Sri Lanka: Making LLRC Report Meaningful

By Col R Hariharan

The Rajapaksa government should be happy with the report of the Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC) presented to the Sri Lankan parliament on December 16, 2011 as it has not pinpointed responsibility on anyone (other than political and systemic weaknesses and the LTTE) for the mess Sri Lanka finds itself after the Eelam War.

The report provides badly needed breathing space for the government, as the Commission has has done a fairly good job if one goes by the President’s mandate given to it. The well written report analyses in detail the reasons for past and present discontent of Tamils and has drawn the government attention to a number issues that had triggered Tamil insurgency.

The LLRC report is constructive and covers almost all issues that relate to aberrations in governance, lack of transparency and the need to take speedy action on restoring confidence among Tamil minority. However, the LLRC has tripped on allegations of war crimes and killing of civilians by the army during the last stages of Eelam war.

The semantics of its analysis while discussing LTTE’s actions disregarding civilian safety shows clarity. However, in its discourse on the accusations against the army, there is a reluctance to come to grip with the issue. The LLRC was “satisfied” that the military strategy adopted had given highest importance to avoid “civilian casualties or minimising them” based on the evidence given by the military representatives and the Ministry of Defence despite recording evidence to the contrary!

The broad brush given to the issue in the LLRC report has defeated the very purpose for which it was appointed – to get at the truth in the allegations and pinpoint those responsible (if any) so that the government can establish its credibility. 

Sri Lanka media has been full of articles critically analysing the report. Almost all of them have touched upon the need for follow up action. And this has been picked up by the opposition also. If the government is smart enough to take quick follow up action on the wide array of LLRC recommendations, it can untangle itself from the post-war mess. Will the government and the ruling coalition be smart enough to do that remains the moot point?

It is difficult to be optimistic if we look at the circumstances under which the LLRC was constituted. The government’s decision to appoint the LLRC was neither spontaneous nor part of the post war action plan. It was in response to international pressure after the UN focus on its alleged lack of accountability during the last phase of the Eeelam War in May 2009 started gathering support. The UN representative in Sri Lanka and a number of international NGOs had accused the army of inflicting heavy casualties upon civilians trapped in the war zone, including the so called “no fire zone.”

There were also allegations of Sri Lankan army killing some LTTE leaders after agreeing to accept their surrender. Channel 4 TV beamed a number of visuals showing alleged killing of LTTE prisoners by Sri Lankan soldiers adding yet another dimension to the allegations. And this created uproar among Tamils everywhere, many demanding an international inquiry into the allegations. There were also calls for an international inquiry particularly from the West while the US demanded greater accountability from Sri Lanka for its actions during the war.

Sri Lanka was disturbed by the decision of UN Secretary General Ban ki-Moon’s to appoint an advisory panel of experts to advise him on the war crimes issue under lot of pressure. When the issue came up at the UN Security Council Interactive Briefing in June 2009, Sri Lanka’s Permanent Representative spoke about his government initiating a mechanism for fact finding and reconciliation.

However, the President took a year to decide on appointing the LLRC. There were probably unarticulated reasons for this delay. The President had a real problem in coming to terms with the war crimes allegations as they reflected upon his responsibility as the supreme commander of the armed forces. Moreover, any action against the victorious army and its heroes (of course General Fonseka became an exception as he decided to contest against the President) could have adversely affected the massive popular support the President gained after the war.

On other hand, the UN experts’ panel recommendations and international campaigns demanding an international inquiry into war crimes triggered nationalist sentiments and xenophobia in the island nation. And these feelings were cleverly used to garner votes when the President went in for a series of elections. Evidently, considerations of political gamesmanship prevailed over the government’s need for accountability for all its actions during the war.

Sri Lanka was in a piquant situation when constituting the LLRC became inevitable. Locally, it had the unenviable task of carrying out a face saving exercise to sell the idea. It struck upon the strategy of giving the LLRC an omnibus mandate that included human rights issue. It was not surprising when the war crimes issue did not specifically figure in the LLRC mandate. Its inclusion could have resulted in a moment of truth and contradicted the strong stand already taken by the government against such a probe.

The ambit of the LLRC’s inquiry covered the signing of the ceasefire agreement (CFA) and the circumstances that led to its failure and the sequence of events during the Eelam War between February 21, 2002 (when the CFA came into being) and May 19, 2009. The LLRC was also tasked to inquire whether any person, group, or institutions directly or indirectly bear responsibility in this regard.

In an apparent bid to make the LLRC relevant to the post war situation, it was asked to draw up lessons learnt from the events, recommend methodology for institutional action to help those affected by the events and advise on institutional, administrative and legislative measures to be taken to prevent recurrence of such ‘concerns’ in future.  

This mandate had the advantage of weathering international criticism while making such an inquiry acceptable to the people, who have been fed on theories of international conspiracy to deny Sri Lanka the credit for its victory against the LTTE.   

The boycott of the LLRC hearings by the opposition leader Ranil Wickremesinghe, the largest Tamil party - the Tamil National Alliance (TNA), the Human Rights Watch and Amnesty International probably suited the government as their counter arguments never does not find a place in the proceedings of the Commission. Sri Lanka’s strategic mistake in dithering on inviting the representatives of the UN experts’ panel to the LLRC hearings deprived it of external perspective that would have added to its credibility. Notwithstanding these short comings, the LLRC’s interesting analyses brings out a few home truths on some of the larger issues relating to mediation and decision making process in insurgency situations.

Human rights and war crimes

• The LLRC's recorded evidence on alleged human rights violations and war crimes is useful in two ways. Firstly, it has on record details of complaints on which the government has to take follow up action if it means business.  If we go by political reality, such action is unlikely. Secondly, if the government fails to act upon these complaints, the evidence would come in handy for civil society groups and victims to seek the help of judiciary to force the government to act.

• In the contemporary global scene, human rights and war crimes issues are likely to be a perennial feature when armies are involved in operations against own citizens or enemy. So the army and the administration should have clear cut policy and structural framework to take action on complaints. Army should also formally take follow up action. And armies have to think beyond including human rights issues as a subject in training programmes. They should be transparent in taking act and provide easy access to information to the public. Such action is not easy because armies have king size egos and governments have political priorities overriding humane concerns.

• However if they assume it as a command responsibility and governments show the will, it can be done. India provided a shining example of such commitment when the All India Radio beamed oral messages from each of the 93,000 Pakistani prisoners of the 1971 war for the benefit of their families in Pakistan.  Although it is more than two years after the war was won in Sri Lanka, a commission is needed to advise the government on action to be taken after recording evidence of such cases!

Mediation issues

• The analysis of circumstances leading to the ‘hasty’ signing of the CFA has clearly brought out the disastrous consequences when the Prime Minister from the majority party in parliament did not see eye to eye with the Executive President.  Even under limitations of his office, the Prime Minister was able to sign an important agreement affecting the nation without taking the President into confidence! This resulted in lack of consensus, coherence and continuity in national policy making on the issue. The reasons given for this aberration are not clear as the Prime Minister of the period Ranil Wickremesinghe did not record his statement before the commission. Sri Lanka’s political history is replete with such instances when partisan interests of rival parties had derailed each others’ effort to find solutions to major national problems. Basically it was the inability of the two seasoned rival leaders of the time - President Chandrika Kumaratunga and Ranil Wickremesinghe - to learn from history that contributed to the failure of the peace process 2002 to move forward.   

• As this phenomenon is firmly established in Sri Lanka politics, the Tamil issue continues to be subject to round robin games of rival parties and coalitions. Can such a political environment bring a bipartisan solution as suggested by the LLRC? I have my reservations. Some political soul searching about finding permanent solution to bring the Tamil issue to a logical closure is long overdue. If a leader with huge popular support like Mahinda Rajapaksa shows reluctance to act firmly to resolve the issue, the chances of it happening in the near future are bleak. Unless the national leadership makes up its mind, tinkering with the Constitution and other exercises are likely to end up only as cosmetic solutions.

• The analysis of the failure of the CFA provides useful inputs for peacemakers everywhere. Both the warring sides in Sri Lanka accepted the CFA because of their own compulsions. Probably Norway had not understood the skewed balance of power between the two sides. Sri Lanka’s elected government had greater need to be accountable to electorate, while the autocratic LTTE did not suffer from such democratic niceties as it operated under Prabhakaran’s writ. Treating both sides on par would find no political acceptance in the country unless the insurgent group sheds its violent methods to negotiate a settlement (the decisions of Mizo National Front - MNF in India and the Provisional IRA to sue for peace are examples of this). Unfortunately Norway, which has never faced any insurgency first hand, had not understood this simple truth. As a result the CFA was doomed to die when LTTE did not show visible commitment to the CFA. On the other hand, it used the CFA to expose the weaknesses of Sri Lanka’s political process to work out a solution acceptable to all ethnic segments.

• Conceptually and structurally the CFA was flawed. As Prabhakaran was chary of giving up his Eelam dream in favour of a federal solution, the LTTE systematically exploited the built-in weaknesses of the CFA. Compounding Prabhakaran’s reluctance, Norway’s keenness to push through the lopsided CFA draft, and the Sri Lankan failure to read the fine print of the CFA had sowed the seeds of CFA’s failure.

• Similarly, the monitoring process had conceptual limitations; it failed to shore up the CFA as it depended upon the sincerity of both sides in preference to using a neutral military interface to ensure the scrupulous observance of CFA. The Norwegian experience clearly shows how ineffective monitoring can scuttle the whole mediation process.

After action on LLRC recommendations  

The LLRC’s well meaning recommendations are too sketchy to constitute a framework for action by all stakeholders, “in particular the Government, political parties and community leaders.” So it is doubtful whether they would help in “constructing a platform for consolidating post conflict peace and security as well as amity and cooperation within and between the diverse communities in Sri Lanka” as stated by the commission.

If Sri Lanka’s past approach is any indication the government would opt for committee solutions than clear executive action to take follow up actions. This is the reason why many members of civil society and sections of international community including India and the U.S. are keen to see Sri Lanka speedily give form and content to the recommendations. As far as the Tamil community in Sri Lanka is concerned the government suffers from a huge credibility gap; there is a lot of cynicism on government pronunciations. These will be further reinforced if the government drags its feet in taking follow up action.  

So it is difficult to share the expectation of Indian external ministry spokesman for Sri Lanka to “act decisively” to achieve meaningful devolution of powers to its provinces. To quote him, “The LLRC report has underlined that the present situation provides a great window of opportunity to forge a consensual way forward towards reconciliation through a political settlement based on devolution of power.”

But windows of opportunities are not open forever; they are fleeting while political opportunism is established firmly. In Sri Lanka the latter has shown an uncanny a knack of walling up such windows. The disastrous ending to earlier “windows of opportunity” - the sabotaging of Ms Chandrika Kumaratunga’s constitutional reform effort and consigning Dr Tissa Vitharana’s All Party Representative Committee report to the archives – are two recent examples of purposeless politics. 

If Sri Lanka fails to act upon the latest window of opportunity, the whole effort put in to produce a useful LLRC report will be an exercise in futility. There had been enough talk in Sri Lanka about what it should be doing; it is time only for action now.

Courtesy: South Asia Analysis Note No. 641 dated  December 30, 2011

http://www.southasiaanalysis.org/%5Cnotes7%5Cnote641.html