The LLRC: What lessons have we learnt about reconciliation?

Tuesday, 17 March 2015 00:49 -     - {{hitsCtrl.values.hits}}

The Lessons Learnt and Reconciliation Commission (LLRC) published its final report on 16 December 2011. On 26 July 2012, the Government released a National Plan of Action to Implement the Recommendations of the LLRC (NPA). More than three years later, the overall implementation status of the LLRC’s recommendations has been disappointing. Meanwhile, President Maithripala Sirisena and the new Coalition Government have pledged to implement these recommendations in full. This article presents excerpts of a study published by Verité Research in January 2015. It analyses the current levels of implementation and uncovers certain opportunities that the new Government could seize to demonstrate its commitment to reconciliation. Background and chronology The LLRC presented 189 recommendations, which may be classified into eleven categories (see figure 1).                         A majority of these recommendations were incorporated into the NPA. Several revisions of the NPA have taken place since its original release, and by September 2014, it fully included nearly 65% of all recommendations (see figure 2). Status of implementation and the UNHRC Resolution In September 2014, the Government of Sri Lanka claimed to have fully implemented a significant number of LLRC recommendations. According to the latest Monitoring Report, the implementation of 55 recommendations was ‘completed’, while the implementation of further 109 recommendations was ‘ongoing’. The Government has not reported on progress relating to the remaining 25 recommendations. However, several recommendations reported as ‘completed’ in terms of their implementation have not been implemented. This discrepancy calls into question the credibility of the previous Government’s reports on progress. For example, in January 2014, the Government reported that the implementation of the recommendation contained in paragraph 9.171 of the LLRC report – on phasing out the involvement of the security forces in civilian activities and use of private lands by the security forces – was ‘completed’. However, the military has continued to engage in civilian administration activities, including the general maintenance of law and order, which is a function ordinarily allocated to the Police. The President has been in the habit of issuing monthly proclamations under Section 12 of the Public Security Ordinance (1947), calling out the armed forces for the maintenance of public order. This proclamation entrenches the military’s role in exercising police powers in all 25 districts of the country. Another example relates to recommendation in paragraph 9.115, which calls on the Government to investigate past attacks on media personnel. In January 2014, the Government claimed to have ‘completed’ implementation of this recommendation, citing the availability of an online mechanism for journalists to make complaints to the Sri Lanka Press Council. In reality, the Sri Lanka Press Council is an institution that contributes more towards restricting media freedom rather than promoting it. For instance, the Act incorporating the Council prohibits the disclosure of certain fiscal, defense, and security information and stipulates that the violation of the Act by individuals (including journalists) could result in prison terms. A statistical and analytical study of available information reveals that the overall status of implementation with respect to the 189 LLRC recommendations is in fact poor. The analysis classifies implementation status of recommendations into ‘fully implemented’, ‘partial progress’, ‘poor progress’ and ‘no progress’. The classification is based on a methodology that assesses the plans in place to implement each recommendation and certain key performance indicators. Only 19 recommendations (10.1%) have been fully implemented. Meanwhile, the implementation of 59 recommendations has seen ‘partial progress’. This figure constitutes 31.2% of the total number of actionable recommendations. Moreover, only ‘poor progress’ has been made in implementing 95 recommendations, which constitutes over half (i.e. 50.3%) of the total number of recommendations. Finally, ‘no progress’ has been made with respect to 16 recommendations. This assessment is based on the fact that none of the performance indicators pertaining to these 16 recommendations have been met to any degree, in addition to which the implementation plans pertaining to these recommendations are either non-existent or flawed. This figure constitutes 8.5% of the total number of actionable recommendations. This analysis sharply contradicts the previous Government’s reports on progress (see figure 3). In March 2012, the United Nations Human Rights Council (UNHRC) passed Resolution 19/2 on Promoting Reconciliation and Accountability in Sri Lanka. The Resolution specifically called for the implementation of the ‘constructive recommendations’ of the LLRC. Since 2012, two more resolutions were adopted at the UNHRC reiterating this call. However, the previous Government failed to make genuine progress on reconciliation and accountability. The resolution in March 2014 mandated the Office of the High Commissioner for Human Rights (OHCHR) to ‘undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission.’ The OHCHR report on the matter was to be submitted to the Council in March 2015. However, owing to the change in Government and renewed commitments to cooperate with the OHCHR, the submission of the report was deferred for six months. In this context, the present Government now has a unique opportunity to demonstrate genuine commitment to implementing the LLRC’s recommendations. Building on the LLRC’s work Following the LLRC’s recommendations on investigating gross violations of human rights and international humanitarian law, the former President appointed a Commission of Inquiry (CoI) to Investigate Complaints Regarding Missing Persons in August 2013. The Commission is mandated to investigate complaints regarding missing persons who were resident in the north and east between 10 June 1990 and 19 May 2009. This period was revised thereafter to include incidents that took place between 1 January 1983 and 19 May 2009. On 15 July 2014, the mandate of this CoI was further expanded to include an inquiry into the following matters reported in paragraph 4.359 of the LLRC report: i. Facts and circumstances that led to the loss of civilian life during the conflict that ended on 19 May 2009; whether any person, group or institution bears responsibility in this regard by violation of international humanitarian law (IHL) or international human rights law ii.Whether such loss of life constitutes collateral damage under the laws of armed conflict and IHL iii.The adherence to or neglect of the principles of distinction, military necessity and proportionality under the laws of armed conflict and IHL by the Sri Lankan armed forces iv.Whether the LTTE as a non-State actor was subject to IHL in the conduct of its military operations v.The LTTE’s use of civilians as human shields and the contribution of this act to the loss of civilian life Sri Lanka has witnessed a proliferation of CoIs mandated to inquire into serious human rights violations. The latest CoI on Missing Persons was appointed despite the fact that its mandate overlapped with the mandates of previous CoIs, including the CoI on the Involuntary Removal or Disappearance of Persons in the Northern and Eastern Provinces (appointed in 1994) and the CoI on Involuntary Removal and Disappearances of Certain Persons (All Island) (appointed in 1998). There appears to be a trend of revisiting complaints previously made before past CoIs without necessarily providing meaningful remedies for the violations reported. The hearings and witness testimonials at previous CoIs were not made public. This lack of disclosure makes a comparative analysis virtually impossible. However, breaking from past practice, the LLRC made transcripts of all its public hearings available to the public. Though some gaps in the data exist, a large body of information is currently available on the LLRC’s official website and on independent databases maintained by Verité Research conducted an initial quantitative analysis of 563 complaints made before the LLRC during its public hearings (see figure 4). This publicly accessible body of information provides an important insight into the multiple forms of rights violations experienced by affected civilians. The material placed before the LLRC through these testimonials included detailed complaints of specific rights violations, as related by victims themselves or witnesses. Many of these complaints warrant further investigation—beyond the consideration afforded to them in the LLRC’s final report. For example, the LLRC heard a complaint on torture and sexual abuse during its public hearing in Kalmunai. The victim claimed she was abducted by a group of 10 persons (including an individual by the name of Iniya Barathi) who then assaulted, sexually harassed and tortured her. The body of information derived from such testimonials before the LLRC ought to be further analysed for two reasons. First, the information may be used to build on the existing findings and recommendations of the LLRC. For instance, the final report of LLRC only provides a general discussion on principles of IHL relating to torture and presents recommendations on the need to ensure the security of women in former conflict areas. The report does not specifically deal with the Kalmunai incident nor does it explore in depth the issues of torture and sexual violence by armed groups. Hence there exists an opportunity to further examine the original complaints made before the LLRC and build on its initial findings and recommendations. Second, the information can be used to analyse patterns and trends in terms of the types of violations and perpetrators reported. For instance, the complaints relating to missing persons could be compared with data emerging from the latest CoI on Missing Persons. Conclusion: Seizing opportunities This article reveals two opportunities that the present Government of Sri Lanka ought to seize. First, the Government should work swiftly towards implementing the LLRC’s recommendations during the next six months in order to demonstrate its commitment to reconciliation and accountability. Some of the LLRC’s recommendations may in fact be easily implemented in the short term. Where recommendations are not easily implementable, good faith measures may still serve to demonstrate the Government’s commitment. The following list of recommendations and good faith measures (classified by thematic area) may be considered: 1.Disappearances and killings: Publishing the Udalagama Commission Report which provides findings and recommendations on high profile human rights violations including the killing of five students in Trincomalee in 2006 and the killing of 17 aid workers in Muttur also in 2006. 2.Demilitarisation: Discontinuing the practice of calling out the armed forces to exercise police powers under the Public Security Ordinance. 3.Land: Releasing portions of land acquired by the military in Valikamam North, Jaffna. 4.Detention: Publishing a comprehensive list of detainees and making the list accessible to their families. 5.Devolution of power: Publishing the All Party Representative Committee’s final report on constitutional reform and devolution of power. 6.Freedom of Expression: Enacting a law that guarantees the right to information. 7.Rule of Law: Investigating violations of human rights perpetrated by armed paramilitary groups during and immediately after the war. Second, as discussed in this article, the transcripts of the LLRC’s public hearings offer a valuable body of information pertaining to the nature of rights violations originally reported to the LLRC. Our analysis reveals the potential for serious gaps between this body of information and the LLRC’s final recommendations (e.g. incidents relating to sexual violence and torture). Therefore, the new Government has an opportunity to build on the work of the LLRC by reappraising existing information on rights violations, and establishing a credible domestic accountability mechanism. How these opportunities are seized and acted upon may determine the future trajectory of reconciliation in the country. The one critical lesson we have learnt in the three years since the LLRC published its final report is that reconciliation in Sri Lanka can no longer afford broken promises and false commitments.