President Releases LLRC Report To Parliament, The UN And Public
President Mahinda Rajapaksa returned to the country after taking part in a two-day conference in Bali, Indonesia a happy man.
The President attended the fourth Democratic Congress in Indonesia and returned via Singapore. He was accompanied by Prof G. L. Peiris, Presidential Secretary Lalith Weeratunge, Central Bank Governor Ajit Nivard Cabraal, MP Sajin Vass Gunawardene and Presidential Chief of Staff Gamini Senerath. Whilst the rest returned MP Sajin Vass Gunawardene and Mahinda hopped across to Singapore. The Singapore leg was for the President to follow up on a routine medical test.
Duminda has a visitor
The medical test was to be done at the Mount Elizabeth Hospital and the President was to be surprised when he was allocated a room right next door to a known figure who was featured prominently in the media during the last couple of months. Member of Parliament Duminda Silva was injured in a shoot-out during the last Local Government Elections where Bharatha Lakshman Premachandra a Presidential Adviser was shot dead together with three others. Duminda Silva was airlifted to Singapore amidst great security and secrecy for further medical treatment and since then he has remained largely under the radar. Many conflicting reports and theories were forwarded by political observers as to the condition of Duminda Silva but medical personalities and family members remain tight-lipped.
President Rajapaksa was pleasantly surprised to find out that the UPFA Colombo District MP Duminda Silva was making rapid progress towards recovery. He had even remarked that medical reports show that Duminda had received only minor injuries to a small section of the brain which is not required for normal functions to be affected. That news had seemingly reassured President Rajapaksa a great deal. But returning to the island Mahinda was to face not such good news.
Cardinal Ranjith’s ire
The Cardinal of the Catholic Church in Sri Lanka Rt. Rev. Malcolm Ranjith considered to be a Rajapaksa admirer was visibly annoyed when he made a public pronouncement. The Cardinal had decided to boycott all government functions until the Nun who was arrested at a Children’s Home received redress from unfair treatment meted out by the Child Protection Authority and the Police. The Attorney General withdrew charges and the government had to tender an apology to the Catholic Church. This action showed that to get redress from unfair treatment meted out by the government or its agent’s — innovation is in order. The Catholic Church wields considerable power along the coastal belts of Sri Lanka and the voters in these regions are easily influenced by it. It has traditionally been the United National Party that has gained from the catholic vote. However, during the last few elections be it local or Parliament the SLFP-led coalition party has been able to break this stranglehold quite effectively.
The LLRC Report
The final LLRC Report was released to the Parliament and the public on Friday the 16th December 2011. Some excerpts are reproduced below without comment.
Among the conclusions of the Commission is that “On consideration of all facts and circumstances before it, the Commission concludes that the Security Forces had not deliberately targeted the civilians in the NFZs, although civilian casualties had in fact occurred in the cause of crossfire. Further, the LTTE targeting and killing of civilians who attempted to flee the conflict into safe areas, the threat posed by landmines and resultant death and injuries to civilians, and the perils inherent in crossing the Nanthi Kadal Lagoon, had all collectively contributed to civilian casualties. It would also be reasonable to conclude that there appears to have been a bona fide expectation that and attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack involved.”
“Having reached the above conclusions, it is also incumbent on the Commission to consider the question, while there was no deliberate targeting of civilians by the Security Forces, whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principal of Proportionality. Given the complexity of the situation that presented itself as described above, the Commission after most careful consideration of all aspects, is of the view that the Security Forces were confronted with an unprecedented situation when no other choice was possible and all “feasible precautions” that were practicable in the circumstances had been taken,” it further said.
CHAPTER 2 – CEASEFIRE AGREEMENT …………………………………………………………………………….. 11
Observations of the Commission …………………………………………………………………………………………………………. 22
2.27 In considering certain other factors that had a bearing on the CFA, it would be pertinent to refer to its economic dimensions which were brought to the attention of the Commission. It was pointed out that an important rationale of any ceasefire agreement is to generate an economic dividend i.e. to provide the people more opportunities, and more trickle down benefits from the market economy.
2.28 It was also stated that the Government of the day, proceeded on the assumption that an economic dividend would provide support for the Government and to the peace process from the Southern electorate in Sri Lanka. This was premised on the fact that the peace package, and the accompanying aid flow would give rise to an economic revival which would improve the living standards in the South. Furthermore, it was stated that the people in the North and the East would also be the beneficiaries of the projected
2.61 Apart from the reasons pointed out above, the Commission is of the view that the failure of the CFA is mainly due to the disinclination of the LTTE to terminate the conflict and enter the political process.
Security Forces Casualties and LTTE Casualties
3.20 According to the material placed before the Commission, from July 2006 to May 2009, the Security Forces had lost 5,556 personnel in action, 28,414 were wounded and 169 were missing in action. The LTTE had lost 22,247 cadres of which 11,812 had been identified by name.
4.40 The Commander of the Air Force briefed the Commission on the targeting procedure adopted by the Air Force. He stated that the LTTE targets were observed for at least one week before initiating action. He explained the procedure as follows: “DMI (Director, Military Intelligence) confirmation, revalidation, day recce, night recce. We match our weapons to the target and then my approval is obtained, the air crew is briefed and then engagement under observation of the UAV or any other surveillance asset that we decide to use …” He also went on to state “sometimes some of the targets – we know very well that there are certain terrorist leaders hiding here; there is a training camp there- but we had to stop operations, and wait without taking those targets because there were civilian habitations close to these targets……” He explained that the pilots were well trained to identify and take on pin point targets.
Establishment of No Fire Zones (NFZs)/LTTE Strategy of using Human Shields
4.42 Material was placed before the Commission on the establishment of NFZs during the final phase of the conflict. This assumes special importance in relation to the obligation on the State to provide maximum possible safety to civilians in accordance with the IHL principles. It was explained that this step was taken by the Government after discussion with the Security Council, with a view to providing such protection to civilians. Accordingly, certain areas had been earmarked as NFZs so that civilians could come into those safe areas and to enable the Security Forces to conduct their operations, respecting such Zones.
4.55 A civilian who had been in Suhandirapuram until January 2009 stated that on one occasion they had heard shelling and when they had come out of their bunkers they had seen the bodies of about 8 or 9 people lying on the ground, so they had then decided to move from Suhandirapuram to Thevipuram.
4.56 Another civilian68 explained that what really happened was that although the Government had declared that Suhandirapuram was a safe area it had in fact been dangerous because shells were falling from both sides. The LTTE had asked them to move out of the area and at the same time the Government had made an announcement to surrender to the armed forces. He went on to state that a part of the ‘population’ was able to surrender to the Army at Suhandirapuram and Udayarkattu while the rest of the people had to move with the LTTE wherever the LTTE wanted them to move. While they were surrendering he stated that there had been a bomb blast and he had heard that 10 or 12 Army personnel had been injured or died and that the public were also affected.
4.72 A former senior LTTE cadre who had crossed to Army lines on 20th April 2009 at Puthumatthalan, with several thousands of people, describing the events leading up to the evacuation, stated that as the Army got close to Puthumatthalan, he was behind the Puthumatthalan Hospital, there was heavy shelling from the Army on the night of April 19th and early hours of 20th April. By around mid morning, he said the shelling had ceased and the Army had captured the area and the LTTE had retreated and they had been able to cross to Army lines across an open field. He also stated that the Army shelling was to neutralize the gun positions of the LTTE which were located behind the civilians and he stated that the civilians were aware that the shelling by the Army was for the purpose of capturing the area and releasing them. He stated that while crossing the field he saw several dismembered dead bodies. He also stated that at this time one could not readily identify LTTE cadres from civilians as LTTE cadres were fighting in civil clothes.
Channel 4 Video
The “Channel 4 Video” which has generated much discussion and controversy was also considered by the Commission.
4.363 Although no person appearing before the Commission referred to the Channel 4 Video or to the substance of allegations contained therein, the Commission nevertheless considered the material relevant to its Warrant, given the gruesome nature of the images and the fact that the video is claimed to contain scenes of alleged summary executions of persons in captivity and of potential sexual abuse during the last stages of the conflict.
The Commission finds that there are troubling technical and forensic questions of a serious nature that cast significant doubts about the authenticity of this video and the credibility and reliability of its content. It is also observed that trauma evident on the bodies of victims does not appear to be consistent with the type of weapon used and the close range at which the firing is seen to have taken place. The Commission wishes also to note however that someone had recorded or otherwise produced these images and the video and made it available to the Broadcaster concerned. One expert enlisted by the Commission observes that “the segments of the footage appear to have been recorded in a natural environment”400 and that some of the bodies of alleged victims show ‘no artifacts of manipulation’ either physically or by digital means401.
Chapter 5 – Human Rights Recommendations
6.104 (1) Any citizen of Sri Lanka has the inalienable right to acquire land in any part of the country, in accordance with its laws and regulations, and reside in any area of his/her choice without any restrictions or limitations imposed in any manner whatsoever. The land policy of the Government should not be an instrument to effect unnatural changes in the demographic pattern of a given province. In the case of inter provincial irrigation or land settlement schemes, distribution of state land should continue to be as provided for in the Constitution of Sri Lanka.
(2) The Commission appreciates the Government’s land policy concerning return and resettlement of displaced persons and the associated programme proposed in July 2011, titled ‘Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces’ designed to resolve problems relating to land documentation and disputes in ownership and user-rights of the displaced persons. The Commission notes that the programme is innovative, and seeks to utilize where appropriate, mechanisms that are less bureaucratic mainly informal and designed to release the vast majority of the displaced persons from having to use the formal court system which would be complex, time-consuming and expensive for litigants.
The Commission would however like to strongly recommend to the authorities concerned to make it quite clear and assure the people, through an appropriate publicity effort, that this programme and associated mechanisms are not a substitute for recourse to the Courts of Law where people are in possession of valid legal proof of their claim to the land/s in question and that it seeks to make available land to all returning IDPs as expeditiously as possible, especially to those who do not have documentary proof due to conflict related reasons. This is necessary to allay the understandable concerns of the people about the paucity of information on the objectives of this programme.
The Commission offers the following recommendations to ensure implementation effectiveness and outcomes.
(2.1) The Commission recommends that an apolitical approach be adopted in the implementation of the programme, combined with a strong political will to ensure that it is completed as planned and any problems and constraints that arise are resolved effectively and promptly. The Commission recommends that the Government provides the needed human and financial resources for the successful implementation of the programme.
(2.2) A strong administrative will on the part of the civil administration beginning at the highest levels of officialdom to ensure impartiality and justice in implementation will also be critical.101 The Commission recommends effective supervision of civil administration officers tasked with the implementation of the programme, by the respective Government Agents, and the monitoring of implementation quality by the Land Commissioner General at the national level to ensure impartiality and transparency.
(2.3) The Commission believes that the success of the programme would substantially depend on a clear and unambiguous understanding of the principles, the purpose, the objectives, and the methodology of the programme by political leaders, the implementers, in this case the public officers and community leaders who would be the members of the various implementing Committees, and the beneficiaries, i.e. the heads of the households of the returned/resettled displaced persons.
In this regard the Commission wishes to make the following observations and recommendations:
Although in the main done with good intentions, the public information so far disseminated on the proposed new programme has resulted in insufficient clarity regarding the purpose and the methodology of the proposed programme.
The following factors may have contributed to this state of affairs:
a. Un-researched or inadequately researched information on the new programme disseminated by the media as well as various political personalities; and,
b. Inadvertent mix up of the content and the methods of the proposed new programme with some other land titling and user right consolidation programmes currently under implementation by the Ministry of Lands. Although the recent advertisement on the proposed new programme inserted by the Land Commissioner General in all three languages in the print media, provided some coherence, it may not be adequate to remove mixed messages and sometimes confusing information coming through the media, the web pages, and political pronouncements.
(2.3.1) The Commission recommends that a well planned media seminar on the proposed new programme could be organized by the Land Commissioner General’s Department to enable the media to project an accurate and clear view of the new programme, devoid of political posturing.
(2.3.2) The Commission recommends that the Land Commissioner Generals Department and the respective Governments Agents conduct well designed training programmes for all officers and community leaders selected for various committees. The training should be based on a short and simple but written training manual in order to ensure that all training is identical and similar messages are delivered through the training activities in all divisions and districts.
Short case studies of various possible scenarios on problems that are anticipated in the field can be developed with role plays or similar training methods used to simulate problem solving. This would enhance the skills and self confidence of the officers and community leaders in coming to terms with real problems in the field. A specialized training Institute such as the Sri Lanka Institute of Development Administration could be commissioned to partner the Land Commissioner General and the Government Agents in organizing the training, as they have expertise and experience in training public officers in a variety of disciplines. These would incur additional expenditure as well as time, but would definitely improve the effectiveness and the outcome of the programme.
(2.3.3) The Commission also recommends the launching of a well-designed, settler-centered communication campaign primarily in simple Tamil language, as well as in Sinhala language, incorporating information on what specific action the displaced persons should take with regard to different services provided by the programme. The communication campaign design should take into consideration clients’ knowledge and understanding levels, as well as their existing communication networks; and should include ‘how to do’ and ‘what to do’ information in clear and simple language. This would help displaced persons to come forward to benefit from the programme with confidence.
(2.4) The programme envisages the nomination of the area civil coordination officer, who is a Security Forces officer, into the two committees proposed to be established to review land documentation and user right issues. The Commission notes that the two committees will be chaired by senior civil administration officers, and that the majority of the members are drawn from the civil administration.
The Commission, as a policy, strongly advocates and recommends to the Government that the Security Forces should disengage itself from all civil administration related activities as rapidly as possible. With regard to the participation of Security Forces officers in the proposed land restitution process, the Commission being cognizant of the fact that, that some lands are currently being utilized for security purposes102 recommends that such participation be confined to and used optimally to expedite releasing maximum extents of such land, while taking account of security considerations, but according primacy to the policy objective of allowing people to settle in areas convenient to them.
(2.5) The Commission notes that the new programme has introduced a measure of community consultation through the Observation Committees linked to the First (Investigation) Committee and the Second (Investigation) Committee. The Observation Committees constituting community members are expected to monitor the investigation decision process and provide locality specific information to the two committees as necessary. While appreciating the opportunity provided for some measure of community consultations, the Commission recommends that the First Committees in each of the District Secretariat areas organize and hold a well publicized ‘Community Consultation Meeting’ prior to the launch of the First Committee investigation process. This would provide an opportunity for the returned /resettled communities in the respective areas to air their problems and constraints, as well as make useful and constructive suggestions to improve the investigation process. The First Committee could also use this forum to explain to the community how the investigations regarding land problems would be conducted, and what specific action and procedures each category of prospective applicants should adopt to facilitate reasonably quick resolution of their problems. This will give a sense of confidence to the people that they were also listened to. The First Committee will also get a preview of what type of problems to expect in their respective areas. The Commission recommends that the planning and conduct of such Community Consultation Meetings be based on the experiences of the traditional Land Kachcheri system.
2.5.1. The Commission also recommends that the Land Commissioner General establishes a mechanism to rapidly consider the constructive suggestions made through the ‘Community Consultation Meetings’, and to consider using these suggestions as appropriate to further improve the field level methodology of the programme.
(2.6) The Commission recommends that arrangements be made to strengthen the human resource teams at all levels of implementation, through temporary secondment, and / or contracting qualified and skilled retired staff, and assignment of additional administrative service staff to the Land Commissioner General’s Department through new recruitment and / or secondment for a stipulated period of time to support effective and efficient implementation of the programme.
(2.7) The Commission realizes that implementation of some of the aforementioned recommendations would require additional financial allocations and lead-time.
The Commission is of view that the proposed additional activities would, nevertheless,
strengthen programme implementation, and increase the benefits to the community.
(2.8) The Commission notes that the new programme also envisages the granting of land to genuine landless families in the North and the East. The Commission recommends that all families who have been secondary occupants, whether at the behest of LTTE or not, be given land, if the lands they are currently in occupation are awarded to the genuine original permit holders on the results of the Investigating Committee decisions. However, the Investigating Committees should clarify, without any doubt, whether the secondary occupiers are genuinely landless, as some unscrupulous persons would use secondary occupation to gain more land in times of transition.
(2.9) The Commission also recommends that strict controls be applied to prevent any alienation of State land other than for IDPs, except where State land is required for other approved purposes, until the proposed programme is implemented. As there is information regarding alienation of State land through spurious deeds, legal provision should be made to enable relevant authorities to investigate and institute legal action in appropriate cases against any public officer, Attorney-at –Law, or Notary Public who commits such illegal acts or any other person aiding and abetting such acts.
(2.10) The Commission believes that international financial assistance geared to supplement national counterpart funding through multilateral or bilateral development partners could help in the implementation of the programme. Such an arrangement could prevent any possible slowing down of programme implementation, as competing demands for the development of the Northern and Eastern Provinces could negatively affect financial disbursements to the land sector. The Commission recommends that the Government actively seeks the cooperation of a development partner to support the programme, based on the understanding that the Government will be responsible for programme policy, decision making, and implementation.
(3) The Commission appreciates the fact that the two HSZs in Palaly and Trincomalee-Sampur respectively have been reduced and that an estimated 21,491 persons have been returned to their own land. However, in the two reduced HSZ areas an estimated 26,755 persons are still displaced. The Commission recommends that the two existing HSZs in Palaly and Trincomalee-Sampur, as well as small extents of private land currently utilized for security purposes in the districts be subject to review with a view to releasing more land while keeping national security needs in perspective. The Commission also recommends that all families who have lost lands and or houses due to formal HSZs or to other informal or ad hoc security related needs be given alternate lands and or compensation be paid according to applicable laws. The Commission further recommends that provision of alternate lands and or payment of compensation be completed within a specific time frame.
(4) The Commission, recommends that the Government with the assistance of the development partners extend livelihood assistance to ‘new IDP’ families as needed, on an area by area basis for a longer period of time than planned, to ensure family sustenance.
The Commission is pleased to note that in some areas of the Northern Province, the livelihood support initiative has been extended from the original period of 6 months to 9 months. The Commission recommends further extension of livelihood assistance including schemes for providing micro-credit for peasant farmer groups, tractors for farmer cooperatives, as well as extension advise and other support such as for introducing possible pilot projects on application of dry-farming methods for cultivation of upland crops in un-irrigated areas in the North.106 107 The Commission notes (according to data submitted by the Government Agents in the Northern districts) that a substantial proportion of irrigation tanks in the Northern Province are now in operation. The Commission recommends that the current momentum of renovating irrigation tanks in the Province be continued till all the remaining small irrigation tanks are brought back into operation, possibly with UN System assistance.
(6) The Commission recommends that the land issues of Muslim families who were forcibly ejected by the LTTE from their agricultural land in the Eastern Province, and whose living conditions have drastically deteriorated as a result, be effectively and expeditiously resolved, as very little progress has been made in the East, especially in the Batticaloa district, even though about 04 years have elapsed since the end of the conflict in the East.
(7) The Commission notes that the available official data with regard to the eviction of Sinhalese families from the Jaffna district appears to be inaccurate and recommends that this aspect be reviewed in a dispassionate and low key but methodical manner without arousing any communal passion or tensions.
The Maha Iluppallama Agricultural Research Institute near Anuradhapura has accumulated research experience and appropriate upland crop varieties developed for cultivation under dry-farming methods using low level rains in the Yala cultivation season. If found appropriate to Kilinochchi, Mannar, Mullaitivu, this could be an area of cooperation between the Northern Province and the Northern Central Province.
The Commission also recommends that the Sinhalese families who were evicted from Jaffna and the rest of the Northern Province, and who volunteer to go back, be returned to own land or resettled in alternate land as expeditiously as possible, as the progress in this regard has been unsatisfactory.
(8) The Commission notes that with respect to Muslim families evicted from Jaffna and the Northern Province, good progress has been made in return and resettlement as per information provided by the Government Agents of Jaffna, Mannar, and Mullaittivu.
The Commission recommends that the return and resettlement of the remaining Muslim families who volunteer to return to Jaffna and the Northern Province be expedited.
(9) The Commission notes with regret that the land issues and livelihood issues of some families living in the former Threatened Villages, especially families whose breadwinners were killed in LTTE attacks or were forced to be ‘night-displaced’111 for family security, remains largely forgotten and unaddressed. Up to the time of compiling the Report, the Commission did not receive adequate information on the current situation of these families, a considerable proportion of who are presumed to be headed by females, grandparents, older siblings, and single fathers. The Commission recommends that a focal agency be designated to study the special nature of problems and displacement of families in former Threatened Villages, with a view to designing a special mechanism to resolve their current problems expeditiously, as they lack the political patronage or power to influence the existing governmental administrative machinery as well as the evolving national post-conflict development agenda.
(10) The Commission is of view that in order to prevent legitimizing of forced eviction and secondary occupation of private lands in the North and the East, the law pertaining to prescription should be amended in its application to land transfers/occupation effected during the period of conflict.
The report is exhaustive and this column will discuss this at length in the coming weeks.
President Rajapaksa will no doubt now await the response of the UNHRC to this report in due course. In the meanwhile the vegetable traders and distributors were up in arms against a move by the government to enforce the distribution of produce in plastic containers instead of gunny bags to minimize loss in transit. Clearly the distributors and the farmers are to gain by this exercise but protest they did. The resultant chaos saw the government defer its decision by a month. Interesting times lie ahead for the government and the opposition. President Rajapaksa will hold his breath for a response from the UN whilst Ranil Wickremesinghe on a seesaw of blunder and bloomers will be equally anxious of how he will be received by his colleagues in the party.