Missed Opportunities War crimes
Posted on September 6th, 2016

By Shamindra Ferdinando Courtesy The Island


In the wake of UNSG Ban Ki-moon reiterating his commitment to Geneva-led accountability process, we should re-examine Sri Lanka’s response to war crime allegations.

Let me first, mention specific allegations directed at the previous government after the war ended in May 2009. Sri Lanka paid a very heavy price for failing on the Geneva front.

Main allegations

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(A) The Government of Sri Lanka (GoSL) ordered UN/INGOs to vacate Kilinochchi, in September, 2008, to conduct a war without witnesses.

(B)Vanni population denied medicine, food and other basic needs.

(C) Coordinated mortar/artillery/MBRL attacks on civilian population. Channel 4 News alleged the then Secretary Defence and the then Army Commander executed the operation.

(D) Massacre over 40,000 civilians.

(E) Rape of combatants/civilians. Subsequently, the military was accused of abusing men.

(F) The use of cluster bombs

Primary evidence

Geneva was moved on the basis of about 4,000 submissions received by the three-member Darusman Panel. About 2,300 persons furnished information to the panel. But the UN directed that these accusations cannot be verified until 2031. Even then, verification has to be approved by the UN.

Critical failure

The Lessons Learnt and Reconciliation Commission (LLRC) lacked the mandate to address specific allegations. The GoSL ignored the need to conduct a thorough inquiry into the conflict, particularly human rights violations.

President Sirisena’s opinion

Addressing the media, at the Janadhipathy Mandiraya, on April 27, 2016, President Maithripala Sirisena claimed that his predecessor, Mahinda Rajapaksa, had no option but to call for early presidential polls because he couldn’t face the Geneva allegations. President Sirisena and the UNP repeated the allegation. They also claimed impending economic crisis, too, influenced the decision. President Sirisena repeated these claims last week.

Glaring omissions

The GoSL ignored two critical events (A) In June, 2011 (over two years after the war) the then Colombo – based US Defence Attache, Lt. Colonel Lawrence Smith, defended GoSL at a seminar organized by the Army. The seminar dealt with ‘Defeating Terrorism: The Sri Lanka Experience.’ In response to a question, regarding the alleged move by some LTTE cadres to surrender during the last few days of the war, the US official denied that possibility, thereby effectively contradicting those propagating the massacre of surrendering persons. The Island exclusive, on the US official’s reaction, was ignored by the GoSL.

This is what Lt. Col. Lawrence Smith had to say.: “Hello, may I say something to a couple of questions raised. I’ve been the Defense Attache here, at the US Embassy, since June, 2008. Regarding the various versions of events, that came out in the final hours and days of the conflict-from what I was privileged to hear and to see – the offers to surrender, that I am aware of, seemed to come from the mouthpieces of the LTTE, Nadesan, KP, people who weren’t and never had really demonstrated any control over the leadership or the combat power of the LTTE.

So their offers were a bit suspect anyway, and they tended to vary in content, hour by hour, day by day. I think we need to examine the credibility of those offers before we leap to conclusions that such offers were, in fact, real.

And I think the same is true for the version of events. It’s not so uncommon in combat operations, in the fog of war, as we all get our reports second, third and fourth hand from various commanders at various levels, that the stories don’t seem to all quite match up. But, I can say that the version presented here so far in this is what I heard as I was here during that time. And, I think I better leave it at that before I get into trouble.”

The GoSL refrained from referring to the US statement. The GoSL, for some strange reason, ignored the INCREDIBLE statement made over two years after the LTTE’s defeat. As the senior Colombo-based US military official, he would have certainly had access to all relevant information.

The US State Department asserted that the US military official hadn’t been at the Defence Seminar on an official capacity. The GoSL remained silent. Don’t forget the State Department NEVER contradicted the statement. Instead it disputed the military official’s right to make that statement.

The GoSL should seek the former US Defence attache’s evidence before the proposed war crimes court, expected to be established next year.

(B) The GoSL never bothered to take advantage of leaked US diplomatic cables (Wikileaks) in spite of them being crucial for its defense. One leaked cable dealt with a discussion Geneva-based US Ambassador Clint Williamson had with ICRC Head for Operations for South Asia Jacques de Maio. The US envoy declared on July 15, 2009, that the Army actually could have won the battle faster with higher civilian casualties, yet chosen a slower approach which led to a greater number of Sri Lankan military deaths.

The Army lost nearly 2,500 officers and men during January-May 19, 2009. Thousands suffered injuries. The GoSL never bothered to examine leaked US diplomatic cables until it was too late. The Paranagama Commission, in its Second Mandate perused Wiki leaks. The Paranagama Commission pointed out that Wiki Leaks were admissible in court, in accordance with a ruling given in the UK. Both ICRC and US officials should be able to explain the ground situation before the proposed war crimes court. They may opt to give evidence in camera.

Other developments, advantageous to GoSL

Deployment of Indian medical team at Pulmoddai, north of Trincomalee, to receive the wounded, transferred from Puthumathalan under ICRC supervision. The Indian team remained there until the conclusion of the war. The Indian team received several thousand wounded civilians during February-May, 2009 via sea. The government commenced transferring war wounded by sea soon after fighting blocked overland routes to and from Vanni east. Both ICRC and India can furnish details regarding evacuations by the sea. Don’t forget the vessels deployed to evacuate the wounded transported several thousands of essential supplies to Puthumathalan. Foreign relief workers were also allowed to go ashore.

Allegations, in respect of the Vanni population being denied medicine, food and other basic needs, should be probed against the backdrop of supplies made available to Puthumathalan, until the second week of May, 2009. The war ended in the following week. India and ICRC, too, should be requested to explain their roles in the operation.

Contradictory claims in respect of 40,000 civilians killed

The GoSL never sought an explanation from Geneva in respect f the number of civilians perished during the eelam war IV. Those who had been strongly opposed to foreign intervention, too, failed to take it up.

* British Labour Party MP Siobhan McDonagh (Mitcham and Morden-Labour) told the House of Commons, in September, 2011, that 60,000 LTTE cadres and 40,000 Tamils perished during January-May 2009. She made the only specific reference to the number of LTTE cadres killed during a certain period. The MP ignored my emails seeking a clarification regarding her sources. The British HC in Colombo declined to comment on the MP’s claim.

*Special Amnesty International report titled ‘When will they get justice: Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission’, also released in September, 2011, estimated the number of civilian deaths at 10,000.

* A confidential UN report placed the number of dead, and the wounded, including LTTE combatants, at 7,721 and 18,479, respectively. The report dealt with the situation in the Vanni, from August, 2008, to May 13, 2009. The War ended a week after the UN stopped collecting data due to the intensity of fighting. The vast majority of the wounded civilians were evacuated by the ICRC. The Indian medical team, tasked with receiving them, should be able to explain specific measures taken by India to assist the wounded. The UN is yet to release the report though it was made available to Darusman. Will it be placed before the proposed judicial inquiry? It would be pertinent to mention that the UN report had been based on information provided by those who were trapped in the war zone and even today further verification can be made as the identities of those who had provided information are known to the UN. Darusman refused to accept the report as it contradicted his own claim. GoSL should seek the presence of the Amnesty International, UK MP as well as the wartime UN head, before the judicial inquiry. Sri Lanka never bothered to conduct a comprehensive inquiry taking into consideration all relevant information.

US Defence Advisor confirms Norwegian assessment (Pic of Hattrem’s letter) Wartime Norwegian Ambassador, in Colombo, Tore Hattrem, on February 16, 2009, asserted that the LTTE was unlikely to release civilians held on the Vanni east front. The following is the text of the Norwegian’s missive addressed to the then presidential advisor, Basil Rajapaksa: “I refer to our telephone conversation today. The proposal to the LTTE on how to release the civilian population, now trapped in the LTTE controlled area, has been transmitted to the LTTE, through several channels. So far there has regrettably been no response from the LTTE and it does not seem to be likely that the LTTE will agree to this in the near future.”

The US Defence attache, in June 2011 (over two years after the war) confirmed there had never been an agreement or an understanding regarding organized surrender between the GoSL and the LTTE through the intervention of the UN or Western governments. GoSL never sought to use available information on the Geneva front. UN role in LTTE human shields

The UN remained silent and engaged in secret negotiations with the LTTE even after the group detained Tamil UN workers for helping people to leave the Vanni west, in early, 2007. Co-Chairs to Sri Lanka Peace Process knew what was happening. They, too, remained silent. The UN mission in Colombo kept UN headquarters in the dark. The UN Colombo never contradicted exclusive The Island reports in this regard. Other print and electronic media ignored the issue. However, UN New York confirmed The Island reports. Had the UN, Western powers, the TNA and foreign-funded civil society organizations, intervened on behalf of the Vanni population, in early 2007, they wouldn’t have ended up as human shields on the Vanni east front.

Response to UN accusation that Vanni population denied food and medicine

The minutes of Consultative Committee on Humanitarian Assistance (CCHA) meetings can prove the UN and Western governments never complained about food and medicine shortage. Then President Rajapaksa set up CCHA in Oct 2006 to ensure essential supplies to the Northern Province. I have the entire set of CCHA documents. CCHA included the UN, the US, the UK and all key international NGOs operating in Sri Lanka at that time.

India’s accountability

GoSL never referred to the origins of terrorism at Geneva. In January, 2004, one-time Indian High Commissioner in Colombo, J.N. Dixit, faulted former Indian PM Indira Gandhi for intervening in Sri Lanka. The GoSL never exploited Dixit’s statement. GoSL refrained from at least referring to India’s role during Geneva sessions. Now, the issue is whether reference can be made of India’s role in the proposed war crimes court set up under the Geneva Resolution. Office for Missing Persons

The ICRC, Foreign Ministry and  Paranagama Commission have furnished vastly different numbers with regard to missing persons. The UN, too, discusses the issue. They ignore the issue of thousands of Sri Lankans living overseas though being listed missing. A comprehensive investigation will expose those hiding overseas. Let me highlight three cases (A) Front line Socialist Party leader Kumar Gunaratnam received an Australian passport, bearing the name Noel Mudalige (B) The Army was accused of killing wartime Vanni Tech Director Thayapararajah in Sept. 2009. Thayapararajah was arrested along with wife and children in Tamil Nadu in May, 2014 (C) ex-LTTE cadre Anthonythasan, declared missing since early 90s, appeared in an award-winning French movie Dheepan last year. The media quoted the ex-Tiger as having said: “I came to France because at the time I was able to only find a fake French passport and not a fake British or Canadian passport.”

Having failed to obtain sufficient number of complaints, Darusman panel or the Panel of Experts (PoE), issued 25 sample letters online to attract so called victims.

The following is the first sample:

To: Mr. Marzuki Darusman, Chairman

To: Mr. Steven Ratner, Panel Member

To: Ms. Yasmin Sooka, Panel Member

Re: Through U.N. investigation Sri Lanka’s war criminals must be brought to books.

Tamils in Sri Lanka have gone through several rounds of communal violence, tacitly supported by successive Sinhalese-led governments and its armed forces, since Independence. Since 1956, Tamil minority rights and Tamils were used as political pawn in Sri Lankan polity to hold on to power. The minority Tamils were systematically and routinely subjected to all kind of atrocities, including ‘war crimes’, ‘crimes against humanity’ and ‘genocide’ in order for the Sinhala political parties to woo the Sinhala masses in the name of majority hegemony.

Meanwhile, in another development, Gotabhaya Rajapaksa, the Defence Secretary, of the Sri Lankan government, has threatened to execute Sarath Fonseka, the army commander, who delivered victory over the Tamil Tigers, if he continues to suggest that top officials may have ordered war crimes during the final hours of the Tamil war. During an interview with BBC’s Stephen Sackur, Sri Lanka’s defence secretary Gotabaya Rajapaksa said General Fonseka was a liar and a traitor. A US-based activist group, claimed, that it has obtained a 100-page long sworn affidavit from a senior commander of the Sri Lanka Army (SLA) who has fled Sri Lanka, seeking asylum for himself and his family. SLA Commander’s affidavit contains incriminating information in several areas.

But more than that, there is substantial body of credible evidence pointing to the commission of war crimes by government forces, including attacks on humanitarian operations, attacks on hospitals and deliberate shelling of civilians enticed by the government to seek protection in the safety of “No Fire Zones.” I appeal to the panel of expert to ask the U.N. in no uncertain term that Sri Lanka should be investigated for ‘war crimes’, ‘crimes against humanity’ and ‘genocide’. Yours truly, Your Name, Contact Postal Address with the Residing country.

Another failure

The GoSL never examined or referred to the infamous Goldstone case. Judge Richard Goldstone, who accused both Israel and Hamas of war crimes in his report on the 2008-09 conflict, revealed in a newspaper article that subsequent internal Israeli inquiries had made him revise his opinion. “If I had known then what I know now, the Goldstone Report would have been a different document,” he said. UNHRC accepted Goldstone’s stand though other members of panel strongly stood by the report.

Critical Omission

Having met UNSG Ban Ki-moon, in Jaffna, last Friday, TNA MP M.A, Sumanthiran declared that they had received an assurance from Ban that the Geneva Resolution would be implemented. Before attorney-at-law Sumanthiran threw his weight behind the TNA, the outfit worked closely with the LTTE. Strangely, GoSL never sought an explanation from the TNA.

The GoSL never bothered to probe TNA’s relationship with the LTTE. Can war crimes investigation take place without inquiring into the TNA’s wartime conduct? Due to GoSL’s failure, today, TNA plays a significant role in pursing war crimes, investigation.

The TNA deals directly with the US and Geneva in spite of its sordid past

In early Nov. 2005, TNA on behalf of the LTTE, ordered Tamil speaking people to boycott the presidential polls. Those who had been accusing the then Prime Minister Mahinda Rajapaksa of bribing the LTTE to help defeat UNP leader Ranil Wickremesinghe, at the Nov 2005 presidential polls, never asked Sampanthan why he prevented Tamils from exercising their franchise. The TNA action should be studied against the backdrop of Sampanthan declaring the LTTE as the sole representative of the Tamil speaking people in the run-up to the April, 2004 general election. The EU Election Observation Mission, in its final report, alleged that the TNA won the Northern and Eastern electoral districts with the help of the LTTE. The TNA never challenged the EU report. Strangely, the Elections Commissioner never sought an explanation from the TNA. The GoSL should have raised the TNA-LTTE partnership in Geneva. Jaffna District TNA MP Sumanthiran, in June this year, declared, in Washington, an understanding among GoSL, US and TNA regarding foreign judges in the proposed war crimes court.

As pressure mounted on the Geneva front, the GoSL hired expensive US PR firms to defend Sri Lanka. Between May-Sept, 2014, GoSL paid a staggering $ 6.5 mn to these groups. But the total amount paid to foreign PR firms is much more. Actually the FCID should conduct a thorough investigation into payments made to US PR firms as well as similar payments made in India and the UK. Those opposed to UN intervention should now pressure the government to take up all available information to defend Sri Lanka’s image. It would be of pertinent to mention that none of the above mentioned facts had been formally taken up with the UN or the countries involved in the Geneva project.

To be continued on Sept. 14……/.

3 Responses to “Missed Opportunities War crimes”

  1. Dilrook Says:

    I put most blame on Mahinda for bungling the war crimes investigation matter. He was acting in good faith, trying to save reconciliation and win hearts and minds of Tamils. However, he was advised wrongly and he had wrong priorities.

    Outright denial is good for local consumption but from a legal point of view, it has no value. For instance, if someone is produced in court or police custody for a crime, does it help if he keeps denying the allegations without giving any reasons, if he challenges the police or points out how bigger crooks get away? These are not valid in law.

    Mahinda (rather his daft advisors) thought appeasing Tamils via the LLRC (with Tamil language promotion, devolution, development, not resettling Muslims and Tamils in the north, continuing with Thesawalamei law, demilitarisation and other irrelevancies) will shut up the war crimes investigation. It hasn’t. Ultimately, Tamils sucked up all these appeasements and now after war crimes investigations too. The feeder too has become food.

    The other reason for the stuff up is reconciliation. In the name of reconciliation, old wounds were not dug up, LTTE, ITAK, TNA, LTTE Rump, Indian and NGO abetted war crimes were totally disregarded. Had we investigated these, there could be clear evidence of their war crimes. This could have been used to counter allegations against Sri Lanka. ‘You prosecute soldiers, we prosecute TNA for abetting terrorism and war crimes’.

    The next reason to avoid delving deeper into war crimes investigations was political. Mahinda thought development (denied to the north and east for 30 years) would turn people there more amicable. An extremely idiotic position to take given a history of racism and violence in these provinces, especially when those provinces were relatively prosperous. For instance, the government was unable to defend allegations why hospitals in LTTE controlled areas were damaged and some people inside them died from army attacks. The truth is LTTE used these to attack the army and the army going by the Geneva Convention rightfully attacked these LTTE positions near hospitals. Collateral damaged occurred. However, admitting this would earn the wrath of Tamil people. Tamils will argue that the government deliberately shelled near hospitals which killed civilians as they know nothing of the Geneva Convention and that it is perfectly lawful.

    There is no obligation on the part of the government to investigate the 40,000 claim. Those who assert (40,000) must prove it with facts and figures. Why should we care? Let those that allege it prove. After that, we can attack their arguments.

    Instead, the government wasted millions of dollars on PR agencies and sham commissions with limited investigative powers. The real issue is a legal issue, not a propaganda issue.

    The biggest damage done by the previous government was implicating the STF in war crimes in 2008 by a very senior politician close to the Commander In Chief. In his own words, he said “we know the STF did it but we cannot prove it”! He said this to none less than Robert Blake a well-known anti-Sri Lankan interferer. That was sufficient. Later Darusman (among other foreign judges and lawyers) were invited into a commission to investigate the ACF ruckus. This not only gave Darusman a taste of what it is to manipulate things which he later used in the UNSG’s POE report in 2011 but also set a very bad precedence that international lawyers and judges are needed for an investigation.

    All this could have been avoided and even turned against the very terrorists that allege the military of war crimes with a few intelligent moves. What matters is only to win the legal argument, not winning (unwinnable) hearts and minds of Tamil people.

    Sirisena and Ranil will never do the right thing as they have (unlike Mahinda) won hearts and minds of Tamil people. The duo will keep appeasing Tamils and releasing terrorists. This is why when the opportunity was presented, it must have been grabbed.

  2. plumblossom Says:

    In the Missing Persons Act, a relative or a friend can make an official inquiry (but a totally bogus inquiry) from the Office of the Missing Persons (OMP) by email inquiring as to the whereabouts of their relative or friend.

    There are over 8 lakhs to 10 lakhs Tamil diaspora asylum seekers (actually economic migrants), a vast majority of who support the separatist terrorist LTTE and its aim of a separate state. If even 40,000 of these Tamil diaspora who support the separatist terrorist LTTE write bogus emails to the OMP inquiring the whereabouts of their friend or relative (but this friend or relative is actually living alongside them in these countries i.e. the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India etc.) these inquiries will officially be accepted by the OMP as 40,000 missing persons.

    According to the provisions of the OMP Act, even if the OMP inquires after these let us say 40,000 and finds out that these are all bogus inquiries and that all these 40,000 persons are actually living alongside the inquirer i.e. their relative or friend and these complaints about these persons being missing are all bogus, the missing persons, now found by the OMP, can request that their whereabouts not be revealed to their relative or friend or be made public. So officially these 40,000 persons will still be missing!!!

    Then the OMP will use these bogus 40,000 missing persons (who are actually living comfortably in the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India etc.) as manufactured ‘evidence’ that war crimes happened in Sri Lanka (and all these bogus inquirers will state that these persons went missing during the 2006-2009 period) and our Sri Lankan Armed Forces will be persecuted for committing war crimes that they never, ever committed by a judicial process using these bogus email inquiries.

    The Missing Persons Act states specifically that if the missing person who is now found requests that the fact that they are now found not be revealed to the public that person will remain as missing as far as the OMP is concerned. That is how the OMP will manufacture bogus ‘evidence’ of 40,000 missing persons so that the Sri Lankan Armed Forces can be persecuted for committing bogus war crimes.

    The OMP emails cannot be checked by any outside body as stated in the Act since all evidence (almost all bogus) gathered by the OMP remains confidential. The OMP cannot be taken to the Supreme Court on this issue. However the OMP should absolutely and immediately be taken to the Supreme Court regarding what has been written above which is what would happen when this OMP is set up.

    The OMP will become a bogus ‘evidence’ manufacturing machine which will gather such bogus inquiries via email from those members of the Tamil diaspora who are supportive of the LTTE terrorists and who will send bogus email inquiries by their thousands. All these bogus inquiries (of people who are actually living in the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India etc.) will then be misused as missing person inquiries.

    I did not realize that the Sinhalese were this stupid as to allow such a process within the Missing Persons Act which can be blatantly misused in order to manufacture bogus ‘evidence’ like this. The OMP process is not transparent, it will happen in totally secrecy, no one in Sri Lanka will be able to question it, not our police, not our courts, not our Sri Lankan citizens, nobody. All the OMP will do is gather bogus email ‘evidence’ such as described above which will then be misused as missing person inquiries to try the Sri Lankan Armed Forces for bogus war crimes that they never, ever committed.

    The OMP process as described above must be stopped immediately. If a relative or a friend really and genuinely wants to find out about their genuinely missing relative or friend (i.e. perished LTTE terrorist), they can make a complaint to the OMP in person in public. This is the only way that Sri Lanka and the world will know that their inquiry is genuine. This was the methodology followed by the earlier Paranagama Commission which then received 23,000 complaints from relatives or friends of the missing person (i.e. perished LTTE terrorist or our perished Sri Lankan Forces soldiers) but they made their complaint in public in person to the commission. This is the only way to ensure authenticity and make the process transparent since this happens in the public arena. However, even with such safeguards, even some of those complaints may have been bogus.

    The OMP should be stopped immediately since it is not a transparent process at all as described above but a totally secretive process where no one and nobody can request to be provided an opportunity to even peruse, investigate or look at the email inquiries received by the OMP. If the UNHRC, the US, UK, EU, Canada, Sweden, Norway, Australia, New Zealand, India, the TNA and the separatist terrorists genuinely want to find out about perished LTTE terrorists, this Yahapalanaya Government could expand and extend the scope of the already set up Paranagama Commission in order to make such inquiries. This process should be totally following Sri Lankan Law, within Sri Lankan jurisdiction, paid for totally by the Sri Lankan Government only and with only Sri Lankan citizens appointed as commission members and investigators. In fact the entire staff should be composed Sri Lankan citizens only. The process should be a totally domestic process with no interference or input whatsoever from foreign countries. Most importantly, all complaints should be made in person by relatives and friends in public if their complaint is genuine.

    The Missing Persons Act is totally dangerous as pointed out above and should be dismissed totally as it is highly dangerous and a totally secretive process as described above designed and set up to manufacture bogus ‘evidence’ against the Sri Lankan Armed Forces.

  3. S.Gonsal Says:

    Real opportunity for the country was irradiation of LTTE terrorism. That opportunity was not presented but earned with a great sacrifice of Sinhala ( and some Muslim) youth and any leader with a heart will never betray the country by destroying all that was gained by partying and trying to gain political mileage out of it.
    99.99% of the current politicians sitting in the parliament fall into this category.

    Dilrook said “….appeasing Tamils via the LLRC (with Tamil language promotion, devolution, development, not resettling Muslims and Tamils in the north, continuing with Thesawalamei law, demilitarisation and other irrelevancies) will shut up the war crimes investigation. ”
    I believe all this was done to win the minority votes and to show the world to avoid war crimes that did not happen. By doing so it reinforced the idea to the world that war crimes actually happened. Here we are not talking about isolated incidents here and there.
    Sunil Ratnayake case could have solved by proving he suffered from PTSD but it was dragged and made to the mercy of Batalanda. These actions are unforgivable.

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