KAMALIKA PIERIS

Three days after the   Eelam war IV ended in May 2009, United Nations Secretary-General  Ban Ki-Moon visited Sri Lanka     on the invitation of the President of Sri Lanka. A joint statement was issued which, inter alia, underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law during the Eelam war.

Thereafter Moon appointed a three-member Panel of Experts in June, 2010, to advise the   UN Secretary General on ‘the modalities, applicable international standards and comparative experience relevant to the fulfillment of the joint commitment to an accountability process having regard to the nature and scope of the alleged violations’. The   Panel would report directly to Secretary General.

The panel comprised of Marzuki Darusman, a former Attorney General of Indonesia, Yasmin Sooka, a high court judge from South Africa and Steven R. Ratner an American Professor of Law. This Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka” is also called the ‘Darusman report’ or ‘PoE report.

The Sri Lankan government reacted angrily to the appointment of this panel, calling it an unwarranted and unnecessary interference with a sovereign nation”. The Panel was not allowed to enter Sri Lanka. Sri Lanka government refused to allow them into the country and refused to talk to them.

The Panel started investigation in September 2010. A report of 214 pages, was published in   September 2011. Moon promptly forwarded the report to the Human Rights Council and the Office of the High Commissioner for Human Rights (OHCHR). The Report was welcomed by the United States and the European Union but criticized by Russia and China. The Sri Lankan government condemned the report as fundamentally flawed in many respects” and based on patently biased material which is presented without any verification”.

The Panel found credible allegations that comprise five core categories of potential serious violations committed by the Government of Sri Lanka: (i) killing of civilians through widespread shelling; (ii) shelling of hospitals and humanitarian objects; (iii) denial of humanitarian assistance; (iv) human rights violations suffered by victims and survivors of the conflict, including both IDPs and suspected LTTE cadre; and (v) human rights violations outside the conflict zone, including against the media and other critics of the Government.

The Panel said its findings reveal a very different version of the final stages of the war than that maintained by the Government of Sri Lanka. The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties”. In stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of International Humanitarian Law and International Human Rights Law were committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity. Indeed, the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.

The Report stated that the Government shelled on a large scale in three consecutive No Fire Zones, where it had encouraged the civilian population to concentrate, even after indicating that it would cease the use of heavy weapons. It shelled the United Nations hub. Its shells fell near food distribution lines and the International Committee of the Red Cross (ICRC) ships that were coming to pick up the wounded and their relatives from the beaches. It shelled in spite of its knowledge of the impact, provided by its own intelligence systems and through notification by the United Nations, the ICRC and others. Most civilian casualties in the final phases of the war were caused by Government shelling.

The Report said the army had advanced into the Vanni with widespread shelling causing a large number of civilian deaths. Most of the causalities were caused by government shelling. The army had used cluster munitions. It had systematically shelled hospitals on the frontlines. All hospitals in the Vanni were hit by mortars and artillery. Some of them were hit repeatedly, despite the fact that their locations were well-known to the Government. There was aerial bombardment, long range artillery, and close range fire. There was a sharp contrast between the hospital area and the surrounding area. The surrounding area showed no indication of any firing. Landmines were recovered by the Sri Lanka army outside the public eye in a process that may have resulted in the destruction of evidence. Tens of thousands lost their lives from January to May 2009, many of whom died anonymously in the carnage of the final few days. The Sri Lankan army had intentionally targeted Tamil civilians.

The Government also systematically deprived people in the conflict zone of humanitarian aid, in the form of food and medical supplies, particularly surgical supplies, adding to their suffering. To this end, it purposely underestimated the number of civilians who remained in the conflict zone. The UN food convoys were shelled on the way, The Ministry of Defense had even opposed a high nutrition biscuit which UNICEF wanted to send saying it would be used by the LTTE. The Defense Ministry has also imposed restrictions   on tarpaulins saying it could be used for war.

The Report  said the government ‘imposed extensive restrictions on convoy participants’ and on ‘food and medical supplies’, and that ‘the Government downplayed the number of civilians present in the LTTE-controlled area, using the low estimates to restrict the amount of humanitarian assistance that could be provided, especially food and medicine. It states that the ‘different calculations of need’ were ‘deliberately kept low’ and that as a result ‘the food delivered by WFP to the Vanni was a fraction of what was actually needed, resulting in widespread malnutrition, including cases of starvation.’The Report also concludes that ‘the medical supplies allowed into the Vanni were grossly inadequate to treat the number of injuries incurred by the shelling” and that the absence of the needed medical supplies imposed enormous suffering and unnecessarily cost many lives.’

The Government subjected victims and survivors of the conflict to further deprivation and suffering after they left the conflict zone. Screening for suspected LTTE took place without any transparency or external scrutiny. Some of those who were separated were summarily executed, and some of the women may have been raped. Others disappeared, as recounted by their wives and relatives during the LLRC hearings. All IDPs were detained in closed camps, with inhuman conditions. Massive overcrowding led to terrible conditions, breaching the basic social and economic rights of the detainees, and many lives were lost unnecessarily. Some persons in the camps were interrogated and subjected to torture. Suspected LTTE cadres were removed to other facilities, with no contact with the outside world, under conditions that made them vulnerable of further abuses.

The Panel observed that there were several other contemporary issues in Sri Lanka, which if left un-addressed, will deter efforts towards genuine accountability and may undermine prospects for durable peace in consequence. Most notably, these include:

(i) triumphalism on the part of the Government expressed through its discourse on having developed the means and will to defeat “terrorism”, thus ending Tamil aspirations for political, autonomy and recognition, and its denial regarding the human cost of its military strategy.

(ii) on-going exclusionary policies, which are particularly deleterious as political, social, and economic exclusion based on ethnicity, perceived or real, have been at the heart of the conflict

(iii) the continuation of wartime measures, including not only the Emergency Regulations and the Prevention of Terrorism Act, mentioned above, but also the continued militarization of the former conflict zone and the use of paramilitary proxies, all of which perpetuate a climate of fear, intimidation and violence;

(iv) restrictions on the media, which are contrary to democratic governance and limit basic citizens’ rights;

The main focus of the Report was not on modalities or standards, as stated in its terms of reference. It was on the subject of Accountability and specifically the accountability of the government of Sri Lanka.

Panel stated that Accountability for serious violations of international humanitarian or human rights law is not a matter of choice or policy; it is a duty under domestic and international law. These credibly alleged violations demand a serious investigation and the prosecution of those responsible. If proven, those most responsible, including Sri Lanka Army commanders and senior Government officials, as well as military and civilian LTTE leaders, would bear criminal liability for international crimes.

At the same time, accountability goes beyond the investigation and prosecution of serious crimes that have been committed; rather it is a broad process that addressed the political, legal and moral responsibility of individuals and institutions for past violations of human rights and dignity. Consistent with the international standards mentioned above, accountability necessarily includes the achievement of truth, justice, and reparations for victims.

Accountability also requires an official acknowledgment by the State of its role and responsibility in violating the rights of its citizens, when that has occurred. Panel stated that the Sri Lanka government notion of accountability is not in keeping with international standards. It must place the rights and dignity of the victims of the conflict at the centre of the approach to accountability.

Darusman Committee recommended:

1. In light of the allegations found credible by the Panel, the Government of Sri Lanka, in compliance with its international obligations and with a view to initiating an effective domestic accountability process, should immediately commence genuine investigations into these and other alleged violations of the international humanitarian and human rights law committed by both sides involved in the armed conflict.
2. The Secretary-General should immediately proceed to establish an independent international mechanism, whose mandate should include the following concurrent functions:

(i) Monitor and assess the extent to which the Government of Sri Lanka is carrying out an effective domestic accountability process, including genuine investigations of the alleged violations, and periodically advice the Secretary-General on its findings;

(ii) Conduct investigations independently into the alleged violations, having regard to genuine and effective domestic investigations; iii) Collect and safeguard for appropriate future use information provided to it, which is relevant to accountability for the final stages of the war, including the information gathered by the Panel and other bodies in the United Nations system.

Panel further recommended that The Government of Sri Lanka should issue a public, formal acknowledgement of its role in and responsibility for extensive civilian casualties in the final stages of the war. Sri Lanka should initiate a process, with strong civil society participation, to examine in a critical manner, the root causes of the conflict, including ethno-nationalist extremism on both sides, the conduct of the war and patterns of violations, and the corresponding institutional responsibilities.

The  victims of the final stages of the war   are entitled to realize their rights to truth, justice, and reparations. The Government of Sri Lanka should institute a reparations programme, in accordance with international standards, for all victims of serious violations committed during the final stages of the war, with special attention to women, children, and particularly vulnerable groups. The Human Rights Council should be invited to reconsider its May 2009 Special Session Resolution (A/HRC/8-11/L. 1/Rev. 2) regarding Sri Lanka, in light of this report.

However, said the Panel, an environment which could permit a candid appraisal of the past, including the root causes of the long running ethno–nationalist conflict does not exist at present. Sri Lanka needs to proceed towards an open society in which human rights are presented, a shift away from triumphalism, recognition of Sri Lanka ethnic diversity and the full and inclusive citizenship of all its people, including Tamils.

The Report was greeted with delight and love by just one group only, the Tamil National Alliance. Tamil National Alliance  issued a statement saying it welcomes the findings and recommendations by the advisory panel on Sri Lanka appointed by UN Secretary General Ban Ki-moon, the Darusman Report. TNA says it observes that the Report confirms the truth of what happened to the unarmed Tamil civilians in the conduct of the recently concluded war and is an irrefutable confirmation of the accounts of the events as reported by us to Parliament as and when they occurred’.

The Darusman Report has been heavily critiised for its method and its aims.  There has been no comment on the writing style used in its presentation. The style of writing and the way events are  described resemble the style used in the  ‘Crime and Adventure’  genre of Fiction. In fiction, invention and imagination reign supreme. This report could be turned into  an exciting crime and adventure  film. The Report is   a ‘running commentary’ on army assaults on hospitals. Events are described as happenings, not as reported items.

Here are some edited quotations.

i the Sri Lanka Army advanced its military campaign into the Vanni using large-scale and widespread shelling causing large numbers of civilian deaths. The army continuously shelled within the area from all directions, including land, air and sea. Hundred of shells rained down on the NFZ 1.’

Ii ‘A large group of women and children, who were queued up at a milk powder distribution line, were shelled. Some of the dead mothers still clutched cards which entitled them to milk powder for their children.”

Iii PTK hospital was packed with hundreds of injured civilians. More than 100 new patients were arriving each day. Many had severe or life-threatening injuries. Babies, young children and the elderly, were packed in every conceivable space – on beds, under tables, in hallways and outside in the driveway.”

iv With few beds available, wounded patients often remained in front of the hospital, some on mats and others lying on dust and gravel, under sheets set up for shelter, cradled by their loved ones or alone. With a severe shortage of gauze or other sterile bandages, old clothes or saris were used as bandages.”

v As the Government did not allow basic medical supplies into the Vanni, conditions in Putumattalan hospital were so poor that a large number of amputations were performed without anesthetic, using butcher knives rather than scalpels. Sanitary pads and cotton cloths were used as bandages, and intravenous drips were hung from the trees”,

vi Due to the severe shortage of anesthetics, the little that remained was mixed with distilled water. A general shortage of blood meant that a patient’s own blood was often used, caught in a plastic bag, to be filtered through a cloth and re-transfused back into the same patient.”

vii ‘A large crowd of IDPs surrounded an international ICRC staff member who came ashore, begging him to save their lives by taking them out of the Vanni”

viii ‘ in the early morning hundreds of shells rained down in the NFZ’. When the UN staff emerged from the bunker they saw ‘remains of babies that  had been blasted  upwards into the trees’

ix It is estimated that there were between 300,000 and 330,000 civilians in that small area. The SLA assault employed aerial bombardment, long-range artillery, howitzers and MBRLs as well as small mortars, RPGs and small arms fire, some of it fired from a close range”

x On 9 February 2009, shells fell on Putumattalan hospital, killing at least 16 patients. The shells came from SLA bases in Chalai, but subsequently shells were also fired from SLA positions across the lagoon (even though the hospital was clearly visible to the SLA based there. While some wounded LTTE cadre were treated at Putumattalan hospital, they were few in number and were kept in a separate ward. Putumattalan hospital was shelled on several occasions after that, in February and March. RPGs were fired at the hospital around 27 March killing several civilians. In addition to civilian casualties, the operating theatre, makeshift ward and roof all sustained damage.” ( continued)