by M.C.M. Iqbal
Louise Arbour of the International Crisis Group is reported to have said during an interview in the BBC that the government violated the laws of war by blurring the line between combatants and civilians, and that its killings of civilians were not accidents.
Perhaps in response to this, speaking to the BBC Tamil Service recently, the Sri Lanka’s Ambassador to the United Nations, Dr. Palitha Kohona is reported to have said that the commission on Lessons Learnt and Reconciliation set up recently by the government is sufficient to investigate the allegations of humanitarian standards and human rights violations during the war.
Let us therefore have a look at some of the commissions of inquiry appointed by the governments in the past to check how effective they have been to understand the veracity of the statement made by Dr. Kohana with regard to the current commission. It is common knowledge that several commissions of inquiry had been appointed from time to time to inquire into disappearances of persons and other serious human rights violations in Sri Lanka. I do not intend to go into matters relating to all these commissions now.
Instead, as a sample, I propose to deal with the two Commissions of Inquiries into Disappearances to which I was the Secretary and the Commission of Inquiry into Certain Serious Human Rights Violations in the recent past where I was an adviser to the International Independent Group of Eminent Persons (IIGEP). The IIGEP had been invited by President Rajapakse, to dispel the fear expressed widely at that time, on the efficacy of such commissions. He wanted give credibility to that commission by asking the IIGEP to ensure that the investigations and inquiries conducted by that Commission are in keeping with internationally accepted norms and standards.
Commissions of Inquiry in Sri Lanka, are appointed in terms of the provisions of the Commissions of Inquiry Act. This Act provides for the President to appoint such Commissions whenever he thinks there is a need to find out more information on any matter of national interest and direct such Commission to inquire or investigate and report to him on matters set out in the Mandate given to such commissions. In other words, their inquiries should be strictly confined to the terms of reference. It is mandatory for the Commission to submit the report to the President and not to make its contents public.
In 1994 three such commissions known as Zonal Commissions on Disappearances of Persons, were appointed to inquire into and report on disappearances of persons after 1st January, 1988 , while another was appointed in 1998, known as the All Island Commission on Disappearances, to inquire only into the complaints received by the Zonal Commissions and remain un-inquired. These Commissions handed over their Reports in September 1997 and May, 2000, respectively.
These Commissions, inter alia, reported that they came across evidence that several torture chambers managed by the police and the military existed in different parts of Sri Lanka during the relevant period. Many persons who had been taken to be caused to be disappeared had been tortured in these chambers to elicit information from them. A few of them had escaped. They appeared before the Commission and gave evidence on the gruesome manner in which they and others who are no more, had been tortured. They even gave the names of the persons who had been managing these torture chambers.
It was the same in the case of more than ten mass graves in the in various parts of the country. Information about them had been made available to these Commissions by persons who knew about them. These graves have still not been disturbed. All that the Commissions could do in respect of these torture chambers and the mass graves was to list the locations of the torture chambers and the mass graves in their Reports and make a recommendation that the President should take further action to investigate into them.
They could not investigate into these because their mandates did not authorize them to do so. Up-to-date no action whatsoever had been taken on this recommendation about the torture chambers and mass graves. Instead, some of those who were alleged to have been responsible for these, are still in service having received promotions in their respective services. Others have retired without having to face any consequence on their dastardly criminal actions.
The same is true with regard to the recommendations made to take disciplinary action against several police and military personnel whose misconduct during the performance of their duties came to light during the investigations. There was evidence of their violation of departmental rules and regulations in dealing with complaints of disappearances, detention of persons taken into custody, destruction of Police information books relating to the relevant period, in spite of a directive by the Inspector General of Police to preserve these books and make them available for investigation by the Commissions.
As stated earlier, these Commissions were mandated to inquire only into complaints of disappearances that occurred after 1st January, 1988. This resulted in a large number of disappearances of persons that occurred prior to that being excluded from being inquired into.
Similarly, the Commission that was appointed in 1998 had a specific limitation debarring it from inquiring into any new complaints but was authorized to deal only with those complaints which had been received by the Commissions appointed in 1994 and remain un- inquired. Consequently this Commission could not inquire into about 12,000 new complaints received by this Commission. This number included complaints of about 600 persons from the North who had disappeared following the military operation in 1996 called ‘Riviresa’ after which the government took control of the Jaffna Peninsula from the LTTE, and about 7000 complaints of persons who had gone missing in the Batticaloa District during the relevant period.
To cap it all, the manner in which action was taken against those police and security forces personnel and others against whom the Commission reported that there is credible material indicative of their responsibility for the disappearances, is a sad reflection on the sincerity of the successive governments in dealing with perpetrators of such incidents. This only helped to perpetuate the culture of impunity which had, by this time, pervaded into the police and security forces personnel. Consequently the families of the victims of disappearances are yet to receive justice being meted out to them though nearly 20 years have lapsed since most of these incidents had occurred while many of them who had given evidence on the alleged perpetrators live in frustration seeing them still in service after having caused the disappearance of their loved ones.
A Report of the International Commission of Jurists reveals that "The lack of state accountability for human rights violations in Sri Lanka crosses ethnic divides, all governments and political parties. Neither the regular criminal justice system nor commissions of inquiry have been able to satisfy the state’s obligation to its citizens."
It appears that the only useful purpose served by these Commissions was to help successive governments to know who and who in the police and security services are experienced and competent in effectively carrying out disappearances of persons, so that those in these governments who required their services could use them when the need arose. It is perhaps such persons are the ones behind the disappearances that continue even today, and are often conveniently blamed to be acts of unknown persons.
Another matter that needs to be remembered is that the Commissions of Inquiry Act does not place any obligation on the part of the President to make public the findings of any Commission of Inquiry. There are reports of several commissions appointed in the past that have never been published. Others have been published only in parts. It is the sole discretion of the President to publish the whole or any part of the Report if he so desires or not publish them at all.
It may not be known to many that a special report was called by the then President Chandrika Bandaranayake into the killing of a prominent politician in a hilly district, allegedly by another who had contested him. The Commission concerned did an exhaustive investigation and reported that there was enough evidence against the alleged person who was at that time a prominent Member of Parliament. Yet no action was taken against him. The wife of the person who was killed was later made a minister and the matter ended there. No action whatsoever was taken on this Report which was never published !
Similarly, When a prominent Muslim leader was killed following a helicopter crash, to stem the allegation that he had in fact been murdered the then government appointed a commission to inquire into the circumstances of his death. That Commission conducted extensive investigations and submitted its report. That report was never published but the wife of the deceased was later made a Minister and a large amount of money had been paid to her and her siblings as compensation. The matter ended there.
Journalistic ethics prevents me from mentioning the names of the persons concerned but these facts cannot be denied by those concerned.
Commissions of Inquiry were initially appointed to appease pressure from human rights organizations or the people, to end systematic violations of their rights. But successive governments have followed a pattern of subverting them. In fact, the non-implementation of the many recommendations of these Commissions on the need to deal with the perpetrators swiftly and effectively, promoted the culture of impunity prevailing among the police and the security forces personnel to become galvanized. What is more, the Commissions spared no efforts in making well considered recommendations on the steps to be taken to prevent the incidence of disappearances of persons in the future. These recommendations are gathering dust in the archives of the President.
Let me now deal with the Commission appointed in year 2007 to inquire into serious human rights violations such as the killing of five university students in Trincomalee, the killing of seventeen employees of and NGO in Muttur, bombing of a children’s home in Sencholai in the Mullaitivu District, etc. The series of such high profile incidents that took place during that period resulted in a public outcry for the government to end such incidents. President Rajapakse decided to appoint a commission to inquire into such incidents to contain the surging pressure on him from various quarters.
Given the past experience on what happened to the disappearances commissions and many others, both the local and international human rights organizations expressed their reservations on the outcome and efficacy of the Commission proposed by the government. Consequently, the President himself came out with a suggestion that he was prepared to invite a few International Independent Group of Eminent Persons (IIGEP) who could be tasked to ensure that the proposed Commission conducts its investigations and inquiries in keeping with international norms and standards and does not end up the way the other commissions in the past had ended.
The Commission of 2007 was created with seven members. A few days after the commencement of the proceedings of this Commission the IIGEP found that the services of a representative of the Attorney General (AG) was being availed of by this Commission to lead the evidence in respect of the cases the Commission was mandated to deal with. Former Chief Justice of India – the late Justice Bhagawathy who headed the IIGEP had to point out to Justice Udalagama who was the President of the Commission, and later to the President himself of the impropriety of the AG leading the evidence of witnesses during the proceedings of the Commission which was inquiring into the propriety of the investigations already carried out by the police. Both the President and the head of the Commission persisted on insisting that the AG should be there and that he is an independent official. Haggling over this issue went on for some time.
IIGEP was told that they being foreigners, did not understand the nuances of the laws in Sri Lanka and the independence of the AG. Subsequently IIGEP had to obtain the opinion of two eminent retired judges of renown, on the question of the independence of the AG and the justification for the involvement of the AG in the proceedings of the Commission. They gave a well-considered written opinion to the IIGEP, confirming that the Attorney-General is not an independent official and that the role played by the AG in the proceedings of the Commission was a conflict of interest as the AG’s representative had advised the original investigations in the cases which had been mandated for inquiry by the Commission. Even though this was pointed out, the AG’s representative continued his role in the Commission and eroded the Commission’s real and perceived independence. Incidentally, this particular AG who has now retired has been appointed as the Chairman of the Lessons Learnt and Reconciliation Commission.
In view of the high profile nature of the cases the Commission was inquiring into, witnesses to the incidents were hesitant to come before the Commission and give evidence for fear of reprisals. Though the IIGEP insisted on the need for a law to protect witnesses coming before the Commission, the government failed to take meaningful and effective steps to provide protection for the witnesses.
Eventually the IIGEP had to abort its mission stating that they (I quote), found there a lack of political and institutional will on the part of the Government to pursue with vigour the cases under review by the Commission, with the intention of identifying the perpetrators or at least uncovering the systemic failures and obstructions to justice that rendered the original investigations in to these cases ineffective.
Ultimately the term of the Commission which was mandated to inquire into 15 high profiles cases was not extended even though inquires in the cases concerned had not been completed. That Commission then ceased to exist, confirming the suspicion that the government was not even at the outset, keen on investigating into the serious human rights violations concerned. A report this Commission is said to have handed over to the President, has never been made public.
From the disclosures I have made so far about what happened to the Commissions referred to, it would be clear that in Sri Lanka, successive governments had been appointing Commissions not with the honest intention of finding out what actually happened and to mete out justice to the victims, but with the intention of deceiving the people concerned and the international community. Commissions have always helped governments to divert pressure on the government regarding the relevant issues.
The commissions appointed so far, have failed to address the serious questions that have been affecting Sri Lanka in the conflicts in the recent past. These commissions have been condemned by international organizations as well as by local human rights groups who have published extensive reports and analysis on the workings of these commissions. Amnesty International has called the work of these Commissions as “Twenty Years of Make Believe” in a report analyzing the work of these commissions. The International Commission of Jurists has published a work on this subject entitled “Families of the Disappeared, Still Waiting for Justice”. The reports of these organizations only confirm the fact of the ineffectiveness of these Commissions.
There isn’t a single commission appointed by the government so far whose report or findings had been taken seriously and steps taken to implement their recommendations. In fact, all such commissions have only been exercises of denial of state responsibility, in instances when they had been mandated to look into violations of human rights.
The recently appointed ‘Lessons Learnt and Reconciliation Commission’ in connection with the incidents relating to the conflict, is bound to be another attempt at deception by the government which has now become well known for adopting such dubious tactics. As stated earlier this Commission is headed by the former Attorney General who crossed swords with IIGEP when he was in service and was well known for his pro-government views. His personal links to the President since their youthful days are also known.
Another key member of this Commission is the former representative of Sri Lanka at the UN where he had been vehemently defending the government’s blood bath in the beaches of Mullaitivu during the war. It is widely alleged that the President’s brother, the Defence Secretary who claims to have managed the war, had committed violations of the rules of war and is responsible for the death of large number of civilians. In the circumstances how can one expect this commission to conduct its proceedings without any bias ?
It is obvious from the very beginning that this Commission is going to be another in the series of deceptive commissions appointed so far, and would suffer the same fate as most of the other Commissions. To cap it all, the President was heard to say at an interview Al Jezeera has had with him recently, that he was not going to punish any of his soldiers who fought the war valiantly to defeat the LTTE ! This statement is a pointer to the Commission not to find any military personnel guilty of any violation of the rules of war or even the human rights of the victims of war. Isn’t that statement of the President enough to expose the dubious intention of the President in appointing this Commission ?