THE “DARUSMAN REPORT” Part 4
Posted on April 18th, 2018

KAMALIKA PIERIS

This essay in the Darusman report series  features the  review of the Darusamn Report by Geoffrey Nice QC & Rodney Dixon QC   at the request of the Paranagama Commission. It is taken from the Parangama Commjission report.

March 24, 2015, 12:00 pm

Review of “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka” by Sir Geoffrey Nice QC & Rodney Dixon QC

Review of “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka”

 Introduction

1. This is a Review of the Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (“the Report”)

2. The Panel of Experts was appointed primarily to advise the UN Secretary-General on the implementation of appropriate accountability measures in the wake of the armed conflict in Sri Lanka that ended in May 2009 having regard to the alleged violations of international humanitarian and human rights law that occurred during the final stages of the conflict.

3. The Panel found that there are “credible allegations, Rif proven” which indicate that both the Government of Sri Lanka and the LTTE committed violations of international humanitarian and human rights law. In relation to the Government, the Panel found “credible allegations” of shelling in the Vanni (in northern Sri Lanka) during the final stages of the war between September 2008 and May 2009 which it is alleged caused civilian deaths, in particular in three No Fire Zones (“NFZs”) which had been declared as safe havens by the Government and on certain hospitals in these zones and on the front lines.

4. The figure for civilian deaths that the Panel relies on is “a range of up to 40,000” which it stated “cannot be ruled out”, but which requires further investigation.

5. Sources for this ‘up to 40,000’ figure are not identified in the Report. The figure is widely disputed. There is no clear breakdown given in the Report of where and how these alleged deaths occurred and of how it might be verified that they were civilian deaths in each particular case or of who was responsible for each of these deaths. This shortcoming must be taken into account when the Panel’s findings and the use to which they can legitimately be put are considered.

6. Set against these findings in respect of the Government, the Panel concluded in relation to the LTTE that there are “credible allegations” that approximately 300,000 – 330,000 civilians were kept hostage by the LTTE in the Vanni and prevented from leaving the area. They were used as human shields by the LTTE and as a “strategic human buffer” to the advancing Sri Lanka Army. The Report states that these civilians were forced to join the ranks of the LTTE, to dig trenches and prepare other defences, “thereby contributing to blurring the distinction between combatants and civilians”. Civilians were also shot by the LTTE, and the Report notes that the LTTE fired artillery “in proximity” to large groups of civilians and fired from civilian “installations” including hospitals. The Report concludes that “many civilians were sacrificed on the altar of the LTTE case and its efforts to preserve its senior leadership”.

7. The Report fails, however, to offer any figures for the number of civilians allegedly killed or injured by the LTTE and provides no analysis of any kind of the precise circumstances in which these deaths and incidents allegedly occurred.

8. The Report also details alleged violations by both sides that occurred outside the conflict zone and after the conflict had ended. They include alleged offences committed by Government forces during the screening and detention of those who left the conflict zone and, as against the LTTE, alleged attacks on civilians by the LTTE outside ‘the conflict zone.

9. In light of these findings, the Panel goes on to conclude that the Government’s efforts at the time of the Report to address accountability fell short of international standards in which the rights of victims to truth, justice and reparations should be central. The Panel makes certain recommendations for the investigation of alleged crimes and the adoption of measures to advance accountability in the short and longer term.

10. These recommendations are rooted in the Panel’s findings in respect of the nature and scope of the alleged violations that are set out in the Report. Indeed, the Panel acknowledged that accountability standards “cannot be examined in a vacuum”, and that its advice to the Secretary-General on appropriate accountability mechanisms had to be based on “the nature and scope of the alleged violations”. The Panel said that it was thus required “to gather information from a variety of sources in order to characterize the extent of the allegations” and “appraise them legally”

11. That foundation and sources for the Panel’s advice and recommendations – the alleged violations themselves – must be closely evaluated.

12. Accordingly, this Review assesses the nature, the value, and -to the extent possible – the veracity of the findings in the Report, and the sources of these findings, which are central to the Panel’s advice and recommendations. It does so by measuring the workings and findings of the Panel against well-established legal standards for the proper and fair assessment of evidence and information when it is used for assigning responsibility for crimes.

13. It can be borne in mind that the Panel, in a public document, purported to make such assessments of evidence and other information where it has indicated that the parties to the conflict, in particular the Government, have allegedly perpetrated widespread and very serious crimes.

14. This Review, however, will not mirror the approach of the Panel and will reach no conclusions on whether crimes of particular types were in fact committed by one party or the other. Nor will it venture into the area of policy by recommendations of what the Government should, or should not, do. Leaders in the Government will have well-formed opinions and / or beliefs as to whether offences were, or were not, committed by the parties in the ways alleged (without necessarily being dependent on evidence that may be available to third parties to establish such crimes) and have been and are reacting by political and other measures to the views they have formed.

Appraisal of the Panel’s workings and findings in respect of the alleged violations

15. On review, the Panel’s findings in respect of the alleged criminal violations fall well short of the legal standards usually associated with a rigorous and impartial inquiry into evidence in order to make such findings. The evidence and information on which the Report’s findings are based are virtually all un-sourced, whether in the main body of the Report or in the footnotes and annexes. There are many examples of this deficiency, illustrations of which are set out below.

16. This is not to say that these sources do not exist, but to highlight that very few have been identified in the Report. The Report only refers in the most general terms to the categories of information that were relied on.7 The reader of the Report cannot, thus, gauge the extremely serious allegations against sources and evidence that may exist in order to assess the strength of the allegations. Further, as the full body of evidence that was taken into account is unknown, it is alike impossible to know what has been taken into account and whether any particular piece of evidence which may he important to counter an allegation has been overlooked.

17. This makes the task of conducting any further investigation – as recommended by the Report – much more difficult. Without a ‘starting point’ of existing evidence where should the new investigator begin a search? To which witness or evidence should s/he turn?

18. Moreover, there is no analysis of any identifiable and verifiable evidence that may be relied on (mostly un-sourced as it is), by reference to the relevant legal elements of the offences, all of which would require proof of mental states in those committing or directing the allegedly criminal acts. The repeated assertion that civilians were shelled by the Sri Lanka Army in various locations and were unlawfully killed as a matter of international law is not deconstructed in order to allow the reader to forma reasoned opinion on whether the factual or mental state requirements of the alleged brimes may be the subject of available evidence. In particular, there is no analysis offered in the Report of (i) the evidence of the circumstances of each of these alleged attacks, (ii) the presence of any legitimate military targets and objects, (iii) how it can be determined on the evidence from where the attacks emanated, and (iv) whether any of those attacked were civilians, and if so in what proportion.

19. Analysis of the complex and intricate legal requirements for an unlawful attack under international humanitarian law and customary international law to the facts in each particular case is completely lacking in the Report. This deficiency is compounded by the lack of identifiable sources of evidence to substantiate factually the allegations that are made.

20. When allegations in the Report against both sides are viewed together, it is not clear on what basis the Panel makes conclusions about the responsibility of the Government for all, or any particular portion, of the civilian deaths that occurred, and is able to determine that any such responsibility is criminal as a matter of international law. The Panel acknowledges that the civilians in the Vanni were hostages of the LTTE, were used by them as human shield and as combatants to fight the Sri Lanka Army and were also targeted by the LTTE including in the very areas and hospitals that the Government is accused of shelling. In these circumstances how is the Panel able to find that the Government was nevertheless responsible for killing these same civilians unlawfully or to make any necessary distinctions between who could have been criminally responsible in accordance with the standards under international law that render military attacks unlawful. The Panel’s approach also assumes that the persons killed, whatever the number, were in fact civilians as opposed to persons who had taken up arms voluntarily or under compulsion on the side of the LTTE.

21. These are necessarily complex questions which the Panel does not address in its Report. The Panel has instead taken a ‘broad brush’ approach and ascribed responsibility in a general way to both sides in order to get on to its primary task of considering appropriate accountability mechanisms. Yet any discussion about these mechanisms can be of little relevance or use without an accurate account of the conflict and of the alleged violations that were committed in it.

22. This is unfortunate as it does not advance the inquiry to find the truth save by a generalised recommendation that these matters need to be investigated further. The Report does not confine itself to saying, as it should given its approach to the evidence, that there are many disputed allegations which require further investigation. On the contrary, it positively claims that the allegations are credible and reliable. It elevates them to trustworthy allegations that should be accepted and that now need to be refuted.

23. Indeed, as a result of publication of the Report there have been many subsequent statements, reports and recommendations which have regarded the Report’s findings as conclusive.8 The Sooka Report, for example, stated that,

“There is plenty of evidence available from other reliable sources to corroborate the allegations made in this report. Since 2009, there were a number of reports, including that of the UN Secretary-General’s Panel of Experts published in March 2011, documenting violations of international humanitarian law and international human rights law”.

24. Herein lies the danger – whether intended or not – of the claims that are made in the Report about the criminal responsibility of the Government and its forces. Without a robust and disciplined investigation with legal analysis of the evidence, properly sourced and carefully scrutinised, tested and weighed according to the highest legal standards, it can be very risky to publish findings of the sort set out in this Report, even if the Report states formally that any allegations made are not proven.

25. Panels of experts established by the UN should be ‘on guard’ against the risk that unsourced assertions or allegations appearing in a sequence of reports allow the development of ‘false collateral’ of one report by another, that may have been constructed on the same un-sourced allegations. Narratives develop in opinion-formers and decision-makers, none of whom may have the time to read, let alone rigorously to analyse, reports that, like the instant Report, are often hundreds of pages long.

26. Such reports can be relied on within the international community to draw conclusions which are in fact unproven but which are repeated and reproduced over time. The reports become the accepted narrative of a conflict and of those responsible for criminal behaviour without independent investigation and verification of the ‘facts’, let alone any judicial findings following a proper legal inquiry. A cornucopia made of insubstantial elements is itself insubstantial.

27. International courts and tribunals have not placed reliance on reports of this nature as being probative evidence to prove allegations in trials for war crimes and crimes against humanity.” As set out in the jurisprudence of these courts, the present Report would be of virtually no value to a court seeking to establish the truth, and it should not be given any more weight outside of the courtroom.

Approach of the Panel to verifying allegations of violations

28. The shortcomings of the Report may be explained by the fact that, as it acknowledged, the Panel did not conduct fact-finding” or reach “factual conclusions regarding disputed facts”, and nor did it “carry out a formal investigation that draws conclusions regarding legal liability or the culpability of States, non-state actors, or individuals”. 12 The Report goes so far as to state that “the Panel’s mandate precludes fact-finding or investigation”.

29. Yet, in order to advise the Secretary-General on accountability measures the Panel recognised that it had to make certain determinations about the violations for which such measures should be tailored. The Panel’s mandate would come to nothing in the absence of the Panel finding clearly identified violations of a widespread and systematic character.

30. In consequence, perhaps, the Panel adopted a ‘halfway house’ solution. It did not conduct a full fact-finding investigation as the police would do in any national jurisdiction, but consulted various individuals and organisations and examined available `information’. This approach, in the Panel’s view, permitted it to make factual findings on- the basis of its work but without the detailed inquiries that characterise a full investigation.

31. This methodology arguably produced the worst of both worlds – no conclusions based on any detailed investigation according to recognised legal standards in a Report emboldened to reach clear findings which point the finger at those allegedly responsible.

32. The Panel described its work in the following terms:

• The Panel’s programme of work was organized in two phases. In the first phase, the Panel gathered a variety of information regarding the armed conflict in Sri Lanka from individuals and institutions with expertise or experience related to its mandate. Some of this information came in written form, consisting of both public documents – e.g. governmental, United Nations or reports of nongovernmental organizations (NG0s) – and material conveyed confidentially to the Panel. Other information was gathered through numerous meetings of the Panel of its secretariat. The Panel met with officials of the United Nations and international organizations as well as representatives of Governments and NG0s and individuals directly affected by the events of the final stages of the war. In the second phase of its work, the Panel drafted this report. The report was written in a manner that makes it suitable for publication.

• The Panel’s assessment is based on a careful examination and weighing of the allegations of fact that have been made regarding the final stages of the war. The Panel’s examination included both written sources of information as well as interviews with various individuals. The written sources included reports, documents and other written accounts by the various agencies, departments, funds, offices and programmes of the United Nations, other inter-governmental organizations, NG0s and individuals, such as journalist and experts on Sri Lanka. It included satellite imagery, photographs and video materials of the final phase of the war. It also included submissions received by the Panel during the course of its work in response to its notifications posted on the United Nations website. While these could not be individually verified, at times they served to corroborate other sources. Some relevant media sources, referring, for example, to statements of the Government of Sri Lanka or other public statements, are cited in this chapter, but serve only to corroborate the information gathered by the Panel. A number of NGO reports exist on events in the Lanni. While the Panel reviewed some of these reports, it did not rely on them to compile these allegations, but rather carried out its own assessment of the nature and scope of allegations.

• The Panel consulted a number of individuals with expertise or experience related to the armed conflict, including officials of international organizations, NG0s, journalists, diplomats, academics, and other individuals, some of whom were in Sri Lanka or in the Vanni during the relevant period.

33. It is evident from these general statements that the Panel consulted several sources, but the raw evidence from these sources is not made available in the Report. In particular, the statements and other evidence (for example documents, videos etc if any were produced by witnesses) of those who were interviewed and consulted were not submitted with the Report. Indeed, witness statements — assuming there were any — are not even quoted anonymously as can readily happen and as does happen in other authoritative reports of crimes committed in conflicts.

34. The Panel stressed that the only allegations included in the Report as credible are those “based on primary sources that the Panel deemed relevant and trustworthy”. 19 However, it is impossible to discern from the Report which primary sources were decisive for its findings, and there is no record of the discussions and assessments carried out by the Panel having considered these and other sources.

35. The Panel was clearly alive to this problem. The generalised caution adopted by the Panel was expressed as follows:

To determine whether an allegation is credible, the Panel considered the totality of the information in its possession, with careful regard to the relevance, weight and reliability of each of the sources as well as its relationship to the body of information, as a whole. Allegations are only included as credible when based on primary sources that the Panel deemed relevant and trustworthy. These primary sources were corroborated by other kinds of information, both direct and indirect. The allegations laid out below are based on credible and consistent sources of information. In fact, many of the allegations would appear to meet a higher standard of proof.

36. The Panel indicated that it did not rely on NGO reports and notifications posted on its website. However, without knowing from the Report which were the primary sources, and without being able to review this material and contrast it with the material that was relied on for purely corroborative purposes, it is of little, or no, use only to know the approach taken by the Panel to its work in such broad and undefined terms. The Panel has opened itself to being criticised for paying lip service to the caution it rightly identified.

37. The Report might have achieved greater credibility for its assessment of the unidentified evidence on which it has relied if it candidly acknowledged that it failed to reveal – or even intentionally obscured for some reason – its process of ratiocination.

Standard of proof adopted

38. This central weakness in the Report is exacerbated by the standard of proof that it professed to adopt. A non-legal analysis – as by a journalist or academic, a ‘tinker, tailor soldier or spy’ or anyone else – can use any standard s/he likes: ‘A felt sure’, ‘A felt reasonably confident’, ‘A was absolutely convinced’, ‘A had my suspicions’ etc. In a document dealing with alleged criminality on a major scale – that names those who may be responsible and who merit further judicial and other process – it might be thought better to turn to, and carefully to apply, the standards of proof recognised by international criminal courts. This is something the Report failed properly and consistently to do.

39. The Panel pointed out that it sought “to assess whether the allegations that are in the public domain are sufficiently credible to warrant further investigations”. To this end the Panel stated that it employed the ‘reasonable basis to believe’ standard of proof “to characterize the extent of the allegations, assess which of the allegations are credible based on the information at hand, and appraise them legally”. 22 The Panel said that it “determined an allegation to be credible if there was a reasonable basis to believe that the underlying act or event occurred.

40. The Panel stated that it settled on this standard because it “gives rise to a responsibility under domestic and international law for the State or other actors to respond. No authority or further explanation is given for this proposition; the authors of this Review are unable to fill in this glaring citation gap from their own knowledge.

41. The Panel also offered no definition of the ‘reasonable basis to believe’ standard it said it was applying and it is, thus, not possible to be certain whether they had in mind the `reasonable basis to believe’ test in international law for which authoritative definition does exist.

42. It should be noted that international courts and tribunals have confirmed that the `reasonable basis to believe’ standard — if that is what the Panel had in mind — is the lowest evidentiary standard of proof.. The standard does, nevertheless, require that there exists a proper foundation of identifiable evidence on which to forma reasonable belief that crimes have been committed. It allows for, and expects, an ability on the part of anyone applying the standard to be able to articulate why the standard has been met. That ability is not revealed by this Panel where it asks its readers to take its analysis of evidence — and its partition of primary from secondary corroborative evidence — entirely on trust.

43. The highest standard of proof is that of ‘beyond a reasonable doubt’ which is required to convict an accused of a crime.26Below the standard of ‘beyond reasonable doubt’ is a standard of ‘substantial grounds to believe’. At the ICC, this standard is considered during the confirmation of charges process and requires that the Prosecution provide the Chamber with sufficient evidence to establish that “substantial grounds [exist] to believe that the person committed each of the crimes charged.”

44. The ‘reasonable basis to believe’ standard is used at the ICC to determine whether an investigation should be launched and if any persons should be charged as a result of this investigation. Although this standard does not require that the available evidence lead only to one conclusion, 28 it does demand that there is sufficient reliable and verifiable evidence available to establish “the criminal responsibility of an individual” which can result in charges being brought and the person losing her / his liberty through arrest and detention pending trial.

45. The ICC has held that “the Chamber must be satisfied that there exists a sensible or reasonable justification” for the allegations after “evaluating the available information provided by the Prosecutor.” 30 The ICC has emphasised that the ‘reasonable basis to believe’ standard must be viewed in light of its purpose and the context in which it operates — “to prevent the Court from proceeding with unwarranted, frivolous, or politically motivated investigations that could have a negative effect on its credibility.”

46. The European Court of Human Rights has defined this standard (which it termed to be one of “reasonable suspicion”) to require “the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence.”

47. The Panel seems to have used the standard that is recognised under international law to be at the very lowest end of the calibration of proof of allegations, but which nevertheless requires clear and demonstrable evidence (which is open to examination) to support the allegations relied on. It is hard to understand why the Panel — that had legal expertise available to it — should have failed to articulate openly and precisely which recognised standard it was applying, and how. The fact that it did not do so makes it easier to look with skepticism at its work and to fear that it may be characterised by amateurism and enthusiasm. The advantage of applying known legal tests strictly to work that requires legal analysis is that anyone reviewing the product of that work will have more, not less, confidence in its reliability and trustworthiness. The reverse, as in this case, has also to be true.

48. The Panel’s findings could have very serious consequences for Sri Lanka and its leaders but are based on the very lowest threshold of proof while using the language and discourse of international courts to introduce these findings without adopting — or seeming to pay any regard to — the practices of these courts that would reveal and explain the evidence on which the Panel has proceeded to its conclusions. The neutral observer might find it hard to overlook the fact that this has all been done in a time when — right or wrong — there has been substantial publicity adverse to the Sri Lankan Government. It would be naive not to recognise that in such times it is easier to advance conclusions in line with publicity without proper evidential support but in the hope, and with the reasonable expectation, of a busy world accepting what is asserted.

49. The Panel does acknowledge that its findings require further investigation but it has not set out what human or documentary sources should form the subject of such an investigation. Moreover, the concession that further investigation is required is overshadowed by the Panel asserting that it has conducted its own inquiries, applied a legal standard of proof, and found the allegations to be credible. It is these claims which have allowed the Report to become much more than a record of allegations and counter allegations that require diligent investigation before any conclusions are reached. The Panel has gone substantially further in concluding that its findings are reliable and trustworthy, and accordingly that the case put forward by the Government should be rejected.

 Primary source materials not identified

50. As noted above, although the Panel was at pains to stress that it only relied on primary sources to find that the allegations were trustworthy, the reader is left in the dark as to which were the primary sources.

51. It could be that confidentiality required that certain of these sources remained undisclosed. The Panel noted that,

In some instances, the Panel received written and oral material on the condition of an assurance of absolute confidentiality in the subsequent use of the information. The Office of Legal Affairs (OLA) confirmed through formal legal advice that the provisions set out in the Secretary-General’s Bulletin on “Information sensitivity, classification and handling’ (ST/SGB/2007/6) could be applied to its records. This Bulletin provides for classification of a document as “strictly confidential” with correspondingly strict limits on any access fora period of 20 years, following which a declassification review may be undertaken that weighs the equities involved in retention or release. Moreover, OLA confirmed that, where necessary and appropriate for the Panel’s work, the Panel could give an undertaking of absolute confidentiality in the subsequent use. As a result, nearly all of the Panel’s substantive records will be classified as “strictly confidential” with, in some cases, additional protections regarding future use.

52. These key sources therefore remain completely anonymous, which further weakens the weight that can be given this evidence and the findings based upon it. The Panel did not indicate whether consideration had been given to making anonymised, redacted or summarised versions of this evidence available for evaluation when considering the Report’s findings and recommendations. The reader has no idea about the quantity and scope of this evidence even in the most general of terms.

53. There are very many instances in the Report in which strong allegations and statements are made with no sources to substantiate the findings put forward, for example:

• First NFZ: paras 80-89 of the Report allege that the Government unlawfully shelled civilians; however, not a single source for this accusation is identified, except a footnote referring to a Government denials of the shelling. It appears that UN staff were present but there is no evidence provided from these persons whose need for absolute anonymity would be hard to justify if relied on. The Report acknowledges that the LTTE were firing “from approximately 500 metres away” from the UN hub in the NFZ and “from further back in the NFZ”.35 No evidence is provided about these positions and what actions the LTTE were taking. As set out below, this is a repetitive shortcoming of the Report – it lacks analysis of the nature of the attacks and detailed consideration of their lawfulness as a matter of international law, particularly in respect of military necessity and proportionality.

• The Report claims that UN convoys into the Lanni were allegedly being used by the parties in the conflict, yet there is no evidence of the way in which this occurred, nor any analysis of the consequences for legitimate military action.

• Alleged shelling of the PTK hospital – paras. 90-96 of the Report: there are some sources provided – including from the ICRC – about this alleged attack which confirm that incidents of shelling and killings occurred, but no evidence is provided about those who may have been responsible.37 This occurs in other parts of the Report as well – certain sources report on the occurrence of an incident but without providing evidence of those who may have been responsible. It may be that these sources are in possession of such evidence, but without them being identified and made available it is impossible to assess their veracity. The overall value of the Report is undoubtedly diminished as a result.

• In this part the Report does note that the PTK hospital “was a strategic stronghold in the LTTE’s fight against the SLA” and that the LTTE thus had a “sizeable presence” in the PTK. 38 The Report acknowledges that the LTTE were firing artillery from the vicinity of the hospital.39 Once again, the significance of this evidence (which is not made available in any form) is unexplored. It is essential when considering the alleged attacks to take full account of these factors both to determine the source of the attacks and (depending in part on the answer to this question) the legality and proportionality of the return military action.

• Some journalistic accounts are footnoted as sources. However it is unclear whether these are cited merely for corroborative purposes, or whether they are regarded in any way and if so when, as primary sources. If they ever have been, questions over the reliability of such materials might arise; notoriously one particular series of news programmes (Channel 4) has drawn substantial, sustained and evidence-based criticism of unreliability from the Sri Lankan Government.

• Given that the UN had withdrawn from the Vanni by September 2008, as the Reports notes, there were virtually no international observers able to report on what was happening in the Vanni .40 The Report states that journalists working with the SLA or LTTE continued to report from the area as did other organisations, including Tamil Net, a pro-LTTE website.41 It is unclear from the Report the extent to which the information from these bodies has been relied on by the Panel and taken in account when shaping the Report.

• Second NFZ: paras 109-114 of the Report include allegations about the SLA inflicting civilian casualties “at the same time” as breaking through the LTTE defences.42 UNICEF and ICRC reports are referenced, but it is riot clear that these reports contain any concrete evidence about the lawfulness of the alleged attacks and who was responsible for the particular deaths reported on. It is also not clear whether these are the primary sources relied by the Panel or whether there are witness statements or other confidential reports that constitute the underlying principal evidence.

• Other hospitals: the Report refers to attacks on other hospitals by the SLA, such as the Putimattalan hospital where only a single source is footnoted 43 , an ICRC news release, which does not appear to assist with identifying the alleged perpetrator/s on the basis of any clear evidence. This news release could of course be a piece of evidence to consider in any investigation, ‘but the question is left open when these allegations are reviewed about whether there is any primary evidence in existence on which the Panel based its conclusions. The extent to which the LTTE targeted the population and prevented injured persons from leaving the area, including via ICRC ships”, is not taken into account at all in the Panel’s assessment of who may have been responsible for alleged attacks on civilians in hospitals.

• The same lack of sourcing is evident in the findings of the Panel in respect of the alleged violations that occurred after the end of hostilities. No source is provided for the wide-ranging allegations that are made about Government clandestine operations’ against the LTTE . Similarly, the allegations about there being a policy to target, torture and execute LTTE and other persons after the conflict are made as statements of fact without a body of clearly identifiable primary evidence, including witness statements, to back them up.

54. The lack of proper sourcing is a matter of particular concern when considering the Report’s overall findings about the alleged shelling into the NFZs (which as noted above forms a major part of the Panel’s discussion of the alleged violations). The Panel acknowledged that the LTTE did not accept the NFZs as “binding”. 48 According to the Report, the LTTE were present in the NFZs, firing from them and in them, and keeping the civilian population hostage:

Retaining the civilian population in the area that it controlled was crucial to the LTTE strategy. The presence of civilians both lent legitimacy to the LTTE’s claim for a separate homeland and provided a buffer against the SLA offensive. To this end, the LTTE forcibly prevented those living in the Vanni from leaving. Even when civilian casualties rose significantly, the LTTE refused to let people leave, hoping that the worsening situation would provide an international intervention and a halt to the fight. It used new and badly trained recruits as well as civilians essentially as “cannon fodder” in an attempt to protect its leadership until the final moments.

55. The Report records that as the LTTE suffered military setbacks in the final phases of the war, the NFZs were used as places to retreat with the civilian population being used by the LTTE to bolster their military campaign.50 The extent to which the use of the civilian population — whether acting voluntarily or forced into action and whether this was known or not by the Government forces — should be taken into account when determining the lawfulness of any Government military action against the LTTE is not addressed at all in the Report. It could well be a critical issue. The truth may be — and it may be an underlying truth of greater significance than the Panel might like to be understood and known — is that the evidence of what occurred in these final phases in and around the NFZs is simply not available for analysis by the Panel and this has severely limited the Panel’s ability to comment on these crucial questions. 51 Its failure properly and fully to acknowledge this limitation on its ability to do its work and to address a highly significant legal issue smacks of the same possible amateurism and enthusiasm referred to above. The issue would certainly be central to any full and robust legal inquiry into the alleged incidents, something the Panel has simply not undertaken.

56. The civilians as LTTE fighters issue (above) is exacerbated as a problem for the Panel’s conclusions by the Panel’s failure to clarify the extent to which the civilian population – which was estimated to be about 300,000 – 330,000 persons – was itself targeted and killed by the LTTE. This may be an absolutely critical question given that the Report appears to allege that these same persons were unlawfully targeted by the Government. Once again, the lack of identified primary sources and analysis of these sources means that these vital questions are not addressed and the Report’s credibility and integrity are much diminished as a result.

 Alleged civilian deaths

57. This very same problem arises in the Panel’s findings about the number of civilian deaths. The Panel notes that “a number of credible sources” have estimated there to have been as many as 40,000 civilian deaths. 53 None of these sources is named in the Report, yet the figure is used in the Report and has been relied on repeatedly after publication of the Report as the correct figure with which to accuse the Government.

58. It is well-known that there are other sources which estimate the figure to be much lower, but these are not mentioned in the Report. At the very least it would be expected that a UN report of this type should set out the various competing accounts. The Panel does acknowledge that only a proper investigation can lead to the identification of an accurate figure, but it has not provided the full range of views from which to begin this important task.

59. The UN Country Team figure of 7,721 (up until 13 May 2009) is mentioned in the Report but then disputed by the Panel without it explaining how it is that over 30,000 people could have been killed in the final days of the war up until 18 May 2009 if the figure of 40,000 is ever to be correct and accurate. 56 The Report provides no concrete evidence to support the considerable leap from the UN Country Team’s figure of less than 10,000 to the substantial number of 40,000 adopted by the Report.

60. As noted above, the use of this figure by the Panel, over that of the UN Country Team, has been a central pillar in the argument of those who have accused the Government of being responsible for unlawfully killing civilians. The Report’s reliance on such a high fatality figure has naturally drawn attention, condemnation, and the leveling of strong accusations. Hence, the need for scrupulous accuracy — which is lacking in the Report —before circulating any figures which can then be taken as credible when they are entirely unsubstantiated. Otherwise, the very real danger exists that those with genuine concerns about the truth of what happened can be misled and have their views fuelled and provoked by accounts that lack any truth and substance.

61. The Panel also refers to the numbers of persons who were able to leave the Vanni at different times (which it claims total approximately 290,000), but again without any reliable source materials. 57 It is thus hard to see how any of these figures can be relied on to try to support the very high fatality figures that are alleged.

62. An obvious gap in the Report’s discussion of the number of deaths is how it can be said that these are all civilian deaths (whatever the number) or what portion of those who died were civilians entitled to the full protections of international humanitarian law. There is no analysis of this vital issue which would plainly have, to be at the centre of any assiduous investigation.

Lack of analysis of the alleged attacks under international law

63. The Report provides an overview of the law applicable to military attacks. 58 Yet it does not apply these intricate legal standards in any detail to the available evidence in reaching its conclusions about the unlawfulness of each particular alleged attack. The assertion is simply made repeatedly in the Report that the Government forces indiscriminately killed civilians, for example:

• Para. 100: “the SLA continuously shelled within the area that became the second NFZ from all directions. It is estimated that there were between 300,000 and 330,000 civilians in that small area”. No source is provided for these figures other than a footnote that UN documents “generally reference this number”.

• Para. 105: “While individual incidents of shelling and shooting took place on a daily basis, destroying the lives of many individuals and families, the SLA also shelled large gatherings of civilians capable of being identified by UAVs [unmanned aerial vehicles]. On 25 March, an MBRL attack on Ambalavanpokkanai killed around 140 people, including many children”. No sources are given for these claims and no evidence-based analysis is provided of the circumstances of the alleged incident.

• Para. 117: “The shelling within the third [and final] NFZ [declared on or about 8 May 2009] was such that it was impossible for the ICRC to conduct any more maritime rescues. As the SLA neared the hiding places of the senior LTTE leadership, its offensive assumed a new level of intensity, in spite of the thousands of civilians who remained trapped in the area”. No study is made of the nature of the military actions involved, and no account is properly taken of the fact that, as noted by the Panel in the very next sentence, the LTTE leadership were sending many persons in to die in their defence, “including through suicide missions”.

• Annex 3: the Panel attaches some examples of satellite imagery (of damage to certain sites) and diagrams of SLA artillery positions apparently derived from satellite images which purport to show the direction in which SLA artillery batteries were pointed at the NFZs over time. No expert report or evidence is provided with this material to explain its probative value and relevance to establishing whether any of the alleged attacks were unlawful. The Panel concedes that the images do not assist in showing which artillery hit any of the hospitals. The materials are discussed briefly in the Report in order to accuse the SLA of adjusting their artillery to target the NFZs. no consideration is given to any evidence about whether these positions were used, and if so in what specific circumstances, to attack NFZs. The Report notes that the LTTE also had heavy weapons (although fewer and in less space from which to fire them). 62 No attempt is made in the Report to assess the extent of the LTTE’s targeting of the NFZs and other areas with its heavy weapons and, most importantly, to juxtapose such evidence with any evidence of SLA artillery fire. The diagrams do not show or confirm any artillery fire.

• Para. 195: The Report asserts that “the Government of Sri Lanka did not respect the fundamental principle distinction [between combatants and civilians]”. Yet it offers no examination of the particular circumstances in which this is said to have occurred with the requisite intention to render the Government forces’ conduct unlawful as a matter of international law, or of the very real difficulties of making the distinction [between combatants and civilians] given the ways in which the LTTE was using the population in their final stand, and the fact that, as the Report notes, uniforms were not always worn by the LTTE, its supporters and those who fought for them. 63 The Report accepted that the line between combatants and civilians was “blurred”, but fails to apply this factual reality to any of the attacks under consideration.

64. This overly simplistic approach to characterising the alleged attacks represents a major flaw, as the Report simply does not grapple with the difficulties and intricacies of establishing whether any particular attack was justified militarily on all of the available evidence.

65. It is well-established under international law that military objects may be targeted and that an attack which causes loss of civilian life may be justified if it is not excessive in relation to the concrete and direct military advantage anticipated.64 The range of factors to be taken into account when applying these legal standards to the evidence in question is sizeable and their application demands a meticulous study of all available evidence.

66. As the ICRC has noted:

“Several States have indicated that in their target selection they will consider the military advantage to be anticipated from an attack as a whole and not from parts thereof The military manuals of Australia, Ecuador and the United States consider that the anticipated military advantage can include increased security for the attacking forces or friendly forces.

Many military manuals state that the presence of civilians within or near military objectives does not render such objectives immune from attack. This is the case, for example, of civilians working in a munitions factory. This practice indicates that such persons share the risk of attacks on that military objective but are not themselves combatants. This view is supported by official statements and reported practice. Such attacks are still subject to the principle of proportionality … and the requirement to take precautions in attack … The prohibition on using human shields is also relevant to this issue”.

“State practice often cites establishments, buildings and positions where enemy combatants, their material and armaments are located and military means of transportation and communication as examples of military objectives. As far as dual-use facilities are concerned, such as civilian means of transportation and communication which can be used for military purposes, practice considers that the classification of these objects depends, in the final analysis, on the application of the definition of a military objective. Economic targets that effectively support military operations are also cited as an example of military objectives, provided their attack offers a definite military advantage. In addition, numerous military manuals and official statements consider that an area of land can constitute a military objective if it fulfils the conditions contained in the definition.”

67. The ICRC has also clarified that in relation to the principle of proportionality and assessing the potential military advantage of any attack:

“Several States have stated that the expression ‘military advantage’ refers to the advantage anticipated from the military attack considered as a whole and not only from isolated or particular parts of that attack. The relevant provision in the Statute of the International Criminal Court refers to the civilian injuries, loss of life or damage being excessive ‘in relation to the concrete and direct overall military advantage anticipated’ … The ICRC stated at the Rome Conference on the Statute of the International Criminal Court that the addition of the word ‘overall’ to the definition of the crime could not be interpreted as changing existing law. Australia, Canada and New Zealand have stated that the term ‘military advantage’ includes the security of the attacking forces.”

“Upon ratification of Additional Protocol I, Australia and New Zealand stated that they interpreted the term ‘concrete and direct military advantage anticipated’ as meaning that there is a bona fide expectation that the attack would make a relevant and proportional contribution to the objective of the military attack involved. According to the Commentary on the Additional Protocols, the expression ‘concrete and direct’ military advantage was used in order to indicate that the advantage must be ‘substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded’”

68. It should also be taken into account that the ICTY Appeals Chamber has emphasised that the assessment of what constitutes an unlawful attack is a complex one that requires several factors to be taken into consideration. 68 The Appeals Chamber specifically rejected the Trial Chamber’s standard for determining whether an attack was lawfully carried out against a military target — “that all impact sites within 200 metres of a target deemed legitimate could have been justified as part of an attack offering military advantage.”

69. Instead, the Appeals Chamber found that such a determination requires a much deeper and more detailed analysis of the facts and evidence. The Appeals Chamber noted that the Trial Chamber’s standard failed to “explain the specific-basis on which it arrived at a 200 metre margin of error as a reasonable interpretation of evidence on the record” and provided “no indication that any evidence” supported this standard. The Appeals Chamber found that “detailed evidence” of such factors as “muzzle velocity, wind speed, air temperature and density” must be provided to ascertain the range of error compared to the location of impact. In addition, the Appeals Chamber found that a rigid standard based on the impact site cannot be applied uniformly especially considering that the factors listed above “such as wind speed would affect range of error” and also that “increased distance from a target would increase range of error” as wel1. The Appeals Chamber found that “detailed evidence” must be provided fully to evaluate these “crucial findings and calculations” before making a conclusion on the lawfulness of the attack.

70. In addition, the Appeals Chamber found that evidence must be examined to determine whether there was “any indication that targets of opportunity existed” and whether the specific impact sites of the attack were “reasonably attributed to lawful attacks on opportunistic targets.” The Appeals Chamber found that any evidence supporting a conclusion that the alleged perpetrators “could identify tactical targets of opportunity, such as police and military vehicles” must be addressed and “discount[ed], If there is evidence supporting such a conclusion, the evaluation of the evidence must examine “how, in these circumstances, it could exclude the possibility that … [the perpetrator’s] … attacks were aimed at mobile targets of opportunity.”

71. The Appeals Chamber thus rejected the notion of “Impact Analysis” being critical in determining whether an attack was unlawful.

72. The Darusman Report, however, that was published without the advantage of the law as more recently articulated at the ICTY, appears to consider only the impact of the shelling, and does not identify, let alone consider in any detail, any of the various factors and issues set out above when addressing the particular attacks under consideration, or the final stages of the conflict as a whole. On the contrary, the Panel made sweeping and unsubstantiated conclusions based on its finding of “credible allegations” that “attacks on the NFZs were broadly disproportionate to the military advantage anticipated from such attacks.” This completely pre-judges the issue without any authentic and careful examination of all of the factors relevant to determining the lawfulness of military action.

 Accountability mechanisms

73. The Report provides a very thorough overview of the different accountability mechanisms which could be adopted . This part of the Report appears to be the primary purpose of the Report. However, as the Report itself recognises, the various potential avenues of accountability must by definition be shaped by the nature and extent of the alleged violations that were committed. It is here that the Report falls short in its assessment of the alleged violations which should be the subject of any accountability process.

74. This Review has thus focused on the Report’s analysis, or rather its lack of rigorous analysis, of the underlying alleged violations by the parties to the conflict. The Report claims that the Government of Sri Lanka has failed to pursue effective accountability measures, but this is to put the ‘cart before the horse’ as any assessment of the Government’s post-conflict inquiries and initiatives depends entirely on the what the available evidence shows about the nature and extent of any transgressions.

75. It is thus imperative that the proper precursor to any evaluation of the Government’s accountability measures is a good faith and impartial examination of the available evidence of what actually occurred in the final stages of the war taking into account the developing and often complex legal standards applicable to armed attacks in times of armed conflict under international law.

76. There are at least four key issues that must -be addressed on the available evidence, properly sourced and verified, in order that any appropriate accountability measures can be devised:

• The nature and extent of the LTTE’s use of the population in the Vanni as part of their military campaign in the final phases of the war;

• The specific circumstances of the particular alleged attacks in the Vanni, analysed in light of the applicable legal requirements under international law including of distinction, necessity and proportionality to cover and compare both the actions of the Government and the LTTE (who the Report acknowledges were firing from and within the NFZs);

• The manner in which persons were treated after the conflict in order to ensure that hostilities were at an end and to guarantee the human rights of those on both sides under national and international law; and,

• The accurate numbers of deaths during the final period of the conflict (to the best extent possible), and the degree to which these were properly to be counted as civilian in all of the circumstances of the conflict. This figure must, of course, include the numbers killed by the LTTE as a result of their actions during and after the conflict.

77. The current work of the national authorities in Sri Lanka to investigate and prosecute any perpetrators, including prosecutions that have taken place, should also not be overlooked, based as they are on the available evidence.

 Concluding remarks

78. A report of this kind, emanating from experts in the area, could have carried significant weight. The proper conclusion, on analysis, may be that this Report chaired by Mr Darusman missed a great opportunity and has failed to do what it should, and could, have done in the interests of all the citizens of Sri Lanka.

79. This Review has highlighted the shortcomings of the Panel’s work when measured against well-established legal standards for the assessment of evidence. The absence of identified and verified primary sources of evidence and information, susceptible to rigorous analysis, is a clear and substantial gap in, and weakness of, the Panel’s workings. It dilutes / undermines / invalidates the Panel’s conclusions and recommendations.

80. The Panel has, it is true, candidly indicated that further investigation would be required but the Panel has hampered – or perhaps rendered impossible – such an investigation by its Report’s own – but unexplained – failure to reveal any of its primary sources, to the extent they exist in any useable form.

81. The work of the Panel has in many ways fallen between two stools. On the first stool the Panel accepted that it was not capable of conducting a full investigation. Despite that, and on its second stool, the Panel went on to make certain inquiries and to gather some evidence from sources (mostly unidentified) in order to make pronouncements of responsibility, however subtly expressed.

82. In a long (241 page) document such inconsistency might go undetected. This is why the Government’s concern fora detailed analysis of the Panel’s work was justified. It is also justification for how the Panel’s work may now be exposed as having fallen between the two stools on which the Panel sought to stand.

83. Before starting its work the Panel should have sought a mandate to conduct a proper investigation in accordance with international legal standards, making plain that without such a mandate all it would be able to do was no more than to assemble allegations and counter allegations from all sides but without making any findings. It should have explained that without such a mandate it would inevitably be recommending further investigation in due course, investigation that would have to start from scratch, as is now the position. Instead, the Panel sought to reach conclusions and to make recommendations without showing any proper reservation about, or even understanding of, its willingly-accepted and very limited abilities.

84. Any future investigation – and any findings and recommendations by the UN or other bodies – will only be given any weight if it / they address this fundamental weakness and seek to contribute meaningfully to establishing an evidence-based, reliable record and only thereafter to identify appropriate accountability measures. 79

85. Accepting – without more – the present findings of the Panel as reliable and as having been established (even though the Panel has stated that they are not proved) would be to subjugate cool reason and intelligence to what may be seen as an outcome popular for those with limited understanding of the complex realities of the sort of armed conflict that was s undertaken by the Government of Sri Lanka. The authors of this Review repeat that they have formed no conclusions, one way or another, about any of the issues central to the Darusman Report. Through this Review they note the incompleteness of the Report that, unhappily, purports to be what it cannot be.

Sir Geoffrey Nice QC

Rodney Dixon QC

24 July 2014

London

2 Responses to “THE “DARUSMAN REPORT” Part 4”

  1. L Perera Says:

    Writing lengthy reports does not put food on the poor mans table and the number of these innocent victims is growing by the day. SL needs honest and caring leaders and not a traitors and rogues at the helm.

  2. Christie Says:

    Report by Indian Colonial Parasite from South Africa Yasmin Sooka.

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