Darusman Report: short of wisdom and blatantly tendentious - Godfrey Gunatilleke

The final stages of the war in Puthukuddiyiruppu and the NFZs have to be examined independent of all what went before. The LTTE had deliberately integrated the civilian population into their military effort and turned the NFZs to battlefields. By the mass conscription of civilians for military activity in the NFZ, the building of fortifications with civilian conscripts and the use of all means available for military purposes, the LTTE had effectively blurred the distinction between civilians and combatants. How is intentionality and proportionality of army actions to be judged in such a situation?

This is among the many important questions raised by Dr. Godfrey Gunatilleke, in his 'Analysis and evaluation of the UN Secretary General's (Darusman) Panel of Experts on Accountability in Sri Lanka', a Working Paper submitted for the recent Marga Institute's seminar on 'Accountability, Restorative Justice and Reconciliation: A Review of the Report of the UNSG's Panel of Experts Report.'

Gunatilleke goes on to state: 'The LTTE was refusing to surrender. It was becoming clear that the defeat of the LTTE and the rescue of the hostages would entail heavy human cost - deaths of the LTTE combatants, conscripted civilians, soldiers and non combatant civilians. At this point the army after weighing the options available and their likely consequences had apparently decided that it could not halt the offensive and had to go ahead and put a speedy end to the resistance of the LTTE. It has to be noted that the government would have had to take into account that the LTTE in their desperation might resort to acts of the utmost brutality that might involve deaths of civilians on a massive scale.'

Outspoken views

Godfrey Gunatilleke is correctly considered the doyen of Sri Lanka's intelligentsia. A distinguished civil servant, a literary critic of refinement and substance, and a highly respected personality for his outspoken views on the Sri Lankan polity, Gunatilleke is an outstanding example of minds that guided Sri Lankan civil society, until much of it was swallowed by the funds of foreign powers and narrow-agenda led organizations. With his known independence of thought and penetrative analysis, this evaluation of the Darusman Report is most welcome and important reading; regrettably not readily provided to Sri Lankan readers by the media and those who take pains to give a one-sided view of the bloody battle to defeat the LTTE.

Outlining the main deficiencies in the Panel Report, Gunatilleke states: A wise judge knows that in the imperfect domain of human knowledge there are many versions of the truth and steers himself conscientiously through all these versions, seeking the truth. The outcome of the Panel's Report falls far short of such wisdom.

The conditions in which the Panel was constrained to work and its inability to gain access to vital sources of information render the report practically worthless as an account of the final stages of the war. If this is all that has to be said we might lay aside the report as a harmless exercise but this is certainly not the case. The Panel has to be faulted for very serious deficiencies in the report that could have fallout of a very negative character for the process of accountability both at the global as well as the local level.

International law

Had the Panel kept steadily in view that they were missing the information from the government side and had they examined the full implications of this lacuna, they could have produced a credible report. Had the panel done so they would have had to produce a different report. The tone of their report would have reflected both the humility and the professional integrity that it lacks in its present form. What we would have is a statement to the effect that the panel has been able to gather a great deal of information from sources other than the government concerning allegations of war crimes of both the government and the LTTE which have not been verified and that they have not been able to get the government version which is vitally important for their task.

They would have then had to list the allegations in a neutral objective tone and would have not written the dramatic account of what they thought had actually happened. They would have then proceeded to advice the UNSG regarding the international law applicable and recommended that the UNSG should use his good offices to induce the government to provide a full version of the last stages of the war and strengthen the domestic process of accountability. This of course was far from what was expected from the panel by the constituencies which pressurized for the appointment of the panel after their effort in the UNHRC in May 2009 was thwarted.

Stern verdict

What has been stated above is a somewhat lenient verdict on the report. The verdict would be sterner when we list the flaws in more specific term. There is a selective approach to the gathering of the information with exclusions and omissions which give a blatantly tendentious character to the report. The Panel has set out to prepare a prosecutor brief. Even the evidence before them is not analyzed with an open and impartial mind. For example the Panel had enough information on the LTTE activities in the no fire zone which it chooses to ignore when it concludes that the SLA was deliberately targeting civilians and hospitals.

Some parts of the report reveal a curious pettiness of spirit as when they describe the assistance given by soldiers, using the term soldiers so as to take care not to associate the humanitarian approach with the army as a whole because the soldiers' actions were not consistent with their interpretation. The root of the problems in the report lie in their outrageous interpretation of the government military strategy as designed at the extermination of Tamils without any humanitarian intention or effort at rescuing hostages. With this interpretation the panel puts on the blinkers that distort all their perceptions of the government actions. The report also gives a deliberately truncated view of the government action by excluding what would have provided a different and more positive explanation of these actions. This deficiency is seen in every part of the report that deals with government actions.

On the application of international law Gunatilleke states: The Panel's application of international law to government actions is based on its faulty interpretation of the character and the nature of the war as well as the government strategy and actions. For the panel the war in Sri Lanka was like any other armed conflict.

* The Panel does not ask how a war on a terrorist organization is different from any other armed conflict and what that distinction signifies to the assessment of intentionality and proportionality of government actions.

* It does not ask how a government could or must respond to a hostage situation.

* It does not make any distinction between the army of a democratic state carrying out a legitimate military operation and a terrorist organization whose strategy has been one of terrorism which included massacres of rival Tamil groups, assassinations of leaders, conscription of children, suicide cadres and missions as a regular part of their operation and finally using civilians as human shields and hostages.

Given the Panel interpretation, the Panel positions itself comfortably on what it describes as existing law. It avoids examining the implications that the war on terror has on the existing law. It has not taken the trouble to refer to the available body of scholarly work and practical knowledge relating to the war on terror. The comparable international experience it cites has little in common with the Sri Lankan case to provide any guidance for the process of accountability. Consequently, the panel's painstaking work on the application of international law to war crimes in armed conflicts of a conventional nature has little relevance or value in the Sri Lankan context.

The Panel has shown no capacity to frame the more challenging issues arising out of the unique conditions of the Sri Lankan case. By shutting itself within the framework they have selected, the Panel is unable to make any worthwhile contribution to advancing the process of accountability that takes into account the extreme conditions generated in a war on terrorism. The Panel's final output is, for that reason, sadly disappointing.

Restorative justice

On its attitude to restorative justice that underlines the Government's efforts at reconciliation, Gunatilleke states: The Panel dismisses the government policy of restorative justice without a full understanding of its conceptual underpinnings and its moral and spiritual foundations. It opts for the secular process of accountability which is essentially based on the principles of punitive justice. It rejects the deeper effort of restorative justice at uncovering truth for the purpose of contrition, forgiveness, reparation and reconciliation. It misses altogether the greater capacity of the restorative approach to heal past wounds, bring a closure to the past and promote a genuine process of reconciliation and peaceful co-existence.

Panel recommendations

While granting that the processes of dealing with the truth will not be the same for all countries and there is no single template for all situations, it invokes the template of the International Criminal Tribunal for the former Yugoslavia (ICTY) as though it is final and unquestionable. There is no awareness that international humanitarian law like any other law is a dynamic process responding creatively and imaginatively to changing human conditions and that is not made for the law but the law is made for man.

Panel recommendations, judged from the criterion of what they do to advance the process of accountability, produce little of substantive value. Its main recommendation on the appointment of an international mechanism by the UNSG cannot be implemented by the UNSG. Its recommendations for a separate mechanism for domestic accountability again are based on the premise that the government and the Sri Lankan army must faces charge of war crimes based on its interpretation of the government strategy and the events during the last stages of the war.

The government had already made it clear that the mandate of the LLRC, while it is framed within a policy of restorative justice which allows for investigation of individual violations does not begin on an accusatory basis for the purpose of prosecution and punishments. In this context the Panel recommendation is not likely to serve any constructive purpose.

What is missing in the Panel recommendation is any set of specific recommendations for follow-up on LTTE crimes and its residual organization abroad, the accountability of the Diaspora and the responsibility of the developed countries. Again this is characteristic of the bias that flaws the entire report.

The Panel in many parts of its report adopts a tone towards the Sri Lankan government which is unseemly for a Panel assigned a task by the UNSG. Its comments on triumphalism, its recommendation for a public acknowledgement by the government are characteristic of this tone. It is these emotive eruptions found in several parts of the report that confirm the impression that the panel is driven by a personal animus and indignation against the government. While these have their place in the category of advocacy documents of the human rights activists, in the case of the Panel, it has seriously inhibited the full impartial gathering of information and disinterested adjudication.

Although assessed on its substantive worth the Panel report has little to contribute to the process of accountability at the global or domestic level, the publicity and accolades it as received from the like minded and the way it is being used for advocacy purposes by certain groups, particularly the pro-LTTE groups, demands serious attention. Action has therefore to be taken at all levels, domestic, regional and global, to counter its pernicious fallout.

In this context the UNSG could revisit the Panel report and, in consultation with the Sri Lankan government and the Panel, respond constructively to the issues raised regarding its major deficiencies. The UNSG could take into account the constraints within which the Panel worked and the circumstances in which it was denied access to vital sources of information and, on the basis of such a reappraisal withdraw the report from the public domain while retaining it for his personal reference as he may consider fit.

Dr Godfrey Gunatilleke is Chairman Emeritus and founder member of the Marga Institute (Centre of Development Studies, Sri Lanka). He is a Member of the Board of Trustees of the International Food Policy Research Institute, Washington and member of the WHO Task Force on Health in Development. The author of several books, he is also a Member of the Board of Trustees of the Gratiaen Trust.

For full text of Godfrey Gunatilleke's illuminative analysis go to: http://www.srilankaembassy.fr/images/stories/headlines/Truth%20and%20Accountability.pdf