Marge Institute responds to Chandra J

Following is a response from the Marge Institute to the Guest Column by Chandra Jayaratne titled ‘What is the Role and Responsibility of the Private Sector Post LLRC Report?’ published in the Daily FT of 15 February 2012

1. The LLRC report is a reactionary response to the international pressure.

    The complete statement made by Gehan Gunatilleke is as follows.

    Gehan Gunatilleke making his presentation in a series of questions and answers stated as follows: “The first question is as to why LLRC engaged on the issue of accountability, which he found to come as a surprise as issues of accountability were not visibly apparent in its mandate. While this question need to be asked and arguably maintained that it was more or less a reactive response to the international pressure that was mounting on the Government and also largely a domestic response to the report of the UNSG’ Panel of Experts.”

2. In examining the accountability area the LLRC has arrogated to itself powers beyond that in its mandated warrant.

    The complete statement made by Gehan Gunatilleke is as follows, where continuing from above he went on to state as follows: “The criticism is therefore that LLRC’s analysis of accountability may have been taken up for wrong reasons exposing the LLRC to some weaknesses and what made the LLRC engage in a predominantly legal or factual analysis of in terms of International Humanitarian Law and International Human Rights Law.”

3. The LLRC may have reached conclusion without adequately examining evidence and in that regard suffers the same failures as the POE.

    The complete statement made by Gehan Gunatilleke is as follows: “This takes us on to the second question as to whether they were equipped with expertise and time to engage in such a thorough analysis. Looking at the legal analysis in terms of IHL and HRL there are certain gaps which should be acknowledged. The analysis appears to be somewhat rushed and it is doubtful that any expert would say that it is a good analysis. There were problems with that analysis. Reasons for these problems were essentially because the LLRC did not have the time to deal with the legal aspects of accountability. Secondly, the LLRC did not have at its disposal the entirety of the evidence and therefore it would be unfair to expect the LLRC to come out with legal conclusions on the basis of that evidence. Organisations that criticised the LLRC did not come before it. Hence the question whether it was prudent to take the evidence it had and reach legal conclusions, evidently not. The same kinds of criticisms that can be made against the UNSG Panel’s report can be made against the LLRC’s report as well and it is exposed to those criticisms because of the dearth of evidence in terms of a lot of human rights violations and war crimes.”

    While being harsh on the LLRC and taken a position that in fact can reasonably be made by many, Mr. Gunatilleke stated that it is not necessarily his position and said that he considers the LLRC as having contributed tremendously to the search for accountability.

    “This is the positive aspect around which the next two questions will be asked. First, LLRC’s account was a huge improvement on Government’s narrative of zero casualty policy that not one would have taken and the LLRC came out and acknowledged the vast number of civilians that would have died during the final stages of the war, something that need to be appreciated as a contribution to truth. The LLRC published all its public hearing transcripts, and that is to be acknowledged as a contribution to truth. Much of this material provides the basis and the need for further investigations. The LLRC gives that. Therefore the LLRC report strengthens the claim to accountability.”

    Gunatilleke in his concluding remarks emphasised the transparency of the proceedings and the window of opportunity so created for further pursuing issues of accountability, truth and reconciliation and the need for civil society to support the implementation of the report.

4. The LLRC has misdirected itself in the classification of who ‘a combatant’ is and who is ‘a civilian’. In fact, civilians supporting the LTTE by building bunkers , by rendering other civilian service support to LTTE, locating or camping near or in the line of fire towards LTTE artillery batteries, hospitals or camping sites and even being a human shield for LTTE combatants, are ‘combatants’ and not ‘civilians’( irrespective of whether they volunteered to do so or were involuntary supporters or even coerced to do so participate by the LTTE) and thus have no protection under international humanitarian law.

    The complete statement made by Neville Ladduwahetty is as follows:

    Referring to aspect of accountability addressed by taken by the group of responses to the LLRC report (Amnesty International, Human Rights Watch, International Crisis Group and the TNA), Ladduwahetty stated that theirs was a narrow perspective, and that, “we need to take must be a legal one and a narrow approach to look at what accountability was. Did the Government or the security forces give specific instructions, as to whether there was any deliberate attempt to curtail on the relief given, were there rash attempts by the security forces indiscriminately attack and kill civilians? All of that is focused on one aspect, the aspect in war between combatants and civilians. The LLRC report did not go into that in sufficient detail, but addressed that in passing. To that degree the LLRC is open to criticism.

    “Had they dealt with the subject more comprehensively regarding the two categories, who is a civilian and who is a combatant, the issues they have dealt with are the issue of direct participation in hostilities and the issue of proportionality, and the basic approaches taken is the distinction and proportionality. When you get to proportionality the issue of distinction arises, as to who is a civilian. The general impression of most about the conflict is that apart from the armed cadres of the LTTE, uniformed combatants, that all the rest were civilians. That is the problem.”

    It was the position of Ladduwahetty that they were not and that they were coerced into participating and directly participating in hostilities and by doing so lost their right to protection.     “However it was the position of some (such as the TNA) that they were predominantly civilian population, and that challenge could have been dealt with much more comprehensively in the report to a degree that would have avoided comments of that nature. This issue should get addressed and if not it is likely to come up in time to come which will keep this cry for an international inquiry alive. This is the vulnerable part that could affect the reconciliation process. If these issues of accountability were to get pursued at the international level it is likely to make the Government reluctant and discouraged to get into reconciliation.     “It is therefore important that the Government deals with this and puts out a proper perspective as to the issues of the civilians killed, civilians targeted, civilian objects being fired on the idea of the human shield when you are a part of the human shield whether you lose the right of protection and this aspect of accountability dealt with because of the corresponding implications.

    “If the Government is to become a victim of these allegations with a persistent call for international inquiry, that could have an impact on the reconciliation process. Therefore this particular aspect of accountability has to be dealt with on account of the corresponding consequences on the major issue of reconciliation. There was a perception that most of the people were civilians. Correcting that image has to be done in an authentic and credible way if not it will continue to affect the reconciliation process.”

5. If the Government feels victimised by the LLRC report, it will negatively impact on reconciliation process

    The above statement made by Ladduwahetty sets in context the above statement that is reportedly stated as having been made by the speaker at the seminar.

6. The TNA and Diaspora supportive of LTTE , being proxies of the LTTE, does not deserve to be accommodated at a privileged level in any negotiations or in the implementation of LLRC recommendations

    The complete statement made by Dr. Godfrey Gunatilleke is as follows, in continuing his response to a question raised by Prof. Luxman: “The other question is, can this Government really implement this report? That is the question that is being asked by those who are critical of the report and by those who are hostile or taken up critical positions about the Government. That question takes us nowhere.

    “We have to assume that there is a Government responsible to the people, democratically elected, and we as civil society can activate this Government to act responsibly, would urge that the Government has a desire to implement but may have a lot of problems, take this whole problem of the Tamil parties, the Government is at the receiving end of criticism for making a coalition with the TMVP and the EPDP, who have all kinds of alleged crimes. They are also critical of their treatment of the TNA because the TNA was proxy to the LTTE by all circumstances they say they should be charged, they have no right to exist as a legitimate political party. The Government has to steer itself through all of that. “There are good arguments, in the internet and all from various groups that these people should really not be allowed to function as a democratic party because they have been all the time supporters of a terrorist organisation. So, how does Government address all this? The Government has been generous it its treatment to all and we should recognise that, we need to have a process of reconciliation that does not end in all these conflicts and problems.”