By Neville Ladduwahetty Courtesy The Island

December 11, 2017, 9:05 pm
In the wake of the most recent challenge by Lord Naseby in the House of Lords to the oft touted claim of 40,000 civilian deaths, the former Secretary to the Consultative Task Force for Reconciliation Mechanisms, Dr. Paikiasothy Saravanamuttu has called for setting up a Truth, Justice, Reconciliation and Non-Recurrence Commission (TJRNRC) to address accountability issues and included Section 5 of the of the Consultative Task Force (CTF) report, in his response (The Island, December 4, 2017). Relevant paragraphs of Section 5are as follows:

5.3: “The CTF is of the opinion that at a minimum, the purpose TJRNRC must be to establish the truth of what happened in the conflict in Sri Lanka…”.

5.4: “Truth in this context entails responsibility but establishing criminal responsibility, i.e. the determination of who is a perpetrator, is best suited to a judicial mechanism or the existing judicial system…”.

5.5: “The CTF recommends that the Truth Commission conduct investigations in order to find the truth and share information relating to criminal conduct with a prosecutorial body”.

5.11: “Given the importance of ascertaining the truth it is imperative that the Truth Commission has a strong investigating unit made up of researches with relevant skills including in the law, history, anthropology, forensics, criminology, sociology, psychology and sociology…”.

ESTABLISHING PARAMETERS

Before considering the need for a full scale investigation, a few essential and relevant parameters need to be established to guide a Truth Commission.

They are as follows:

1. The time frame of any truth seeking exercise should be that referred to in the Resolution 30/1, which is the time period covered by the LLRC – February 22, 2002 to May 19, 2009 (Para. 7).

2. The Panel of Experts, i.e., the Darusman Panel, appointed by the UN Secretary General states: “There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct of both the Government and the LTTE”.

3. Paragraphs 175, 182 and 183 of the OISL report prepared for the Human Rights Council by the Office of the UN High Commissioner states:

Para. 175: “OISL notes that Sri Lanka has submitted a Declaration of State of emergency, dated 30 May 2000, derogating from articles 9 (2), 12 (1), 12 (2), 14 (3), 17(1), 19 (2), 21 and 22 of the ICCPR. Measures taken pursuant to derogation are lawful to the extent they comply with the conditions set out in international human rights law”.

Para. 182: “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect the guarantees pertaining to the treatment of civilians and persons hors de combat contained therein. Common Article 3 binds all parties to the conflict to respect, as a minimum, that persons taking no direct part in hostilities as well as those placed hors de combat shall be treated humanely, without any adverse distinction”.

Para. 183: “In addition, the Government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable in non-international armed conflict”.

4. The Darusman Panel further states that their mandate did “not extend to fact-finding or investigation”. It “determined an allegation to be credible if there was a reasonable basis to believe that the underlying act or event occurred. Allegations are considered as credible in this respect only when based on primary sources that the Panel deemed relevant and trustworthy”. Since this evidence is archived until 2031, access to such evidence is not available.

5. The OISL report states that it is a “desk review of existing material”. This included access to the documentation gathered by the Darusman Panel that is presently archived until 2031.

SUMMARIZING the above.

(a) Time frame for the Truth Commission is February 22, 2002 to May 9, 2009.

(b) Applicable law is international humanitarian law.

(c) Alleged violations should therefore be judged ONLY in terms of violations of international humanitarian law and NOT in terms of human rights and humanitarian law as applicable in resolution 30/1, in view of paragraph 175 of the OISL report.

(d) All allegations of violations were based on evidence considered “credible” by the Darusman Panel. Interpreting as to what is “credible evidence” is highly subjective, judging from the subsequent conduct of members of the Panel.

(e) The OISL report is based on a “desk review” of existing material including Government publications, international and Sri Lankan NGO/civil society reports, the reports of LLRC and other commissions etc., and above all, material considered credible by the Darusman Panel together with documentation they had accessed in the material archived until 2031.

DETERMINING the TRUTH

There is considerable variation in the estimates of the number of civilian deaths. Paragraph 137 of the Darusman Panel report states: “In the limited surveys that have carried out in the aftermath of the conflict, the percentage of people reporting dead civilians is high. A number of credible sources have estimated that there could have been as many as 40,000 civilian deaths…”. Therefore by the Darusman Panel’s own admission, the estimate of 40,000 civilian deaths is not based on “a reasonable basis that that the underlying act or event occurred”, but is based on sources they considered to be credible.

Estimates of other sources such as the UN Country team, UN spokesman Gordon Weiss, US Department of State, International Crisis group are only a fraction of the 40,000 estimated from credible sources in the Darusman Panel report. The most recent estimate is 7,000 to 8,000 from Lord Naseby, based on highly redacted dispatches of the British Attache, Lieutenant Colonel Anton Gash.

In view of the range of these estimates, there is a need for an independent national judicial mechanism as stated in the President’s 100 Day Programme, to review the background material relating to these numbers. Such a Commission should address accountability on the basis of a desk review of all existing material in reports of the LLRC, the Darusman Panel, the OISL and the Paranagama Commission, together with all inter-governmental material available in the public domain, the most recent being that presented by Lord Naseby to the House of Lords. This should include all the “credible evidence” currently archived with the UN High Commission. Denial of access to this evidence should be grounds to reject all conclusions reached based on these materials.

Such an approach is justified since the mandate to the Darusman Panel “does not extend to fact-finding or investigations” (Framework of the Panel’s work). In the absence of even prima facie evidence as to the credibility of the evidence, to engage in a strong investigative unit as recommended by the CTF (5.11) would amount to the accused having to defend charges that are not based on fact or investigation, but only on what a prejudiced Panel whose credibility itself is questionable, considers “credible”. This is further justified because the LTTE members who were perpetrators of these crimes, as well as those who gave the orders to commit international humanitarian violations cannot be identified or located. A full scale investigation is also not warranted since such investigations could overlap with investigations relating to Missing Persons.

The constitutional provision in Article 13 (5) that “Every person shall be presumed innocent until he is proved guilty”, is violated if a full investigation is initiated on charges that are not based on prima facie evidence. The additional constitutional provision in Article 13 (5) of “Provided that the burden of proving particular facts may, by law, be placed on an accused person” does not apply, since no laws exist in Sri Lanka relating to international humanitarian law which incidentally should be the basis for determining the truth.

REMIT to NATIONAL JUDICIAL MECHANISM

The remit to the national judicial mechanism should be that it addresses accountability as two distinct and separate undertakings.

One undertaking should address the overall conduct of the armed conflict by the security forces and by the LTTE in terms of international humanitarian law. The task for the national judicial mechanism would then be to conduct a desk review of existing evidence to ascertain whether there were any violations of international humanitarian law by the security forces or by the LTTE. The context of such an assessment should be that each party to the conflict isThe second undertaking should address whether prima facie evidence exists relating to individual acts that amount to violations of international humanitarian law, and if so, such materials should be handed over to existing judicial mechanisms in Sri Lanka for necessary action, under provisions of local law. Since this may require assessing the credibility of some of the evidence during the course of a desk review, it would be necessary for arrangements to be made for the protection of those who furnish such evidence.

CONCLUSION

The proposals made herein are limited to issues relating to the UNHRC resolution 30/1 with a focus on addressing the vastly divergent assessments in the estimates of the civilian deaths in the context of international humanitarian law. The recommendation by the Consultative Task Force for a full scale investigating unit to find the truth and identify perpetrators is unwarranted for three reasons:

(i) the LTTE who perpetrated violations of international humanitarian law cannot be held responsible since they cannot be located or identified, (ii) since charges against the Sri Lankan government are based on oral evidence and desk reviews of such evidence, the same methodology should be deployed to address the charges leveled against the government (iii) such an investigation could overlap with investigations relating to Missing Persons.

Therefore, the rational approach for a independent nation judicial mechanism should be a desk review of existing material as two distinct and separate undertakings where one undertaking addresses allegations relating to the conduct of the armed conflict by the security forces and the LTTE within the context of international humanitarian law, and the other undertaking addresses individual acts of violation to establish prima facie evidence that could be passed on to existing judicial mechanisms.

Instead of being process driven, recommendations, whatever they are, should be pragmatic and not lose sight of the objective which in this instance, is reconciliation.

Neville Ladduwahetty

December 11, 2017.