By Godfrey Gunatilleke –

An Analysis and Evaluation of the Report of the UN Secretary General’s (UNSG) Panel of Experts on Accountability in Sri Lanka

 “We looked into the eyes of our children and were overwhelmed. We looked into the eyes of our parents and were dejected. We looked into each others eyes and turned away.We desire peace” –   From the litany sung at the official opening of the South African Truth and Reconciliation Commission –St. George’sCathedral CapeTown 13.02.1996

Extracts from the Working Paper…

Issues of Accountability and Justice

“The weak can never forgive. Forgiveness is the attribute of the strong” –Mahatma Gandhi

The Panel’s Chapter onSri Lanka’s concept of accountability and discussions of restorative justice provides the best opportunity for constructive engagement with the Report. It deals with the foundational issues that apply to the process of accountability.

The Government’s Concept of Accountability and Justice

On accountability the Government stated that it would be guided by the philosophy of restorative justice. The Government clarified its position on accountability in its exchange with the UNSG which is contained in the Annexes to the Panel’s report. It defined accountability as a combination of two processes: (a) Individual accountability

and criminal liability for wrong actions and (b) political responsibility for the processes which led to the breakdown of the ceasefire and the sequence of events up to the end of the military operation. On individual accountability the Government said it would draw on the experience of the South African Truth Commission which applied the process of restorative justice directed at reconciliation, for political responsibility it cited the example of the UK Chilcot inquiry on the involvement in Iraq. In defining political responsibility the Government includes the state’s responsibility to protect its citizens. It includes the State’s responsibility for the citizens in the Vanni under the LTTE’s (Liberation Tigers of the Tamil Eelam) unlawful regime. Hence, the relevance of CFA and its lessons. The Lessons Learnt and Reconciliation Commission (LLRC)  was to examine how the Government of Sri Lanka exercised this responsibility (during the period under review) and how the political processes and actions of all involved in what was termed the “peace process” in Sri Lanka culminated in the military operation against the LTTE and what followed.

None of the statements issued by the Government contain a detailed exposition of the concept of restorative justice and its principles and their application to the post conflict situation. However, there are various observations that the Government makes on different issues that help us to identify some of the main elements of the process the Government has in mind. At one point, the Government affirms “that the work of the LLRC has to uncover the complete truth.” Therefore knowledge of the truth becomes the foundation of restorative justice and reconciliation. But in restorative justice the truth is important not for the punishment of offenders but for the acknowledgement of wrongs by the offenders and the full expression of “contrition” for the wrongs done. The term used in the Government statement is “contrition.” Contrition becomes the next step in restorative justice. While the uncovering of the truth “requires a focus on the past,” (again the words in the statement) the past once uncovered and expiated through a process of genuine contrition “must be relegated to history” through forgiveness. Contrition is followed by forgiveness and reparation. All communities who have been responsible for this past must participate in the process. Punitive or retributive justice is shaped and modulated by the application of the principles of restorative justice through such measures as rehabilitation and moral regeneration, “restrictive sentencing and non-custodial sentences.” This would be the process of restorative justice applied to individual accountability. Uncovering the truth in terms  political responsibility would imply all parties acknowledging their share of the responsibility for what happened, learning from the lessons of the past and moving forward to a durable process of peace and reconciliation.

The Panel’s Concept of Accountability and Justice

In responding to the Government’s concept of restorative justice, the Panel draws on the concept of “transitional justice.” It agrees with the Government that processes of justice should be aimed at breaking the cycle of violence but stresses that accountability should ensure a process of accountability for past crimes. It also grants that the South African Truth Commission “did not lead to prosecutions” but states that the process of truth, of public acknowledgment of wrong actions which was its unique feature was not emulated in the Sri Lankan case. Referring to the more recent International Criminal Tribunal for the former Yugoslavia (ICTY), it also argues that the “global legal landscape has changed and that amnesties for certain crimes are no longer permissible”. The Panel therefore insists on a process of accountability which identifies those who committed crimes and ensures that they are brought to trial and duly punished. The concept of contrition and forgiveness which is a religious and moral principle different from a legal amnesty or pardon has no part in the system of accountability upheld by the Panel.

The Panel makes pointed reference to the accountability of the Government for the events in the last stages of the war and states that the process of accountability set in motion by the Government makes no mention of the accountability of the Government. To this charge, the Government, of course, has consistently given the answer that the Government andSLA(Sri Lanka Army) were not guilty of any criminal acts. This would also be the answer of the Government to the Panel’s observation thatSri Lankadid not emulate the South African example. Given the Government’s position, public acknowledgement and expiation of war crimes on the part of the Government andSLAdid not arise. Uncovering the truth about all that happened and the acknowledgment of the tragedies that occurred and the expression of collective grief had to take other forms.

The Differences in Approach

The approaches taken by both the GOSL (Government of Sri Lanka) and the Panel agree on the need for uncovering the truth about the past but from thereon the differences in approach are of a fundamental nature and affect even the approach to the truth itself. The Panel’s approach is straightforward; it is that of the secular law giver who must uphold the process of accountability in society by identifying the offender, establishing guilt and meting out punishment with a due  sense of proportionality. It has to arrive at a single version of the truth. To the GOSL the process of accusation conviction and punishment is inadequate for dealing with accountability for any of the actions taken. It seeks guidance from the religious teacher and the moral philosopher for a more holistic approach which is directed primarily at a process of human restoration at a deeper level that would include both the individual and the larger society. The truth itself has to be approached with humility as humans have many versions of the truth. The Government’s main focus is a durable process of reconciliation in which there is forgiveness and a conscious relegation of the past to a chapter of history that is closed, a process of forgiveness and closure in which the

Government states all communities must participate. Although the Government has not elaborated on the moral and spiritual foundations of restorative justice it mentions in passing that the process of restorative justice draws on the country’s spiritual heritage. Here it could draw on the core values which are shared by all four major religions which have co-existed peacefully in the midst of a fierce ethnic conflict. This again is a special feature of the Sri Lankan situation in which the Buddhist ethos of tolerance has played a decisive role. While the relative worth and practicality of these two approaches could be a subject of interminable debate, the greater wisdom and sustainability of justice in the more holistic approach adopted by the Government is undeniable. However, the Government would need to demonstrate the practice of restorative justice and how it is concretely manifested in all its aspects.

Two excerpts from an article by a Buddhist scholar on Healing Justice the Buddhist Perspective (David Loy) are relevant for our understanding of the concept of restorative justice.

The Buddhist approach to punishment, like any other approach, cannot really be separated from its understanding of human psychology and its vision of human possibility. This suggests that criminal justice is not solely a secular issue, for questions of fairness and justice cannot be completely separated from the religious perspectives they historically derive from: for the vast majority of humankind, crime, punishment and reform are still inextricably bound up with religious views about sin, judgment and forgiveness. Justice is one of those ultimate issues that bridge whatever distinction we try to make between sacred and secular, and our criminal justice system will always be subordinate to our larger version of how people should relate to each other. The goals of a legal proceeding in the Tibetan Buddhist judicial system was to calm the minds and relieve the anger of the disputants and then – through catharsis, expiation, restitution, and appeasement – to rebalance the natural order…. A primary purpose of trial procedure was to uncover the mental states if possible, and punishment was understood in terms of its effect upon the mind of the defendant” (A quotation from Rebecca Redwood French – The Golden Yoke: The Legal Cosmology of Buddhist Tibet)

 

The Panel’s conclusions about the Government’s process of accountability

The entire tenor of the Panel’s criticism is based on the premise that the Government’s process of accountability is deficient because it does not include investigations of allegations of war crimes committed by the Government. The Government’s answer as stated earlier is that such an approach to accountability for the last stages of the war is wholly unwarranted. In response to the Panel’s criticism that the LLRC has no mandate to investigate war crimes, the Government states that the LLRC is mandated to uncover the complete truth on the entire sequence of events up to May 19^thincluding the period when the SLA is alleged to have committed war crimes and it is empowered to investigate any allegation of war crimes that is made to it in the course of its inquiry. The difference between the approach of the Government and that of the Panel is that the Government does not inquire into what happened in the last stages of the war within an accusatory framework that holds the threat of prosecution and punishment. It does not do so because it considers such an approach both inappropriate and unwarranted on the information that is already available to it regarding the discipline maintained by the Army and the actions taken in the extreme conditions faced in the battlefield.  However, the Panel refuses to deal with the position as stated by the Government. On the

assessment of the Panel, the main deficiency of the LLRC is that it is not the investigative body that the Panel would like to have. Here, there is no meeting ground for the Government and the Panel. Although the Government has not expressly stated it, the work of the LLRC in uncovering the complete truth will describe what happened in the battlefield and hopefully will answer the misdirected judgments made by the Panel and human rights activists.

The Panel makes a series of criticisms on the way that the LLRC has functioned up to date. It admits that it did not have the opportunity of meeting with the LLRC and acquainting itself with the work directly. The Panel’s observations are based on what it has gathered from various second hand sources and the LLRC website. The Panel raised several questions regarding the LLRC to which the Government provided detailed answers which apparently the Panel decided were not adequate and has proceeded to make its critical observations on the same issues – the procedures for truth seeking, witness protection, lack of a victim centred approach. It admits that it “ was not able to discern fully the overall methodology” of the LLRC but goes on to state its conclusions on the partial information it had gathered and makes statements such as “the Panel has received reports suggesting manipulation of witnesses.” “the Panel is unable to conclude that sufficient practical measures are in place etc…” all indicating that they did not have adequate information on the working of the LLRC. The criticisms the Panel makes are however followed by concluding comments which are inconsistent with the main thrust of the Panel’s assessment. “The LLRC offers a potential useful opportunity for the beginning of a national dialogue regarding the final stages of the war” “Because the Panel has not yet concluded, it is not possible to make a comprehensive and final assessment.” Despite the reservations expressed in the last comment, the Panel has pre-judged the outcome by extensively criticizing the work in progress for its quality and effectiveness. The Panel’s inability to obtain adequate information is of course understandable as the LLRC had no contact at all with the Panel. In the circumstances it is difficult to understand how a responsible group such as the Panel could have taken on itself to list these shortcomings when it was not able to have a full discussion with the LLRC on all the relevant issues. It is tantamount to one judicial body commenting on how another judicial body is conducting a case while hearings are in progress.

The comments the Panel makes on the independence and impartiality of the LLRC have to be considered in the light of their admittedly incomplete knowledge of the Commission. The members of the LLRC have admittedly the knowledge, expertise and first hand experience to deal with the matters which come under the mandate of the Commission. The involvement some of them have had with Government as public officials during the period reviewed could be an advantage taken together with the fact that these are officials who have won high regard for their professional integrity. The representation in the Panel is also diverse enough to provide the checks and balances that are needed for an impartial outcome. It is ironic that this charge is made by a Panel against whom serious charges of conflict of interests are bought. To say the least, the Panel’s assessment of the LLRC stands out as a regrettable violation of professional norms. It appears to have the explicit intention of detracting from the Commission’s standing and undermining the domestic process of accountability whichSri Lankahad set in motion.

Measures for Advancing Accountability: The Domestic Justice System and further Obstacles

The Panel’s survey of the justice system and measures to strengthen the domestic process of accountability is useful as a framework for addressing shortfalls and making the necessary improvements. It should be noted however, that the Panel’s review does not contain anything new. It reiterates the critical assessments and the recommendations that have been made in various other reports of civil society organizations and human rights activists. The ongoing policies and programmes of Government are also addressing most of these issues. The problems relating to detainees and their access to remedies have been raised by human rights lawyers and organizations over a long period of time and Government has repeatedly referred to the problems which result in prolonged detention. The defeat of the LTTE has now created

conditions that would be conducive for speedier disposal of these cases. In presenting its account, the Panel does not examine some of the causes that have resulted in the pervasive derogation of human rights inSri Lanka– the activities of the LTTE during the last 25 years and its impact on governance. Had it done so, its critique and its recommendations for correcting the shortfalls would have found greater acceptance and the urgency of making the corrections in the post war context more compelling. The LLRC would need to give close attention to this section of the Panel’s report as the full restoration of civil and political rights and a sound system of justice which protects them would be the bedrock of the process of reconciliation.

In the section on further obstacles to accountability the Panel has a brief section on triumphalism. To begin with, given the nature of the mandate, the Panel would have been advised to avoid pronouncing on matters outside its purview and on which it was not in position to inform itself fully. It was to be expected that the defeat of the LTTE would become a cause of celebration for the average citizen who had suffered for thirty long years from its acts of terrorism. The spontaneity of human responses in situations of this kind is inevitable. The American response to the killing of Osama Bin Laden is an example. It was also to be expected that the achievement of the army and its dedication to its task would be duly appreciated by the Government and the people. What the Panel fails to mention is that all these celebrations were peaceful and free of incidents. The danger of ‘triumphalism’ and its impact on the process of reconciliation was repeatedly pointed out by religious leaders and citizens alike and the initial outburst of jubilation settled down in time. The Panel also appears to be ignorant of the concern the Government and people ofSri Lankahave demonstrated regarding the human cost of the war. The complacency of the Panel, its stubborn conviction that its own version of events is the correct one and the journalistic fervour with which it is communicated is undignified and has no place in a responsible document. What the Panel has apparently not realised is that a report written in a manner calculated to antagonise and offend the Government as well as the people of Sri Lanka would serve no constructive purpose. The UNSG himself should have taken note of the gratuitous nature of the remarks that his advisory Panel thought fit to address to a member state and advised them to expunge them.

Section C makes recommendations in regard to “exclusionary policies based on ethnicity” and “continuation of war time measures.” What would be probably of concern and cause consternation to  the Government is that the Panel gives no hint that these are already high on the Government agenda and action is being taken. These may be too slow for the Panel’s liking but their comments should have been formulated to reflect that view.

The Panel’s account of media restrictions refers to the grave human rights violations that have taken place which include killings, disappearances and intimidation. The Panel states that remedial measures need to be taken to guarantee press freedom and safety of journalists. The need for these fundamental conditions is beyond dispute.

The section on the Diaspora makes some important recommendations. It points out that the Diaspora gave vital material and moral support to the LTTE. It says that they remained silent on LTTE “holding tens of thousand of Tamils hostage in the Vanni” and that they protested in support of the LTTE in the last stages. It does not discuss the implications of those actions for accountability under war crimes. The Panel also does not discuss the accountability of the host countries for their role in enabling the Diaspora to act in this manner. The Panel’s recommendations that are worth pursuing are those relating to the front organisations and businesses of the LTTE which are continuing and the confiscation of the LTTE funds available abroad for the use in making reparations to the victims.

The Recommendations of the Panel

In part A of its first recommendation, the Panel recommends that the Government should initiate an effective domestic accountability process to investigate into the alleged violations. It is unlikely that the Government would pay any attention to this recommendation in view of its stand that an investigation of this nature is not warranted and the present process of restorative justice is better suited to deal with all issues of accountability than the approach recommended by the Panel.

In part B it recommends that the UNSG proceed immediately to establish an international mechanism which should monitor the domestic process and conduct independent investigations into alleged violations. First, the arrangement suggested by the Panel of concurrent independent investigations shows little knowledge of what is administratively feasible; it is unprecedented in the UN system and totally impractical. Second, the UNSC cannot “immediately” establish an international mechanism. He simply does not have the authority to do so. The Panel which is the expert body on these issues should have know better than to recommend a mechanism which was not a modality that could be adopted under the UN system. The manner in which it has made this recommendation seriously calls to question its commitment to perform its task adequately.

Recommendation 2: deals with other immediate measures to advance accountability. Most of these are based on its survey of the justice system. These all form part of the Government agenda for restorative justice, peace and reconciliation.

Recommendation 3 part A calls for initiating a process to inquire into root causes of the conflict. It is not clear what the Panel means by “root causes.” The Panel also does not seem to take into account the vast body of scholarly and analytical work done on the ethnic conflict as well as the documentation that is available from the political processes such as the All Party Conferences and negotiating processes. The process of searching for an acceptable political solution necessarily draws on all this knowledge. One task of the LLRC is to make available to itself a distillation of this knowledge in making its recommendations for dealing with Tamil grievances. The use of the term “root causes” which has become a catch phrase can be also misleading when dealing with the dynamics of the ethnic conflict. We need to take account of its changing character as it moved into the 1970s and the 1980s when a new generation took up the cause and the conflict sprung new roots in foreign countries with their support that enabled the LTTE to grow into a major terrorist organisation.

Recommendation B which recommends a formal acknowledgment by the Government of its role in and responsibility for extensive civilian casualties in the final stages of the conflict is based on the Panel’s conclusions regarding the Government’s culpability. For reasons which have been discussed elsewhere it is a meaningless recommendation in the form in which it is made. The concluding section of this paper discusses how Government might face the truth of the final stages of the war.

The recommendation 4 says that the UNHRC should be invited to reconsider the May 2009 resolution. This is not a modality which the UNSG can adopt and the recommendation is out of place. The Panel gives the impression that it is seeking ways and means of pressing the UN system to take action against the Sri Lankan Government.

The recommendation regarding the actions of the UN system is important. If action is pursued on their recommendation it would reveal the dilemmas the UN bureaucracy faces when it works with a terrorist organization and has to watch and acquiesce in all their violations of human rights. A searching analysis of the conduct of the UN personnel is also an essential corollary to the analysis the Panel makes of Government’s action in dealing with UN personnel and the Government’s resolve to keep full national control of developments in the last stages of the war and its aftermath when dealing with the IDPs. The UN may have to design new codes of conduct for UN personnel in these situations.

All these issues point to an overriding concern that the Panel may have done well to discuss and inform the UNSG. The UN system is not immune to manipulation, neither are governments. In a complex national crisis such as the one faced bySri Lanka, it is important that the UNSG also institute mechanisms to examine the integrity of the UN operations, failures and manipulations. Member nations may and should institute action to verify UN activities that have grown bureaucracies whose accountability cannot be easily verified in real time. The UN operations have to be subject to the same standards that member countries may subject their own judiciaries, police departments, etc., in the face of collusion and criminality, media involvement and large scale non-competitive finance.

It should be noted that apart from the recommendation regarding the UN all three recommendations deal with Government. There is nothing mentioned regarding the process of accountability for the crimes committed by the LTTE leadership as all of them are dead. Nevertheless a full process of investigation into these crimes from all existing sources and a full documentation of these crimes would be essential to define the context in which the Government actions were taken and to complete the account of the final stages of the war. It would be useful for determining the process of reparation to their victims. The victim centred approach the Panel recommends will be meaningless if it neglects the large number of victims of LTTE crimes. In the Panel’s almost frenzied effort to focus on the Government’s accountability, it forgets the victims of the LTTE.

The Panel makes no specific recommendation to advance the process of accountability in respect of the remnants of the LTTE organization abroad, the Diaspora and the host countries which contain the Diaspora. In the conclusions the Panel suggests some courses of action against the LTTE front organizations and the Diaspora such as the confiscation of funds. Some developed countries are investigating into crimes committed by the LTTE and taking action. The Panel could have taken all these into consideration and proposed an appropriate framework of accountability that will deal with all the relevant actions and omissions on the part of these external agents who had a crucial role to play in the conflict.

Conclusions

(i)                 The  Main Deficiencies in the Panel’s Report

A wise judge knows that in the imperfect domain of human knowledge there are many versions of the truth and steers himself conscientiously though these versions, seeking the truth. The outcome of the Panel’s report falls far short of such wisdom.

The conditions in which the Panel was constrained to work and its inability to gain access to vital sources of information render the report practically worthless as an account of the final stages of the war. If this is all that has to be said we might lay aside the report as a harmless exercise but this is certainly not the case. The Panel has to be faulted for very serious deficiencies in the report that could have fallout of a very negative character for the process of accountability both at the global as well as the local level. Had the Panel kept steadily in view that they were missing the information from the Government side and had they examined the full implications of this lacuna they could have produced a credible report. Had the Panel done so, they would have had to produce a different report. The tone of their report would have reflected both the humility and the professional integrity that it lacks in its present form. What we would have is a statement to the effect that the Panel has been able to gather a great deal of information from sources other than the Government concerning allegations of war crimes of both the Government and the LTTE which have not been verified and that they have not been able to get the Government version which is vitally important for their task. They would have then had to list the allegations in a neutral objective tone and would have not written the dramatic account of what they thought had actually happened. They would have then proceeded to advise the UNSG regarding the international law applicable and recommended that the UNSG should use his good offices to induce the Government to provide a full version of the last stages of the war and strengthen the domestic process of accountability. This of course was far from what was expected from the Panel by the constituencies which pressurised for the appointment of the Panel after their effort in the UNHRC in May 2009 was thwarted.

What has been stated above is a somewhat lenient verdict on the Report. The verdict would be sterner when we list the flaws in more specific terms. There is a selective approach to the gathering of the information with exclusions and omissions which give a blatantly tendentious character to the Report. The Panel has set out to prepare a prosecutor’s brief. Even the evidence before them is analysed with an open and impartial mind. For example, the Panel had enough information on the LTTE’s activities in the No Fire Zone (NFZ) which it chooses to ignore when it concludes that theSLAwas deliberatively targeting civilians and hospitals. Some parts of the Report reveal a curious pettiness of spirit as when they describe the assistance given by soldiers using the term “ individual soldiers” so as to take care not to associate the humanitarian approach with the Army as a whole because the soldiers’ actions were not consistent with their interpretation. The root of the problems in the Report lies in their outrageous interpretation of the Government’s military strategy as designed at the extermination of Tamils without any humanitarian intention or effort at rescuing hostages. With this interpretation the Panel puts on the blinkers that distort all their perceptions of the Government’s actions. The Report also gives a deliberately truncated view of the Government’s action of excluding what would have provided a different and more positive explanation of these actions. This deficiency is seen in every part of the report that deals with Government’s actions.

The Panel’s application of international law to Government’s actions is based on its faulty interpretation of the character and nature of the war as well as the Government’s strategy and actions. For the Panel, the war inSri Lankawas like any other armed conflict. The Panel does not ask how a war on a terrorist organisation is different from any other armed conflict and what that distinction signifies to the assessment of intentionality and proportionality of Government actions. It does not ask how a government would or must respond to a hostage situation. It does not make any distinction between the army of a democratic state carrying out a legitimate military operation and a terrorist organization whose strategy has been one of terrorism which included massacres of rival Tamil groups, assassination of leaders, conscription of children, suicide cadres and missions as a regular part of their operations and finally using civilians as human shields and hostages.

Given the Panel’s interpretation, the Panel positions itself comfortably on what it describes as “the existing law.” It avoids examining the implications that the war on terror has on the existing law. It has not taken the trouble to refer to the available body of scholarly work and practical knowledge relating to the war on terror. The comparable international experience it cites has little in common with the Sri Lankan case to provide any guidance for the process of accountability. Consequently the Panel’s painstaking work on the application of international law to war crimes in armed conflicts of a conventional nature have little relevance or value in the Sri Lankan context. The Panel has shown no capacity to frame the more challenging issues arising out of the unique conditions of the Sri Lankan case. By shutting itself within the framework they have selected, the Panel is unable to make any worthwhile contribution to advancing the process of accountability that takes into account the extreme conditions generated in a war on terrorism. The Panel’s final output is for that reason sadly disappointing.

The Panel dismisses the Government’s policy of restorative justice without a full understanding of its conceptual underpinnings and its moral and spiritual foundations. It opts for the secular process of accountability which is essentially based on the principles of punitive justice. It rejects the deeper effort of restorative justice at uncovering truth for the purpose of contrition, forgiveness, reparation and reconciliation. It misses altogether the greater capacity of the restorative approach to heal past wounds, bring a closure to the past and promote a genuine process of reconciliation and peaceful co-existence. While granting that the processes of dealing with the truth will not be the same for all countries and there is no single template for all situations, it invokes the template of the ICTY as though it is final and unquestionable. There is no awareness that international humanitarian law like any other law is a dynamic process responding creatively and imaginatively to changing human conditions and that “man is not made for the law but the law is made for man”

The Panel’s recommendations, judged from the criterion of what they do to advance the process of accountability produce little of substantive value. Its main recommendation on the appointment of an international mechanism by the UNSG cannot be implemented by the UNSG. Its recommendation for a separate mechanism for domestic accountability again is based on the premise that the Government and the Sri Lankan Army must face charges of war crimes based on its interpretation of the Government’s strategy and the events during the last stages of the war. The Government had already made it clear that the mandate of the LLRC while it is framed within a policy of restorative justice which allows for investigation of individual violations does not begin on an accusatory basis for the purpose of prosecution and punishments. In this context, the Panel’s recommendation is not likely to serve any constructive purpose. What is missing in the Panel’s recommendation is any set of specific recommendations for the follow–up on LTTE crimes and residual organisation abroad, the accountability of the Diaspora and the responsibility of the developed countries.  Again this is characteristic of the bias that flaws the entire report.

The eleventh chapter of the Mahabharata, Sthreeparva, depicts women, led by Gandhari, mother of the evil Kauravas, mourning those who died in the battle of Kurukshetra. Husband, brother, son, uncle, lover, demon lover – the identity of the lost one varies for the women who lament. One woman’s pain is as searing, the void scooped out in her life as raw, as the next one’s, regardless of whether the man she cries over fought on the ‘good’ side or the ‘bad’ side. Some tragic facets of the human condition are common, regardless of which side you are on. This simple fact is lost on those who are distraught at Prime Minister Manmohan Singh’s empathy with the plight of the relatives of terror suspects rounded up by the police. Dr Manmohan Singh’s humanitarian mettle is not the point. The point, rather, is that underlining protection of what is humane as the central objective of the war on terror is integral to its success. Revenge is not, should not be, the goal of any modern criminal justice system. K.N. Arun, Economic Times ofIndia

The Panel in many parts of its report adopts a tone towards the Sri Lankan Government which is unseemly for a Panel assigned a task by the UNSG. It comments on triumphalism, its recommendations for a public acknowledgment by the Government are characteristic of this tone. It is these emotive eruptions found in several parts of the Report that confirm the impression that the Panel is driven by a personnel animus and “righteous indignation” against the Government while these have their place in the category of advocacy documents of the human rights activists, in the case of the Panel, they have seriously inhibited the full impartial gathering of information and disinterested adjudication.

Although assessed on its substantive worth the Panel’s Report has little to contribute to the process of accountability at the global or domestic level, the publicity and accolades it has received from the like minded and the way it is being used for advocacy purposes by certain groups particularly the pro-LTTE groups, demand serious attention. Action has therefore to be taken at all levels, domestic, regional and global, to counter its pernicious fall out. In this context, the UNSG could revisit the Panel’s report and, in consultation with the Sri Lankan Government and the Panel, respond constructively to the issues raised regarding it major deficiencies. The UNSG could take into account the constraints within which the Panel worked and the circumstances in which it was denied access to vital sources of information and on the basis of such a reappraisal withdraw the report from the public domain by retaining it for his personal reference as he may consider fit.

(ii)               Accountability in terms of the Government’s military strategy

“of course we have to close the books. But the books have to be opened before they can be closed for the last time”

-Archbishop Tutu in a televised address on the South African Truth and Reconciliation Commission.

When all this has been stated about the Panel’s report it should be noted that laying aside the Panel’s report and its story of what happened is certainly not the end of the story. The commitment of the Government, as stated in its explanations of the mandate of the LLRC, is for uncovering the complete truth through a process of restorative justice. The Panel’s report and the allegations that have been made may be seriously detrimental to the process of reconciliation. If they are not examined and dealt with appropriately, a hardcore of wrongs not atoned for and a deep rooted sense of grievance on the part of the victims of the final stages of the war would remain to undermine the process of reconciliation and undo what has been achieved by the defeat of the a LTTE.

The Panel report begins with the dramatic statement that “the war inSri Lankaended tragically.” It goes on to say that there was relief that the LTTE ‘renowned’ (unfortunate choice of word! probably Freudian slip) for its brutality was defeated but “many people were deeply disturbed about the means that were used by the Sri Lankan Army to achieve the victory” These sentences encapsulate the tragedy as perceived by the Panel and would have been a good starting point to explore the nature of the tragedy that occurred in the Sri Lankan situation. Regrettably, the Panel goes on a different track without keeping at the centre of its attention the LTTE brutality and the way in which it shaped the means that were used to end it. The Panel uses the word tragic in its clichéd sense to evoke the sense of a great calamity, but the end of the war was also tragic in the deeper sense of the term – tragic for the impossible dilemmas that were created, the inevitable choices that had to be taken and for the human cost it involved. The Government has inconsistently denied that any war crimes were committed by the Government or the Sri Lankan Army and have not responded to the specific allegation that have been made. They have stated that the process of accountability and restorative justice is adequate to deal with all the issues pertaining to the final stages of the war including the allegations that have been made.

This would mean that the Government expects the final report of the LLRC to provide an adequate response to the concerns that have been expressed by a section of the international community regarding the actions taken in the final stages of the war.

When we discard the interpretation of the Government military strategy as given by the Panel we are still left with unresolved issues of a critical nature. When we start on the premise that the main objective of the Government’s military operation was the ending of the terrorism and brutality of the LTTE regime and freeing the civilians, we still have to define the issues of accountability within this framework. After the initial phase of the operation the actions of the LTTE in using the civilians as shield and hostage placed new demands on the Government and the Army. How did the Government meet this challenge? Could the civilians have been separated from the LTTE before they were compelled to move into the narrow coastal zone? The search for the truth about the hostage situation would have to go further. Analysts of the situation have pointed out that the civilian population consisted of a hardcore of about 15 – 20% who were strong supporters of the LTTE and that the expectation that the foreign countries might intervene encouraged the LTTE to adopt the hostage strategy.  Could the impossible situation that arose in the coastal area have been averted? Could the international community have been more active at this point and provided strong material and moral support to the Sri Lankan Government to rescue the civilians? Examining these and similar issues would mean a critical evaluation of the operation and eliciting the lessons to be learnt from it.

Finally, however, the final stages of the war in Puthukuddiyiruppu and the NFZs have to be examined independent of all what went before. The LTTE had deliberately integrated the civilian population into their military effort and turned the NFZs to battlefields. By the mass conscription of civilians for military activity in the NFZ the building of fortifications with civilian conscripts and the use of all means available for military purposes, the LTTE had effectively blurred the distinction between civilians and combatants. How is intentionality and proportionality of army actions to be judged in such a situation? The LTTE was refusing to surrender. It was becoming clear that the defeat of the LTTE and the rescue of the hostages would entail heavy human cost – deaths of the LTTE combatants, conscripted civilians, soldiers and non-combatant civilians. At this point the Army after weighting the options available and their likely consequences had apparently decided that it could not halt the offensive and had to go ahead and put a speedy end to the resistance of the LTTE. It has to be noted that Government would have had to take into account that the LTTE in their desperation might resort to acts of the utmost brutality that might involve deaths of civilians on a massive scale.

We are then left with the human cost of the operation as it took place. The final estimate of civilian deaths would have to await the estimate of persons dead or missing as given by the IDPs. This is a task that should be high on the agenda of the LLRC.  But until such an estimate is available we have to rely on the well considered estimates that are available which place all deaths including those caused by the LTTE from 8^th August up to 13^th May at round seven thousand seven hundred and all deaths from 13^th to the 16^th May when the civilians finally escaped, at about thousand a day. More reliable estimates could be constructed by gathering information from the surviving families and making a thorough search for the remains of the dead.

The Government has not given an estimate of all deaths in the last stages of the war. An estimate of zero civilian casualties is meaningless in the face of incontrovertible evidence that there were a large number of deaths, unless it is argued that all those who died were combatants by virtue of the fact that they were conscripted for military work and resisted the advance of the army. These questions point to the indefinable plight of the helpless civilians caught in the battlefield and the humanitarian issues that are involved. The truth about the deaths of civilians is therefore vital to the process of reconciliation regardless of all other issues of accountability.

It is within the conditions that have been described above that the issues of accountability as well as restorative justice may have to be framed and conclusions drawn. In that process the deaths of civilians and their plight in the battlefield have to be at the centre.

Courtesy  LST REVIEW – edited by Kishali Pinto-Jayawardena

‘The Review also contains excerpts of the report by the Panel of
Experts appointed by the United Nations Secretary General to look into
the accountability question in Sri Lanka.’

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