The Permanent Mission of Switzerland to the United Nations in New York organized an informal lunch time discussion on February 08, 2012, on the Report of the Lessons Learnt and Reconciliation Commission (LLRC) for interested States and organizations. There was a full house, consisting not only of diplomats but also of NGO representatives. They had previously hosted a discussion on the UN Secretary-General’s Panel report.
After Ambassador Paul Segar had introduced the speakers, the Permanent Representative of Sri Lanka to the United Nations, Ambassador Dr. Palitha Kohona outlined the key features and recommendations of the final report of the LLRC. In particular, he highlighted its recommendations and the commitment of the Government, as expressed in Parliament, to implement these recommendations.
He stated that several measures have already been taken towards implementing these recommendations, despite the time and resource constraints faced by the country.
The full text of the comments made by Dr. Kohona is given below.
February 08, 2012
THE LLRC – Some comments on the Report
Delivered at the Permanent Mission of Switzerland
Ambassador Dr. Palitha Kohona
Permanent Representative to the United Nations
On May 15, 2010, President Mahinda Rajapaksa appointed the Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC). Hardly 15 months after the end of the conflict, this independent body, commenced hearings on 11 August 2010. These hearings were open to the public. Many of the sessions of the LLRC were observed by Colombo based diplomats and the media. The LLRC collected evidence from hundreds of witnesses, had sittings in many parts of the country and even invited AI, HRW and ICG to present evidence, which they, regretfully declined to do. The Commission submitted its Report on 20 November 2011 and it was subsequently tabled in Parliament. It is now a public document. The Government has categorically stated that it will implement its recommendations.
LLRC - Observations and recommendations:
Protection of Civilians: -
The LLRC concluded that the protection of civilian life was a key element in the formulation of policies by the Government for carrying out military operations. Contrary to other assertions made, the deliberate targeting of civilians formed no part of its military strategy. Targeting of civilians would have been militarily and politically counter productive. The LLRC observed that the military operations were conducted professionally.
It also urged that if transgressions by individuals had taken place, these be further examined and appropriate legal action taken.
The LLRC surveyed the law relating to the protection of civilians in armed conflict situations. This is important as so many different interpretations of the law have been bandied around. The Four Geneva Conventions and the two Protocols of 1977 were discussed. Sri Lanka is a party to the Four Geneva Conventions. The 1980 Convention on Certain Conventional Weapons and the Five Protocols are also relevant.
The LLRC discussed material relating to the responsibility of state security forces to protect civilians. Quoting extensively from authoritative sources it stated that there is an obligation to ensure that civilians were not harmed. This obligation is, however, qualified. Feasible precautions must be taken to distinguish between civilians and combatants. However, a margin of discretion is left to field commanders given the “heat and confusion” of battle.
Any attack must be proportionate to the necessity of achieving the military objective.
The LLRC has observed that in many instances, especially towards the end of the conflict, LTTE combatants did not wear uniforms, combatants could have been civilians forcibly taken into the ranks to perform military or support duties, combatants could even include children. In a situation where the combatants were not identifiable, and the LTTE had merged protected premises with combat strategy, it would be difficult to distinguish “civilians” and combatants. Naturally the number of civilians dead would be difficult to determine.
The rules distinctly require that civilian areas not be used for military operations, including the location of offensive weaponry.
The LTTE located its weaponry among civilians, including in the No-Fire Zone attracting retaliatory fire. There is extensive UAV footage of LTTE weapons in the NFZ.
Aerial attacks almost always followed both UAV observations and on ground confirmation.
The LLRC noted that the Sri Lankan Army conducts its own international humanitarian law training programmes developed with the assistance of the ICRC and the Red Cross, suggesting that humanitarian law was considered very important to the military.
UN humanitarian agencies have not been in a position to verify civilian casualty figures. There was, in fact, no proper verification process.
The so-called hospitals were largely makeshift medical facilities being established in the wake of the retreating LTTE.
Supply of Food and Medical Needs
There were some suggestions that food and medical supplies were deliberately held back from civilians. But the LLRC noted that food and medical supplies were monitored by the CCHA (Consultative Committee on Humanitarian Assistance) which included the Ambassadors of the USA, Japan, EU and Germany, UN Agencies and the ICRC.
There was no deliberate effort to deny food and medicine, despite the lack of security and ongoing fighting.
The Government Agents maintained a 3 month buffer stock.
When access to Mullaitivu by land became impossible, the Government sent food and medicine to Mullaitivu, by sea, with ICRC protection.
See Francs Deng’s comments.
Evacuation - From February to May 9, 2009, the ICRC evacuated 5490 patients including pregnant women and 8326 carers. The patients were moved to government hospitals.
The number of civilians living in the LTTE controlled areas had not been clearly established. Not even the UN had an accurate figure. Many also were escaping into government controlled areas continuously.
The LLRC observed that there were deaths and injuries to civilians. The number is disputed. The SG’s Panel Report was cited by the LLRC.
When the No Fire Zones were declared unilaterally by the Government with designated exit corridors, the LTTE deliberately clustered the civilian population and positioned military hardware, including long range guns among the civilians.
The security forces had to return fire to neutralize these gun positions.
The LLRC heard no representations from civilians or LTTE cadres that the security forces deliberately targeted civilians.
On the other hand civilian witnesses described many instances where the LTTE deliberately fired at people attempting to flee into Government controlled areas.
The LLRC also concluded that many LTTE cadres would have been among the casualties.
The UN humanitarian agencies which had in-situ information about casualty figures from January to April 2009, and, thereafter secondary source information, have said that it was not possible to establish a verifiable figure.
The LLRC recommended that specific instances of breaches of rules of combat be investigated fully and if necessary prosecutions undertaken.
Conduct a professionally designed household survey to ascertain the scale and the circumstances of death and injuries to civilians as well as damages to properties.
If surrendees had been subjected to any unlawful acts, penal consequences should follow.
Channel 4 Video
The LLRC viewed the footage and had access to expert opinion.
Channel 4 had not made the original footage available to the LLRC for examination.
Recommended that the Government initiate an independent inquiry.
If the summary executions see on the Chanel 4 video were proved to be accurate, the offenders should be prosecuted.
On the other hand, if the footage is artificially constructed, as suggested by some of the witnesses, the Commission recommends that the Government of Sri Lanka institutes an independent investigation into this.
Human Rights Issues
The LLRC examined questions raised with regard to disappearances and abductions (white vans also), treatment of detainees, illegal armed groups, children, women, the elderly, disabled persons, internally displaced persons, the Muslim community displaced in the North, freedom of expression and freedom of religion.
Sri Lanka is a party to the seven core HR treaties
In this context it is noted that the emergency regulations were lifted last year after four decades.
11,954 former LTTE combatants underwent rehabilitation. Less than 1000 still remain in custody. (This was achieved in a space of 2 and half years )
The LLRC recommended that next of kin have the right to access all detainees.
The Commission recommends the appointment of an Independent Advisory Committee to monitor and examine the detainees and arrest of persons under the public security ordinance.
It recommended that the issuance of death certificates and monetary recompense where necessary should be expedited. It noted the recent amendments to the Registration of Deaths Act.
The LLRC recommends that investigations be conducted in respect of allegations against illegal armed groups with a view to ascertaining the truth and the institution on criminal proceedings against offenders.
The LLRC examined the cases of many widowed women and made series of recommendations to deal with their specific complaints.
The Government has already carried out a series of measures including a comprehensive census in the Northern Province which will enable firm and verifiable conclusions to be derived at on issues involving disappearances, deaths, etc.
The Government will establish a mechanism for gathering and assessing evidence relating to the much publicized episodes. A strong investigative mechanism will be put in place. The material yielded by such an investigation will be placed before the Attorney General for a decision to determine the institution of criminal proceedings.
In the cases of alleged deaths, once finality is reached, the issuance of death certificates and the provision of a range of relief, including monetary compensation, and access to education and employment sectors, are among the steps that will be taken as a matter of urgency.
Land issues though not easy, will be addressed by the Government. All those who have been dispossessed of their lands, will be afforded the opportunity to return to their own lands. Where competing claims exist, in respect to title to land in the former areas of conflict, much more elaborate solutions will need to be developed.
Many people lost their land during 30 years of conflict.
All the Sinhalese and the Muslims were evicted by the LTTE from Jaffna.
Many Sinhalese and Muslims were ethnically cleansed from the East by the LTTE.
Those lands were distributed among LTTE supporters.
In the final phase of the war, over 294,000 became IDPs.
It is not an easy task to return all these people to their original lands
Loss of documentation relating to ownership is a major issue.
Some lands were demarcated as HSZs,
Land mines were located extensively. Approximately 3900 sq km have been cleared.
The Commission’s suggestions regarding institutional mechanisms to deal with land documentation and user-right issues would assist in addressing this issue.
The launching of a well-designed, settler-centered communication campaign to provide fuller information will be immediately undertaken.
The Commission’s recommendations about the formulation of a land use plan for each district in the Northern and Eastern Provinces will be used.
As a longer term initiative, the Government will establish a National Land Commission for the country.
With regard to the extent of the two High Security Zones in the North and East, as the Commission has recognized, the extent of the zones has diminished significantly in terms of area and restrictions. The government will closely monitor and expedite continuing progress in this regard. There has been considerable progress in respect of access to places of religious worship, very few of which are currently situated within the remaining High Security Zones. Any residual issues will be resolved in a time-bound manner.
Resettlement will involve extensive resources. Schools, clinics, roads, electricity, water, community services, etc. will have to be restored.
The government, moreover, regards as fundamental the principle that any citizen of Sri Lanka has the inalienable right to acquire land in any part of Sri Lanka in accordance with applicable laws.
Sound prioritization is an essential aspect of the strategy for the implementation of the recommendations. We must remember that we are a poor country with limited resources, recovering from a 27 year war. It is important to distinguish between measures addressing humanitarian needs as a matter of urgency and longer term initiatives.
Security Forces in Civil Life
The government is committed to withdrawing the security forces from all aspects of community life. Their role will be confined exclusively to security related matters.
Tamil Speaking Police
The police, with Tamil language capability, will be further strengthened to deal with law and order functions. More than 600 Tamil speaking police officers have been recruited already. As a means of enhancing effectiveness in this regard, units of the Attorney – General’s Department will be set up in the Provinces to provide guidance to the police with regard to procedure.
The government places particular emphasis on bringing about a total end to the possession of unauthorized weapons. This issue, which was closely linked to the turbulent conditions prevailing at the height of the conflict, has been addressed with considerable success. Where there is evidence relating to the possession of illegal weapons, raids will be conducted on the basis of a policy of zero tolerance.
As a central feature of the government’s approach to reconciliation, a Parliamentary Select Committee, has been set up to achieve a national consensus in respect of constitutional changes which are necessary to fulfill minority aspirations. Parallel with this, an all-party mechanism necessary for the sustainability of far-reaching constitutional reforms, the government is in the process of conducting bilateral discussions with Tamil political parties on a structured basis.
Tri Lingual Policy
The government has no doubt that the Trilingual Policy, already announced by the government as a cornerstone of its plans for the year 2012, will make a valuable contribution to building bridges among the communities and consolidating a sense of national unity.
Out of over 294,000 internally displaced persons at the end of May 2009, Sri Lanka’s achievement in bringing down the numbers to a mere 6647 by the end 2011 has been commended internationally. The government has spent USD 360 million for the resettlement programme.
De-mining of conflict affected areas was carried out at a pace that is comparable with the best efforts anywhere in the world. At present 3900 sq. km. have been demined. More than 354,000 Antipersonnel Mines and 227 Antitank Mines have been recovered from these areas. The Army is responsible for around 80% of the successful demining operations.
Over 11,600 ex-combatants have gone through varying programmes of rehabilitation depending on the need and level of involvement in terrorism. Less than 1000 remain in the Government’s rehabilitation centres, undergoing rehabilitation progarmmes. Careful attention was given to the 595 LTTE child soldiers in Government custody, who were rehabilitated under a programme assisted by UNICEF, and reintegrated into their families within one year.
The Government is undertaking massive infrastructure and economic development programmes in the North and East, the former theatre of conflict. The total allocation for the Jaffna District in the North is around USD 300 million while USD 250 million and USD 150 million have been invested in projects in the Kilinochchi and Batticaloa districts respectively. Since the end of the conflict, a 22% economic growth has been recorded in the North, while Sri Lanka’s GDP recorded an 8% growth in 2011.
One of the major external challenges that Sri Lanka faces as it strives to consolidate the peace is that is he campaign launched by the remnants of the internationally proscribed terrorist organization in some countries. This terrorist rump is not only undermining the reconciliation and development efforts carried out by the Government of Sri Lanka but is also attempting to pursue punitive action on HR violations issuing the governments of their host countries. It is the firm position of the Government of Sri Lanka that it will not favour any external intervention into domestic issues. Such interventions would not be in keeping with established international practice, where the domestic process needs to be exhausted prior to resorting to externalization.
All these elements would form part of Sri Lanka’s presentation at the 2nd cycle of the Universal Periodic Review (UPR) in October 2012.
It is the Government of Sri Lanka which is best placed to evolve a home grown solution acceptable to all of the country’s citizens. Therefore, considering the gamut of changes that the country has undergone in the post conflict scenario, it is paramount that Sri Lanka be provided time and space to meet its own challenges.