DHARSHAN WEERASEKERA

To my knowledge, the Government has to date not commissioned an official assessment of the OHCHR report (also called the OISL report) or at any rate if it has, such report is not available to the public.[1]  And yet, one reads in the newspapers that the Government is about to start ‘the consultation process to design’ mechanisms to probe the ‘past,’ in order to satisfy recommendations made in UNHRC resolution A/HRC/30/L.29.[2]

The purpose of this article, and hopefully others if time permits, is to place on record some of the problems with the OISL report.  In my view, such information will be useful in the following two situations:  one, future legal challenges to the said ‘mechanisms’; and two, to persons who may stand accused before the proposed ‘mechanisms’ to bring lawsuits under the civil law against officials who helped design those mechanisms, for harm and inconvenience caused, including the costs of defence.

In a previous article titled, ‘The OHCHR Report:  A Brief Analysis’[3], I discussed what I consider to be the chief problems with the OISL report.  I identified the following problems:  outright lies, obfuscations, contradictions and omissions, and failure to consider exculpatory evidence.  The present series of articles is intended as a means of expanding a bit on each of those topics.  In this article I focus on ‘outright lies.’

THE PROBLEM

I focus on Chapter 13 of the OISL report and the claim by the OISL team that based on the information they had before them, they couldn’t reasonably conclude that the LTTE ever used hospitals for military purposes.  In my view, the said claim is an outright lie.

By ‘outright lie’ I mean a deliberate subterfuge through which an impression or view is created of a particular matter that is at variance with information, or reasonable inferences from such information, contained in documents cited in the OISL itself, or in documents available in public sources at the time the report was being written, documents about which it is difficult for OISL to claim ignorance.

I shall first cite the OISL’s exact claim, explain its significance in terms of OISL’s broader argument about ‘Command Responsibility’; and finally, explain why it is an ‘outright lie’ as per the criteria just mentioned.

THE OISL’S CLAIM AND ITS SIGNIFICANCE

Chapter 13 is titled, ‘Impact of Hostilities on Civilians and Civilian Objects,’ and deals with two charges:  one, indiscriminate killing of civilians, and two, shelling of hospitals.  The claim about the OISL team not finding any evidence that the LTTE used hospitals for military purposes relates to the second of those charges.  Here’s what the report says:

OISL received no information to indicate that Government run or other hospitals and ambulances were used by the LTTE for military purposes.  None of the medical or humanitarian personnel who were interviewed reported any attempt by the LTTE to carry out military operations inside the medical facilities.  According to the information received by OISL, there were no LTTE military installations placed inside the hospitals.[4]

On the basis of this information, OISL does not therefore have reasonable grounds to believe that there were legitimate military targets inside the hospitals at the time of the attacks by the SLA[5]….

However, the information gathered by OISL indicates that there are reasonable grounds to believe that the LTTE launched attacks from close proximity of hospitals.  The incidents described below show that the LTTE constructed military fortifications (mostly earthen bunds and trenches) and positioned artillery and other weaponry close to, and sometimes adjacent to, hospitals and the surrounding densely populated civilian areas, marked by a heavy presence of makeshift tents or shelters belonging to IDP’s[6]….

It is noted that, as the SLA pushed the LTTE and civilians into an ever shrinking area the possibility that the LTTE had for separating military objects from medical facilities and other protected objects became more limited.  OISL stresses that this change in circumstances did not absolve any of the parties to the conflict from their obligations under international humanitarian law to comply with the principles of distinction, proportionality and to take feasible precautions in attack and against the effects of attack.[7]

So, on the one hand, OISL expressly says that it had absolutely no information that the LTTE used hospitals for ‘military purposes’ and on the other hand admits that it had information the LTTE placed guns in proximity to hospitals and also launched attacks from those positions.

Two questions immediately arise:  first, ‘What exactly does OISL understand by the phrase, ‘military purposes?’’ And second, the related question, ‘If the LTTE placed guns in close proximity to hospitals (presumably to derive the benefit that it would discourage the SLA from launching all-out attacks on those positions) is that not using those hospitals for ‘military purposes’ as one would normally understand that term, which is to say, furthering or advancing military objectives?’

The point is this.  If one answers the second question in the affirmative, then the government can justify targeting the vicinity of hospitals.  Of course, there’s still a burden on the government to show that it took all reasonable precautions to minimize harm to civilians if there were civilians trapped in the hospitals, and, if civilians were indeed killed, that the numbers killed were proportional to the value of the target.

Nevertheless, if it can be shown that the LTTE used hospitals for military purposes, then the government has a defence.  If, however, one restricts the definition of ‘military purpose’ to mean placing guns or carrying on other types of military activities inside hospitals—then it becomes possible to make a distinction between attacking the hospital and attacking the vicinity of the hospital.

To put it another way, if one accepts that ‘military purposes’ includes placing guns near hospitals, then the government has a defence, for instance, if by accident government shells fell on hospitals in the course of the fighting.

If, however, one accepts that ‘military purposes’ mean military activity carried out inside the hospital, then, if a government shell fell on a hospital, the burden is on the government to show that there was some military activity going on inside that hospital.  Otherwise, the mere fact of the shell falling on the hospital, as the OISL would have it, is by definition a war crime.

What OISL has done is this:  it has conceded that on some occasions where Government shells fell on hospitals the Government has a defence, but, on other occasions, unless the Government can definitively establish that military activity was going on inside the hospital in question, the mere fact of a Government shell falling on that hospital constitutes a war crime.

In my view, to show that the OISL’s claim that it had no information of the LTTE using hospitals for ‘military purposes’ is an outright lie, it is necessary to ask two questions.  One, ‘In any of the documents that OISL cites in the report itself, and cites favorably in order to support various contentions, is there any indication that the LTTE placed guns inside hospitals or fired from inside hospitals?’

And two, ‘Given the intensity of the fighting that was taking place during the last phases of the war, is the dichotomy that the OISL tries to set up—i.e. between the LTTE placing guns inside hospitals or placing guns in close proximity to hospitals—a relevant distinction to decide whether the LTTE was using hospitals for ‘military purposes’?

I consider that the first question can be answered in the affirmative, and the second in the negative, and give my reasons below.  I shall present three types of evidence, which for convenience I designate as ‘primary,’ ‘secondary’ and ‘incidental’ documents.

PRIMARY DOCUMENTS

By ‘primary documents’ I mean documents that figure prominently in the process at the UNHRC that ended in the international investigation against Sri Lanka being authorized by UNHRC resolution A/HRC/25/L.1.  These documents are cited in the OISl report itself, to support various contentions, which means OISL cannot deny it knew of the documents, and also, that it accepted them as credible.

The document relied on most by the High Commissioner throughout the process of recommending an international investigation against Sri Lanka is the Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (POE) released in 2011.  Here, meanwhile, is a reference to the POE in page 171 (Chapter 13) of the OISL report:

The GPS coordinates of the hospitals were reportedly relayed to the Sri Lankan security forces on or around 26 April.[8]

The above remark is footnoted as ‘WS on file; Report of the UN Secretary General’s Panel of Experts on Accountability in Sri Lanka (footnote 910).  Clearly, the OISL is citing the POE in the above instance in support of a particular contention, which means that OISL has accepted the POE as a credible source.

If one turns to the POE, however, one finds the following, in the third page of that report:

From February 2009 onwards, the LTTE started point-blank shooting of civilians who attempted to escape from the conflict zone, significantly adding to the death toll in the final stages of the war.  It also fired artillery in proximity to large groups of internally displaced persons (IDP’s) and fired from, or stored military equipment near IDP’s or civilian installations such as hospitals.[9]

I draw the reader’s attention to the phrases, ‘fired from, or stored military equipment near…hospitals.’  The phrase ‘fired from’ obviously means ‘fired from inside hospitals.’

Thus, one finds in page 171 of its report, OISL uses the POE to support a particular contention, which means, one, the OISL cannot deny that they knew about the POE, and two, that they accepted the POE as a credible source.  But, in page 152, OISL makes a claim (i.e. they had no evidence of any kind that the LTTE used hospitals for military purposes) they simply cannot make if they had read the POE in its entirety.

SECONDARY DOCUMENTS

By ‘secondary documents’ I mean documents that may or may not be cited in the report itself, but documents whose credibility OISL cannot be expected to automatically grant.  Nevertheless, these documents were available in public sources at the time the report was being prepared, so it is very difficult for the OISL to say it was unaware of the contents of these documents.

(The mandate given to the OHCHR, transmitted to OISL in turn, was to carry out a ‘comprehensive investigation.’ For OISL not to have perused relevant documents available in public sources that could shed light on the matters being investigated is, in my view, to admit to gross negligence.)

I limit myself to four documents:  the Report of the Lessons Learnt and Reconciliation Commission (LLRC); Special Report No. 34 of the University Teachers for Human Rights (Jaffna); a Wikileaks revelation of a cable sent by the then US Ambassador to Geneva, of an interview with the head of operations of the ICRC[10] in Sri Lanka in 2009; finally, an affidavit submitted to OISL by one Dr. V. Shanmugarajah, the Medical Superintendent of the Mullaitivu General Hospital.

a) LLRC Report

Here is a series of relevant passages from page 76 of the report:

A nursing officer who was attached to the Mullaitivu General Hospital and had served at several medical facilities during the last phase of the conflict stated with regard to the Vallipunam makeshift hospital that on 21^st January 2009, after 7 pm, shells had fallen in the vehicle park at the hospital and a few patients had suffered minor injuries.  When questioned further he stated that he did not know from where the shells came.  He went on to say that there was a refugee camp close to the hospital which had been hit by the shells and around 40 people had died.  He added that while there was no LTTE presence in the hospital premises, there was an LTTE presence about 500 meters away.[11]

A nursing officer who served at the Anandapuram makeshift hospital stated that the facility had functioned for about 20 days in February 2009.  There had been a large armoury located near the hospital and there had been a Kfir attack on the armoury which had destroyed it.  He added that two days later there had been a similar attack on the makeshift hospital but by then the patients had been moved as the Medical Superintendent had decided to shift the hospital after the attack on the armoury.[12]

The LLRC has footnoted each of the above statements as representations made before the Commission by particular civilians, and given the transcript number of the testimony (on file with the LLRC and accessible to the public).

b) University Teachers for Human Rights (Jaffna), Special Report No. 34, 13 December 2009

Here are a few relevant passages from the aforesaid report:

On 1^st February afternoon between 3.00 and 4.00 PM Puthukkudiyiruppu Hospital was struck by two shells, according to ICRC statements, hitting first the kitchen and then the church.  Two persons were killed.  A statement on that day quoted Morven Murchison-Lochrie, an ICRC medical coordinator present in Puthukkudiyiruppu, ‘The staff are under acute stress, surrounded as they are by the sound of ongoing fighting and the influx of new patients.  Ambulances are constantly arriving, but people are also being brought in by wagon, tractor, and even motor scooter.’  She added that despite this, the staff remained inventive and committed to caring for the injured and sick who had made the dangerous trip to the hospital.’

ICRC reported that a few hours later at 10.20 PM the same day (1^st February) a ward with women and children was hit.  This time the hospital had more than 800 people sheltering thee, including 500 in patients.  In all nine persons were killed and twenty injured on that day.  On 2^nd February at 6.40 PM the hospital was hit again and a nurse was injured.  One factor behind the shelling was that the Army’s 59^th Division, which advanced from Mulliavalai, eight miles south, was trying to fight its way and take Puthukkudiyiruppu.  The Army was then not far to the south of the hospital.  The LTTE had gun mounted vehicles which were used to fire at Kfir bombers coming in support of the Army, even though the firing had, if anything, no more than a slight deterrent effect.

A senior educator familiar with the hospital told us that the LTTE largely disregarded the ICRC’s request not to drive or park its vehicles in front of the hospital, as these could be spotted by the UAV’s leading to shell attacks.[13]

c) Wikileaks revelation of a cable sent by US Ambassador to Geneva Clint Williamson to his bosses in Washington  

US Ambassador to Geneva (UNHRC) was reporting to Washington the gist of an interview with the ICRC’s then head of operations for Sri Lanka, Mr. Jacque de Maio.  Here is a particularly relevant passage:

On the LTTE, de Maio said that it had tried to keep civilians in the middle of a permanent state of violence.  It saw the civilian population as a ‘protective asset’ and kept its fighters embedded amongst them.  De Maio said that the LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred.  They would often respond positively when ICRC complained to the LTTE about stationing weapons at a hospital, for example.  The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter.[14]

d) Affidavit of Dr. V. Shanmugarajah, Medical Superintendent of the Mullaitivu General Hospital

As I mentioned earlier, Dr. Shanmugarajah was Medical Superintendent of the Mallaitivu General Hospital.  From January-May 2009 he followed the civilian population that was then being herded from place to place by the LTTE as it retreated before the advancing Sri Lanka Army.  He oversaw a number of the makeshift hospitals that were set up to treat civilians.  The following is a relevant passage from the said affidavit:

I had at various points in the conflict remonstrated with LTTE commanders about munitions being placed near to hospital buildings.  Sometimes they were sensitive to the need to remove these munitions and at other times my objections were ignored.  During the last two weeks of the fighting there was a breakdown in the command structure of the LTTE and no request that I made to move munitions away from the hospital were listened to.[15]

INCIDENTAL DOCUMENTS

By ‘incidental documents’ I mean documents that to my knowledge are never cited in the report itself, and also never explicitly state that the LTTE used hospitals for military purposes.  But, these documents were available in public sources at the time the report was being prepared, and vouch for other facts, from which a reasonable inference can be drawn that the LTTE probably used hospitals for military purposes also.

Given the limitations of time, I limit myself to just one document:  Pawns of Peace:  Evaluation of Norwegian Peace Efforts in Sri Lanka 1997-2009, released in 2011.  This was the report officially commissioned by the Norwegian Government to find out what had gone wrong with its ‘peace efforts’ in Sri Lanka.  The report was produced by a team of specialists in England.  Here are a few relevant passages:

The LTTE’s human shield of hundreds of thousands of civilians—who are not allowed to escape—form a crucial part of the insurgents’ defence….Soon after the conquest of the strategic Elephant Pass (9 January) and the remaining pockets on the Jaffna Peninsula (14 January) the Government unilaterally declares a No Fire Zone (NFZ) on the LTTE’s Southern and Western defence line (21 January).   Dropping leaflets from the air, it requests civilians to move there while the offensive continues.  The LTTE continues to fire from inside the Zone….

In the following days, the District Hospital and the Ponnambalam Hospital in Puttukkudiyiruppu, packed with injured people (as well as wounded LTTE cadre in the second hospital) get bombed.

On February 3, a co-chair statement publicly asks the LTTE to lay down arms and suggests both parties declare a cease-fire and resume dialogue.  The insurgents ignore the statement.  LTTE (child) recruitment and forced detainment of the civilian population in the war zone continues as the army keeps moving forward.  As the Front Line moves, Puthukkudiyiruppu’s hospital is moved further into LTTE territory, but shelled again on 9 February.[16]

ANALYSIS, ASSESSMENT AND CONCLUSION

Recall that, the task at hand is to answer two questions:  one, ‘Is there information in any document that OISL cannot deny it had in its possession at the time the report was being prepared, a document moreover whose credibility OISL had accepted, that indicates that the LTTE placed guns inside hospitals, which is to say, used hospitals for ‘military purposes’ as OISL defined that term?’

And two, ‘Given the circumstances of the last phases of the war, is the dichotomy that OISL tries to set up—i.e. between placing guns inside hospitals and placing guns in the vicinity of hospitals—as a relevant distinction to decide if hospitals were used for ‘military purposes’?’

The first question can be answered easily.  As I showed earlier, the OISL report cites the POE specifically in page 171.  Moreover, the POE was the principal basis for the High Commissioner’s recommendations for an international investigation, recommendations that ended in resolution A/HRC/25/L.1 that authorized such investigation.  Thus, the OISL cannot deny the credibility of the POE.

The POE, however, in its third page, says that the LTTE among other things ‘fired from’ hospitals, meaning, fired from inside hospitals.  This directly contradicts OISL’s statement that it had absolutely no information that the LTTE used hospitals for military purposes, which is to say, fired or conducted other military activities from inside hospitals.  In short, OISL is caught in an outright lie.

The second question is a bit more complicated, but also more interesting.  It gets one to consider the OISL’s duties and responsibilities in carrying out the investigation, and whether the OISL fulfilled such duties and responsibilities to a satisfactory degree.

Let us suppose, for a moment, that the members of the OISL team—every single one of them—though they had the POE in their hands, failed to read page three of that report, and therefore were genuinely unaware that there was any information in existence that the LTTE fired from inside hospitals.

But, OISL readily admits that it had information the LTTE placed guns in close proximity to hospitals, and also launched attacks from those positions.  OISL doesn’t ask the question that flows from the above admission, namely, ‘Was the LTTE’s conduct of placing guns close to hospitals a part of a deliberate strategy of war, or simply accidental or random acts?’  If it was a deliberate strategy of war, then the question as to whether such conduct served ‘military purposes’ is automatically answered.

One must therefore look to the secondary and incidental documents in order to answer the above question.  I have cited four secondary documents and one incidental document.  They were all available in public sources at the time the report was being prepared, so OISL cannot deny knowledge of them.

Even if the OISL were to suggest that some of the documents—for instance the LLRC and Dr. Shanmugarajah’s statement—cannot be trusted because both the LLRC and Dr. Shanmugarajah were connected in one way or another with the Government, the OISL cannot say the same thing about the other documents.

For instance, what reason would the experts hired by Norway have to favour the Sri Lanka Government?  The same goes for the head of the ICRC.  In short, it is highly implausible that the LLRC, the UTHR (Jaffna), the head of the ICRC in Sri Lanka, and Dr. Shamugaraja, have all conspired to whitewash the conduct of the Government.

The point is this.  All these documents unequivocally recognize that, during the last phases of the war, the LTTE followed a deliberate strategy of using the civilians as a human shield.  The Norwegian report says explicitly:  ‘The LTTE’s human shield of hundreds of thousands of civilians…form a crucial part of the insurgents’ defence.’  Meanwhile de Maio the ICRC head indicates to Williamson that in his view the LTTE saw the civilians as a ‘protective asset.’

In my view, if the above was the reality on the ground, and one is told that the LTTE placed guns in close proximity to hospitals, and also launched attacks from those positions, the overwhelming inference one can draw under the circumstances is that the LTTE’s said conduct was part of its strategy of using civilians as a human shield.

In other words, the purpose behind placing guns near hospitals or launching attacks from such positions was to deter or discourage counter-attacks by the Army, and thereby to protect assets that they (i.e. the LTTE) needed in order to continue their fight, which is to say, to further or advance their military objectives.

If the above is the overwhelming inference that can be drawn from the available evidence, then the OISL has a duty and an obligation to draw it.  It is unreasonable for OISL to draw an inference that is entirely contrary to what is suggested by the available evidence, unless the OISL has in hand other evidence that suggests such different inference.

OISL, however, accepts that the LTTE placed guns near hospitals and also launched attacks from such positions, but does not say it has evidence to suggest the LTTE did the aforesaid things for some purpose other than as part of its military strategy during the past phase of the war.

Under the circumstances, in my view, the only reasonable conclusion OISL could have reached is that if Government shells fell on hospitals (and there’s no question some did) it was an accident, and the relevant question is whether the Government took all feasible precautions to minimize civilian casualties knowing that attacking the vicinity of hospitals meant there was a danger of hitting the hospitals also.

To summarize, all the available evidence points to the Government allowing attacks on the vicinity of hospitals, for the quite legitimate purpose of thwarting attacks coming from those positions, but at times hitting hospitals by accident.  The OISL twists the above to insinuate that the Government deliberately targeted hospitals, saying that there was no LTTE military activity inside the hospitals at the time, and it is the Government’s duty to establish that such activity was in fact going on if it wanted to defend its actions.

Thus, the OISL tells a second outright—and if I may interject a personal note—disgraceful lie.   So much then for ‘outright lies’ in the OISL report.  In the next installment, I shall turn to ‘obfuscations.’

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 OHCHR report is the only document officially sponsored by the United Nations that accuses Sri Lanka as a State of committing war crimes, that is, suggests that a case for ‘Command Responsibility’ exists with respect to the said crimes.  As such, any attempt by the Government to investigate and/or try persons for war crimes based on recommendations made in a resolution of a UN organ, has to be in response to allegations contained in the OISL report, and nothing else.  Normally, there’s a burden on a person or party that accuses another of wrongdoing to establish that the allegations of wrongdoing are prima facie credible.  Therefore, it is reasonable to suppose that public officials who act on the allegations contained in particular report, have a responsibility to first subject such report to an official assessment, to test the veracity and credibility of the allegations contained therein.

[2] See, ‘Spadework underway for war crimes probe-FM,’ The Island, 8 January 2016

[3] Published in www.lankweb.com on 29 September 2015

[4] A/HRC/30/CRP.2, page 152, paragraph 772

[5] Ibid, paragraph 773

[6] Ibid, paragraph 774

[7] Ibid, paragraph 777

[8] Ibid, page 171

[9] Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, pg. iii, www.un.org

[10] International Committee of the Red Cross

[11] Report of the Lessons Learnt and reconciliation Commission (LLRC) November 2011, page 76, paragraph 4.119

[12] Ibid, paragraph 4.121

[13] UTHR (Jaffna) Special Report No. 34, 13^th December 2009, paragraph 2.6

[14] Sri Lanka: S/WCI Amb. Williamson’s Geneva Meetings, www.aftenposten.no

[15]‘Dr. V. Shanmugarajah’s Affidavit Description of Conditions in the Vanni Pocket,’ www.thuppahi.wordpress.com

[16] Pawns of Peace:  Evaluation of Norwegian Peace Efforts in Sri Lanka, 1997-2009, September 2011, www.oecd.org, pages 65-66