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 

c) Investigation of incidents that might seem barriers to reconciliation

This is the area about which most concerns are expressed, though it seems to me less important than proactive measures to promote reconciliation, through ensuring the future well-being, prosperity and integration of those who suffered in the past. At the same time remedial measures are desirable in cases in which there is clear evidence of violation by the state of laws. Whilst it is not incumbent on the state to look for such evidence, it should certainly investigate instances in which a prima facie case seems to have been established. 

  

My own view is that in hardly any instance has such a case been established. However I believe there is at least one instance in which the state should have taken legal action, and our failure to do this has prompted blanket criticism which is not warranted, and distrust which, if not warranted, is understandable. I refer to the case of the killing of five youngsters in Trincomalee in 2006. I have long urged that indictments should be issued in that case. I respect the response of the Attorney General at the time, that a prosecution would not be successful because the evidence was incomplete, but my point was that there was need of a clear message that such conduct was not acceptable. Given the standards of proof required by our courts, there would have been no reflection on the Attorney General’s Department had the case failed, just as there has been no reflection on say British justice even though there was only one conviction in the Abu Ghraib case. The point is, the state has made its position clear, and indicated that individual aberrations will not be condoned. If the state does not do this, there is danger that such aberrations might appear systemic, and indeed become so. Fortunately there is no evidence of this occurring in Sri Lanka.  

I say this with some confidence, because I made it my business, as Head of the Peace Secretariat, to monitor events during the war, and to ask for explanations when there were reports, on TamilNet and elsewhere, of what might have seemed aberrations. I received prompt responses from the airforce on all occasions, and from the army on most, though obviously, with the field of action more widespread, these answers were less thorough. 

I have kept with me copies of the schedules that my staff drew up based on the allegations that appeared in various places. The first point to make is that, upto the end of 2008, the allegations of civilian deaths made altogether by TamilNet amounted to less than one hundred. The air force, in over 400 bombing raids, was accused of causing civilian casualties in under 30 cases, and of these over 20 were of one or two deaths. These may be one or two deaths too many in an ideal world, but in an ideal world you do not have terrorists who force civilians to fight and to labour at military installations. Certainly this suggests nothing but slight collateral damage, a much better record than any other country engaging in a struggle against terror. And yet, despite this record, agencies such as Human Rights Watch kept making claims of indiscriminate attacks on civilians, without any effort to substantiate their claims, even when challenged. 

In 2009 there were more allegations of civilian deaths, beginning with January 26th on which there were allegations of 300 deaths. This related to the No-Fire Zone, and that morning the UNDP head called up my Minister at the time with the allegation that our forces were firing on civilians in the Zone. However later that day the Bishop of Jaffna called us to ask whether the No-Fire Zone could be extended, and issued a press release calling on the LTTE not to bring their heavy weapons into the Zone. Later that day the UN Coordinator sent us a message to say ‘For info we believe that firing this morning most likely was from an LTTE position’.  

In short the LTTE was now doing what it had planned all along, using civilians as human shields, firing from their midst with scant regard to casualties, indeed even inflicting such casualties deliberately sometimes in order to get the international reactions it wanted. It was obvious that this had been planned for a long time, but sadly they were encouraged in this ploy by the failure of the so-called international community to roundly condemn the herding of the displaced into smaller and smaller spaces. The NGOs who claimed to have been working on behalf of the people of the Wanni said nothing when the LTTE held people back, including the families of their workers. Instead condemnation was reserved for the centres the government had set up for the displaced who sought refuge. Indeed agencies such as Human Rights Watch, in what was in effect an apology for the LTTE’s strategy, tried to suggest that people actually preferred to stay with the LTTE rather than escape to government areas – even while there was clear evidence of the LTTE actually shooting people who tried to escape[i]. 

Given the plethora of shrill allegations against the Sri Lankan forces, it is understandable that they have not been taken seriously. This however was a mistake, because at least some were made in good faith by those who have otherwise been categorical in their condemnation of the LTTE. Thus I believe we should have gone into the reports of the Jaffna University Teachers for Human Rights. Though they often get things wrong, given the manner in which they collect information, they are balanced, and I believe they make clear the generally humane way in which the forces behaved. Thus, in their last report, they describe an incident in which the LTTE fired from amidst civilians, obviously trying to provoke the army to fire back, and the army desisted from doing so. 

  

This does not mean that we can claim government forces did not inflict any civilian casualties. Sometimes soldiers may have responded to provocation such as the above, especially in the heat of battle, when in fear of their own lives, and civilians would have died. Yet the fact that they did not so respond on occasion suggests that that was what their battle orders were. It is orders to the contrary that would constitute crimes, whereas individual responses in the context of enemy attacks are not issues that should lead to smouldering animosity and inhibit reconciliation. Certainly there is no indication at any stage of responses being disproportionate.  

I regret therefore that we did not also respond promptly to the schedule submitted by the American State Department late last year. Since they noted that these were simply allegations, and since we already had material on several of those allegations, we should have immediately assuaged concerns where possible. Sadly the political games that were played over the next month, with the individual who had claimed responsibility for a grave aberration turning a full somersault and seeming to make a totally contrary claim, led to a belief that the queries were political in character. This should not have happened, and instead what is generally a positive story should have been very simply told.  

  

In particular we should have nailed the canard, initially floated by the Times of London, that over 20,000 civilians had been killed. I give in a footnote my own comments about this figure[ii] , but should also stress here that the Times gave three different explanations of how it had made its calculations, each more preposterous than the last. The conclusion was inescapable that they wanted to propagate a particular viewpoint, and did not care about facts or evidence in pushing this. 

What was the reason for this? I go back to the listing of different motivations for pursuit of what amounts to the same destructive agenda. Amongst these are 

i)  Anger amongst Tamils who suffered in the eighties and who therefore believe that all recent suffering   must also be entirely the fault of the government 

ii)  Support for Tamils who propagate the above view, either through sympathy for their suffering or through a desire for their support for electoral reasons 

iii)  Desire to assert control, whether for personal or for political reasons 

  

I believe we should do all in our power to convince Tamils who suffered in the past that government is committed to reconciliation. For this we need to move quickly on the types of initiatives described at the beginning of this paper. Such actions would also win over those who support them for altruistic reasons. It is also necessary in promoting such actions to ensure consultation and explication as comprehensively as possible. 

  

This needs to be accompanied, as noted, by actions that make it clear government rejects all aberrations and will try to ensure they are not repeated. Measures that institutionalize the rule of law should also be enacted, and in particular to make clear the commitment of the state to fundamental rights and equity. 

  

In all this there is need of a good communications strategy, that lays down the tremendous progress made in the last year, in particular in areas in which we were under grave suspicion. The manner in which the government lived up to its commitments regarding Resettlement should have led to greater acknowledgment that previous negative pronouncements were misplaced. Similarly, the work being done on Rehabilitation also deserves more recognition. 

Dealing with those who are less altruistic may be less easy, but progress on the above will make it clear that mutual interests can be served through consultation rather than confrontation. With the British election out of the way, the worst examples of hypocrisy (sadly also brought to bear on the Americans too) are over, and a positive approach to the new government should prove successful. 

At the same time it is necessary to pinpoint instances of hypocrisy where the predilections of individuals could have damaged relations between countries. For instance the readiness of individuals to fall in with the plans of opposition politicians must be changed. The response to the claim of the Leader of the Opposition, that GSP+ would be maintained were General Fonseka elected President, led to a pronouncement on the suitability of military men to take to politics which seemed designed to give an inappropriate message. The impact of such behaviour should be pointed out clearly, instead of being left to fester. The EU should for instance be asked to explain various pronouncements, such as the effort to prevent democracy taking route in the East, and encouraged to study their own approach to relations with Sri Lanka, since they have contributed, perhaps unwittingly, to the view that they are not interested at all in human rights, but rather in increasing their political influence.  

  

We should also make it clear that continuing persecution will be addressed systematically by drawing attention to the efforts of a few individuals to fulfil their personal agendas at the expense of the Sri Lankan people. It is no coincidence that Louise Arbour has now joined up with the Gareth Evans ICG to fulminate against Sri Lanka, and seek justification for their previous excesses. It is also noteworthy that elements in the Arbour stable, for instance the Iranian Canadian Prof Payam Akhavan, had asked the Canadian government to support his claims to sit on the tribunal to go into Sri Lankan war crimes, which he had assumed was being set up in Geneva on the infamous occasion when some Western countries tried to put Sri Lanka in the dock.  

Contrary to the presumably genuine assertion of for instance the British High Commission representative in Colombo, that this was simply to ensure decent treatment for the displaced, the British Foreign Minister was announcing, doubtless as part of his election campaign, that the Western initiative was designed to ensure accountability for war crimes. This approach was encouraged by Ms Arbour’s successor as UN Human Rights Commissioner, and it is important that Sri Lanka seek explanations for this insidious uniformity of interest, given too the pronouncement of the most senior Sri Lankan working for the UN that the vote favouring us in the Human Rights Council meant total disaster.  

  

We need then to continue vigilant about the actions and motives of those who engage in insidious and inaccurate criticism of our forces. Their sudden affection for the former army commander serves only to confirm that their agenda was political rather than moral. Whilst we pursue equity and justice for all, we must also ensure that we monitor those who sought for so long to prevent us dealing firmly with terrorism, who did nothing to moderate the excesses of the LTTE but continued to ignore the wishes (and the suffering) of the vast majority of the Sri Lankan people, Sinhala and Tamil and Muslim, in their pursuit of personal goals. 


[i] Release regarding the excesses of Human Rights Watch

 

Bring back the Clowns – Human Rights Watch returns to the Ring

February 25 2009 

(Reproduced in The Best of British Bluff, International Book House, 2009) 

Human Rights Watch has once again dropped a beautifully timed cluster bomb on Sri Lanka.  Often these explosives coincide with the sessions of the Human Rights Council in Geneva, and this year is no exception, though we can also detect a tendency to try to prevent the Sri Lankan forces from dealing conclusively with a terrorist threat. 

This practice commenced in 2007 when, following the quick and effective operation to liberate the East from the Tigers, HRW delivered a diatribe in which it accused the government of conducting a Dirty War (a phrase successfully calculated to hit the headlines), of indiscriminately attacking civilians, of ruthlessly displacing people and also of forcibly resettling them. 

We gave the lie to all these allegations, using evidence gathered not only from the actual Human Rights report (which recorded for instance only one instance of allegations of civilian deaths, which HRW itself granted occurred in a place where the LTTE was present and where bunkers had been dug), but also from the UNHCR certification that ‘the returns are voluntary and in line with international protection standards’.  HRW failed to respond to our letters, sent direct to their plenipotentiaries in the capitals, as well as to the delightful Ms Zulueta, who could not respond to our queries at the meeting to which we had invited her, as she was new to the job. 

Her promise to look into the matter and get back to us seems to have been yet another of those placatory falsehoods that HRW uses when in a tight corner, as when they cancelled the meeting in the British House of Commons after they heard that I would be there to respond to their allegations. I will not be so presumptuous as to assert that there was a causal connection, even though the representative of the High Commission who had secured my attendance after the Foreign Minister requested it thought the cancellation was not entirely a coincidence. 

Despite running away then, HRW like the Tigers came back to fight another day, and renewed its charges, without any evidence, of ‘indiscriminate bombing and shelling’.  We were able to show that this was arrant nonsense since, even adding up all the allegations on Tamilnet, obviously not the most objective of sources, the figure cited of civilian casualties was not more than a hundred in the last six months of last year. 

Perhaps as a result of our citation of this fact, there have been many more allegations of civilian deaths this year, and the Tamilnet allegations amount to 2000 over January and February. The figure HRW cites is exactly that and, though they claim they have independent sources, it would require excessive credulity to believe that the two sets of figures were entirely unconnected. 

HRW sadly seems to believe that, apart from the LTTE, they are the only people concerned about these civilians. They forget that these are Sri Lankan citizens, who are the responsibility of the Sri Lankan government, which has fed and educated them over several years, and kept them healthy with medical services provided with a dedication that all international observers have commended. 

At the Peace Secretariat we monitor all allegations of civilian casualties, and seek explanations of what happened. The reasons for allegations may not always be clear, but we have had the utmost cooperation, for instance receiving a detailed explanation of the allegations of civilian deaths in just the one air raid in November out of a total of forty that took place in that month. We were told what the target was and, while there could be no guarantee that there had been no collateral damage, it was explained that this was because the LTTE sometimes forced civilians into close proximity to military installations. Certainly the inconsistencies in the Tamilnet account of the incident, bombs from planes turning over a couple of days into cluster bombs made in Russia dropped from Russian planes shows very clearly how cleverly the LTTE tries to manipulate the Western opinion whose indulgence it craves. 

After we had published our detailed analysis of figures last December, the LTTE evidently decided that it had to make more dramatic allegations. So the numbers have increased by leaps and bounds, to be dutifully taken up by HRW.  They also evidently decided that, since the Sri Lankan forces were careful about such casualties, they had better contribute to this themselves. Thus we see that, on the day, January 26th, on which Tamilnet claimed the largest amount of civilians casualties, 300, the UN finally decided that the firing had come from the LTTE.  Just in case this sounds incredible – and a reporter I was explaining it to was actually convinced only when he saw the message, with sign off (from the UN Resident Coordinator Neil Buhne) that had been forwarded to me on my telephone – the exact words used were ‘For info we believe that firing this morning most likely was from an LTTE position’.
 

Earlier in the day the UN had wondered whether the firing had been by the Sri Lankan army. But we have got used to this. When it is clear the LTTE has fired, the claim is that nothing can be said for certain. When nothing can be said for certain, the claim is that the Sri Lankan forces did it. Fortunately, as clear evidence mounts that the LTTE is not only quite happy for civilians to die, but actually unashamedly promotes this through suicide bombing and grenades and direct firing aimed at those trying to get away, that particular canard is being slowly but surely laid to rest. 

Hence the second canard that was first assiduously pushed by HRW, which introduced the term internment camps to describe the centres in which civilians who escape from the LTTE into government controlled territory are kept. HRW started this several months ago, in an obvious attempt to justify the LTTE claim that no one really wanted to get away, and thousands of people were actually delighted to be herded into ever smaller spaces under LTTE control. 

Surely HRW must realise that this is not a question of internment, which is what the British did to the Boers, the Germans to the Jews, the Americans to the Japanese (though this last without the starvation and death the British and Germans had inflicted, as the London Times so graphically described it), collecting people from their homes and herding them together against their will. 

We are talking here of people who have of their own volition, and with incredible courage, got away from the LTTE. But we also know that amongst them there could be suicide bombers and snipers so, as in the case of all refugees, there needs to be checking and careful attention to security requirements. These after all are our people, and as we have seen the bombs are aimed at civilians too. We will not take the chance of further mayhem, but meanwhile we will ensure that, subject to security needs, these are people will have all comforts possible, not only the basics that are the norm by international standards, but even more – so much so that the UN has told us that they cannot provide funding for conditions that are better than what they are mandated to provide. 

The latest Human Rights Watch is replete with insinuations that Orwell’s Ministry of Truth could have studied to refine its Doublespeak. The displaced persons who ‘escape to what they hope is safety’ are ‘instead put in internment centres masquerading as “welfare villages”‘. That ‘instead’, aided and abetted by the HRW masquerade, does yeoman service for the LTTE as well as HRW, since it implies that the people might as well stay in Mullaitivu. However, in spite of HRW assiduously making such a point for months now, 35,000 of the displaced finally managed to make their way to safety, in spite too of the LTTE even murdering some to try to stop this. 

HRW claims that the government is ‘secretly taking away apparent LTTE suspects to arbitrary detention or possible enforced disappearances’. This too is arrant nonsense, based as it is on what Tamilnet is claiming. Again the use of doublespeak – ‘apparent .. suspects’ and ‘secretly…possible enforced disappearances’ – is designed to denigrate a perfectly decent procedure whereby, even of those who confess to being cadres, only a few have been committed formally to rehabilitation centres, the others being allowed to stay with their families in the welfare villages. This may not be entirely wise but it is the humane thing to do, since doubtless many of these have been forcibly conscripted – but it also reinforces the need for constant vigilance, since the chances are that one of them may be a sleeper waiting to commit mayhem. The majority should not suffer because of worries about one but, if that one succeeds, it will be one disaster and many deaths too many. 

Human Rights Watch describes a visit to a hospital, without explaining who had made the visit, and whether it was another case of the false pretences under which it had produced its previous report. Not unsurprisingly, where Human Rights Watch can see only problems, a lack of materials such as sheets and a paucity of personnel, more responsible international observers such as the ICRC and the UN have remarked on the dedication of those who are working and the quality of the care bestowed under difficult circumstances. HRW, which was conspicuously silent last March, when other Human Rights organizations issued a joint statement on an earlier incursion into Gaza, is obviously incapable of giving credit to a country which is so dedicated, despite limited resources, to looking after its own. 

The care taken of these patients gives the lie to the HRW assertion that the government has claimed that those who were trapped in the war zone ‘can be presumed to be siding with the LTTE and treated as combatants’. What prompted this perverse interpretation should be examined in detail, but it must be noted that the government has continued to provide food for these people with the assistance of the ICRC, and to get them away for required medical treatment, prompting a recent acknowledgment by the ICRC, that it ‘is supporting the Ministry of Health in Trincomalee district as it provides care for this exceptional influx of patients’. 

But the HRW technique is to ignore everything positive that those who actually work in the Vanni say, and instead assert abstract principles that go against the policies and practices of a government providing and coordinating more humanitarian assistance than any other country in such a conflict situation. So HRW talks of government efforts being insufficient, but it ignores the fact that food was supplied throughout in massive quantities, so that even the Americans have now realized that the LTTE used to help themselves liberally to what the UN took in.  Significantly, though HRW talked constantly, in the days in which the LTTE was herding people along with them, of impending epidemics, it has not acknowledged the sterling work of the Ministry of Health in preventing this, through the dedication of its personnel and the constant supply of drugs. 

Whilst the release is replete with false and malicious assertions about the Sri Lankan government and forces, HRW masks its dependence on Tiger propaganda for such claims by expressing the usual reservations about the Tigers too. But these refer to diabolical actions that are well known, and ignore the more recent excesses of the Tigers in deliberately targeting civilians and humanitarian workers such as the nun who is now recovering in a government hospital from LTTE shooting. 

Of the fourteen paragraphs in the release, eight are categorical condemnations of the government, three blame both ‘sides’ and three criticise the Tigers. The release is headlined ‘Army Shells and Detains Displaced Persons, Tamil Tigers Prevent Their flight’, a use of verbs that Orwell would have relished, since the army is presented as actively wicked, the Tigers only passively so. The first para of the release, which HRW is too skilful not to know is the most important one, reinforces this vituperation against now not just the army but the government, in saying that it ‘should immediately cease its indiscriminate artillery attacks on civilians in the northern Vanni region and its policy of detaining displaced persons in internment camps’. 

The only silver lining in this cloud is that HRW now seems to have realised that the ‘indiscriminate bombing’ it alleged in May is simply untrue. But, since it continues with its witch hunt with nary an apology for its errors, we can only assume that it will continue to use every trick in the book, including manipulation of words and repetition of figures parallel to those on LTTE websites, to denigrate a government that is on the verge of destroying one of the most powerful terrorist movements in the world, while providing unparalleled care for the civilians held hostage for so long by that movement. 

[ii] Extract from a release regarding civilian casualties

The Australasian Federation of Tamil Associations (AFTA), which describes itself as the peak body representing the Tamil Diaspora living in Australia and New Zealand, has expressed deep concern over five Tamil doctors recanting the statistics they were ‘dispatching to the outside world during the last stages of the war.’ 

The AFTA pronouncement, in throwing doubt on the statements of the doctors now made in public, privileges earlier reports of what they said when under the control of the LTTE. As to these, even the London Times, which has been consistently critical of the Sri Lankan government, said ‘It would be surprising if the Tigers, who were no slouches when it came to the manipulation of the media, had not attempted to modify the doctors’ testimonies’. 

AFTA may not accept this. However, in accepting as gospel figures attributed to these gentlemen when they were under the control of the Tigers, AFTA has ignored logic as well as clear evidence. And to shore up their argument they cite me as well, but instead of quoting me direct they rely on a British newspaper report. 

They assert that, in an interview with the Guardian, I said that I ‘would estimate that the civilian death toll from the last stages of the war with the Tamil Tigers as 3,000 to 5,000’. They go on to claim that ‘Therefore the doctors’ statements are in contradiction to the accepted casualty figures of the government itself.’ 

This is nonsense. My estimate to the Guardian was of total deaths during the war, and was in line with what I had written in an earlier press release I had shared with them, which noted that, when TamilNet and others cited figures of casualties, there were three important questions that had to be asked, viz 

First, are the figures of dead and injured accurate? 

Second, are they all attributable to the Sri Lankan forces, or might some of them at least have been inflicted by the LTTE? 

Third, are all those who died or were injured civilians? 

Whilst we cannot provide definite answers to any of these questions, we can certainly dismiss outrageous claims through logic. Sadly AFTA blindly repeats the lunatic Times assertion of 20,000 deaths, even though the Times has used three different arguments to justify this figure, each more ridiculous than the last. The latest is that they made an estimate of beach graves, whereas earlier they had cited 20,000 for the entire period from January on, when the fighting was taking place far from the beach. Before that they claimed they worked on the basis of bodies they were told were brought in to various centres, but they multiplied these by about five to get the figure they wanted. 

My own estimate was based on the figures of the ICRC for those they had brought away from the conflict zone to Sri Lankan hospitals. AFTA claims the ICRC ‘evacuated almost 14,000 wounded or sick patients and accompanying caregivers’ but fails to note that fewer than 6000 of these were wounded (and that includes some sick too). Since all claims with regard to the conflict, including those of TamilNet, never estimated the number of dead at more than half the wounded, that led to the conclusion that the total number of deaths would have been under 3000. This was the figure I first mentioned to the Guardian, in line with what I had written. They asked however for an estimated complete death count and, in including estimates for the final pitched battles the Tigers fought, outside the no fire zone before it was completely surrounded as well as inside at the end, I said it could have been 5000 at the outside. 

That was a total which included combatants as well as civilians, almost wholly hard core combatants for the pitched battles. ICRC figures did not distinguish between wounded combatants and wounded civilians, and of course the Sri Lankan health service asked no questions but faithfully served all those brought into its care. Since obviously there would have been wounded combatants amongst the fewer than 6000 taken for care, any estimate of dead would also have included combatants. Though many combatants would have been young innocents forced to fight by the LTTE, unfortunately, if they were pushed into the front lines with guns, they had to be treated as combatants not civilians. 

Given the techniques used by the LTTE it is quite likely that many of those killed were combatants of one sort or another, while we know from the testimony of many who tried to escape that the LTTE was ruthless about killing civilians. In this light the testimony of the doctors now, that ‘only up to 750 civilians were killed between January and mid-May in the final days of the war’ (whatever that timeline means), is quite plausible. The rest of the dead could very well have been combatants forced to fight by the LTTE.

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