By Tisaranee Gunasekara
"….too many people desire to suppress criticism simply because they think that it will give some comfort to the enemy to know that there is such criticism. If that comfort makes the enemy feel better for a few moments, they are welcome to it as far as I am concerned because the maintenance of the right of criticism in the long run will do the country maintaining it a great deal more good than it will do the enemy, and will prevent mistakes which might otherwise occur.” US Senator Robert A Taft (The Papers of Robert A Taft: 1939-1944)
On a dark January night in 2006, five students were killed in the town of Trincomalee. The authorities initially claimed that the victims were Tiger cadres who died when the explosives they were carrying went off prematurely.
The Sinhala Judicial Medical Officer who examined the bodies contested this claim, pointing out that the victims had been shot to death. Subsequent inquiries proved that the victims were indeed shot dead. Though judicial proceedings commenced, they went nowhere because the police, predictably, failed to uncover any evidence.
The father of one of the victims, Kasipillai Manoharan, a 70 year old medical doctor, witnessed the murder of his son. His refusal to give into intimidation and abandon the quest to bring his son’s killers to justice eventually compelled him to flee his motherland. Five years later Dr. Manoharan is still fighting for justice: “My son was killed by security forces. I lost my son. It was a really cruel murder. I know I can't get back to my son but I am now fighting for justice for Tamils and for Sinhalese, for all communities” (Channel 4 – 15.4.2011).
The case of young Manoharan and his friends, like that of the 17 murdered workers, became a cause celebre nationally and internationally. There were many other cases besides, in the North, the East and the South: a Vice Chancellor who disappeared from a Colombo high security zone, an editor who was gunned down in broad daylight close to another high security zone, a parliamentarian who was shot dead in a church full of worshippers on Christmas eve, another parliamentarian who was murdered near his home in Colombo, other men and women, famous and unknown, who died or disappeared.
If at least one of these cases was resolved satisfactorily, the argument for an internal process of justice would have sounded credible. But from the murder of five students in Trincomalee to the killing of Lasantha Wickramatunga, from the aid workers massacre to the gunning down of parliamentarians Joseph Pararajasingham and R Raviraj, justice was not done, despite innumerable and repeated promises from the President downwards,
As the Fourth Eelam War progressed towards its bloody conclusion, impunity became as much of a hallmark of the Rajapaksa regime as it was of the Tigers. It was as if the Rajapaksas had taken a leaf from the Tiger’s book. The LTTE had turned the practice total and unequivocal denial into an art form. Now the Rajapaksas took it one step further by creating the myth of a humanitarian operation which did not kill or harm a single civilian. This absurdly dangerous first premise created its own deadly logic: if no civilian can be killed, then all the dead and the injured must be Tigers, per se. The zero-civilian casualty myth created a humanitarian façade, behind which the regime could act with impunity.
The Darusman Report stems from the reality of the war, from the wanton brutality with which both sides treated the unarmed civilians. The Report does not question the Lankan state’s right to defend itself militarily in the face of an armed separatist challenge. Its critique is limited to the errors and excesses committed by both sides during the war. The Report does not criticise the Lankan administration for waging war against the LTTE but for acting in contravention of its own national laws and international obligations in the conduct of that war. The Darusman Report is the Final Eelam War as seen by an uninvolved, impartial entity, with no axe to grind and no favourites to shield.
Minister Maithripala Sirisena has described the Darusman Report as an attack on Sri Lanka by ‘LTTE friendly foreign elements’. Minister Keheliya Rambukwella has said that the Report ‘has ingredients of the LTTE rump and the Tamil Diaspora’ and is ‘extremely biased, flawed, one-sided and is unacceptable’. Minister after minister has rejected ‘all allegations’ contained in the Report, many of them probably unaware that the report contains five allegations against the Lankan state and six allegations against the LTTE! Therefore when the regime rejects ‘all allegations’, it absolves not just itself but also the LTTE of blame; by rejecting the Report in toto, instead of analysing it logically and responding to it rationally, the regime is inadvertently turning itself into an apologist for the LTTE!
According to the leaked excerpts, the Report spares neither the Rajapaksa regime nor the LTTE, levelling a series of scathing criticism against both sides. Its criticism of the LTTE’s modus operandi is comprehensive and unambiguous: “Despite grave danger in the conflict zone, the LTTE refused civilians permission to leave, using them as hostages, at times even using their presence as a strategic human buffer… It implemented a policy of forced recruitment throughout the war, but in the final stages greatly intensified its recruitment of people of all ages, including children as young as fourteen.
The LTTE forced civilians to dig trenches for its own defenses, thereby contributing to blurring the distinction between combatants and civilians…. From February 2009 onwards, the LTTE started point-blank shooting of civilians who attempted to escape the conflict zone, significantly adding to the death toll in the final stages of the war. It also fired artillery in proximity to large groups of internally displaced persons (IDPs) and fired from, or stored military equipment near IDPs or civilian installations such as hospitals. Throughout the final stages of the war, the LTTE continued its policy of suicide attacks outside the conflict zone”.
Thus the Darusman Report is not a pro-Tiger document. If it is biased, the bias is in the favour not of the LTTE but of the hundreds of thousands of civilian Tamils (Sri Lankan citizens) caught between the two warring forces, one determined to win at any cost and the other equally intent on postponing total defeat, even by an hour, at any cost.
The Darusman Reports contains five allegations against the regime: “(i) killing of civilians through widespread shelling; (ii) shelling of hospitals and humanitarian objects; (iii) denial of humanitarian assistance; (iv) human rights violations suffered by victims and survivors of the conflict, including both IDPs and suspected LTTE cadre; and (v) human rights violations outside the conflict zone, including against the media and other critics of the Government.”
These charges are too serious to be dismissed out of hand, especially since the alleged victims are our own people. Even if time and pragmatic political considerations render accountability impossible, it is necessary to examine each of these charges sincerely, and, at the least, apologise to the victims (or their families) for the wrong done to them. A lasting peace based on genuine reconciliation may be possible without accountability; but it is impossible if the regime clings to its policy of denial. Infallibility is a myth, and the Rajapaksas cannot claim it for themselves with any credibility.
At least one allegation against the government need not be investigated because it was factually proven long before the UN Secretary General even thought of appointing an Advisory Panel. According to the Darusman Report, “All IDPs were detained in closed camps. Massive overcrowding led to terrible conditions, breaching the basic social and economic rights of the detainees, and many lives were lost unnecessarily”.
The government and its supporters called these camps welfare villages, but if a prison is a place where a person is kept in captivity, these camps were prisons, because their inmates could not leave them and outsiders (including closest relations) could not go in, without official permission. More than 300,000 people, almost the entire population of the Killinochchi and Mullaitivu districts were thus subjected to unlawful de facto detention, behind barbed wire fences and guarded by armed soldiers. According to UN estimates about 43% of camp inmates are children, many of them deprived of their natural caregivers cum protectors by the war.
Even apologists for the regime did not deny that the camp inmates were deprived of the freedom of movement, the right that defines a free man. They merely justified it by arguing that these restrictions are necessary to catch Tiger cadres masquerading as civilians. Had Vellupillai Pirapaharan survived to fight another day, such harsh security measures may have had some justification. But given the demise of Mr. Pirapaharan and other top Tiger leaders, this treatment of civilian Tamils violated Lankan and international laws as well as all civilised norms.
The confirmation about the lack of basic facilities in these camps came from many non/anti-LTTE sources. For instance, V. Anandasangaree, the leader of the TULF and an outspoken critic of the LTTE, said the conditions are ‘good’ in some camps and ‘horrible’ in many others: “Health, water and sanitation situation is horrible. Many people have skin diseases as they don’t get a chance to have a shower for days because of water shortage… Pregnant mothers and newborn babies go through a harrowing time in the camps due to scorching heat” (Tamilweek – 3.6.2009).
The then Chief Justice Sarath N Silva, subsequent to a visit to some of the camps, made forthright criticisms about the abysmal conditions in the ‘welfare camp’ he visited (ten people to a tent in which standing up is impossible except at the middle, yards long queue to the single ‘toilet’) and stated that the “inmates of these camps do not have any recourse in law as they exist outside the law” (Sirasa News First– 3.6.2009)
Handled correctly, the Darusman Report can become an opportunity for Sri Lanka to make a fresh start, nationally and internationally. This is particularly so because many of the short term recommendations contained in the Report are sensible and necessary. For instance, the Report urges the Lankan state to “End all violence by the State, its organs and all paramilitary….; Facilitate the recovery and return of human remains to their families and allow for the performance of cultural rites for the dead; Provide death certificates…; Provide or facilities psycho-social support for all survivors….; Release all displaced persons and facilitate their return to their former homes or provide for resettlement, according to their wishes; Continue to provide interim relief to assist the return of all survivors to normal life;…. Investigate and disclose the fate and location of persons reported to have been forcibly disappeared;
…..Undertake an immediate repeal of the Emergency Regulations, modify all those provisions of the Prevention of Terrorism Act that are inconsistent with Sri Lanka’s international obligations…. End state violence and other practices that limit freedoms of movement, assembly and expression, or otherwise contribute to a climate of fear.
The Tamil people paid the heftiest price for the LTTE’s crimes, a fate they could have avoided had they resisted the Tiger before it became omnipotent. Similarly, the Sinhala South may have to pay an astronomical wage, if it permits the Rajapaksas to abuse patriotism and national sovereignty to entrench Familial Rule.
Implementing some of the recommendations made in the Darusman Report is important in this regard, because they can help impede Rajapaksa efforts to subvert democracy from within and turn the Lankan state into a Familial autocracy.