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



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Continued from yesterday


xviii. A similar criticism may be levelled at the LLRC with respect to its analysis of the allegation that the security forces deliberately targeted hospitals. While admitting that hospitals were in fact shelled, the Commission concludes that, due to the non—availability of primary evidence of a technical nature, it was not possible to reach a definitive conclusion that one party or the other was responsible for the shelling. This position is difficult to maintain given the purported precautions taken by the security forces to minimise civilian casualties. Evidence before the Commission revealed that the security forces had at their disposal ‘state of the art’ surveillance devices that enabled them to closely monitor the conflict zone, often in ‘real time’, in order to monitor the movements of the civilians with a view to avoiding civilian casualties. Yet the Commission failed to call for such surveillance footage or to recommend further investigations into the shelling of hospitals.


xix. The LLRC admits to over a thousand cases of alleged disappearances of persons after surrender to or arrest by security forces. Hence it recommends that a Special Commissioner of Investigation be appointed to investigate alleged disappearances and


provide material to the Attorney General to initiate criminal proceedings as appropriate. However, the LLRC makes it clear that, in its opinion, these disappearances are isolated incidents perpetrated by a few. The Commission comes to this conclusion despite specifically conceding its lack of capacity to conduct investigations. In fact, during public hearings in Puttalam, the Chairman of the LLRC refused to interpret its mandate ate as contemplating any investigative functions. Without even so much as acknowledging an investigative function, the LLRC still went on to conclusively determine that over a thousand incidents, many taking place in the space of just a few days between 17th and 20th May 2009, were isolated and unconnected, and not systematic. Such a mischaracterisation is prejudicial to any future investigation, and is cynically aimed at countering allegations of war crimes and crimes against humanity with respect to the systematic practice of enforced disappearances and the execution of surrendees.


xx. The LLRC does not adequately deal with the issue of the scale of civilian casualties during the final stages of the war, particularly given its own admission that it was a ‘key question’ confronting it and ‘crucial to its mandate.’ The LLRC heard specific evidence from two key sources – the Bishop of Mannar, Rt. Rev. Dr. Rayappu Joseph and Ms. Imelda Sukumar, who served as the Government Agent (GA) for Mullaitivu during the relevant time – in relation to the number of civilians trapped in the NFZs. While the Bishop of Mannar cited official figures from the Kachcheris of Mullaitivu and Kilinochchi placing the number of persons residing in the Vanni in early October 2008 at 429,059, the GA for Mullaitivu herself testified that there were approximately 360,000 civilians remaining in the NFZ in the Puthumattalan area in January 2009. Given that only 282,380 civilians came out of the Vanni into government-controlled areas, the number of persons unaccounted for remains between 75,000 and 146,679. Even in the light of this compelling evidence placed before it, the LLRC does not acknowledge the number of civilians unaccounted for, or the likelihood that a majority of these civilians died during the final stages of the war.


xxi. The LLRC deals with a number of human rights issues including allegations concerning missing persons, disappearances and abductions, treatment of detainees, illegal armed


groups, conscription of children, vulnerable groups, Internally Displaced Persons, the Muslim community in the North and East, the freedom of expression and the right to information, and the freedom of religion, association and movement. However, the LLRC fails to consider some of the more sensitive issues, thereby revealing selectivity in its approach. For example, the alleged involvement of one Iniya Barathi in a number of human rights violations is not mentioned in the section on human rights in the LLRC’s report. Many witnesses in fact identify Iniya Barathi as responsible for human rights abuses. Instead of mentioning the involvement of this individual in the disappearances that took place in the Eastern Province, the LLRC only makes vague references to him in the chapter on ‘reconciliation’. The Commission makes no attempt to examine in any detail the evidence against this individual, nor to highlight his alleged connections to the TMVP and the SUP.


xxii. Given the circumstances, the LLRC has compromised its impartiality and credibility, and has reinforced impunity.


xxiii. On countless occasions, the LLRC assured distraught witnesses that it would ‘look into the matter,’ thereby promising some form of follow up on individual cases of disappearance, detention, land grabs, assault, harassment, extortion and death. However, the LLRC report only provides a brief statistical analysis of so-called follow-up work, which would be of no use to the witnesses concerned. It is not clear as to how the LLRC proposes to communicate its specific findings to specific witnesses. It is, however, apparent that the Commission’s final report, assuming it is even accessible to these witnesses, does not provide the answers that were promised to them during the public sittings.


xxiv. The LLRC also failed to evaluate its own deficiencies in dealing with gender specific issues. The composition and approach of the Commission established an insurmountable barrier to women in terms of truth telling. In fact, it was reported that the LLRC had been `desultory’, ‘curt’ and ‘dismissive’ towards female witnesses. There are also reports that the Commission chastised women for crying and demanded written submissions in place


of oral testimony. Hence, women in general have encountered a distinct rack of sympathy when recounting their experiences before the Commission.


xxv. Many of the LLRC’s recommendations pertaining to human rights presuppose institutional independence of certain key institutions including the judiciary, the Attorney General’s Department, the National Police Commission and the Public Service Commission. However, the Commission does not address the recent repeal — by the Eighteenth Amendment to the Constitution — of salient provisions in the Seventeenth Amendment that safeguarded the independence of public institutions. Moreover, the continued application of the Eighteenth Amendment places virtually insurmountable challenges to the implementation of the LLRC’s final recommendations.


xxvi. The LLRC also made recommendations on a number of issues that are not directly related to accountability. These recommendations have positive elements, and if implemented, would be welcomed and supported by the TNA. The TNA intends to closely monitor the implementation of these recommendations. However, these recommendations should not be mistaken for those addressing accountability issues.


xxvii. Amongst the LLRC’s recommendations unrelated to accountability are its recommendations on reconciliation and devolution of power. The Commission emphasises that a political settlement based on devolution must address the ethnic problem as well as other serious problems that threaten democratic institutions. The Commission recommends devolution to local government institutions to ensure greater peoples’ participation at the grassroots level. Moreover, it recommends that the government take into account the shortcomings in the functioning of the Provincial Councils system. Yet the only concrete suggestion that the LLRC makes in terms of an actual model is the establishment of a Second Chamber comprising representatives from the Provinces, so as to generate a sense of confidence among the political leadership and people in Provinces. These sentiments on devolution are exceedingly vague, noncommittal, and do not measure up to past proposals including the majority report of the All Party Representative Committee’s Expert Committee appointed by the President


in 2006. Yet, even the implementation of the LLRC’s modest proposals remains uncertain, particularly given the non-implementation of the provisions of the Thirteenth Amendment to the Constitution and the recent views expressed by the President in relation to devolution of governance to the Provinces. These views validate strong fears amongst the Tamil community that the government is not genuinely prepared to deliver to the people a political solution premised on meaningful devolution.


xxviii. The LLRC in some way also acknowledges the intrusiveness of the military in the North — a fact that the TNA has already brought to the public’s attention on numerous occasions. The Commission hence recognises the need to disengage security forces from all activities related to civil administration as rapidly as possible. The TNA welcomes this recommendation and intends to closely monitor and publicise the progress of its implementation over the next few months.


xxix. Despite these positive recommendations, the need for an accountability process that meets international standards while delivering on the right of victims to truth, justice and reparations (including guarantees of non-recurrence) is an urgent and important one. Given the government’s failure to institute a process that meets these benchmarks, the TNA calls on the international community to institute measures that will advance accountability and encourage reconciliation in Sri Lanka in keeping with the recommendations of the UN Secretary General’s Panel of Experts.


Concluded


 
 
 
 
 
 
 
 
 
 
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