August 11 2010
Mr. Bernard Gunatilleke
Gunatilleke: The fact that the Diaspora has the capacity, resources and the desire to destabilize and more importantly my personal experience is that when you witness the demonstrations that are being organized by the pro LTTE groups in various parts of the world you find very young people 18 to 25-27/28 group being very active very vocal and very vociferous. So there is a potential for these young groups (youths) who do not have much knowledge about what went on or what is going on in Sri Lanka to be radicalized by the small group of leaders in various countries, and that radicalization of the youth could have certain kind of repercussions for Sri Lanka.
I think I have shared some of my views and concerns with the Commission, and I have also a written submission which I will provide it to the Commission and if there are any questions as I said earlier I would be happy to respond in camera. Thank you.
Q & A:
C.R. de Silva: There may be certain questions you wish to answer in public and there may be certain questions that you wish to answer in camera. So when there is a question that you wish to answer in camera you can inform us and then we will take the questions later, because all the questions in camera could be taken finally because the other questions you could answer in public otherwise we will have to clear this room every time a question is asked.
Rohan Perera: Thank you Mr. Chairman, and let me also thank Mr. Gunatilleke for accepting the invitation of the Commission and appearing before the Commission this morning, and also for this very comprehensive background which you gave us. As a person who has been very closely associated with the whole negotiating process as you said in all six rounds. Maybe I will cluster the several questions I wish to pose, arising of course from our mandate and also to sharpen the focus on some of the issues which you came out in your presentation. Perhaps they are inter-related and perhaps in your response you can deal with them together.
One is the – when looking at the facts and circumstances which led to the failure of the ceasefire agreement and also looking at lessons we could learn from that and to prevent a recurrence I would like to address the whole process of negotiating that agreement. Was there adherence to the normal process that should be followed of a text being discussed by all parties, the stakeholders, so at the end of the day what the parties subscribed to is a “negotiated text” – a compromise, rather than a text which only represents the views of one side.
(2) Apart from the methodology – I think you did touch on this – the reluctance on the LTTE to get into substantive issues in the peace process (and you did say that that was one of the principle factors for the failure of the entire process). In that context was there a particular reluctance on the part of the LTTE to walk away or to suspend moment human rights and humanitarian law issues began to feature in the peace process. Was there a perception on the part of the LTTE or a fear or apprehension that there was a peace trap that they would be walking into? Here I particularly refer to issues like the ban on land mines and so on.
Thirdly, were there inherent defects in the monitoring mechanisms to address violations? In your experience I would like to hear your views on the SLMM mechanism (the Sri Lanka Monitoring Mission) and was that also a contributory factor? So I will rest at that point.
Gunatilleke: Thank you very much. First, whether the text was negotiated. Yes and no. Yes, in the sense the text was brought by the Norwegian facilitator to Sri Lanka and was discussed with the then Prime Minister and some members of his Cabinet. There was a round of discussion and there were certain shortcomings or improvements or amendments that were taken up and discussed. An officer of the Peace Secretariat I recall making a submission. These amendments were certainly discussed but you have to understand one situation – that is (the circumstances under which the) or the ground situation at that time. A ceasefire was declared on the eve of the Christmas 2001 and the ceasefire was going on without a formal piece of document, and a formal document was required as early as possible to avoid certain situations which would create problems for both parties. So there was a sense of urgency to have a signed formal document, and the Norwegian side was aware of that and they were working very hard to have the text. So when the text came and it was discussed we were told to keep the amendments to the minimum and of course certain elements that were recommended were included – like say for example there was a proposal to open the A-9 (by that time the railway line to Batticaloa was non existent) and there was a suggestion to include a paragraph to that extent and that was taken in, but ironically when the issue of child soldiers were taken in there was a brief discussion but the proposals made by the Government were not taken in for whatever reason, and when the issue of allowing LTTE cadres to engage in political work in areas outside the north and the east was discussed issue of reciprocity was taken up by the Government side, but that was also, if I may use the word, brushed aside, saying that if we were to take all these things and renegotiate the text we will not be able to finalize the agreement within the shortest possible time. So priority appears to be finalizing the agreement and having an agreement – a signed agreement in place – as early as possible, rather than going through the text carefully and trying to address various concerns the Government may have had. One particular issue perhaps would be the deadlines given for vacation of houses, buildings, places of religious worship etc. and various other deadlines that were included, I presume, in good intent but were not realistic in real life.
Rohan Perera: Particularly on that point, my specific question would be, was there a time when the Government, given this urgency to conclude the agreement to consult the direct stakeholders the security forces or the security establishment of vacating religious places, opening up of A-9 would have had a specific contribution to make? And was that ultimately a factor for the breakdown?
Gunatilleke: There were representations from the security forces on two different occasions. They had the opportunity to look at the draft document and make their views. Perhaps once again the need to finalize the draft within the shortest possible time rather than allowing the whole ceasefire to unravel perhaps was the priority, and of course, as I said, the other thing was the kind of relationship that existed between the Executive and the Prime Minister of the Government was also not conducive for wider consultative process.
There are two other things. Can I answer those two and then I will get back.
Then substantive issues – LTTE’s reluctance. My reading of the situation was ‘don’t discuss substantive issues because we are not there to discuss substantive issues’. I am speaking from the LTTE point of view. Our priority is initially taking care of the reconstruction and rehabilitation of the north and east and the civilian issues. Once that is done only other things could take place.
With regard to human rights – yes, Oslo decision contained one particular aspect of human rights and humanitarian matters, and when we met in Hakone – I don’t remember the number of the session; maybe the 4th session or whatever it is – we had by that time appointed a distinguished international human rights activist and he was there to make a presentation and he made the presentation, and in his presentation there was an element or at least to say that there should be international scrutiny of the human rights situation in the country – particularly in the north and the east, and very strangely (not strangely) Mr. Balasingham’s response was that we do not need international scrutiny of human rights and that is perhaps okay but the second section was more intriguing. He said we have a National Human Rights Commission in Sri Lanka and we would rather allow the National Institution to take care of the human rights situation than an international scrutiny. I leave you to try to understand what exactly he meant but basically he did not want an international scrutiny of human rights and although Mr. Balasingham time and again was very critical of institutions in the south at that point of time he thought National Human Rights Commission of Sri Lanka was a good instrument to take care of the human rights situation in the north and the east.
Defects in the monitoring system – there were defects all right. The whole point is you give a mandate to a group and that group I can say did its best under trying circumstances to do what it was supposed to do. Point was they were functioning as a watch dog’s function but without any approval to bite. So they can only bark and LTTE ignored the barking. By April 2006 I think 3000 odd times and the Government some 200 or 300 violations. Then you can ask the question whether it would have been possible for the Monitoring Mission to engage in an exercise which the IPKF engaged in in 1987. I think that was also a failure and had the 40 strong contingent of – 40 to 60 at the height of time I think (height of period of their involvement there 60) – could have had that kind of military muscle to impose their rulings on both the LTTE and the Government.
I hope I have answered the three questions.
C.R. de Silva: Mr. Gunatilleke you said when this question of human rights concerns came up Mr. Balasingham said that he was opposed to international scrutiny but he was prepared to accept the National Human Rights Commission looking into these matters. Now at that time the writ of the State did not lie in the north and the east. Was it possible for the National Human Rights Commission in this scenario to investigate human rights violations in the north and the east? And if they were not in a position to do so, was this a ploy that was being adopted by the LTTE to prevent human rights violations of the LTTE being looked into?
Gunatilleke: I think the response of Mr. Balasingham was trying to go round the corner without going off the road, in the sense he could not have agreed to international scrutiny. He was faced with a situation. He deflected the situation by pushing the ball to another corner and allowing that situation to be taken up at a different time. But then I also recall in Hakone when we tried to engage the attention of Mr. Balasingham on the substantive issue, including human rights, to which he agreed in December 2002, he said you are putting me in great difficulty. If I discuss any substantive issue (and he took his hand like this and he did this) you are doing this to Balasingham. So basically he was trying to avoid his neck being cut if he had responded to any favourable manner to the issue of human rights under international scrutiny.
C.R. de Silva: Now Mr. Gunatilleke, the facilitators were also aware that the National Human Rights Commission was not capable of investigating violations of human rights in the north and the east. If so did the facilitators (did they ever) try to impress upon the LTTE the importance of international scrutiny of human rights knowing very well that the National Human Rights Commission was incapable of investigating these violations in the north and the east?
Gunatilleke: Well in fairness to facilitators, facilitators were facilitators, they were not expected to influence the decisions of either party and in public (I do not know what happened in private) in public at that particular meeting it would not have been possible for facilitators to say Mr. Balasingham you are talking nonsense. This will not happen because the writ of the Human Rights Commission will not run in that particular area. I do not think they could have said in public. Privately whether they said that I have no idea.
Palihakkara: Thank you Mr. Chairman. Thank you Ambassador Gunatilleke. I think your very comprehensive information and also your very valuable insights especially with regard to the CFA will be helpful to the Commission in fulfilling that part of the mandate that deals with CFA. I want to focus on your recommendations/observations. Before doing that I just want to ask you – you said you will be sending a written (there will be a written) submission as well – and also your very valuable recent statement at a recent seminar – can that also be (construed) taken as some information for us (Commission) to use in processing our report? Thank you.
Secondly, focusing on your recommendation part you did say very correctly that measures should encompass some external as well as internal areas. You did refer to external areas and made some valuable points regarding what the expatriate community – not the whole community but what I would call the rump LTTE – will continue to do in terms of keeping the pot boiling as it were to use your own words. I would like to ask you, given your considerable experience with the many phases of the Peace Secretariat and this whole so called peace process, I would like to have your views on what are the internal measures on reconciliation that the Commission should look at or the Sri Lankans (all of us – the Government, the people and others) should look at now in the immediate post conflict period? If you have any thoughts on that. Now or later.
Gunatilleke: Thank you very much. Briefly I can respond now what comes to my mind. One is – the most important factor is there was a confrontation between the armed forces and the LTTE cadres and those who suffered were the innocent civilians running into tens of thousand or hundreds of thousands. They have paid the supreme price for somebody’s political fantasies and their interests should be looked after. So return of IDPs to their homes and providing them with livelihood means because returning itself is not good – they will have to pick up pieces – so livelihood is an important factor. So in new communities there should be roads, schools, health facilities and the like, plus farmers assisted with farming activity, fishermen with fishermen, that kind of activity. They have to be assisted for a period of time until such time they are able to stand on their feet.
There is another factor also that is also encapsulated in the CFA. Restitution of private houses, buildings and business premises occupied by troops and Government establishments in the north and east. It is very important. People have attachment to their place where they made a living and there is a yearning coming from within the individuals that they should return to their soil, and sooner we allow them to return to their places that will be a very important factor.
There is another issue that we also discussed during the days of negotiations – that is the High Security Zones. Gradual reduction of High Security Zones should take place. Those who have been evicted from those places should be allowed to return. And we also see in newspapers tendency to increase the presence of armed forces in those areas. Actually it is worth another look whether we should engage in that kind of activity or not. When somebody asked this question I was playing the devils advocate (that was in the United States) and I asked that particular person to imagine that the minority population in Sri Lanka are Sinhalese and not the Tamils and we are cornered or boxed into an area around south Galle, Matara and Hambantota areas, and we have 40,000 Tamil troops in those areas watching our day to day activities and how would Sinhalese feel if they were confronted with that kind of situation. And the tendency to take over our land, our houses our business premises our paddy fields continued. It would not be something that would be tolerated or approved by the Sinhalese people who are boxed into that limited area in the country. So we have to imagine the mind set of the Tamil people living in those areas and the kind of difficulties they go through and reduce the strain on them rather than increasing.
Then of course the most important factor, what we have failed to attend, meaningful devolution of political power to the periphery from the centre. We have tried and tried and tried, failed and we have paid a supreme price for our failure, and I think it is time for us to sincerely focus on that issue. Now devolution itself in my opinion is not the ultimate answer. There must also be involvement of the minorities in the political activities in the centre so that they will not be taking care of their own areas whether it is in Jaffna or whether it is in Trincomalee or in some other place Batticaloa, but they also understand that there is a stake for them in the centre. They have a role to play, that they are responsible and they are part of that particular exercise. When we have that kind of a situation those people will feel, politicians and people alike, that we are one country, one nation, one people, and not divided into groups and not (restricted) located in certain localities of the island. I think basically this is what I feel we have to do locally in addition to what we should do abroad.
Speaking of the latter I think we also have to realize the fact that nearly one million or over one million Sri Lankans live (both Tamils as well as other communities) abroad and further they are from Sri Lanka more interested in activities in the country and we cannot keep them away in this kind of world where views can be exchanged instantaneously through the internet and people can travel within very short period of time from one country to another. So we have to engage those people. We have – among other things engage them, dual citizenship – make it easier for them to get dual citizenship it is important and also more importantly make it possible for our expatriate population to invest in Sri Lanka. There are a lot of investment facilities. That will also help them to feel that (this is my) I have a stake in this particular country through that kind of activity. Thank you.
Hangawatte: Ambassador Gunatilleke I want to first thank you for agreeing to be here to have this conversation with us. I have a question. You said quite passingly but it addresses a substantive question that we have to deal with in terms of reconciliation. Having said that, before I pose the question I also must say that most of your recommendations that you made in answer to the last question were in line with that remark except for one recommendation. Having said that the question I have is – you mentioned that in your view it was an armed conflict not an ethnic conflict. So I wonder whether you came to that conclusion based on any facts that you have come across as a negotiator or based on or is it mere conjecture based on what is being expressed in the public domain, especially because when you make the recommendation that there should be devolution of power to the periphery and the involvement of minorities in the centre that is an admission that it was an ethnic conflict rather than an armed conflict. I may be wrong but I would like if you could please elaborate on that. Thank you.
Gunatilleke: Well my understanding is that if you are speaking of an ethnic conflict in the subcontinent we have for example religious conflicts between the Muslims and the Hindus for example in the subcontinent. In Uganda we saw two ethnic groups killing each other because of the ethnicity. The conflict if you look into the history of conflict it was not a conflict between ethnic groups. Because of your ethnicity you become a target and end up with a kind of attacks and counter attacks. Even during the height of the period (height of the conflict) there were no animosity between the ethnic groups in Sri Lanka one against the other. True it was a Tamil group fighting against the State. How do we in that situation explain the JVP conflict. JVP a particular group fighting with the State – certainly it was not an ethnic (conflict) but it was an armed conflict to achieve a political goal on the part of the JVP in the 1970s – early 70s. Likewise what happened in the north and the east was a group of people, leadership, just as it happened in the 70s in the south, wished to wrest the political power of the north and east into their hands and the conflict started as a result of that while a fairly large population of Tamils lived harmoniously with certain exceptions, aberrations in the south. That is why I always thought or spoke of whenever I had an opportunity to do so explain that in Sri Lanka the conflict was not based on the ethnicity but it was an attempt by an armed group to wrest power of a particular geographical region of the country. Thank you.
Paranagama: Did any party gain any advantage over the CFA? Gain any advantage. And can you specifically state why the CFA became a failure?
Gunatilleke: I don’t understand the first question but I will try to understand the second one – why it became a failure. Hind sight as I said earlier …
Paranagama: First question is whether – say right throughout it was mentioned that LTTE was buying time. Did the CFA help them to buy time?
Gunatilleke: It did. In the sense you have to understand … say for example let us look at the 2001 situation. July 2001 Sri Lanka faces its worst situation. April 2000 we have the worst military defeat. Against that kind of background you have the superiority at least in that particular phase of the fighting which goes to the LTTE. And then you have the situation where LTTE faces certain drawbacks as a result of the 9/11 which took place somewhere else. And the whole attitude of the world regarding terrorism take a sea change. In that situation LTTE finds it difficult to continue what it did and it also needed international sympathy which I presume they thought they would be able to get through an agreement of this nature. But what happened was the international community which was basically sympathetic towards the LTTE until such time was mobilized as Balasingham himself said as an international safety net by the then Prime Minister which was not to the advantage of the LTTE, and then the direction of the entire effort was going in a particular way which was not suitable or conducive to the LTTE, and had they gone down that road it would have been so much difficult for them to reverse and to go back to their original goal of a separate state. So at some point or other they had to apply brakes which they did on April 21, 2003, and then tried to re-charter their path forward. So I think the walking away from the CFA was only natural from the LTTE point of view. If I am an LTTEer I would say that was the thing to do, otherwise we would have been taken in a direction which was not to our choice.
C.R. de Silva: Now would it be correct to say that the CFA was in fact drafted by the Norwegian facilitators in consultation with Mr. Balasingham in London and it was brought to Sri Lanka in February 2002. In this context would you say that the CFA was heavily diced in favour of the LTTE?
Gunatilleke: Well I have no doubt. Mr. Balasingham in his own book very clearly says that he negotiated with the – no, yes – Mr. Balasingham says that he provided inputs to the CFA at the request of Norway so that there would have been consultations. The figures that appeared in the CFA could not have been materialized from nowhere. Like the days – 45 days this; 90 days this; 60 days this or whatever it is – 180 days this. So there would have been – I mean – once again to be fair by the Norwegians these negotiations were going on for a while. I earlier mentioned in the year 2000 December he wrote a letter to the LTTE – the Prime Minister of Norway. So it appears that in that letter he says for the last 18 months we were doing something. So that means latter part of 1998. So there would have been considerable amount of discussion that would have gone into before the preparation of the CFA by the Norwegians.
C.R. de Silva: Yes, but my question was, was the CFA heavily diced in favour of the LTTE as a result of the inputs of Mr. Balasingham?
Gunatilleke: Well I am inclined to agree with you. Looking at the agreement it appears to me that it was the case and given the circumstances that existed on ground at that time perhaps the administration thought this is the best they could get at that point of time.
Paranagama: But this agreement was not signed by both parties together. It was signed at different times, different places. What have you got to say about that?
Gunatilleke: Well at that time Prime Minister could not have gone to Kilinochchi nor Prabakaran could have come to Colombo to sign the agreement at the same place. So the alternative was the identical text was signed by two persons on two different dates to be effective on a particular date. So that was once again the need of the hour.
Palihakkara: Following from that I don’t know whether it is an unfair question but what is your personal view as a CFA for a model between a State and a non-State group negotiation?
Gunatilleke: If you asked me the question then my answer would have been different but now it is a different answer. As a model it is a bad model but then if we tried to negotiate that kind of an agreement it would have taken months if not years and with public scrutiny with an antagonistic environment there would not have been a CFA. It would have been that difficult to conclude that kind of agreement in the kind of political situation that existed.
Chanmugam: Mr. Gunatilleke you made the very valid point that we have to engage in a dialogue with the expatriate community. How can we move forward particularly when the younger generation which forms part of the expatriate community asking for them to invest would probably mean getting the bigger players involved but if you want to nip – I won’t say nip it in the bud – but to improve the relationship and to have harmony among the people there must be some sort of education or dialogue to enable them to think differently about what is happening in Sri Lanka.
Gunatilleke: You see it is very interesting. I earlier mentioned about the desire of the people to return to their own homes in respect of the IDPs. In the same manner there is an inherent desire on the part of the people who left Sri Lanka to return if not for permanently but at least briefly, that desire is very much there. If I go back to the year 2002 when hotels were basically empty soon after the CFA the hotels started getting filled up mostly by the expatriate community returning to Sri Lanka and going around seeing places what they have not seen for many years. So that I do not think there is complete severance of relations between the country and the Tamil community over there. So then whole question is; ‘how do you give life to that kind of relationship?’ Unfortunately most of the young people who are now in the forefront of agitation have not seen the country, been to the country or understand what is going on. But the elder generation – that is a different group altogether – this is the advantage that we have. Now like some countries – I think it is even in India – there is a separate Minister (subject to correction) who looks after expatriate affairs. So they engage the expatriate community which we need to do.
Our diplomatic missions have a responsibility – some of the missions sad to say still think or they live in the era of confrontation. They have forgotten the fact that confrontational period is over and now it is the period for reconciliation. So there is a role that can be played by diplomatic missions as well. And we have to find various means of engaging the community like for example year ago I was working for the Sri Lanka Tourism Development Promotion Bureau. I made a special effort and sent an individual or senior officer from the Bureau to London to encourage Tamil people to come to Sri Lanka during the Nallur Festival period, because the attachment is there and we made facilities. Quite a number of families came and that is not something that is been done by the State as such but they are coming for a religious ceremony which is very close to their heart. So there may be – I mean I can’t come up with a list of things that can be done – but the need to engage them is there. As I said diplomatic missions have a role to play; the State can do much by having some institutional arrangement, and becoming a dual citizen in Sri Lanka today is a very cumbersome process. If that process is – and expensive process as well – if that process is eased to some extent there will be lot who would like to become dual citizens. Why not we go down that road as well. So I am sure there will be many models that can be followed or many things that we can do to attract our people back to the country. Thank you.
C.R. de Silva: Mr. Gunatilleke you said that there are very powerful segments in the expatriate community who wants to keep this conflict going, or to use your own words “to keep the pot boiling”, otherwise they will lose their position of power. Now what is your strategy to win them over?
Gunatilleke: Within the diehards may be a difficult task, but then their followers could be won over. The diehards and the leaders are basically interested in collecting funds which is still going on continuously. And when they take money from the individuals they have to do something in return. So agitations, demonstrations, going after politicians in various countries, making representations to institutions, such as, for example, I know personally to the World Bank, to the IMF, that kind of activities they will carry on. So it is very difficult to get those people away from what they are doing but of course if they are engaged in illegal activities, I am told – only yesterday I came to know – the receipts are now being signed under the name of Prabakaran, so that he is still alive and the funds are being channeled to a particular post. So we may not be able to handle the diehards or the leadership but certainly we have to find ways of doing it with a view to getting the general public their attention, and where possible we will have to work very closely with foreign governments when the leadership is engaged in illegal activities like collection of money or money laundering and similar activities.
Rohan Perera: Sorry to take you back to your previous answer. In response to my brother Commissioner’s question on the CFA as a model agreement and also to what you said before, would it be correct to say or to conclude that certainly yes unusual political circumstances prevailed and there were factors which need to be taken into account when we today try to pass judgment on the CFA? But notwithstanding that the urgency that was felt to conclude some agreement to formalize the situation on the ground avoiding what would be the usual, as you said, long drawn out negotiating procedures. Those factors taken collectively did it not lead to a perception particularly in the south that here again – that is going back to the 87 accord – was an imposed document and did that lead to a lack of credibility in the south and that factor taken together with the large scale violations on the part of the LTTE and lack of action could be said to be the critical circumstances which led to the ultimate failure of the ceasefire agreement? Would that be a correct conclusion to draw?
Gunatilleke: My feeling is at the time when the agreement was signed the situation was “so hopeless”. There was no widespread dissension, agitation or such activities against the agreement. Perhaps as various developments took place, particularly the continued violation of the CFA by the LTTE, particularly the recruitment of child soldiers – mostly forcible recruitment despite the agreement between UNICEF, Sri Lankan Government and the LTTE against such activity, incidents like Manirasakulam which was a very clear violation on the part of the LTTE, those developments most probably would have sent bad vibrations with regard to the intentions of the LTTE and where we were heading. And unfortunately there was a well considered decision – may be well considered may not be the right word to use – not to confront the LTTE because keeping them in the negotiating process was important because there was a thinking the longer you keep them in the negotiating process you weaken their foundation which actually happened by allowing them (LTTE) cadres to go on vacation, go on leave, meet their parents, girl friends or boy friends, getting married – all those things resulted in creating fractures within that very solid foundation. So the thinking was stay as long as possible, the whole thing will implode – not explode, implode. And I need not say, for example, I recall the involvement of Karuna in the negotiations and the discussions that went on within the administration saying that this is the first step towards the breaking of the organization. That was again hindsight when it was happening we knew what was going to happen.
Rohan Perera: Thank you very much.
C.R. de Silva: The contribution that you made by your representations and the very lucid answers that you have given us, and I must once again thank you for coming over and helping us in our deliberations.