In less than two weeks since the Darusman Report hereinafter referred to as the Report was handed over to the United Nations Secretary General hereinafter referred to as UNSG , a large number of articles have been written about the report, its motivations and on its impact on Sri Lanka. Public reactions to the leaked sections of the Report are best glimpsed from Groundviews , where comments made by readers include rather heated debates on issues such as the number of Eelam War IV casualties raised in the Report. Reactions to the Report from Colombo accuses the UN over undue interference, and rejects the accusations laid against GoSL and the state military forces. A quick look at comments made by readers on many a news website may suffice to notice that this view is strongly espoused by a significant segment of the Sinhalese community. Moreover, there can indeed be members of the Tamil and Moor communities who also subscribe to this viewpoint.
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The seminar was the outcome of an initiative taken by a small group of citizens. The Marga Institute convened two meetings of this group in May and June After an exchange of views which helped to identify some of the main issues, participants agreed that the Marga institute should draft a position paper based on an objective and detailed analysis of the substantive content of the report.
This draft paper prepared by Dr Godfrey Gunatilleke served as the working document for the seminar. The seminar was organized in four sessions. The fourth session was devoted to the issues of post war reconciliation. The seminar concluded with a summing up. The substantive sessions 2, 3 and 4 were structured in the form of panel discussions and question and answer sessions followed by comments and questions from participants.
The participants at the seminar represented a multi-ethnic multi- religious cross section of civil society and included senior personnel from several civil society organizations, religious leaders, lawyers, academics, former public servants and diplomats.
The panel discussants were persons with expertise, knowledge and experience in the relevant areas dealt with in the sessions. The Strength of the panel report is that it presents possibly the strongest case against the Government and the Army. The Weakness of the report is that it had to work within severe constraints which did not enable it to access the vital information available with the government on the last stages of the war.
It does not adequately examine the implications of this lacuna for the adequacy of their report. Consequently the narrative of events given in the report is inaccurate and incomplete leading to serious misrepresentations. Nevertheless the Panel report opens the Opportunity to the government and all concerned groups to deal with the fundamentally important humanitarian issues of the events.
The Threat lies in the refusal to respond to the report in an appropriate form that deals with the grave allegations that are made. Gunatilleke stressed that the main focus of the seminar is not to engage in a critique of the Panel report per se.
It is to gain a fuller knowledge of the human tragedy and the civilian deaths and casualties in the last stages of the war and help in the process of reconciliation. Has the panel examined all possible explanations and interpretations of the events and actions before coming to its conclusions? In dealing with the strategies and actions of the LTTE the Panel has evidently obtained reliable and adequate information from various sources.
The Panel gives a graphic account of the manner in which the NFZ was being converted into a battlefield and the civilians were being integrated into it as part of a ruthless defence strategy. The panel does not openly admit this lacuna and admit its implications. In the absence of a full account from the GOSL it falls back on a few statements of the government which claimed that the war was a humanitarian operation directed at rescuing the Vanni population from the control of the LTTE with zero civilian casualties.
It treats these public statements as the full account which the GOSL has to give of all its actions and dismisses these claims. It concludes that the GOSL denied adequate supplies of food and medicine to the civilian population, that there was deliberate shelling of hospitals and civilians and that there is a credible allegation that the GOSL committed a crime against humanity by actions calculated to bring about the destruction of a significant part of the Tamil civilian population in the Wanni.
It could have frankly admitted the constraints within which it had to work and acknowledged that it was presenting the allegations it had received from the sources to which it had access and also evaluated those sources of information in relation to the constituencies and agendas they represented.
The dubious manner in which the Panel exceeds its mandate which does not include fact finding and investigation. What it actually does belies its statement that its work does not include fact finding and investigation leading to conclusions about culpability. The lack of transparency in not disclosing the sources of information and assessing their reliability.
The Panel makes no reference to favourable assessments and accounts given by UN agencies and other organisations and observers of the IDP situation. Apparently it also had no information or knowledge of the outpouring of sympathy and the generous flow of essential goods to IDP centres from all parts of the country. It leaves out all facts which may contradict its own account of the inhuman treatment of the IDPs by an oppressive government.
All these issues are examined in greater detail and further elaborated in the working paper. The terms of the panel were ambiguous giving the panel the discretion to carry out an exercise which in fact became both fact finding and investigation. The failure to define the true character of the war as a legitimate military operation to destroy the military capability of a terrorist organization which was in control of territory and population.
Failure to examine the wide ranging controversy of the applicability of the rules of conventional war to these extreme situations and the need to redefine the rules of war. Consequently the panel makes no contribution to the definition and enhancement of the process of accountability and law pertaining to these extreme situations. The panel defines its own position as transitional justice which must contain an essential component of accountability for past criminal actions which would lead to prosecution and punishment.
It can include prosecution and punishment for heinous crimes but the punishment will be governed by principles of restorative justice that will include non-custodial sentences and processes of rehabilitation.
The government takes the position that the army did not commit war crimes in conducting its military operation. It also appears that the GOSL would be ready to investigate allegations of crimes committed by individual members of the army.
The government also argues that the process of reconciliation is best promoted through restorative justice. The exchange between the Panel through the UNSG and the GOSL on restorative justice points to the options that need to be considered for a genuine process of reconciliation.
Could it draw on the core values which are shared by all four major religions which have co-existed peacefully in the midst of a fierce ethnic conflict? Is there greater wisdom and sustainability of justice in the more holistic approach preferred by the government? Nevertheless 5. It is tantamount to one judicial body commenting on how another judicial body is conducting a case while hearings are in progress.
The comments the Panel makes on the independence and impartiality of the Commission are of a nature that would apply to any national Commission. The South African Commission was criticized on similar grounds. The LLRC has gained public acceptance; its independence will have to be judged on the basis of its final report. It reiterates the critical assessments and the recommendations that have been made in various other reports of civil society organisations and human rights activists.
The ongoing policies and programmes of government are also addressing most of these issues. It states that the front organizations and businesses of the LTTE are continuing and the funds of the LTTE available abroad should be confiscated for use in making reparations to the victims.
The Panel however makes no specific recommendation regarding accountability and international co-operation to deal with the problems of the Diaspora. Recommendations : The panel makes four main recommendations. The recommendation A that government should commence immediately genuine investigations into alleged violations of international humanitarian and human rights law committed by both sides.
The government has made it clear that all the issues relating to the final stages of the war will be covered by the LLRC under its mandate within the framework of restorative justice. The UNSG has stated that it cannot take action on recommendation B i which calls for an independent international mechanism and will monitor the domestic process of accountability under existing UN processes and mechanisms.
Recommendation 2 ABC - regarding short —term measures, for making reparation to victims restoring normalcy and dealing with disappearances are recommendations that government should have no hesitation in endorsing as they are already on the government agenda. The main problem would be one of speedy and effective implementation. Recommendation 3 Long—term measures: examining the root causes of the conflict a great deal already done how should we revisit it in a manner that is meaningful for the present process of reconciliation?
Acknowledgement of the government role for extensive civilian casualties — this is not acceptable in the manner in which it is stated by the Panel but an expression of collective grief some form of collective expiation for the tragic human consequences of the war and the human cost of the atrocities and violations that preceded it may be needed to strengthen the process of reconciliation The Panel flags the issue of reparations.
A consistent policy for reparations is an essential element of reconciliation It has to have two dimensions One the collective and community based dimension which promotes social and economic development and raises the living standards of the people in the conflict —affected regions; the other individual reparation for deaths disappearances and other disadvantaged conditions which require special support and assistance.
The Panel recommends a full inquiry into the role and conduct of the United Nations staff during the Wanni military operation. This provides an opportunity for examining the norms of conduct of UN staff in the face of the complex dilemmas they face in certain extreme situations as in the Wanni.
Unresolved Critical Issues relating to the last stages of the war. After the initial phase of the operation the actions of the LTTE in using the civilians as shield and hostage placed new demands on the government and the army. How did the government meet this challenge? Could the civilians have been separated from the LTTE before they were compelled to move into the narrow coastal zone?
By the mass conscription of civilians for military activity in the NFZ the building of fortifications with civilian conscripts and the use of all means available for military 7. How is intentionality and proportionality of army actions to be judged in such a situation? The LTTE was refusing to surrender. It was becoming clear that the defeat of the LTTE and the rescue of the hostages would entail heavy human cost- deaths of the LTTE combatants, conscripted civilians, soldiers and non combatant civilians.
What were the options available to the army? We are then left with the human cost of the operation as it took place. The final estimate of civilian deaths would have to await the estimate of the persons dead or missing as given by the IDPs. This is a task that should be high on the agenda of the LLRC. The government has not given an estimate of all deaths in the last stages of the war. An estimate of zero civilian casualties is meaningless in the face of incontrovertible evidence that there were a large number of deaths of men women and children.
We may spend a great deal of time trying to decide whether the events that caused these deaths fall into the category of war crimes or not What is unquestionable however is that there is a deep moral obligation cast on all the key actors in this drama to acknowledge the human tragedy that was caused by the war, ascertain the full nature and extent of that tragedy and make reparation that would bring solace to the bereaved and heal the deep wounds that have been inflicted in the course of the war.
It is within the conditions that have been described above that the issues of accountability as well as restorative justice may have to be framed and conclusions drawn. In that process the deaths of civilians and their plight in the battlefield have to be at the centre. At the outset it was noted that this section constitutes the base of the Report on the basis of which it goes on to make its recommendation. A series of questions regarding the narrative of the last stages of the war as presented in the Report sought to guide the deliberations of the session.
The panelist followed these questions in making their presentations. The Seminar report presents the deliberations in that format in respect of the deliberations on the military operations. A brief presentation was made on the treatment of affected persons prior to and following the end of the war.
This presentation did not cover the treatment of the displaced in the camps. The Military Operation i. The seminar panellists found that the account on the last stages of the war as rendered in the Report not complete, nor adequate, if it is taken as an objective narration of the events.
However, since the report has been released to the public and is being treated and used as a historical account, its biases and subjectivity must be brought into account.
In order to be fair and objective, they considered that the panel would have needed to interview combatants as well as eyewitnesses to ascertain motive for some of the acts which are alleged to be criminal. It would need to examine the actual scenes of the crimes instead of merely examining photographs. In spite of this statement, the seminar panellist noted that the laying out of the events takes the form of a narrative or historical account, suggesting that it is fact rather than allegation.
Thus, footnotes are given to previously documented statements or reports, but there is no indication of where the other information came from. It is, of course, understandable that witnesses cannot be named at this stage, though it is still necessary to indicate the capacity of eyewitnesses, whether he or she a civilian IDP, an NGO worker, or a journalist?
Often, allegations of the use of artillery, cluster munitions, white phosphorous, etc are made without any indication of the source, or what expertise that source may or may not have in determining whether these were indeed the weapons and munitions used. Others disappeared, as recounted by their wives and relatives during the LLRC hearings. The seminar panellists found that the report analyzes certain events and draws conclusions which often do not take into account factors that the report itself acknowledges elsewhere.
South Asia Analysis Group analyses Darusman Report
The failure of government to respond sensibly to the Darusman report and the unfair attacks on the Sri Lankan and UN leadership during the conflict. Given the various responses being now made, officially and unofficially, to the appointment by Navi Pillay of a panel to look into Sri Lanka, I thought it would be useful to look at how we got ourselves into this mess. Instead of reading it carefully, understanding what precisely was going on, rebutting the many falsities and exaggerations in it, and dealing ourselves with the few items of substance, we engaged in indiscriminate aggression combined by sanctimoniousness that never seemed sincere. What we should have done instead was deal with the issue forthright. The President realized when Darusman came out that sensible responses were needed, and immediately put me on the team to negotiate with the TNA, as well as on the Inter-Ministerial Committee to implement the interim recommendations of the LLRC.
Sri Lankas Failure To Respond Darusman Report
The panel's work revealed "a very different version of the final stages of the war than that maintained to this day by the Government of Sri Lanka ". The panel found that as many as 40, civilians may have been killed in the final months of the civil war, most as a result of indiscriminate shelling by the Sri Lankan military. The final months of the Sri Lankan Civil War resulted in the deaths of thousands of civilians, the displacement of more than ,, and allegations of gross violations of international and humanitarian law by both sides. Foreign governments, international human groups and Sri Lankan Tamil diaspora groups all called for an independent investigation. At end of the trip the UNSG and Sri Lankan President Mahinda Rajapaksa issued a joint statement in which the Sri Lankan government agreed to take measures on accountability for violations of international humanitarian and human rights law. In the following months the Sri Lankan government failed to take any meaningful steps on accountability and more evidence emerged of alleged violations during the final months of the civil war.