“Post-war Accountability and Reconciliation:
Creating an Inclusive Sri Lankan Identity”
Seminar held at the Marga Institute on 9th February 2012.
Marga Institute
941/1, Jayanthi Mawatha,
Kotte Road,
Ethul Kotte.
Tel. 011 2888790 Fax: 011 2888794
E-mail:
CONTENTS
Pg No.
EXECUTIVE SUMMARY 3
PART 14
PART 2 8
PART 1 – Seminar Proceedings10
1.Introduction11
2.Welcome11
3.Setting the Context11
4.Seminar Framework19
5.Session on Accountability21
6.Session on Human Right & Reconciliation29
7.Summing-up35
Annex 1 – Seminar Programme37
Annex 2 – List of Participants38
Annex 3 – Responses to the LLRC Report39
PART 2 - Implementing the LLRC Recommendations : Marga Proposals40
Implementing the LLRC Recommendations: Moving from a Past of
Conflict to a Future of Harmonious Co-existence.41
Annex 1 – Implementation Issues46
Annex 2 – Governance Framework for Implementing LLRC
Recommendations49
Annex 3 – Institutional Arrangements for Implementation of LLRC
Recommendations50
EXECUTIVE SUMMARY
The Marga Institute initiated a dialogue on post-conflict reconciliation with a study on “The Sri Lankan Identity”. This was followed by a seminar on “Accountability, Restorative Justice and Reconciliation” held on 21.07.2011to review the report of the UN Secretary General’s Panel of Experts on Accountability in Sri Lanka. When the Presidential Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC) submitted its report in November 2011, Marga Institute considered it important to carry forward the civil society dialogue on reconciliation.This was to be its modest contribution to the national effort in moving towards a Sri Lankan identity where there is no space for clash of ethnicity. A seminar on the theme “Post-war Accountability and Reconciliation: Creating an Inclusive Sri Lankan Identity” was held under the auspices of its Civil Society Forum on 9th February, 2012. The objective of the Seminar was to define the domain and delineate the modalities that can guide and give direction to the process of post-war accountability and reconciliation that has been initiated.
This report which is in two parts presents the summary of proceedings of the Seminar as well Marga proposals on the way forward for the implementation of the recommendations of the LLRC. The proposals for implementation draws from the internal deliberations at the Institute on the context, nature and scope of the issues addressed by the LLRC and the need to position them in a more holistic framework. The Marga Institute approaches implementation in a manner that focuses on the fundamental principles of human development underpinning the recommendations. These are treated as the necessary basis for defining post-conflict reconciliation so as to give form and substance to a new Sri Lankan identity.
PART 1
The Seminar was organized in three sessions,- an introduction setting the context for the seminar and providing an overview of the LLRC report, an examination of the issues of post-war accountability followed by a session on human rights and reconciliation.
Setting the Context
The introductory session drew attention to the method of presentation and reporting by the LLRC which is fully transparent. All inquiries have been conducted in public and the full transcripts of the proceedings are available for public scrutiny in the LLRC website.
Main Conclusions
The main conclusions of the report could be grouped under three main heads:
- Issues of accountability arising out of the military operations and government actions during the last stages of the war.
- The present state of human rights, good governance and the rule of law, resettlement and restoration of civilian administration
- The root causes of the conflict, the political solution and sharing of power and the long term process of reconciliation and harmonious co-existence.
On accountability issues the LLRC presents a detailed and comprehensive account of the last stages of the war and concludes that government took all possible measures to protect and rescue civilians and maintain supplies of food and medicine under very difficult condition and that it was definitely not a part of the government’s strategy to target civilians and hospitals and kill a large number of Tamil civilians. However the LLRC also concludes that the evidence it has recorded has established that there have been a considerable number of civilian casualties and specific episodes in which civilians have been fired at by the security forces and killed, and that a large number of abductions and disappearances have occurred. It recommends that these be further investigated. In dealing with these issues the LLRC also examines the existing International Humanitarian Law (IHL) and discusses its adequacy to deal with extreme choices that arise in military operations against terrorist groups as in the case of Sri Lanka. . While the LLRC does not deal directly with the issues of retributive justice and restorative justice its approach to issues of reconciliation is informed by the values of restorative justice. Overall a balance is maintained which upholds accountability and recommends investigation, prosecution and punitive action for the specific violations of human rights and killings.
In regard to human rights, grave shortfalls in the protection of human rights are identified and recommendations made for dealing with such violations. The LLRC comments critically on the government’s failure to take action on some of their interim recommendations regarding illegal armed groups. The LLRC goes on to deal with the systemic failures that have occurred and are continuing to occur in governance and the rule of law. It prescribes the necessary courses of action to remedy the situation drawing attention to the close links between accountability, socio-economic recovery, development and reconciliation. While taking the view that the root causes of the ethnic conflict lies in the failure of successive governments to address the genuine grievances of the Tamil people, the LLRC considers a political solution is imperative to address these root causes and calls “for a vision of a shared future, a vision of an interdependent, just equitable open and diverse society” that should guide the entire process of peace and reconciliation.
The Framework of Values
The Commission defines a framework of values that must underpin this vision. The cornerstones of the value system are:
- first,the collective acknowledgement of guilt and contrition for the suffering we have caused each other,
- second, the call for a fundamental reorientation of attitude on the part of all parties that would promote mutual trust and understanding ,
- third, the emphasis on an inclusive process of governance in which all ethnic groups enjoy full equality of citizenship,
- fourth a system of government in which there is an equitable sharing of power and the people are empowered from the grassroots level upwards in a fully accountable participatory democracy.
These constitute the essential moral foundation for the process of reconciliation. It is on this foundation that all the communities can come together in a shared Sri Lankan identity.
The implementation of the LLRC recommendations is therefore exceedingly complex. TheLLRC agenda is wide-ranging and societal in character ; it cannot be implemented piecemeal and has to be adopted as an integrated whole. This is in accord with the approaches that are now accepted for promoting sustainable human development – approaches that insist that the social, economic and political aspects of development should progress simultaneously. But the different parts t of the LLRC agenda will require different methodologies with different time constraints. But as they are all interdependent they have to be sequenced to move forward simultaneously. There is need for a well designed institutional framework within which the responsibilities of various agencies are clearly identified and assigned. Indeed the main cause of the present dissatisfaction with the implementation of the LLRC report is the lack of an integrated institutional framework and an action plan which are clearly visible to all stakeholders in a genuinely participatory process of implementation so that there is a greater understanding of both the needs and the constraints.
There is also the need to focus on the processes that must guide and give direction to the implementation of the recommendations.The theme of the seminar argues that the process of implementation should necessarily be guided by and should lead to redefining the Sri Lankan identity in terms of “who are we and what are the conditions of our co-existence? ” in moving to an era of peace, harmony and prosperity. This overriding value system should define and guide the whole process of reconciliation. Thus while developing the institutional mechanisms and achieving the outcomes envisaged in the LLRC report , the implementing agencies should constantly adhere at every step to the value system that would help to create an inclusive Sri Lankan identity.
Issues of Accountability
The discussants in the session on accountability pointed out that the mandate of the LLRC did not appear to include any reference to accountability issues. Even so the Commission has devoted a considerable amount of its time to dealing with several allegations against the Government of Sri Lanka, which related to violations of international humanitarian law (IHL) and international human rights law (IHRL). The seminar noted that the mandate, composition and overall methodology of the LLRC did not afford it the necessary scope to examine and apply the fundamentals of accountability, truth, justice and reparations, fully and effectively. A genuine commitment to truth telling would have entailed a victim-centred approach, an approach that was well within the capacity of the LLRC. This should have been the foundation of its approach to accountability. However the victims of the war were unfortunately not at the centre of the LLRC’s work. Nevertheless, the work of the LLRC has produced certain positive outcomes . Notably the report clearly rejected the zero casualty claim and noted that there had been a large number of civilian casualties , it published the transcripts of its public hearings, and it also provided important evidence that calls for further investigations.
One line of argument stressed that the key aspect of distinguishing between combatants and civilians had not been dealt with adequately by the LLRC. The issues dealt with are those of direct participation in hostilities, and the basic approach taken has been to consider the issues of distinction and proportionality. The issue of proportionality raises the issue of distinction, as to who is a civilian. The Seminar noted the complexity of the issue, at the heart of which stood the human predicament of those Tamil civilians who got caught in the conflict and became for all intents and purposes combatants in the sense of having been coerced to join and assist in various ways in the LTTE’s military operations. All this underscores the necessity to relate to the human situation in the treatment of accountability. In moving forward it is also important to take note of the fact that accountability is not just about past actors that have been involved , but it is also about the actors who need to take responsibility to carry forward the sum total of the recommendations. What is to be done and done speedily is on the table not only for government but for all other actors as well , and these include political parties , civil society and religious leaders .
Issues of Human Rights and Reconciliation
Moving on to issues of human rights and reconciliation,participants agreed that the report of the LLRC provides a framework for setting in motion processes and mechanisms to promote a meaningful process of reconciliation . The report and the recommendations constitute a framework for action by all stakeholders, in particular the government, political parties and community leaders.
The Seminar noted that the fundamental question is about the will to implement the wide ranging recommendations made by the LLRC. Reconciliation will involve the preparation of an implementation plan and carrying it through. It was noted that implementation on reconciliation cannot be separated from the issue of accountability. One of the problems to be addressed, right from outset before any reconciliation can take place, is that of the disappeared and missing before the war, during the war and after the war. The next essential condition for an enduring process of reconciliation is the political solution to the ethnic problem through structures of devolution and sharing of power . The participants emphasised that there has been no credible initiative to resolve the problems in this area. Overall, these and other failures in governance continue to raise questions about the implementation of a process of reconciliation that would be acceptable to the Tamils and other minorities .
Some participants pointed out that questions are raised about both the commitment as well as the capacity of the present government to implement the recommendations of the LLRC. These critics have argued that the implementation of many of the recommendations would not be in the interest of those in power . However there was general agreement that such an approach serves no purpose. It is necessary to start from the basic premise that there is a democratically elected government responsible to the people and that civil society can constructively engage with the government in regard to the implementation of the LLRC report .
PART 2
Key Elements in the Process of Implementation
In evaluating the views expressed in the Seminar the Marga Institute identified the following keyelements in the process of implementation:
The design of the implementation framework should ensure moving from conflict to reconciliation and on to peace and human development in a coherent consistent manner.
All of the areas where the LLRC considered decisions to be necessary are about people and the steerage of the journey out of conflict requires that the institutional framework for implementation of the recommendations maintain a clear focus on outcomes of resolving issues of accountability, human rights, return and restitution and ensure that any deficit in each of these do not undermine the whole of the outcome that is sought. Therefore reconciliation must be envisioned within an institutional framework underpinned by democratic governance ensuring the centrality of victims and their grievances as well as the rights and freedoms of all the people in the conflict-affected region. The processes in achieving the outcomes are therefore vitally important.
The recommendations extend from actions related to concerns at the individual level to issues to be worked out at the societal level. Further the implementation process must be perceived coherently and there has to be a clear definition of implementation roles and responsibilities with a guarantee of performance. Since reconciliation constitutes a total process, implementation should take place through the mainstream of the government administrative system and not established as a separate and parallel action system. Several roles and responsibilities need to be clearly established.
The institutional framework and the conditions that are essential for the effective implementation of the report are broadly outlined below:
(a)Steerage of implementation at national level through a National Council for Reconciliation and at the Provincial, District and Divisional levels appropriate mechanisms for co-ordination implementation and monitoring.
(b)Maximum engagement of all stakeholders in programme deliberations organized through thematic committees.
(c)Implementation mainstreamed through relevant government agencies.
(d)Political accountability through a Parliamentary Committee for Reconciliation.
(e)Information and reporting especially informing the people and communities on the programme, action plans, and progress.
The strategy for the implementation of the LLRC recommendation should be to mainstream the ensuing actions and activities within the regular government administration system and process. It should set the implementation of the LLRC recommendations within the broader vision of human development in the Mahinda Chintanaya. Accordingly accountability, rights and restitution, and reconciliation would constitute functional actions and activities of government agencies as would be appropriate and according to imperatives arising in the course of implementation. The evolving agenda for accountability, rights and reconciliation would then constitute integral sectoral and regional components of the Government’s “vision for the future”.
PART 1
SEMINAR PROCEEDINGS
1. Introduction
The main objective of the Seminar was to assess the LLRC report and its full set of recommendations as an effective means of dealing with the problems that have arisen as a result of the war. The Report was to be evaluated for its worth as an instrument for promoting truth, accountability and reconciliation in Sri Lanka. The Seminar was organized in two sessions. The first session covered the issues of accountability that are examined in Chapters 3 and 4 of the Report covering the narrative of the military operations and actions taken by the government in the last stages of the war. The second session dealt with Chapters 5 onwards covering human rights resettlement, rehabilitation, and the implementation of the report. The chapter dealing with the ceasefire agreement was not included for discussion at the seminar.
2. Welcome
The seminar commenced with a brief welcome address by Mr. Mangala Moonesinghe. Noting that the seminar was on “Post-war accountability and reconciliation: Redefining Sri Lanka Identity Mr Moonesinghe stated that the country is going through a historic transition , moving from a protracted and violent conflict to a process aimed at multi-ethnic reconciliation and peace. He touched on a number of initiatives covering boith the government and civil society and drew special mattention to the policy of promoting a tri-ingual society Concluding he emphasized that the quicker the LLRC report implemented better it will be for the country.
3. Setting the Context
The introductory presentation was made by Godfrey Gunatilleke. It provided the setting and the overview for the seminar and focused on the following themes and issues :
•The salient features of the report and its main conclusions on the key issues of Truth, Accountability and Reconciliation
•An overview of the main responses to the LLRC report – international and domestic