The wait for Justice : CHR Report Final Nov 17

THE WAIT FOR JUSTICE 1

T H E W A I T F O R

JUSTICE Critical analysis of Lessons Learnt and Reconciliation Commission

Center for Human Rights CHR-Sri Lanka

2 THE WAIT FOR JUSTICE

The Center for Human Rights- Sri Lanka was established in 2010 in a bid to address the growing human rights concerns in the country and to educate the people about issues which have been neglected by the main stream media or civil society groups for various reasons.

In the past two years we have stud-ied, spoken about and published greatly on Freedom of Information, Academic Freedom of Universities and the Lessons Learnt and Recon-ciliation Commission.

We were the only independent civil society who observed the LLRC’s outstation sessions consistently and its reports on these sessions have been widely quoted by both local and foreign media. From the beginning the LLRC has responded positively to CHR’s reports and rec-ommendations and we have been instrumental in introducing several mechanisms ensuring the safety of those coming to give evidence and assuring transparency. Published in November, 2011

Center for Human Rights100/19AWelikadawatta RoadRajagiriya, Sri Lanka0114-341514fax:0112866224

© CHR- Sri Lanka 2011

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chrsrilanka.com

Written byVositha WijenayakeRathindra Kuruwita

Edited byRajith Keerthi TennakoonSurangi Ariyawansha


Published in November, 2011

Center for Human Rights100/19AWelikadawatta RoadRajagiriya, Sri Lanka0114-341514fax:0112866224


The end of 30 years of war provides a unique opportunity to the Sri Lankan Civil society to look back and ascertain the past mistakes. However the Sri Lankan civil society has little space to generate alternative policies against the existing ones of the state. It has been further aggravated following the war due to the triumphant mentality of the majority and the victorious mindset of the rulers. This is not a new feature and it is commonly existent in many a post war situation. Nevertheless, Center for Human Rights believes that it is our bounden duty as a civil society organization to avert reoccurrence of conflict and address the causes that lead to ethno-political violence. Therefore, through the existing LLRC process it is the duty of civil society organizations, to explore and lobby to reframe the path of reconciliation efforts by the government along the lines of true political, psycho-social and victim perpetrator reconciliation. We believe the current process is not sufficient to understand the depths of the ethno-political conflict of Sri Lanka and its past, or the current post war–conflict situation. In addition the LLRC process and its objectives cannot be deemed as sufficient to understand the true reconciliation means: political, psycho-social and victim-perpetrator aspects of reconciliation. Therefore, there is the need to generate a new action program and a strategy to make reconciliation, in order to reach a viable alternative future in Sri Lanka. Moreover any alternative efforts that are aimed at the creation and sustenance of reconciliation and polices need to enhance the mandate of the receiving testimonies. There exists also the need for the LLRC commissioners to whom the submissions

are made to be of impartiality, non-conflict of interest, and also be representatives of ethnic harmony and be politically balance. Thus it is indispensable that he process is equipped with experts who have multi-disciplinary knowledge, skills and correct attitudes to resolve data gaps between conflicting perceptions and resolving perceptions. The strategy we propose is to use the existing LLRC process to resolve this existing data gap. In the conversion of testimonies into lessons learnt, the adoption of modern narrative techniques combined with expert knowledge guided by correct terms of references form an asset. In this sense what is needed is a correct working definition for reconciliation that is deem worthy as suitable for the conditions pertaining in Sri Lanka. Furthermore, the lessons learnt need be evolved into policies without perpetual stagnation as results that emanated from former commissions of inquiry.On an additional observation of the process it is visible that there is a lack of participation or involvement of masses in the process. There has also existed a persistent lacuna of media activism for the implementation of a process that is communicated to the grassroot level of Sri Lankan society. CHR, Sri Lanka through this report and its active observation of the LLRC process strives to rectify the problems that be noted since the inception of the LLRC. Thus the report is a reflection of those observations and thoughts for improvement in a process that needs to be experiences leading to lessons learnt, which in turn will lead to implementation of practical and productive policies for reaching reconciliation in the Sri Lankan society.

Executive Summary


Centre for Human Rights (CHR) believes that civil society participation is crucial in converting testimonies into lessons learnt, and to push the government into adopting modern narrative techniques combined with expert knowledge guided by correct terms of references to achieve this.

We believe that what is needed is a correct working definition for reconciliation suitable for Sri Lanka conditions. Further, there is a need to convert lessons learnt into policies without sending those reports into back burner, like what has happened in the past. There is no assurance that the LLRC report will not follow this path, unless we build a consensus among the general public that the recommendations of the LLRC should be carried out.

Moreover, there is a need for a true reconciliation process which is a change management process in the terms of modern organizational science, to involve the society in deliberating facts and circumstances parallel to official reconciliation deliberations. During the initial phase of the LLRC proceedings we observed that there is no involvement of masses in this process and no

proper media involvement for required social engineering. It needs be noted that there was virtually no coverage for LLRC outstation sessions by mainstream English and Sinhala papers. Therefore CHR has stepped up to the task by observing the LLRC sessions, both in Colombo and outstation, and raising awareness among the public as a mechanism for bridging this gap.

We have been campaigning to introduce a comprehensive reconciliation building process which incorporates people’s experiences, conversion of these experiences to lessons guided by a proper Terms of Reference, development of proper policy regime and action plan based on true lessons learnt and finally generate wide discourse among the masses for a change that will bring stability and legitimacy.

CHR, Sri Lanka has in its own way been been able to rectify certain aspects of the LLRC process since the beginning of LLRC. This final report is based on our experiences of that interaction, interventions and our final bid to have an affect on the LLRC’s final report which is planned to be out on the 15th of November 2011.

The Need for InterventionWomen holding photos of their missing family members in Jaffna


LLRC can be deemed as the response of the Sri Lankan government to the call of the international community to establish an investigation for the alleged human rights violations during the 30 years civil war of Sri Lanka.

In 2009 , following the visit to the North of Sri Lanka immediately after the end of the civil war, the UN Secretary General Ban Ki-moon and Sri Lankan President Mahinda Rajapaksa issued a joint communiqué on 23 May 2009 in which the Secretary-General “underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law,”. President Rajapaksa promised that the Sri Lankan government would “take measures to address those grievances.” He reiterated Sri Lanka’s “strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations.” (1)

In order to maintain the commitment he advocated towards the process of the search for truth, the UN secretary General named a panel of international experts to advise him on accountability issues in Sri Lanka. The members of the panel were Marzuki Darusman (Indonesia), Chair; Steven Ratner (United States); and Yasmin Sooka (South Africa). This Panel submitted their report on the subject matter to Ban Ki-moon on 12 April 2011 and it mentioned of having “found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity.” (2)

In addition to the above the report further recommended that the Secretary-General “immediately proceed to establish an independent international mechanism” to:

(i) Monitor and assess the extent to which the Government of Sri Lanka is carrying out an effective domestic accountability process, including genuine investigations of the alleged violations, and periodically advise the Secretary-General on its findings; (ii) Conduct investigations independently into the alleged violations, having regard to genuine and effective domestic investigations; and (iii) Collect and safeguard for appropriate future use information provided to it, which is relevant to accountability for the final stages of the war, including the information gathered by the Panel and other bodies in the United Nations system. (3)

The report was released on the 25 April 2011 but Ban Ki-moon asserted that he lacked the authority to establish an independent international accountability mechanism. In lieu of what he claimed he was unable to provide a solution that was viable, it was informed that he awaited authorization from another UN body, such as the Security Council or the Human Rights Council. Finally in September 2011 the report was referred to the President of the HRC and the High Commissioner for Human Rights by the Secretary General of the United Nations.The Panel’s report was rejected by the Sri Lankan External Affairs Ministry which issued its rejection despite acknowledging that it had not yet reviewed the report in depth. (4)

The local impetus for the alleged violations came in the form of the LLRC which was appointed by President Mahinda Rajapaksa. According to the introduction provided through the President’s Media Unit on the establishing of such commission, it was highlighted that it was for the purposes of reporting “on the lessons to be learnt from the events in the period, Feb 2002 to May 2009, their attendant concerns and to recommend measures to ensure that there will be no recurrence of such a situation”. The Commission has been further

Introduction to Lessons Learnt and Reconciliation Commission


charged with “ reporting whether any person, group or institution directly or indirectly bears responsibility in this regard.” (5)

On May 15, President Rajapaksa appointed the eight member ‘Lessons Learnt and Reconciliation’ Commission to report on lessons to be learnt from the events in the period, February 2002 to May 2009, their attendant concerns and to recommend measures to ensure that there will be no recurrence of such a situation, under a six months mandate ending on November 15. (6)

The memorandum by the President which was given cabinet approval for the mandating of the Commission provides that “ it has been apparent for quite some time to the Government, that the conflict situation due to the very brutality and long duration of the violence perpetrated against Sri Lanka, would have caused great hurt and anguish in the minds of the people, that requires endeavours for rehabilitation and the restoration of democratic governance complimented by measures for reconciliation.”

LLRC is deemed to be perceived as “the Government’s commitment to the promotion and protection of human rights, as consistently articulated and affirmed by Sri Lanka at Sessions of the Human Rights Council. The President informed the cabinet that in order to accomplish this task it has become necessary to set in motion a mechanism which will provide a historic bridge between the past of a society characterized by inflicted strife and a future

society founded on the continued recognition of democracy and peaceful co-existence and the affording of equal opportunities for all Sri Lankans as guaranteed by the Constitution.” (7)

It has been further noted that the Commission has been set in place based on the truth and reconciliation commission of South Africa which sort to address the grievances of the apartheid of that Nation, through the relating of the “stories” of those suffered and those who committed acts of violence against others. In addition to this the commission is also stated to be influenced by the Iraq Inquiry of the UK.The six month mandated which was granted on the 15th of May 2010 extended by another six months by the Sri Lankan President Mahinda Rajapaksa in order to facilitate the Commission to record more evidence.

The Commission was set up under provisions of Section 2 of the Commissions of Inquiry Act (Chapter 393). Former Attorney General and LLRC Chairman, Presidents Counsel C. R. de Silva, stated upon the extension” the Commission wish to avail an opportunity for more members of general public to testify before it.” (8) He further added that “The independence and impartiality of the Lessons Learnt and Reconciliation Commission in all fairness must be judged by the performance of the commission and not on the basis of pre-conceived notions,” (9)“Despite your ill-founded misgivings about the outcome of the commission’s work, the commission will strongly safeguard its independence and will continue to work towards fulfilling its mandate,” (10)


The Eight member ‘Lessons Learnt and Reconciliation’ Commission was appointed by the Presindent Mahinda Rajapaksa on the 15th of May 2010 to report on lessons to be learnt from the events during the period from February 2002 to May 2009, their attendant concerns and to recommend measures to ensure that there will be no recurrence of such a situation.As illustrated in the introduction the mandate provides the commissioners with the task of reporting whether any person, group or institution directly or indirectly bears responsibility to the events occurred during the time duration provided, and on measures to be taken to prevent the recurrence of such events in the future whilst promoting national unity and reconciliation among all communities.

On the initial mandated, the commissioners were directed to report back to the President within six months from the date of appointment - 15th May, 2010. Nevertheless on the completion of the first term, the President chose to extend the mandate for the duration of another 6 months. The LLRC’s mandate will be terminated on the 15th of November 2011.

Background to the Commissioners of the LLRC

Mr. C. R. de Silva PC, Chairman, is a former Attorney General and Solicitor General of Sri Lanka. He was a Member of the Council of Legal Education, and of the Law Commission of Sri Lanka. He was called to the Bar in 1974, worked in the chambers of several prominent lawyers of the private Bar before joining the Attorney Genera’s Department in 1975. He took “silk” as a President’s Counsel in 1997.He has been a member of the Sri Lanka delegation to many international bodies including the Afro-Asian Legal Consultative Committee, UN Human Rights Council, UN Human Rights Committee, UN Convention against Torture Committee and the UN Committee for the Convention on the Elimination of Racial Discrimination.

Dr. Rohan Perera PC, was Legal Advisor of the Ministry of Foreign Affairs and was elected as the Sri Lanka candidate to the International Law Commission, by the UN General Assembly in New York securing one of the seven seats allocated to the Asian region.

The Composition of the Commission

The LLRC Commissioners


The International Law Commission was established in 1949 by the General Assembly and entrusted with codification and progressive development of international law.

Dr. Perera has served for over thirty years in the Ministry of Foreign Affairs, initially as assistant Legal Advisor and thereafter, as a legal advisor and is also was chairman of the UN ad-hoc Committee on Measures to Eliminate International Terrorism which concluded the International Convention on the Suppression of Acts of Nuclear Terrorism. This Committee has been negotiating a comprehensive Convention on Terrorism.

He also served as a member of the group of legal advisors and constitutional experts appointed by the President to advice the All Party Representatives Committee on a constitutional reform to resolve the issues relating to ensuring ethnic unity in Sri Lanka.Prof. Karunaratne Hangawatte, currently professor of criminal justice in the State of Nevada’s premier university in Las Vegas, has undertaken extensive research on global terrorism that has qualified him to teach a course on terrorism in the criminal justice department.

Dr. Karu Hangawatte received his LL.B. from the University of Ceylon, Colombo, in 1970 and his Ph.D. (with distinction) in criminal justice in 1984 from the State University of New York at Albany. He is an attorney-at-law of the Supreme Court of Sri Lanka. His areas of interest include law and society, criminal law and procedure, constitutional law, legal method and process, terrorism and political violence, and the administration of criminal justice. He has been an assistant secretary of justice in Sri Lanka.He was one of the experts who worked on the United Nations declaration on the victims of crime and abuse of power and violation of human rights, which covered the cold war era. The UN adopted this declaration in 1985.During the time he was in Sri Lanka Hangawatte occupied a position in the legal research section in the Ministry of Justice and later as assistant secretary of the same ministry. He has also received several teaching awards at UNLV.

Mr. HMGS Palihakkara, was former Permanent Representative of Sri Lanka to the United Nations. He has served on the Secretary-General’s Advisory Board on Disarmament Matters. He retired as the Foreign Secretary of Sri Lanka in December 2006 after 38 years of civil and diplomatic service.

Since the 1990s, he has served on a number of assignments to the United Nations in Geneva and New York, covering work related to the General Assembly’s First Committee (Disarmament and International Security), and later the Conference on Disarmament, as well as on human rights, humanitarian and economic and social affairs. He either led or participated as a member of Sri Lanka’s delegation in several peace and security/disarmament-related conferences and meetings, including the 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons.

He served as Sri Lanka’s Permanent Representative to the United Nations and head of delegation to the Conference on Disarmament from 1997 to 2000. After his work in Geneva, he was appointed Ambassador to Thailand, Cambodia, Lao Peoples Democratic Republic and Viet Nam, and from 2000 to 2004 served as his country’s Permanent Representative to the United Nations Economic and Social

The Commissioners of LLRC

The Commissioners appointed under provisions of Section 2 of the Commissions of Inquiry Act (Chapter 393) are,

1. Chitta Ranjan de Silva Esq, PC - Chairman

2. Dr. Amrith Rohan Perera Esq, PC3. Prof. Mohamed Thahir Mohamed Jiffry

Esq (was replaced by MTM Bafiq Esq)4. Prof. Karunaratna Hangawatta ESq5. Chandirapal Chanmugam Esq6. Hewa Mathara Gamage Siripala

Palihakkara Esq7. Mrs. Manohari Ramanathan8. Maxwell Parakrama Paranagama Esq


Commission for Asia and the Pacific (ESCAP).Mr. Palihakkara served as Acting Director-General and Deputy Director-General of Sri Lanka’s Peace Secretariat (SCOPP), which serviced the Norwegian-facilitated peace talks (2002) and subsequent ceasefire (2003).

Among other positions, during the mid-1990s, he was Director-General of Multilateral Affairs at Sri Lanka’s Foreign Ministry, covering work related to preventive diplomacy, peace-building, arms control and non-proliferation.

Holding a Bachelor of Education degree from the University of Ceylon, Peradeniya, Sri Lanka, Mr. Palihakkara entered his country’s foreign service in 1979. His foreign affairs training took place in Australia in 1980, and he followed up his studies in international human rights and humanitarian law at the Raul Wallenberg Institute, University of Lund, Sweden.

Professor M T M Jiffry, is Vice Chairman of the University Grants Commission, Senior Professor of Physiology -University of Sri Jayewardenepura, an Examiner of the Post Graduate Institute of Medicine, and former President, Health Informatics Society of Sri Lanka.

He has been active in the building of inter-ethnic understanding and has been engaged in the advance of education in Sri Lanka to serve the needs of all communities.(Professor Jiffry passed away in September 2010 at a private nursing home. He was replaced by MTM Bafiq, Senior Attorney at law. )

MTM Bafiq, is a senior attorney at law, and was the Commissioner of the Human Rights Commission of Sri Lanka between 2006-09

Mr. C. Chanmugam is former Secretary to the Treasury and former member of the Monetary Board of Sri Lanka. He was also Chairman of the Board of Directors of Fitch Ratings Sri Lanka. An Associate of the Royal Institute of Chemistry, Mr. Chanmugam has held many positions of distinction in Sri Lanka and abroad.

He was the Executive Director of the Institute of Policy Studies, Sri Lanka. A former Advisor to the Ministry of Finance and Planning, was also e Secretary to the Ministry of Finance and Planning; the Alternate Governor to the Asian Development Bank and the World Bank (1987-88). In Sri Lanka, he was also Chairman, Foreign Investment and Advisory Committee and the Controller of Tea, Rubber and Coconut industries.

Mrs. Mano Ramanathan, had a long and distinguished career in the legal profession where she rose to be the Deputy Legal Draughtsman. She has been active in the reform of law to strengthen the rights of women and children, as has been associated with work involving women’s empowerment. She is the wife of the late Justice P. Ramanathan.

Mr. Maxwell Paranagama, a former High Court Judge had a distinguished career in the legal profession before elevation to the bench of the High Court.


Following is the text of the Warrant issued by President Mahinda Rajapaksa:

WHEREAS I am of the opinion that an opportune moment has arrived to reflect on the conflict phase and the sufferings the country has gone through as a whole and having regard to the common aspirations of all we have collectively resolved that our people are assured an era of peace, harmony and prosperity;

WHEREAS It has become necessary that while we as an independent and proud nation of multi-ethnic polity undertake a journey of common goals in a spirit of co-operation, partnership and friendship we also learn from this recent history lessons that would ensure that there will be no recurrence of any internecine conflict in the future;WHEREAS I am of the opinion that it is in the interest of public welfare, to appoint a Commission of Inquiry for the purposes hereinafter mentioned;

NOW THEREFORE I, Mahinda Rajapaksa, President, reposing great trust and confidence in your prudence, ability, independence and fidelity, do, in pursuance of the provisions of Section 2 of the Commission of Inquiry Act (Chapter 393), by these presents, appoint you, the said;

1. Chitta Ranjan de Silva Esq, PC2. Dr. Amrith Rohan Perera Esq, PC3. Prof. Mohamed Thahir Mohamed Jiffry Esq4. Prof. Karunaratna Hangawatta ESq5. Chandirapal Chanmugam Esq6. Hewa Mathara Gamage Siripala Palihakkara

Esq7. Mrs. Manohari Ramanathan8. Maxwell Parakrama Paranagama Esq

To be my Commissioners, to inquire and report on the following matters that may have taken place during the period between 21st February 2002 and 19th May 2009, namely;

i. the facts and circumstances which led to the failure of the ceasefire agreement operationalized on 21st February 2002 and the sequence of events that followed thereafter up to the 19th of May 2009;

ii. whether any person, group, or institution directly or indirectly bear responsibility in this regard;

iii. the lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence;

iv. the methodology whereby restitution to any person affected by those events or their dependents or to heirs, can be effected;

v. the institutional administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of this Warrant

AND I do hereby appoint you the said Chittaranjan de Silva Esq, President’s Counsel and retired Attorney General to be the Chairman of the said Commission;

AND I do hereby authorize and empower you the said Commissioners, to hold all such inquiries and to make all such investigations into the aforesaid matters as may appear to you to be necessary, and require you to transmit to me within six months of the date hereof, a report thereon under your hand, setting of the finding of requires and your recommendations relating thereto;

And I do hereby direct that such part of any inquiry relating to the aforesaid matters as you may in your discretion determine, shall not be held in public,

And I do hereby require and direct all Public Officers and other persons to whom you may apply for such assistance or information for the purpose of your inquiries or investigations, to render all such assistance and furnish all such information as may be properly rendered and furnished in that behalf;

And I do hereby declare that the provisions of Section 14 of the Commissions Inquiry Act (Chapter 393) shall apply to the Commission;GIVEN at Colombo, under the seal of the ten.

The Mandate of the LLRC


The mandate of the LLRC does not allow explicitly the investigation of violations of human rights and humanitarian law, nor does it has as its aim the bring to justice of those who have committed acts of human rights violations. .

President Rajapaksa charged the LLRC with seeking “methodology whereby restitution to any person affected by those events [between the February 2002 ceasefire and the end of armed conflict on 19 May 2009] or their dependents or their heirs, can be affected”. Unfortunately the definition of what constitutes restitution has been left unelaborated.

Thus the lack of a definition as to what constitutes restitution in the terms of LLRC has left the

commission one with an undefined objective which has been handed to the Commissioners to be moulded for the better or the worse. Thus one can see the flexibility of the Commission as one which could be a negative feature which could be blocking the deliverance of a substantial result or on a positive note as leaving it open for the Commission to use in a flexible manner to befit the situations or the circumstances that need be addressed.

An analysis of the LLRC’s proceedings renders it clear as to what the Commissioners deemed be the interpretation of the mandate. It is illustrated through the conduct of the Commission that they did not interpret the mandate to mean that they were to “seek justice for violations of international

LLRC: The Mandate and Its Interpretation


human rights and international humanitarian law. The Commissioners instead undertook a survey of public and official perceptions about the root causes of ethnic conflict in Sri Lanka; the reasons for the breakdown of the 2002 ceasefire and persons responsible for that breakdown” (11)

The Chairman of the LLRC in his inaugural session in Colombo states “..His Excellency the President has appointed a Commission entrusted with the task of primarily identifying the root causes that led to the failure of the Ceasefire Agreement entered into in 2002 and also identify the person or persons or groups esponsible for its breakdown. Secondly, to identify lessons learnt from our past experiences to ensure that such incidents will not occur again. Thirdly, and most importantly, to formulate proposals which would ensure national unity and reconciliation amongst all communities in Sri Lanka in order to usher in an era of peace and prosperity. . the people are the primary concern of our deliberations and inquiries. With that in view we have invited the public to make representations to the Commission regarding matters which are relevant to the Mandate granted to us in the Warrant. In addition the Commission has decided to hold sittings in areas that were affected by the war. This has been done with a view of providing access to the people in these areas to air their grievances and identify the problems that they encountered in the past and also that they encounter at present after the ending of the war. ” (12)

Pricilla B. Hayner in her “International Guidelines for the Creation and Operation of Truth Commissions: A Preliminary Proposal” highlights the advantages of a “flexible but strong mandate for investigation”. She states that “Each commission’s mandate should be appropriate to the situation or conflict at hand, and flexible

enough to allow interpretation by the members of the commission. It is far preferred that a commission’s mandate does not list specific events to be investigated, instead using more general language to allow the commission to shape its investigations and report around the facts and patterns revealed. Language calling for investigation into “serious acts of violence which have impacted on society” or “gross violations of human rights, including violations which were part of a systematic pattern of abuse,” have given past commissions the leeway to judge which crimes, or which patterns of abuse, demand investigation and public explanation.”

Taking the above quote into consideration it could also be deemed that, despite criticism by certain entities as to the flexibility of the mandate it can be seen that the flexibility and the space left for interpretation does not necessarily amount to a draw back. Such characteristic of the mandate can be also seen as an added advantage which provides it with an adaptive quality to suit the circumstances that require to be addressed.

The point relating to human rights violations was addressed by the Commissioners of the LLRC when former Defence Secretary Austin Fernando stated that sufficient priority has not been given to by the Human Rights by the LLRC Mandate. In addition Minister of External Affairs GL Peiris, in a statement added that the mandate of the LLRC encompasses issues of Human Rights issues as well. He said, “Human rights issues,…, falls with the mandate of Lessons Learnt and Reconciliation Commission (LLRC) and within Sri Lanka’s judiciary. (13) He further added that “The Sri Lankan legal system is capable of resolving issues that has evidence which would stand up to scrutiny at the court of law” (14)


“Truth commissions — official, temporary bodies established to investigate a pattern of violations over a period of time that conclude with a final report and recommendations for reforms — have been created in more than thirty countries in the past twenty-five to thirty years”(15). They can be described as being created on an ad basis, and usually amidst a political transition “as a means to respond to the legacy of a horrific past. (16)” Such commissions are by intention destined to be short-lived, and does not reflect the function of a “courts nor a human rights ombudsman in their function and aims. By their very nature, truth commissions are quite pliable, and can be created in almost any shape or size, and to fit any number of agendas, depending on the circumstances and who holds the most influence over their design and operation.” (17)

The establishing on the South African truth commission in 1995, the idea of a non- judicial inquiry to address the past widespread abuses has become popular among many governments.

These truth commissions “ are set up for a short period of time — one to three years on average — and may employ hundreds of staff to collect individual statements, organize public hearings and undertake case investigations and thematic research. Some have been given subpoena powers or the right to gain access to official offices and official documents without warning. Others have had rely on the voluntary cooperation — not only of high-level officials but also of direct perpetrators, sometimes in return for promises of confidentiality. Truth commissions virtually always receive extensive, detailed information from victims, survivors and other witnesses, usually gathering many thousands of detailed statements.

Some of these may also be presented in public hearings, thus allowing the public to engage in the process long before the final report is release” (18)It needs be noted that these commissions are deprived of the power to prosecute, but many have recommended that prosecutions take place.

Truth Commissions


In truth commissions where they are proposed or created where an “international or hybrid tribunal is underway” there have been questions raised as to their functioning. Examples of such can be seen in Sierra Leone, where the public was initially at a loss to grasp the “distinction between (and independence of) the Sierra Leone Truth and Reconciliation Commission and the Special Court”. Similar problems were seen in Bosnia and Herzegovina, where “an early proposal for a truth commission was at first strongly resisted by the International Criminal Tribunal for the former Yugoslavia (ICTY), which feared that such a commission would complicate its work.” (19)

Despite its popularity, as Priscilla B. Heyer points out, “the South African amnesty-for-truth model is very unusual and indeed inappropriate and unworkable in most contexts.” (20) As she points out “the offer of amnesty in exchange for full and public truth-telling is not likely to be taken up unless there is a serious threat of prosecution for those crimes.”

What needs to be highlighted is the necessity for each new commission to be “rooted in the realities and possibilities of its particular environment. While the international community can play a major role in assisting these processes, any successful truth commission process must be a reflection of national will and a national commitment to fully understand and learn from the country’s difficult, sometimes very controversial and often quite painful history. A commission must aim to understand the origins of past conflict and the factors that allowed abuses to take place, and to do so in a manner that is both supportive of victims and inclusive of a wide range of perspectives.”

Truth Commissions of the World

From 1974 to 2007, at least 32 truth commissions were established in 28 countries. More than half of these commissions have been established in the past ten years. Other truth commissions are also being considered.

• Argentina (National Commission on the Disappearance of Persons, 1983)

• Bolivia (National Commission of Inquiry into Disappearances, 1982)

• Chad (Commission of Inquiry on the Crimes

and Misappropriations Committed by the ex-President Habré, his Accomplices and/or Accessories, 1991)

• Chile (National Commission for Truth and Reconciliation, 1990; National Commission on Political Imprisonment and Torture, 2003),

• Democratic Republic of Congo (Truth and Reconciliation Commission, 2003)

• Ecuador (Truth and Justice Commission, 1996; Truth Commission, 2007)

• El Salvador (Commission of Truth, 1992)• Germany (Commission of Inquiry for the

Assessment of History and Consequences of the SED Dictatorship in Germany, 1992)

• Ghana (National Reconciliation Commission, 2002)

• Grenada (Truth and Reconciliation Commission, 2001)

• Guatemala (Commission for the Historical Clarification of Human Rights Violations and Acts of Violence which Caused Suffering to the Guatemalan People, 1997)

• Haiti (National Commission for Truth and Justice, 1995)

• Indonesia (Truth and Reconciliation Commission, 2004)

• Liberia (Truth and Reconciliation Commission, 2005)

• Morocco (Equity and Reconciliation Commission, 2004)

• Nepal (Commission of Inquiry to Locate the Persons Disappeared during the Panchayat Period, 1990)

• Nigeria (Human Rights Violations Investigation Commission, 1999)

• Panama (Truth Commission, 2001)• Paraguay (Truth and Justice Commission, 2003)• Peru (Truth and Reconciliation Commission,

2000)• Sierra Leone (Truth and Reconciliation

Commission, 2002)• South Africa (Truth and Reconciliation

Commission, 1995)• South Korea (Presidential Truth Commission on

Suspicious Deaths, 2000)• Sri Lanka (Presidential Commission of Inquiry

into Involuntary Removal and Disappearances of Persons in Western, Southern and Sabaragamuwa Provinces, Presidential Commission of Inquiry into Involuntary Removal and Disappearances of Persons in the Central, North Western, North Central and Uva Provinces and Presidential Commission of Inquiry into


Involuntary Removal and Disappearances of Persons in the Northern & Eastern Provinces, 1994)

• Timor-Leste (Commission for Reception, Truth and Reconciliation, 2002)

• Uganda (Commission of Inquiry into the Disappearance of people in Uganda, 1974 and Commission of inquiry into Violations of Human Rights, 1986)

• Uruguay (Investigative Commission on the Situation of Disappeared People and its Causes, 1985 and Peace Commission, 2000)

• Yugoslavia, Federal Republic of (Truth and Reconciliation Commission, 2001)

A point many critics of the LLRC note is the failure of many commissions of inquiries of the recent past in Sri Lanka. Despite the high number, it has been repeatedly being highlighted that they have not yielded the expected results. In addition to the critics of the LLRC the panel of Experts appointed by the UNSC also have indicated that the results of the LLRC would be guided in the same direction of its predecessors. The general perception of the Commission being doubted as to its success, given the track record of the former of its kind not addressing the issues

as expected.“Indeed, there is a troublingly consistent experience with previous commissions of inquiry created in response to calls for accountability for serious and systematic abuses of human rights. Spanning three decades and beginning with the 1977 Sansoni Commission, these commissions have almost invariably been beset by a combination of flaws that have profoundly hampered their work. Despite severe limitations, however, certain commissions have produced a measure of fact-finding and made important recommendations for accountability. On the information before the Panel, in no instance over the full span of 33 years since the initial mechanism in 1977 has the follow-up from a commission’s findings and recommendations resulted in more than marginal accountability, at either individual or systemic levels. The striking lesson that can be derived from these previous processes is the lack of political will displayed by successive Governments to address the issue of accountability in a manner consistent with international standards. This past experience is relevant for assessing the extent to which the LLRC can potentially contribute to genuine (21) accountability.”


The LLRC which began its hearings in Colombo in August 2010 was initially granted a mandate of six months which was later extended. Colombo sessions featured government officials, military officers, politicians, clergy and other prominent citizens. These submission makers were requested to provide information on what went wrong with the 2002 ceasefire and how best to proceed with reconciliation.

The overall number of submission makers in Colombo amounts to 140 people made representations to the commission in Colombo. (22) Many or most were known supporters of the current government and its policies; a handful could be considered critics. The vast majority of people testifying in Colombo were from the Sinhalese majority community; about 30 were Tamil and only five were Muslim. The LLRC also conducted hearings in the north and the east of Sri Lanka where thousands of individuals who were directly affected by the conflict testified. Apart from this the LLRC also visited Vavuniya, Kilnochchi, Mulativu, Batticaloa, Jaffna, Trincomalee, Puttalam, Mannar,

Weli Oya, Galle, Matara, Boossa, Kandy, Monaragala, Anuradhapura and Ampara.

While many came before the commission voluntarily to make their statements, when required the Commission requested some individuals to appeared before it, such as the Vanni doctors who made their submissions in the Colombo hearings. In addition to this several Human Rights Groups such as International Crisis Group, Amnesty International and Human Rights Watch turned down invitations by the LLRC. The LLRC’s timeframe has been extended twice. In mid-May 2011, when the commission was due to submit its final report to the President, Sri Lankan media reports indicated that the LLRC would seek a six month extension and that President Rajapaksa was prepared to grant it. The Commissioners are now scheduled to deliver a final report to the President by November 2011, buying Sri Lanka more time to negotiate away calls for an international investigation into alleged war crimes committed by both sides during the last phase of Sri Lanka’s armed conflict in 2009. (23)

The Process



Access

The access to the LLRC sessions was open to the general public who were allowed to come and attend the sessions unless they were closed session or were decided to be done on camera at the request of the submission maker or the Commission. The submission makers were requested to make the submissions by the Commission or they had made their interest to make submission at the Commission known for the session to be held in Colombo.

However, with regards to the sessions that were outstation sessions, the LLRC Commissioners worked closely with District Secretaries who employed the Grama Niladaris to disseminate the information to the residents of the areas as to when and where the LLRC sessions would be held. This information also included the type of submissions that were accepted by the LLRC. The process could be described as having functioned without any hindrance except in those areas where the be the presence of the paramilitary groups.

An illustration of such a situation where the presence of the paramilitary groups had an impact on the access to the LLRC sessions cab ne seen during the sessions in Keytes Island, Jaffna, where many who testified at St Mary’s church stated that they came to know of the through media and that their respective Grama Niladaris

had not informed them of the holding of sessions of the LLRC. They further alleged that the EPDP was involved in an effort to change the mindset of the people into not attending the Commission. As a result of these events the Grama Niladaris were instructed not to inform the dates and the venues of the LLRC sessions during the days leading to the sessions on 14th of November.

The intimidation of those who were interested in being part of the Commission sessions was not restricted to merely outside the Commission hearings. Even during the sessions, the presence of the members of the EPDP were felt as they were taking photos of those who came forward to give evidence. A situation was created, when a photojournalist of the Yaal Thinakura took a photo of those individuals who were intimidating the public, a man who appeared to be the leader of the intimidators threatened the journalist with death. The situation was solved only on the intervention of journalists from Colombo, representatives of the several embassies and the LLRC commissioners which lead the Police to take action regarding the incident. However the person who was thus taken into custody was immediately released upon being warned by the police.

During the sessions in Mankumban Pillayar Kovil, Velani, Kaytes about 20 newly appointed Grama Sewa Niladaris, who many residents claimed were members of the EPDP, were

LLRC and Public Opinion

The police question the individual (highlighted in red) who threatened a Yaal Thinakural journalist during the LLRC session in Keytes. Highlighted in yellow is a high ranking LLRC official who facilitated the Police intervention.


present at the session. Their presence functioned as a deterrence for those who were making submissions as they were intimidated by their presence to make statements which would threaten their safety. However this situation could have been resolved had the Commissioners had taken action to hold the sessions as closed sessions, where the testimonies were facilitated to be on camera. This incident damaged the LLRC’s credibility in the eyes of the public.

When CHR and its sister organization Campaign for Free and Fair Elections (CaFFE) issued a press statement regarding the incident requesting the LLRC to assure the safety of those who arrive to give evidence, LLRC Secretary SB Atugoda denied the incident. However by that time CHR had circulated images of the incident leading the LLRC to change its stance and to introduse in-camera sessions.

Nevertheless it should be noted that the LLRC commissioners have been receptive to constructive criticism regarding the practical implementation and increased security in the proceeding sessions in areas where paramilitary groups are active. Their actions have facilitated many, despite the intimidation present, and the threat to attend the sessions and make their statements be heard. The public has equally been availed the possibility to get informed on the happenings of the LLRC through the attendance at sessions as they were open to the public. Thus while the open sessions facilitated those who want to create intimidation to be present at the sessions, it also rendered those who were interested in gaining information on the development of the LLRC to be granted their right to information and access.

Media

Media plays a key role in the forming of public opinion though effective conveying of information on the difficulties faced by those who were affected by the conflict, their immediate needs and what they perceive as reconciliation. This contributes further in a crucial manner to the reconciliation process of the post war era. Media coverage of the LLRC varied. While Colombo sessions where political, religious and military leaders, made their statements, the coverage was done by almost all main stream media institutions.

They were also covered by several NGOs and representatives of foreign missions. However the attention that was allocated to the outstation sessions can be deemed as being minimum. The presence of mainstream media was minimum. And even the press was represented through at most times only by Weerakesari and Thinakural., Lakbima and LAKBIMAnEWS. There were no journalists from any other Sinhala or English newspapers. However even the above mentioned newspapers were not represented at the sessions that were held in Ampara and Siyambalanduwa. Overall the coverage given by Sinhala papers were minimum which was unfortunate since prominent coverage and commentary would have helped the Sinhala reader of the South to better understand the Tamil speakers of the North which would have entailed them to grasp the life of the Northerners highlighting of their many similarities. CHR believes that the mainstream media institutions did not give LLRC outstation sessions the coverage it deserved and even among Tamil newspapers that the presence of analytical articles was scarce. Some international Human Righst organizations analyzed the LLRC with official transcripts of the commission. These analysis based on mere words cut off from context has presented the LLRC in black and white without seeing the grey.

Furthermore, the media coverage of the LRRC can be considered as having been selective, limited and at times politically biased, as mentioned above, apart from CHR no other civil society organization covered all the outstation sessions. Therefore we believe that it is not practical, fair or realistic to write or analyze the LLRC process/proceedings based on the limited media reports. However the little reporting and analysis we have seen from civil society groups show that their analysis was based on such media reports and without being firsthand witnesses to the ground realties of the outstation submissions and the subtle nuances that could only be observed through first hand observation.

The conduct of the media institutions can be deemed as an illustration where they failed the country with their lack of contribution to inform the public of the LLRC sessions which would have been a great factor in shaping the mind set of people and leading to reconciliation among the peoples.



During the LLRC sessions the commissioners encountered thousands of people who were affected by the war and who continue to suffer post war. Through the submissions made by such people during the out station hearings of the LLRC and other input made by those who presented in Colombo, the Commission has produced in late 2010 an interim report where the Commission recommends solutions to detention, law and order, land issues, socio economic/livelihood Issues.

In addition an Inter-Agency Advisory Committee was appointed by the president to implement the recommendations of the interim Lessons Learnt and Reconciliation Commission (LLRC) report in October 2010. The aim of this Committee was to ensure that the confidence on the LLRC was maintained and to fast track the recommendations being made. The committee comprises of the Attorney General, Chairman, Secretary of Defence, Secretary of Public Administration and Home Affairs, Secretary to Ministry of Justice, Secretary to the Ministry of Economic Affairs, Secretary to the Presidential Task Force for Resettlement, Development and Security in the Northern Province, Secretary for Rehabilitation and Prison Reforms and Secretary for External Affairs CHR in its identification of the grievances has made the categorization of these as below. (this pertains principally to the grievances addressed during the outstation sessions of the LLRC)

1 Detention 2 Disappearances 3 Land Issues 4 Financial assistance 5 Resettlement

Detention

From the first outstation session it was apparent that detention was the primary concern of people from affected areas. Thousands of parents, simblings, wives appeared before the LLRC and implored the commissioners to look into the matter concerning detention of their loved ones. They claimed that they have been travelling from one centre to another in search

of those who were in detention, or presumed to be in detention centers in order to determine whether their loved ones were dead or whether they were still alive.

Commissioners have always stated that they believe that a list of detainees should be made public and recommended the government to do so in their interim report last year. “There are persistent complaints pertaining to

persons being held in detention for long periods without charges. In this regard the Commission recommends that –

a) A special mechanism be created to examine such cases on a case by case basis and recommend a course of action in regard to disposal of each case, as appropriate. Further, to support this process the establishment of a focal point in the Attorney Generals Department is also recommended.

b) A major concern raised before the Commission was the fact that many people did not know the whereabouts of family members in detention as they were constantly being shifted from camp to camp.

Accordingly, the Commission recommends an independent unit being established e.g. in the Ministry of Justice, to address the following issues —

1. Publishing a list of names of those in detention.

2. When a person is discharged a certificate be issued so that the same person is not taken into custody again, unless new evidence is discovered against him for being linked with the LTTE.

3. To look into the general issue of laws delays (to expedite prosecution or discharge detainees)” –LLRC Interim Report

However the comprehensive list that has been recommended through the interim report still remains lacking and not released by the Ministry of Defence.

In addition IAAC in their (24) “Progress report on the implementation of the interim recommendations of LLRC” states that regarding matters pertaining to detention “a four-member special committee, chaired by a Deputy Solicitor-

LLRC and Grievances


General was appointed from the Attorney General’s Department of study the cases of LTTE suspects in detention and expedite legal action where necessary. The objective of the Committee is to expedite releases for rehabilitation, or expedite investigations where adequate evidence of hardcore involvement in the LTTE is available.”

In addition Prof Rajiva Wijesinha, MP Advisor on Reconciliation to His Excellency the President making a presentation at the Association Of Sri Lankan Lawyers in The UK, at “Discussion on Challenges to reconciliation, the Sri Lankan experience”, on October 11th 2011 states that a large number of those detained due to involvement in LTTE activities have been released. “11,000 youngsters who confessed to involvement with the LTTE were recent conscripts, not the battle hardened monsters now in rehabilitation programmes in other theatres of war. About 9,000 have now been released, with those left being under court orders, though in many cases this was only for six months or a year of rehabilitation, which means they too will be at home by the end of the year. Again, contrary to early expectations that about 1,000 might be charged, it now seems that far fewer are under suspicion of grave acts of terrorism.” (25) Detention was also a main issue discussed during the governments talks with the Tamil National Alliance and in early 2011 the government promised to prepare a list of detainees and display it at the office for Terrorist Investigation Division (TID) in Vavuniya. But this promise made by the government has not been kept as illustrated to the media by the MP of TNA, Suresh Premachandran.

“The two teams met for discussions in January and we discussed resettlement, High Security Zones and the plight of the detainees. We urged the government to release a list of names of the detainees in the camps. At that time, nearly 11000 people were in camps, and even now over 6000 are still in camps.”

Responding to the TNA’s request the government delegation told the TNA during their meeting in February that the Terrorist Investigation Department (TID) has compiled a list of names of the detainees. This was claimed to be capable of being used by the relatives

and family members of those who have been detained to search the data available on those detained. It was added that this facility would be available at the TID office in Vavuniya. “We asked them whether we could inform our constituencies and they said we could. We then did so, through the media and through our grassroots activists. However, when people went to the TID office in Vavuniya they were told that there was no such list” Premachandran added that they wrote back to the government seeking a clarification about the issue but so far no response has been received from the government. He added that this maybe one of the reasons why the government might have postponed the scheduled meeting on March 1.” (26)

Disappearances

These include the disappearances which took place during and after the war. In some occasions these incidents have taken place in the mid 1980s, the government authorities have not yet provided death certificates for these individuals. Meanwhile there have been many allegations that armed paramilitary groups, such as Karuna Group and EPDP, have been carrying out extortion of money from the relatives of the disappeared promising information about them. (27)

During the outstation sessions many widows of several LTTE leaders, like Bilan and Yogi, stated that their husbands surrendered to the army alive. (28)

Witness 06: I have six siblings.The elder sister is married with 05 children.On the 2nd June 1991 Brother-in-law (sister’s husband) was abducted by unidentified people, from his residence in Palaivitu.

Chairman: Q. When he was abducted who were there? A. Myself, my sister and all their children were

there.

Q. By whom he was abducted? A. We don’t know. They were in sarongs and

shirts. They took him in a vehicle.

Q. Whom are you suspecting?


A. It was dark in the night. We couldn’t identify. My second brother was arrested on suspicion of involvement with LTTE. He was kept in custody for 08 months and released. Since he couldn’t live in Sri Lanka, he left for India, where he lived for some time and died. 3rd brother was arrested by the Sri Lankan Army and detained in Boossa Camp from 1986 to 1988. He used to be tortured by the Army and as a result he was developed by an illness and later he couldn’t bear up the illness and he committed suicide. Then myself. The next is my younger brother. He was a Singer, who appeared on the TV. He was a performing a music group. He is married with 02 children. He didn’t take arms and fight in the LTTE. He didn’t hurt a person by even a word. He was also a Singer.

Q. Where is he? A. He went abroad and came for a 01 month

holiday. In Karuna’s office, there was one Nathan, who was in-charge of the office. My brother went to meet him on the friendship they had. They had connection for 10 years. Everybody knows one Ragu, who contested for elections.

Q. Where is your brother? A. He was abducted. He contested for the election, as an independent candidate through them. Q. Through whom?

A. Pillayan faction contested the election. He was made as an independent candidate to contest the election. He used to get anonymous and warning calls. On 06th May 2008, I received a call at night, saying “tell your brother to stop visiting Karuna’s office. Otherwise you and your brother will be shot dead in front of your house.

Q. What is your brother’s name?A. X1 Chairman:

Q. Whom you suspect? A. I don’t know, it was for the land phone. It was

strange voice.

Q. A person representing what fraction did you suspect?

A. I don’t know. I cannot say that. Mrs. Ramanathan: Q. Who arrested your

brother? A. Sri Lanka Navy. On the 18th of May 2008,

while we were returning from the temple, some people came in a Tata cab and a discovery motor bike. There were 08 people in the cab and 02 in motor bike. The person called Sinna search for my brother in our house. My brother had gone to the shop at that time. They made my husband and sister’s son and brother to stand, showing the gun. They forced me to bring my brother from inside house. I gave a telephone call to my brother at that time ‘they have come in search of you, don’t come to the house’. The reply given by him was that “I have not done any offence and I must come and ask why”. After that my brother came, he brought some packets of short-eats for children. Then they gave the telephone and inquired for the names of another 2 people. But when my brother spoke to those people they understood it and they did not come. My brother who was there identified those 2 people as ‘Sinna’ and ‘Kumara’ and they are from the Navy Investigation Unit.

Q. What brother – who is no more? A. Yes. He is no more. When I asked him

‘why they are going to take him’ - they told ‘no problem, nothing of that nature, we are just taking him and we will bring him back and not to go and inform anybody, we will bring him back to the house’.

Q. Chairman: Your brother was against the LTTE, as he was supporting Karuna?

A. Not that he was a supporter. But actually he went to meet his friend there. When he went to meet his friend, they told him they have just putting him do some assignments in the election polling booth. But he was put as a candidate.

Q. So he contested? A. Yes he contested.

Q. He was supporting Karuna and Karuna was against LTTE?

A. Yes. They have taken my brother by Tata cab, but my brother said I will be back. don’t go in search of me.

Q. Since he was contested from Karuna faction, everybody knew that he had no connection with LTTE?

A. Yes. So, I immediately telephoned Karuna’s


office. Q. There was no reason for anybody to abduct a

person who is not supporting the LTTE? A. When I went to meet Ragu at Karuna’s office,

and spoke to him he said that they have no confidence with anybody and he said that they already knew that the Navy was going to take him, they will definitely inquire him. Navy will inquire from anybody, whom they suspect to have supported LTTE earlier.

Q. By that time, he was an anti-LTTE, when he was contested as an Independent, on Karuna’s group?

A. He was not willingly taken - without his willingness, permission or approval; he was put as a candidate. He did not know about it. Only after when they want to provide security for him, he came know that this is being done.

Q. But he is nominated as a candidate. Did he campaign for himself?

A. He did not go out; We did not allow him to go to the field.

Q. How many votes he gets? A. I don’t know – no body voted him, if there are

any votes, it may be only his vote, we did not allow him to go to the field. We kept him inside. We don’t want LTTE or Karuna.

Q. What is the Navy camp close to his house? A. At that time no Navy camp there, and the

Navy was at the Dockyard. Only after 15th May 2008, the Navy camp was established.

Q. Can you identify the people – if you see them again - who came and abducted the brother?

A. Yes I can. All members of my family can identify the people. You can give protection and rehabilitation to the LTTEiers. There are so many check points near the Navy and you have to go through all the check points. At that time LTTE people were threatening us. We have to give one member of each family. If we are not participate at the Pongu Thamil, we were punished and we were penalized. That kind of scenario we have to experienced. At that time, there were so many check points you have to pass, but my brother was taken.

Chairman: Ask her give the particulars, including the names of 02 people supposed to have abducted her brother.

It needs be highlighted that the absence of a death certificate causes a lot of complications to those who are related to the one who has disappeared. This is due to the fact that without a death certificates the dependants are unable to obtain the aid/pensions given by the government, neither can the husband or wife marry another individual until seven years of the disappearances.

LLRC Interim Report recommends the government regarding the disappearances as below.

“3. Law and Order It was brought to the attention of the commission that despite the end of the conflict significant issues of law and order still remain. There is apprehension in the minds of the people due to continuing acts of extortion, abduction and other criminal acts by armed groups. The commission recommends that specific measures be introduced to ensure the maintenance of law and order in these areas, particularly the disarming of armed groups. The commission regards this as a matter of highest priority.” Meanwhile reporting on the progress made on the report IAAC states that most of those who have been reported as disappeared had last been seen with the LTTE forces and can be assumed that most of them would have been killed in battle.

“With regard to the evidence gathered by the LLRC on missing persons, it was revealed that many of the people alleged to be missing were last seen with the LTTE forces. Hence, it can be assumed that such people may have been killed in the battle, either as a consequence of their acting as LTTE combatants, or due their being fired upon by the LTTE when endeavoring to seek refuge with the Security Forces. The Government is also conducting investigation and in cases here the dossier of investigation discloses a prime facie case of culpability, institution of proceedings will follow in ordinary course.” However “the Sri Lanka Institute of


Information Technology (SLIIT) is managing a data base of the Rehabilitation of Persons, Properties and industries Authority (REPPIA) and this information will be transferred to the National Human Rights Commission”

In addition the IAAC states that the government has taken immediate steps to disarm the armed groups operating in the East. “(iv) Law and order issues With regard to disarming of persons carrying illegal arms, the GoSL has taken immediate steps by giving a deadline for the surrendering of illegal weapons, as was successfully done in the Eastern Province, following the clearing of the LTTE from that area. The GoSL observes that with the return to normalcy following a long-drawn conflict, criminal activities such as robberies, killings and extortions are likely to recur. These would be dealt with by utilizing the criminal law and process of the country. Police have been given strict instructions in this regard.”

Although the IAAC states that the surrendering of illegal weapons in the Eastern Province has been successfully done media reports illustrate that the process has been a complete failure. Reporting on the latest effort to disarm the Eastern armed groups LAKBIMAnEWS reported that (29) “the army’s efforts to disarm armed groups in the East has come a total

cropper, claim army sources. So far, the army has collected only three weapons which had belonged to certain groups in the East.The eastern commander promised to disarm armed groups in the east after the robbery that took place at the Batticaloa branch of the Peoples’ Bank. However almost three weeks later, only three weapons have been found,” our source claimed.

Meanwhile, speaking to LAKBIMAnEWS, the commander of the Sri Lanka Army Eastern Command Major General Boniface Perera said that the disarmament drive has been a ‘success’ although he could not give specific details of the number of weapons that were recovered. “It has been a great success. We have uncovered several weapons and arrested key members of certain armed groups,” he said.”

In addition several journalists, student leaders and opposition political party supporters have been assaulted by ‘unidentified’ groups since the LLRC interim report urged the government to establish law and order in the area. On July, 29, 2011 the News Editor of Jaffna daily Uthayan was assaulted less than 50 metros away from an army sentry point. (30) TNA’s opening election rally for the July, 23, 2011 local government election was attacked by a large group which the TNA allege as army personnel. (31)


Land issues

A large number of people in the East, and to a lesser degree in the North, claim to have lost their property rights during the war. During the session in Trincomalee, this issue has been highlighted more due to the loss of land of thousands for Sampur HSZ and reservation of many coastal property for tourism projects. (32)

During the session in Mutur a large number of people, including the convener of the Peoples Forum, Mutur, December, 04, 2011,

A. Thoufeek complained that people are prevented from going back to their lands by government authorities who have reserved large areas of lands for religious premises and hotel projects.

Representation of witness 19 Interpreter

The Commission is requesting that you give it in writing in the form of a memorandum. Okay. One more matter. The 64th mile post has been declared – that is called 3rd mile post (malai is a rock area) – that has been declared as a sacred area. A particular land area in that 3rd mile post, what you call the 64th mile post, has been declared as a sacred area and the declared area has been fenced.

Interpreter

He said it has been declared as a sacred area. (correction made: It has been declared as an archeological site).Maybe correct. What I want to tell you here is in future it is going to seriously affect the normal life of the civilian people in the north area. (Removing of granite stones (quarry) is taken from that particular hill. They take the granite stones from that rock for construction purposes). And this is going to affect the future (house) settlement – settling people in those areas. And there are thousands of families who are dependent on that granite industry there.

And this is going to seriously affect the ordinary people. There is another area called Uppural Thottam. That area is called Thottam. (When

you say Thottam a block of land for farming is also Thottam. So I asked him to clarify that. He said Thottam is the name of the particular area). That area is going to be declared for future tourist development and that is going to affect the normal settlement of the people. We are not objecting to development. What I am going to tell you is we are the most affected people, we are affected. We are ordinary people and we are the most affected. So please don’t subject us to further sufferings. We are always supportive of development.

The submission maker declared that the government is allocating land for tourism projects, without any regard for the sentiments and livelihood of the local residents. He added that this is a clear indication that people of the area are not so keen to embrace the vision of development advocated by the government. (33) The state of emergency has been lifted from the end of August, 2011 which in theory should mean that there should be no HSZs. Although the Army has stated that it will move out of the HSZ in the North, it has not made any mention of the Sampur HSZ. LLRC in its interim report recommended the government to give an assurance that private land would not be taken for ‘settlements’ by any government agency. Recently the government has further decided to introduce a program titled Bim Saviya to register land in the North and East. However Tamil National Alliance has objected to this stating that this is an attempt to rob the Tamils living outside the country and in displacement.

Speaking at Parliament on September, 23, 2011 TNA MP A Vinayagamoorhi said that “The Secretary, Ministry of Lands and Land Development has made announcement requesting people in the Northern Province to apply for a new Deed. According to the News Item appearing in the “Island” newspaper of 09th September, 2011, Ministry of Lands and Land Development will verify the authentication of each application and that the respective land will be surveyed before a new Deed is issued to the rightful owner. The Law applicable to registration of ownership in Sri Lanka is the Registration of Documents Ordinance except in areas in which Registration of Title Act has been brought into operation. The Grama Sevakas in the Nallur area have started distributing forms


and collecting information. The indication at the bottom of the form is that authentication of Title will be ultimately decided on observation and certification from the Grama Niladharis which arrangement is unsatisfactory.

He requested the Parliament to direct the Secretary, Ministry of Lands and Land Development to cancel the announced system of registering lands as there are thousands without deeds. In addition some owners of the property in Jaffna live outside Jaffna and in foreign countries. “What is the arrangement that the Secretary to the Ministry of Lands and Land Development has made for these types of persons to apply and get a new deed? This can be made applicable only to those people who are living and having deeds in the Northern Province. There is another type of people in Jaffna who own lands but they do not have deeds. When a person dies intestate, his properties devolve around his children. They need not have deeds unless, of course, they make a deed of declaration.” (34)

In their Interim Report the LLRC stated that “In order to address certain apprehensions among the people in the affected districts on land issues, the commission recommends that a clear statement of policy be issued by the government that private lands would not be utilized for settlements by any government agency.”

Commenting on the progress made the IAAC states that the solutions to some of these issues cannot be addressed by existing legal remedies as most of the documents have been destroyed by the war. However it states that the government is pondering whether to implement a land kachcheri system to address the land issues.

The final decision on the matter, however, will be taken after the LLRC’s final report which means that if the process will be implemented, it will be towards the middle of 2012.

“As highlighted in the LLRC process, the Government of Sri Lanka (GoSL) recognizes the complexity of land related grievances and its impact on the lives of civilians as arising from the protracted conflict. Some of these issues need solution which cannot be offered through existing legal remedies due to the devastation of administrative infrastructure and private and public

documentation as a result of 3 decades of conflict. In view of the hardship and pain of mind caused to civilians from land related issues. GoSL will expedite necessary administrative measures. A land Kachcheri system is being considered by the GoSL, while awaiting the final recommendation of the LLC on this complex issue. Demining has been accelerated so that more land can be made available for resettlement. Complex issues arise in regard to lands that were expropriated by the LTTE for allocation thereafter outside the law of the land. Steps are afoot to allot lands to the original owners, who have thus had to face expropriation. Land Kachcheris-a mechanism of state land allocation where the Government Agent of the District after due and fair inquiry plays a central role in assigning ownership and tenurial rights, will soon be held with ever greater regularity. It is a constitutionally recognized fundamental right of every citizen to choose his residence anywhere within Sri Lanka and the GoSL categorically states that there is no policy of forced settlement by the GoSL. Furthermore, it is categorically stated that any citizen of Sri Lanka is free to purchase land or own land anywhere in the country. “

On the other hand with the repealing of the Emergency Regulations by the government from August 30 the security forces claimed that they will withdraw from some locations. However with government planning to implement a new set of regulations based on the US’s Homeland Security Act it is not very clear what the future holds for those whose lands have been taken over by the security forces. (35)

However the IAAC reiterates the government’s official line in their progress report. “There is no policy of expansion of High Security Zones (HSZ), as alleged by some. On the contrary, the policy is to shrink such Zones, as rapidly and as significantly as possible. The GoSL expects that with the implementation of the two projects in the North to develop 100,000 housing units, the housing issue could be greatly eased. The GoSL will encourage the process where, except when essential for security reasons. High Security Zone (HSZ) lands are being progressively released. This has already commenced in the areas surrounding the Palaly HSZ. The GoSL notes the progress already underway as initiated by the Special Committee under the Chairmanship of the High Court Judge Jaffna.


Action has been taken to return 256 houses in the Palay area to the civilians. A further 2392 houses have been identified for civilians occupation in more than 2500 hectares of land that were set aside for HSZs. Demining being accelerated for this purpose.”

Financial Assistance

During the outstation sessions it was revealed that the overwhelming majority of these affected by the war live in abject poverty and that they have not benefited from government’s development drives including Uthuru Wasanthaya or Negenahira Navodaya. (36)

Chairman: Some Projects Director on behalf of the GA Trincomalee has written to your predecessor saying that a payment of Rs.60,000/- that has been recommended and also there has been some monies allocated to compensate people who are in the Mutur area who have suffered damage. And he is calling for a report in respect of these 02 people

DS: We have already forwarded the report and the applications also sir. Recently the Minister of Rehabilitation he came to this office.

Chairman. No, this is in 2006. They have been allocated Rs.60,000/- , but no payment has been made.

DS That is not only for these people. There are a lot of applications.

DS Sorry Sir, I was not here in 2007.

Chairman. I know, we are not blaming you. But this is the ...

DS We have already informed the Minister also Sir. Minister and Secretary they came here. We informed them that we need a lot of money. There are a lot of applications and we already sent them. So once the allocation received, we will pay sir.

ChairmanExplained in Sinhala re: money from India.

Sir, till the money is received from India if they

can give me this Rs.60,000 I can engage in some business.

Chairman. * He seems to be poor. No because you see there has not been a ... Really he is complaining, Trincomalee GA is complaining that you all have not responded to his letter. Can you just look into this matter?

The majority of the submissions to the LLRC, around 90%, were made by women. Most of them told the LLRC that they have lost the bread winners of their families and that they are going through extreme economic hardships. For CHR economic rights are important civil and political rights therefore we have requested the commission to look into their livelihood issues and include suitable recommendations in their final report which is to be presented to President Rajapaksa by Mid November, 2011. LLRC recommended that “5. Socio economic/livelihood Issues a) Encourage free movement along the A9 o ensure greater participation on the economic, social and cultural activity b) Greater coordination and communication should be maintained between the GAs and security authorities in normalizing civilian administration”

The IAAC states that the infrastructure in the affected areas has greatly been increased with the opening of the A9 road and that many restrictions imposed on livelihoods, mainly fishing has been lifted following the LLRC recommendations. However the A9 road was open to public transport almost one year before the LLRC interim report and security had been greatly reduced by the time the interim report was released. (37)

“The principal achievement in regard to infrastructure is the opening of the A9 road which has greatly improved and increased the freedom of movement to the North. The resettlement of the IDP’s along with the building of the Sangupiddy Bridge and the removal of restrictions on fishing has transformed the lives of people with activities, such as fisheries and agriculture, having resumed in full earnest.”

In addition it states that “Normalization of civilian administration has been achieved in the East to such an extent that elections to local government and provincial councils were conducted. In the North, both the Presidential and Parliamentary


elections were held in 2010 in a free and fair manner, without after several decades, the menace of terrorism. The island wide local government elections scheduled to be held in March will see the participation of people in the North and the East exercising their franchise without let or hindrance.” However the 2008 Eastern Provincial council election was violent and was universally criticized by independent observers. The recently held Northern Local Government Elections on July 23rd, 2011 was marred by intimidation, violence and misuse of state property.

“Private sector participation and entrepreneurial activities in the North are on the increase and with well known industrialists establishing their business and investments, livelihood and employment opportunities have been afforded to the people. Efforts have been made to encourage economic activity and foreign investment and necessary infrastructure is being put in place to that end. Mention must be made in this regard to the Jaffna International Trade Fair conducted in January 2011 under the aegis of the Federation of Chambers of Commerce and Industry and the Chambers of Commerce and Industry of Yarlpanam, along with India as a ‘partner country’. Wide consultations have been held with those members of the Tamil diaspora who have evinced interest in participating in the development of the North and the East. In May 2010 there was a substantial scaling down of Emergency Regulations and the IAAC is looking at the possibility of a further repeal of the Emergency Regulations, leading to an eventual phasing out.”

Resettlement

Resettlement has been a sensitive issue in the North after the end of the war. In May 2009 over 300 000 residents of the North lived in IDP camps and although a large number have been resettled by late 2010 many complained that they have been resettled in alien lands and have no access to any essential service.

Government news portal News.lk reported

that the government has taken action to release lands in the High Security Zones (HSZs) in the country in keeping with the recommendations of the Lessons Learnt Reconciliation Commission (LLRC) being implemented by the Inter Agency Committee (IAC). (38)

“256 houses surrounding the Palaly HSZ have already been returned to civilians and another 2392 houses have been identified for civilian occupation in more than 2500 hectares of the land that was set apart for HSZs. These lands will be returned to their original owners.

The government is of the firm policy that any citizen of Sri Lanka is equally free to purchase land or own land anywhere in the country. There is no policy of expansion of High Security Zones (HSZs), as alleged by some. On the contrary, the policy is to shrink such Zones, as rapidly and as significantly as possible.” In its report IAAC states that the government is considering a Land Kachcheri system to resolve land issues, and it is awaiting the final recommendations of the LLRC. “It is an established mechanism of state land allocation where the Government Agent of the District after due and fair inquiry plays a central role in assigning ownership and tenurial rights. The State wherever it occupies lands of those who have been identified as owners, pays rents for occupation of such lands. The IAC chaired by the Attorney General has taken the initiative to implement practical measures to strengthen the reconciliation process. The LLRC had made recommendations with regard to the detention of suspects, land issues, law and order, administrative and language issues, and the socio-economic and livelihood issues pursuant to its Warrant dated May 15, 2010.”

Professor Rajiva Wijesinha, MP Advisor on Reconciliation to the President making a presentation at the Association Of Sri Lankan Lawyers In The UK, Discussion on Challenges to reconciliation, the Sri Lankan experience, on October 11th 2011 stated that the government has resettled close to 290 000 individuals who were displaced by the war.


The Lessons Learnt and Reconciliation has been pointed out as a possible failure due to several reasons. This chapter seeks to observe what be these points of failure and to evaluate whether despite such weaknesses whether the LLRC could be still be deemed of credit worthiness.

Conflict of Interest of the Commissioners

It is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” was the

statement made by Lord Hutton in the case of Re Pinochet, quoting the statement of Lord Hewart C.J. in Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 K.B. 256, 259.

If we were to apply the above mentioned principle of law to the composition of the LLRC an apparent conflict of interest becomes visible given the fact that it consists of former government officials who have publicly defended the Sri Lankan government against allegations of war crimes. While the commission partially constitutes of such commissioners the rest have worked for the Sri Lankan government. Thus it could be stated that

Failures of the CommissionPassive litsning by LLRC Commissioner


there is high criticism on this group of individuals who have been mandated to fulfil the objectives of the truth commission. With all due respect to the commissioners one may state that while their qualifications and experience do make them credible candidates for the task that they have been allocated with, the question that remains pertinent is their affiliations to the government prior to their role as commissioner which create doubts in the eyes of others of the possible bias that could occur in addressing submissions that would be anti governmental and consisting allegations towards the government. there is little chance that they will go any farther.

The Amnesty International reports that the “The LLRC’s Chair, C R de Silva, has faced allegations of bias and obstructionism in regard to the investigation and prosecution of important human rights cases, including the “Trinco Five” case noted above and the massacre of 17 aid workers (the “ACF [Action Contre la Faim] case”) in Muttur in August 2006. Both were investigated by a Presidential commission of inquiry established in 2006 to examine 16 cases of serious human rights violations, but the report was never made public and no prosecutions have resulted. (39)

The members of that commission of inquiry accused de Silva of serious conflicts of interest and of actively inhibiting their ability to operate independently and effectively.” If we were to be more precise the conflict of interest can be seen more precisely through the presence of these individuals : C R de Silva PC, Chairman, a former Attorney General and Solicitor General of Sri Lanka; Dr Rohan Perera PC, served as Legal Advisor of the Ministry of Foreign Affairs; Prof Karunaratne Hangawatte, a former Assistant Secretary to the Ministry of Justice; HMGS Palihakkara, former Permanent Representative of Sri Lanka to the United Nations. Maxwell Paranagama, was a High Court Judge.

Thus it could be stated that there is with certainty a manifested conflict of interest among the Commissioners who have been selected to perform the task of distributing justice to the grievances of those affected during the prescribed time of the LLRC mandate.

Principle 7 (a) of the Updated Set of Principles states “[Commissions of Inquiry] shall be

constituted in accordance with criteria making clear to the public the competence and impartiality of their members, including expertise within their membership in the field of human rights and, if relevant, of humanitarian law.” (40)

it has been noted that many of the comments of the Commissioners’ have created doubts as to their neutrality. The public has been able to remark that there was a certain amount of inclination on the part of the Commissioners to be on the defence with regards to the state actions. And also the courtesy accorder to the government representatives on their presence at the Commission’s submissions could not be stated as being allocated to others who were from different groups of political ideology. At times the partial and overtly respectful behaviour of the Chairman can be deemed as a shrouding on the credibility of the commission as a whole, creating doubt on the performance of the whole unit with the view created on the public that the LLRC was a body that has not been created to the elucidation of the “truth” but for the promotion of the governmental version of the “truth” as it be needed to be told. (41)

in addition the UN Secretary General’s Panel of Experts voiced concerns regarding de Silva’s role in the LLRC and concluded:

“International law requires a body investigating alleged violations of humanitarian and human rights law to be independent, impartial and competent. Independence comprises both actual independence and the public perception thereof.

In the case of the LLRC, at least three of its members have serious conflicts of interest that both directly compromise their ability to function with independence and impartiality, and undermine public perception of them as independent. [In addition to de Silva], … [a] second member was Sri Lanka’s Permanent Representative to the United Nations during the final stages of the armed conflict, representing and defending the Government’ s views on the evolving military and humanitarian situation. A third member was first the legal advisor of the Ministry of Foreign Affairs and then advisor on international legal affairs to the Ministry, during the period under examination by the Commission.”


Whatever their other qualifications may be, individuals subject to such conflicts of interest are entirely inappropriate as members of a body expected to investigate impartially and contribute to accountability for alleged violations of international humanitarian and human rights law during a period in which they served as highlevel officials of the Government. From any perspective, it would be virtually impossible to expect them to be capable of independently assessing the performance of the Government, in which they held pivotal positions, or of the President, who personally appointed them. Concerns in this respect are reinforced by public statements by at least one Commission member, made outside the LLRC, but during its term of operations. (42)

Thus to conclude on the point of conflict of interest it could be stated that despite the respect one has for the qualified commissioners and the appreciative role that they have proven to have performed in their former work and their presence in the Commission, the impression of bias that their role within the LLRC implicates can be seen as diminishing the credibility of the LLRC as a whole. Had this point be taken into consideration when the selection of the commissioners was made, the LLRC would have been capable of refuting the allegations of bias that have been charged against it.

Lack of Representation of Minority Groups

Within the composition of the commissionersPrinciple 7 of the Updated Set of Principles states that: “In determining membership, concerted efforts should be made to ensure adequate representation of women as well as of other appropriate groups whose members have been especially vulnerable to human rights violations.”

If one were to look into the composition of the LLRC it could be noted that the gender based division is immensely facilitative towards to male group as there is only one female commissioner. In addition, the majority of the commissioners are from the Sinhala community.

An argument that can be put forth on this matter is that, the lack of representation of the ethnic

minorities, is a draw back as the rights of the minorities are being put forward and more representation of the groups claimed to have been marginalised during the time prescribed in the mandate would have felt that they were being allocated more attention through the LLRC process.

However in trying to reach reconciliation one needs to focus on not only the minorities but also the majority group. It is possible to assume that an LLRC which would be of a composition which was with an ethnic majority of Tamils and Muslims might not be well received by the majority Sinhalese population. This could have been cause for strife and in maintaining the composition as it is, the government could be assumed to have taken precaution in not paving way to post war mentality among the majority public, which would cause threat to the reconciliation process.

In looking at the situation from this angle one could imagine it was a strategic approach, however one wonders why there could have not been more female representation. Is it based on the fact that there were not many female qualified candidates who could be nominated as a Commissioner (which is very doubtful) or is it due to any other unexplainable fact that needs be elaborated to those who are left wondering of the gender discrimination of the Commission in its representation.

Lack of Accountability

The critics of the LLRC claim that the “failure of the LLRC as an accountability mechanism stems from the whole conceptualization of the LLRC, which as put forth by the Sri Lankan government to the UN Secretary General’s Panel of Experts “requires that what happened in the past must be relegated to history.”

The Sri Lankan government reportedly told the Panel that “the LLRC, which is central to its approach, is not focused on individual accountability, but on a wider notion of political responsibility, by which the state has responsibility to protect its citizens.” (43)

Principle 2 of the General Principles state that “Every people has the inalienable right to know the truth about past events concerning the


perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations”

Also Principle 3 on the duty to preserve memory states that “A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments”

Principle 4 and 5 as demonstrated below goes further with the requisites of addressing these impunities and requires that the States address the rights of those affected and their right to be informed the causes and the facts in relevance to the situations they have faced.

“Principle 4 : The victim’s right to knowIrrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.

Principle 5. Guarantees to give effect to the right to know States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know.Appropriate measures to ensure this right may include non-judicial processes that complement the role of the judiciary.

Societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence. Regardless of whether a State establishes such a body, it must ensure the preservation of, and access to, archives concerning violations of

human rights and humanitarian law.”

These principles highlight the need to be accountable to those who have been affected, to address to their grievances and to provide them with information as to the situations that were pertaining during the civil war, which violated their rights and created impunities in the country.

The Amnesty International report on the LLRC claims that “even when witnesses have information that could identify perpetrators of violations, the authorities have attempted to deny it.” (44)

On 22 February 2011 Sri Lanka’s Attorney General told the UN Panel of Experts that if the LLRC should identify a “particular culpability” that should be further investigated it would be referred to the Attorney General’s office, but that “to date none of the representations made to the LLRC had identified individuals or groups to whom [responsibility for violations] could be attributed.” (45)

There has been a reluctance on the part of the Commission to take action against those who have been accused of committing the acts of violence against those who came forth to make submissions. The question that remains posed is whether this approach of the Commission is grounded on the fact that the punishing of the accused would further delay the healing of wounds as it would create and approach of vengeance rather than of forgiveness.

Nevertheless whatever be the cause of such approach, it remains one that needs be analysed and addressed with care. The need is heightened by the fact that a body entitled to the task of distribution of justice been criticised of its lack of accountability does not contribute to the building of its qualities of reliability and credibility.

The Amnesty International report on the LLRC states, “The LLRC received numerous complaints from people searching for missing family members, including some that appeared to be victims of enforced disappearances. The witnesses’ testimony potentially implicated the Sri Lankan military and security forces (in particular


the Army and the STF – an elite police commando unit); paramilitary forces now allied with the Sri Lankan government, such as the Karuna Group, the EPDP; and the LTTE.

But in the cases publicly available the Commissioners demonstrated a lack of interest in pursuing the details of these allegations. In particular, the Commissioners repeatedly failed to ask for information that could be used to identify individual perpetrators, or initiate an investigation that would lead to locating the missing person. Enforced disappearances are a gross violation of human rights and a particularly persistent form of abuse in Sri Lanka – where tens of thousands from earlier periods of conflict still remain unresolved and unpunished – but enforced disappearance is not specified as a crime under Sri Lankan law (instead authorities apply laws governing abductions and related offenses), and the LLRC made little effort to address accountability for such cases.

The Commissioners simply failed to provide any specific questions or follow up on the necessarily vague responses to seek justice or compensation for any of the victims. Later, in the context of a discussion about land issues, a Commissioner notes that witnesses who testified in Batticaloa were afraid of Chandrakanthan, but does not pursue the issue in any depth” (46)

Pro Governmental Approach and the Unfriendly Approach Towards Those Who Challenged or Pointed Fingers at the Government Parties as Perpetrators

Remarks have been made against the LLRC for its bias towards the government and its hostile approach towards parties who have made allegations against government parties as the perpetrators of violence. It has also been illustrated that the Commissioners have at times guided testimony or defended the Sri Lankan government against criticism. (47)

The UN Panel report described Commissioners’ treatment of victims as “curt and dismissive,” their questioning of people reporting violations as either “desultory,” or “in other instances, when allegations are made against the conduct of security forces, Commissionersat pains to refute any possibility that the allegations may be true, pointing to inconsistencies in the victim’s account in order to discredit it.” (48)

The report provides as per example the dialogue between Commissioners and a witness who testified in Mullaitivu on 20 September 2010. The witness alleged that the Navy had fired on a boatload of civilians, killing eight people. (49)

Possibility That Recommendations Were Decided Upon Prior to the LLRC Submissions Were Made

A follower of the LLRC sessions in Colombo was able to witness a pattern in the questions that were posed to the submission makers. The manner in which these submission makers were lead was another constant observation where the Chairman was decided upon gaining assurance on his opinions of English teaching in schools and how the interactive teaching of language, the provision of teachers to schools to teach English would result in eliminating the type of problems that was faced by the Sri Lankan society over the years. One could not but help wondering if the commissioners had projected their recommendations to be made and whether the whole LLRC hearings were a process whereby they were in a search for the supporting data to enforce the recommendations at which they had arrived.

However what remains humorous is that questions that were on language were addressed to those who were of no expertise to answer such questions, which completely undermined the intellectual capacity of the


LLRC. One would understand questions on teaching English being addressed to academics and those of who are part of the Educational background. But one wonders what expert opinion military personnel could provide on the teaching of English to the Commissioners and their future recommendations.

Failure to Address the Grievances With Sympathy

On hearing that LLRC hearings would be held thousands of civilians Thousands of civilians came forward in the former conflict areas. However it was noted that those who came forward despite many a difficulty and had arrived at the LLRC sessions having undergone much travel, were at times not provided with an opportunity to make an oral submission and were told to submit their complains in writing due to lack of time.

It is observed that many of those who were seeking to make submissions were Tamil women seeking news of family and relatives who had gone missing or were in the custody of the security forces..The Centre for Human Rights, noted the manner the sessions of the LLRC was held on the 8 of January 2011 in which preferential treatment was

given to high profile witnesses at the expense of ordinary civilians.

“The session which was scheduled to begin at 9.30 am on January, 8 commenced only at 10.30 am. CHR representatives noted that there weren’t [sic] adequate seating available and most of the people have been exhausted after travelling a long distance and were sitting on the ground. 4.30 submissions were presented in the session at Mannar DS. Bishop of Mannar, Rt. Rev Rayappu Joseph and many other religious and community leaders gave evidence before the LLRC. Both local and foreign media were eager to cover the session and gave prominence to these dignitaries’ submissions. As the prominent figures made extensive presentations, the ordinary citizens who were directly affected by the war and were desperate to talk to the Commissioners were forfeited their allocated time, as CHR has pointed out earlier. Chairman of the LLRC spoke about there [sic] interim report in which they had recommended certain methods to address the issues of the people.

Although, this notification made in English would have been of extreme importance to the people, his speech, was not translated into Tamil. Further, it is to be noted that the overwhelming majority of those present do not understand English.” (50)

These difficulties of opportunity could have been addressed had the time schedules been better planned and had there been more sessions available to the public at their own area of residence. The disappointment of having travelled for hours and been unable to make their submissions be heard would not have been existent within this group of community had there been more hours allocated to them, or had there been more sessions held in the rural areas of the North where civil war pertained.

The problem of the LLRC which can be noted here is the non existence of adequate scope and resources to allow individuals to receive a fair hearing. And the attitude of the Commissioners would also have been more compassionate towards these individuals had there been more time allocated for the hearings and had they not been constrained by time. The curtness of the commissioners in addressing the witnesses could have possibly been evaded if there had

LLRC Chairman CR de Silva in repose


been better time management and allocation of resources as it be needed.

Lack of Attention to the Human Rights Violations That Occurred During the War Era

During the LLRC first field session in Vavuniya, the request of the Chairman to the public and the witnesses was to “forget the past”. What was requested of them was to “ tell the LLRC about the problems regarding their children’s education, unmet medical needs and accommodations.” (51)

The statement could be interpreted in light of the backdrop to the LLRC and the immediate needs of the people which the government was needed to address. However it also marks in the eyes of the observes that there was no mention of human rights violations among the possible “grievances,” “difficulties” and ” he encouraged witnesses to voice (although many did so), nor did he pledge to seek accountability. (52)

The question which emanates from this statement of the Chairman is thus whether the ignoring of the human rights violations and the instructions given or the request made to the witnesses to focus on their practical needs which be pertinent in their daily lives as an effort to make their living conditions better, or whether it was a conscious effort to avoid the possible human rights violations which the witnesses would wish to address.

The Bishop of Mannar, Rayappu Joseph, in his presentation provided he LLRC with lists of hundreds of enforced disappearances, detentions and extrajudicial killings, and called for public acknowledgement of these specific abuses and more generally acknowledgement of “the objective and total truth of what happened throughout the conflict and war, particularly in the closing stages of the war.”However the response of the Chairman was the discussing the LLRC’s interim recommendations related to detention, land issues and language. Amnesty International criticises his behaviour and points that “the Commission failed to acknowledge the Bishop’s more serious allegations of human rights violations by government forces”

Other statements of the Chairman such as the one made Mannar in January “Your speech does not help us. We only want to know what the grievances are and how to rectify them.” (53) is indicative of the objectives of the Commission.

While one is able to understand that practical issues of the public that has suffered the war for over 30 years need to be addressed, it needs to be kept in mind that the LLRC was also the mechanism which was put in place to address the grievances of those who suffered violence and human rights violations during the time of the war. Hence the statements of violations of human rights been discouraged and them being deemed as not of use to the Commission highlights to the listener a certain amount of non availability to the protection of their rights. And as individuals who have lost their families and have no news of their loved ones who have disappeared or have been arrested or gone missing, their interest would be focussed in finding what happened to those who they loved but are not with them anymore.

Thus the LLRC would have been more successful in the eyes of those who were putting their grievances forward of matters that they hold dear to their hearts if the Commissioners were conscience in their presentation of their objectives, of the plight of the public they were addressing and their psychological state/. A more sympathetic approach towards the interested of the people and a more active role in seeking information on the rights of those present would have created a better image of productivity and credibility for the LLRC.

Lack of Witness Protection from Outside Threats

Principle 10 of the Updated Set of Principles states “Effective measures shall be taken to ensure the security, physical and psychological well-being, and, where requested, the privacy of victims and witnesses who provide information to the commission.”

However despite such requisite the LLRC has no procedure implemented for the protection of the witnesses. In addition to a specific mechanism regarding the matter within the process of the LLRC. It needs be highlighted that there exists no adequate witness


protection scheme in the country’s judiciary, the Sri Lankan Parliament having never passed draft legislation first introduced in 2007 and re-introduced in 2008. Despite the bill having been presented to Parliament and debated over for a day. However the bill did not reach the voting stage and was postponed. This can be taken as an indication of the lack of interest taken by the government in the protection of witnesses. Given the circumstances to be such, the question that remains is how the LLRC process is capable of providing the witnesses adequate protection for them to come forth with their submissions and to make their statements to the Commission without fear.

On an observation of the interim recommendations of the LLRC which have been sent to the President in September, it can be noted that despite the call for protection of witnesses by several people, and many having been threatened due to their submissions, the Commission has failed in their recommendations to address this

issue.

The Centre for Human Rights was present at the sessions at the Periyapanrivirichchan AGA’s Office in Madhu where army personnel photographed LLRC witnesses: “The session was scheduled to start at 9 am but it began only at 10.45. Around 10.15 am a group of army officers arrived at the DS Office and recorded the names of the LLRC staff and others from outside the area. Another officer took photos of the LLRC Commissioners and those who had come to give evidence.” (54)

Once again this eludes a comprehension of the mentality of the witnesses and their life’s plight. If the LLRC is meant to be a search for the truth the Commission needs to make the witnesses feel comfortable with the assurance that their lives are protected. Furthermore the photos being taken by army personnel of those making submissions would only lead to intimidation which result in the truth not being told. Thus the result being the

A person in military uniform photographing the LLRC commissioners and those who gave evidence in Mannar


Many critics of the LLRC have propounded the view that there needs be a UN investigation that is carried on Sri Lanka and the mechanism of distributing justice needs to be stemming from an international body as opposed to the justice that be promised by the Sri Lankan government. While admitting that there needs be a transparent and accountable mechanism in place which respects the upholding the rights of individuals and aims at addressing the violations of human rights which allegedly took place during the time period of the civil war in the North and East, CHR stresses the need for this to be a local mechanism and not an international body which will be intervening with the sovereignty of the state.

Principle 20 of the Updated Set of Principle highlights the jurisdiction of international and internationalized criminal tribunals. It states “It remains the rule that States have primary responsibility to exercise jurisdiction over serious crimes under international law. In accordance with the terms of their statutes, international and internationalized criminal tribunals may exercise concurrent jurisdiction when national courts cannot offer satisfactory guarantees of independence and impartiality or are materially unable or unwilling to conduct effective investigations or prosecutions. States must ensure that they fully satisfy their legal obligations in respect of international and internationalized criminal tribunals, including where necessary through the enactment of domestic legislation that enables States to fulfil obligations that arise through their adherence to the Rome Statute of the International Criminal Court or under other binding instruments, and through implementation of applicable obligations to apprehend and surrender suspects and to cooperate in respect of evidence.”

The key terms of the principle here can be noted as being that “States have primary responsibility to exercise jurisdiction” which is a two way providing the States the responsibility to act

within their sovereignty against the violations that have taken place and also the obligation to act on such matter. In addition to this it can be also read that the primary authority over the acts of violations of human rights needs be allocated to the country and outsider interventions on such matters would be deemed as violations of the sovereignty principle of the state. Thus the principle encompasses the theories of both state responsibility as well as the sovereignty of state.

The criticism addressed as to the credibility of the commission is due to many a failure that has been the result of previous commissions that have been established by the Sri Lankan government. Amnesty International in its publication titled “Twenty Years of Make –Believe Sri Lanka’s Commissions of Inquiry” point out that the mode of addressing of impunity by the State of Sri Lanka has been deeply flawed and flout with many discrepancies.

It states “Commissions of Inquiry have not worked as mechanisms of justice in Sri Lanka. Presidential Commissions have proved to be little more than tools to launch partisan attacks against opponents or to deflect criticism when the state has been faced with overwhelming evidence of its complicity in human rights violations. The best that can be expected of these Commissions of Inquiry, given their non-judicial nature, is that they will be a truth-telling exercise.” (55)

However the facts remain that the sovereignty of a state plays a key role in the process of a jurisdiction that be applied to it. And the empowerment of local mechanisms in order to address the local issues will be in the long term a more productive effort as opposed to one that be imposed from outside and is alienated within the local justice system. If the answer that is to be applied is to be short term and to address a mere pressure that is to be raised by the international community then the situation rather than moving towards any form of improvement will only reach

The Answer : Local Mechanism? International Investigation?


a certain exacerbation which will not be of any productivity in the long term goal of protection of human rights on the Sri Lankans.

Priscilla B. Hayner also points out that “Clear backing from the government is essential for such a commission to work with full authority. Explicit official support for its work can provide increased security, a higher public profile, and facilitate access to restricted or classified government documents. The government, and armed opposition, where relevant, should be expected to provide records to the commission pertinent to its investigations, including restricted documents. Officials or former officials with knowledge of the acts and events under investigation should be expected to provide information to the commission, either in public hearings or in private meetings. Such support for a commission’s work should coincide with clear operational independence, necessary for the commission to undertake investigation into often politically sensitive topics. Once established, the commission should operate free of direct influence or control by the government, including in the interpreting of its written mandate (within any constraints that are indicated),in developing its operating methodology for research and public outreach, and in shaping its report and recommendations” (56) This points out the advantage of a local based, government supported mechanism as opposed to an international investigation for which the State’s support may not be granted.

In addition “each new truth commission must be rooted in the realities and possibilities of its particular environment. While the international community can play a major role in assisting these processes, any successful truth commissionprocess must be a reflection of national will and a national commitment to fully understand and learn from the country’s difficult, sometimes very controversial and often quite painful history. A commission must aim to understand the originsof past conflict and the factors that allowed abuses to take place, and to do so in amanner that is both supportive of victims and inclusive of a wide range of perspectives.” (57)

Furthermore the imposition of an international

inquiry would elevate the sentiments of nationalism which is already in the process of been rejuvenated and which if provided opportunity would not step down from going into the levels that be of danger to the further reconciliation of the country.

Thus CHR as the solution for the issues in contention with regards to the LLRC and its performance recommends that the solution lies in the addressing of the issues raised throughout the report such as the lack of accountability, a mode of addressing grievances of the individuals and the empowerment of the local mechanisms to address the woes of the people and the human rights violations while focusing on

1. Implementing concrete and specific recommendations addressing the immediate issues of the people including detention, disappearances, resettlement, financial aid. This is due to the fact that the interim report had vague and broad suggestions which were not implemented, the broadness of the recommendations rendering the non application of significant measures.

2. Serious efforts to understand the causes which lead to the conflict and the rights which were violated during the war.

3. Genuine attempts to address the occurrences during the last few days of the Ealam war IV without which we do not believe that true reconciliation could take place.

4. Recommending that the school curriculum includes comparative studies in order to facilitate the understanding of students of other ethnicities, cultures and religions.

5. Establishing an independent domestic mechanism to investigate the last phase of war and to detail a clear mandate which needs be followed.

CHR believes that the reconciliation process can only be achieved through addressing the wider issues mentioned above, and through empowered local mechanisms that uphold democratic, impartial and just values which would help integrate values of harmony into the Sri Lankan social structure.


1 Joint Statement by UN Secretary-General, Government of Sri Lanka, SG/2151, 26 May 2009 https://www.un.org/News/Press/docs/2009/sg2151.doc.htm

2 Report of the Secretary- General’s Panel of Experts on Accountability in Sri Lanka, Executive Summary Page ii, http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf

3 ibid, Page vii

4 Amnesty

5 http://www.defence.lk/new.asp?fname=20100517_07

6 http://www.asiantribune.com/news/2010/11/07/sri-lanka%E2%80%99s-lessons-learnt-and-reconciliation-commission-llrc- tenure-extended

7 ibid

8 http://www.asiantribune.com/news/2010/11/07/sri-lanka%E2%80%99s-lessons-learnt-and-reconciliation-commission-llrc- tenure-extended

9 http://www.asiantribune.com/news/2010/11/07/sri-lanka%E2%80%99s-lessons-learnt-and-reconciliation-commission- llrc- tenure-extended

10 http://www.asiantribune.com/news/2010/11/07/sri-lanka%E2%80%99s-lessons-learnt-and-reconciliation-commission- llrc- tenure-extended

11 http://www.amnesty.org/en/library/asset/ASA37/008/2011/en/76ea6500-a9f5-4946-bf2b-7fc08bc5e37a/asa370082011en. pdf

12 “Chairman’s opening statement; Proceedings of public sittings of the Commission of Inquiry on Lessons Learnt and Reconciliation appointed by His Excellency the President in terms of Section 2 of the Commissions of Inquiry Act.” Lakshman Kadirgamar Institute of International Relations and Strategic Studies, No 24, Horton Place, Colombo 07, 11 August 2010 (LLRC/PS/11-08-10/01), Page 1

13 http://www.bbc.co.uk/sinhala/news/story/2011/05/110517_glindia.shtml

14 ibid

15 http://www.icrc.org/eng/assets/files/other/irrc_862_hayner.pdf

16 https://www.law.duke.edu/journals/lcp/downloads/lcp59dfall1996p173.pdf

17 https://www.law.duke.edu/journals/lcp/downloads/lcp59dfall1996p173.pdf




21 http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf

22 http://www.llrc.lk/index.php?option=com_content&view=article&id=35&Itemid=57

23 Ibid

24 http://docs.google.com/viewer?a=v&q=cache:K3BlcI5oD8EJ:www.srilanka-botschaft.de/Images_and_Basics/pdfs/Circu lar_49.pdf+LLRC+interim+report+IAAC&hl=en&gl=lk&pid=bl&srcid=ADGEESg-4GEANLU7CXunh5vLGzP- MAmGLHIxgeP 1ctieSJzkQaXtsil3KkA5DiPy1fMWJIQMxvmVpDhRf8ZZtWMC6m0NZbc8tFwYdNGWPU866hPAAU_YMFdEoT89BeImNfn SlHlGUZsQ&sig=AHIEtbTWBYP4jK0-jXW3yvtP-R2RHhYWFA

25 http://www.peaceinsrilanka.org/press-releases-details/press-releases-details/2879

26 http://www.lakbimanews.lk/index.php?option=com_content&view=article&id=756%3Agovt-tna-discussions-a-s ham&Itemid=56

References


27 Trinco DS http://www.llrc.lk/index.php?option=com_content&view=article&id=26&Itemid=56

28 http://www.thesundayleader.lk/2011/04/15/more-than-20-people-last-seen-in-army-custody-remain-missing/

29 http://www.lakbimanews.lk/index.php?option=com_content&view=article&id=2278%3Adisarming-eastern- parmilitariesbecomes-a-joke-army-sources&Itemid=5630 http://groundviews.org/2011/08/19/“i-want-to-continue-to-highlight-the-activities-against-the-humanity”-gnanasundaramku ganathan/

31 http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=28405

32 http://chrsrilanka.com/LLRC_session_in_Kuchchaweli__146_Complaints__Land_ownership_issue__Critical__-5-37.html)

33 http://chrsrilanka.com/LLRC_session_in_Kuchchaweli__146_Complaints__Land_ownership_issue__Critical__-5-37.html

34 http://www.parliament.lk/news/ViewPublication.do?published=Y&documentID=PUB3509

35 http://lakbimanews.lk/index.php?option=com_content&view=article&id=2956%3Ahomeland-act-to-replace-pta&Itemid=56

36 Representation by witness number 15 of Mutur DS, LLRC outstation sessions

37 IAAC Report

38 http://www.lankapuvath.lk/index.php/latest-news/general/12717-lands-in-the-hsz-soon-to-civilians

39 When will they get justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission. http://www.amnesty. org/en/library/asset/ASA37/008/2011/en/76ea6500-a9f5-4946-bf2b-7fc08bc5e37a/asa370082011en.pdf

40 Updated Set of principles for the protection and promotion of human rights through action to combat impunity, United Nations, E/CN.4/2005/102/Add.1, 8 February 2005, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/109/00/PDF/ G0510900. pdf?OpenElement

41 See for example (and below), the Commission’s handling of testimony by Dr. Varatharajah, http://www.llrc.lk/images/sto ries/LLRC_30.11_-_Dr._T.Vartharajah.pdf

42 “See, for example, the Prof J E Jayasuriya Memorial Lecture ‘Post-Conflict Foreign Policy Challenges for Sri Lanka’. Speaking as a ‘practitioner’, LLRC commissioner Mr Palihakkara asserted that ‘precautionary humanitarian measures [were] taken by the security forces and [there was] exercise of maximum restraint to minimize civilian casualties and other collateral damage.’ Noting that ‘our soldiers and the political leadership provided by our President enabled the country to free itself from the manifest threat to its sovereignty and integrity.’ He referred to sovereignty ‘rescued by our soldiers’ and ‘so valiantly re-established by our soldiers.’ He further hailed ‘successful preventive diplomacy at the United Nations Security Council without alienating any country to deter intervention in Sri Lanka during the antiLTTE operation in 2009.’” Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, Page 8543 Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, Paras 279–80, Page 78

44 Testimony of Witness 6, proceedings of public sittings of the Commission of Inquiry on Lessons Learnt and Reconciliation appointed by His Excellency the President in terms of Section 2 of the Commissions of Inquiry Act, Divisional Secretariat, Eravur Pattu, Chenkalady, 10 October, 2010

45 Testimony of Witness 8, proceedings of public sittings of the Commission of Inquiry on Lessons Learnt and Reconciliation appointed by His Excellency the President in terms of Section 2 of the Commissions of Inquiry Act, Batticaloa District Secretariat, 9 October 2010

46 When will they get Justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission. http://www.amnesty. org/en/library/asset/ASA37/008/2011/en/76ea6500-a9f5-4946-bf2b-7fc08bc5e37a/asa370082011en.pdf 7

47 Field visits were conducted from 14 August 2010 – 19 February 2011: Vavuniya: 14 August 2010 Public Sittings – DS Vavuniya , DS Cheddikulam , IDPP Centre, Manik Farm; 15 August 2010 Public Sittings - DS Nedunkerni. Kilinochchi & Mullaitivu: 18 September 2010 Public Sittings – DS Kilinochchi and DS Pachchillaipillai; 19 September 2010 Public Sittings – DS Poonagary; 20 September 2010 Public Sittings – DS Mullaitivu; 20 September 2010 Mullaitivu Security Forces Headquarters. Batticaloa: 09 October 2010 Public Sittings – DS Batticaloa; 09 October 2010 Public Sittings – DS Oddamavaddy; 11 October 2010 Public Sittings – DS Eravurpattu. Jaffna: 11 November 2010 Public Sittings – Ariyalai; 12 November 2010 Public Sittings – Gurunagar Cultural Hall; 12 November 2010 Public Sittings – Vadukkodai East, Sittankerney; 12 November 2010 Public Sittings – District Secretariat, Jaffna; 14 November 2010 Public Sittings - St. Anthony’s Church, Kayts. Trincomalee: 03 December 2010 - District Secretariat, Trincomalee; 04 December 2010 - District Secretariat, Mutur. Puttalam & Mannar: 07.01.2011 - District Secretariat, Puttalam; 08.01.2011 - District Secretariat, Mannar; 09 January 2011 - District Secretariat, Madhu. Galle & Matara: 18


February 2011 - District Secretariat, Matara; 19 February 2011 - Hall de Galle, Galle

48 Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, Page 91

49 Ibid. 50 See also, Testimony of Witness 1, proceedings of public sittings of the Commission of Inquiry on Lessons Learnt and Reconciliation appointed by His Excellency the President in terms of Section 2 of the Commissions of Inquiry Act, District Secretariat, Muillativu, 20 September 2010, LLRC/PS/20-09-10/01 51 Rajit Keethi Tennakoon, “LLRC Mannar Sessions: Oscillation between Hope and Hopelessness,” http://www.srilankaguardian.org/2011/01/llrc-mannar-sessions-oscillation.html 52 When Will They Get Justice? Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission http://www.amnesty. org/en/library/asset/ASA37/008/2011/en/76ea6500-a9f5-4946-bf2b-7fc08bc5e37a/asa370082011en.pdf Proceedings of public hearings of the Commission of Inquiry on Lessons Learnt and Reconciliation appointed by His Excellency the President in terms of Section 2 of the Commissions of Inquiry Act, District Secretary’s Office, Vavuniya, 14 August, 2010 http://www.llrc.lk/images/stories/docs/August2010/District_Secys_Office-Vavuniya-14.08.2010.pdf 53 Testimony of Witness 4, proceedings of public sittings of the Commission of Inquiry on Lessons Learnt and Reconciliation appointed by His Excellency the President in terms of Section 2 of the Commissions of Inquiry Act, Mannar District Secretariat, Mannar, 8 January 2011, Page 19

54 Rajit Keethi Tennakoon, “LLRC Mannar Sessions: Oscillation between Hope and Hopelessness,” http://www.srilankaguardian.org/2011/01/llrc-mannar-sessions-oscillation.html

55 Twenty Years of Make believe: Sri Lanka’s Commissions of Inquiry, page 3 http://www.observatori.org/paises/pais_75/ documentos/srilanka.pdf 56 Pricilla B. Hayner : Guidelines https://www.law.duke.edu/journals/lcp/downloads/lcp59dfall1996p173.pdf# http://www.icrc.org/eng/assets/files/other/irrc_862_hayner.pdf


Interim Recommendations of the LLRC

1. Detention There are persistent complains pertaining to

persons held in detention for long periods without charges

In this regard the Commission recommends that:

a) A special mechanism be created to examine such cases on a case by case basis and recommend a course of action in regard to disposal of each case, as appropriate. Further, to support this process the establishment of a focal point in the Attorney General’s Department is also recommended.

b) A major concern raised before the Commission was the fact that many people did not know the whereabouts of the family members in detention as they were constantly shifted from camp to camp.

Accordingly the Commission recommends an independent unit being established. Eg in the Ministry of Justice, to address the following issues:-

1. Publishing a list of names of those in detention

2. When a person is discharged a certificate be issued so that the same person shall not be taken into custody again, unless new evidence is discovered against him for being linked with the LLTE.

3. To look into the issues of laws delays (to expedite prosecution or discharge detainees)

2. Land issues In order to address certain apprehensions

among people in the affected districts on land issues, the Commission recommends that

a clear statement of policy be issued by the government that private lands not be utilized for settlements by any Government agencies.

3.Law and order It was brought to the attention of the

Commission that despite the end of the conflict significant issues of law and order still remain. There is apprehension in the minds of people due to continuing acts of extortion, abduction and other criminal acts by armed groups

The commission recommends that specific measures be introduced to ensure the maintenance of law and order in these areas, particularly the disarming of any illegal armed groups. The Commission regards this as a matter of the highest priority.

4. Administration and Language Uses Many of the people who gave evidence before

the Commission expressed grave concern that they were expected to communicate with public officials or perfect documents in a language which they did not understand. In the light of the concern expressed by the members of the public, the Commission is of the view that immediate steps be taken administratively to rectify this problem. To achieve this objective, the Commission is of the view that interpreters could be used in public offices as appropriate to facilitate communication until long term programmes are put in place.

5. Socio/Economic Livelihood Issuesa) Encourage free movement of persons on A9

to ensure greater participation in the economic, social and cultural activities

b) Greater coordination and communication should be maintained between the GAs and security authorities in normalizing civilian administration.

ANNEXES


United Nations

Distr. GENERAL E/CN.4/2005/102/Add.1

8 February 2005 Original: ENGLISH

COMMISSION ON HUMAN RIGHTS Sixty-first session

Item 17 of the provisional agenda

PROMOTION AND PROTECTION OF HUMAN RIGHTSImpunity

Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher*Addendum

Updated Set of principles for the protection and promotion of human rights through action to combat impunity

* The report was submitted after the deadline in order to take into account replies of all respondents as well as the results of the expert workshop held in November 2004.

SYNOPTICAL TABLE OF THE UPDATED SET OF PRINCIPLES FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS THROUGH ACTION TO COMBAT IMPUNITY

PreambleDefinitionsI. COMBATING IMPUNITY: GENERAL OBLIGATIONS• Principle 1. General obligations of States to take effective action to combat impunityII. THE RIGHT TO KNOWA. General principles• Principle 2. The inalienable right to the truth• Principle 3. The duty to preserve memory• Principle 4. The victims’ right to know• Principle 5. Guarantees to give effect to the right to knowB. Commissions of inquiry• Principle 6. The establishment and role of truth commissions• Principle 7. Guarantees of independence, impartiality and competence• Principle 8. Definition of a commission’s terms of reference• Principle 9. Guarantees for persons implicated• Principle 10. Guarantees for victims and witnesses testifying on their behalf• Principle 11. Adequate resources for commissions• Principle 12. Advisory functions of the commissions• Principle 13. Publicizing the commission’s reportsC. Preservation of and access to archives bearing witness to violations• Principle 14. Measures for the preservation of archives• Principle 15. Measures for facilitating access to archives• Principle 16. Cooperation between archive departments and the courts and non-judicial

Updated Set of principles for the protection and promotion of human rights through action to combat impunity.


commissions of inquiry• Principle 17. Specific measures relating to archives containing names• Principle 18. Specific measures related to the restoration of or transition to democracy and/or

peaceIII. THE RIGHT TO JUSTICEA. General principles• Principle 19. Duties of States with regard to the administration of justiceB. Distribution of jurisdiction between national, foreign, international and internationalized courts• Principle 20. Jurisdiction of international and internationalized criminal tribunals• Principle 21. Measures for strengthening the effectiveness of international legal principles

concerning universal and international jurisdictionC. Restrictions on rules of law justified by action to combat impunity• Principle 22. Nature of restrictive measures• Principle 23. Restrictions on prescription• Principle 24. Restrictions and other measures relating to amnesty• Principle 25. Restrictions on the right of asylum• Principle 26. Restrictions on extradition/non bis in idem• Principle 27. Restrictions on justifications related to due obedience, superior responsibility, and

official status• Principle 28. Restrictions on the effects of legislation on disclosure or repentance• Principle 29. Restrictions on the jurisdiction of military courts• Principle 30. Restrictions on the principle of the irremovability of judgesIV. THE RIGHT TO REPARATION/GUARANTEES OF NON-RECURRENCEA. The right to reparation• Principle 31. Rights and duties arising out of the obligation to make reparation• Principle 32. Reparation procedures• Principle 33. Publicizing reparation procedures• Principle 34. Scope of the right to reparationB. Guarantees of non-recurrence of violations• Principle 35. General principles• Principle 36. Reform of State institutions• Principle 37. Disbandment of parastatal armed forces/demobilization and social reintegration of

children• Principle 38. Reform of laws and institutions contributing to impunity

SET OF PRINCIPLES FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS THROUGH ACTION TO COMBAT IMPUNITY

PreambleRecalling the Preamble to the Universal Declaration of Human Rights, which recognizes that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind,Aware that there is an ever-present risk that such acts may again occur,Reaffirming the commitment made by Member States under Article 56 of the Charter of the United Nations to take joint and separate action, giving full importance to developing effective international cooperation for the achievement of the purposes set forth in Article 55 of the Charter concerning universal respect for, and observance of, human rights and fundamental freedoms for all,Considering that the duty of every State under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity,Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,Equally aware that forgiveness, which may be an important element of reconciliation, implies,


insofar as it is a private act, that the victim or the victim’s beneficiaries know the perpetrator of the violations and that the latter has acknowledged his or her deeds,Recalling the recommendation set forth in paragraph 91 of Part II of the Vienna Declaration and Programme of Action, wherein the World Conference on Human Rights(June 1993) expressed its concern about the impunity of perpetrators of human rights violations and encouraged the efforts of the Commission on Human Rights to examine all aspects of the issue,Convinced, therefore, that national and international measures must be taken for that purpose with a view to securing jointly, in the interests of the victims of violations, observance of the right to know and, by implication, the right to the truth, the right to justice and the right to reparation, without which there can be no effective remedy against the pernicious effects of impunity,Pursuant to the Vienna Declaration and Programme of Action, the following principles are intended as guidelines to assist States in developing effective measures for combating impunity.

Definitions

A. Impunity“Impunity” means the impossibility, de jure or de facto, of bringing the perpetrators of

violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.

B. Serious crimes under international lawAs used in these principles, the phrase “serious crimes under international law” encompasses

grave breaches of the Geneva Conventions of 12 August 1949 and of Additional Protocol I thereto of 1977 and other violations of international humanitarian law that are crimes under international law, genocide, crimes against humanity, and other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery.

C. Restoration of or transition to democracy and/or peaceThis expression, as used in these principles, refers to situations leading, within the framework

of a national movement towards democracy or peace negotiations aimed at ending an armed conflict, to an agreement, in whatever form, by which the actors or parties concerned agree to take measures against impunity and the recurrence of human rights violations.

D. Truth commissionsAs used in these principles, the phrase “truth commissions” refers to official, temporary,

non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law, usually committed over a number of years.

E. ArchivesAs used in these principles, the word “archives” refers to collections of documents pertaining

to violations of human rights and humanitarian law from sources including (a) national governmental agencies, particularly those that played significant roles in relation to human rights violations; (b) local agencies, such as police stations, that were involved in human rights violations; (c) State agencies, including the office of the prosecutor and the judiciary, that are involved in the protection of human rights; and (d) materials collected by truth commissions and other investigative bodies.


I. COMBATING IMPUNITY: GENERAL OBLIGATIONS

PRINCIPLE 1. GENERAL OBLIGATIONS OF STATES TO TAKE EFFECTIVE ACTION TO COMBAT IMPUNITY

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.

II. THE RIGHT TO KNOW

A. General principles

PRINCIPLE 2. THE INALIENABLE RIGHT TO THE TRUTH

Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.

PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY

A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.

PRINCIPLE 4. THE VICTIMS’ RIGHT TO KNOW

Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.

PRINCIPLE 5. GUARANTEES TO GIVE EFFECT TO THE RIGHT TO KNOW

States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know.Appropriate measures to ensure this right may include non-judicial processes that complement the role of the judiciary. Societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence. Regardless of whether a State establishes such a body, it must ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law.B. Commissions of inquiry

PRINCIPLE 6. THE ESTABLISHMENT AND ROLE OF TRUTH COMMISSIONS


To the greatest extent possible, decisions to establish a truth commission, define its terms of reference and determine its composition should be based upon broad public consultations in which the views of victims and survivors especially are sought. Special efforts should be made to ensure that men and women participate in these deliberations on a basis of equality. In recognition of the dignity of victims and their families, investigations undertaken by truth commissions should be conducted with the object in particular of securing recognition of such parts of the truth as were formerly denied.

PRINCIPLE 7. GUARANTEES OF INDEPENDENCE, IMPARTIALITY AND COMPETENCE

Commissions of inquiry, including truth commissions, must be established through procedures that ensure their independence, impartiality and competence. To this end, the terms of reference of commissions of inquiry, including commissions that are international in character, should respect the following guidelines:

(a) They shall be constituted in accordance with criteria making clear to the public the competence and impartiality of their members, including expertise within their membership in the field of human rights and, if relevant, of humanitarian law. They shall also be constituted in accordance with conditions ensuring their independence, in particular by the irremovability of their members during their terms of office except on grounds of incapacity or behaviour rendering them unfit to discharge their duties and pursuant to procedures ensuring fair, impartial and independent determinations;

(b) Their members shall enjoy whatever privileges and immunities are necessary for their protection, including in the period following their mission, especially in respect of any defamation proceedings or other civil or criminal action brought against them on the basis of facts or opinions contained in the commissions’ reports;

(c) In determining membership, concerted efforts should be made to ensure adequate representation of women as well as of other appropriate groups whose members have been especially vulnerable to human rights violations.

PRINCIPLE 8. DEFINITION OF A COMMISSION’S TERMS OF REFERENCE

To avoid conflicts of jurisdiction, the commission’s terms of reference must be clearly defined and must be consistent with the principle that commissions of inquiry are not intended to act as substitutes for the civil, administrative or criminal courts. In particular, criminal courts alone have jurisdiction to establish individual criminal responsibility, with a view as appropriate to passing judgement and imposing a sentence. In addition to the guidelines set forth in principles 12 and 13, the terms of reference of a commission of inquiry should incorporate or reflect the following stipulations:

(a) The commission’s terms of reference may reaffirm its right: to seek the assistance of law enforcement authorities, if required, including for the purpose, subject to the terms of principle 10 (a), of calling for testimonies; to inspect any places concerned in its investigations; and/or to call for the delivery of relevant documents;

(b) If the commission has reason to believe that the life, health or safety of a person concerned by its inquiry is threatened or that there is a risk of losing an element of proof, it may seek court action under an emergency procedure or take other appropriate measures to end such threat or risk;


(c) Investigations undertaken by a commission of inquiry may relate to all persons alleged to have been responsible for violations of human rights and/or humanitarian law, whether they ordered them or actually committed them, acting as perpetrators or accomplices, and whether they are public officials or members of quasi-governmental or private armed groups with any kind of link to the State, or of non-governmental armed movements. Commissions of inquiry may also consider the role of other actors in facilitating violations of human rights and humanitarian law;

(d) Commissions of inquiry may have jurisdiction to consider all forms of violations of human rights and humanitarian law. Their investigations should focus as a matter of priority on violations constituting serious crimes under international law, including in particular violations of the fundamental rights of women and of other vulnerable groups;

(e) Commissions of inquiry shall endeavour to safeguard evidence for later use in the administration of justice;

(f) The terms of reference of commissions of inquiry should highlight the importance of preserving the commission’s archives. At the outset of their work, commissions should clarify the conditions that will govern access to their documents, including conditions aimed at preventing disclosure of confidential information while facilitating public access to their archives.

PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED

Before a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following guarantees:

(a) The commission must try to corroborate information implicating individuals before they are named publicly;

(b) The individuals implicated shall be afforded an opportunity to provide a statement setting forth their version of the facts either at a hearing convened by the commission while conducting its investigation or through submission of a document equivalent to a right of reply for inclusion in the commission’s file

.PRINCIPLE 10. GUARANTEES FOR VICTIMS AND WITNESSES TESTIFYING ON THEIR

BEHALF

Effective measures shall be taken to ensure the security, physical and psychological well-being, and, where requested, the privacy of victims and witnesses who provide information to the commission.

(a) Victims and witnesses testifying on their behalf may be called upon to testify before the commission only on a strictly voluntary basis;

(b) Social workers and/or mental health-care practitioners should be authorized to assist victims, preferably in their own language, both during and after their testimony, especially in cases of sexual assault;

(c) All expenses incurred by those giving testimony shall be borne by the State;

(d) Information that might identify a witness who provided testimony pursuant to a promise of confidentially must be protected from disclosure. Victims providing testimony and other witnesses should in any event be informed of rules that will govern disclosure of information provided by them to the commission. Requests to provide information to the commission anonymously should be given serious consideration, especially in cases of sexual assault, and


the commission should establish procedures to guarantee anonymity in appropriate cases, while allowing corroboration of the information provided, as necessary.

PRINCIPLE 11. ADEQUATE RESOURCES FOR COMMISSIONS

The commission shall be provided with:

(a) Transparent funding to ensure that its independence is never in doubt;

(b) Sufficient material and human resources to ensure that its credibility is never in doubt.

PRINCIPLE 12. ADVISORY FUNCTIONS OF THE COMMISSIONS

The commission’s terms of reference should include provisions calling for it to include in its final report recommendations concerning legislative and other action to combat impunity. The terms of reference should ensure that the commission incorporates women’s experiences in its work, including its recommendations. When establishing a commission of inquiry, the Government should undertake to give due consideration to the commission’s recommendations.

PRINCIPLE 13. PUBLICIZING THE COMMISSION’S REPORTS

For security reasons or to avoid pressure on witnesses and commission members, the commission’s terms of reference may stipulate that relevant portions of its inquiry shall be kept confidential. The commission’s final report, on the other hand, shall be made public in full and shall be disseminated as widely as possible.

PRINCIPLE 14. MEASURES FOR THE PRESERVATION OF ARCHIVES

The right to know implies that archives must be preserved. Technical measures and penalties should be applied to prevent any removal, destruction, concealment or falsification of archives, especially for the purpose of ensuring the impunity of perpetrators of violations of human rights and/or humanitarian law.

PRINCIPLE 15. MEASURES FOR FACILITATING ACCESS TO ARCHIVES

Access to archives shall be facilitated in order to enable victims and their relatives to claim their rights. Access shall be facilitated, as necessary, for persons implicated, who request it for their defence. Access to archives should also be facilitated in the interest of historical research, subject to reasonable restrictions aimed at safeguarding the privacy and security of victims and other individuals. Formal requirements governing access may not be used for purposes of censorship.

PRINCIPLE 16. COOPERATION BETWEEN ARCHIVE DEPARTMENTS AND THE COURTS AND NON-JUDICIAL COMMISSIONS OF INQUIRY

Courts and non-judicial commissions of inquiry, as well as investigators reporting to them, must have access to relevant archives. This principle must be implemented in a manner that respects applicable privacy concerns, including in particular assurances of confidentiality provided to victims and other witnesses as a precondition of their testimony. Access may not be denied on grounds of national security unless, in exceptional circumstances, the restriction has been prescribed by law; the Government has demonstrated that the restriction is necessary in a democratic society to protect a legitimate national security interest; and the denial is subject to independent judicial review.


PRINCIPLE 17. SPECIFIC MEASURES RELATING TO ARCHIVES CONTAINING NAMES

(a) For the purposes of this principle, archives containing names shall be understood to be those archives containing information that makes it possible, directly or indirectly, to identify the individuals to whom they relate;

(b) All persons shall be entitled to know whether their name appears in State archives and, if it does, by virtue of their right of access, to challenge the validity of the information concerning them by exercising a right of reply. The challenged document should include a cross-reference to the document challenging its validity and both must be made available together whenever the former is requested. Access to the files of commissions of inquiry must be balanced against the legitimate expectations of confidentiality of victims and other witnesses testifying on their behalf in accordance with principles 8 (f) and 10 (d).

PRINCIPLE 18. SPECIFIC MEASURES RELATED TO THE RESTORATION OF OR TRANSITION TO DEMOCRACY AND/OR PEACE

(a) Measures should be taken to place each archive centre under the responsibility of a specifically designated office;

(b) When inventorying and assessing the reliability of stored archives, special attention should be given to archives relating to places of detention and other sites of serious violations of human rights and/or humanitarian law such as torture, in particular when the existence of such places was not officially recognized;

(c) Third countries shall be expected to cooperate with a view to communicating or restituting archives for the purpose of establishing the truth.

III. THE RIGHT TO JUSTICEA. General principlesPRINCIPLE 19. DUTIES OF STATES WITH REGARD TO THE ADMINISTRATION OF JUSTICEStates shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished. Although the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures. States should guarantee broad legal standing in the judicial process to any wronged party and to any person or non-governmental organization having a legitimate interest therein.B. Distribution of jurisdiction between national, foreign, international and internationalized courts

PRINCIPLE 20. JURISDICTION OF INTERNATIONAL AND INTERNATIONALIZED CRIMINAL TRIBUNALS

It remains the rule that States have primary responsibility to exercise jurisdiction over serious crimes under international law. In accordance with the terms of their statutes, international and internationalized criminal tribunals may exercise concurrent jurisdiction when national courts cannot offer satisfactory guarantees of independence and impartiality or are materially unable or unwilling to conduct effective investigations or prosecutions. States must ensure that they fully satisfy their legal obligations in respect of international and internationalized criminal tribunals,


including where necessary through the enactment of domestic legislation that enables States to fulfil obligations that arise through their adherence to the Rome Statute of the International Criminal Court or under other binding instruments, and through implementation of applicable obligations to apprehend and surrender suspects and to cooperate in respect of evidence.

PRINCIPLE 21. MEASURES FOR STRENGTHENING THE EFFECTIVENESS OF INTERNATIONAL LEGAL PRINCIPLES CONCERNING UNIVERSAL AND INTERNATIONAL

JURISDICTION

States should undertake effective measures, including the adoption or amendment of internal legislation, that are necessary to enable their courts to exercise universal jurisdiction over serious crimes under international law in accordance with applicable principles of customary and treaty law. States must ensure that they fully implement any legal obligations they have assumed to institute criminal proceedings against persons with respect to whom there is credible evidence of individual responsibility for serious crimes under international law if they do not extradite the suspects or transfer them for prosecution before an international or internationalized tribunal.

C. Restrictions on rules of law justified by action to combat impunity

PRINCIPLE 22. NATURE OF RESTRICTIVE MEASURES

States should adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription, amnesty, right to asylum, refusal to extradite, non bis in idem, due obedience, official immunities, repentance, the jurisdiction of military courts and the irremovability of judges that fosters or contributes to impunity.

PRINCIPLE 23. RESTRICTIONS ON PRESCRIPTION

Prescription - of prosecution or penalty - in criminal cases shall not run for such period as no effective remedy is available. Prescription shall not apply to crimes under international law that are by their nature imprescriptible. When it does apply, prescription shall not be effective against civil or administrative actions brought by victims seeking reparation for their injuries.

PRINCIPLE 24. RESTRICTIONS AND OTHER MEASURES RELATING TO AMNESTY

Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds:

(a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligations to which principle 19 refers or the perpetrators have been prosecuted before a court with jurisdiction - whether international, internationalized or national - outside the State in question;

(b) Amnesties and other measures of clemency shall be without effect with respect to the victims’ right to reparation, to which principles 31 through 34 refer, and shall not prejudice the right to know;

(c) Insofar as it may be interpreted as an admission of guilt, amnesty cannot be imposed on individuals prosecuted or sentenced for acts connected with the peaceful exercise of their right to freedom of opinion and expression. When they have merely exercised this legitimate right, as guaranteed by articles 18 to 20 of the Universal Declaration of Human Rights and 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights, the law shall consider any


judicial or other decision concerning them to be null and void; their detention shall be ended unconditionally and without delay;

(d) Any individual convicted of offences other than those to which paragraph (c) of this principle refers who comes within the scope of an amnesty is entitled to refuse it and request a retrial, if he or she has been tried without benefit of the right to a fair hearing guaranteed by articles 10 and 11 of the Universal Declaration of Human Rights and articles 9, 14 and 15 of the International Covenant on Civil and Political Rights, or if he or she was convicted on the basis of a statement established to have been made as a result of inhuman or degrading interrogation, especially under torture.

PRINCIPLE 25. RESTRICTIONS ON THE RIGHT OF ASYLUM

Under article 1, paragraph 2, of the Declaration on Territorial Asylum, adopted by the General Assembly on 14 December 1967, and article 1 F of the Convention relating to the Status of Refugees of 28 July 1951, States may not extend such protective status, including diplomatic asylum, to persons with respect to whom there are serious reasons to believe that they have committed a serious crime under international law.

PRINCIPLE 26. RESTRICTIONS ON EXTRADITION/NON BIS IN IDEM

(a) Persons who have committed serious crimes under international law may not, in order to avoid extradition, avail themselves of the favourable provisions generally relating to political offences or of the principle of non-extradition of nationals. Extradition should always be denied, however, especially by abolitionist countries, if the individual concerned risks the death penalty in the requesting country. Extradition should also be denied where there are substantial grounds for believing that the suspect would be in danger of being subjected to gross violations of human rights such as torture; enforced disappearance; or extra-legal, arbitrary or summary execution. If extradition is denied on these grounds, the requested State shall submit the case to its competent authorities for the purpose of prosecution;

(b) The fact that an individual has previously been tried in connection with a serious crime under international law shall not prevent his or her prosecution with respect to the same conduct if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

PRINCIPLE 27. RESTRICTIONS ON JUSTIFICATIONS RELATED TO DUE OBEDIENCE, SUPERIOR RESPONSIBILITY, AND OFFICIAL STATUS

(a) The fact that the perpetrator of violations acted on the orders of his or her Government or of a superior does not exempt him or her from responsibility, in particular criminal, but may be regarded as grounds for reducing the sentence, in conformity with principles of justice;

(b) The fact that violations have been committed by a subordinate does not exempt that subordinate’s superiors from responsibility, in particular criminal, if they knew or had at the time reason to know that the subordinate was committing or about to commit such a crime and they did not take all the necessary measures within their power to prevent or punish the crime;

(c) The official status of the perpetrator of a crime under international law - even if acting as head of State or Government - does not exempt him or her from criminal or other responsibility and is not grounds for a reduction of sentence.


PRINCIPLE 28. RESTRICTIONS ON THE EFFECTS OF LEGISLATION ON DISCLOSURE OR REPENTANCE

The fact that a perpetrator discloses the violations that he, she or others have committed in order to benefit from the favourable provisions of legislation on disclosure or repentance cannot exempt him or her from criminal or other responsibility. The disclosure may only provide grounds for a reduction of sentence in order to encourage revelation of the truth. When disclosures may subject a perpetrator to persecution, principle 25 notwithstanding, the person making the disclosure may be granted asylum - not refugee status - in order to facilitate revelation of the truth.

PRINCIPLE 29. RESTRICTIONS ON THE JURISDICTION OF MILITARY COURTS

The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.

PRINCIPLE 30. RESTRICTIONS ON THE PRINCIPLE OF THE IRREMOVABILITY OF JUDGES

The principle of irremovability, as the basic guarantee of the independence of judges, must be observed in respect of judges who have been appointed in conformity with the requirements of the rule of law. Conversely, judges unlawfully appointed or who derive their judicial power from an act of allegiance may be relieved of their functions by law in accordance with the principle of parallelism. They must be provided an opportunity to challenge their dismissal in proceedings that meet the criteria of independence and impartiality with a view toward seeking reinstatement.

IV. THE RIGHT TO REPARATION/GUARANTEES OF NON-RECURRENCEA. The right to reparation

PRINCIPLE 31. RIGHTS AND DUTIES ARISING OUT OF THE OBLIGATION TO MAKE REPARATION

Any human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to seek redress from the perpetrator.

PRINCIPLE 32. REPARATION PROCEDURES

All victims shall have access to a readily available, prompt and effective remedy in the form of criminal, civil, administrative or disciplinary proceedings subject to the restrictions on prescription set forth in principle 23. In exercising this right, they shall be afforded protection against intimidation and reprisals. Reparations may also be provided through programmes, based upon legislative or administrative measures, funded by national or international sources, addressed to individuals and to communities. Victims and other sectors of civil society should play a meaningful role in the design and implementation of such programmes. Concerted efforts should be made to ensure that women and minority groups participate in public consultations aimed at developing, implementing, and assessing reparations programmes. Exercise of the right to reparation includes access to applicable international and regional procedures.


PRINCIPLE 33. PUBLICIZING REPARATION PROCEDURES

Ad hoc procedures enabling victims to exercise their right to reparation should be given the widest possible publicity by private as well as public communication media. Such dissemination should take place both within and outside the country, including through consular services, particularly in countries to which large numbers of victims have been forced into exile.

PRINCIPLE 34. SCOPE OF THE RIGHT TO REPARATION

The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution, compensation, rehabilitation, and satisfaction as provided by international law. In the case of forced disappearance, the family of the direct victim has an imprescriptible right to be informed of the fate and/or whereabouts of the disappeared person and, in the event of decease, that person’s body must be returned to the family as soon as it has been identified, regardless of whether the perpetrators have been identified or prosecuted.B. Guarantees of non-recurrence of violations

PRINCIPLE 35. GENERAL PRINCIPLES

States shall ensure that victims do not again have to endure violations of their rights. To this end, States must undertake institutional reforms and other measures necessary to ensure respect for the rule of law, foster and sustain a culture of respect for human rights, and restore or establish public trust in government institutions. Adequate representation of women and minority groups in public institutions is essential to the achievement of these aims. Institutional reforms aimed at preventing a recurrence of violations should be developed through a process of broad public consultations, including the participation of victims and other sectors of civil society. Such reforms should advance the following objectives:(a) Consistent adherence by public institutions to the rule of law;(b) The repeal of laws that contribute to or authorize violations of human rights and/or

humanitarian law and enactment of legislative and other measures necessary to ensure respect for human rights and humanitarian law, including measures that safeguard democratic institutions and processes;

(c) Civilian control of military and security forces and intelligence services and disbandment of parastatal armed forces;

(d) Reintegration of children involved in armed conflict into society.

PRINCIPLE 36. REFORM OF STATE INSTITUTIONS

States must take all necessary measures, including legislative and administrative reforms, to ensure that public institutions are organized in a manner that ensures respect for the rule of law and protection of human rights. At a minimum, States should undertake the following measures:(a) Public officials and employees who are personally responsible for gross violations of human rights,

in particular those involved in military, security, police, intelligence and judicial sectors, shall not continue to serve in State institutions. Their removal shall comply with the requirements of due process of law and the principle of non-discrimination. Persons formally charged with individual responsibility for serious crimes under international law shall be suspended from official duties during the criminal or disciplinary proceedings;

(b) With respect to the judiciary, States must undertake all other measures necessary to assure the independent, impartial and effective operation of courts in accordance with international standards of due process. Habeas corpus, by whatever name it may be known, must be considered a non-derogable right;

(c) Civilian control of military and security forces as well as of intelligence agencies must be ensured and, where necessary, established or restored. To this end, States should establish effective


institutions of civilian oversight over military and security forces and intelligence agencies, including legislative oversight bodies;

(d) Civil complaint procedures should be established and their effective operation assured;(e) Public officials and employees, in particular those involved in military, security, police, intelligence

and judicial sectors, should receive comprehensive and ongoing training in human rights and, where applicable, humanitarian law standards and in implementation of those standards.

PRINCIPLE 37. DISBANDMENT OF PARASTATAL ARMED FORCES/DEMOBILIZATION AND SOCIAL REINTEGRATION OF CHILDREN

Parastatal or unofficial armed groups shall be demobilized and disbanded. Their position in or links with State institutions, including in particular the army, police, intelligence and security forces, should be thoroughly investigated and the information thus acquired made public. States should draw up a reconversion plan to ensure the social reintegration of the members of such groups. Measures should be taken to secure the cooperation of third countries that might have contributed to the creation and development of such groups,particularly through financial or logistical support. Children who have been recruited or used in hostilities shall be demobilized or otherwise released from service. States shall, when necessary, accord these children all appropriate assistance for their physical and psychological recovery and their social integration.

PRINCIPLE 38. REFORM OF LAWS AND INSTITUTIONS CONTRIBUTING TO IMPUNITY

Legislation and administrative regulations and institutions that contribute to or legitimize human rights violations must be repealed or abolished. In particular, emergency legislation and courts of any kind must be repealed or abolished insofar as they infringe the fundamental rights and freedoms guaranteed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Legislative measures necessary to ensure protection of human rights and to safeguard democratic institutions and processes must be enacted. As a basis for such reforms, during periods of restoration of or transition to democracy and/or peace States should undertake a comprehensive review of legislation and administrative regulations.


EXCERPTS FROM THE PROGRESS REPORT ON THE IMPLEMENTATION OF THE INTERIM RECOMMENDATIONS OF THE LLRC

The Inter-Agency Advisory Committee (IAAC) takes this opportunity to record the progress made so far on the implementation of the interim recommendations made by the Lessons Learnt and Reconciliation Commission (LLRC). The Lessons Learnt and Reconciliation Commission (LLRC) was established by HE the President pursuant to the Warrant dated 15 May 2010. The LLRC commended its public sitting on 11 August 2010. On 13 September 2010, the LLRC submitted its interim recommendations to H. E. the President. The interim recommendations were based on extensive testimony received by the LLRC during its interaction with affected civilians following field visits to several locations in the conflict-affected areas, including places of detention, rehabilitation and IDP welfare centres. H. E. the President of Sri Lanka endorsing the importance of the objective behind the LLRC interim recommendations, supported the adoption in Cabinet of the Paper dated 27th October 2010 to establish an Inter-Agency Advisory Committee (IAAC) to facilitate the implementation of the interim recommendations. The objective of the IAAC is to implement these recommendations of the LLRC through practical measures and to strengthen the related processes that are already underway. The progress on the recommendations of the LLRC is summarized as follows: (iii) Administration and Language issues The GoSL acknowledges the need to ensure language rights of all citizens particularly in the Tamil speaking areas of Sri Lanka. The Language Policy of Sri Lanka is enshrined in Chapter IV of the Constitution of Sri Lanka, as amended by the 13th Amendment and the 16th Amendment. It is also reflected by the vision of H.E. the President of Sri Lanka who has firmly advocated a ‘Trilingual Sri Lanka’.

Members of the Tamil community from the North & the East have been enlisted to the Police Department in the year 2010, as there was an urgent need for such offices capable of performing duties in the Tamil language in the newly re-established Police Stations in the Northern and Easter Provinces:

On 01.06.2010 Police Constable 265 On 01.07.2010 Police Constable 54 On 01.06.2010 Women Police Constable 16

Total 335

A further recruitment of Tamil speaking Police Officers will be done in future as follows:

Sub Inspector of Police 50 Women Sub-Inspector of Police 25 Police Constable 350 Women Police Constable 50 Total 475

Conclusion

Whilst the IAARC offers its gratitude to His Excellency the President for all the directions that were given at all times to facilitate the work of the IAAC and the progress made so far on the recommendations, the IAARC also takes this opportunity to thank all stakeholders from civil society and from government, for their unstinted support and cooperation. While soliciting and looking forward to the continued corporation of all concerned in this national exercise of nation building, the IAAC reiterates its commitment to exploring further avenues towards the effective implementation of the interim recommendation in their full plenitude

Full report can be accessed at http://www.srilanka-botschaft.de/Images_and_Basics/pdfs/Circular/49.pdf


Published in November, 2011

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