On May 18, 2009 the Government of Sri Lanka (GoSL) declared victory over the Liberation Tigers of Tamil Eelam (LTTE) and ended a 30-year conflict. The way the final phase of the war was fought, how it ended and what happened with the Tamil civilians and LTTE combatants at the end of the hostilities became a controversial issue.
After a visit in Sri Lanka on May 23, 2009 the United Nations (UN) Secretary General (SG) and the GoSL published a joint press statement in which the SG emphasized the importance of accountability in order to address the Human Rights (HR) abuses and the violation of International Humanitarian Law (IHL) (Secretary-General, 2009, SG2151).
The Security Council (SC) considered the war and the internments of the internally displaced people (IDP) as an internal matter. On May 27, 2009, the Human Rights Council (HRC) voted in favor of a controversial resolution proposed by Sri Lanka. The text did not include any provision for an inquiry into the alleged war crimes of both sides (International Crisis Group (ICG), 2010, p.13). This controversial vote should become only one example of many others by the international community to push for accountability in Sri Lanka.
The GoSL always called the final stage of the war a “humanitarian rescue operation” and presented its actions as part of a large hostage rescue operation (This was based on the well-known fact that the Liberation Tigers of Tamil Eelam (LTTE) were holding back civilians in its territory). This state of affairs was confirmed in various public speeches by high governmental officials. At the end of the hostilities, civilians were put in overcrowded, closed camps for “InternalIy Displaced Persons” (IDPs) with limited humanitarian assistance where they were exposed to harassment by security forces who were looking for LTTE fighters likely to be hiding among them. This screening process took place without any transparency or visible government supervision, a fact which therefore led to allegations of disappearances and killings (UN Panel report, 2011, p. 48-50).
After more than a year, on June 22, 2010 the SG announced the appointment of an ‘Experts’ Panel’ to inform him of the progress of the commitment made by the GoSL after his visit in 2009. The Panel’s mandate was to “advise the Secretary-General regarding the modalities, applicable international standards and comparative experience relevant to an accountability process, having regard to the nature and scope of alleged violations of international humanitarian and human rights law during the final stage of the armed conflict in Sri Lanka” (UN Panel report, 2011, p.i).
This announcement was met by stiff anti UN protest. The GoSL had established the Lessons Learned and Reconciliation Commission (LLRC) and didn’t see any need to have an international body intervening in its internal affairs. The protests culminated in a sit-in in front of the UN office in Colombo, including a hunger strike of the Housing Minister in front of the building (The Guardian UK, 2010).
The UN Panel of Experts completed its report at the end of March 2011 and made it public on April 25. The LLRC’s accountability initiative had by then conducted eight months of public hearings and the GoSL was very concerned that the earlier publication of the UN Panel report would compromise its domestic driven initiative (ICG, 2011, p. 27).
Past events are the underlying cause for a need for a reconciliation process. They are well documented and the author has referred to them when strengthening or clarifying an argument. The length of this document does not however, allow for a detailed account of the conflict history in Sri Lanka.
This essay will firstly analyze the process that led to the establishment of the LLRC and its working modalities including its mandate. Secondly, it will critically assess the final report and a selection of LLRC major findings of the LLRC. It will then discuss some key elements, based on the framework of restorative justice, which could be deemed essential for an improved reconciliation process in Sri Lanka. As a conclusion, it will propose required key short- and long-term policy changes in order to facilitate the reconciliation process.
Establishment of the LLRC
As a reaction to the increasing international pressure to address the alleged abuses in the final stages of the war, the Sri Lankan President, Mahinda Rajapaksa, announced the establishment of the LLRC on May 6, 2010. The mandate of the commission was to inquire “the facts and circumstances which led to the failure of the ceasefire agreement operationalized on 21st February 2002 and the sequence of events that followed thereafter up to the 19th of May 2009”.
The establishment of the commission as a first national step to accountability was widely criticized by various Human Rights bodies. Organizations like Human Rights Watch and Amnesty International (AI) generally doubted that another national attempt for accountability would produce any tangible results similar to the past governmental initiatives. This was however not due to a lack of legal framework but to the unwillingness of the authorities to investigate abuses of their security forces and to ensure a proper follow up (ICG, 2010, p. 30).The main shortcomings of the LLRC mandate brought forward were the following:
Non conformism with international standards, in particular with various provisions in the Updated Set of principles for the protection and promotion of human rights through action to combat impunity (AI, 2011, p. 11-12).
The mandate and how it relates to accountability is not clearly formulated. It does not include a mandate for investigation of HR and IHL violations and it does not contain any provisions to ensure that perpetrators are brought to justice (Human Rights Watch, 2012, p. 1).
The absence of a witness protection program was seen as another important shortcoming of the process initiated by the GoSL. Threats and disappearances continued to be reported from Sri Lanka after the war ended. There were no provisions for protective or support mechanisms for witnesses (AI, 2011, p. 53).
Criticized for having a biased mandate the commission was also considered as not in compliance with international standards of independence. Members held high level positions within the Government, and it was therefore questionable that they could make an independent assessment especially of the Government performance. At least three of the commission’s members (among them the chairman, C.R. de Silva, a former Attorney General (AG) and friend of the president, H.M.G.S. Palihakkara, a Government representative to the UN by the end of the war, and Amrith Rohan Perera, Legal Adviser to the Foreign Ministry) were considered as not impartial (ICG, 2011 p. 22-24).
With regard to the structure of the LLRC, it was also noted that the commission did not fully reflect the diversity of the Sri Lankan society. Only one of its members was a female and Tamil, despite the high number of Tamil widows who testified in front of the commission, and only one other member was from the Muslim community (UN Panel report, 2011, p. 86).
LLRC working modalities
The structural deficits of the LLRC did impact on the way it worked and performed. The UN Panel of Experts asserted the “absence of a clear approach to truth-seeking or investigation” (UN Panel report, 2011, p. 88).
Be that as it may that truth seeking was not one of the LLRC’s main focuses (see above, lack of clear mandate), it should not have prevented such a body to do more in this regard. It appears that the LLRC was focusing on gathering and analyzing information about the lawful conduct of the Sri Lankan forces rather than look into alleged violations of law. It is unclear why in its hearings, the LLRC did not ask questions about public statements of concerns made by the International Committee of the Red Cross (ICRC) nor why frontline soldiers were not involved in the hearings. The commission did not resort to satellite pictures and other information that could have improved the overall picture and helped to identify perpetrators (ICG, 2011, p.25).
The public hearings in Colombo of prominent personalities from the civil and military establishments were uncritical, complaisant and blamed the LTTE for abuses. They gave the general impression of having been used as a platform to disclose the Government’s position on the facts. They highlighted the question as to which extent the commission really wanted to find the truth about the events of the final phase of the war. The time allocated for the hearings in the North and East of the Island were too short. The witnesses could however hand in a written statement (if they could find someone able to translate the form). This is not in line with international standards and modus operandi of other similar commissions which showed a much more victim oriented approach. In contrast to the hearings in the capital, during field missions, the LLRC was dismissive of the victims who raised the issue of missing persons or alleged violations of IHL by security forces. Some victims of HR abuses felt a lack of dignity and respect when testifying in front of the LLRC. The way the victims were treated left doubts as to the willingness of the government to contribute to reparation (UN Panel report, 2010, p. 90-91).
It was considered a positive step that the Cabinet had approved an Inter-Agency Advisory Committee (IAAC) under the AG to facilitate the implementation of the recommendations of the LLRC. In September 2010, the LLRC transmitted its interim recommendations to the implementation body. The recommendations were however very limited and did not mention alleged killings, abductions and disappearances. The only element in this regard was the request by the LLRC to publish a list with the names of the detainees. In its report, the IAAC (in theory an implementation body) concluded that missing individuals must have died in action as LTTE combatants or been killed by the LTTE while fleeing to the Government hold area (ICG, 2011, p.26).
This request was made because witnesses still did not know whether their missing family members had been killed or were in detention. The authorities refused to share the names and locations of detainees with families and it did not allow the ICRC access to the arrested LTTE cadres in order to fulfill its mandate (ICG, 2011, p.17).
The LLRC final report and its findings
Hearings of the LLRC began in August 2010 in Colombo, and the commission was meant to provide a final report to the President by November 2010. So many victims wanted to testify before the commission that the mandate was extended to May 2011. Initially, there were concerns that the LLRC might not make its final report public. This was an established pattern for inquiry commissions in the past (UN Panel report, 2011, p. 81-82). The report was however made public in full on December 16, 2011.
In its executive summary, the UN Panel of Experts assessed the work of the LLRC as follows: “In sum, the LLRC is deeply flawed, does not meet international standards for an effective accountability mechanism and, therefore, does not and cannot satisfy the joint commitment of the President of Sri Lanka and the Secretary-General to an accountability process” (UN Panel report, 2011, p. v).
The UN Panel of Experts mainly referred to its perception of the process and not the final LLRC report itself, because it published its report before the LLRC report was completed. An assessment of each chapter by the author revealed the following:
Chapter 1 – Introduction and Methodology
The commission explained that the report was based on submissions made before it, while it also considered other public reports including the report of the UN Panel of Experts on Accountability in Sri Lanka. The commission confirmed that it referred certain cases to the AG but did not provide details about the cases. Hence, the commission had a rather reactive approach to information gathering and was generally not conducting investigations on its own initiative. This became clear not only in the relevant sections on accountability but also in other parts of the report.
 Retrieved from http://www.llrc.lk/