Darusman, LLRC and Petrie conundrum

To do or not to do – is that the question?

A conundrum is a confusing problem or a question that is very difficult to solve. Sri Lanka, in the view of some analysts, faces a conundrum in relation to three reports concerning the situation of the end of the civil war in May 2009.

The first such document is entitled the Report of the Secretary General Panel of Experts on Accountability in Sri Lanka. This was chaired by Marzuki Darusman, an Indonesian, and is commonly referred to as the Darusman Report. The Darusman Report was presented to the Secretary General of the United Nations in March 2011. The second report is the report of the Lessons Learnt and Reconciliation Commission (LLRC) appointed by the Government of Sri Lanka. This report was issued in December 2011. The third report is one issued by an Internal Review Panel appointed by the UN Secretary General as recommended by the Darusman Commission to examine the UN’s actions during the final months of the civil war in Sri Lanka in 2009 and its aftermath. This Internal Review Panel was chaired by Charles Petrie a retired senior UN diplomat and presented to the Secretary General in November 2012. It is referred to as the Petrie Report.

The Darusman Report

 The Darusman panel was appointed by the Secretary General of the United Nations to advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the civil law. The panel states that its report revealed ‘a very different version of the final stages of the war than that maintained to this day by the Government’.

The panel found ‘credible allegations’ which, if proven, indicated that war crimes and crimes against humanity were committed by the Sri Lankan military and the LTTE. The conclusion of the panel was ‘the conduct of the war represented a grave assault on the entire regime of international law designed to prevent individual dignity during both peace and war’.

The panel found that as many as 40,000 civilians may have been killed in the final months of the civil war, most as a result of indiscriminate shelling by the Sri Lankan military. The panel also found ‘credible allegations ‘ that the Sri Lanka military killed civilians through widespread shelling, shelled hospitals and humanitarian objects, denied humanitarian assistance, violated the human rights of civilians and combatants and it violated the human rights of those outside the conflict zone such those of the members of the media.

Regarding the Tamil Tigers the panel found ‘credible allegations’ that they used civilians as a human buffer, killed civilians attempting to escape Tiger control, used military equipment in the proximity of civilians, forcibly recruited children, used forced labour and killed civilians using suicide attacks. The panel called on the UN Secretary General to conduct an independent international investigation into the alleged violations of international humanitarian law and human rights law committed by both sides.

The background to the Darusman Report was that immediately following the end of the civil war in May 2009 the Secretary General of the UN visited Sri Lanka and the President and the Secretary General issued a joint statement in which the Sri Lanka government agreed to take measures on accountability of violations of international humanitarian and human rights law. As months of inaction by the Government stretched out, pressure grew for an international inquiry and the Secretary General appointed a three-member panel of experts in June 2010 to advise him on accountability issues relating to alleged violations of international human rights and humanitarian law in the final stages of the civil war.

The Sri Lanka Government reacted angrily to the panel being appointed, calling it ‘an unwarranted and unnecessary interference with a sovereign nation’. The Government also stated that the panel would not be allowed to enter Sri Lanka. Predictably the panel’s appointment was welcomed by the USA and the EU and criticised by Russia and China.

After the panel handed over a copy of their report to the UN’s Secretary General, a copy was given to the Government of Sri Lanka. The Government rejected the report as ‘fundamentally flawed’ and ‘patently biased’.

The LLRC Report

The second report which is a source of the conundrum is the Lessons Learnt and Reconciliation Commission (LLRC) which the Government of Sri Lanka appointed in May 2010. The commission was mandated to investigate the facts and circumstances which led to the failure of the Cease Fire Agreement made operational on 27 February 2002, the lessons that should be learnt from those events and 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.

The report of the LLRC was published on 16 December 2011. The finding was that the Sri Lanka military did not deliberately target civilians but the LTTE repeatedly violated international humanitarian law. The military gave the ‘highest priority’ to protecting civilians whereas the LTTE had ‘no respect for human life’. The commission however admitted that civilians had been killed by the military, albeit accidentally. This was a clear contradiction of the position taken by the Government that there were no civilian casualties.

The commission received some eyewitness evidence alleging abuse by the military which warranted further investigation and, if necessary, the prosecution of the perpetrators. The commission acknowledged that hospitals had been shelled, resulting in ‘considerable civilian casualties’ but did not mention who was responsible for such shelling. The commission blamed Sinhalese and Tamil politicians for causing the civil war. The Sinhalese politicians failed to offer a solution acceptable to the Tamil people and the Tamil politicians fanned militant separatism.

The LRRC was heavily criticised by the Darusman panel, international human rights groups, due to limited mandate, alleged lack of independence and its failure to meet minimum international standards or offer protection to witnesses. They expressed the opinion that the Government intended to use the LRRC as a device to forestall an independent international investigation of alleged abuses.

Organisations such as Amnesty International, Human Rights Watch and the International Crisis Group refused to appear before the LLRC. These organisations expressed the opinion that the Government’s attempt at accountability consisted solely of investigating the actions of the previous Government and the LTTE, and not of the present Government’s actions during the final stages of the war. This was not in their view, in accordance with international standards and fell ‘dramatically short of international expectations’.

The Darusman panel said that the LLRC was ‘deeply flawed’ and not up to international standards of independence and impartiality due to the ‘deep seated conflicts of interest’ of some of its members. The mandate of the LLRC, its work and methodology meant it was incapable of investigating the serious violations of international humanitarian and human rights law or of examining the causes of the civil strife.

The Darusman panel expressed the view that the LLRC could not satisfy the commitment on accountability given by the President of Sri Lanka and the Secretary General of the UN. They found that the Sri Lanka justice system was incapable of providing accountability. The independence of the Attorney General had been eroded and the continuation of Emergency Regulations and the Prevention of Terrorism Act at that time precluded the judiciary from holding the Government accountable.

The Petrie Report

The third document is the report of an Internal Review Panel appointed by the Secretary General of the UN, as recommended by the Darusman panel. This Internal Review Panel was chaired by Charles Petrie, a retired UN diplomat, to look into UN’s actions during the final months of the end of the civil war in Sri Lanka in 2009 and its aftermath.

The Secretary General of the UN, while releasing the Internal Review Panel’s report, said: ‘The UN system failed to meet its responsibilities.’ The Petrie report, in addition to finding that the UN system failed to meet its responsibilities, particularly highlighted the roles played by the Secretariat, the agencies and programs of the UN Country team and the members of the Security Council and the Human Rights Council.

The UN’s Secretary General has stated that ‘the findings of the Petrie panel has profound implications for our work across the world, and I am determined that the United Nations draws the appropriate lessons and does its utmost to earn the confidence of the world’s people, especially those caught in conflict who look to our organisation for help.’

The Darusman panel recommended ‘a comprehensive review of action by the UN system during the war in Sri Lanka, and the aftermath, regarding the implementation of its humanitarian and protection mandates’. This led to the Petrie panel being appointed.

The Petrie panel says it reviewed around 7,000 documents, including the UN’s exchanges with the Government of Sri Lanka. It also spoke with a large number of people and organisations and member states of the UN. The Petrie panel also stated that they had drawn on previous reviews of the UN’s actions in conflict situations.

The Secretary General of the UN said that he will immediately appoint a senior level UN team to ‘give careful consideration’ to the reports’ recommendations and advice him of the way forward. He promised that ‘other actions will follow in short order’. In line with the UN’s approach towards transparency and accountability at the UN, the report has been made public. The Secretary General referred to the current situation in Syria, where a civil conflict rages and said that it is the latest reminder of how important the UN’s humanitarian and protection mandates were.

‘Our obligation to all humanity is to overcome our setbacks, learn from our mistakes, strengthen our responses, and act meaningfully and effectively for the future. These principles and objectives drove me to establish the panel and they will guide us as we take forward its outcomes.’

The Petrie report also stated that the UN generally had a difficult relationship with the Government during the conflict; the Government used its control of visas as well as harsh and even defamatory articles in the domestic media, as a means to pressure and intimidates any UN staff perceived critical of the State. (There is system evidence of this currently – witness the trial by Government media of the incumbent Chief Justice! They are prosecutor, witness, judge and hangman combined).

Several Resident Coordinators were declared persona non grata and a number of senior staff was withdrawn by the UN before they suffered the same fate. Candidates the UN proposed to replace them were apparently rejected because of past experience in conflict situations.

The Government of Sri Lanka responded by challenging the contents of the Petrie report. The Government through the Secretary to the ministry of external affairs conceded that the UN failed in its actions during the war. The UN failed to take action when the LTTE used civilians as human shields and in that sense the UN had not done enough. One spokesperson went on to claim that the Government could not be held responsible if the UN was not willing to carry out its mandate.

Crucial stages and the UN

Analysts have pointed out that the issue revolves around that question of how does the international community react when an ostensibly democratic Government is fighting a ruthless and savage terrorist outfit.

The Petrie report appears to indicate that at the crucial stages of the conflict in Sri Lanka, despite what appears to be overwhelming evidence of mass civilian casualties and that a catastrophe was imminent, allegedly due to the use of overwhelmingly disproportionate force, claimed necessary to eliminate terrorism once and for all, by an advancing Army against ruthless terrorist group, using helpless cowering civilians as a shield, in the context, the UN did not have stomach to stand up for the people who they were mandated to protect. Colombo seemed to have worked systematically to hound out UN staff of the region to ensure that there would be no witnesses to the operations against the LTTE.

In a comment on the Petrie report, Gordon Weiss, a former UN staffer based in Sri Lanka, during the conflict and author of ‘The Cage – The Fight for Sri Lanka and the Last Days of the Tamil Tigers,’ says:  ‘The UN has shouldered the responsibility for the bloody catastrophe in Sri Lanka. The report points to crimes committed by both the Government and the LTTE.’

Weiss claims that the Petrie report shows the UN Secretary General’s team recoiled from telling the UN Security Council in stark terms what it didn’t want to hear. Also, as the UN staff in Sri Lanka buckled under intimidation and threats from the Government, the UN Secretariat withheld the kind of support its staff needed to resist and pushback.

Weiss says that a UN humanitarian worker who warned that children were being killed was expelled, accused of supporting terrorists. Weiss places Sri Lanka in March 2009 on par with atrocities in Rwanda and Srebrenica. He says that while the Government had given a written guarantee to the UN Secretary General that it would provide a true account of what happened at the end of the civil war, this was after the Government had, according to the Petrie report, chosen a deliberate path which led to the commission of war crimes and crimes against humanity.

Frances Harrison , former BBC Correspondent in Sri Lanka and author of ‘Still Counting the Dead: Survivors of Sri Lanka’s Hidden War,’ asks ‘if today the UN announces that it had received unconfirmed reports of 50,000 casualties in a war off limits to journalists, wouldn’t the world take notice and try and stop the killings?’

She claims that the Petrie report shows that the UN system had such information about Sri Lanka in 2009 and suppressed it. She cites an Executive Summary to the Petrie report which was first released and then withdrawn, which is supposed to have said: ‘Some have argued many death could have been averted had the Security Council and the Secretariat, backed by the UN Country Team, spoken out loudly early on, notably by publicising casualty numbers.’

Harrison categorically states that the only way for the UN to set the record straight is to set up an international investigation into war crimes in Sri Lanka. Harrison says the Darusman panel recommended this and the Petrie report shows that show that the UN Secretary General’s own legal department had advised him that he had the power to do it, but he backed off.

Recently local newspapers reported that a UN Senior Political Affairs Officer in a conversation with the Bishop of Jaffna had said that the UN had committed a mistake in withdrawing UN staff from the war zone during the war.

Concrete steps suggested

Another local analyst points out that even one year after the LLRC report was published, the Government continues to prevaricate on implementing the proposals in the LLRC report. He points out that in March 2013 Sri Lanka will again be before the Human Rights Council in Geneva, being asked to show what concrete steps had been taken.

The analyst suggests some concrete steps such as:

Appointing a special Commissioner to handle the 4,000 pending cases regarding alleged disappearances.

Fix deadlines for the handing over and enforced recovery of illegal arms in the country.

Set up a credible special mechanism to expedite the filing of charges or release of those detained for alleged terrorist activities.

Take steps to initiate a process of meaningful allocation of power, to the periphery, even taking a serious look at a fourth level of Government at the village or Grama Niladhari division level. There has been much talk of an elected empowered Panchaayat on the Indian model. Much taxpayer’s money has been dumped on junkets by sundry politicians and bureaucrats on trips to India to study the Gram Panchaayat in depth.

Set up a meaning full second chamber at the national level. Not a mere bunch of male geriatric ‘posterior liqu[or]ing’ bumblers – who will be hostage to political party whips, but a chamber that will reflect the age, gender, racial, educational, linguistic, economic, geographical and professional diversity and reality of Sri Lanka.

A senate with power to initiate legislation, to block majoritarian anti minority arrogance – whether age, racial, gender, geographical, religious, economic or linguistic.

Sort out the land problem – by appointing a representative National Land Commission of good men and women, to determine a clear policy on land alienation and management. The analyst says that draft legislation is available.

Similarly a meaningful and autonomous National Education Commission, and Public Service Commission and a Judicial Services Commission, to ensure the protection of these sectors from the curse of political interference.

Free those sections of the media which have become the pet poodle of the State and conduct ‘trial by media,’ combining the roles of prosecutor, witness, judge, jury and hangman all in one headline, of anyone who has the gumption to tell the burgeoning State forces that they may just be wrong and to think again. Take steps to protect the ordinary citizen from such malicious media, both in the private and Government sectors. Witness the Justice Leveson Report in Britain on this aspect and the veritable tsunami which is hitting the very root of British media culture as a result of the proposals made by the judge on limits to media freedom.

The conundrum facing Sri Lanka on these three documents is that Sri Lanka has not only reactively, but not even proactively, taken meaningful steps as a national priority, to deal with the issues raised, which we need to do, not merely because we may be answerable to some international forum, but because we the citizens of a sovereign, ancient and historical nation, feel it is the right, proper, and correct thing to do, based on what we believe in, based on our rich religious, cultural, and social values and norms.

(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)