Unfortunately dealing with this is complicated by the fact that there are in fact three different issues involved. Two of them have to do with the conflict period. The third issue is that of abductions and killings that had nothing to do with the war.
With regard to the conflict, we have to deal with two extreme positions which feed off each other. One is that government was justified in whatever it did, because we were dealing with ruthless terrorists and therefore the ordinary laws could not be respected. The opposite is that government used sledgehammers to crack nuts, and was overwhelmingly guilty of murder which include deliberate targeting of civilians and a range of paramilitary activities.
The truth lies in between, but government complicated matters by looking on the problem as part of a propaganda war, rather than one to be resolved by confidence building measures. So it lost the chance to make it clear that it fought a war that was essential, given the suffering the LTTE had caused to the whole country for so long. It also failed to show that the forces by and large respected International Humanitarian Law.
Far too late it started an inquiry process, and got the services of international experts. Earlier, instead of responding to the excessive attacks of the Darusman Report, it tried to take political advantage, a strategy that came a cropper at the last Presidential election.
The problem has now been transferred to this government, but sadly that too is not relying on truth, which is the best way forward. Thus it seems ambiguous about the work done by Sir Desmond de Silva and his team, even though it has in fact renewed his contract. It should therefore make use of what he has done to launch a robust defence of the way in which the war was conducted.
But this will only be credible if it also acknowledges that aberrations did occur, and deals with them through inquiry and a judicial process if necessary. In this context the Lessons Learnt and Reconciliation Commission showed the way, in robustly defending the forces for what they did during the war, based on the evidence before it, but granting that there was need of investigation into the treatment of surrendees.
Instead of having a credible independent investigation, government entrusted the matter to the forces, which seems to have swept the matter under the carpet. This is a great pity, because government already had a mechanism at hand, in the form of the Udalagama Commission. That had had international observers, and though some of the youngsters who usurped the authority of the Eminent Persons themselves behaved badly, by and large the responsible people who observed the Commission in action – including a representative of the French judiciary – grew to respect the judicial process we had put in place.
But government then scored an own goal in suppressing the findings of that Commision. Sadly this government seemed to have forgotten the useful tool it had at hand, though the matter has now been raised at the Government Parliamentary Group and the Prime Minister agreed to look into the matter. I have also put the report on the agenda of the next Consultative Committee of the Ministry of Defence, and I hope those now in charge will read that report and register how it makes clear that this country is perfectly capable of conducting its own independent inquiry.
We should then, having released that report, and taken action on its findings, institute a similar inquiry with regard to what the LLRC has highlighted. But we should also do the same with regard to what even the last UN Human Rights Council Resolution suggests is of at least equal importance, namely the excesses that have nothing to do with the war. Government owes it to the people of this country to establish what happened to Lasantha Wickramatunga, to Pattani Razak, to Pradeep Ekneligoda and to the FSP activitists who disappeared while in Jaffna. And perhaps we should also look back at earlier incidents such as the deaths of Kumar Ponnambalam and even Richard de Zoysa.
All this has to do with what might necessitate retributive justice. But perhaps even more important are the emotions roused by deprivation for which no one can be blamed. That is what the Disappearances Commission is about, and it was a pity that its mandate was confused by introducing a possible War Crimes element. Rather it should work quickly on assuaging grief through establishing what happened as possible – and more importantly engaging in a process of restorative justice.
I have already suggested to the Minister for Democratic Government that his brief is also about the past and that he should look into these areas too. Putting in place systems to deal with such matters will do much to restore confidence in the processes of government. It is in that spirit that I made the following suggestions –
- The LLRC lays down areas as to which it believes further investigation is required, and this should be undertaken promptly. A separate Commission should be appointed for this purpose, with international observers as with the IGEP that functioned for the Udalagama Commission.
- The work of the Disappearances Commission should be expedited, and action taken on its interim reports, which should be published at 3 month intervals.
- Provision should be made for gathering of further information to expand the work of both these Commissions. Information may be sought for this purpose from the ongoing UNHRC investigation.
- The report of the Udalagama Commission should be published and action taken on its findings.
- A Commission similar to the Udalagama Commission should be established to look into incidents of Disappearances in the post-war period, or others that occurred after the Commission was established, including the cases of Pattani Razak, Pradeep Ekneligoda and the FSP activists. Prosecutions should be instituted if sufficient evidence emerges.
- In fairness to the last government, since otherwise it would be assumed that excesses took place only under its watch, a fact finding Commission should be established with regard to incidents such as the killings of Wijedasa Liyanaarachchi, the JVP students in Ratnapura, Richard de Zoysa, those found in the Diyawanna Oya and Kumar Ponnambalam. It should be clear that judicial action will not be taken on such matters, and an amnesty will be given for incidents that occurred more than ten years ago, but government owes it to the people to establish the truth of what happened.
- A Commission should be appointed to investigate the relative impunity with which the LTTE operated, in particular the failure of Sri Lanka and the international community to prevent child conscription, arms acquisition, and the taking and use of hostages in the last stages of the conflict.