DHARSHAN WEERASEKERA

It’s been over a week since the report of the OHCHR investigation on Sri Lanka (OISL) was released to the public, but, to the best of my knowledge, not even a single evaluation of the report, in terms of whether the evidence in the report establishes to any reasonable degree of certainty that the Government in fact committed the various violations alleged, has appeared in any Sri Lankan newspaper, journal or magazine.

This is both unfortunate and surprising.  The Human Rights Council is set to consider a resolution against Sri Lanka on the 30^th of September, based on the conclusions and recommendations of the OISL report, or using it as a backdrop.   Obviously, a rudimentary assessment of the substance of the report is needed before one can decide if further action on the report is justified.

In this article I shall briefly explain the purpose of the report, its structure, the charges, and provide a brief assessment of the evidence adduced in support of those charges.[1]  In my view, the report fails to make a reasonable case against the Government, because it engages among other things in the following two tactics, both of which are repugnant to the law, as well as to the rules of evidence:

One, it expects its readers to presume that the Government is guilty, and then consult the evidence in order to confirm the initial presumption; and two, it considers that citing example after example (i.e. counting the evidence) without weighing that evidence—i.e. without evaluating or assessing the evidence with respect to internal or external contradictions, exculpatory evidence, and so on—is sufficient to establish a case.

a) The purpose of the Report

The primary purpose of the report is to make a case for war crimes against the Government, which is to say, the chain of command leading all the way up to the President.  The report argues that there were so many violations of a recurrent pattern and modus operandi that it points to ‘system crimes.’

Paragraphs 5 and 6 of the introduction say, inter alia:

‘[The investigation report] has attempted to identify the patterns of persistent and large scale violations of human rights and humanitarian law that occurred….These patterns of conduct consisted of multiple incidents which occurred over time.  They required considerable resources, coordination, planning and organization, and were usually executed by a number of perpetrators within a hierarchical command structure.’

b) Structure of the Report

The structure of the report must be understood in the context of the aforesaid purpose.  The report consists of 3 Parts:  Part One gives the introduction, methodology, etc.; Part Two, which makes up the bulk of the report, lays out the charges and the evidence; and Part 3 summarizes the findings.  For the purposes of the present analysis, the important portion is Part Two, so, I’ll turn to that.

c) The Charges

Part Two of the report is divided into eleven chapters (Chapters VI – XVI) each of which discusses a particular category of violations.  Under each category, allegations against the Government, as well as the LTTE, are discussed.  I list below all eleven of the chapters plus their respective page numbers, so that the reader can gain an idea of the amount of space devoted to each category.

1. Unlawful killings – pgs. 47-70
2. Deprivation of liberty – pgs. 71-80
3. Enforced disappearances – pgs. 81-108
4. Torture and degrading treatment – pgs. 109-116
5. Sexual and gender-based violence – pgs. 117-127
6. Abduction of adults – pgs. 128-131
7. Recruitment and use of children in hostilities – pgs. 132-144
8. Impact of hostilities on civilians and civilian objects – pgs. 145-176
9. Constraints on movement – pgs. 177-184
10. Denial of humanitarian assistance – pgs. 185-201
11. Deprival of liberty in IDP camps – Pgs. 202-218

Based on the amount of space devoted to each chapter, and also the fact that some of the chapters pertain primarily to the LTTE (for instance ‘recruitment and use of children in hostilities’) the chapters most relevant for a war crimes case against the Government, particularly with regard to purported violations of humanitarian law (i.e. the law that applies during the combat-phase of a conflict) are, ‘Unlawful killings,’ ‘Impact of hostilities on civilians and civilian objects,’ and ‘denial of humanitarian assistance.’

I’ll go through each of those chapters, discuss the evidence adduced to support the allegations under each chapter, and point out some of the problems I see with it.  I remind the reader that the OISL is trying to make a case against the Government, which means the following:  at a minimum, the OISL must provide evidence to satisfy a reasonable person that, one, the incidents in question happened in the manner alleged, and two, the government, in some way or another, is responsible for them.

d) The allegations, plus the evidence

Unlawful Killings

The chapter on ‘Unlawful Killings’ discusses a number of alleged incidents, of which the most pertinent for present purposes are:  the purported killing of Balasingham Nadesan, Puleedevan and Nadesan’s wife Vineetha; the purported killing of Colonel Ramesh; the purported killing of Balachandran Prabaran; and the purported killing of Isaipriya, the LTTE ‘news-presenter.’

I) Nadesan, Puleedevan and Vineetha

The allegation here is that, Nadesan, Puleedevan and Vineetha surrendered to the security forces after having been assured by the Government that they would be safe, but were shot dead after they surrendered.  The following is a summary of what the report says about the incident.

According to the testimony of a witness (testimony purportedly on file with OISL, but sealed for twenty years) on 18 May Nadesan spoke with Basil Rakapaksa and said he was willing to surrender along with a number of other cadres including Puleedevan. (Paragraph 296.)

Nadesan and Puleedevan were also in in communication with a number of international intermediaries, who in turn were in contact with senior Government officials, possibly including Basil Rajapaksa.  At some point, it was communicated to Nadesan and/or Pulledevan that if they wanted to surrender they were to proceed to a certain spot in the Forward Defence Lines with white flags held high.

OISL has the testimony of several witnesses who say they saw Nadesan, Vineetha, Puleedevan and a number of other cadres carrying a white flag and surrendering in the Vadduvakal area north of the bridge, and being surrounded by soldiers wearing SLA uniforms.  (Paragraph 301.)

OISL also has testimony of three different witnesses who independently state that they saw the dead bodies of Nadesan, Vineetha and Puleedevan on the south side of the bridge. (Paragraph 301.)

Further, OISL is in possession of high resolution photos that show the bodies of Nadesan, Vineetha and Puleedevan, and forensic analysis of those photos indicate they were shot when they had their hands tied behind their backs. (Paragraph 304.)

OISL then states:

‘Based on the forensic analysis of photographic as well as video material, witness testimony as well as open sources, OISL concludes that there are reasonable grounds to believe the LTTE senior political wing leaders Nadesan, Pulleedevan and Nadesan’s wife Vineetha were executed by the security forces sometime after 6.00 on 18^th May.  However, further investigation is required to determine the full facts as to what happened and who was responsible for the killings.’ (Paragraph 304.)

I draw the reader’s attention to that last sentence.  To repeat, according to the OISL’s own admission, after reviewing all of their evidence, which included hundreds if not thousands of photos, hours of video footage, dozens of witness testimonies, and so on, they are not in a position to determine who was responsible for the killings.

(For instance, the soldiers in SLA uniforms the witnesses saw, even if we were to believe the witnesses, could have been LTTE cadres dressed in SLA uniforms, and it is a known fact that LTTE cadres sometimes donned SLA uniforms to confuse the security forces, and they could very well have shot Nadesan et al. when they found the latter were trying to escape, as indeed the LTTE had been doing to other escapees during the last phases of the conflict.  But, we need not engage in such conjectures.)

The point is that OISL admits they don’t know who was responsible for the killings, which means, by definition, they can’t tie those killings even to any individual SLA soldier, let alone the Government (i.e. the chain of command).  Let’s move to the next incident.

ii) Colonel Ramesh

The allegation here is that Ramesh surrendered to the army and was later killed by the troops.  What is the evidence for this?  OISL says that a number of witnesses have said they saw Ramesh and some of his relatives surrendering at a SLA sentry point south of Vadduvakal bridge, and then proceeding to the large holding area south of the bridge along with thousands of other civilians (Paragraph 306.)

At the holding area, Ramesh was identified by Tamil Military Intelligence Officers—i.e. former LTTE cadres turned informers.  Witnesses say they saw two such informers, who OISL has been able to identify, leading Ramesh away. (Paragraph 306.)   OISL also has video material showing Ramesh being interrogated by security forces, as well as images of his dead body.  (Paragraph 307.)

Based on the evidence above, can anyone say that the Government is somehow responsible for Ramesh’s death, i.e. that the chain of command, in some way or another, ordered that he be killed, or was even aware of it at the time.  I don’t think so, for the following reasons.

First, OISL does not say it has identified individuals from regular army units among the persons interrogating Ramesh, and in any event, the video material does not show Ramesh being shot, only his dead body.  So, it is impossible to identify the killer or killers.  If one cannot identify the killers, one cannot identify the person or persons who may have commanded the killers.

Second, the witnesses claim, and OISL accepts, that Ramesh was led away by ‘Tamil Military Intelligence Officers,’ which is to say, by ex-LTTE’ers turned informers.  So, there’s a plausible explanation as to how Ramesh could have met his death while in the custody of the security forces, but where the chain of command had nothing to do with it.

For instance, it is quite possible that the two informers who identified Ramesh had some personal grudge against him, or he knew something about them that they didn’t want their new employers (i.e. the army) to know, so they snuck him away after interrogating him and shot him dead.  Things like that happen in war, unfortunately.

Can one reasonably expect persons high in the chain of command, in the heat of battle, in the midst of having to interrogate hundreds if not thousands of suspects to glean whatever information they can to end the war as quickly as possible, and under the practical exigency of having to rely on informers to help identify suspects, to track every occasion where an informer has access to a suspect?  It is an impossible thing to expect.

iii)      Balachandran Prabakaran

The allegation here is that Balachandran Prabakaran was captured alive by the security forces and later killed.  What is the evidence for this?  OISL says it has in its possession photo and video material that show Bala sitting in a bunker, alive and in the custody of Sri Lanka troops, and also images of his dead body lying on the ground. (Paragraph 312.)

OISL also has a single witness.  OISL says:  ‘A witness stated he saw Balachandran Prabakaran alive and then he saw his body with bullet wounds; he did not see Balachandran Prbakaran being killed.’ (Paragraph 312.)

I draw the reader’s attention to the implications of that last sentence, to wit:  the only witness that OISL has in relation to this incident expressly states that he did not see Balachandran being killed.  That means, on this witness’ testimony, it is impossible to tie Bala’s killing to anybody, let alone the Government.

But, what about the photo and video material that purportedly shows Bala in a bunker, alive and in the custody of Sri Lanka troops?  In my view, even if Bala fell into the hands of Sri Lanka troops, the evidence cited by OISL still doesn’t establish to any degree of certainty that those troops deliberately killed him.

Everything depends on correctly identifying the bunker that Bala is seen in.  If it is a bunker of the Sri Lanka army, that is to say, a bunker secure behind Government lines, there’s no question the troops would be responsible if Bala died inside such a bunker.  But, OISL doesn’t say it has identified the bunker from the photos or the video material.  So, it could be the bunker where Bala was hiding during the last days of the war.

If the bunker seen in the photos and the videos is the bunker where Bala had been hiding, it means those photos and videos show Bala in the custody of SLA troops, if at all, a relatively short time after he fell into their hands, which in turn means those troops were either within, or in the vicinity of, the last LTTE stronghold, and it is possible that there were LTTE fighters, including suicide bombers, still lurking in the area.

So, it is plausible that, when the troops had Bala in their custody, there was a counter-attack by some LTTE fighters, and in the cross-fire Bala was hit.  In fact, OISL says Bala’s dead body has multiple gun shot wounds.  (I note that, multiple gun shot wounds are consistent with someone being hit while caught in the middle of a furious fire-fight, rather than being killed deliberately, where one expects a single execution-style shot.)

In any event, the point is that one will never know what really happened, because neither the photos nor the videos show Bala being shot, and the only witness OISL has says he didn’t see Bala being killed either.  Under the circumstances, how can anyone say that the Government is in some way or another responsible for Bala’s death?

iv) Isaipriya

The allegation here is that security forces captured Isaipriya and later killed her and desecrated her body.  What is the evidence for this?  OISL says witnesses saw Isaipriya being pulled out of the Nanthikandal Lagoon by security forces on 18 May. (Paragraph 314.)

OISL also says it has video footage consistent with the witness statements.  OISL says:

‘In the video sequence Isaipriya is wearing khaki/green trousers and a flesh colored bra.  The soldiers in the footage are handing her a white cloth to cover her upper body and generally behaving in a respectful manner.’  (Paragraph 315.)

OISL says that in another video, Isaipriya’s dead body is shown, with her clothes in disarray.  (Paragraph 316.)  OISL then says:

‘Based on the video footage and photographs along with the witness testimony, OISL has reasonable grounds to believe that security forces captured Isaipriya alive and then killed her, and desecrated her body.’  (Paragraph 316.)

If Isaipriya was captured alive by troops (as indeed the witness testimony plus the video footage indicate), and later she turned up dead, a reasonable inference can be drawn that she died in the custody of SLA troops and there’s no question that the particular troops in whose custody she was at the time she was killed can be held accountable for her death.

It would be a relatively easy thing to identify the troops who came in contact with Isaipriya, either from the video footage, or by reviewing army records to see what units were in the vicinity where she was reportedly captured, and then by interviewing relevant commanders to narrow down who may have actually pulled her out of the water.

The pertinent question for present purposes, however, is whether, even if Isaipriya was captured and killed by certain troops, this indicates a general pattern or style of conduct on the part of the army as a whole, that ties the offence to the chain of command and ultimately to the Government.

In my view, this second question can be answered in the negative, because of evidence cited by the OISL itself. The OISL says that the video sequence showing Isaipriya being captured also shows troops behaving respectfully towards her.  (OISL has absolutely no video footage that shows Isaipriya, while alive, being treated disrespectfully by troops.)

If the chain of command has endorsed a policy of wanton rape and murder of female captives, then how is it that the troops who fished Isaipriya out of the lagoon were behaving respectfully towards her, going to the extent of giving her a cloth to cover herself?  Those troops also came under the control of the aforesaid chain of command, which, presumably, endorsed a policy of rape and murder of captives.

One has to also balance the OISL’s evidence with other known facts, including published testimonials, where captured female LTTE cadres say they were treated kindly by SLA troops, and in fact, on a number of occasions troops had saved wounded female LTTE cadres on the brink of death by treating them on the battlefield itself, and transporting them to safety behind Government lines.

OISL could have consulted some of these testimonials, available in public sources, before coming to its conclusion on the likelihood of the chain of command endorsing a policy of wanton rape and murder of female captives.

So, all in all, in my view, all that the OISL’s evidence shows is that perhaps criminal charges are possible against the specific troops who may have killed Isaipriya while in their custody, but nothing about the Government being ultimately responsible for her death.

2)  The impact of hostilities on civilians and civilian objects

The chapter on ‘Impact of hostilities on civilians and civilian objects’ deals with two charges:  purported indiscriminate shelling of civilians, and purported shelling of hospitals.

It should be noted that the above two charges are two of the oldest charges leveled against the Government with respect to alleged violations of humanitarian law during the last phases of the war.  Those two charges, for instance, were first leveled by the Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (POE), released in 2011.

It should be noted further that the charge relating to indiscriminate shelling of civilians was the main charge leveled by the POE against the Government, and it was in order to prove this charge that the claim of ’40,000 dead’ was put forward, since, in order to establish that indiscriminate killing of civilians took place, it is invariably necessary to establish that a large number of civilians died.

The problem with sustaining the charge related to indiscriminate shelling is that two domestic investigations—The LLRC, and the Paranagama Commission, the latter of which included international experts such as Sir Desmond De Silva and Professor David Crane, who had consulted for the U.N. in other war crimes investigations—determined that the Government did not engage in indiscriminate shelling of civilians, and, though civilians were in fact killed in the course of the fighting, it was collateral damage.

It is worthwhile digressing a moment and considering what the LLRC, as well as Sir Desmond De Silva and Professor David Crane, said on the aforesaid matter.  Here is what the LLRC said:

‘On consideration of all the facts and circumstances before it, the Commission concludes that the Security Forces had not deliberately targeted the civilians in the NFZ’s, although civilian casualties had in fact occurred in the course of cross-fire….It would also be reasonable to conclude that there appears to have been a bona fide expectation that an attack on LTTE gun-positions would make a relevant and proportional contribution to the object of the military attack involved.’[2]

Here, meanwhile, is the succinct conclusion of Sir Desmond and Professor David Crane:

‘As unfortunate as it is, the civilian casualties should be considered collateral damage and the ultimate responsibility for their loss would rest on the LTTE due to their grave breaches of IHL.’[3]

Of course, the OISL is not bound to accept the conclusions of the LLRC or persons such as Sir Desmond De Silva and Professor David Crane, but the OISL has a duty to be reasonable.  If OISL wants to say that the Government engaged in indiscriminate shelling of civilians, OISL must show compelling evidence that the principle of proportionality was violated, which is to say, show that a large number of civilians in fact died.

The only way to do the above is to establish with a reasonable degree of certainty the number of civilians that died.  Unfortunately, the OISL does not attempt to do this:  for instance, to the best of my knowledge, the OISL never uses the phrase ’40,000 dead,’ (perhaps for good reason, because such high figures are simply not supported by the facts, as the LLRC and the Paranagama Commission had discovered previously).

The point is this:  if OISL cannot show that a large number of civilians died during the last phase of the war, then the main plank of its argument that the Government engaged in indiscriminate shelling of civilians is gone, which means that, normally, OISL must either withdraw the charge, or at any rate desist from pursuing it any further.  But, OISL insists that the Government engaged in indiscriminate shelling.

How can it do this, without first establishing how many civilians were in fact killed?  It does it with reasoning such as the following.

The Government said it had a policy of ‘zero-civilian-casualties.’ (Paragraphs 733-744);  OISL has evidence to show that the Government had ‘Indirect-fire’ weapons such as artillery, mortars, MRBL’s and so on, capable of killing large numbers of people, and the Government in fact used those weapons to target the No-Fire-Zones during the last phase of the war. (Paragraphs 745-752.)

Civilians were killed in the No-Fire-Zones. (Paragraphs 873-887.) (The problem, however, is that OISL does not say how many civilians it thinks were killed inside the No-Fire-Zones, though that is precisely what is needed to settle the question as to whether the principle of proportionality was followed or not).

If the Government followed its ‘zero-civilian-casualties’ policy, there ought to have been zero civilian casualties, or at any rate far fewer casualties than there were.  Therefore, the Government engaged in indiscriminate killing of civilians because the Government used the aforesaid ‘Indirect-fire’ weapons to target the No-Fire-Zones, knowing it would kill civilians, and civilians were in fact killed within those Zones.

Obviously, the argument I have ascribed to the OISL in the three paragraphs above is preposterous, but, as far as I can see, it is the argument OISL is making (I urge the reader to check the relevant sections of the report just to be sure).

If the above is indeed the argument the OISL is making, then the problem with it is clear:  the point is not whether indirect fire killed civilians within the No-Fire-Zones, but whether the Government took all reasonable precautions, in the context and under the exigencies of combat, to minimize civilian casualties.  As far as I can see, OISL does not address this issue at all, which means that, the charge relating to indiscriminate shelling of civilians simply cannot stand.

Indeed, OISL itself seems to realize this.  In Paragraph 729, which comes at the very beginning of the chapter on Impact of hostilities on civilians and civilian objects,’ that is, before the evidence is presented, OISL says, inter alia:

‘These incidents [i.e. purported incidents of indiscriminate shelling of civilians and of hospitals] will be examined with reference to obligations incurring on parties to the conflict to comply with the principles of distinction and proportionality and to take necessary and feasible precautionary measures to prevent, or at least minimize harm to civilians and civilian objects.  It will, however, be for an independent court to further establish the facts and circumstances of possible violations and to identify responsibilities.’ (Paragraph 729)

I draw the reader’s attention to the last sentence in the passage above.  OISL is admitting that, despite the evidence it proposes to present in the course of the chapter, it will be for an independent court to further establish the facts and circumstances of possible violations and to identify responsibilities.

The obvious question that will occur to any reasonable person is, ‘If the OISL thinks it is up an independent court to establish the facts and circumstances of the purported acts of indiscriminate shelling, and to identify responsibilities, then what was the OISL’s job?’

In short, as matters stand, OISL doesn’t have a shred of evidence to continue leveling the charge of indiscriminate shelling of civilians and hospitals against the Government.

3)      Denial of humanitarian assistance

Here’s how the OISL frames the charge:

‘In September 2008, humanitarian actors were forced to leave Kilinochi, where most of them had a hub.  From then on, the delivery of humanitarian assistance not only became increasingly difficult, but the quantity and nature of the supplies authorized for delivery did not meet even the basic needs of the civilian population….International law prohibits the intentional starvation of the civilian population as a method of warfare by depriving them of objects indispensable for their survival, including by willfully impeding relief supplies.’ (Paragraphs 937 and 938.)

There are only two questions we need to answer:  one, did the Government try to intentionally starve the civilians in the conflict zone by completely denying them humanitarian assistance, including by impeding relief supplies?  And two, how much food and other material can be considered as the basic requirements for the civilians during the relevant period, and how much did the Government, if at all, transport?

The first of those questions can be answered in the negative purely by relying on information contained in the OISL report.  Here are just two of the relevant paragraphs.

Paragraph 969 says:

Alongside the [U.N] humanitarian convoys, the Government Agents arranged smaller convoys to transport food and non-food humanitarian assistance to the Vanni, which arrived without impediment.  For example, during the first week of October 2008, Government convoys transported 714 metric tons of food’

Paragraph 970, meanwhile says:

On 10 February 2009, the first ICRC ship resumed transport of humanitarian assistance to the Vanni….The primary purpose of these ships was to carry quantities of food and other supplies for the civilian population….All in all, ICRC evacuated more than 13,000 patients and care-givers by ship, with the last ship arriving on 9 May.’

So, according to the OISL’s own testimony, food and other supplies continued to be transported to the Vanni after the September-2008 closure of the Kilinochi humanitarian hub, which means, by definition, the Government cannot be accused of intentionally denying the civilians humanitarian assistance, including impeding relief supplies.

The only remaining question is, ‘How much food and other materials did the Government transport, if at all, and what was the basic amounts necessary to sustain the civilian population at that time?’  OISL answers these two questions in the following crucial passage:

‘After 16 January 2009, however, the amount of food allowed into the Vanni plummeted.  In March 2009, the United Nations Resident Coordinator’s Office indicated that at least 3,000 metric tons was needed per month for between 150,000 and 200,000 people.  Between 17 February 2009—when aid delivery was resumed by ship—and the last ship delivery on 9 May, authorized and delivered food shipments totaled only 2,442 MT for the whole period, according to the Ministry of Disaster Management and Human Rights.  A table prepared by the Ministry and detailing the shipments between February and May 2009 showed that most of the food was provided by WFP.’ (Paragraph 987.)

The problem with the above is that it clashes with the numbers given by the LLRC (Lessons Learnt and Reconciliation Commission).  The LLRC says that between January and May 2009 combined deliveries of food and other materials by the Government along with the ICRC totaled 534,227 metric tons.  (LLRC report, November 2011, Vol. 2, Annexes, Annex 4.12, page 101.)  The ICRC has never disputed those numbers.

So, what we have here is basically a dispute over the numbers.  The OISL says it was only 2,442 MT while the LLRC says it was 534,227 MT.  Who is right?  Obviously, even if a fraction of the quantity that the LLRC claims was transported to the Vanni during the relevant period, was actually transported, it would satisfy the 3,000 MT per month basic requirement set by the U.N itself, which in turn would lay to rest once and for all the charge regarding possible denial of humanitarian assistance.

So, the easiest thing for OISL to have done was to contact the ICRC and ask them directly how much food and other stuff they transported between January 2009 and May 2009.   Is there any sign that OISL did this?  No.  Instead, as indicated by the passage quoted earlier, OISL has relied on some sort of table or chart prepared by the Ministry of Disaster Management and Human Rights.

(I note that, even a cursory reading of the relevant passage shows that the quantities mentioned by the Ministry may be just the quantities of food provided by WFP that the Ministry helped transport up to the Vanni, and does not include the quantities sent by the Government and the ICRC.)

The point is this, since the exact quantity of food and medicine sent to the Vanni is so crucial to its case, and since OISL’s mandate was to conduct a comprehensive investigation, why didn’t OISL check with the ICRC.  The fact that they didn’t check means that the charge with respect to denial of humanitarian assistance cannot be sustained, until, that is, someone checks, and settles the matter once and for all.

So much, then, for the charges.  I have in this article only been able to scratch the surface, the tip of the iceberg as it were, of the problems with the OISL’s evidence, but let me summarize the findings thus far.

With respect to ‘Unlawful Killings,’ of the four cases that make up the thrust of the charge, only the purported killing of Isaipriya raises even a possibility of a prosecution, and that only of the specific troops who may have had her in their custody and later killed her. As for the other cases, either the OISL itself admits there’s insufficient evidence, or there are plausible explanations of the facts which militate against pursuing the charges.

To turn to the charge with respect to the possible indiscriminate shelling of civilians and/or hospitals, OISL admits it can’t identify responsibilities, which, as I have argued, is a concession that, as matters stand, OISL does not have a shred of evidence to justify leveling the charge against the Government.

Finally, with respect to the purported denial of humanitarian assistance, OISL has failed to make a rudimentary check—i.e. ask the ICRC for the exact quantities of food and other materials transported to the Vanni between January and May 2009—which would have settled the matter once and for all, and indeed, can still settle the matter if someone takes the trouble to make the necessary call to the ICRC.

This then is the report that was unveiled with great fanfare on the 16^th of September, and which is now set to be the basis for another resolution against Sri Lanka at the Human Rights Council this coming 30^th.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of two books:  The UN’s Relentless Pursuit of Sri Lanka (2013), and The UN’s Subversion of International Law:  The Sri Lanka Story (2015)

[1] The version of the report I analyze here is the advance copy, A/HRC/30/CRP.2, submitted to the Human Rights Council and also posted on the OHCHR website on 16^th September 2015.

[2] Report of the Commission of Inquiry in Lessons Learnt and Reconciliation, November 2011, p. 328, para 9.6

[3] Opinion to the Commission from Professor David M. Crane and Sir Despond de Silva, QC, Paragraph 80, (What the International Experts say (3): ‘War crimes in Sri Lanka,’ www.island.lk, 18 March 2015)