By Kalana Senaratne
One year after the war, President Mahinda Rajapaksa has established another commission; known as the ‘Lessons Learnt and Reconciliation Commission’.
Eight eminent members have been appointed. The Commission is chaired by a former Attorney General. The Commission is to ‘inquire and report’ the following: the facts and circumstances which led to the failure of the Ceasefire Agreement (CFA); whether any persons/groups/institutions bear direct/indirect responsibility; ‘the lessons we would learn’ in order to ensure there would be no recurrence of such events; a methodology through which restitution to persons affected could be effected; the administrative/institutional measures which need to be taken to avoid recurrence/promote national unity and reconciliation.
When, and how, did this idea of ‘lessons learnt’ come into being? Is this Commission, as popularly claimed by the Government, an entirely ‘home-grown’ mechanism, a ‘home-grown’ solution?
A careful examination would show that the Government had the intention of establishing some mechanism which took into account this aspect of ‘lessons learnt’. Reference to the specific words (lessons learnt) is made in the speech delivered by former Prime Minister Ratnasiri Wickramanayaka, at the General Assembly, on 26 September 2009. The Prime Minister stated as follows: ‘Sri Lanka is committed to complying with its international obligations in the field of human rights and humanitarian standards. Sri Lanka will undertake further domestic measures aimed at reconciliation and in the light of lessons learnt.’
But, the Commission is not entirely ‘home-grown’. It is very much like the ‘Iraq Inquiry’ conducted in the UK, under a Committee chaired by Sir John Chilcott: an inquiry which was officially launched on 30 July, 2009 (i.e. before PM Wickramanayaka’s speech at the UNGA). As Sir Chilcott has noted: ‘Our terms of reference are very broad, but the essential points, as set out by the Prime Minister and agreed by the House of Commons, are that this is an Inquiry by a committee of Privy Counsellors. It will consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath. We will therefore be considering the UK's involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned. Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country."
It is not difficult to ascertain the similarities. One is therefore being quite disingenuous in calling the recently established Commission a ‘home-grown’ mechanism. Perhaps, it is in this context one needs to consider the note of optimism struck by US Secretary of State Hillary Clinton, when she stated the Commission appointed by President Rajapaksa ‘holds promise’.
Mandate and the CFA
However, given the mandate of the Commission, a serious question arises: is this yet another futile exercise?
Much of what the Commission would inquire and report (on the CFA, why it failed, who is responsible etc.), as per its mandate, has already been well documented elsewhere. Also, it is precisely because the 2008 Rajapaksa-government considered the CFA to be a terrible failure, that it took the decision, in January 2008, to abrogate the CFA. It is quite obvious that the Government would not have taken the decision to abrogate the CFA if it did not consider the CFA to be a failure, and knew why it failed, who was responsible, what had to be done, etc. If then, is the present Commission one which could have been established prior to the abrogation of the CFA, or soon after? Is this the kind of Commission which should have been appointed 12 months after the war, or almost 29-30 months after the abrogation of the CFA? In short, it is rather difficult to fathom the idea that the political leadership, which defeated the terrorists, wants to now know what exactly one could learn from the CFA and its failure. To put it differently; how many millions of rupees would need to be allocated, and wasted, to learn lessons already known to many?
Also, the focus of the mandate concerns the period 2002-2009. If there are lessons which one can learn from this period, what of lessons which one can learn from the pre-2002 period, for instance? Does it mean that those lessons have been learned, or that there are no lessons to be learned? If there are, did the learning take place, has the learning taken place, and where? If the true intention was to examine the lessons which can be learned, would it not have been better to have established a commission with a mandate which covers a period of around three decades?
Yet, the underlying concern here is: whether it is 2002-2009, or 1977-2009, or even 1948-2009, the problems and solutions, the lessons and how well they were learned, what needs to be done to ensure peace – all of these issues have been analyzed and examined already, by numerous persons. Volumes and volumes have been written on the conflict in general; much, also, has been written on the specific period coming within the Commission’s mandate in particular (For example, one excellent recent study is Prof. GH Peiris’ Twilight of the Tigers, published last year, which focuses on the ‘political vicissitudes of Sri Lanka since the initiation of a ceasefire in December 2001’).
There doesn’t seem to be, unfortunately, any significant contribution the present Commission could make in this regard. Hence, the inevitable question; is the political leadership showing a lack of sincerity here? Unfortunately, it may not be difficult for one to figure out the answer.
Naming and shaming
In addition to the above, would this exercise be another one of ‘naming and shaming’? For instance, the Commission is to consider the issue of responsibility; i.e. those directly/indirectly responsible for the breakdown of the CFA. But surely, many of the actors responsible for this – the LTTE, the Norwegian Government (and perhaps those who once believed the Norwegians could deliver, including former President Chandrika Kumaratunga), the administration of Ranil Wickremasinghe – have been blamed already. If then, what more does one need to know, or learn? Who else needs to be held responsible? Would the Commission, for instance, have to unwittingly name, and thereby embarrass, some of the main actors of the Wickremasinghe-administration who were involved in the peace talks with the LTTE, such as the current Minister for External Affairs? Whether the political leadership gave thought to these issues, one does not know.
Investigations: the underlying issue
Unfortunately, this entire exercise does not fully address the most distressing and enduring concern, in any meaningful way: i.e. the ineffectiveness and inability of domestic mechanisms to investigate alleged crimes and human rights violations; and to carry out investigations sans any political interference (Note, in this regard, the valuable contribution made by MCM Iqbal - one of the former Secretaries of the first Western Provincial Council - titled ‘The Latest Commission of Inquiry in Sri Lanka: Another Exercise in Deception’)
This is a matter which is at the root of all the calls made in favour of an international investigation; i.e. the inability and/or unwillingness of domestic institutions in Sri Lanka to investigate any serious crimes, fully and impartially. This has been a point raised over and over again by many commentators. It was in this regard that the present author pointed out (in ‘Inching towards that war-crimes investigation’, The Sunday Island) the importance of taking serious note of the principle of ‘complementarity’ recognized in international law.
What can the ‘Lessons Learnt’ Commission do as regards inquiries and investigations of selected cases of human rights violations, for instance? The most it can do is to merely suggest that such inquiries would be necessary. The mandate is certainly not broad enough to cover the aspect of ‘investigations’ or ‘inquires’. Also, what the Commission-report would highlight, quite obviously, is the need for independent, impartial, and effective inquiry mechanisms and institutions in the future. But it’s a matter well known to all.
However, if the Commission does state so (as it would have to), it would be rather ironic for the reason that the chairman of this Commission is also a member of another panel established by President Rajapaksa (very recently), which was supposed to look into the US State Department’s report on allegations of ‘war-crimes’. One does not know what happened to that panel and its deliberations.
And in this regard, it is well to remember that the Government is yet to fully address the serious allegations raised by the US. One may argue that the Government need not respond to all the international human rights bodies which issue reports to this end. However, when another State, another member of the UN, levels serious allegations of war-crimes, then, a State which is convinced that it did not commit such crimes cannot ever remain silent.
It is interesting to note that while Israel continues to commit horrendous war-crimes and crimes against humanity, it issued a detailed report, via the Ministry of Foreign Affairs of Israel, titled ‘Gaza Operation Investigation: An Update’ in January 2010; which refers to, inter alia, the elaborate investigative mechanisms in place within Israel, the fact of the Israeli Defence Forces having launched investigations of 150 separate incidents arising from the Gaza operation, and 36 of them have been referred for criminal investigation, etc.
But, have the Sri Lankan authorities, one year after the war, prepared a detailed response to the accusations leveled against them by the US? Has Sri Lanka done what even Israel could do after the Gaza blitzkrieg? It is necessary to note here that the absence of a detailed and thorough Sri Lankan response, to the allegations leveled against it by other States, causes grave concern.
Sri Lanka squandered (rather willfully) a good opportunity it got to investigate selected cases of serious human rights violations, when it formed the Udalagama-Commission of Inquiry. That Commission wasn’t flawless by any means; yet, what was most lacking was the political will and commitment to ensure that the investigations were carried out fully, to the end. Finally, the whole exercise proved to be an absolute waste of time and resources.
It is ‘inefficiency’ that seems to be the home-grown characteristic of Sri Lanka’s commissions of inquiry. Unfortunately, the mandate of the new ‘Lessons Learnt’ Commission does not show, in any way, that the Commission could do much to address this problem. So, will there be any new lessons to be learned from the new ‘Lessons Learnt and Reconciliation Commission’?