Appointed by President Rajapaksa in May 2010, the LLRC has been the government’s primary means of deflecting pressure for an international investigation into credible allegations of grave violations of international humanitarian and human rights law by both government forces and fighters of the Liberation Tigers of Tamil Eelam (LTTE) in the final stages of the long civil war. The government has pledged that the commission’s report would fully address the international community’s demands for accountability, as President Rajapaksa promised UN Secretary-General Ban Ki-moon after the government’s declaration of victory over the LTTE in May 2009.
Despite the Sri Lankan government’s two and half years of propaganda that their brutal campaign against the LLTE was conducted with little or no damage to civilians, the evidence of shelling of civilians and mass deaths was too much for the commission to ignore. Breaking with years of government claims to the contrary, the LLRC has accepted that “considerable civilian casualties had in fact occurred during the final phase of the conflict” and “that shells had in fact fallen on hospitals causing damage and resulting in casualties”. It also recognised the “possible implication of the Security Forces for the resulting death or injury to civilians” but in only three incidents “brought to the attention of the Commission”. It calls on the government “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 wrongdoers”.
Yet the report works to exonerate the government and undermine its own limited calls for further inquiry – mostly by accepting at face value the largely unexamined claims of the senior government and military officials who planned and executed the war, and by rolling back well-established principles of international law. It “concludes”, for example, “that the military strategy that was adopted to secure the LTTE-held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority”; “that the Security Forces had not deliberately targeted the civilians in the [no-fire zones] NFZs”; and that their actions did not violate the principle of proportionality because they “were confronted with an unprecedented situation when no other choice was possible and all ‘feasible precautions’ that were practicable in the circumstances had been taken”. At the same time, it claims that it is unable to determine which side was responsible for many of the reported incidents and chooses, with little explanation, to blame most deaths on the LTTE and unexplained “cross-fire”.
The LLRC’s conclusions are untenable for several reasons. First, it is obvious throughout the report that it considered only the materials the government chose to place before it. There was no independent assessment of the full scope of information in the government’s possession – including all communications with the UN, ICRC and sources in the conflict zone, as well as other evidence from government and international sources, such as uncensored satellite images and footage from the military’s unmanned drones. Similarly, the record before the LLRC is inadequate to draw conclusions ruling out unlawful attacks when there are thousands of witnesses who did not come forward, partly because of the lack of witness protection, and when there is no indication that the LLRC had physical access to the final war zone where most of the civilian casualties occurred. Those areas have been off limits to everyone but the military since the end of hostilities.
An equally worrying deficiency in the LLRC’s conclusions is the fundamental misstatement or misapplication of principles of international law. This is most evident in its failure to present a fair exposition of the principle of distinction under international humanitarian law. Indeed, even though the LLRC claimed to have considered the April 2011 report of the UN Secretary-General’s panel of experts, it did not engage the panel’s legal or factual analysis in any meaningful way. Allowing the LLRC’s regressive statement of international law to stand could have consequences beyond Sri Lanka.
The LLRC’s exculpation of government and military leaders also depends on accepting without question testimony from Tamil government administrators and doctors who had served in the war zone. The report makes no mention of the fact that the doctors were detained under anti-terrorism laws at the end of the war and forced to recant publicly their earlier claims that thousands of civilians died from government shelling. To accept at face value their statements to a government-appointed body requires ignoring the evidence of physical attacks and threats to government critics that the LLRC discusses at length elsewhere in its report. Indeed, as predicted by many in advance of the LLRC’s hearings, numerous witnesses who testified to the commission about government violations have since been questioned and harassed by the military and the police.
In the most compelling sections of its report, the LLRC recognises what Crisis Group, human rights organisations and civil society activists have argued for years: that Sri Lanka is suffering from a crisis of institutionalised impunity for human rights violations by state forces and those working in collaboration with the state. Unfortunately, the commission makes no effort to apply these facts to its analysis of alleged violations of international humanitarian law or to analyse how they would likely distort much of the testimony it received.
The LLRC’s own accounts of large-scale civilian deaths, repeated shelling by the government of “no-fire zones” packed with civilians, attacks on medical centres, and disappearances and possible executions of captured combatants and civilians – actions long denied by the Sri Lankan government – demand an impartial and thorough investigation. The LLRC’s request that the government conduct a series of further, limited inquiries into some of these issues is far from an adequate response. The Sri Lankan government’s past three years of denial, dissimulation and intimidation of critics has proven it is neither willing nor able to carry out impartial and effective investigations.
The responsibility now falls on the international community to take up the task of ensuring post-war accountability, beginning with a formal discussion of the LLRC report and the UN Secretary-General’s panel report at the March 2012 session of the UN Human Rights Council, leading to an independent international mechanism to investigate all credible allegations and to monitor domestic efforts at accountability.
The Human Rights Council should also take note of the LLRC’s recommendations that the government investigate and hold to account those responsible for abductions, disappearances and attacks on journalists – including those committed by armed pro-government Tamil parties. These issues should be addressed on an urgent basis by the Sri Lankan government and its implementation of the commission’s recommendations should be monitored on an ongoing basis by the HRC. As the LLRC itself points out, such recommendations have been made many times by previous domestic commissions of inquiry and almost always ignored, as has been the case with most of the LLRC’s own interim recommendations. There is little chance that the LLRC’s final recommendations will fare any better, unless there is sustained international attention and pressure from the UN Secretary-General, the Human Rights Council, and influential governments, most importantly China, India, Japan, the United States, Canada, Britain, France and the European Union. Sri Lanka’s friends in the non-aligned movement, especially South Africa, Brazil, Indonesia and Mexico, have a particularly important role in reminding Sri Lanka of the importance of accountability and demilitarisation to lasting peace and reconciliation.
In other respects, too, there is much of value in the LLRC report that the international community should pay attention to and can learn from. This includes the commission’s criticisms of the overly centralised and militarised way in which the government is ruling the Tamil-majority northern province and the top-down, non-participatory approach to reconstruction and development of the former war zones. Also worth noting are the commission’s suggestions for better managing the sensitive issue of land and its support for the prompt and effective devolution of power to the north and east. Many of these issues have been covered in Crisis Group reports, including its most recent “Sri Lanka: Women’s Insecurity in the North and East”, released on 20 December 2011.
Without accepting the flaws of the LLRC’s approach to allegations of war crimes and of its analysis of the government’s conduct of the war, Sri Lanka’s international partners should nonetheless attempt to support the openings that the LLRC makes possible in public discussions about human rights and reconciliation within Sri Lanka. The inadequacies in the LLRC’s treatment of violations of international humanitarian and human rights law as well as its more useful and critical arguments about the need for serious reforms in how Sri Lanka is governed – all deserve additional analysis. Crisis Group will be pursuing this in a series of further commentaries in the coming weeks.