Army Commander presents LLRC Report recommendations to Defence Secretary

The Sri Lanka Army, last week, handed over their report on LLRC recommendations to the Defence Secretary Gotabaya Rajapaksa.

Having taken cognizance of the recommendations of the committee, the Commander of the Army appointed this Board to study the report and formulate a viable action plan to implement the said recommendations. The Board has restricted its recommendations to those areas which the Armed Forces alone could implement leaving the other areas to relevant state agencies concerned.

Excerpts of the report as follows:

Preamble -

13. Humanitarian Operation reflected the extensive training of its soldiers to respect the obligations imposed under international law and to adhere to the IHL as well as domestic law. Further, the conduct of the SL Army in the Wanni Operation evidenced the longstanding efforts in the SL Army to reinforce awareness of these obligations among commanders and soldiers, to investigate alleged infringements and to punish violations. SL Army procedures are very similar to those of the British Army and the US Army.

14. Compliance with applicable international law norms is a cornerstone in the SL Army rules and policies. As an organ of the state, SL Army is fully committed to observe IHL/HR law in its engagements and Commanders at levels have a Zero Tolerance Policy viz HR violations by the members of the SL Army.

15. ………….. Experience including the NATO bombings of the former Yugoslavia and operations in Afghanistan and Iraq by the United States, the United Kingdom and others has shown that even the most sophisticated systems and the most rigorous training cannot prevent all civilians casualties and damage to public and private property. LTTE’s cynical choice of tactics including the unlawful strategy of deliberately shielding their operatives and munitions in populated areas NFZs and other protected sites made decisions by SL Army even more difficult more complex and more hazardous.

16. However against heavy odds and many times at the expense of our own soldiers the SL Army carried out the Humanitarian Operation observing IHL/HR Law and Law of War. Hence Wanni Operations was confirmed to Jus-in-bella Principle.

19. International Law poses lot of obligations on the defender even if he happens to be a non-state actor. In Nicaragua v US (1984), ICJ held that Contras rebels in Nicaragua were responsible for various violations under International Law.

In this context Geneva Protocol I and II (which are basically re-statements of Customary International Law) are relevant; Defence shall be organized primarily outside populated areas. Civilian persons and objects shall be removed from military objectives (G.P.I. 58) the Defence positions shall cause the least danger to civilian persons and objects (GP I 57, 58) the removal of civilian persons from the vicinity of military objectives shall take place to location which presents no danger to them: (GPI 58). The defender has an imperative duty to refrain from sitting his Defences in or close to hospitals; (GPI 8).

On the issues related to the No Fire Zone (NFZ) the Commission considers whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality.

Further the committee observes that Further, the LTTE targeting and killing of civilians who attempted to flee the conflict into safe areas, the LTTE threat posed by land mines and resultant death and injuries to civilians, and the perils inherent in crossing the Nanthi Kadal Lagoon, had all collectively contributed to civilian casualties.

Considering the circumstances where it is reported that shells had in fact fallen on hospitals causing damage and resulting in casualties the committee states that however, the material placed before the Commission points to a somewhat confused picture as to the precise nature of events, from the perspective of time, exact location and direction of fire.

The challenge faced by the Commission is the determination of responsibility for the acts in question, on the basis of concrete evidence.

The Committee on their observations state, “None of the persons making representations was able to state with certainty they were in a position to definitely confirm that the shells which fell on the hospitals, originated exclusively from the side of the Sri Lanka Army or from the LTTE.

One civilian stated that when a shell lands, the general anticipation was that it was the Army. Puthumatthalan hospital was in fact accidentally shelled by the LTTE for which they had subsequently apologized.”

The committee recommends, “….consideration should be given to the expeditious grant of appropriate redress to those affected after due inquiry as a humanitarian gesture which would instill confidence in the reconciliation process.”

Chapter 01

Paragraph 33 -

It also appreciates that the priority and indeed the natural instinct of the security forces and other authorities was to ‘Save lives rather than count bodies’.

However it is noted with regret that there is no official record or a post conflict estimate of civilian casualties either by the civilian administrative authorities in the area or by the defence authorities. Whilst the Security Forces had their own casualty figures and an estimate of the LTTE casualties, the absence of authoritative civilian casualty records, with the exception of the limited data from the Ministry of Health, has led to varying figures of civilian casualty estimates by different entities, media organizations and authorities.

Chapter 01 paragraph 36 recommendations –

Conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain firsthand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of the conflict.

On observations by the Committee on certain video footages broadcasted over international media says in paragraph 43 of chapter 01 “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.”Referring the Report on Lessons Learnt and Reconciliation Committee the Army Committee states

“The LLRC had taken steps to obtain an independent opinion from Professor EA Yfantis, professor of computer science at the University of Navada, USA and based on the extensive video graphic and mathematical analysis of the videos, Professor Yfantis has concluded that the video footage in questions were orchestrated videos: (paragraph 4.372).

The LLRC has shared significant doubts expressed in the integrity of the video and concluded that such disinformation would constitute grave damage and injustice to those soldiers who fought professionally and sacrificed their lives to save other innocent lives from LTTE stronghold (paragraph 4.3766).”

Paragraph 60 of Chapter 01 –

At present IHL principles applicable in internal war situations have not adequately addressed the various complex issues. The existing rules are seemingly applied to state actors only. Further there is no specific guidelines with regard to the role of International Humanitarian Agencies in internal war situations.

Therefore it is recommended that ,

a. Tri Service Board consisting of legal officers to research and formulate new principles / ROEs for internal war situations incorporating aspects such as unilateral designation of NFZs, imposing mandatory legal obligations on nonstate actors to observe Rules of War, the role of International Humanitarian Agencies (ICRC, MSF etc) in Internal war situations etc.

b. To enhance the present International Humanitarian Laws/ Human Rights Law dissemination programs to reach all members of the armed forces and to re-design the courses to cover basic, middle level and advanced training on IHL / HR with the help of International Organizations.

In paragraph 62 –

“ …. It is recommended to conduct a professionally designed household survey covering the North & East to ascertain first-hand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of conflict. At present a census is in progress to cover all households in the North and the East.”

Chapter 2

Paragraph 12 –

“……… The Commission also heard allegations that a number of persons have been taken into custody and detained under the Emergency Regulations although the facts of some cases do not disclose any offence related to public security. In this regard, the

Commission takes note of the Government’s decision to lift the Emergency Regulations as a significant and a positive step towards reconciliation and restoration of normalcy. Many representations made before the Commission gave a clear impression that with the ending of the LTTE terrorism, the people’s preference was that the governance be carried out under the normal laws of the land that will uphold the supremacy of the Rule of Law.”

Paragraph 13 –

“ …… the Commission recommends that an Independent Advisory Committee be appointed to monitor and examine detention and arrest of persons taken into custody under any regulations made under the Public Security Ordinance or the PTA.”

Paragrph 14 –

“The families need to be assisted to deal with the trauma of not knowing the whereabouts of their family members, in some cases for years. They could also be assisted financially in situations where the missing persons had been the breadwinners. Legal aid should also be provided as and when necessary.”

Paragraph 17 –

“….. the Commission recommends that a Special Commissioner of

Investigation be appointed to investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate.

The Office of the Commissioner should be provided with experienced investigators to collect and process information necessary for investigations and prosecutions. This mechanism should also devise a centralized system of data collection at the national level, integrating all information with regard to missing persons currently being maintained by different agencies.”

Paragraph 21 –

“The Commission visited several places of detention, especially the high security facilities at Omanthai and Boossa.

It notes that the Omanthai center has since been closed. The Commission notes with appreciation the caring attitude of the authorities towards the inmates at these centers and the fact that the ICRC has access to these places of detention, including for private meetings with detainees. The Commission welcomes this policy of cooperation with the ICRC and strongly recommends that the Government expands this policy of cooperation and constructive engagement with the ICRC and other similar humanitarian organizations to ensure the welfare of the detainees.”

Topic - FREEDOM OF EXPRESSION AND THE RIGHT TO INFORMATION

 Paragraph 28 –

“ …. It is therefore essential that media freedom be enhanced in keeping with democratic principles and relevant fundamental rights obligations, since any restrictions placed on media freedom would only contribute to an environment of distrust and fear within and among ethnic groups. This would only prevent a constructive exchange of information and opinion placing severe constraints on the ongoing reconciliation process.”

33. The Government should ensure the freedom of movement of media personnel in the North and East, as it would help in the exchange of information contributing to the process of reconciliation.

34. Legislation be enacted to ensure the right to information.

Topic - FREEDOM OF RELIGION, ASSOCIATION AND MOVEMENT

37. People, community leaders and religious leaders should be free to organize peaceful events and meetings without restrictions.

38. The Commission emphasizes the need to bring to a closure the sense of uncertainty among victims by facilitating their attendance at religious ceremonies, without placing any hindrance to such activities.

“…. The board recommends that armed forces should implement policies and programs to foster communal and religious harmony in the forces and conduct programs to improve PR.”

The Board observes that the Government has already disarmed/rehabilitated ex- militants groups. In this context the Board proposes that;

a. The police should continue with their present operations to eradicate the proliferation of illegal weapons.

b. An amnesty period should be offered and rewards should be given to persons surrendering arms and ammunition.

c. Ex militants may be absorbed into the police after proper security checks and giving special training.

d. All Ex-militants should be given jobs and land in order to absorb them into the normal civil society.

Chapter 3

Para 4

The Commission recommends that the two existing HSZs in Palaly and Trincomalee - Sampoor, 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.

Paragraph 9 –

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 some lands are currently being utilized for security purposes 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.

10. Armed Forces to appoint special boards to find out the extent of HSZs occupied and other formal or informal/adhoc lands/houses occupied by each force. The same board to review them and forward recommendations to release as much area of HSZs and formal and informal/adhoc, lands/houses as possible having considered the present national security needs in perspective. The board should give priority to private houses/lands and religious places when making recommendations.

11. Each Force to ensure that either an appropriate rental or alternative lands/compensations are given immediately, for the owners of lands/houses which are required to be retained due to security reasons.

12. The same board shall identify the critical areas which are essential for the national security and strategy and formulate a comprehensive plan on permanent military bases with minimum inconvenience to the people. The affected people (whose land will be acquired) to be paid compensation at the market value and they should be provided lands elsewhere.

Para 14 –

At the conclusion of the humanitarian operation, the civil administration in the North was not in a position to conduct development activities immediately. Hence the Army had to fill the vacuum. Unlike other countries (including occupied Germany and

Japan aftermath of WWII) Sri Lanka did not wait for a stabilization period. At a very early stage Sri Lanka initiated rebuilding the North. As the only organized body in the field, the Army gave the impetus to the rehabilitation process.

“The Board recommends that Civil Affairs Officers attached to formation headquarters should continue to function as liaison officers to assist the civil authorities to implement Nation Building Projects.”

16. The Army has a huge responsibility in completing demining in the newly resettled areas for the civil population to conduct day to day activities without any mine risk. Therefore the presence of the SLA is very vital until this task is completed and declared the whole area as mine free.“The Board also notes that in view of trans-border nature of the present day terrorism and increase of piracy in the Indian Ocean, the Navy will be called upon to play a bigger role not only in Brown Waters, but also in Blue Waters, even beyond our territorial limits.

Further it is imperative that Air Force must augment the surveillance capabilities of the Navy. “Therefore the Board recommends that

a. A Tri Service Board should be appointed to formulate doctrines on maritime warfare and costal protection.

b. In order to expand the present Blue water and Brown water capabilities of the Navy, a Board of Officers should be appointed by the Navy to formulate new doctrines on Naval warfare.

c. Air patrolling and maritime surveillance capabilities of the Air Force should be upgraded and in this regard a Board of Officers should be appointed by the Air Force to formulate new doctrines on these aspects.”

Paragraph 18 –

The committee recommends that screening and control of all IOs/INGOs/NGOs should be done under the supervision of the Ministry of Defence to ensure that undesirable elements will not jeopardize the national security.“The board recommends to establish a separate Directorate at the AHQ called Directorate of Veteran Affairs (Dte of VA) along the lines of the US VA programme to coordinate civil military agencies handling welfare of War Hero Families and disabled war heroes.

It is proposed that the activities presently handled by Directorate of Additional Welfare with regard to the welfare activities of War Heroes including the administration of Ranaviru villages should be entrusted to this Directorate. It is also recommended that the Director of VA should be an Infantry or Support Arm officer.”“The Police Department is a civilian institution which is entrusted with the maintenance of law and order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State.”

In the Action Plan proposed by the Army Board recommends,

“The Police Department is a civilian institution which is entrusted with the maintenance of law and order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State. “

“Land that is identified to be vitally required for security purposes based on this joint assessment are to be legally acquired at the market rates and in addition owners should be given alternative lands.”

“However the board observes that at present the police are in total control and Armed Forces are confined to static duties at key points. The Board recommends a gradual withdrawal of armed forces from all public security duties.”

“The board recommends that in order to ensure the close coordination with the civil administration, Civil Affairs Officers attached to formation headquarters should be functioned as the principle liaison officers between the civil administration and the military. It is also proposed to establish a Directorate of Civil Affairs under the Director General Staff Branch to coordinate CIMIC programs.”

(Note – CIMIC is the special name used by the Army to refer Civil Military Coordination programs)

28. The committee agrees that in many countries the Police do come under the Home Ministry or Provincial Administration. However these countries do not face wide spread internal disorders. Police in countries that face such threats (example India during the Mumbai attack) have proved to be total failures. Therefore the committee recommends that the Police in Sri Lanka should be placed under the Ministry of Defence at all times. It is proposed that a Ministry of Defence Board should study and make recommendations with regard to the Role of Police as a Counter – terrorism agency.

In Chapter 5 –

“In the war of liberation the Armed Forces had made tremendous sacrifices. The casualties suffered by the Army alone would reveal the scene from July 2006 (Mavil Aru) to May 2009 (Nanthi Kadal) 5,275 were Killed In Action (KIA), 28,189 were wounded in Action (WIA), and 140 were Missing In Action (MIA). This is for the whole operation. In nearly two and a half years the Army captured 13,787 sq km, traversing 97km West to East and 93 km South to North.

During the period March to May 2009, the final phase, Army casualties were 1128 Killed In Action (KIA), 6,166 Wounded In Action (WIA) and 10 Missing In Action ( MIA). In brief, almost one-fourth of the Army losses that occurred during the entire two and a half year operation were sustained in the final stages.

“Even prior to the LLRC Report the Army had initiated a complete re-evaluation of our doctrines, tactics and administrative aspects and it will definitely take cognizance of the recommendations made by LLRC Report and will initiate the necessary command and administrative measures that are required to implement them.”

Highlights –

A) To appoint various Army and Tri Service Boards with regard to formulation of new Doctrines for MOUT/FIBUA environments.

B) To appoint an Army Board of Inquiry to investigate the Channel 4 video footages.

C) To appoint a Tri Service Legal Officers Board to formulate new principles and ROEs for Internal war situation.

D) To appoint Army and Tri Service Boards to formulate new Doctrines on various aspects.

E) To appoint a Tri Service Board to examine the existing HSZs/ lands occupied by Armed Forces.

F) To establish a Directorate of Veteran Affairs at the AHQ. A Board to be appointed to submit its proposals outlining the role, tasks etc of this Directorate.

- DY