By Jehan Perera –

Jehan Perera

There has been speculation that the government will soon be setting up a Truth and Reconciliation Commission (TRC) on the lines of the one made famous by South Africa after its transition from apartheid to democratic governance.  Government sources have disclosed that the possibility of South African assistance to Sri Lanka was discussed by President Mahinda Rajapaksa and South African President Jacob Zuma on the sidelines of the Commonwealth Heads of Government Meeting last month in Colombo.   This bilateral meeting was preceded by several visits to South Africa by members of the Sri Lankan government and opposition.  There was also a major South Africa- Sri Lanka joint conference on reconciliation that took place just prior to CHOGM in which South African experts on participated.  President Rajapaksa’s visit to South Africa to attend the funeral of the iconic peacemaker Nelson Mandela will provide yet another opportunity for possible collaboration to be discussed.

The urgency in regard to setting up a new type of commission of investigation comes in the aftermath of the Commonwealth Summit during which the British Prime Minister David Cameron declared his intention to pursue the issue of accountability for human rights violations in the last phase of Sri Lanka’s war.   With the UN Human Rights Council to meet in Geneva in March 2014, there is a prospect of increased confrontation between the government and sections of the international community on the issue of accountability.  The government has taken strong exception to the announcements by leaders of countries such as the United Kingdom and Canada that they will insist on an independent international investigation into the last phase of Sri Lanka’s war unless the Sri Lankan government itself sets up a credible process of investigation prior the March meeting in Geneva.

Regardless of Sri Lankan displeasure, however, the international pressure is growing more rather than less.  The French humanitarian organization, Action Against Hunger (ACF-France) which lost 17 members of its staff in Trincomalee during the last phase of the war in the east in 2006, is the latest to join the international call for an independent international investigation into the past.    ACF’s report into what happened gives the reasons why.  The report is titled “The Truth Revealed about the Assassination of 17 Humanitarian Aid Workers in Sri Lanka.”  The aid workers, 16 ethnic Tamils and one Muslim, were killed when government forces took over Muttur.  The ACF statement claims that the perpetrators were from the government’s security forces and that there was a cover up at high levels.  The identity of the perpetrators was contested at the time of the incident with government spokespersons strongly denying the culpability of the security forces in the killings.

International Spotlight

After the eastern campaign was successfully accomplished the government took pride in the fact that civilian casualties had been virtually zero.   But the allegation that the 17 aid workers were the victims of the security forces has not gone away.   It was bound to remain in the international spotlight.  The international humanitarian system depends for its very survival on the guarantee of maximum security to those who work on behalf of people trapped in war zones.   The failure of the government to hold an independent and credible investigation into those killings has been one of the reasons for the general erosion of the government’s credibility with regard to its denials of responsibility for civilian deaths and wartime atrocities.   On the other hand, if an investigation had taken place and the perpetrators on the ground at that time identified, the leaderships of the government and military might not have been under international scrutiny, as they are today.

It was in recognition of the gravity of the Muttur incident and other such incidents that the Presidentially-appointed Lessons Learnt and Reconciliation Commission (LLRC) decided to go beyond its mandate.  Although not specifically empowered to look into individual acts of killings and other human rights violations, the LLRC made its own recommendations in regard to this incident and to a few other serious and controversial ones.   Apart from the Muttur killings, these included the killing of five students on Trincomalee beach [ para 9:120], the Channel 4 allegations of battlefield excesses [para 9.39],  the killing of 600 policemen by the LTTE [para 9.207] and the alleged disappearance of LTTE surrendees [para 4.242 -4.258, 9.23]. The LLRC stated that there was a duty 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 and provide appropriate redress to next of kin as a gesture that would help the victims to come to terms with personal tragedy.

However, the statement issued by ACF with regard to the killing of their workers accuses the Sri Lankan government of not having sought to find the truth.  It alleges that the killers were protected by the Sri Lankan authorities at the highest levels and describes an official investigation into the killing as characterized by the systematic destruction of evidence and multiple irregularities.  On this basis, ACF has demanded an independent international investigation.  The failure of the government to conduct a credible investigation at the time of the incident, or even afterwards as the LLRC recommended, highlights the problem of credibility that the government now faces.  This is the basis of the ever increasing international demand for an independent international investigation into the past.

Best Option

In the context of the failure of previous government commissions to deliver the expected results, getting international support for yet another commission is going to be difficult.  At a minimum, for the process to be domestically and internationally credible, the establishment of any new commission will require bipartisan government – opposition support that includes the UNP, TNA and SLMC.  TNA Parliamentarian M A Sumanthiran speaking in Parliament has offered such support provided there is international involvement in the process. There also needs to be significant changes in the enabling environment.   In South Africa many persons faced charges in the Courts and the TRC was a forum for confessions by the accused with amnesty granted only if there was a full and fair disclosure. The victims had no fears of intimidation or revenge attacks on them when they gave evidence before the Commission.  This requires a Witness Protection Law and the independence of the judiciary and the police will need to be secured.

Creating a conducive environment for the truth to emerge could prove to be difficult to the government which has got accustomed to controlling processes as much as the truth. As a result, the government appears to be considering an easier option, which is to focus on the LLRC recommendations on accountability and implement them more fully to meet the expectations of the international community.  The problem with the government’s proposed implementation of the accountability recommendations of the LLRC is two-fold.  The first is that the international community has always taken the position that the accountability provisions within the LLRC are weak. This is understandable, as looking into the human rights violations of the past were not part of the LLRC mandate.  The LLRC took this issue up on its own.  The second is that even where the government has set about trying to implement the recommendations of the LLRC, they have done it in a way that is half hearted.

Therefore, in order to ensure the success of any proposed truth and reconciliation process, it is important that the Sri Lankan government should be able to answer its detractors and convince them that it is not engaging in a time-buying ploy to thwart the call for an independent international inquiry into allegations of serious human rights violations and war crimes.  The role of South Africa would be to ensure that the highest standards of transparency and that there will be fairplay to all sides, not only targeting the government.  Such a partnership with South Africa in pursuing the path of truth and reconciliation can go a considerable part of the way to win over many undecided countries to support a nationally driven process of truth and reconciliation but which has international involvement.  At the present time it seems that a properly constituted and mandated TRC with South African support is the best option to transform Sri Lanka’s internal and external relationships in a positive direction.