Marga seminar on the implementation of the llrc report 9 Feb 2012 - Sri Lanka

“Post-war Accountability and Reconciliation: Creating an Inclusive Sri Lankan Identity” Seminar held at the Marga Institute on 9th February 2012.

MARGA INSTITUTE 941/1, Jayanthi Mawatha, Kotte Road, Ethul Kotte.

Tel. 011 2888790 Fax: 011 2888794 E-mail: egmarga@sltnet.lk

CONTENTS Pg No. EXECUTIVE SUMMARY

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PART 1

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PART 2

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PART 1 – Seminar Proceedings

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1.

Introduction

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2.

Welcome

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3.

Setting the Context

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4.

Seminar Framework

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5.

Session on Accountability

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6.

Session on Human Right & Reconciliation

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7.

Summing-up

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Annex 1 – Seminar Programme

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Annex 2 – List of Participants

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Annex 3 – Responses to the LLRC Report

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PART 2 - Implementing the LLRC Recommendations : Marga Proposals

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Implementing the LLRC Recommendations: Moving from a Past of Conflict to a Future of Harmonious Co-existence.

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Annex 1 – Implementation Issues

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Annex 2 – Governance Framework for Implementing LLRC Recommendations

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Annex 3 – Institutional Arrangements for Implementation of LLRC Recommendations

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EXECUTIVE SUMMARY The Marga Institute initiated a dialogue on post-conflict reconciliation with a study on “The Sri Lankan Identity”. This was followed by a seminar on “Accountability, Restorative Justice and Reconciliation” held on 21.07.2011to review the report of the UN Secretary General’s Panel of Experts on Accountability in Sri Lanka. When the Presidential Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC) submitted its report in November 2011, Marga Institute considered it important to carry forward the civil society dialogue on reconciliation.

This was to be its modest contribution to the national effort in moving towards a Sri Lankan identity where there is no space for clash of ethnicity. A seminar on the theme “Post-war Accountability and Reconciliation: Creating an Inclusive Sri Lankan Identity” was held under the auspices of its Civil Society Forum on 9th February, 2012. The objective of the Seminar was to define the domain and delineate the modalities that can guide and give direction to the process of post-war accountability and reconciliation that has been initiated.

This report which is in two parts presents the summary of proceedings of the Seminar as well Marga proposals on the way forward for the implementation of the recommendations of the LLRC. The proposals for implementation draws from the internal deliberations at the Institute on the context, nature and scope of the issues addressed by the LLRC and the need to position them in a more holistic framework. The Marga Institute approaches implementation in a manner that focuses on the fundamental principles of human development underpinning the recommendations. These are treated as the necessary basis for defining post-conflict reconciliation so as to give form and substance to a new Sri Lankan identity.

PART 1 The Seminar was organized in three sessions,- an introduction setting the context for the seminar and providing an overview of the LLRC report, an examination of the issues of post-war accountability followed by a session on human rights and reconciliation.

Setting the Context The introductory session drew attention to the method of presentation and reporting by the LLRC which is fully transparent. All inquiries have been conducted in public and the full transcripts of the proceedings are available for public scrutiny in the LLRC website.

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Main Conclusions The main conclusions of the report could be grouped under three main heads:  Issues of accountability arising out of the military operations and government actions during the last stages of the war.  The present state of human rights, good governance and the rule of law, resettlement and restoration of civilian administration  The root causes of the conflict, the political solution and sharing of power and the long term process of reconciliation and harmonious co-existence.

On accountability issues the LLRC presents a detailed and comprehensive account of the last stages of the war and concludes that government took all possible measures to protect and rescue civilians and maintain supplies of food and medicine under very difficult condition and that it was definitely not a part of the government’s strategy to target civilians and hospitals and kill a large number of Tamil civilians. However the LLRC also concludes that the evidence it has recorded has established that there have been a considerable number of civilian casualties and specific episodes in which civilians have been fired at by the security forces and killed, and that a large number of abductions and disappearances have occurred. It recommends that these be further investigated. In dealing with these issues the LLRC also examines the existing International Humanitarian Law (IHL) and discusses its adequacy to deal with extreme choices that arise in military operations against terrorist groups as in the case of Sri Lanka. . While the LLRC does not deal directly with the issues of retributive justice and restorative justice its approach to issues of reconciliation is informed by the values of restorative justice. Overall a balance is maintained which upholds accountability and recommends investigation, prosecution and punitive action for the specific violations of human rights and killings.

In regard to human rights, grave shortfalls in the protection of human rights are identified and recommendations made for dealing with such violations. The LLRC comments critically on the government’s failure to take action on some of their interim recommendations regarding illegal armed groups. The LLRC goes on to deal with the systemic failures that have occurred and are continuing to occur in governance and the rule of law. It prescribes the necessary courses of action to remedy the situation drawing attention to the close links between accountability, socioeconomic recovery, development and reconciliation. While taking the view that the root causes of the ethnic conflict lies in the failure of successive governments to address the genuine grievances of the Tamil people, the LLRC considers a political solution is imperative to address these root causes and calls “for a vision of a shared future, a vision of an interdependent, just equitable open and diverse society” that should guide the entire process of peace and reconciliation.

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The Framework of Values The Commission defines a framework of values that must underpin this vision. The cornerstones of the value system are:  first, the collective acknowledgement of guilt and contrition for the suffering we have caused each other,  second, the call for a fundamental reorientation of attitude on the part of all parties that would promote mutual trust and understanding ,  third, the emphasis on an inclusive process of governance in which all ethnic groups enjoy full equality of citizenship,  fourth a system of government in which there is an equitable sharing of power and the people are empowered from the grassroots level upwards in a fully accountable participatory democracy.

These constitute the essential moral foundation for the process of reconciliation. It is on this foundation that all the communities can come together in a shared Sri Lankan identity.

The implementation of the LLRC recommendations is therefore exceedingly complex. The LLRC agenda is wide-ranging and societal in character ; it cannot be implemented piecemeal and has to be adopted as an integrated whole. This is in accord with the approaches that are now accepted for promoting sustainable human development – approaches that insist that the social, economic and political aspects of development should progress simultaneously. But the different parts t of the LLRC agenda will require different methodologies with different time constraints.

But as they are all interdependent they have to be sequenced to move forward simultaneously.

There is need for a well designed institutional framework within which the responsibilities of various agencies are clearly identified and assigned. Indeed the main cause of the present dissatisfaction with the implementation of the LLRC report is the lack of an integrated institutional framework and an action plan which are clearly visible to all stakeholders in a genuinely participatory process of implementation so that there is a greater understanding of both the needs and the constraints.

There is also the need to focus on the processes that must guide and give direction to the implementation of the recommendations. The theme of the seminar argues that the process of implementation should necessarily be guided by and should lead to redefining the Sri Lankan identity in terms of “who are we and what are the conditions of our co-existence? ” in moving to an era of peace, harmony and prosperity. This overriding value system should define and guide the whole process of reconciliation. Thus while developing the institutional mechanisms and achieving the outcomes envisaged in the LLRC report , the implementing agencies should 5

constantly adhere at every step to the value system that would help to create an inclusive Sri Lankan identity.

Issues of Accountability The discussants in the session on accountability pointed out that the mandate of the LLRC did not appear to include any reference to accountability issues. Even so the Commission has devoted a considerable amount of its time to dealing with several allegations against the Government of Sri Lanka, which related to violations of international humanitarian law (IHL) and international human rights law (IHRL). The seminar noted that the mandate, composition and overall methodology of the LLRC did not afford it the necessary scope to examine and apply the fundamentals of accountability, truth, justice and reparations, fully and effectively.

A genuine commitment to truth telling would have entailed a victim-centred approach, an approach that was well within the capacity of the LLRC. This should have been the foundation of its approach to accountability. However the victims of the war were unfortunately not at the centre of the LLRC’s work. Nevertheless, the work of the LLRC has produced certain positive outcomes . Notably the report clearly rejected the zero casualty claim and noted that there had been a large number of civilian casualties , it published the transcripts of its public hearings, and it also provided important evidence that calls for further investigations.

One line of argument stressed that the key aspect of distinguishing between combatants and civilians had not been dealt with adequately by the LLRC. The issues dealt with are those of direct participation in hostilities, and the basic approach taken has been to consider the issues of distinction and proportionality. The issue of proportionality raises the issue of distinction, as to who is a civilian. The Seminar noted the complexity of the issue, at the heart of which stood the human predicament of those Tamil civilians who got caught in the conflict and became for all intents and purposes combatants in the sense of having been coerced to join and assist in various ways in the LTTE’s military operations. All this underscores the necessity to relate to the human situation in the treatment of accountability. In moving forward it is also important to take note of the fact that accountability is not just about past actors that have been involved , but it is also about the actors who need to take responsibility to carry forward the sum total of the recommendations. What is to be done and done speedily is on the table not only for government but for all other actors as well , and these include political parties , civil society and religious leaders .

Issues of Human Rights and Reconciliation Moving on to issues of human rights and reconciliation, participants agreed that the report of the LLRC provides a framework for setting in motion processes and mechanisms to promote a meaningful process of reconciliation . The report and the recommendations constitute a 6

framework for action by all stakeholders, in particular the government, political parties and community leaders.

The Seminar noted that the fundamental question is about the will to implement the wide ranging recommendations made by the LLRC. Reconciliation will involve the preparation of an implementation plan and carrying it through. It was noted that implementation on reconciliation cannot be separated from the issue of accountability. One of the problems to be addressed, right from outset before any reconciliation can take place, is that of the disappeared and missing before the war, during the war and after the war. The next essential condition for an enduring process of reconciliation is the political solution to the ethnic problem through structures of devolution and sharing of power . The participants emphasised that there has been no credible initiative to resolve the problems in this area. Overall, these and other failures in governance continue to raise questions about the implementation of a process of reconciliation that would be acceptable to the Tamils and other minorities .

Some participants pointed out that questions are raised about both the commitment as well as the capacity of the present government to implement the recommendations of the LLRC. These critics have argued that the implementation of many of the recommendations would not be in the interest of those in power . However there was general agreement that such an approach serves no purpose. It is necessary to start from the basic premise that there is a democratically elected government responsible to the people and that civil society can constructively engage with the government in regard to the implementation of the LLRC report .

PART 2 Key Elements in the Process of Implementation In evaluating the views expressed in the Seminar the Marga Institute identified the following key elements in the process of implementation: The design of the implementation framework should ensure moving from conflict to reconciliation and on to peace and human development in a coherent consistent manner.

All of the areas where the LLRC considered decisions to be necessary are about people and the steerage of the journey out of conflict requires that the institutional framework for implementation of the recommendations maintain a clear focus on outcomes of resolving issues of accountability, human rights, return and restitution and ensure that any deficit in each of these do not undermine the whole of the outcome that is sought. Therefore reconciliation must be envisioned within an institutional framework underpinned by democratic governance ensuring 7

the centrality of victims and their grievances as well as the rights and freedoms of all the people in the conflict-affected region. The processes in achieving the outcomes are therefore vitally important.

The recommendations extend from actions related to concerns at the individual level to issues to be worked out at the societal level. Further the implementation process must be perceived coherently and there has to be a clear definition of implementation roles and responsibilities with a guarantee of performance. Since reconciliation constitutes a total process, implementation should take place through the mainstream of the government administrative system and not established as a separate and parallel action system. Several roles and responsibilities need to be clearly established.

The institutional framework and the conditions that are essential for the effective implementation of the report are broadly outlined below: (a) Steerage of implementation at national level through a National Council for Reconciliation and at the Provincial, District and Divisional levels appropriate mechanisms for co-ordination implementation and monitoring. (b) Maximum engagement of all stakeholders in programme deliberations organized through thematic committees. (c) Implementation mainstreamed through relevant government agencies. (d) Political accountability through a Parliamentary Committee for Reconciliation. (e) Information and reporting especially informing the people and communities on the programme, action plans, and progress.

The strategy for the implementation of the LLRC recommendation should be to mainstream the ensuing actions and activities within the regular government administration system and process.

It should set the implementation of the LLRC recommendations within the broader vision of human development in the Mahinda Chintanaya. Accordingly accountability, rights and restitution, and reconciliation would constitute functional actions and activities of government agencies as would be appropriate and according to imperatives arising in the course of implementation. The evolving agenda for accountability, rights and reconciliation would then constitute integral sectoral and regional components of the Government’s “vision for the future�.

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PART 1 SEMINAR PROCEEDINGS

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1. Introduction The main objective of the Seminar was to assess the LLRC report and its full set of recommendations as an effective means of dealing with the problems that have arisen as a result of the war. The Report was to be evaluated for its worth as an instrument for promoting truth, accountability and reconciliation in Sri Lanka. The Seminar was organized in two sessions. The first session covered the issues of accountability that are examined in Chapters 3 and 4 of the Report covering the narrative of the military operations and actions taken by the government in the last stages of the war. The second session dealt with Chapters 5 onwards covering human rights resettlement, rehabilitation, and the implementation of the report. The chapter dealing with the ceasefire agreement was not included for discussion at the seminar.

2. Welcome The seminar commenced with a brief welcome address by Mr. Mangala Moonesinghe. Noting that the seminar was on “Post-war accountability and reconciliation: Redefining Sri Lanka Identity Mr Moonesinghe stated that the country is going through a historic transition , moving from a protracted and violent conflict to a process aimed at multi-ethnic reconciliation and peace. He touched on a number of initiatives covering boith the government and civil society and drew special mattention to the policy of promoting a tri-ingual society Concluding he emphasized that the quicker the LLRC report implemented better it will be for the country.

3. Setting the Context The introductory presentation was made by Godfrey Gunatilleke. It provided the setting and the overview for the seminar and focused on the following themes and issues : • • • •

The salient features of the report and its main conclusions on the key issues of Truth, Accountability and Reconciliation An overview of the main responses to the LLRC report – international and domestic The international context – Threats and Opportunities The Implementation of the report and the complex nature of the challenge facing government.

The salient features of the report Godfrey Gunatilleke drew special attention to some of the positive features of the report. The method of presentation and reporting has the full transparency of inquiries that have been 11

conducted in public. The transcripts of all the presentations the Commission received and the evidence it obtained have been made available for scrutiny by all stakeholders. The report maintains a dispassionate tone throughout the report, confining itself to an objective recital of facts without arguing a case, - a mode of communication and tone which are in striking contrast to the tendentious character of the report of the UNSG’s panel of experts. On most of the important parts of the narrative, the report reproduces the statements of witnesses in the first person These personal stories of loss and suffering, attest to the authenticity of the narration and make the report a moving human document All interested parties have been given an opportunity to present oral and/ or written evidence. Consequently the report contains the observations and eye-witness accounts of a whole range of actors- military personnel, IDPs and public servants. The Commission has visited 46 locations in the North and East including detention centres. It has sent invitations to the Human Rights Watch, the International Crisis Group and Amnesty International which they declined. The quality and substance of the final report is itself an effective rebuttal of many of the criticisms that had been made against the Commission on the grounds of bias , conflict of interest and lack of independence.

Main conclusions on the last stages of the war The main conclusions of the report could be grouped under three main heads –   

Issues of accountability arising out of the military operations and government actions during the last stages of the war.

The present state of human rights, good governance and the rule of law, resettlement and restoration of civilian administration The root causes of the conflict, the political solution and sharing of power and the long term process of reconciliation and harmonious co-existence.

Issues of Accountability On the first group of issues relating to accountability, the report in its section on the Sri Lankan experience in section 2 of Chapter 4 presents a detailed and comprehensive account of the last stages of the war. It covers in great detail the methods of combat adopted and measures taken to protect non-combatants and minimize civilian casualties. The narrative describes the conditions in the NFZs in which civilians were held as hostage and the tragic consequences that followed. It provides a carefully documented account of the efforts made by government to supply food and medicine to the civilian population during the last stages of the war and the arrangements made to receive and provide shelter and care for the IDPs. The Commission draws two sets of conclusions from all the evidence it has gathered and analysed .

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The Commission concludes that the substantial body of evidence it has gathered indicates that government took all possible measures to protect and rescue civilians and maintain supplies of food and medicine in very difficult conditions .The conclusions are that it was not a part of the government’s strategy to target civilians and hospitals, to kill civilians intentionally , or deliberately deny adequate food and medicine to the civilians in the conflict- affected zone. These conclusions rebut the allegations in the report of the UNSG’s panel that the Government implemented a strategy of exterminating a large section of the Tamil civilian population.

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In the second set of conclusions relating to accountability the Commission concludes that there have been a considerable number of civilian casualties; there have been specific episodes in which civilians have been fired at by the security forces and killed, and a large number of abductions and disappearances have occurred, details of which are recorded by the Commission. In all these cases the Commission recommends specific mechanisms for taking further action. On the Channel 4 video the Commission provides the evidence of two experts who provided proof that the video itself is fabricated but states that further investigations should be conducted to ascertain the original source of the video and recommends an independent investigation for this purpose. On the estimate of civilian casualties the report contains a lengthy section which examines the various estimates that have been made ranging from 5000 to over 40,000 and states that none of these estimates are based on verifiable evidence. The deaths of combatants reported to the Commission number 22,000 LTTE cadres and 5556 from the security forces. In the circumstances the Commission makes the most practical recommendation – a household survey covering all affected families in all parts of the island to ascertain firsthand the scale and the circumstances of death and injury to civilians.

The first section of Chapter 4 of the report deals with a whole set of controversial issues regarding the applicability of the existing International Humanitarian Law (IHL) to the counterterrorist war against the LTTE. There the LLRC discusses the adequacy of the existing law to deal with extreme choices that arises. It is suggested that while we deal with that briefly in the we do not get stuck that, The TNA has devoted a large part of the report to the applicability and how the law is applied and we need to know more about what happened and the moral implications of that rather that how they fit into the law that exists. There is much however in this section of Chapter 4 that needs to be taken forward at the international level the task of unraveling and redefining some of the complex legal issues involved.

The LLRC does not deal directly with the issues of retributive justice and restorative justice but in its approach to issues of reconciliation is informed by the values of restorative justice. It maintains a balance which upholds accountability and recommends investigation prosecution and 13

punitive action for the specific violations of human rights and killings that have been invited. It commends the approach taken by government to the rehabilitation of the LTTE cadres which has been governed by the principles of restorative justice. It recommends an inclusive approach which can reach out to the Tamil Diaspora and promote reconciliation and amity.

Human Rights and Resettlement Issues In Chapter 5 the Commission identifies the grave shortfalls in the protection of human rights and makes recommendations for dealing with the large number of cases of abductions, disappearances of persons taken to custody and missing persons that were recorded by the Commission in the course of their inquiries. It comments critically on government’s failure to take action on some of their interim recommendations regarding illegal armed groups.

The Commission goes on to deal with the systemic failures that have occurred and are continuing to occur in governance and the rule of law. It prescribes the necessary courses of action to remedy the situation. The Commission emphasises the need for restoring the civilian administration and for this purpose a clearly defined process of de-militarisation. The Commission devotes a whole chapter to the complicated issues of land ownership as they have arisen in the course of resettlement and makes recommendations on all the outstanding issues ranging from the release of land in high security zones to the settlement of ownership disputes.

The commission’s report covers recommendation on post resettlement problems of livelihoods and the sustainable human development of the households in the areas that have been affected by the conflict. It deals with the special hardships experienced by vulnerable groups –women and children. This part of the report draws attention to the close links between accountability, socioeconomic recovery development and reconciliation. It emphasizes the need to approach the report as an integrated whole.

The Process of Reconciliation and the Value system On the process of reconciliation the Commission takes the view that the root causes of the ethnic conflict lies in the failure of successive governments to address the genuine grievances of the Tamil people and goes on to say that a political solution is imperative to address these root causes. While this is a view that is commonly accepted, the Commission’s analysis of the origins and growth of the conflict throws light on overriding human factors which drove and intensified the conflict. The Commission that if we are to learn from the lessons of the past, we need more than a constitutional arrangement, we need a fundamental readjustment of attitude on the part of all the communities and their leaderships in order to address the deep seated distrust insecurity and grievances that led to the past cycle of conflict and violence. For this all parties must come together for an objective reappraisal of the past and all must accept their share of responsibility for the suffering they have caused each other. The Commission calls “for a vision of a shared future, a vision of an interdependent just equitable open and diverse society” that 14

should guide the entire process of peace and reconciliation. The Commission defines a framework of values that must underpin this vision. Inclusiveness is the hallmark of this set of values. This is illustrated in the way that the Commisison deals with the problem of grievances.

While it makes a searching analysis of the grievances of Tamils it argues that a genuine process of reconciliation demands that we consider the grievances of all other minorities as well as the majority community. Dealing with people’s grievances is then not shaped by an exclusively ethnic perspective it falls within the broader human perspective - the perspective of human development. Affirming the values of good governance upholding accountability and transparency, promoting equity and people’s participation become easier within such a framework of values. These values that can guide the empowerment of people is the essence of any constitutional arrangement for the devolution of power. The reports strength lies in the value system that guides it, right from the beginning, not only the recommendations. These recommendations cannot be implemented with the political will and sincerity unless there is an acceptance of the underlying value system of the report.

The four main cornerstones of the value system are  first ,the collective acknowledgement of guilt and contrition for the suffering we have caused each other,  second the call for a fundamental reorientation of attitude on the part of all parties that would promote mutual trust and understanding.  third , the emphasis on an inclusive process of governance in which all ethnic groups enjoy full equality of citizenship,  fourth a system of government in which there is an equitable sharing of power and the people are empowered from the grassroots level upwards in a fully accountable participatory democracy These are the essential elements of the moral foundation for the process of reconciliation. It is on this foundation that all the communities can come together in a shared Sri Lankan identity in which all people are empowered.

An overview of the main responses to the LLRC Report Dealing with the responses to the LLRC report at the international level Gunatilleke grouped them in three categories. One includes the responses of the INGOs, Amnesty International, International Crisis Group, Human Rights Watch and the TNA responses would also fall into this category. They are also the reactions of sections of the Tamil diaspora which are wholly negative and regard the report as a government attempt to cover up the war crimes that had been committed. If we take the responses of the INGOs these deal primarily with the issues of accountability and what they perceive as the failure on the part of the Commission to gather 15

sufficient evidence on war crimes that they alleged had been committed by the Sri Lanka government and the military during the last stages of the war. They claim that there is evidence that could have been gathered. They argue that this evidence did not come out due to lack of witness protection, intimidation, lack of confidence in the LLRC. The argument is that the report does not contain a large part of the story because they were not able to gather that evidence.

Therefore the assumption is that the evidence exists, and the LLRC did not go out to find that evidence. Except for the ICG other responses give very little attention to the LLRCs recommendations. These do not have faith in domestic processes of accountability and call for an international mechanism to deal with problems of accountability.

The second group includes the developed countries who had been critical of the LLRC and had called for an independent international inquiry into alleged war crimes. The responses they now make to the LLRC recommendations indicate a significant shift from those positions. The countries include US, UK, Canada and the European Union They welcome the report and commend it for the substantive recommendations it has made on a wide range of issues that would promote the process of reconciliation. They press for expeditious implementation. They are not satisfied with the LLRC treatment of the allegations of the war and urge the government to address the issues of accountability further. They do not call for an international mechanism.

They want a strong credible domestic process. The critical part of these statements is their emphasis on speedy implementation. It would not have been possible to have expected a different response from this group who had earlier taken up a firm position in support of the UNSG Panel report. Their position in regard to the LLRC report should be recognized as an opportunity that could be used to secure an international consensus that would be supportive of Sri Lanka.

The third category is constituted by those responses that welcome the report for its substantive recommendations that can accelerate the reconciliation process and the resolution of outstanding issues. This group includes India, include South Africa (though they make reservations about human rights violations but do not refer to war crimes), Russia, China and Japan and the members of the EU Parliament who are friends of Sri Lanka. In the responses from this group there is no reference to war crimes. Both India and South Africa underscore the need for reliable mechanisms to further investigate human rights violations in a time bound manner and welcome the LLRC recommendations to further pursue them through a domestic process of accountability.

Their approach to the report is one that implicitly acknowledges that another narrative has been given, a narrative which explains what has happened during the last stages of the war and to which everyone should relate. Those crimes that are shown in the narrative should be investigated so that there is no going back to an inquiry of a larger strategy for killing civilians, denying food or an objective of deliberately killing large numbers of civilians. India emphasizes 16

the need for a political settlement among other issues. All statements call for speedy implementation of the LLRC report.

There are issues of bias and partiality that arise from the responses of the first category. They reject the report on the grounds that it has been selective in gathering evidence and has deliberately neglected gathering evidence that would have supported the allegations this group makes. It is necessary therefore to examine how the LLRC report relates to this critique. It is to be noted that unlike in the UNSG Panel’s inquiry, proceedings were held in public and all evidence led before it is available for scrutiny. The LLRC gave opportunity to all concerned to give evidence. The hard core critics – HRW, IGJ, Amnesty International were written to but they rejected the invitations to give evidence on the ground that they had no faith in the Commission.

The LLRC wrote to Channel 4 and sought to get the originals but failed in their attempt. The UN personnel did not appear before the Commission.

In the evidence already gathered and the recommendations LLRC has made there is ample opportunity provided to deal with the issues raised by the INGOs and some of the developed countries. The Commission recommends further investigation on a number of human rights violations and crimes that they have identified. They have called for an independent investigation of the Channel4 video. In all these inquiries evidence that was not available to the LLRC could be submitted. If there is evidence of crimes of the nature claimed by the INGOs, these recommended processes and mechanisms would provide ample opportuniyies for concerned parties to submit freah evidence if available. The report in fact stresses the need for further investigation as it recognizes that it is indispensable for promoting reconciliation. The report does not close accountability issues, but puts these within a different framework, different from the accusatory framework that the UNSG Panel and the INGOs adopted. Another more open and exploratory framework is there to find out the truth.

The responses to the LLRC report at the domestic level are of a mixed character. All political parties with the exception of the TNA welcome the LLRC report The statements of the UNP, LSSP, CP call for speedy implementation. The JVP and JHU express reservations on the issues of devolution , while welcoming the report. The TNA focuses on the accountability issues and finds the report methodology and findings unacceptable. It concedes that the LLRC makes several positive recommendations on what it terms the non-accountability issues. The EPDP and TMVP welcome the report but comments very critically on the LLRC’s comments on the allegations against conduct of the leaders and cadres of these parties.

Implementation The resolution that is being sponsored for discussion at the UNHRC sessions is reportedly critical of the Sri Lankan government for the delay and lack of commitment in implementing the 17

LLRC report and not presenting a well formulated action plan for this purpose. Unquestionably the speedy and effective implementation of the LLRC report is of utmost importance. It is the best answer to all the international criticism leveled against Sri Lanka. But it would not correct to make statements that imply that Sri Lanka is not implementing the report or displayed a lack of commitment to implement it. The Commission in its report refers to the large range of activities that are already in progress in the North and East on almost all the main recommendations of the report. It mentions the Presidential task force and other programmes at the district and divisional level and states that already significant progress “has been made and is continuing to be made on the issues raised”. The implementation of the LLRC report has therefore to be placed in a context in which the government is already engaged in activities which are an integral part of the LLRC recommendations.

The implementation process itself is exceedingly complex. Those who suggest that an action plan could be formulated in a short period of time, ignores the societal character of the LLRC agenda. They also fail to take into account the far-reaching implications of the LLRC’s recommendation that it cannot be implemented piecemeal and has to be adopted as an integrated whole. This is in accord with the approaches that are now accepted for promoting sustainable human development – approaches that insist that the social economic and political aspects of development should progress simultaneously. When talking about implementation and an action plan we have also to note that as yet there is no unanimity on the whole of the report even among those who call for its speedy implementation. This applies particularly to the political issues dealing with reconciliation. For instance there is no unanimity regarding the political solution or even the collective acknowledgement of responsibility for the violence and a collective act of contrition for the suffering inflicted on the people of all communities. In these circumstances the LLRC recommendations do not lend themselves into a neat and simple process of planning or the formulation of action plans as in the case of a project or sectoral programme It will require persistent effort over a considerable period of time.

There are at least three distinct components - the judicial and investigative processes for the accountability issues; the administrative for the resettlement restitution and reparation; and political and social for the reconciliation process. Each of these will require different methodologies and will have different time constraints. But as they are all interdependent they have to be sequenced to move forward simultaneously The most conflict –ridden issue is the political settlement which has been hived off into a Parliamentary Select Committee. There is need for a well designed institutional framework within which the responsibilities of various agencies are clearly identified and assigned .There has to also be an apex institution to oversee the integrated implementation of the entire package of recommendations – accountability, resettlement, rehabilitation and reconciliation. The implementation of the plan has to be governed by a process which ensures full transparency and accountability that provides for 18

regular monitoring and evaluation of progress. Public should have ready access to the information through a website dedicated for the purpose. Civil society should have an important role in the entire process of implementation.

The main cause of the present dissatisfaction with the implementation of the LLRC report is the lack of an integrated institutional framework and an action plan which are clearly visible to all stakeholders s in the LLRC recommendations. The government needs to take into account the fact that the expectations of the stakeholders will always be high, even inordinately so; this would apply particularly to the victims whose urgent and immediate needs will brook no delay.

The process of building confidence will depend on the pace of implementation. Government needs to bear this in mind and make known what is already being done and involve the victims in a genuinely participatory process of implementation so that there is a greater understanding of both the needs and the constraints.

4. Seminar Framework Mr. Asoka Gunawardena, drawing attention to the summary of the recommendations in the folder said that it tried to capture the thrust of the main observations and the key recommendations made by the LLRC. It is organized according to the chapters of the report. The observations are there and whatever implementation mechanisms proposed by the Commission are listed along with the specified timelines. He noted that before we move on to the substantive proceedings it is necessary to remind ourselves of the Terms of Reference given to the Commission (with seminar the papers) in order to understand what exactly they were expected to do and the purpose of the seminar as set out in our letter of invitation.

He referred to the Marga Seminar on “Accountability, Restorative Justice and Reconciliation” held on 21.07.2011to review the report of the UN Secretary General’s Panel of Experts on Accountability in Sri Lanka. Marga Institute subsequently published the report of the seminar.

One of the sessions of the Seminar was devoted to the theme, “The Assessment of Accountability: Implications for National Reconciliation” with a view to identify the key issues that had to dealt with in order to move towards that goal. Since then the Presidential Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC) has submitted its report. He noted that the Marga Institute considered it timely and important to continue the civil society dialogue on reconciliation. This would be the Institute’s contribution to the national effort to move towards a Sri Lankan identity where there is no space for clash of ethnicity and all communities would find themselves in harmonious coexistence justly proud of being members.

Gunawardene went on to clarify why the agenda of the Seminar included the issue of redefining Sri Lankan identity. He argued that the process of implementing the LLRC recommendations and promoting a genuine process of national reconciliation will be shaped by the meaning we 19

attach to our identity as Sri Lankans. It is for this reason that the seminar attempts to focus on one of the central themes of the LLRC report : the need for Sri Lanka to define itself as “as an independent multi-ethnic polity” ready “to undertake a journey of common goals in a spirit of cooperation, partnership and friendship” and “ ensure that there will be no recurrence of internecine conflict in the future”. The quotation is from the Terms of Reference given to the Commission. It sets the goal which has to be achieved and it is in terms of this goal that we need to assess the LLRC report and its implementation. Therefore it is of fundamental importance and urgency that we define or redefine the basis of our identity as the people of Sri Lanka in terms of who are we and how we can move together to an era of peace, harmony and prosperity. Then we also need to define the values and principles that should guide the whole process of reconciliation. This would require that when taking action on the recommendations of the LLRC we contribute to creating the spirit of cooperation, partnership and friendship as the basis for peace, harmony and prosperity. This is what the seminar should deliberate on while examining the modalities and mechanisms for implementation of the measures for ensuring accountability and bringing about reconciliation.

There are several principles that could guide the implementation process which comes out of the Report. 





  



A total or holistic approach rather than a fragmented one. Each recommendation is inter-connected with the others. A coordinated strategy and a collective effort and not a fragmented implementation of the recommendations in a piecemeal manner.

A “process approach” than a “task-specific approach” - reconciliation as a process. The recommendations deal with different tasks the tasks are interlinked and are governing by overarching values that apply to all tasks. Therefore we need to understand reconciliation as a process and not as a series of tasks to be performed.

Inclusivity, accessibility and transparency of the process in establishing the governance context precisely. This must address the governance gap that led to the conflict and war.

Interdependence of state and non-state actions in the process with the primary responsibility resting with the State.

Public information, public need to be kept informed regularly and public information should be available in the language that people can understand.

Rights-based action, protection for and taking care of the affected and the vulnerable. Rights-based approaches have fundamental implications for the system of administration that deals with the implementation of the LLRC report Demonstration of political willingness to learn and change.

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  

Closure of un-resolved issues so as to enable the people to move forward.

Separation of civilian from military and speedy transition from military administration and control to civilian administration.

Working through Institutions and rule of law

Concluding, he stated that while the seminar deliberates on substantive issues of frameworks, mechanisms, priorities and timelines in managing the process, it is also necessary to examine the principles and values that should guide all actions in that process.

5. Session on Accountability Chairing the session Mr. Selvakumaran noted that the session is about accountability and the notion of accountability is difficult to define, it defies any definition. He highlighted three aspects that the speakers would attempt to deal with, namely accountability to whom, by whom and for what. However he said these comments should not constrain them in their presentations.

Presentations: A. Issues about treatment of accountability Mr. Gehan Gunatilleke making his presentation sought to examine the approach of the Lessons Learnt and Reconciliation Commission (LLRC) in dealing with accountability issues in Sri Lanka. In his presentation Mr. Gunatilleke deliberately adopted a somewhat contrarian discussion model in order to articulate certain valid criticisms of the Commission’s treatment of accountability issues, and to highlight certain positive consequences of the LLRC’s report, which may impact on accountability. The central hypothesis is presented in the form of five key questions.

1. Why did the LLRC deal with the issue of accountability?

The mandate of the LLRC did not appear to include any reference to accountability issues.

However, in its final report, the Commission devoted a considerable amount of its attention to dealing with certain allegations against the Government of Sri Lanka, which related to violations of international humanitarian law (IHL) and international human rights law (IHRL). It must be acknowledged that this sudden inclusion was purely reactive, and largely a response to mounting international pressure. Moreover, the LLRC report was postured as a domestic response to the Report of the United Nations Secretary General’s Panel of Experts on Accountability in Sri Lanka. For instance, Minister of External Affairs, Prof. G.L. Peiris made repeated claims that the LLRC would answer questions relating to violations of human rights and IHL.

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On principle, reacting to international pressure was not the right reason for the LLRC to engage on accountability issues in Sri Lanka. The LLRC therefore exposed itself to strong—and perhaps valid—criticism over its sincerity in grappling with accountability issues and its overall commitment to the fundamentals of accountability: truth, justice and reparations.

2. What were the weaknesses in the LLRC’s approach to accountability?

Given the underlying reasons for engaging on accountability issues, the LLRC embarked on what was essentially a legal and factual analysis of the final stages of the war in Sri Lanka. This analysis was based on the Commission’s interpretation of IHL and IHRL. Yet the analysis was weak and is unlikely to be endorsed by any expert in these respective areas of international law.

The specific weaknesses of the LLRC’s legal and factual analysis pertaining to accountability have been adequately highlighted elsewhere and will not form the subject matter of this presentation.

The reasons for these weaknesses may have been the inadequacy of time and the LLRC’s overall lack of expertise in IHL and IHRL. The sections in the report dealing with IHL in particular appeared to be rushed and strewn with gaps. Furthermore, the LLRC did not have before it the entire body of evidence that would have been necessary to engage in a thorough and detailed analysis of accountability issues. Importantly, the Commission had not engaged in a fact-finding mission. It even publicly acknowledged that it lacked investigative powers. Hence the findings of fact and the legal conclusions contained in the LLRC report are prone to the same criticisms that the government levelled against the UN Secretary General’s Panel of Experts i.e. that the reviewing body did not genuinely and impartially consider the entirety of the available evidence.

3. How should the LLRC have featured accountability in its work?

Truth, justice and reparations form the three pillars of accountability. It is clear that the mandate, composition and overall methodology of the LLRC did not afford it the necessary scope to effectively engage all three facets of accountability. Given this limitation, the only prism through which the LLRC was equipped to deal with accountability was that of “truth telling”.

A genuine commitment to truth telling would have entailed a victim-centred approach. Such an approach was well within the capacity of the LLRC and should have been the foundation of its approach to accountability. Yet the victims of the war were unfortunately not at the centre of the LLRC’s work. While some attempts to hear these victims were made by the Commission, particularly during its field visits to the North and East, these efforts were inadequate and fell short of what is expected of a victim-centred approach. The LLRC certainly ought to have spent much more time in the North and East listening to victims of war; it ought to have spent more time in the South consoling grieving families; it ought to have more fully documented the 22

narrative of these witnesses; and it ought to have published unadulterated versions of this narrative. It is still puzzling as to why the Commission rushed through its field visits and ended up devoting more time to Colombo than to the rest of the country. Instead of embarking on a legal analysis, the LLRC should have merely presented the truth as seen from the perspective of witnesses including civilian victims, aid agencies, civil society actors and government officials.

Such a complete narrative would have been valuable to the ascertainment of the truth.

Despite clear distinctions in circumstances, there are certain important lessons to be learnt from the South African Truth and Reconciliation Commission. This commission was aptly dubbed the “Kleenex Commission”, owing to the regularity in which witnesses were permitted to cry at its hearings. Witnesses who broke down at these hearings were always consoled and often handed Kleenex tissues by those assisting at the hearings. In stark contrast, the LLRC at times displayed impatience and a lack of sympathy towards witnesses who became emotional. On the contrary, a more patient and sympathetic approach, centred on the victim, may have provided much needed closure to many of the witnesses who came before the Commission. At the very least, truthtelling—an important facet of accountability—might have been served had the Commission adopted such an approach.

What are the positive consequences of the LLRC’s approach to accountability issues?

Even though the LLRC might have missed an important opportunity to contribute towards accountability in Sri Lanka through truth telling, its treatment of accountability issues reveals certain positive consequences.

4.

First, the LLRC’s narrative is a huge improvement on the government’s initial narrative premised on its so-called “zero casualty policy”. The LLRC acknowledged the death of a large number of civilians—an admission that would no doubt end further speculation on whether civilians in fact died during the final stages of the war.

Second, the LLRC was happy to publish the transcripts of its public hearings. This sort of transparency ought to be acknowledged, as it provided genuine space for criticism of the LLRC, particularly with respect to the treatment of witnesses. Moreover, the transcripts of the LLRC public hearings make a valuable contribution to the truth, as unadulterated testimonies of witnesses are now available for public scrutiny.

The LLRC’s final report also provides important evidence that forms the basis and need for further investigations. For example, the Commission recommends the appointment of a Special Commissioner of Investigation to look into disappearances. The annexes to the final report 23

provide some valuable data in this regard, such as the acknowledgment of over 1,000 cases of disappearances following surrender to or arrest by the armed forces. Such data could form the basis for a thorough future investigation. It is conceded that the LLRC prejudges the nature of these disappearances by claiming that they were isolated and perpetrated “by a few”. However, if the envisioned mechanism is truly independent and is provided the necessary expertise and resources, there is some space for such a mechanism to conclude that such violations were part of systematic practice of enforced disappearances. It must be acknowledged that the LLRC recommendations on disappearances leave open this possibility. Thus, despite weaknesses in its legal and factual analysis, the LLRC report in fact strengthens the claim to accountability in Sri Lanka.

5. How should civil society respond to the LLRC’s approach to accountability?

It is decisive that civil society actors committed to accountability exploit the narrow space created by the LLRC in terms of future accountability in Sri Lanka. The opportunity for effective implementation of the LLRC’s recommendations, though slim, remains real as long as the threat of an international mechanism continues to loom over the government. In this context, civil society actors must not reject the LLRC report. Even its so-called meagre recommendations— which have the potential to contribute towards accountability—must be vigorously advocated for. Hence civil society actors must take it upon themselves to ensure that the fate of several previous Commissions of Inquiry does not befall the LLRC. B. Issues of accountability by whom for what Making his presentation, Mr. Jeevan Thiagarajah stated that when considering the implementation the LLRC report it is necessary to look back over time and note the many commissions held and what has been said, and ask the question as to what has been the outcome, in terms of recommendations and the expectations raised. There is a whole history of unanswered interventions and it is necessary to collectively share responsibility for what has happened and not happened. However, Mr. Thiagarajah said that he would hesitate to move out of the systems we have and create new systems and mechanisms because much of what was mentioned are interventions that are outside of the system which has not been delivering and will continue not to deliver unless necessary care and action is taken. We as Sri Lanka society also should take responsibility and that is as a part of own accountability.

The recommendations of the LLRC provide enough space to move on, if there are 1018 details of disappearances it provides enough evidence to move on to make 1018 depositions of affidavits to be filed which does not have to wait for a special commissioner to be appointed and the question arises as to why it is not being done. There is a responsibility across the board. Mr. Thiagarajah noted that the complexity as observed by Dr. Gunatilleke was the concurrence of the three dimensions of the recommendations contained in the LLRC report, and the question arises 24

as to which path we go down. Is it about Kleenex healing or Kleenex plus ? The question for civil society is not about what the government will do but as to what civil society will do. The question arises as to why a segment of the Sri Lankan society cannot handle the Kleenex part and come forward as they have done several times in India. While for the time being it is the government, the government needs to be helped. Several governments have not been able to achieve anything. There was criticism about the CFA, but there was not enough on what the CFA could have achieved, what could have been built upon the CFA. The question arises if the CFA had succeeded would there have been a 2009? Going further down, despite all its faults there was SIRHAN. Who sat on SIRHAN? What would have been the evolution of that process?

We failed there and that is why we had 2009. The LTTE also contributed to its failure.

It is therefore necessary to make a wider introspection. Accountability is not just about actors that have been named, but accountability is also about the actors who need to take responsibility to carry forward the sum total of the recommendations. There is an opportunity now. Several months ago the conversation was about the UNSG Panel’s recommendation. Now many of the countries that were commenting about the Panel’s report are moving on to the LLRC. It is also an opportunity because the whole onus is about action within Sri Lanka. What we do and how we implement speedily is on the table not only for government but for all of us. We have a role as Sri Lankan society and we are accountable to take on responsibility for sections of the recommendations and take it forward.

C. Issues of Proportionality and Distinction Mr. Neville Ladduwahetty making his presentation said that his focus on accountability addresses the particular stance taken by the group of responses to the LLRC report in the first category mentioned by Godfrey Gunatilleke (Amnesty International, Human Rights Watch, International Crisis Group and the TNA) where the idea of accountability is different from others who want reconciliation addressed or those who feel that this is a positive exercise. Their idea of what is expected of accountability is much narrower than what the other groups expect which includes reconciliation and the implementation of a wide range of recommendations on issues other than accountability.

To address that narrower idea of accountability it is appropriate to start by noting that this conflict was an armed conflict. Though the aspect of an armed conflict has wider dimensions such as moral dimensions and so on, the narrow perspective that we need to take must be a legal one and a narrow approach to look at what accountability was. The question arises as to whether the government or the security forces gave specific instructions, as to whether there was any deliberate attempt to curtail on the relief given, or were there rash attempts by the security forces to indiscriminately attack and kill civilians? All of that is focused on one aspect in war, the 25

aspect between combatants and civilians. The LLRC report did not go into that in sufficient detail, but addressed that in passing. To that degree the LLRC is open to criticism.

Had the LLRC dealt with the subject more comprehensively regarding the two categories, as to who is a civilian and who is a combatant much of the issues of accountability could have been resolved. The issues dealt with are those of direct participation in hostilities and proportionality, and the basic approach taken is to consider distinction and proportionality. The issue of proportionality raises the issue of distinction, as to who is a civilian. The general impression of most analysts of the conflict is that apart from the armed cadres of the LTTE, the uniformed combatants the rest were civilians. Mr Laduwahetty’s position was that there were civilians who were coerced into participating and directly participating in hostilities and by doing so lost their right to protection. However it has been the position of some (such as the TNA) that they were predominantly civilians. This issue could have been dealt with much more comprehensively in the report to a degree that would have avoided comments of that nature. This issue should get addressed and if not it is likely to come up in time to come which will keep this cry for an international inquiry alive. This is the vulnerable part that could affect the reconciliation process. If these issues of accountability were to get pursued at the international level it is likely to make the government reluctant and discouraged to move into reconciliation.

It is therefore important that the government deals with this issue and provides a proper perspective as to the issues concerning civilians killed, civilians targeted, civilian objects being fired on, the idea of the human shield, and when civilians who are part of human shield lose the right of protection. If the government is to become a victim of these allegations with a persistent call for international inquiry, it could have an impact on the reconciliation process. Therefore this particular aspect of accountability has to be dealt with on account of the corresponding consequences on the major issue of reconciliation. There was a perception that most of the people were civilians. Correcting that image has to be done in an authentic and credible way. If not it will continue to affect the reconciliation process.

Discussion: The discussion addressed several concerns about the issue of accountability.  Adequacy of the institutional arrangements proposed to take forward future accountability arising from the report.

The report is weak in this regard and questions arise as to whether the suggested institutional framework would be able to deliver and whether it has the capacity to deliver. In fact there will be a lot of dependence on existing organizations such as the Human Rights Commission, the Law Commission and such other organizations.

Therefore in considering the total structure of the way in which the report is to be 26

implemented it was considered that a team of persons who were commissioners themselves should take the lead and be the arbiters. The responsibility for facilitating and getting the others functioning should be the ones who wrote the report. If this responsibility is given to a Ministry, and there is a proposal for a Ministry of Reconciliation, it is a step in the wrong direction. It is necessary to forget about past accountability, begin accountability from now and build the structures and institutions that can effectively build transparency, reliability and flexibility and implement the accountability that we are talking about. 

What organizations?

If the government is not going to be the agency that is to act, the question arises as to who is responsible and the resources, funds and personnel. There was reference the LLRC report making recommendations regarding organizational arrangements for implementation of specific actions. It is possible to consider the option of the President inviting some of the political parties to participate directly or indirectly in addressing the conclusions arising in the LLRC report. It would then be a multi-partisan effort to take ownership in addressing some of the conclusions arising in the LLRC report. It brings in a role for parties, minorities or otherwise to address the grievances of their own communities.



Right of protection and application of IHL The issues relating to right of protection were discussed extensively and the following points were made. o The need to approach addressing issues regarding the right of protection cautiously as it could have implications for all times and all people. If there are circumstances that can take away the right of protection of people these need to be addressed and it would not be prudent to build case for taking away right of protection of any group of people. o That the jurisprudence on the matter is not just direct participation but direct and continuous participation, even military personnel who would have ceased to have been a part of the military personnel would have protection, therefore it would entail a overhaul of the total system to take away protection the way it is suggested and that LLRC should have not have delved into this issue at all and should have tried to change the discourse from one of war crimes and crimes against humanity to a discourse of truth and reconciliation. o That the right of protection is being addressed in the context of a war, an armed conflict where International Humanitarian Law applies is the context in which the right of protection should be interpreted. The issue is the duration of participation 27

o

o

o o

o



in hostilities and the point is as to who is to going to establish that duration making it impossible to establish who loses protection and who does not. The problem gets further complicated when there are no-fire zones, where bunkers are constructed and there is low visibility and your responses are entirely based on coordinates that the artillery comes up with.

That from a military point of view there can be no ambiguity as to who is a civilian or who is a combatant, of course the combatants were fighting in very close proximity to civilians and therefore there is no doubt that there would be collateral damage. But as far as the military is concerned there is no ambiguity as to who is a civilian and who is a combatant.

However it was pointed out that there were a whole range of persons who were not in uniform and at a certain point the combatants merge with the civilians and become indistinguishable from armed combatants. There is a problem in using international human rights law developed for use in inter-state conflicts where they are uniformed and have rights when surrendering.

Clarifying the nature of the conflict it was stated that it was not an inter-state war, but a non-international armed internal conflict.

At the same time it was also noted that in the submissions made by government officials there was never an admission that there was confusion between civilians and combatants. In fact measures were taken including UAV footage, aerial footage to identify who the civilians were and who the combatants were.

On the question of the position of those who were used as the human shield, whether they have protection or do they not have protection, the real issue is that of the human predicament of those who are compelled to join the combatants in various activities. This needs to be recognized and make the distinction. It is necessary to relate to the human situation wherein persons were placed in situations where they were not able to do anything about it. There is nothing available to deal with this issue and that is the problem.

Implications for the international regime of human rights That it is important to take into account implications of the treatment of accountability in the context of the international regime of human rights. This is an important aspect for civil society to consider as a part of the global civil society that protects the rights of people all over the world. The international system of justice is the last resort, the safety net that people in countries have. There must not be an indication at any time that we are doing anything to damage the international system of justice. We as civil society must pay attention to that and design our responses protecting that all the time.

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Concluding, Mr Selvakumaran said that it is better that we go forward and consider how we would be accountable in implementing the recommendations of the LLRC. He noted that some of the discussion has been hypothetical as we have not tested the validity and in which case a full-fledged inquiry is necessary. It is necessary to consider how we should go forward in coming up with Sri Lankan identity that would reflect reconciliation and promote reconciliation among the various communities in the country.

6.

Session on Human Rights and Reconciliation

Mr. Jehan Perera, Chairing the session, stated that on the face of it this session might not seem as controversial as accountability, with the TNA stating their willingness to support LLRC on nonaccountability issues, though the JHU and JVP had raised issues regarding the devolution of power. The question is about implementation, as to whether the government will move to implement these recommendations. At the Independence Day President Rajapaksa referred to the LLRC and said that the government had been working very hard on implementation. Mr. Perera noted that there were recommendations the LLRC had made such as singing of the national anthem in both languages and the remembrance of victims, though the President remembered only the patriots. Therefore questions arise about implementation. At the same time the very fact that the President referred to the LLRC at the Independence Day could mean that he is getting ready to promote the concept among the general public. At the same time there are those who are of the view that this was because of the forthcoming Human Rights Council Meeting in Geneva.

These are issues that the Panel would address in this session.

Presentations: Accountability issues in reconciliation: Dr. Devanesan Nesiah, opening the presentations said that reference was made to the three categories of responses to the LLRC report. The first category of responses was largely critical of the adequacy of attention given to accountability in the report. The second and third took different positions. Focusing on reconciliation what is needed is an institution which will prepare a scheme for reconciliation and carry it through. At the moment the State cannot fill that role and that is the problem. The minorities, particularly the Tamils do not have the confidence that the State is concerned with reconciliation of a kind that will be acceptable to them. The LLRC has suggested an institutional mechanism to deal with this situation. This cannot be separated from the issue of accountability because one of the problems is that the disappeared and the missing before the war, during the and after the war have not been accounted for. Even the estimates of numbers are not clear. This is a first requirement before any reconciliation can take place. The second is the political solution to the ethnic problem. Here again there has been no credible 29

initiative to resolve the national problem and that should be the second priority. The war ended more than two years ago and there is no accounting for the disappeared and there continue to be people disappearing all over the country but particularly in the north and east and particularly minorities, and among Sinhalese also. There can be no credibility in the State being able to deal with this question when some of those who continue to enjoy the confidence of the government have been associated with some of these incidents.

On the question of the detainees there are some good recommendations made such as the next of kin of detainees have the fundamental right to know the whereabouts of their family members who are under detention and they also have the right to access the detainees. It is only the government that can do this and announce this as the policy. If in detention the next of kin should have access to them and this should be done quickly, an announcement should be made in public and for some reason there has been no progress in this. On the conscription of children there has been some progress. On the vulnerable groups there has been some progress. In respect of the Muslims who were expelled by the LTTE from the north, no government has done nothing or very little to investigate and provide for them and the Muslim community has appointed their own Commission which is also mentioned in the LLRC report. So far apart from giving them rations very little has been done to help them.

On the political solution much has been said of the 13th amendment and resolution of the national question, but no progress has been made and no progress is likely to be made because no negotiation with political leaders of those affected is happening.

There should be time frames announced regarding what actions are taken, there are very good recommendations, and no recommendations have been implemented and does not seem to be getting ready for implementation. In regard to the singing of the national anthem in both languages the Dr. Nessiah noted that the LTTE would have been happy at that as they were against the national anthem being sung at all. On the institutional mechanism it is important that representatives of the victims of those who have suffered from all ethnic groups and all those who suffered like women should be represented.

Issues of human rights accountability and reconciliation: Mr. Javed Yusuf, making his remarks considered it important to look at how the LLRC came about and was of the view that it was clearly a response from the government to pressures from abroad. The mandate of the LLRC clearly does not relate to accountability issues, but the government held out to the international community that these issues will be dealt with and their expectations were raised that would never be realized through the Commission’s report. The question then arises as to why the LLRC went into accountability issues in any form. The reason 30

why would seem to be that the people who were victims wanted a government commission that was looking at the whole thing to bear their grievances which the Commission could not shut out. The Commission therefore without making specific inquiries, makes observations without coming to definite findings which points the way in which these issues could be dealt with.

This brings the discourse up to the point that whatever mechanism that is available for reconciliation should be made use of to the optimum. Civil society has failed in that. There were many allegations against Karuna and Minister Douglas Devenanda, which they denied when the Commission confronted them which the allegations. However the Commission flagged them and said that these should be inquired. There were those INGOs and the TNA could have gone before the Commission and made submissions regarding issues which were of concern. The Human Rights Commission law requires that whenever detention is made under the Prevention of Terrorism Act and Emergency Regulations those arresting must inform the Human Rights Commission, which is required to maintain a database, and when released should be informed to preclude disappearances. The provision is still there and it has not been made use of. The LLRC has made a specific recommendation, one of the best recommendations, for a Commission of Investigation. We do not need commissions of inquiry that can be long drawn and accountability needs to be done as fast as possible if not the victims suffer for a long period and the trauma remains. As recommended the Commissioner will investigate and handover to the AG for immediate prosecution.

There have been human rights violations by the army over the years. However the army has since become informed of human rights issues and has since improved considerably in regard to human rights protection and promotion. In the last few months when fighting intensified there could have been, no doubt, excesses, which can be established only by a credible inquiry, but not an international inquiry, but a credible internal inquiry that will bring closure and also be fair by the army. To reach the goal of reconciliation it must be imaginatively designed. The LLRC recommendations would seem to have caught the government unawares and not is sure how to react. In fact this is in the government’s own self interest. There are those recommendations that can be implemented immediately. Of course the political settlement will take longer. But if there is a political will and sense of urgency it can be achieved.

Issues of implementing reconciliation: Making her presentation Ms. Gnana Moonesinghe stated that if one is serious about reconciliation we must not be apportioning blame to any party, we must try to get ahead and we must use the lessons learnt to move forward and to discover ways of resolving and developing understanding. While there are many criticisms of the LLRC there is a set of issues that they have focused on and suggested recommendations and if one does not get involved in 31

controversies but only deal with whatever positive factors that have been raised in the report substantial progress would have been made in the process of reconciliation. The time is propitious to act and for the civil society to move forward.

Some of the things that the Commission has highlighted raises the issue of the future responsibility of the state to ensure the safety and security of the citizens and expects accountability from the political leaders. The report recognizes that there have been violations of democratic rights. One is media freedom which recognizes the freedom of expression and rights to information, universally regarded as playing a pivotal role in a reconciliation process. Media freedom should be enhanced in keeping with democratic principles and fundamental obligations.

They also suggest ways and means of deterring this situation by having punishments on such offences if they are found guilty, give priority attention to investigation, prosecution and disposal of such cases to build public confidence. Also that government should allow freedom of movement of media personnel in the north and east as it would help in the exchange of information contributing to the process of reconciliation.

Regarding disappearances a recommendation is made to appoint a Commissioner of Investigation and provide material to the Attorney General to initiate criminal proceedings as appropriate. Appointment of an Advisory Commission to monitor and examine anyone taken under public security ordinance or the PTA is recommended. A centralized data base has been proposed containing a list of detainees and to be made available to next of kin. A further recommendation is to undertake a household survey to ascertain first hand information on death and injury to civilians and property. Further recommendation in this regard is to frame domestic legislation is framed to specifically criminalize enforced disappearances.

Issues have been raised with regard to illegal armed groups creating a threat to the civilians and creating a fear syndrome, Karuna, Pillayan, EPDP, who are all associated with the government.

It speaks for the independence of the Commission to do that and also gives doubt as to what will be implemented. Disarming people carrying illegal arms that attacks on civilian property could have been avoided.

The LLRC has further recommended that the judiciary should be independent and function with transparent legal processes and with strict adherence to the rule of law for peace and stability of the country. The LLRC notes that violations and political interference has taken place and recognizes the need to bring restorative justice into the system. To aid the legal process, the police are to be assisted by Attorney General’s departments set up in the provinces to advise the police on criminal investigations. It is important to ensure that there is no political interference in these institutions that are created if not it can thwart the whole process that is created.

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A Public Service Commission is suggested because there is political interference, a recommendation which would seem to go against the government’s action to remove the 17th amendment. What is being asked for is the installation of the Public Service Commission that has existed from independence.

A further recommendation is de-militarization by phasing out all involvement of security forces in civilian activities in the north. If an atmosphere of trust and confidence can be created among the communities then it should not be impossible to phase out the military and remove them from the civilian administration.

While much has been said about the moral responsibility of the government, the political parties and Tamils themselves must take responsibility for having created a situation that can be ameliorated and requires public pronouncements and pledges of commitment which we have heard in many places but not made any sense. It is implementation of actions that is important if not it is a futile exercise. What was important in the report is that they have given recommendations regarding good governance, talked about all government offices having Tamil speaking offices at all times and police stations to have bi-lingual officers, things that can be done and will go a long way to reconciliation.

A proactive policy of mixed schools from different ethnic backgrounds has been recommended.

Then there is the singing the national anthem in both languages to the same melody, which is also a question of the mind set. Laws against hate speech have been noted. Further recommendation is the learning of each other’s language being made a compulsory part of the school curriculum, something which has been dividing the communities.

The LLRC calls for a constructive engagement addressing the concerns of the diaspora. Many difficulties are experienced with travel restrictions, obtaining dual citizenship has been stopped and making of remittances which affect minority communities which many do not know.

Removal of ethnic classification of Sri Lankan identity cards which came as a post-report recommendation and to the extent it limits discrimination is welcome.

Discussion: The discussion addressed several issues relating to implementation of reconciliation.  Role of the civil society in implementation That implementation would require concurrent action by the government and civil society.

Implementation actions could be considered to fall into three categories, what the government has to implement because non-government actors cannot do those, those actions that require 33

lobbying the government to exert maximum pressure to implement, and what civil society can by itself do towards this goal of reconciliation.  Genuineness in implementation That there is a perception of all talk about reconciliation coming from the leaders of the country is only for political mileage, and is misleading the country. The message that seems to come through is that if the living conditions, particularly the economic conditions of the ordinary masses are improved that it would be the path to reconciliation. The question that arises in the discourse on implementation of the LLRC report is as whether most of the important things are addressed in the LLRC report and if those recommendations are not being implemented then what the government is thinking and doing is not going to result in any positive developments. o That a lot of things are happening, it is not that nothing is happening, but probably not enough is happening. The President has said that they are working very hard on implementing the LLRC report. But there are certain overriding issues such as the reconciliation process, collective acknowledgement of suffering that has been caused for which we all should acknowledge responsibility, which have not been addressed yet. What is to be done in regard to development is known quite well, that problems of the victims should be dealt with. The issue is that there are pronouncements being made, but we in civil society do not see action being taken, reports being made public and what progress has been made. o What has been set out by the LLRC as its recommendations stretches over the whole of the government system and what the LLRC is saying is have an organization that can bring all of these together into an integrated whole and let there be a monitoring and evaluation of that process, that is have an apex organization that has visibility which makes civil society feel that implementation is taken seriously. The question is whether civil society should argue for an institutional framework for the coordinated implementation of the LLRC report. And should this institutional framework be responsible to the public and to Parliament? So that it becomes a public process. o The question that is being asked in civil society is as to whether the government can really implement this report, taken up by those who are critical of the report and by those who are hostile or taken up critical positions about the government. That question takes us nowhere. We have to assume that there is a government responsible to the people democratically and we as civil society can activate this government to act responsibly and would urge that the government has a desire to implement but may have a lot of problems. o There is a question of the lack of trust arising from the positions taken by political parties during the conflict, through which the government has to steer itself in moving 34

on to implementation. There are different positions being taken on several of the matters the LLRC has addressed such as the political settlement. What the LLRC report has is the process where first you establish the trust and confidence the ability to relate to each other with understanding and to address some of those hardcore problems.

7.



Creating consensus There are issues at a very difficult level which the government need to take charge such as the political solution, but there are also issues at the individual level of economic and social rights. Thus people want to get back to their own houses and if they are denied the right to go back it creates suspicion, as to whether they are going to lose their land.

Political parties and interested groups can thrive on these uncertainties. The government can act on these issues. Implementation requires consensus and matters that affect the individual people must be attended to by the government if they are to be brought into the process of reconciliation



Missing persons In regard to the very large number of missing persons, what is needed is information on their status, even whether dead, which would give great relief to the people. These are things that can be done immediately for which protracted negotiations are not required.



Need for an overall approach There is a need for a reconciliation policy enunciated by the government which would then inform the actions of all, administration and so on, as to what approach to take. If the government takes steps to give dignity and caring for people it would go a long way to resolve many other issues. Civil society can only do so much and the government must give the lead. Civil society can create the ground support for government actions, people being informed and being aware. In fact the LLRC considers right to information to be pivotal to reconciliation.

Summing-up

Moving on to the implementation mechanisms, it was noted that the LLRC has made specific recommendations regarding mechanisms for implementation. Main conclusions arising from the seminar are, first, there is a need for an apex body, presidential task force or cabinet subcommittee with a secretariat. The second, there is a need for a time bound programme to which the civil society can relate. The third important conclusion arising is that implementation should move to truth and reconciliation, accountability issues are related to truth and reconciliation 35

rather than get involved in legalistic aspects. There is a need for a visible plan of action which can be monitored from the public as well. In conclusion, the focus should be on the substantive recommendations relating to truth and reconciliation, and see that accountability issues are linked to truth and reconciliation without getting too much involved in the legal applications and so on which are important but can be pursued independently. With regard to reconciliation there are many components that can be implemented without delay and others which will require consensus over a long period of negotiation. While not neglecting those concentrate on those that can be immediately implemented which is largely to do about disappearances, long list of issues which have to do with good governance and issues that deal directly touch the lives of the people, housing , land, resettlement, relations with the government, language. All of these are being implemented in different parts and what we are asking is that Implementation should be coordinated through an apex body that has the authority to deal with the whole system, probably in the nature of a Cabinet Sub-committee and under the chairmanship of the President and a process that is responsible to Parliament through which people are fully informed of implementation.

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Annex 1 SEMINAR PROGRAMME

Seminar on Post-war Accountability and Reconciliation: Redefining Sri Lankan Identity on 9th February 2012 at Marga Auditorium

AGENDA 8.30 a.m.

- 9.00 a.m.

-

Registration

9.00 a.m.

- 9.30 a.m.

-

Introduction - Chair : Mr. Mangala Moonesinghe Setting the Context - Dr. Godfrey Gunatilleke Seminar Framework - Mr. Asoka Gunawardena

-

0 9.30 a.m.

- 10.30 a.m.

-

10.30 a.m.

- 11.00 a.m.

-

11.00 a.m.

- 1.00 p.m.

-

1.00 p.m.

- 1.30 p.m.

-

1.30 p.m.

-

-

Issues of Accountability - Chair : Dr. N. Selvakkumaran - Panelists : Mr. Gehan Gunatilleke Mr. Jeevan Thiagarajah Mr. Neville Ladduwahetty Tea Issues of Human Rights and Reconciliation - Chair : Mr. Jehan Perera - Panelists : Dr. Devanesan Nesiah Dr. Javid Yusuf Ms. Gnana Moonesinghe Summing up - Dr. Godfrey Gunatilleke Lunch

Marga Institute 941/1, Jayanthi Mawatha Kotte Road, Ethul Kotte Tel: 2888790

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Annex 2 LIST OF PARTICIPANTS

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

Ms. Gnana Moonesinghe Mr. Nihal Ladduwahetty Dr. Devanesan Nesiah Mr. S.H.M. Jameel Mr. Jagath Senaratne Fr. Mervyn Fernando Mr. John Gunaratne Dr. Lloyd Fernando Mr. Joe Williams Dr. Jehan Perera Mr. N. Selvakkumaran Mr. Gehan Gunatilleke Mr. Chandra Jayaratne Prof. W.D. Lakshman Mr. Ravi. Kandage Mr. Chamindha Rajakaruna Mr. Jeevan Thiagarajah Mr. Javid Yusuf Ms. Chandani Watawala Mr. Arjuna Gunawardena Mr. Mangala Moonesinghe Dr. Godfrey Gunatilleke Mr. Asoka Gunawardena Ms. Myrtle Perera Mr. Newton Fernando Mr. P.B. Wijayatilleke Ms. Yvonne Schokman

38

Annex 3 RESPONSES TO THE LLRC REPORT

39

PART 2 IMPLEMENTING THE LLRC RECOMMENDATIONS: MARGA PROPOSALS

40

IMPLEMENTING THE LLRC RECOMMENDATIONS: MOVING FROM A PAST OF CONFLICT TO A FUTURE OF HARMONIOUS CO-EXISTENCE The report of the LLRC provides a framework of actions for setting in motion a process and a mechanism to move from the past of conflict and strife to a future society founded on the continued recognition of democracy, peaceful co-existence affording of equal opportunities for all Sri Lankans as is guaranteed by the Constitution. Thus the report and the recommendations constitute a framework for action, by all stakeholders, in particular the government, political parties and community leaders, a platform for consolidating efforts to move towards reconciliation. Therefore what is needed is to design the framework and platform for moving from conflict to reconciliation and on to peace and human development in a coherent manner.

The focus of implementation: All of the areas where the LLRC considered decisions to be necessary are about people. In this regard it is necessary to recognize that there is indeed a real danger of reification of the mechanisms, the plans of action, of road maps that may be constructed for purpose of bringing closure, relief, restitution and development to people who have suffered from the ravages of the conflict, rather than allow bargaining of vested elite positions and interests. Therefore as the LLRC urged it is necessary to ensure the widest possible publicity to the recommendations and promote public awareness of the contents and implementation measures in a manner that brings about the widest possible engagement of the people in the implementation process.

Steering the journey out of conflict can be a complex process of where specific parts of recommendations may gain greater attention and importance undermining the whole of the outcome that is sought. Thus rights, restitution and reconciliation are about people, people of all communities, between communities and also within communities. Therefore reconciliation must be envisioned within an institutional framework, as recognized and emphasized by the LLRC, underpinned by democratic governance. The institutional mechanisms and processes must then ensure that the centrality of victims, grievances, rights and freedoms.

The nature and scope of LLRC recommendations: The material placed before the LLRC covered a broad range of complex issues which can be placed under three broad themes.  Issues of accountability arising out of the military operations and government actions during the last stages of the war.  The present state of human rights, good governance and the rule of law, resettlement and restoration of civilian administration  The root causes of the conflict, the political solution and sharing of power and the long term process of reconciliation and harmonious co-existence.

A statement of “Implementation Issues” is presented in Annex 1.

41

In the final analysis these themes reflect ethical, socio-cultural and political dilemmas that must be resolved in the process of implementation raising fundamental problems about truth and justice, democratization, and reconciliation. They constitute a complex totality of the issues.

Therefore implementation cannot be fragmented and must be an integrated in a total process. As emphasized repeatedly reconciliation requires closure (a public acknowledgement of what happened) of the wounds of the conflict. The challenge of implementation will be to bring about the shift from closure at the individual level to reconciliation at the societal level brining governance, rule of law, a culture of democracy to the centre to sustain reconciliation.

Towards an implementation programme and strategy: Thus the recommendations of the LLRC extend from actions related to concerns of persons at the individual level to issues to be worked out in regard to reconciliation at the societal level.

There are several elements in the design of a programme and strategy for the implementation of the recommendations of the LLRC. a. Core areas of implementation actions; constituted by actions regarding issues arising from the conduct of the last stages of the conflict, issues relating to affected persons, and issues of reconciliation. b. Scope of implementation; extending from legal and judicial dispositions, through issues of rights and actions for restoration of the livelihood to reconciliation at group and societal level. c. Principles underpinning implementation actions; in terms of a set of implicit values set out as the guiding basis for undertaking the recommended implementation actions. d. Roles and responsibilities of stakeholders; involving both state and non-state actors with the extent of their roles and responsibilities of engagement varying as one moves from accountability to issues of rights, governance and rule of law and to reconciliation. e. Focal implementation agencies; with responsibility for designing and implementing a programme component (Chapters 4 – 8) the substance of which will include a clear statement of responsibilities, outcomes and outputs, and stakeholders who will be implementation partners. f. Information and reporting responsibilities; for reporting to the multiple stakeholders and centres of accountability for oversight of implementation.

(Annex 2 presents the proposed Implementation Governance Framework) Structuring the process: Taken in its totality the implementation actions must be perceived coherently as constituting an institutional platform that would guarantee the performance of the implementation roles and responsibilities. There are several design imperatives of a dynamic institutional arrangement for steering the implementation process.

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a. Accountability, rights and restitution, and reconciliation constitute a total process, requires a holistic perspective and a comprehensive approach. The overall objectives of peace, harmony and prosperity cannot be achieved if implementation is fragmented across the thematic issue areas. b. On the demand side, community stakeholders of accountability, reparation and livelihoods, and reconciliation constitute a diversity of interests and concerns that however should be brought into the process. Equity and participation should be explicit procedural considerations to bring about inclusiveness. c. On the delivery side, state and non-state stakeholders that will be responsible for implementation will also constitute a diversity of interests and motivations requiring a guarantee of performance that will contribute positively to the objectives of accountability, rights and restitution, and reconciliation. Good governance imperatives of accountability and transparency in the implementation actions will constitute necessary procedural consideration to create a community of collective reconciliation effort.

Thus, since reconciliation constitutes a total process implementation should take place through the mainstream the government administrative system and not established as a separate and parallel action system. However there are several roles and responsibilities that would need to be clearly established so as to give coherence, direction and leadership to the process. a. Steerage of implementation; Since implementation of the specific actions constituting the programme strategy will be carried out by the regular government administrative agencies, an overall steerage functions will be critical to provide coherence, direction and leadership to the process.

Steerage will take place at the national and district levels. i. National level At the national level a National Council on Reconciliation will be established as the apex body with responsibility to give direction to the programme and process.

The Council would comprise of not more than fifteen members. The appointment of the members will be made by the President to represent state and non-state stakeholder interests as well as professionals with experience in the respective issue areas. The professional members will function as chairpersons of thematic Committees constituted for each issue area. The National Council will make arrangements to conduct reviews in the districts as may be considered necessary to deepen its local level engagement. ii. District level At the district level a similar steering group, a District Reconciliation Committee, will be constituted comprised of members of the civil society and heads of the respective government agencies with implementation responsibilities. The district 43

steering group will be chaired by the District Secretary. The main purpose of the district steering group is to localize the national programme to address specific issues in the district. The district steerage mechanism would also conduct hearings and provide for transparent and accountable implementation. b. Stakeholder programme deliberations; Opportunities for stakeholders to participate in the implementation process will be provided at the national level through the thematic Committees and at the district level through the District Reconciliation Committee. Stakeholder participation is necessary to ensure equity and inclusiveness of the implementation process. c. Implementation of programme actions: The implementation of programme actions will be the responsibility of designated government agencies which will function as the “focal agency� for developing the relevant component of the programme strategy into an implementable action plan. The action plan will specify the responsibilities of partner organizations, both state and nonstate. Focal agencies will report periodically to the National Commission in respect of the progress of implementation. d. Political accountability: The steerage and implementation of the programme strategy will be made accountable to a Parliamentary Committee for Reconciliation. The National Council will report quarterly to the Parliamentary Committee and a review conducted. The Parliamentary committee will also conduct hearings in different parts of the country as it deems necessary to ascertain the progress of implementation. e. Review of progress: Internal progress review arrangements will be worked out as appropriate. The National Council will submit monthly status reports to the President and a bi-monthly review of progress will be carried out the President. f. Information and reporting: A comprehensive information and reporting system would be established especially inform the people and communities on the programme, action plans, and progress.

(Proposed institutional arrangements for implementation is set out in Annex 3) Mainstreaming implementation: The strategy for the implementation of the LLRC recommendation should be to mainstream the ensuing actions and activities within the regular government administration system and process.

Accordingly accountability, rights and restitution, and reconciliation would constitute functional actions and activities of government agencies as would be appropriate and according to action imperatives of issues arising in the course of implementation.

44

These are issues of human development that should set the overall context for carrying forward the LLRC agenda through the implementation of its recommendations. What is important to understand is that the implementation of its recommendations will constitutes milestones in the journey the country undertakes as a whole and hence the necessity to set the process within the larger context of human development.

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Annex 1 IMPLEMENTATION ISSUES ISSUES 1. Accountability IHL Issues: i. Instances of Civilian Killings and Injury (4.106 – 4.1011) ii. Disappearances after Surrender/arrest by security forces (4.242 – 4.258) iii. Civilian casualties

iv. Channel 4 allegation of war crimes v. Crimes committed by LTTE

vi. The application of IHL regime Human Rights Issues i. Missing persons, disappearances and abductions ii. Detainees iii. Illegal armed groups iv. Conscription of Children

RECOMENDATIONS

AGENCY

NOTES

Further inquiry and action on findings

Committees of inquiry appointed by Army and navy

Ministry of Defence/Army/Navy

Full investigation

Covered by action on (i)

Same as above

A special household survey to ascertain the number initially

Census of the North completed

Ministry of Finance/Department of Census

The data on war casualties need to be further analysed for civilian deaths and Households who have left the Northern Province and not been enumerated

A full independent investigation

Action not taken yet

Investigations and appropriate punishment

Part action under LTTE rehabilitation programme

Further action by international community

No information on action taken so far

Commissioner General Rehabilitation/ Ministry of Justice/Attorney General Ministry of Justice/External Affairs Ministry

The crimes committed by LTTE leadership and Diaspora is not covered A Sri Lankan Team could commence work

Appointment of a Special Commissioner of Investigation

Action taken by Attorney General to refer cases taken up by LLRC to CID for investigation Case being expedited

Ministry of Justice

LLRC recommendation is not fully implemented

Not yet fully implemented

Ministry of Justice

Rehabilitation programme implemented

Ministry of Justice/Commissioner general Rehabilitations

Independent Advisory Committee/Comprehensive data base Full investigation of Interim Recommendations of LLRC Follow-up on action plan between TMVP, UNICEF and Commissioner General Rehabilitation Inter-agency task force

v. Vulnerable groups (Women, Elderly, Children) vi. Freedom of expression and Right to information vii. Follow-up on Presidential Publication of reports Commissions 2. Post-conflict Resettlement and Human Development i. Release of high security zones Phase release with time lines ii. Land issues

ACTION TAKEN

Implement program for regulating

Ministry of Justice

No information action taken so far Action Plan on Human Rights Reports not published yet

Action initiated. Plan and time lines not given Action initiated on dealing with land

Whether governed by military law?

The lead agency in the inter-agency task force not yet identified The process of implementation and monitoring not given Presidential Secretariat

Ministry of Defence Land Commissioner/Government

46

iii. Permanent shelter

management of land activities in the North and East. Land plan for each district Implementation of programme

titles

Agents/Presidential Secretariat

Ministry of Economic Development

iv. Livelihoods/Agriculture, Fisheries and Irrigation

Accelerate work already being done

v. Infrastructure, Transport, health and Education vi. Restitution, Reparation and Relies

Accelerate work already being done

Programme being implemented with Indian assistance (3 year programme) Ministry of Economic Development/Presidential Task Force/Joint Plan of Action Joint plan of action

Review role and capacity of REPIA, expedite payments, allocate funds for full payment with time lines Plan for re-establishing civilian administration

Work in progress. Need to expedite claims, larger allocation and grants needed Transfer taking place slowly, no clearly determined plans.

Recommendations made on law and order and human rights are integral to the process of redressing grievance. Approach should be inclusive and should not neglect grievances of Muslims and other non-Tamil groups.

A special institution to deal with citizen grievance arising from the lack of good governance Non discrimination/consultation and peoples participation in development/Special programme to promote attitudinal change needed in the public services/Reversion to civilian administration/Review of legislation Devolution should be peoplecentred; appropriate empowerment of people at all levels; building on what exists for maximum devolution at the ground level and provincial level; strengthening of local government institutions; and accountability of political leaders to people.

Action plans broken down to community level with targets to be monitored by citizen participation; compulsory teaching of Sinhala and Tamil; promotion of tri-lingualism;

No information on action taken so far

Presidential Secretariat

No information on action being taken so far

Ministry of Public Administration/Ministry of Public Management Reform

Parliamentary Select Committee, All Party Dialogue

President, Cabinet and Political Parties

Current programmes

Ministry of National Languages and Social Integration

vii. Re-establishment of Civilian Administration 3. Post Conflict Reconciliation i. Grievances (a. Tamils, b.

Muslims, c. Sinhala villages adjacent to former conflict areas, Tamils of Indian origin)

ii. Principles of good governance

iii. The principle of devolution and empowerment of people

iv. Language policy

Ministry of Economic Development and relevant development Ministries Ministry of Economic Development and relevant development Ministries

The application of the principles of good governance and the principles of devolution of the empowerment of people has to be articulated throughout the system and monitored even before there is agreement on a constitutional arrangement on devolution.

47

v. Education

vi. Inter-faith activities

vii. Culture

viii. Societal initiatives for reconciliation

Branches of Official Language Commission in Provinces; Bi-lingual officers in police stations on a 24 hour basis. All government departments to have Tamil speaking officers Equitable distribution of education facilities; mixed schools; interaction programmes for schools; reconciliation clubs; peace education in schools Collective leadership from all religions; Religions contributes to a shared vision of the good life; and early warning system relating to religious tension and conflict; firm action against attacks on places of worship.

Promoting greater awareness and linguistic and cultural affinities; translation of Sinhala writings into Tamil and Tamil into Sinhala; national anthem to be sung in both languages A collective act of contrition by political leaders and civil society; moral self-appraisal of the past and a joint declaration.

A separate event on the national day for the remembrance of victims of all communities

Current programmes

Ministry of Education/Ministry of Youth Affairs

General civil society initiatives

Ministry of Social Integration

No action so far

Ministry of Culture

No action so far

President, Cabinet, Political Leadership of all parties, Religious leaders; Civil society

48

GOVERNANCE FRAMEWORK FOR IMPLEMENTING LLRC RECOMMENDATIONS NATIONAL COUNCIL ON RECONCILIATION

Appointed by the President with responsibility for specific functional areas of implementation action, a clear time-bound agenda and agreed results, working through consultative committees, supported by a fulltime secretariat directing implementation, through designated focal government agencies ACCOUNTABILITY

RESTITUTION & LIVELIHOODS

IHL Issues

RECONCILIATION

Closure of past suffering and move towards restorative justice

Duty on the part of the state to ascertain fully the humanitarian circumstances of events during the final phase of the conflict

Human Rights

Definitive action on violation of fundamental rights and freedoms of people affected by the conflict, preventive measures as well as relief to conflict created vulnerable groups

Establishing a frameworks of of rule of law and good governance for human development in moving towards reconciliation

Return & Resettlement

Land policy not an instrument to effect changes in the demographic pattern of Provinces. Distribution of state land in inter-provincial irrigation or land settlement schemes should continue as provided for in the Constitution of Sri Lanka.

Restitution & Relief

Application of principles and practices of restitution and compensatory relief to persons affected the conflict

Post-conflict Reconciliation

Articulate a common vision of an interdependent, just, equitable, open and diverse society based on the involvement of the whole of society

PARTICIPATORY AND PARTNERSHIP GOVERNANCE Ensure total participation and partnership of state and non-state actors State Civil society and Corporate Sector INFORMATION AND REPORTING Ensure fullest transparency in implementation to elicit maximum engagement of all stakeholders PARLIAMENTARY COMMITTEE ON RECONCILIATION Ensure accountability to the public and the parliament as the elected representatives of the people bringing about their participation in the process

49

Annex 3 INSTITUTIONAL ARRANGEMENTS FOR IMPLEMENTATION OF LLRC RECOMMENDATIONS

PARLIAMENTARY COMMITTEE ON RECONCILIATION

PRESIDENT

NATIONAL COUNCIL FOR RECONCILIATION

THEMATIC COMMITTEES (IHL Issues, Human Rights; Land Issues; Restitution and Relief; Reconciliation)

DESIGNATED IMPLEMENTING FOCAL GOVERNMENT MINISTRIES

DISTRICT RECONCILIATION COMMITTEE

NON-STATE PARTNERS

50

51