Colombo, Sri Lanka Guardian) For quite sometime, ever since the establishment of the Lessons Learnt and Reconciliation Commission (LLRC), the Government of Sri Lanka had been asking its critics not to pre-judge the work of the LLRC and to await, patiently, the finalisation and publication of the Report. The Report has now been published. What do we have here? Is it one that establishes beyond doubt that the Government’s version of the war, or the human rights situation in the country, is correct? If not, where has it gone wrong?
The Report, as any other document, can be read in different ways with different lenses. It attempts to bring together numerous perspectives on issues ranging from the most banal topic – the CFA – to the more critical and controversial issues, such as the conduct of hostilities during the final stages of the war, the Channel 4 video, human rights, and devolution (which will be the issues briefly highlighted here).
Conduct of hostilities: the ‘confused picture’
Perhaps the most controversial is the issue regarding the hostilities during the last stages of the war. The UNSG-Panel Report stated in its Executive Summary, that the ‘Panel’s determination of credible allegations reveals a very different version of the final stages of the war than that maintained to this day by the Government of Sri Lanka’ (p. ii). What does the LLRC Report suggest?
One possible reading of the LLRC Report gives the impression that the LLRC’s aim is to revert to the version maintained by the Government. Para 9.4 of the LLRC-Report states that the LLRC ‘is satisfied’ that the military strategy of the Armed Forces was ‘one that was carefully conceived’, which gave highest importance to the avoidance of ‘civilian casualties or minimising them.’ The LLRC believes that the civilians in the No-Fire Zones were not deliberately targeted (para 9.6). This remains one of the most significant points highlighted by the media because this issue lies at the heart of the entire debate about whether or not the Armed Forces violated rules of IHL and HR.
In addition, reading the preceding sections of the Report, it appears that great reliance has been placed on the officials who represented the Armed Forces, in arriving at this conclusion. Explanations have been provided by senior Defence officials. At paragraphs 4.36-4.41, senior Air Force officials, for example, effectively point to their own version of how air strikes were conducted. Civilians came before the LLRC – but we find that the string of accounts that follow (from para 4.51-58, and from para 4.61-64, for instance) seem to give the impression that the LTTE was to be blamed for much of what happened. What’s more, former LTTE personnel paint a cruel picture of the LTTE’s own modus operandi (e.g. para 4.84), and doctors who served in Puthumatthalan and Mullaivaikal state that the LTTE shot people who tried to escape (para 4.85, followed by accounts of a number of detainees who reiterate this). Residents of Killinochchi state that it was the Army which saved them (para 4.97). Also, the Report uses the language of ‘human shields’ – the use of which, in strict international law terms, is also debatable (note, the use of the term ‘human buffers’ by the UNSG-Panel, in its Report, p. 65).
At this moment, one cannot be blamed for getting the impression that the UNSG-Panel and the LLRC are two sides of the same coin. One report is perceived to be a critique of the Government, the other a critique of the LTTE.
But the above, to be sure, is only one part of the story. There is an equally gruesome side to this story, and here the blame does begin to slowly shift from the LTTE to the Armed Forces too (just like the manner in which the UNSG-Panel critiqued the LTTE, after having critiqued the Armed Forces). Also, there is considerable ambiguity about what happened. For instance, civilians have pointed out that the Army did use shells and that there were aerial attacks by the Air Force (para 4.73). There was a lot of shelling according to some, which led to a lot of killing (para 4.74), and that this was not only the fault of the LTTE because both sides were engaged in shelling (para 4.79). There had been continuous shelling in places like Mullaivaikkal, and three widows from Kyts tell that their husbands died due to shelling (para 4.105). All this provides much needed perspective and helps us form a more accurate picture of what really happened.
There are the poignant stories too. A civilian tells the LLRC that when while moving by sea, and having shouted at the Navy personnel ‘aiya, aiya’ (‘brother, brother’) with white flags, there was sudden shelling which resulted in the death of 8 persons on the spot (para 4.107). It is later explained that some of the firing and killing was done by the Navy (but it is stated that this was a case of mistaken identity for which the Navy had apologised). As regards the PTK hospital, it is clear from some accounts that that the hospital was damaged due to shelling by both sides (para 4.125). Even a Government official admits, quite ambiguously (without blaming any party), that the hospital was shelled on 4 Feb., 2009 (para 4.129); ambiguity which shows why accusations levelled against the Armed Forces, too, cannot be so easily dismissed. What was the situation, for instance, at the makeshift hospital at Puthumatthalan? There were shells falling around the hospital, and both sides ‘were firing shells at each other.’(para 4.133, footnotes omitted).
Also serious are the representations made regarding the abductions and disappearances of LTTE personnel after surrender/arrest. The LLRC admits that the account of the Defence authorities should be read along with accounts of civilians which point to such abductions (see the long list of such allegations, from para 4.241-460, and Annex 4.15). This remains a matter of ‘grave concern’ for the LLRC (para 4.318).
The implications are clear. There could well have been cases of killings of such abducted persons, if their whereabouts are still unknown. The sheer force of these allegations seemed to have made the LLRC admit later that there is a duty on the part of the State to hold investigations and prosecute and punish any wrong doers (para 4.286). It is further admitted, as regards the shelling of hospitals that ‘the material placed before the Commission points to a somewhat confused picture as to the precise nature of the events…’ (para 4.288). Furthermore, that many civilians died during the conflict is also clear (para 4.358). Importantly, and correctly, the LLRC has in diplomatic language (!) stated that declaring NFZs may have been laudable, but such unilateral declaration of unverifiable NFZs in close proximity to the battleground was immensely problematic (point iv, at para 4.359).
Has the LLRC played the role of the apologist? From the above, it is true that one reading would suggest that it is the case. However, there is also another section which counters that perception to a great extent. In fact, the LLRC confirms much of the doubts some had regarding the final stages of the war. As the LLRC points out, there is a need for an investigation of reported cases concerning civilian deaths (see generally, para 4.360). This is what many have been saying for some time; this is why an internal investigation of such incidents was necessary. And the Government has waited until the LLRC drove home the point.
Yet, questions remain. Will such investigations be carried out, and if so, how and when? Who will conduct this investigation? Or, as Kishali Pinto Jayawardene queried: “Who will take the responsibility to investigate, prosecute and punish in a context where the primary state organs of the police and the prosecutors are near irreparably politicised and where the judiciary itself is increasingly suffering from public perception relating to its independence from the executive or the lack thereof?’ (‘Weighing the LLRC report in the scales of justice’, The Sunday Times, 18 Dec, 2011).
But here, we also return to our initial question: how distant are we from the Government’s account of the final stages of the war? While we may not be so close to the version presented by the UNSG-Panel, it is somewhat clear from the above account that we are certainly not close to the version presented by the Government either. By admitting that there is a ‘somewhat confused’ picture on certain critical issues concerning the conflict, the message is: the Government needs to be far more serious in addressing the concerns raised by the LLRC as well as other human rights organisations on issues pertaining to accountability.
Another critical issue which the LLRC addresses is the controversy surrounding the Channel-4 video. Thankfully, the LLRC decided to consider this issue even if no one who appeared before the LLRC raised the issue in any significant manner (para 4.363). In examining the video, the opinion of Dr. Chatura de Silva had been obtained. The conventional practice within Sri Lanka was to rubbish those allegations by stating that every single footage contained in the video was doctored. But the opinion received does not necessarily say so; i.e. that certain segments seems to have been recorded in a natural environment (para 4.367).
The LLRC goes further to admit then that there is a strong case which both supports and opposes ‘the integrity of the video.’ (para 4.370). At this point, in order to obtain a further opinion, the LLRC then refers the matter to Prof. EA Yfantis, of the University of Nevada, Las Vegas, an ‘expert in the field of digital image’ (para 4.372), who provides a negative account of the video which effectively questions the integrity of Channel 4.
Now, had the LLRC concluded its examination here and held Prof. Yfantis’ opinion to be conclusive and final, the LLRC could have reasonably attracted some criticism. Why is that? Because critics can always argue (and there is nothing wrong in this argument) and draw the inference that there was some hidden agenda in going in search of an expert who was based, out of all places, in the University of Nevada – which, interestingly, is from where a member of the LLRC comes!
But the LLRC (to its great fortune!) does not appear to be considering Prof. Yfantis’ account the final word on the matter. It goes on to recommend that given the nature and the lack of clarity concerning many vital issues concerning the footage, that the Government should ‘initiate an independent investigation into this matter to establish the truth or otherwise of the allegations arising from the video.’(para 4.375). In that sense, the LLRC reiterates what many have stated for quite sometime: ‘Offences if any, of a few cannot be allowed to tarnish the honour of the many who upheld the finest traditions.’(para 4.376 a).
This is a significant conclusion, which can be read in many ways. One reading suggests that this affirms what critics have been pointing out ever since the video was made public. Many rushed to rubbish the video as doctored without engaging in a nuanced critique. Not many wanted to entertain the possibility that some incidents could have happened, for gruesome acts of that nature could indeed take place during a bloody conflict. This then provides the international critics with a fine opportunity to demand further investigations, and rightly so.
Another reading of the LLRC’s conclusion suggests that the LLRC does not for a moment believe that the Government had carried out an independent investigation in this regard. By asking the Government to conduct another investigation, what the LLRC is implying is that the so-called investigation that the Government once conducted (given much publicity, locally) is not reliable. Obviously, had that been reliable, the LLRC need not have concluded the way it has in its Report. Therefore, the position taken by the LLRC is to be welcomed.
The significant challenge of course is to ensure how this recommended ‘independent’ investigation could be carried out in Sri Lanka. Who should participate? Who decides the names of the ‘experts’? Here again, the Government faces a stiff challenge.