Executive Summary of the TNA’s analytical response to LLRC report



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As the elected representatives of the worst affected victims of the war, the Tamil National Alliance (TNA) has consistently maintained that genuine reconciliation in Sri Lanka is contingent on a credible accountability process that ensures the right of victims to truth, justice and reparations. On 15th May 2010, the President appointed the Lessons Learnt and Reconciliation Commission (LLRC) and held out to the world that this Commission would address accountability issues.


ii. The LLRC’s processes and practices have failed to win the confidence of the Tamil community. The Commission also- falls dramatically short of international standards applicable to accountability processes.


iii. The ethnic and gender imbalance in the membership, the conflicts of interest and patent lack of independence of the members, the general lack of competence-of the majority of members in International Humanitarian Law (IHL) and International Human Rights Law, and the absence of any consultation whatsoever with the victims’ representatives and the larger Tamil community with regard to its mandate, processes and practices, call the independence and competence of the LLRC into serious doubt.


iv. Moreover, the LLRC’s methodology assigned relatively lower importance to victims’ perspectives. The LLRC was also under-resourced and understaffed for the task of pursuing genuine accountability for violations during the last stages of the war. For instance, the time the Commission spent gathering evidence in the North and East, relative to the time spent in Colombo, was woefully inadequate. The Commission spent a mere twenty-two days in the North and East in total, compared to the fifty-six days spent on hearings in Colombo. The Commission often cited the lack of time as the reason for cutting short the testimony of witnesses. In many cases, prospective witnesses were never: given the opportunity to testify and were requested to merely send in their concerns to the Commission in writing.


v. The LLRC did not have an effective witness protection programme. To make matters worse, the attitude of the members towards witness protection – reflected in the lack of concern when witnesses complained of threats, and in the failure to ensure confidentiality of in camera statements after the LLRC concluded its work – continues to severely undermine the safety of witnesses in tangible ways. For instance, one witness from Kalmunai, who complained of being tortured and sexually assaulted, was later summoned to the Fourth Floor of the Criminal Investigation Department. This incident confirmed that the government monitored the LLRC’s proceedings and that the anonymity of witnesses was easily compromised. The climate of hostility prevailing in Sri Lanka towards those who accuse the government of war crimes renders any accountability mechanism futile unless witnesses and victims are convinced that testimony implicating senior government functionaries in crimes will not be met with reprisals. Moreover, the failure to seek video testimony of witnesses now living overseas deprived the LLRC of the testimony of those who are relatively free of potential reprisals.


vi. The LLRC’s interim recommendations, issued more than a year ago, are yet to be meaningfully implemented. The Progress Report released by the Inter-Agency Advisory Committee appointed to ensure such implementation reveals nothing but the lack of genuine progress. The failure of the government to implement these modest interim recommendations signals, if not confirms, the government’s lack of commitment to implement the Commission’s final recommendations.


vii. The final report of the LLRC was released through Parliament on 16th December 2011, and purports to deal with a number of issues including those related to IHL. Yet the LLRC disregards credible allegations made against the government with respect to violations of IHL amounting to war crimes and crimes against humanity. These allegations include deliberately underestimating civilian numbers in the Vann] in order to deprive them of food and medicine; deliberately or recklessly endangering the lives of civilians in No Fire Zones (NFZs); targeting civilian objects including hospitals; and executing or causing the disappearance of surrendees.


viii. The LLRC’s approach and methodology in dealing with the above allegations is flawed due to two main reasons: (1) the selective application of evidence, and (2) the failure to apply the law to the facts.


ix. The Commission extensively cites the evidence of government doctors who worked in hospitals within the theatre of conflict without any reference to the context within which these doctors provided testimony to the LLRC (i.e. the fact that they were taken into custody, after which they publicly recanted their earlier statements on the situation during the final stages of the war). Thus, the credibility of the evidence provided to the LLRC by these doctors was heavily compromised. The Commission failed to call for crucial evidence in terms of Unmanned Aerial Vehicle (UAV) footage, videos of aerial attacks and military logs – particularly since military witnesses acknowledged that every attack was videotaped and received the official sanction of the commanders. The LLRC also failed to consider the significance of population estimates provided by the then Government Agent for Mullaitivu, or consider the authenticity of a letter sent by the Commissioner General of Essential Services to the Government Agents in the Vanni dissecting them to refrain from requesting international agencies for food. Crucially, the Commission failed to consider the fact that the Ministry of Defence had issued statements in mid-February 2009 grossly underestimating the Vanni population. Such vital evidence points towards a systematic attempt on the part of the government to prevent food from reaching the starving population of the Vanni, and thus ought to have been closely examined by the LLRC.


X. The LLRC also fails to correctly apply the law to the facts. It neglects to examine the possibilities of violations of IHL and domestic law that are credibly alleged to have been committed.


xi. The Commission erroneously concludes that the definitions of ‘civilian’ and ‘civilian population’ in IHL are unclear. First, the LLRC ought to have elaborated upon the definition of direct or continuous participation in hostilities and its implication on the Principle of Distinction in order to ascertain the proper definition of ‘civilian’ in IHL.


The law is clear that whoever does not fulfil the criteria of direct’ participation in hostilities is a ‘civilian’ and cannot be targeted. Instead of dealing with the law, the LLRC seeks to divert attention to the ‘unprecedented’ nature of the Sri Lankan experience. Yet the Commission does not justify why the criteria that have been adopted to define the concept of ‘direct participation in hostilities’ are not applicable to the Sri Lankan situation. Moreover, in defining the term ‘civilian population’, the Commission makes no attempt to apply the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has held that the absolute ban on attacks against civilians extends to a population that is ‘predominantly civilian’, and that ‘the presence within the civilian population of individuals who do not come within the definition of civilians [i.e. combatants] does not deprive the population of its civilian character.’


xii. The LLRC concludes that the government security forces did not deliberately target civilians within the NFZs. While there is credible evidence that the LTTE did in fact mingle with the civilians within the NFZs and prevented them from leaving, the only narrative that the LLRC accepts is that the security forces had no choice but to respond to LTTE attacks from within the NFZs. This analysis is flawed for a number of reasons.


xiii. First, it ignores established IHL principles with respect to the Principle of Distinction, which hold that an attack remains unlawful if it is conducted simultaneously at a lawful military object and an unlawfully targeted civilian population.


xiv. Second, the LLRC’s preferred narrative of ‘retaliation to LTTE attacks’ is an unreasonable generalisation that does not apply to numerous accounts by victims of the conflict, and particularly to the attack on the United Nations Hub at the Suthanthirapuram junction located inside the first NFZ.


xv. Third, the Commission wrongly concludes that the actions of the security forces complied with the Principle of Proportionality. The LLRC reaches its conclusion that the attacks were proportionate without actually applying the test of weighing anticipated military advantage against civilian loss. This test could not have been adequately performed without a reasonable estimate of civilian casualties and damage to civilian objects caused due to each attack. Moreover, the Commission does not examine in detail whether the security forces could have used alternatives to the use of heavy weapons in order to minimise civilian casualties, particularly in the case of the second and third NFZs, where the government’s own stated position was that heavy weaponry was unnecessary. The LLRC chooses to cite an obscure and irrelevant precedent set in 1990 by the International Centre for the Settlement of Investment Disputes (emphasis added) to conclude that a re-construction of all the conditions under which the combat action took place is next to impossible. Yet it failed to cite the jurisprudence of the ICTY, which has unequivocally held that commanders must consider whether striking a target is expected to cause incidental loss of life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Accordingly, the ICTY has held that if such casualties are expected to result, the attack should not be pursued.


xvi. Moreover, the LLRC fails to evaluate the implications of the unilateral declaration of the second and third NFZs. In light of the experience with respect to the first NFZ and the LTTE’s tactics of mingling with the civilian population, it could be easily inferred that the government, at the time of declaring the second and third zones, was well aware of the likelihood that civilians would be seriously exposed to harm. This inference gives credence to the allegation that the government deliberately or recklessly lured civilians into harm’s way by repeatedly declaring NFZs with the knowledge that such zones would be subsequently attacked due to the LTTE’s presence within them.


xvii. The LLRC’s overall analysis of the allegations against the government reveals a fatal contradiction. On the one hand, the LLRC unquestioningly accepts the narrative provided by the security forces – that they carefully and meticulously planned each attack and used sophisticated means to ascertain the precise location of civilians within the NFZs. The LLRC also accepts the position of the government that strict procedures were followed prior to each attack. Hence the military command was intimately aware of the nature and precise location of each and every target. On the other hand, the Commission concludes that the civilian deaths, which did in fact occur, were unintentional, and resulted from an unprecedented situation where no other choice was possible. It also concludes that decisions to return LTTE artillery fire were made in the heat and confusion of an armed conflict by field commanders in situ, and thus could not be second-guessed. This narrative of field commanders being left with no option but to return fire despite the presence of civilians in the area that was being subjected to counter-attack contradicts the LLRC’s position that attacks had been carried out within the NFZs only after careful planning and with possession of intimate knowledge of the precise whereabouts of civilians. Incidentally, it is also diametrically at odds with the internationally publicised position of the government during the last stages of the war, which was that the use of heavy weaponry was no longer necessary. If the location of civilians were known, then their deaths could not be simply dismissed as unintentional without further investigation. Hence the LLRC’s analysis is, at best, self-contradictory, and reflects its reluctance to genuinely examine the allegations against the government.


Continued tomorrow


 
 
 
 
 
 
 
 
 
 
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