1. During your  BBC HARDtalk interview with Stephen Sackur, you said, referring to the Lessons Learnt and Reconciliation Commission (LLRC), that “things could have moved more quickly”. Don’t your remarks  vindicate concerns earlier raised by many others, including the panel appointed by the UN Secretary General that the LLRC was deeply flawed due to  the limited mandate of the commission and partisan nature of the panelists?

Not at all. My remarks concerned speed of action, as to which I have always believed that one must work quickly in anything one does. Sadly this is not a principle that is followed by many, and rarely by bureaucrats or commissions, in other countries as well as in Sri Lanka. The concerns you refer to seemed to deal with possible findings, and seemed to me prejudiced, as I shall make clear later in discussing your concerns about the panelists.

I should add that, while I continue to believe one must act speedily, I have often been criticized for this, on the grounds that my good ideas – about which criticism is rare – should have been implemented slowly.

2. According to your observations, what is causing the delay in the expected outcome of the LLRC?

A large number of persons have wanted to make representations, and these need to be heard. Incidentally this refutes the claim of the ICG which attributes to Sri Lankans its own prejudices in asserting contrary to evidence that ‘Sri Lankans know better than anyone that such a commission is ultimately powerless’.

3. The LLRC, earlier, submitted to the President, an interim report, which also contained certain recommendations, which included, among  others, publishing a list of names of those who are held in detention, creating a mechanism to examine cases of detainees and issuing a guarantee that private land would not be used for settlements by the government. However, as of now, there is no tangible results or any indications that those recommendations are being acted upon. What is preventing the government from implementing these recommendations?

The recommendations have been acted upon, and fulfilled subject to other considerations. For instance, the names of those undergoing rehabilitation were always known, and they were always open to visits. The large numbers involved here were confused with the far smaller numbers held at Boossa for instance, but those names are all now with the Human Rights Commission and open to anyone who inquires. Certainly the development of suitable mechanisms was slow, but there were worries, which are understandable, about the political advantage taken of the situation. The mechanism to examine cases is in place, and seems to have resulted in a reduction of numbers – when I chaired such a mechanism, towards the end of 2009, we were able to expedite the release of several hundreds. With regard to land, there was never any question of private land being used for settlements by government. Acquisition of land for public purposes is a different question but given the general availability of land, this is not necessary – the question confused with this, of the High Security Zones, is not about acquisition, given that government plans to reduce these Zones, and has done so regularly, though again perhaps less swiftly than some would like. Problems remain about land which was squatted in, which is why several years back we tried to make suitable changes in the laws about prescription. Dealing with conflicting claims, which all have some basis in law and tradition is not easy, but it is being done gradually.

4. The general impression is that the LLRC was set up to deplete international calls for a war crime investigation and  that it is more a public relations stunt to repair the government’s image than a genuine effort to seek truth and reconciliation. Your comments please…?

This is not a general impression, on the contrary most Sri Lankans not involved in encouraging polarization believe it will fulfil its mandate, as is apparent from the number of those also critical of government who have appeared before it. You must remember though the range of its mandate, and its concern with Lessons Learnt as well as with Reconciliation, ie its obligation to make recommendations to strengthen peace and pluralism. Unfortunately many of those who criticize are concerned more with the past, and with retribution, which is the theme song of the Darusman Report. While justice has its part to play in promoting reconciliation, retribution seems to me to smack of the vengeful God of the Old Testament, which is a vulgarity the world has moved beyond, not just in Christianity but in all major religions.

5. Hasn’t  the  partisan nature of the handpicked panelists greatly compromised  the independence of the LLRC?

I am astonished that you should describe the panelists as partisan. Most of the members, and obviously the Tamil and Muslim ones, are distinguished public servants. Dr Rohan Perera is one of the most distinguished law experts we have, whose services continue in demand at the United Nations even though he has retired. Mr Palihakkara was held in high regard at the United Nations, and was seen while in the Foreign Ministry here to uphold an internationalist approach. And while the former Attorney General was vilified for his role in a previous Commission, this was based on total misunderstanding of the role of the Attorney General in Sri Lanka, unlike in Britain or the United States, where the position is a political appointment.

6. The limited mandate and absence of any real powers to enforce the recommendations of the commission are meant that the commission could not achieve much in terms of truth and reconciliation…?

The commission was not intended to be a judicial body, and will not sit in judgment, unlike the Darusman panel which was supposed to be advisory, and has made sweeping judgments while ignoring evidence, justifying this on the grounds that it was not meant to investigate (so that its partisan pronouncements can be explained on the grounds that indeed it did not check). Its recommendations can certainly help with reconciliation, though not with retribution, which was not intended though others who have been consistently hostile to Sri Lanka continue to harp on this.

7. These multifaceted concerns have now been vindicated by the failure on the part of the government to act upon its very basic recommendations. Your comments please?

Government has acted. However it has certainly failed to communicate what it has done. In recognition of this, my appointment as Adviser on Reconciliation specifies that I should monitor disseminate progress. A mechanism to expedite this needs to be established swiftly.

8.  There are  also concerns that the ministry of defence and the defence secretary himself are standing on the way of implementing  these recommendations. Do you believe security concerns could justify the non implementation of recommendations such as publishing a list of names of detainees?

Given the horrors this country has been through, security considerations must be paramount. This is the more obvious inasmuch as terrorists and their supporters had no qualms about abusing civilians ruthlessly to achieve their ends. What is desirable is to ensure that the basic aims of any recommendations can be fulfilled without any security risks, and this will usually be possible with any positive recommendations – as has been clear with the manner in which the list of detainees is now available, but not published in a manner that could lead to abuse.

9.  The LLRC submitted an interim report to the president. Given the history of the President Commissions in this country, many of which became mere white elephants and their final reports are gathering dust in the Temple Tress, do you think the interim report of LLRC should be made public?

Yes. I think the reports of many commissions have been made public, but regrettably there is no coherent use made of these, perhaps because often the language in which they are couched is not readily accessible. Certainly there should be better mechanisms to ensure productive use of such reports, instead of what we now have, which is accusatory critiques – but I suppose that is par for the course, as with Bernadette Devlin’s sharp attack on the last British inquiry report on Bloody Sunday, which seemed to me a considerable advance on the previous whitewash, until I read her attack, which suggested a different perspective altogether. Not knowing enough about the situation, I will not pronounce, though I wish British critics of the LLRC would apply the same standards to their own commissions and reports, and register the worries of people like Bernadette Devlin.

10. If not, why?

Question does not arise.

11. You said in your BBC HARDtalk interview that about 5,000 civilians perished during the war. Your statement contradicts the government position of Zero civilian casualty…?

The question perpetuates a myth, which you will see has now begun to fade. Government insisted that its policy was one of no civilian casualties, but unfortunately questioning was so prejudiced, that when the obvious fact that there were civilian casualties was granted – which I did way back in 2009, having monitored TamilNet on a daily basis and checking with the forces as to any report that suggested excessive civilian casualties – it was immediately declared that we had admitted culpability. So obviously, when questions were raised that were essentially about culpability, spokesmen issued denials, which were then deliberately misconstrued and publicized, ignoring very clear statements such as those I had made.

Again let me reiterate the distinction between

  1. Civilian casualties which necessarily occur in any protracted conflict

  1. Civilian casualties caused by government action, which would obviously have occurred, given the tactics employed by the LTTE. These are regrettable, but they are generally accepted (as we are told all the time by the West with regard to its operations against some Islamic nations). It must also be remembered that there is some evidence that the LTTE not only invited defensive action against heavy weapons it fired from the proximity of civilians, but also sometimes fired on those civilians itself

  1. Civilian casualties caused by deliberate targeting of civilians, which I believe never occurred. A simple example to prove this is that, contrary to the claims of the Darusman report, about systematic shelling of hospitals, in the entire period from the beginning of January until the Puthukudiyirippu Hospital was vacated, there were only two instances of shells, not damaging the hospital, but falling into the compound. The allegations were, in the first instance, that two people were injured, in the second, that one person was killed and four injured.

This is what the ICRC reported. TamilNet claimed with regard to the first incident that one woman was killed and six wounded about the first incident, and about the second that nine civilians were killed, ‘including patients and their family members in the ward’.

Since the ICRC seems to have been present throughout, the contrast between their report and what TamilNet said suggests that reports propagated by the Tigers cannot be credited. The ICRC records that it had previously orally intervened with regard to ‘the proximity of shells at the hospital compound’, though it was also well aware that the LTTE had breached its commitments by employing heavy weaponry from the vicinity of the hospital.

Clearly, if an army accused of systematically targeting all hospitals, managed to land only two shells in a month into the premised of the hospital, there must be something wrong, either with the army as a military force or with its accusers. I am sad that papers such as yours do not, by recourse to research, make clear the frivolity of the accusers, the totally arbitrary nature of their allegations, and their failure to communicate with responsible authorities. I am aware that the operations of the ICRC are confidential, but given how confidently they are quoted, they could certainly have been asked to confirm what appears in the Report.

It should be added that there was one other report from the ICRC about two other hospitals in the vicinity. It said that one of these was hit by three shells, on two separate days, two of these exploding in the compound, altogether leading to five people killed and 22 injured. The TamilNet report on this incident gives different times and states that five were killed and 15 wounded, which suggests that the later ICRC report was based on different information. With regard to the second hospital, the ICRC said that it was hit by one shell while another exploded ‘at the proximity of the hospital compound’. The first shell was alleged to have led to five persons killed and 27 injured. Tamilnet talks of shells exploding inside the hospital premises and at least ’60 shells’ behind the premises. It said that four civilians were killed on the spot. Again, the discrepancy is instructive.

So we have, way back in 2009, from witnesses on the spot, as also from TamilNet, allegations only of five shells in hospitals, three in the compound, two on buildings. This is in the context of the Tigers battling fiercely with heavy artillery firing from next to the hospitals. If one recognizes that the army was doing its best to target precisely and avoid the hospital, the lack of shells in the hospital premises makes sense. If one assumes the opposite was true, then clearly we are dealing with a quite incompetent army, doing its best to attack hospitals and kill civilians but failing miserably.  

Lakbima follow up – Could you answer these follow up questions in brief (Shorter the answers is better as the interview is already 2400 words)

1. You said the names of the detainees are with the National Human Rights Commission and are open to anyone. But as far as we understand , by talking to the family memebrs who have been demanding to know the whereabouts of their loved ones, that this is a partial list and a large number of names are missing. The parents and family members who recently demonstrated in Colombo and Vavuniya to know the whereabouts of their relatives would confirm this…How do you explain this situation?

2. Isn’t it because the omission of many names, which could raise pertinent questions over the plight of those detainees — who accordingly their relatives , were arrested by the security forces in the past– that the government didn’t make public the list of names of the detainees?

3. As for the acquisition of the land; many houses, schools out side the HSZ continue to be occupied by the army. Don’t you think that when the LLRC recommended that the government guarantee that public land will not be utilized for settlement by any government agency, that also includes military camps, some of which continue to function from schools and private houses?

To be brief, as requested, I will answer all three together. The answers are in any case similar, for these questions relate to specifics, without them being supplied. This is one reason why I have recommended a one-stop-shop as it were where people with queries can go, to find answers and exchange information if the answers are not readily available.

The HRC should also, as I have noted, have information with regard to the Rehabilitation Centres. I agree that these specific problems need to be addressed, so perhaps you could share with me the information you have from people you have been talking to, so I could check on their behalf.

Similarly with details of houses and schools outside the HSZs which you say are now occupied by the army. Acquisition of these is not I believe planned and, though obviously premises were required when security requirements were intense, these are being returned as the army presence is being scaled down. To refer to one instance I know about, since it concerned rehabilitees, a school in Omanthai was used initially for those who were thought to require long term detention, but those in charge were well aware that reopening of the school should be facilitated, so other arrangements were made – including reducing periods of detention.

Give me a list of the other places you refer to, and I will try to check and get back to you with specific answers.

Rajiva Wijesinha

Lakbima News 24 July 2011