Testimony before the Lessons Learnt and Reconciliation Commission

of Prof Rajiva Wijesinha, MP

Author of Declining Sri Lanka

 Former Secretary General of the Secretariat for Coordinating the Peace Process

Former Secretary to the Ministry of Disaster Management and Human Rights

Given on 23 August 2010

I was not certain as to which aspects of the work of the Commission I should address, so I thought it best to prepare some points in writing, to be expanded on further as the Commission sees fit. It seems that the work of the Commission can be divided into three components as follows –

a) Consideration of what should be done now to promote reconciliation

b) Examination of the Peace Process and what led to negotiations proving  unsuccessful so that  other options had to be followed to achieve Peace

c) Inquiry into incidents during the process which might prove barriers to reconciliation

 

b) The failure of efforts at a negotiated peace

This area is of importance not only for the Sri Lankan state, so that it can prevent the recurrence of past mistakes, but also for the world since it is vital that international terrorism must be dealt with firmly even while attention is paid to the grievances of those who might be tempted into terror.

The cardinal mistake in the process in Sri Lanka was the confusion of those who had grievances which needed to be addressed with those who had turned to terrorism to redress those grievances and refused to move away from terrorist practices and absolute aims.

Though it is essential to combat terrorism, any state must be sensitive to what might have made people turn to terrorism. Therefore it must be ready and willing to engage in discussions. Remedial action with regard to grievances should however be on the basis of general principles and should benefit all those affected, not just the proponents of terror.

Sri Lanka removed the institutional reasons for grievances in 1987 with the Indo-Lankan Accord. Much practical work however remained to be done to restore a sense of equity. This is not the place to discuss whether inadequacies were due to lethargy on the part of the state or distractions arising from the continuation of terrorism on the part of the LTTE. What is important is that, following the destruction of the LTTE in Sri Lanka, practical work should proceed apace. It should also be noted that this government actually began some practical work that should have occurred long ago, through for instance measures instituted by the Ministry of Constitutional Reform and National Integration to ensure bilingualism amongst new recruits to the public service. The targeted recruiting of Tamil policemen is also an example of the positive approach of this government.

Unfortunately the intransigence of the LTTE, which refused unlike all other former terrorist groups to accept the provisions of the Accord, was encouraged by domestic politics. Whether out of genuine belief that the LTTE had been badly treated, or simply to score brownie points against political opponents, Presidents Premadasa and Kumaratunga and Prime Minister Wickremesinghe gave the impression that peace remained elusive because of the inadequacies of previous governments, and that they would succeed in negotiating peace with the LTTE.

The first two soon recognized their mistakes, but either because of greater naivete or greater ambition (or perhaps the greater skills of the LTTE) Mr Wickremesinghe found himself totally in thrall to the LTTE. Though he consoled himself with the idea that the international community, by which he meant the West, would bail him out if the LTTE went too far, this showed complete ignorance of the way the world works. Indeed, given that he had been part of the government which failed to get British and American assistance against Indian interference, despite its belief that commitment to the West during the Cold War had created a security blanket, his naivete seems culpable.

I need not however dwell here on the follies of the CeaseFire Agreement, or rather on the manner in which Mr Wickremesinghe allowed it to be interpreted. His failure to be firm when there was clear evidence of continuing belligerence, indeed his continuation of lavish subsidies to the LTTE, suggest a man blind to what was happening around him. I should also note, in passing since I believe the principle is well understood, that the terms of the CFA were a betrayal of all Tamils who were opposed to the LTTE. The decimation of all groups opposed to the LTTE that took place over the next few years was appalling, and the failure of the government of 2002-2003 to do anything about this remains a blot on the Sri Lankan state.

More significant to my mind, because less well understood, is the role of the International Community in supporting his myopic approach and thus benefiting the LTTE. I myself do not believe that many of those who ended up giving financial and moral support to terrorism were actually supporters of the LTTE. Rather I believe that the indulgence the LTTE received during the period from 2002 until in fact 2006 sprang from three different mindsets, viz

i) Those who felt sympathy for the Tamils, largely because of what they knew about the manner in which Tamils had been treated by government in the early eighties. What had happened then was bad enough, but its memory was also kept alive by agents of the LTTE, who were able to present the LTTE as innocent victims of state brutality.

Perhaps the most important of those who felt like this was the Norwegian Ambassador at the time the CFA was signed, Jan Westborg. He had been in Sri Lanka with an NGO during the early eighties, and he felt tremendous sympathy for the abused Tamils, a factor that contributed to his promoting colonization of the Vanni by Tamils of Indian origin who had been treated badly three times during President Jayewardene’s first government.

ii) Those who saw themselves as holding the balance between two hostile but equal entities, viz the Tigers and the elected government. The manner in which the CFA was drafted allowed what are termed international aid workers to believe that they had to sit in judgment on conflicting claims. Naturally, since this allowed people with limited skills and capacity an inflated idea of their own importance, they clung to this interpretation.

Some understood in time that such an approach was mistaken, as for instance the OCHA official who told me shortly before leaving that they had misunderstood Sri Lanka when they got here, having thought it was a country like those African ones in which they had cut their teeth, in which the writ of government did not run in vast areas.

Unfortunately the distrust of its own officials on the part of the Wickremesinghe government contributed to the notion of the international community that they controlled decisions as well as finances The most distasteful example occurred when the Head of European Union Aid tried to dragoon through a document on Modes of Operation for Assistance which specified that international agencies would hold the balance between the parties in conflict. When, having taken over as Secretary to the Ministry that coordinated humanitarian aid, I noted that that clause would have to be amended, the response was that it had been already agreed. When I made it clear that this was not a subject for negotiation, the EU lost interest in the Modes of Operation document.

iii) Finally there were those who actively sought positions of self-importance. Chief amongst these was Gareth Evans of the International Crisis Group, who kept offering himself as a mediator and guarantor of the CFA. He was deeply critical of the Norwegians and disappointed to find that I held the Scandinavian Monitoring Mission in high regard.

So too Louise Arbour, as UN High Commissioner for Human Rights, wanted an enhanced role, argued for by her chief advisor on Sri Lanka who was again critical of the Scandinavians, and tried to persuade me that one reason for a UN Human Rights office was to take on the monitoring role of the Scandinavians.

The final result of all these approaches however, even if it was not intended, was parity for the LTTE. This was actively promoted by some of Mr Wickremesinghe’s advisers, in particular Mr Bradman Weerakoon, who initiated funding projects for the LTTE that allowed them to build up their image. Both the Head of UNDP and the last Norwegian ambassador, Tore Hattrem, when I asked them about funds given to the LTTE Peace Secretariat, claimed that this was with the full permission of the government, a point I did not contest. My point was that they had not monitored what was done with the money, and that they should upbraid the LTTE for using the equipment and funds provided to glorify suicide bombers. Mr Hattrem, I am happy to say, reported that he had requested the LTTE to remove the offending items, though of course they ignored him.

The general lack of monitoring allowed the LTTE in effect to run riot. I should note that I believe we too were at fault in not following up ourselves on funds that were given to the LTTE with our consent. The worst example I came across, which I constantly urged our Foreign Ministry to investigate, was the $1 million dollars given to the LTTE by UNICEF for rehabilitation of former child combatants.

My attention was drawn to the disastrous nature of the UNICEF relationship with the LTTE by a conversation with the Head of UNICEF until 2007, a lady called Joanna van Gerpen round whom the LTTE clearly ran rings. At her first meeting with me, she said brightly that the LTTE was being very good, and would shortly be releasing all combatants under 17. I pointed out that I thought this was what they had agreed to do five years previously, but she said that they had tried, but would now really fulfil the promise.

I then asked why they were stopping at 17, since I thought those under 18 were also child combatants. Her answer was that they had some difficulties with their legislation, but would amend this shortly. When I pointed out that the word legislation was inappropriate, she realized her mistake and apologized, but I told her that I would complain officially to the UN, as I did in the letter given in the appendix[i]. She sent me an apologetic letter that confirmed the actual UN position, but I believe her approach with the LTTE was symptomatic of the advantage they took of those without an actual understanding of terrorism.

I should note that this mealy-mouthed approach was symptomatic of many UN officials in 2007, since they seemed in general to share the views of the Wickremesinghe government and to assume that there was something wrong with the newly elected government in its determination, having made an attempt to negotiate, to deal firmly with terrorism when the LTTE proved intransigent and withdrew from negotiations and engaged in terrorist activity.

As noted in the letter I cite, I had problems too with OCHA, which seemed to indicate in its weekly reports that all was sweetness and light in Kilinochchi, while tensions continued elsewhere. I complained about this to Sir John Holmes, the Head of OCHA, during his visit in Sri Lanka, and he did at least instruct that there should be balance. While balance between an elected government and terrorists did not seem to me desirable, it was even worse that previously even such balance had not been there. Sure enough, for the first time the following week, it was reported that tensions continued in Kilinochchi, a place that had been singularly free of such tensions in UN reports previously.

Not entirely surprisingly, this was happening at a time when the LTTE had stepped up its recruitment, and was insisting on at least one recruit per family, even from the families of NGO workers. This was reported to us by the Norwegian ambassador Mr Bratskar after his final visit to Kilinochchi, soon after Ms van Gerpen’s sanguine report about her own visit.

In fact I brought up this deafening silence in my first meeting with the new UNDP representative, Neil Buhne, and he told me that he thought the UN had mentioned such recruitment in its reports. I asked him to show an instance of this to me, but he was unable to do so, and had to acknowledge that this appeared only in confidential reports. Indeed he practically confessed to me the reason for all this, when I upbraided him more than a year later about the silence of the UN on the failure of the LTTE to release the international UN staff who had gone into LTTE controlled territory in January 2009. When I noted that a much less serious breach on our part would have been highlighted by the UN, he said, ‘But you guys wouldn’t…..’. He paused then, but I could finish the sentence for him – obviously what he meant was that we would not harm the UN whereas the LTTE would.

I should however note here that we should acknowledge the tremendous change in attitude achieved by Mr Buhne, as well as the Heads of OCHA and UNICEF who came to Sri Lanka in 2007. They were of a different mindset, and did their best to work together with government, sometimes despite opposition from some of their staff who still saw the LTTE as innocent victims. At the latter’s farewell party, Mr Buhne testified to the achievement of Mr Duamelle, the recently departed Head of UNICEF, in winning the trust of the Sri Lankans, and I can vouch for this, since by 2008 he and the TMVP were working together to ensure that there were no child soldiers still in the custody of the latter.

In 2007, when my staff at the Peace Secretariat got the TMVP to agree to release some youngsters whom they said they had taken in for protection because of renewed LTTE recruitment after they had been initially released in 2004, the TMVP refused at first to hand them over to UNICEF, They claimed that was the surest way of the LTTE taking them over. My reading of reports on what had happened after the first agreements to release child soldiers suggested that this was not entirely an exaggeration, and Ms van Gerpen certainly would not have been able to prevent such abuse.

Incidentally a continuation of intrigue on the part of some elements in UNICEF could be seen even last year, with reports that were subsequently denied. The UNICEF report on casualties from landmines was another example of this trend, with an attempt later to shift the blame to others for the report. I have urged thorough investigation of both these matters, and I believe we need to continue vigilant. We should note too the insidious manner in which UN reports on children in armed conflict suggested that government and the LTTE were on a par. Condemnation of bombs in Colombo that killed children were equated with unconfirmed reports from TamilNet about child casualties from air force raids on civilian targets. Ms Coomaraswamy who wrote such reports would not take responsibility for the allegations but referred to a Committee in Sri Lanka, which had not fulfilled its initial responsibility of working with government before dispatching such reports.

Let me add too that the Sri Lankan failure to monitor properly also had other adverse consequences in that it led to blanket condemnation of international agencies when deficiencies were discovered, with increasing tensions between Sri Lankans and international agencies and individuals. My own experience was that firmness prevented many problems, and we needed to engage in constant interaction, because often the inadequacies were due to ignorance. In that regard we need to ensure better training for our public servants, so they can deal on the basis of equality (and authority too, since they represent the elected government) with what is termed the international community.

This does not mean that we should blindly trust everyone. After all, though most people working in this field have ideals we should respect, their first allegiances are to their own careers, the institutions for which they work, and the countries they come from, rather than Sri Lanka and its people. At the same time, we should be able to show them how our common interests are more important than any differences we might have. However we cannot ignore the fact that, for various reasons, some individuals do not have our interests at heart. We should be careful about these, but not tar all their associates with the same brush. For instance, my own view is that Eric Solheim had his own agenda, and was not someone who could be trusted. It was also clear that his successor as Facilitator, Mr Hansen-Bauer, was a cipher, who sat like an attentive schoolboy when Mr Solheim was in the room, and could not be expected to react independently, even when circumstances changed. On the other hand, I believe Mr Westborg was an idealist of sorts, even though his mindset was outdated. His successor, Mr Bratskar, did a good job under difficult circumstances, and I think tried to promote an equitable peace. His successor, Mr Hattrem, was even more ready to move forward. Of course there was interference from Mr Solheirm, who was still pursuing his own agenda, but I believe we could have taken greater advantage of the shifting perceptions even amongst the Norwegians.

Again, with the UN, as noted we had a much more open-minded leadership in the last couple of years, while the old traditional agencies such as ILO and WHO – and also those with more experience such as WFP and UNHCR – had excellent and very positive leadership during this period. At the same time we must insist on more recruitment of Sri Lankans to senior positions, as happens currently in UNDP. This will reduce the atmosphere of patronage that now dogs some agencies, which contributes to decisions made without understanding of the ground situation. We should also ensure capable and articulate counterparts at all levels, and prompt written questioning of any abuses that might take place on the part of youngsters anxious to make their mark.

In short, while I believe that government could have been more firm from the start with regard to the CFA, we must also ensure for the future that government ensures that, as the elected representatives of the Sri Lankan people, it makes the decisions, albeit with full consultation of all interested parties, including members of the international community who are well briefed about the ground situation.

Failure to make these ground rules clear led to the LTTE believing that they could get away with anything, hence their total intransigence during negotiations, their high-handed withdrawals, their refusals to return despite the restraint of the government in refraining from active responses to their provocation, in particular at the very end of 2005 and the beginning of 2006. Mr Wickremesinghe’s willingness to concede to them an Interim Self-Governing Agency, and also the terms of the so-called PTOMS agreement, all based on the assumption that the LTTE had a right to govern the areas they controlled, also contributed to their dogmatic approach.

We were also too indulgent in allowing them to refuse to have elections at any stage. In this regard the failure of our media to investigate as to why Prof Peiris’ very proper announcement around 2003 that local elections would be held soon was countermanded by higher authority shows a lack of careful scrutiny by the press and other public interest groups during that period. The absence of any concern for democracy amongst otherwise generally vociferous advocacy groups also testifies to the double standards which the LTTE had succeeded in imposing amongst even well meaning idealists.

Letter to UNDP Representative re UNICEF and other improprieties

[i] July 30th 2007

Dear Mr Buhne

When I met the UNICEF Representative last week, to be briefed on her visit to Kilinochchi, I was startled by her mention of the LTTE requiring to pass new legislation in order to fulfil particular obligations. As far as I could understand, they felt they could not otherwise change their current practice of recruiting children who are 17.

Though Ms van Gerpen was only reporting what had been told to her, she appreciated the point that it was quite inappropriate to talk of legislation on the part of the LTTE. She has agreed to think of different terminology to express what they put to her.

Though I appreciate her difficulty, in terms of continuing diffidence on the part of international organizations to deal with increasing lawlessness on the part of the LTTE, I believe it would be in the interests of not only the country in which you work, but also the poor suffering people of the Wanni, to be categorical in your condemnation of such practices. There should be zero tolerance of child recruitment. Though this may be difficult for some of your officers who come from countries such as Britain which still I believe engages in under age recruitment, UN officials should work to UN standards. The British army is in any case a voluntary army like ours, and what we are dealing with here is enforced servitude, whether through abductions, or the practice of demanding at least one member of each family.

Ms van Gerpen indicated that the family then decided who would serve, which seems to me a strange use of the term decision. Sadly, through its failure to make clear what I am sure is its abhorrence of such practices, the international community seems to have condoned this, and to be more concerned about ensuring that the families of its own workers are spared.

*

In urging you to make sure that all members of your staff are careful about appearing to condone LTTE pretensions as to sovereignty and its right to make laws, I should draw your attention to the document promulgated by the LTTE entitled ‘Judicial Administration of Tamil Eelam’. I assume your office would have obtained a copy of this in the days when even some elements in the Sri Lankan government seemed to believe that this so-called Administration might be permitted to hold sway over our citizens.

The first clause of that document is –

1. It functions on the basis of the direct approval of His Excellency Mr V Prabakaran, the National Leader.’

Then, after enumeration of the different sorts of judges,

2. Only he has the authority to reduce or increase the sentences of the Courts wherever the need arises.

3. All laws are made with his approval.’

The Supreme Court ‘consists of three judges, appointed by the National Leader.’

Given the caveat made to Ms van Gerpen, you should perhaps know that the section on Legislation specifies

1. Making of Laws.

Drafting new Laws in accordance with the needs of the time, and in terms of the attitude and conduct of the people.

2. Approving:

Whenever the need arises for new laws, in terms of the needs of the judiciary, adopting the appropriate laws of other nations.

The committee for the review of legislation consists of

1. Official in Charge of Political Field.

2. Official in Charge of intelligence. and six others in charge of Finance, Police, Judicial Administration, Research Organization of women, “Chencholai”, Refuges Rehabilitation.

This committee for review after having discussed and reviewed the Legal drafts drawn by the legislation submits the final form of draft to the National Leader for approval. This Committee will meet as and when needed.

You should also note that the head of the judiciary seems to be someone called ‘Official in Charge (all) whose first duty is ‘Implementing the views of National Leader in respect of Judicial Administration Informing him’

*

I should also mention here other instances in which terminology used by the UN is inappropriate, and may seem to support an unelected authoritarian regime. The last IRIN report says that ‘The LTTE allows the government’s civil administration to function in areas under its control but keeps a watchful eye on their activities’. The UN should not seem to condone the idea of LTTE indulgence, accompanied by due caution. A more appropriate way of describing the situation would have been,

‘The government continues to function in areas under LTTE control, through legally appointed representatives such as Mr Vedanayagam. It fund numerous services, including health and education, many aspects of which the LTTE does not disrupt, though ensuring that its own priorities are fulfilled.’

I would not expect you to record that amongst services disrupted is the education of some children. I hope however that you and your staff will work more purposefully to minimize this. Accepting the argument that so-called ‘legislation’ is necessary to stop abuse is not conducive to the ends we all seek. I believe that, even if intended as tactful and gracious, this will be seen as appeasement, and history has shown us that appeasement does not work.

Yours sincerely,

Rajiva Wijesinha