THE “DARUSMAN REPORT” Part 5
Posted on April 19th, 2018

KAMALIKA PIERIS

 This essay in the Darusman report series  features the   Report by Major General  John Holmes prepared at the request of the Paranagama Commsiion. It is taken from the Parangama Commjission Report.

ANNEX 1 – MILITARY EXPERT OPINION BY MAJOR GENERAL JOHN HOLMES DSO OBE MC

EXPERT MILITARY REPORT

By

Major General John Holmes DSO OBE MC

Major General (Retired) John Holmes DSO OBE MC

General Holmes’ military career began at the Royal Military Academy Sandhurst in 1968. He was commissioned into the Scots Guards, before joining 22 Special Air Service Regiment in 1974. His career thereafter was essentially with UK Special Forces until retirement in 2002.

He first saw action in Northern Ireland during 1971 during a tour with the Scots Guards. In this deployment he won a Military Cross for confronting a crowd of some 350 rioters with just 3 soldiers behind him. During his first tour as a Troop Commander of 22 SAS he completed two operational tours in Dhofar (Oman’s Southern Province), fighting a Communist insurgency. In 1978 he also commanded the UK’s Counter-Terrorist Military Response Team (CTMRT) and helped evolve the tactics and equipment that have subsequently been used world-wide in hostage rescue operations. After an operational jungle deployment, a close protection task in two Central American countries and a further two tours in Northern Ireland, he attended Staff College in 1982.

After Staff College he was given command of a SAS Squadron and for 6 months of his two year posting again commanded the CTMRT. In late 1989 he took over command of 22 SAS Regiment, which was deployed in 1991 in Western Iraq during Gulf War One. He was awarded an OBE for this deployment. Additionally, as commanding officer, he was charged with oversight and command of CTMRT and deployed on numerous domestic and overseas exercises. He returned as Director UK Special Forces in 1999 and deployed to command Operation Barras in Sierre Leone in 2000. This was a highly complex and challenging hostage rescue operation in the Sierre Leone jungle. Its ultimate success acted as part catalyst to the successful conclusion of the Sierre Leone conflict. He was awarded his DSO for this operation.

His various staff appointments included a posting in Washington DC as the Special Operations Liaison Officer and three years at Supreme Headquarters Allied Powers Europe in Belgium, where he was SACEUR’s NATO Command Group Secretary. During this latter appointment he was involved in planning for operations in Kosovo.

TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………………… 1

Summary………………………………………………………………………………………. 1

Accusations…………………………………………………………………………………… 2

Aim……………………………………………………………………………………………… 2

GoSL POLICY…………………………………………………………………………………….. 3

Background…………………………………………………………………………………… 3

Policy…………………………………………………………………………………………… 3

Training………………………………………………………………………………………… 3

LTTE POLICY…………………………………………………………………………………….. 5

Background…………………………………………………………………………………… 5

Policy…………………………………………………………………………………………… 5

Training………………………………………………………………………………………… 6

THE FINAL PHASE- THE EASTERN WANNI………………………………………………. 8

9 January 2009………………………………………………………………………………. 8

Dilemma………………………………………………………………………………………. 8

Challenges Posed……………………………………………………………………………. 9

Ground and Weather…………………………………………………………………….. 11

SLA Military Capability………………………………………………………………….. 12

LTTE Military Capability…………………………………………………………………. 30

NFZs…………………………………………………………………………………………… 17

SLA ROE………………………………………………………………………………………. 18

Proportionality…………………………………………………………………………….. 21

CRATER ANALYSIS…………………………………………………………………………… 22

IMAGERY ANALYSIS…………………………………………………………………………. 24

Report No. 1………………………………………………………………………………… 24

Report No.2………………………………………………………………………………… 48

Imagery Summary………………………………………………………………………… 26

CONCLUSIONS………………………………………………………………………………… 27

INTRODUCTION

Summary

  1. The Liberation Tigers of Tamil Ealam (LTTE) were founded in 1976 and carried out their first major attack on 24 July 1983. From the outset, the LTTE’s military commander was Velupillai Prabhakaran. By 2002 the LTTE controlled large tracts of Northern and Eastern Sri Lanka and were supported by a rich and influential diaspora. They had also fashioned a well trained and equipped military force comprising land, sea and air components. The movement was ruthless in its control of Tamil areas including the violent suppression of Tamil opposition groups and forced recruitment of child soldiers, both boys and girls. Velupillai Prabhakaran demanded absolute loyalty and sacrifice and cultivated a cult- like following”. 910 An undated LTTE oath of loyalty even mentioned Velupillai Prabhakaran by name:

I hereby affirm sincerely to toil to redeem our motherland, Tamil Ealam, from the oppressors of atrocities and to establish the lost sovereignty and uphold the dignity of our race, under the leadership of our national leader Hon V Prabhakaran and dedicate myself to the liberation of the nation and fight against all suppression”.

911

  1. For the first 23 years of the conflict the Government of Sri Lanka (GoSL) remained open to a political solution with the LTTE and tried to engage them in peace talks. GoSL even accepted an Indian Peace Keeping Force for two years in 1987. In 2002 a peace process was facilitated by Norway and a ceasefire agreement signed and a Monitoring Mission established (SLMM). Between Feb 2002 and May 2007, the SLMM ruled that the LTTE violated the ceasefire 3,830 times as opposed to 351 violations by GoSL912. Hostilities resumed in July 2006 with a successful GoSL campaign securing the Eastern Province by July 2007. In March of that year GoSL had also launched an offensive in the north where the LTTE controlled some 6,792 sq kms of territory (‘The Wanni’). By Nov 2008 the Western Wanni was secured and operations were underway to take the LTTE administrative capital of Kilinochchi, which was secured on 2 Jan Until January 2009 there were no significant complaints against the conduct of the Sri Lankan Armed   Forces

. In fact quite the reverse is true: a cable from the US Embassy in Colombo to the US State Department states:

The Government has gained considerable credit until this point for conducting a disciplined military campaign over the past two years that minimized civilian casualties”913.

910 Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka [hereinafter ‘Darusman Report’] (31 March 2011) < http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf >. para 31.  911  Translated copy of an LTTE oath, undated, as found in document recovered by   SLA.

912 Ministry of Defence (MOD), Democratic Republic of Sri Lanka, Humanitarian Factual Analysis Sri Lanka, July 2006- May 2009 (July 2011), para  125.

913 US Ambassador Robert Blake, ‘Sri Lanka: Declared Safe Zone Inoperative; ICRC Contemplates Full Withdrawal’, Embassy Colombo, WikiLeaks, 27 January 2009, released 30 August 2011, para. 7. < http://www.cabledrum.net/cables/09COLOMBO95  >.

Accusations

  1. There are numerous critical reports that have alleged that the Sri Lankan Army (hereinafter, SLA) disregarded the laws of armed conflict and international humanitarian law during the final five months of the campaign in the Wanni. I have read a number of these reports including the following:
    • The Secretary General’s Panel of Experts on Accountability in Sri Lanka dated  31

March 2011 (The Darusman Report)914.

  • The report of the Secretary-General’s Internal Review Panel on UN Action in Sri

Lanka dated November 2012 (The Petrie  Report).915

  • The University Teachers for Human Rights (Jaffna) Special Report No 32 dated 10.06.09.916 – in essence, a Tamil report, critical of both GoSL and the
  • US Embassy Cables-‘Wikileaks’
  • Human Rights Watch-War on the Displaced February, 917
  1. The above reports contain a number of allegations, a major one of which is that the scale of the loss of civilian life in the final five months of the war was contrary to the principles of distinction, military necessity and proportionality as defined by the laws of armed conflict and international humanitarian law. They refer in particular to the continuous shelling of civilians in no fire zones (NFZs) and directed artillery fire at hospitals, both temporary and

Aim

  1. The aim of this document is to report on the actions of the SLA against the LTTE during the final five months of the war to help determine whether the SLA’s operations, particularly regarding the use of artillery, constituted a deliberate disregard of the laws of armed conflict and international humanitarian law. In addition, this report addresses whether the military operations of SLA were proportionate in accordance with the laws of armed

914Darusman Report, (31 March  2011)

915 Report of the Secretary-General’s Internal Review Panel on United Nations Action in Sri Lanka, (November 2012) <  http://www.un.org/News/dh/infocus/Sri_Lanka/The_Internal_Review_Panel_report_on_Sri_Lanka.pdf  >. 916 University Teachers for Human Rights (Jaffna), ‘A Marred Victory and a Defeat Pregnant with Foreboding, Special Report No. 32’   (10 June 2009), < http://www.uthr.org/SpecialReports/spreport32.htm  >.

917  Human Rights Watch, War on the Displaced, 19 February  2009

<http://www.hrw.org/sites/default/files/reports/srilanka0209webwcover_0.pdf   >.

GoSL POLICY

Background

  1. Mahinda Rajapaksa was elected President of Sri Lanka in November 2005: his manifesto included a pledge to review the 2002 cease-fire agreement with the LTTE. He was also committed to an increase in resources for the SLA and was well aware that the LTTE had used the ceasefire to rearm. By July 2006 hostilities had resumed. The failure of successive peace initiatives over the years cannot have encouraged continued political dialogue and the US ‘War On Terror’ together with the proscription of the LTTE as a terrorist organisation by the US in 1997, the UK in 2001 and the EU in 2006, would also have added weight to consideration of a possible military solution.918 It was also felt that the intervention of India in June 1997 halted an ongoing and successful SLA operation that would probably have destroyed the LTTE a set of events that was not forgotten in 2009. 919 Additionally GoSL were aware that the LTTE were using the protracted ceasefire to rearm. 920

Policy

  1. The then President appointed himself to be Minister of Defence and his brother, Gotabaya Rajapaksa, as Secretary of Defence and Lieutenant General Fonseka as Army Commander. The President also obtained parliamentary approval for major increases in the defence budget which grew to $1.6b in 2009. 921 This allowed General Fonseka to revitalise the SLA by increasing both its remuneration and its manpower to 300,000 troops over 3 years922, which created 5 new divisions923 and facilitated an operational rotation of units   at the front, whilst securing rear areas. The Sri Lankan Air Force ( hereinafter, SLAF) was also re-equipped and, importantly, as the ‘Sea Tigers’ controlled a sizeable length of the Eastern coastline, the Sri Lankan Navy ( hereinafter, SLN) developed a blue water capability.

Training

  1. Historically, the SLA had been a relatively inflexible and ponderous organisation with little manoeuvre capability. This effectively gave the LTTE, who were capable of rapid deployment, the initiative and also allowed them to build effective terrorism and conventional military capabilities in parallel. 924 One of the most striking military  reforms

918 Manjula Fernando, ‘EU classification of LTTE as a terrorist group stands’, Sunday Observer (16 November 2012)  <  http://www.sundayobserver.lk/2014/11/16/fea06.asp >.

919  K.M. de Silva, Sri Lanka and the Defeat of the LTTE (Colombo: Vijitha Yapa Publications, 2012), p.    2.

920  MOD, Humanitarian Factual Analysis Sri Lanka, para  88.

921 Anjali Sharma, ‘Post-War Sri Lanka: A Resurgent Nation’, Observer Research Foundation (12 July 2010) < http://orfonline.org/cms/sites/orfonline/modules/analysis/AnalysisDetail.html?cmaid=19481&mmacmaid=19470  >. 922 Ahmed S. Hashim, When Counterinsurgency Wins: Sri Lanka’s Defeat of the Tamil Tigers (New Delhi:  Cambridge University Press India Pvt. Ltd., 2014),   p.188

923 Ibid

924 Ibid. at pp. 31-32

was a new emphasis on small unit operations – hitherto the SLA had always operated, as   if in a conventional operational setting, at company and platoon level. This made them vulnerable to LTTE ambushes, artillery and mines. This new emphasis on small unit operations kept casualties lower and proved more effective in terms of both reconnaissance and subsequent strike action. It also better prepared the SLA for operations in a variety of environments from primary jungle to thick bush, paddy fields and plantations. The new tactics encompassed the creation and expansion of specialised units such as Special Forces and the Rapid Action Battle Squad and the Special Boat Squadron in the Navy. 925 Infantry Battalions also gave selected individuals specialist training and formed them into 4 or 8 man teams, called Special Infantry Operational Teams.

  1. The former Commander of the SLA, General Cyril Ranatunga, who oversaw the successful 1997 operations against the LTTE, established the Directorate of Human Rights and Humanitarian Law in January 1997 926. His memoires, written in 2009, were critical of government policy and are worth quoting as he not only perceived the lack of a policy, but also clearly understood the many lines of operation that a successful strategy would require:

There appeared to be a total lack of continuity in the conduct of operations against the armed Tamil terrorists. This is the result of having no policy on how to eradicate terrorism. This type of ethnic- based armed conflict, once ignited due to many reasons, is difficult to eradicate without a firm policy derived from strength and practice ability”. 927

  1. One of his requirements was for all ranks to understand and implement Human Rights and Humanitarian Law. He understood the importance of seeking not to alienate the Tamil civilian population and sought to improve on ‘hearts and minds’ training. According to the SLA’s own statistics some 140,971 soldiers of all ranks were trained or refreshed on various courses between 1997 and 2008. Similar directorates for the Navy and Air Force were established in 2002.According to evidence given before the LLRC Commission in August 2010, human rights cells had been set up at every HQ down to field level:

The Security Council had decided to pursue a strategy aimed at avoiding civilian casualties in the conduct of military operations. Accordingly, all operational orders to the Army, Navy and Air Force had clearly directed that every possible step be taken to avoid civilian casualties”928.

925  Fish, Sri Lanka learns to counter Sea Tigers’ swarm  tactics

926  MOD, Humanitarian Factual Analysis Sri Lanka, para  248.

927 General Cyril Ranatunga, Adventurous Journey: From Peace to war, Insurgency to Terrorism (Sri Lanka: Vijitha Yapa Publications, 2009), p.92

928 Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (Hereinafter ‘LLRC’) (November 2011) < http://www.priu.gov.lk/news_update/Current_Affairs/ca201112/FINAL%20LLRC%20REPORT.pdf >. para 4.36

LTTE POLICY

Background

  1. The LTTE had an organised command structure that was divided into 7 geographical divisions or wings, each under the command of a district commander who was responsible to Velupillai Prabhakaran. Additionally, there were 10 specialist wings; intelligence, procurement, finance, military, political, communications, research, black tigers, sea tiger and air tiger, all of which reported to directly to Prabhakaran. 929 At the beginning of 2008 it was estimated that the military wing had approximately 20 to 30,000 fighters or cadres supported by an auxiliary force that had been given basic military The LTTE were able to access military equipment, finance and political support through the extensive Tamil diaspora, some of whom were supporters of the LTTE; throughout the 2002/06 ceasefire the LTTE were able to upgrade their weapon systems and to stockpile weapons, ammunition and equipment not only on shore but also in floating armouries in international waters. The Air Tigers had approximately 25 trained pilots and 6 Czech-built Zlin Z-143 single engine four seat aircraft that were modified to carry up to four bombs per mission.930 Their last attempted strike was on 20 February 2009 when 2 aircraft attempted a ‘9/11’ type attack on Colombo – they were destroyed before they reached their targets.
  2. The Sea Tigers were demonstrably more successful than their air compatriots. At their height they numbered some 6,000 fighters divided into numerous teams based in units along the North East coast. They adapted or manufactured many of their own craft, including semi-submersibles, and were developing mini submarines. Importantly, they co- operated closely with the Military Wing and were carefully integrated into most operations.931 But by the end of 2008 the SLA had captured 20 Sea Tiger bases and their contribution in the last months of the war was minimal. The ‘Black Tigers’ comprised elite fighters especially trained for suicide missions under the direct command of Velupillai Prabhakaran. Following the example of the bombing of the US Embassy in Beirut by Islamic Jihad in 1984932, the LTTE were the first terrorist organisation to perfect and develop the use the suicide concept since World War They established this tactic as an integral part of their fighting strategy and transferred their expertise to other terrorist organisations.

Policy

  1. The LTTE used the period of the 2002-6 ceasefire to rearm and to prepare for what they referred to as the final war”933. They also endeavoured to consolidate their political and administrative organisation in the territories that they held and attempted to extend their

929 International Crimes Evidence Project Report (ICEP), ‘Island of Impunity? Investigation into international crimes in the final stages of the Sri Lankan civil war’ [Hereinafter ‘Island of Impunity’] (February 2014), paras.

16.113 onwards

930 Ibid, para. 16.128.

931 Ibid, para. 16.134.

932 ‘On This Day (1950-2005) 20 September 1984’, BBC website. < http://news.bbc.co.uk/onthisday/hi/dates/stories/september/20/newsid_2525000/2525197.stm 933  MOD, Humanitarian Factual Analysis Sri Lanka, para  121.

influence in other parts of the country where, under the terms of the ceasefire agreement, they were allowed to set up political offices.  934

It operated and sought to project itself as a de facto state. To this end the LTTE developed a well-structured international strategy and, in the territory it controlled, established its own police, jails, courts, immigration department, banks and some social services”935.

  1. However, there were setbacks. In 2004, the second in command of the LTTE, Vinayagamoorvthi Muralitharan, (aka. Colonel Karuna), defected together with his 6,000 fighters. He not only provided significant intelligence that assisted later operations, but his defection also led to a substantial reduction in LTTE recruitment in the Eastern Province936. It was also clear that the events of 9/11 and the subsequent war on terror would have a knock-on effect on the international community’s perception of the LTTE. With the help of the Indian Navy, the Sri Lankan Navy began to reduce the LTTE’s maritime capability and seize its floating armouries – according to Jane’s Review, 11 LTTE floating armouries were destroyed in 2006 and a further 3 in 2007.937 These logistic issues manifested themselves in the last months of the war when the LTTE allegedly ran short of artillery ammunition. 938 It also put added significance on the LTTE’s ability to manufacture their own war
  2. Whilst the LTTE acknowledged and prepared for a further conflict, it was, perhaps, not initially apparent to them, despite the very obvious improvements to SLA capabilities, that this would be fought at a sustained tempo which their logistics structure would be incapable of supporting and for which their manpower reserves would be inadequate. The loss of the Eastern Province in July 2007 meant that defeat was possible; the loss of their administrative capital, Kilinochchi, on 2 January 2009 meant that, unless they could secure a ceasefire, military defeat, in detail, was inevitable: the only strategy available to the LTTE after Kilinochchi fell was to secure a ceasefire and to bend all their resources to achieving that goal. This was a strategy acknowledged by US Ambassador Blake in his cable to the State Department of 5 February 2009,

The LTTE had refused to allow civilians to leave because the LTTE needs the civilians as human shields as a pool for forced conscription, and as a means to try and persuade the international community to force a cease- fire upon the government, since that is the LTTE’s only  hope.”939

Training

934 Ibid para. 120.

935 Darusman Report, para 33.

936 Malik Jalal, ‘Think Like a Guerrilla, Counterinsurgency Lessons from Sri Lanka’, Harvard Kennedy School Review (2011), p. 6

937 Jane’s Intelligence Review

938  ICEP, Island of Impunity, para 16.126.

939  US Ambassador Robert Blake, ‘Co-chair Meeting with UN Special Envoy to Sri Lanka’,    Embassy Colombo,

WikiLeaks, 5 February 2009, para  4.

  1. The training given to front line LTTE fighters fell broadly into three categories. Basic training, which lasted approximately 4 months940 and took place in LTTE bases which were established in almost every village941: special operations training, which included special reconnaissance, sniping, mine laying, artillery942 : and last, but by no means least, refresher training943 for all of the above. The LTTE,

invested heavily in training and discipline, command and control, communications, ideological indoctrination and psychological warfare instruction. 944

The preamble to a LTTE training document seized in 2009 describes the movement’s aims

and concludes by stating,

In such a situation military training must be provided that gives efficiency and confidence in order to drive away the enemy with vigour to reclaim our territories and it is our political aim to build up a militarized people power with clear political vision. Accordingly we have established our hierarchy and militarized our activities”945.

  1. The inference of the above statement was that the LTTE would militarize the Tamil civilian population in the areas that they

Civilians were also enlisted by the LTTE into their war effort in other ways, using them, for example, to dig trenches and build fortifications, often exposing them to additional harm”946.

 They also pursued exclusionary policies in the areas they controlled. The worst example was the expulsion of some 75,000 Muslim residents from the Jaffna peninsula in October 1990.947 Overall, the civilian population were there to be used for whatever purpose the LTTE saw fit. Tamil opposition groups were ruthlessly stamped out and internal dissent was not tolerated – the LTTE saw itself as the sole representative of the Tamil people and its elusive leader, Velupillai Prabhakaran, demanded absolute loyalty and sacrifice and cultivated a cult-like following”948

940‘Liberation Tigers of Tamil Eelam (LTTE)’, Jane’s World Insurgency and Terrorism    (6 Jun 2012), p. 11.

941  Paul Moorcroft, Total Destruction of the Tamil Tigers (South Yorkshire: Pen & Sword Military, 2012), p.   94.

942  MOD, Humanitarian Factual Analysis Sri Lanka, para.  49.

943 Ibid, para. 51

944  ICEP, Island of Impunity, para 16.120.

945Translated Copy of LTTE training document handed to author by SLA,   undated.

946 Darusman Report, para 68.

947  MOD, Humanitarian Factual Analysis Sri Lanka, para  35.

948 Darusman Report, para 31.

THE FINAL PHASE- THE EASTERN WANNI

9 January 2009

  1. The SLA had, by 9 January 2009, secured the western part of the Northern Province, opened up the A9 road through to Jaffna (for the first time in 23 years) and occupied Kilinochchi, the administrative capital of the On 2 January the President called upon the LTTE to lay down its arms and surrender.949 The SLA had effectively reached a tipping point whereby the LTTE were now trapped in an area of some 1,800 sq kms (see map at Annex B) and was surrounded on three sides. It would also have been obvious to the SLA command chain through aerial reconnaissance, UAV footage and Humint,950 that there were large numbers of civilians trapped in the same area. This would clearly present tactical challenges if the fighting was to continue and was probably a factor in offering terms. The LTTE did not surrender. Indeed the retention of a civilian population in their zone of influence was a vital element of their strategy as it,

Lent legitimacy to their claim for a separate homeland and provided a buffer against the SLA offensive.951

Over the next five months the number of civilians trapped in the remaining LTTE controlled area became a subject of intense debate between GoSL, the UN and associated NGOs. The Darusman Report states that around 330,000 civilians were trapped into an ever decreasing area, fleeing the shelling but kept hostage by the LTTE.952 In factual terms, 290,000 IDPs were processed at the end of the war and the University Teachers Report in its introduction states that Militarily stymied, it (LTTE) took physical hostage of 300,000 people in its final stages”. Whilst the true number will never be known, it can be reasonably assumed that a minimum of 290,000 civilians were concentrated into the shrinking LTTE perimeter during the final months. But it should not be forgotten that for many of the civilians this was their home and that they feared what would happen to them if they crossed over – some also had experienced the SLA occupation of Jaffna and had moved with the LTTE since 1995.953 Many also had relatives serving with the LTTE either voluntarily or as a result of forced recruitment.

Dilemma

  1. Given that the LTTE had no intention of surrendering, GoSL had an unpalatable dilemma. It could either accept a ceasefire, which the international community and UN were starting to promote, or continue with the offensive whilst trying to mitigate the threat to civilians. GoSL had no intention of accepting a ceasefire, as experience had shown that the LTTE merely used ceasefires to regroup  and rearm. This  occurred in  1997 during     the  Indian

949  MOD, Humanitarian Factual Analysis Sri Lanka, para  173

950 Human intelligence sources 951 Darusman Report, para. 70 952 Darusman Report, p. ii.

953 Darusman Report, para. 71.

brokered ceasefire and again during the 2002/06 ceasefire. There would also have been concern that the LTTE leaders would escape and be able to start a guerrilla campaign. A UN concern voiced by Sir John Holmes, UN Under-Secretary-General for Humanitarian Affairs 2007 -2010, was that the LTTE might use the trapped civilians to stage a mass suicide,

My worst fears of a concluding dreadful act of a Masada-style mass suicide were not realised”.954

In my military opinion, factoring in this experienced diplomat’s view, which appears to corroborate some of the GoSL’s own views on the ruthlessness of the LTTE, this presented as a wholly unique and unusual hostage taking situation. Indeed, ISIL, in Syria, has adopted some of these strategies, forcing the allied coalition in Iraq to make hard choices in the overall protection of the civilian population and the stability of the region. However, I must stress that final phase of the Sri Lankan situation, in 2009, appeared, at the time, to be a unique event, pitting the GoSL against a well trained and suicidal fighting force who were prepared to kill their own civilians. In fact, I do not believe that the strategic difficulties of resolving the last phase of the war have been fully appreciated by military strategists until relatively recently.

SLA tactics would have to take into account their likely casualties when they pressed their case against a fanatical enemy determined to fight to the last. If the strategic aim was to destroy the LTTE and its leadership once and for all, thus saving lives in the long term, then the dilemma was how to accomplish this whilst saving as many of the civilians trapped in the Wanni as practically possible. Tactical options open to the SLA are discussed in more detail at paragraph 20 below.

Challenges Posed

  1. From the start of the Eastern offensive in August 2006, GoSL had referred to their operations as being ‘Humanitarian’, which perhaps reflected the emphasis placed by SLA on civilian protection, rather than any form of punitive aspect directed against civilians: but nothing can have prepared them for the challenge they now faced. In an area approximately the size of Greater London within the M25, with no dominating ground and during the inclement weather of the north east monsoon, they had to kill or capture up to 5,000 thousand well-armed, fanatical LTTE fighters (many of whom had been issued with cyanide pills) in prepared positions, operating amongst and around over 290,000 civilians, who were themselves short of food and medical supplies. Additionally, large numbers of LTTE fought in civilian clothes in order to confuse the drones and exploit the civilians as a human buffer”.955 Indeed, the Darusman Report makes it clear that in the last phase stage of the conflict LTTE cadre were not always in uniform…”.956   The author can think of no

954 Sir John Holmes, The Politics of Humanity: The Reality of Relief Aid (London: Head of Zeus, 2013), p.112; Sir John Holmes was UN Under-Secretary-General for Humanitarian Affairs 2007   -2010

955  Frances Harrison, Still Counting the Dead: Survivors of Sri Lanka’s Hidden    War’ (London: Portobello Books,

2012), p. 245.

military precedent that the SLA could have turned to for guidance. This would have been  a challenge for the most professional and best informed and equipped armies in the  world.

  1. All the available evidence shows that the LTTE were using civilians as human buffers/shields to obtain a military advantage. 957The SLA would have been justified in using appropriate firepower to attain their military objectives. To do otherwise would be tactically
  2. In military terms the tactical options were stark. Field Commanders would have been well aware of past SLA casualty numbers and it is generally acknowledged that soldiers become less prepared to put their lives on the line towards the end of a campaign that is obviously moving towards a successful conclusion. As it was, and according to official GoSL figures, a total of 2,126 members of the Sri Lankan Security Forces were killed and 10,679 wounded from 1 January to 19 May 2009. Conversely, higher command would have been eager to get the job completed whilst the SLA had both the initiative and the momentum to achieve the strategic goal The one inescapable military certainty was that the LTTE could only be defeated `in detail’ through a protracted infantry and Special Forces operation. More sophisticated armed forces could have considered an amphibious option behind LTTE lines, which might have achieved surprise and shortened the conflict. In my military opinion, the SLA did not have a sufficient amphibious capability. Similarly, the Sri Lankan Air Force did not possess the rotary assets to complete an airmobile assault. More imaginative use of armour might also have been considered, but the terrain, weather (see below) and soft soil limited its deployment as did the availability to the LTTE of anti- tank missiles and mines. A well targeted Special Forces operation with the aim of killing Prabhakaran and his immediate commanders could have been countenanced with precise intelligence and precision guided weapons (PGMs). But SLAF did not have the exact location of Prabhakaran and, as the perimeter shrunk, the collateral danger to civilians increased. The latter also negated the use of overwhelming and sustained firepower. The only realistic option was a step by step ‘boots on the ground’ advance. Photographs taken by the author in December 2014 at Annex C show the few remaining houses in the combat area that still show battle damage – although of little evidential significance, the battle damage has all been caused by small arms fire. The tactical balance to be struck was to ensure the assaulting troops were given the necessary fire support whilst minimising SLA casualties and collateral  damage and civilian
  3. The mitigation measures adopted to protect civilians included the attempted designation by GoSL of NFZs,958 humanitarian corridors, leaflet drops (examples are shown at Annex D), the use of loud speakers to encourage civilians to cross the lines, UN organised humanitarian aid convoys, the facilitation of ICRC brokered evacuations from the beach, and the preparation of camps and medical facilities to receive significant numbers of IDPs. On 6 April 2009, as detailed in paragraph 174 of the Darusman Report, the Commander of the SLA, Lieutenant General    Fonseka, was quoted in Sri Lanka’s Observer newspaper as

957 Darusman Report. Para98. p28

958  The LTTE did not agree the terms of any NFZ in the final  phase.

saying that the SLA was involved in the world’s largest hostage rescue” operation.959 On 12 April, coinciding with the Sinhala and Tamil New Year the Sri Lankan President announced a 48 hour period of military restraint to allow civilians to escape and for the LTTE to surrender (see Annex E). On 27 April 2009 a joint Indian-Sri Lankan statement was released which stated,…the Sri Lankan security forces have been instructed to end the use of heavy calibre guns, combat aircraft and aerial weapons which could cause civilian casualties.960 In fact, and according to a Government source the use of artillery and 122mm mortars had been stopped with the declaration of the first NFZ on 19 January 2009. However, and according to the same source, the use of 81 and 82mm mortars was possible with Brigade or Divisional agreement. There is therefore a degree of ambiguity in the Presidential statement for the definition of a heavy calibre gun – see para 24.  961

  1. The most effective measure to reduce civilian casualties would be the degree of detailed planning and rehearsal that would govern the assault during the last few months. Equally important would be the tempo of operations, as surprise was going to be difficult to achieve and too much haste, given the LTTE tactics, would inevitably result in more civilian casualties. Step by step Special Forces led, infantry operations gradually became the norm and this was reflected in Lieutenant General Fonseka’s comment (Paragraph 22 above) on 6 April 2009. For the final assault across the Nandhikkadal Lagoon into what were NFZs 4 and 5, a model was created which accurately reflected LTTE positions as pin pointed by UAV
  2. It is perhaps useful at this stage to understand some military terminology. A direct fire weapon is in simple terms one that is aimed and fired at a visible target. An indirect fire weapon is one where the firer cannot actually see the target and is normally working off co-ordinates provided by an observer closer to the front – mortars and artillery are indirect fire weapons. Obviously the danger of collateral damage is greater with an indirect fire weapon. It should be born in mind that during combat it is unusual to be able to destroy an indirect fire weapon with direct fire except by the use of air delivered laser guided bombs or rockets. However, to have such a capability immediately available would have required a `cab rank’ of airborne, armed aircraft available for immediate tasking by ground troops: the Sri Lankan Air Force did not have that capability. The dilemma for the SLA was how to respond when their ground forces were subjected to LTTE indirect fire: did they respond in kind and would any response have been proportionate. This is discussed further at paragraph 28. Artillery is generally acknowledged to fall into three categories:
    • Light artillery are guns up to and including 105mm
    • Medium artillery are guns of more than 105mm and less than
    • Heavy artillery are guns of 155mm and larger (not possessed by SLA).

Ground and Weather

959 Darusman Report, para. 174

960  Moorcroft, Total Destruction of the Tamil Tigers, p.  144

961 Heavy Artillery are guns of 155m and the SLA neither used, nor were in possession of heavy artillery during the conflict.

  1. The terrain in the Eastern Wanni varies from primary jungle in the south to paddy fields and Palmyra plantations around Kilinochchi and dry scrub towards the coast. The whole area was waterlogged in January 2009, as indeed it was when the author visited in December 2014. There are two significant natural water obstacles parallel with the coast; the Jaffna Lagoon to the north and the Nandhikkadal Lagoon to the south. The latter would play a significant role in preventing civilians from escaping west to safety. The appalling conditions were worsened when the LTTE destroyed the walls of the Kalmadukulam tank, which flooded some fifteen square kilometres. They attempted to do the same to the Iranamadu tank, the largest reservoir in the north (approximately 6 to 8 times the size of the Kalmadukulam tank), but the LTTE fighters sent to complete the mission disobeyed orders and surrendered to the SLA instead.962 It is of note that if they had completed their mission successfully, the effects were potentially catastrophic for both trapped civilians and the advancing SLA. The area was bounded by two un-metalled roads, the A9 running north to Jaffna and the A34 running from Mullaittivu on the coast west to its junction with the A9. The soil type varies from ‘paddy’ earth around Kilinochchi to lighter sandy soil and then sand along the beach and
  2. The north east monsoon lasts from December to March and on poor days brings a low cloud base and torrential rain, which would have had a significant effect on airborne surveillance, whether from satellites, fixed wing aircraft or UAVs. The US State Department Report to Congress on Incidents During the Recent Conflict in Sri Lanka, 2009, states, when referring to satellite imagery, on page 10 states that, sandy soil conditions in the NFZ and the emerging monsoon season resulting in increased cloud cover further complicated efforts to monitor the conflict with commercial and USG sources.”963 I have adopted this observation to conclude that the prevailing weather conditions made contemporaneous and accurate satellite imagery

SLA Military Capability

  1. The strategic and political direction of the war against the LTTE was provided by the National Security Council (NSC), which was charged with the maintenance of national security, with authority to direct security operations and matters incidental to it.964 The NSC’s directives would then be passed through the Joint Operations Headquarters, run by the Chief of Defence Staff, to the individual service commanders. In the case of the SLA, command then passed from the Army Commander to regional headquarters known as Security Forces Headquarters (SFHQ), and from there to Divisional and Task Force Headquarters for implementation.965 For operations in the Eastern Wanni, one SFHQ was involved, SFHQ-Wanni based at Vavuniya.966 Operations in the Wanni were conducted   by five divisions, although one of these (58 Division) was also designated a Task Force, and 4 Task A Division was sub-divided into three Brigades of three infantry

962  Paul Moorcroft, Ibid, p. 134.

963 U.S. Department of State, Report to Congress on Incidents During the Recent Conflict in Sri Lanka (2009), < http://www.state.gov/documents/organization/131025.pdf >.   p. 10

964  ICEP, Island of Impunity,  para 16.7.

965 Ibid, para 16.27.

966 Ibid, para 16.34

Battalions each. A Brigade consisted of between 2,500 and 3,000 personnel. A Task Force consisted of only two Brigades of three Battalions each. There were also specialist Brigades such as Special Forces, Commando, Air Mobile and an Artillery Brigade.967 Overall, it is reasonable to assume that there were approximately 80,000 troops available for operations in the Wanni (East and West). Whilst this might, on the face of it, sound excessive, it merely reflects the reality of conducting operations in challenging circumstances with high casualty rates, inclement weather and a fanatical enemy. There was also the need to rotate units through the front line, whilst also securing rear areas. The available SLA deployment area declined in parallel with the shrinking perimeter.

  1. In terms of artillery support open sources indicate that the SLA had access to (45):
    • Mortars – 81mm, 82mm,107mm,
    • Artillery – 85mm, 122mm, 130mm,
    • MBRLs – 122mm

The artillery, MBRLs and the 107mm and 122mm mortars would probably have been part of the Artillery Brigade and detached to support Divisions and Task Forces. The 81mm and 82mm mortars are more likely to have been integral to infantry Battalions. It is of note that the SLA did not possess heavy artillery (guns of 155mm calibre and  above).

  1. According to the SLA the only fuzes available for both artillery and mortars were ‘impact fuzes’ – they exploded on hitting the ground. Although there have been some references to MBRL air burst fuzes being used by the SLA, 968 these cannot be substantiated. Indeed, given the protection afforded by the tree canopy in many areas, a purchase of air burst munitions would not have made a lot of sense. Artillery and mortar fire support is most effective if it is properly controlled and directed. To this end the SLA would have deployed Forward Observation Officers (FOOs) and relied on their UAV coverage for target identification. They also had 4 Chinese locating radars, which, by numerous accounts were highly effective.969. Locating counter battery radars have been developed principally for counter-battery fire – they enable a commander to locate enemy guns that have been shelling his own troops and provide the coordinates to allow his own artillery to shell the enemy guns. However, this tactic is only effective if the enemy guns stay in position long enough to become targets themselves. If so called ‘shoot and scoot’ tactics were used by the LTTE then the effectiveness of the counter battery radar would be somewhat curtailed. An eye witness account of such tactics being used by the LTTE is recounted by a retired UN Bangladeshi Colonel on page 109 (Chapter 5, The Convoy) of Gordon Weiss’s book, The Cage”.970

967 Ibid, para 16.46

968  Moorcroft, Total Destruction of the Tamil Tigers, p.  135

969 Ibid, p. 130.

970 Gordon Weiss, The Cage, p,109. Weiss describes the account of the UN convoy member who was apparently a former artillery officer. There were artillery exchanges between the army and the Tigers,who had stationed mobile artillery batteries in and around PTK.Harun could see the barrel flashes from Tiger heavy artillery piece just 300 metres from the hospital, quite apart from hearing its thumping reports.As the Tiger artillery sent outgoing rounds against the army’s advance and then shifted position,he could count off the seconds until an incoming barrage responded in an effort to destroy the  guns.”

  1. In the ‘US Department of State – Report to Congress on Incidents During the Recent Conflict in Sri Lanka, 2009’, I noted that there appeared to be an acceptance of the LTTE deliberately placing their artillery guns close to civilians in order to cause casualties upon the Tamil civilian population .971
  2. There are reports of SLA using Multi-Barrel Rocket Launchers (hereinafter MBRLs) during the final months of the war. It has not been possible to substantiate these claims. It is of note, however, that the killing power of a MBRL is significant and that at their most effective, the SLA variant could fire 40 rockets in 18 to 22 seconds. These are described as ‘area weapons’ which unleash, fierce firepower. This would kill or seriously injure any unprotected person in an area approximately 600 x Given the political circumstances prevailing at the time, if such destructive force had been deployed, this would have caused a major outcry to halt the fighting. There is no evidence from what I have examined of the destruction that would have been caused, particularly with regard to buildings such as hospitals, if such firepower had been unleashed . Moreover, unnecessary casualties would have been counterproductive to the overall SLA military strategy: any military commander would have been cognisant of this obvious political factor.
  3. For close air support the Sri Lankan Air Force had Kfir C-2, Kfir C-7 and MiG-27M Flogger J2 fixed wing aircraft.972 They also had MI 24 attack and MI 17 transport helicopters. The author could not determine whether Precision Guided Munitions (PGM) were available to the Air
  4. The Sri Lankan Navy possessed some 50 combat and support ships and in excess of 100 inshore patrol craft.973 They were supported by the Sri Lankan Special Boat Service (SBS) which by 2009 numbered some 600 personnel.974 The SBS’s role was to penetrate LTTE territory to provide reconnaissance, surveillance and direct action operations. According  to official accounts975 the Sri Lankan Navy established secure sea corridors for civilians escaping from LTTE held areas, although in practical terms they were probably not that successful because escaping civilians would have neither the navigational aids nor the knowledge to conform to them. There are, however, many reports 976of the Navy helping escaping civilians, whether by taking them on board or by offering medical

LTTE Military Capability

  1. The LTTE use of civilians has already been referred to elsewhere in this Report, but it is worth emphasising once again as, during the final months of the conflict, it reached new

971 January 27 – The New York Times reported that a hospital came under shelling. The article quoted one witness saying, Our team on the ground was certain the shell came from the Sri Lanka military, but apparently response to   an LTTE shell. All around them was the carnage from casualties from people who may have thought they would be safer being near the UN.” Another witness said, The team on the ground had suspected that the rebels were firing at government forces from close to where civilians were taking  shelter.”

972 ICEP, Island of Impunity, para 16.74. 973 ICEP, Island of Impunity, para. 16.89 974 Ibid.

975  MOD, Humanitarian Factual Analysis Sri Lanka, para  229.

976 Ibid, para. 234-235

levels of intensity. The two quotes below come from the University Teachers Report mentioned at Paragraph 3 above.

The upshot was the LTTE whose astounding military success was founded on despoiling the social fabric of the Tamils and making everything, from child bearing to education, creatures of its military  needs.”

Even as the LTTE leaders were discussing surrender terms, they were sending out

very young suicide cadres to ‘martyrdom’ to slow down the army advance”.  977

Although  reduced  to  some  5,000 hard-core fighters978        the  LTTE  were reinforced by conscripted civilians of all ages – as the UN  recognised;

The LTTE relied on forced recruitment in an attempt to maintain its forces. While previously the LTTE took one child per family for its forces, as the war progressed, the policy intensified and was enforced with brutality, often recruiting several children from the same family, including boys and girls as young as 14. Civilians were also enlisted by the LTTE into their war effort in other ways, using them, for example, to dig trenches and build fortifications, often exposing them to additional harm.979

  1. The LTTE were also masters of defensive earthworks called bunds (example at Annex F), and they had the time and the conscripted labour to build them. One such bund in the western Wanni was over 30 kms long and the SLA lost 153 soldiers in breaching just one section of it.980 The use of defensive bunkers and bunds lasted until the final days of the conflict:

Increasingly, LTTE forces, mounting their last defence, moved onto the coastal strip in the second NFZ, particularly in the Mullivaikkal area, where the LTTE leadership had a complex network of bunkers and fortifications and where it ultimately made its final stand”.981

  1. In terms of artillery the LTTE were reasonably well off, although their supply chains had been disrupted, especially after the loss of their floating armouries. One source reports that,

these vessels were carrying over 80,000 artillery rounds, over 100,000 mortar rounds, a bullet- proof jeep, three aircraft in dismantled form, torpedoes and surface to air missiles.982

977 University Teachers for Human Rights (Jaffna), ‘A Marred Victory and a Defeat Pregnant with Foreboding, Special Report No. 32’ (10 June 2009), < http://www.uthr.org/SpecialReports/spreport32.htm >.   p.  2.

978 Darusman Report, para. 66.

979 Ibid, para 68.

980  Moorcroft, Total Destruction of the Tamil Tigers, p.  131

981 Darusman Report, para. 97

982 Ahmed S. Hashim, When Counterinsurgency Wins: Sri Lanka’s Defeat of the Tamil Tigers (New Delhi: Cambridge University Press India Pvt. Ltd., 2014),  p.  94

 

 

 

According to daily Government press releases during the final five months of the conflict, the following LTTE artillery pieces and mortars were recovered, although it is not possible from the information available to determine the last time they had been  used983:

  • 29 Jan – 1 x 152mm artillery
  • 31 Jan – 3 x 120mm mortars, 3 x 81mm mortars, 1 x 60mm
  • 16 Feb – 2 x 130mm artillery
  • 24 Feb – 14 x 60mm mortars, 43 x 60mm mortar barrels, 25 x 2 inch mortar barrels, 3 x 120mm mortar
  • 3 Mar – 1 x 130mm artillery piece, 1 x 122mm gun
  • 6 Mar – 6 x 60mm
  • 16 Mar – 5 x improvised
  • 28 Mar – 2 x 60mm
  • 31 Mar – 1 x 130mm artillery
  • 13 May – 2 x 60mm
  • 15 May – 22 x 60mm mortars, 1 x 81mm mortar
  • 16 May – 1 x 152mm artillery piece, 3 x 60mm mortars, 1 x 81mm mortar

By way of limited corroboration, there is a report 984 that in one of the last battles (at Iranapalai) on 4/5 April the LTTE lost three 130mm guns. There is no doubt that the  LTTE had access to artillery and mortars until the  end,

Towards  the  end  of  the  war  the  numbers  of  shells,  but  not  the       accuracy

declined”.985

  1. A list of all recovered LTTE weapons during the war and some photographs are attached at Annexes G and H. The list is extensive and includes wire guided anti-tank missiles, surface to air missiles and homemade MBRLs. There were two capability gaps in the LTTE inventory: first, the Air Tigers were never really effective and did not contribute at all during the final months: second, the LTTE had limited surveillance capacity, fire control measures or equipment. This would not have made a difference during the pitched battles when SLA were assaulting the bunds, but would have made a significant difference when LTTE were using indirect fire. One former LTTE intelligence major interviewed by the author986 stated that when the LTTE pulled back from a location they would record its position and then shell it from their new position on the basis that the SLA would have subsequently occupied it. Unobserved fire such as this could obviously catch civilians and SLA troops
  2. The LTTE were technically innovative and made their own weapons including the 6 barrel MBRLs, two of which were recovered on 3 March and 13 May 2009 respectively (see Annex H). They also manufactured improvised rocket launchers, artillery pieces and giant mortars (see Annex H). It is believed the giant mortar rounds were still in development and

983  Extracted from GoSL press releases between January – May   2009

984  Moorcroft, Total Destruction of the Tamil Tigers,  p.137

985 Ibid, p. 130.

986  Interview Author and (Maj) Subramaniyam Sathyamoorthi Ex LTTE, 19 December   2014..

according to Government sources, the round itself had an improvised phosphorous war head. An observation on improvised weapons and ammunition is that their range and accuracy would be inconsistent. For instance, the improvised 6 barrel MBRL (Annex H) appears to lack a solid platform and so would have been extremely unstable when fired – this would have resulted in loss of range, inaccuracy and a much greater spread of rounds, which inevitably would have added to the civilian casualty count. Perhaps the most effective homemade weapons” in the LTTE armoury were the suicide bombers, who were used to the very end. Annex I, which is an extract from a government list of suicide attacks, details the attacks and casualties during the last five months of the war. Serial 114, which is attached to this report, deals with the numerous suicide attacks, and is noteworthy for its callousness as it took place at an IDP reception centre and appeared to be an illustration of a willingness of the LTTE to use suicide attacks to kill their own civilian population who were trying to escape,

Although the LTTE’s supply chains had been disrupted, especially after the loss  of its floating warehouses, it still had access to some stockpiles of weapons, including some artillery and a few MBRLs. It used them to offer stiff resistance from behind its fortifications and earth bunds and also launched waves of suicide attacks”.987

NFZs

  1. There were 5 NFZs. The idea for such zones would appear to have come from the SLA and instructions are set out in letters (copies at Annex J) as follows:
    • NFZ 1 letter dated 19 Jan
    • NFZ 2 letter dated 19 Jan
    • NFZ 3 letter dated 19 Jan
    • NFZ 4 dated 11 Feb
    • NFZ 5 dated 9 May

The first two letters come from Army HQ and are signed by Brigadier K A D Karunasekera and addressed to the Head of Delegation, ICRC. The third letter comes from the Military Intelligence Directorate and appears to have a military distribution with the ICRC being informed by SFHQ Wanni. Trapped civilians were informed of the NFZs by leaflet drops (an example from the last days of the conflict is at Annex J), loud-speakers and  wireless.

  1. According to the Rules of Armed Conflict988, a NFZ only becomes effective if all warring parties agree its details. The LTTE did not endorse any of the NFZs and from the moment they were created they fired artillery and mortars at the SLA from inside the NFZs, sometimes from close to hospitals,

The LTTE also fired mobile artillery from the vicinity of the hospital, but did    not

use the hospital for military purposes until after it was  evacuated.”.989

987 Darusman Report, para. 69

988  Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, ICRC, 12    August 1949.

989 Darusman Report, para. 94

The LTTE is now widely recruiting from among the trapped population, forcing

both young and old to fight, and is positioning its artillery  within

civilian concentrations”.990

Photographs purporting to be LTTE positions amongst the civilian population in the Eastern Wanni are at Annex K. They were allegedly taken by Reddy, one of two Indian journalists embedded with the SLA. It is also well documented that in the closing months, LTTE fighters wore civilian clothes as noted in the Darusman Report, LTTE cadres were not always in uniform at this stage.991 Furthermore, the trapped civilians were either voluntarily helping or being forced to build military fortifications; this is on top of forced conscription, which intensified as the war progressed.

  1. The logic behind the delineation of the NFZs has in some accounts raised questions, but in the author’s view, the NFZs followed the movement of the civilian population, which essentially followed the loss of territory by the LTTE. Given the LTTE’s overall use of trapped civilians, it follows that they were forced to retreat in tandem with the LTTE and beginning in February, the LTTE commenced a policy of shooting civilians who attempted to escape, and, to this end, cadre took up positions where they could spot civilians who might try to break out.992
  2. Whilst in the perception of the International Community the NFZs were inviolate, they did not legally exist, as the LTTE had not agreed to them. Additionally, the LTTE fought from within the NFZs, often in civilian clothes, whilst also using the IDPs as a buffer from the SLA and also as a source of labour and fighters. All armies will retain their inherent right to self-defence when threatened and, given the presence of so many civilians, any such response in these circumstances should be judged by the principles of distinction, legitimate targeting, military necessity and proportionality as defined in international law. Faced with these circumstances, a western Army would control their response through the use of well circulated and easily interpretable Rules of Engagement (ROE). Additionally, the command chain would ensure that all troops were aware of civilian concentrations, hospitals, UN/NGO facilities, humanitarian convoys etc. within their area of operations. The SLA would appear to have complied with this passage of information requirement and the author was given photocopies of 6 x signals issued by SFHQ(W) during January and early February 2009. These are at Annex

SLA: Rules of Engagement (ROE)

  1. In essence, ROE set out the operational parameters for military action – as such, they can provide both authorisation, for, or limitations on the use of force. Historically, ROE have provided a measure of protection for civilians caught up in an armed conflict. In their most basic form they inform an individual soldier of the circumstances in which he might use

990 US Ambassador Robert Blake, ‘Northern Sri Lanka SitRep 35’, Embassy Colombo, WikiLeaks, 19 March 2009, para. 5.< http://www.cabledrum.net/cables/09COLOMBO310    >.

991 Darusman Report, para. 97.

992 Ibid, para. 99.

force. During recent years, particularly in sophisticated armed forces, ROE have assumed  a growing importance as the ability to conduct precision, long range strikes, either by manned aircraft or UAVs, has increased. The key to understanding ROE is that they seek to limit collateral damage (proportionality) through precision (distinction) whilst allowing operations to progress (legitimate targeting and military necessity). ROE do NOT and are unlikely ever to prevent collateral damage and civilian deaths, even with the most well equipped and trained armies. A UK definition of ROE, from the Staff Officer’s Handbook 14, is at Annex M. Note the penultimate sentence, The UK’s inherent right to self defence however, will always apply. Similar wording is used in almost all international ROE seen by the author.

  1. I have seen documents that equate with ROE applying to the early weeks of 2009. I have not made available to me any ROE’s thereafter. On the face of it this might appear to be a serious omission and a possible factor behind some of the alleged violations of the Laws of Armed Conflict. But SLA’s operational capabilities have to be kept in perspective. From 2006 the SLA became an increasingly effective army as it expanded together with the addition of new weapons, tactics and increased remuneration. These factors combined to increase morale, which in turn resulted in a successful series of operations. However, the SLA was still a developing force with a minimum education requirement for recruitment purposes of Sri Lankan Grade 8, which requires reading and writing skills. Post war the standard was raised to Grade 10. Even in modern western armies the interpretation of written ROE can prove challenging. A Human Rights Watch Report entitled ‘Off Target, The Conduct of the War and Civilian Casualties in Iraq’ dated 2003 stated on page 102 that While US rules of engagement on paper met international humanitarian law standards, in practice, soldiers and marines reported conflicting interpretations of what they meant and how to apply them in practice….” Doctrinally, the SLA 2006 reforms had introduced a form of ‘auftragstakik’ or mission command, which encourages initiative at lower rank levels. It is the opposite of ‘befehlstakik’, which is a process requiring detailed orders down to the lowest levels. To that end, the SLA had discovered a winning formula that was ideally suited to the final challenges of the
  2. The operations during this phase of the war involved small unit actions, set piece conventional engagements and ‘hostage rescue’ operations in different environments. Subjectively, the SLA, at its operational best, most probably operated at a sophistication level of 6 out of 10. Issuing ROE for the final four months of the war would have been confusing and impractical. Instead, the SLA relied upon the over-arching political direction to avoid excessive human casualties, as this would have had the likelihood of ensuring international intervention, on the basis of a humanitarian disaster, thereby frustrating a key military objective, namely to kill or capture the LTTE leadership. Common sense dictates that this is likely to have been passed down the command chain. If this had been otherwise, in my opinion, it astonishing that 290,000 Tamil civilians survived to be rescued by the SLA. It is also of note that that there are too many well recorded instances of soldiers helping Tamil civilians to escape to believe that the ‘no civilian casualty’ policy was not understood by all ranks. Gordon Weiss makes the point on page 216 of his book, ‘The Cage’,

It remains a credit to many of the front-line SLA soldiers that, despite odd cruel exceptions, they so often seem to have made the effort to draw civilians out from the morass of fighting ahead of them in an attempt to save lives”.993

If there had been a blanket policy of elimination of LTTE cadres, then the capture and rehabilitation of approximately 12,000 cadres who emerged from the final phase,994 supports the contention that there was neither a systematic policy to kill surrendering LTTE, nor civilians. 995 If I compare this approach to internal conflicts of which I have personal experience, such as in Sierra Leone, where widespread and systematic atrocity crimes took place, this supports my opinion that this was not an army that was seeking to indiscriminately exterminate their enemy or civilians. Of course, this does not exclude individual instances where war crimes may have  occurred.

In my opinion it might also be argued that some of the deliberate operations completed by the SLA had as an additional aim, the rescue of civilian hostages. In a US Embassy cable to the State Department on 20 April 2009, US Ambassador Blake reports a successful SLA operation near and in Putumattalan that enabled 35,000 civilians to escape the combat zone with a further 1,500 escaping by sea.

  1. The Sri Lankan Air Force operated at a more sophisticated level, which, given the technical requirements of their service, is not surprising. Additionally, the Air Force had the necessary surveillance (satellite imagery and UAV coverage) and delivery vehicles to operate more sophisticated targeting and battle damage assessments. Until the final five months, the Air Force targeting procedures appear to have been relatively rigorous with targeting collateral collected from numerous sources; informants, ground surveillance, UAV and air sorties. As a general rule, as recorded in an official publication, all Battlefield Air Interdiction (BAI) sorties occurred within a 3 to 5 km belt of the LTTE’s defence lines, thus enhancing civilian safety. The same publication admits that this was not possible in the final months of the war and that BAI sorties ceased. But a cable from the US Embassy to the State Department on 27 April 2009 states quite clearly,

The Sri Lankan Air Force says it continues to attack targets only in the area south of the CSZ and north of Mullaitivu. Targets include LTTE fighting positions in the area south of the safe zone.”

Further down the same paragraph the cable continues,

An Air Force source reports there is no use of attack helicopters since the capture of Puttukudiyuruppu (PTK) East because they are too vulnerable to LTTE small

993  Gordon Weiss, The Cage, p. 216

994  Camelia Nathaniel, ‘11,770 Rehabilitated Ex-LTTE Cadres of Both Genders Are Being Re-integrated    into

Society’, Dbsjeyaraj Website, 24 January 2013. <http://dbsjeyaraj.com/dbsj/archives/15251   >.

995 http://dbsjeyaraj.com/dbsj/archives/15251, As an aside, this article by a respected Tamil journalists, suggests that following a rehabilitation programme former cadres have been trained with vocational skills and reintegrated back  into society.

arms. According to this source, the SLAF Commander categorically refuses to carry out strikes within the no fire zones”despite Army pressure to do  so”.

Proportionality

  1. In everything the author has had access to and reviewed there is no indication that SLA deliberately or disproportionally targeted the civilian population in the course of their operations. In fact, the available evidence suggests the reverse. The use of civilians as human buffers by the LTTE in whatever circumstances would have resulted in civilian deaths.
  2. In the author’s experience in situations of this kind the intelligence picture is never a hundred per cent. Who was or was not a genuine civilian could not have been known. In such circumstances a commander acting reasonably and in accordance with the law would take what steps he could, whilst minimising civilian casualties, to achieve his military objective. These principles would have applied during the final months of the war and thus the loss of civilian life, to the extent that it can be determined, is capable of being interpreted as collateral damage that, however regrettable, is permitted by the laws of armed These conclusions are further borne out by the sections that follow on crater and imagery analysis.

CRATER ANALYSIS

  1. The interpretation of satellite imagery played a role in the Darusman assertion in paragraph 251 that the SLA were guilty of the widespread shelling of a large IDP population” 996 throughout the final months of the conflict and A cable from the US Embassy in Sri Lanka back to the State Department on 3 April 2009 states:

Ambassador recommended to UN Resident Representative Neil Buhne that he considers sharing the UN imagery with the GoSL because it demonstrates that there is proof of shelling and could discourage future shelling if the government knows there is a mechanism for tracking it”.997

  1. If the aim is to attribute shelling to a particular participant, then it is pivotal to the argument to prove that a specific crater was caused by a shell from a particular type of weapon which was fired on a particular bearing. The British Army Pamphlet that covers crater analysis is titled Artillery Training in Battle, Pamphlet No 12, Part 3. The introduction section of the pamphlet, under the heading ‘Criteria’, states that The crater(s) selected for examination should be fresh. Distinctive features tend to erode over time and may disappear altogether in poor weather.” It goes on to state that It may not be possible to examine craters when the ground is unsuitable. The ground may be too rocky and hard in which case little impression is made. Conversely, the ground may be too soft and wet in which case the crater may fill with water”.998 Lastly, the introduction states that craters must be approached carefully as foot/tyre marks may destroy valuable details indicated by the spoil, splinter pattern and fragments. In the case of the Wanni, the presence of so many civilians in the area and the desire to recover the dead and wounded would probably have destroyed much of this kind of evidence quite early on. The pamphlet also notes that The craters made by bombs delivered by aircraft are not particularly distinctive”.999
  2. Apart from immediate on the ground inspection, the same principals can be applied to the analysis of imagery of shell craters. Most craters make a clearly defined pattern on the ground and differ according to the type of projectile fired and the type of fuze Without going into unnecessary detail, the explosion of a shell causes an inner crater, its momentum carries the effect forward and the splinter pattern is thrown to the sides in the form of an arrow that points back towards the gun that fired the shell. A mortar crater has different characteristics, but it is still possible to determine the angle of impact and the line of fire.
  3. There are three significant factors that impact the interpretation of the available imagery from the Eastern Wanni:

996 Darusman Report, para. 251.

997 US Ambassador Robert Blake, ‘Northern Sri Lanka SitRep 46 ‘, Embassy Colombo, WikiLeaks, 3 April 2009, para.  2<  http://www.cabledrum.net/cables/09COLOMBO393 >.

998  British Army Pamphlet that covers crater analysis is titled    Artillery Training in Battle, Pamphlet No 12, Part 3.

The introduction section of the pamphlet, under the heading  ‘Criteria’

999  British Army Pamphlet that covers crater analysis is titled    Artillery Training in Battle, Pamphlet No 12, Part 3.

The introduction section of the pamphlet, under the heading  ‘Criteria’

  • The weather; ‘…emerging monsoon season resulting in increased cloud cover…”1000
  • The soil, light to
  • The number of civilians in the

1000  Moorcroft, Total Destruction of the Tamil Tigers, p.  134.

IMAGERY ANALYSIS

  1. Two reports have been prepared by McKenzie Intelligence Services (MIS), a specialist imagery company based in London. The reports are attached respectively at Annexes N and O. Rather than repeat the full content of each report, this document only sets out the aim and main

Report No. 1

  1. MIS was tasked to look at a frequently quoted imagery study (believed to be dated 8 Oct 2009) by the American Association for the Advancement of Science (AAAS). The study was commissioned by Human Rights Watch and Amnesty International and its overall aim was to study conditions in NFZ 3 during the period 6 to 10 May 2009. MIS concluded that:
    • There are a number of craters above 3m in diameter, which may indicate that large calibre artillery systems or air delivered munitions might have been used in those cases.
    • However there are a number of key variables which all effect the nature of a
    • Confidence in identifying which weapon system was used, and when, is
    • Identifying the direction of the shot from the available imagery is not possible with a high degree of confidence. This is possibly the most important issue in ascribing culpability and underlines the difficulty in any investigative

Report No 2

  1. The aim of this more comprehensive report was to:
    • Determine whether any of the craters in the NFZs predate 2 January
    • Search for LTTE weapons in the
    • Estimate the number of graves in each
    • Estimate the maximum number of temporary shelters in each
    • Check for the projection of ejecta for all identified craters in
    • In addition to available imagery, incorporate, as appropriate, handheld photography taken from helicopter overflights of the NFZs on 29 May
    • Study the specific accusations of the use of artillery as recorded in the Darusman Report.
    • Define the weather in the NFZs in the period 2 January to 19
  2. Paragraph 81 of the Darusman Report states that during the period 19 -20 January 2009 shells hit Vallipunam Hospital in NFZ 1. Imagery dated 21 January 2009 indicates that it was likely that the hospital had not received indirect fire on those dates”.
  3. Paragraphs 83 and 84 of the Darusman Report state that artillery fire fell on a food distribution centre on 23 and 24 January and also hit the Udayaarkaddu Hospital on 24 January. Imagery for these dates was not available; however imagery dated 16 March 2009 does substantiate indirect fire being used in the area and two of the hospital buildings appear to have significant damage”.
  4. Paragraph 91 of the Darusman Report states that the hospital at Puthukkudiyiruppu was hit every day between 29 January and 4 February 2009 by Multi Barrelled Rocket Launchers (MBRLs) and other artillery taking at least nine direct hits. Imagery dated 5 February 2009 indicates that the hospital had suffered two possible areas of damage during the time frame, but not nine direct hits. However, imagery dated 16 March 2009 shows that the hospital and its associated buildings had suffered from a great deal of damage”. The author also notes that even one salvo from a MBRL would have devastated the entire area (see paragraph 31).
  5. Paragraph 94 of the Darusman Report states that on 6 February 2009 the Ponnambalam Hospital was shelled causing part of it to collapse and that it was shelled again on the 9 February 2009. Only imagery dated 5 February was available for this site and this shows the hospital to be in relatively good condition. Subsequent imagery does illustrate that the hospital did suffer over time from indirect fire and several buildings were destroyed and probable craters can be observed around the hospital compound”. Three images relating to the Ponnambalam Hospital at page 189 of the Darusman Report are also possibly erroneous. Two of these images refer to specific buildings being destroyed between 21 January and 5 February 2009, yet on the available imagery dated 5 February 2009, both buildings are still standing. The third image again relates to a specific building being destroyed in the same time frame. The building is still standing in imagery dated 16 March 2009.
  6. Paragraph 111 of the Darusman Report states that on 11 and 12 May 2009 the temporary hospital at Vellamullivaikkal was also hit by shells killing a number of people. Imagery dated 10 May 2009 revealed that the hospital had already received damage from probable indirect fire. However, imagery dated 24 May 2009 detected no additional
  7. Paragraph 104 of the Darusman Report states that on the 9 February 2009 shells fell on Putumattalan Hospital killing at least 16 patients. Imagery dated 9 February 2009 was not available but subsequent imagery throughout May 2009 does show several probable indirect fire strikes and damage to hospital buildings”.
  8. Paragraph 120 of the Darusman Report states that on 16 May the LTTE destroyed a lot of its equipment in a large explosion in an area of NFZ 3. A change detection study using imagery dated 16 March and 24 May 2009 showed no evidence of large-scale destruction (craters or debris) was noted throughout the NFZ”.
  9. Analysis of imagery dated 31 October 2008 indicated that NFZ 1 had received indirect fire, but the type and exact date could not be Imagery dated 10 May 2009 concludes that the number of graves identified in the NFZs totals 1,332. Imagery dated 21 January 2009 identifies 4,174 temporary shelters within NFZ 1. Imagery dated 10 May 2009 reveals approximately 5,200 temporary shelters in NFZ 2 and 6,900 in NFZ 3. The report notes that in the case of NFZs 2 and 3, the shelters were densely packed and were within blocks defined by track networks. All craters identified from available imagery and photographs were checked for the projection of ejecta that would indicate the direction from which  the round was fired. The report concludes that for a variety of reasons the analyst had low confidence in determining potential azimuths1001  from imagery analysis  alone”.

Imagery Summary

  1. To the author’s knowledge only ‘imagery snap shots’ (including this report’s two analyses) from the last four months of the war have been analysed in an attempt to determine the scale of shelling in the NFZs and attribute blame. It is possible that a more comprehensive daily overview from December 2008 onwards might yield more information, although the limitations as set out by the US State Department Report of 2009, would still apply
  2. Indeed, if the US had access to satellite imagery that was more detailed and comprehensive, no doubt, it would have been disclosed by
  3. There would appear to be sufficient evidence to challenge a number of the allegations in the Darusman Report, particularly from a timing view It is also noted that the specific allegation of the use of MBRLs would appear to have no basis in fact, as the level of destruction wrought by such weapons is significant and would almost certainly be identified from imagery. The number of temporary shelters and their lay out that were still standing on 10 May is also significant in that it refutes any suggestion of the deliberate targeting of civilians by SLA artillery, from indiscriminate use of such weapons which had the potential to devastate these areas in a very short space of time.

1001 direction of fire

CONCLUSIONS

  1. There was no military or political advantage to GoSL in killing civilians or shelling hospitals indiscriminately, indeed the reverse is the case. High civilian casualties would have made an international/Indian push for halting the final phase, more
  2. My task has not been to examine individual instances of war crimes, but rather to focus on the military responses to what was clearly a hostage situation and whether the responses of the SLA in broad terms were proportionate responses to the challenges they faced. It is of course entirely possible that there were incidents on both sides that may have amounted to breaches of the rules of
  3. However, from the LTTE’s perspective, the killing of civilians was an acknowledged part of their strategy. The status in law of some of these civilians is also arguable, as their voluntary assistance, particularly in a combat function, would forfeit their civilian protected However, I have made the assumption that the bulk were entitled to treated as civilians who were forcibly prevented from leaving the conflict zone by LTTE as an adjunct to their strategy of compelling the international community and the UN into forcing a ceasefire on GoSL. By the Oxford Dictionary definition these people could be considered as hostages – A person seized or held as security for the fulfilment of a condition”.1002 This is spelt out with more clarity in Article 1 of the UN International Convention Against the Taking of Hostages (1 Dec 1979), which states,

Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person in order to compel a third party, namely, a State, an international intergovernmental organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking hostages.”1003

  1. There is evidence from plausible witnesses and imagery that both mortars and artillery were fired into and out of areas where civilians were present and being held there by the LTTE and that this fire also hit buildings acknowledged to be hospitals. It is, in any sense, wrong to label the areas as NFZs, as by law these did NOT exist. The areas under discussion were so small that an artillery or a mortar round would probably have been bound to injure or kill someone. This civilian melting pot also contained LTTE fighters in civilian clothes, civilians who were actively assisting the LTTE, as well as LTTE artillery and
  2. The clinching argument as to where responsibility lies for the shelling is in the direction from which the shells were This can only be retrospectively determined from analysis of the shell craters either on the ground as soon as possible after the event or from available imagery or, to a lesser extent, from credible witnesses at the receiving end. To suggest, as one report does1004, that because the barrels of SLA artillery tracked the declaration of  the

1002  Available at < http://www.oxforddictionaries.com/definition/english/hostage   >.

1003  Article 1 of the UN International Convention Against the Taking of Hostages, 1 December   1979.

1004 Darusman Report, para. 101.

‘NFZs’ is an indication that they fired into those NFZs is inaccurate and speculative, devoid of any forensic relevance. It is normal artillery practice for guns to be laid in the direction of the threat, but that does not mean they actually fired. Given that the analysis of the shell craters is inconclusive, the only source of reliable information are eye-witness accounts, where the direction of shot is best determined either visually by observing a gun flash or audibly by hearing the discharge of a gun or mortar. The flat nature of the ground in the Eastern Wanni makes observation difficult, but a witness might hear a distant bang from a particular angle and after a small pause observe the explosion of a shell close by; he can then with some assurance, but not with total certainty, say that the round came from a particular direction. This method, though, is to an extent dependent on a practised ear and the absence of surrounding noise and other distractions. Most accounts that describe events within the NFZs over those last few months tell of chaos, confusion, emotion and terror – these background conditions are less than ideal when endeavouring to determine the direction of incoming indirect fire. The author therefore believes that it is not possible at this point in time, on the evidence available, to accurately state which side’s artillery and mortars caused identified shell craters and civilian  casualties.

  1. As cases from the ICTY have demonstrated this exercise can be attempted, but it is a very costly exercise and after such a period of time that has elapsed, whether accurate results can be established is far from certain. A number of military lawyers have been highly critical of the ICTY’s attempts to investigate and prosecute cases involving shelling incidents and indeed, the most significant case that deals with this issue has been overturned on appeal and the defendant acquitted on the facts of this case. The military criticism, however, is not so as to shield those who may be guilty of war crimes, but simply because the technical expertise required to establish the necessary facts to the required standard is often absent. In addition, with the absence of contemporaneous forensic evidence, any investigating authority would require a huge amount of documentation from army records, such as war diaries, to try and piece together from which side a shell was being fired on a particular day. If the LTTE had not resorted to deliberately attracting fire into hospitals by positioning their guns in close proximity, or killing their own civilians, this task may have been easier. However, faced with this fact, as accepted by most NGOS, being able to establish which side fired from where, five years after the event, is going to be a difficult
  2. My conclusion in this Report is that both sides fired into the so called ‘NFZs’, but it is GoSL that is being held to account, which brings us back to the tenet of proportionality, distinction, legitimate targeting and military necessity as applied to fire in support of deliberate operations, tactical encounters and counter battery
  3. Let us start with deliberate operations. The military aim was to defeat LTTE and, in the absence of their surrender, this meant killing or capturing their cadres/leaders and seizing their strongholds, even when they were located in areas populated by civilians. GoSL had to factor in the ‘Masada’ possibility as the LTTE became increasingly desperate. Evidence of their willingness to sacrifice their own civilians has, post the last phase, been acknowledged by many.1005     Given  the  reported  strength  of  their  fortifications  and an

1005  US State Department Report, 2009.  p24.

understandable requirement to limit the SLA’s own casualties, the use of targeted airpower and artillery, if used, would seem to be justified and proportionate, provided every effort had been made to get the civilians to move prior to the assault. It should also be noted that LTTE, on the evidence seen, appear to have responded to these deliberate assaults using  all the weapons at their disposal, with some of their rounds inevitably landing in civilian areas to the rear of the assaulting troops. It is clear in my opinion, that looking at the military strategies that the LTTE adopted, that the leadership were desperate to protect Velupillai Prabhakaran and seek to ensure his escape whatever the cost to their own civilian population.

  1. Given that on the SLA side, this was principally an infantry and Special Forces operation there would have been continual tactical engagements, some of which would have been over relatively quickly, while others would have involved a prolonged, but local, fire fight during which the SLA troops involved would have requested fire support from their Battalion’s integral 81 and 82mm mortars – the necessary coordinates for which would be passed by radio either by a qualified Mortar Fire Controller (MFC) or by a trained senior rank. The fire would then have been adjusted as required to achieve the intended outcome. There is nothing that the author has either read or been told that states that local fire support of this kind was unavailable and going back to the premise of self-defence, nor should it have been. Again, it is inevitable that stray rounds from both sides would have caused civilian
  2. Counter Battery fire is described at Para 29. The SLA had used it effectively in previous operations. It is important to underline that there had not been allegations of indiscriminate shelling and war crimes in the previous military artillery operations that equate to the criticisms made in the last phase of the 2009 operation. In my opinion this is indicative of a command ‘culture’ that did not appear to espouse indiscriminate shelling. The key question, however, is whether and how counter battery fire was used in the Eastern Wanni, as conditions there were quite unlike those of previous operations. Imagery most certainly supports the contention that the necessary artillery assets for counter-battery fire were available as were the necessary locating radars. In a perfect world the radar would identify a target, a UAV would confirm that it was still there (distinction, legitimate targeting and military necessity conditions fulfilled) and fire would be returned. This sequence would take a few minutes and the offending gun could probably have been moved – LTTE were using ‘shoot and scoot’ tactics with fighters dressed in civilian clothes. The process could be speeded up by just relying on the locating radar and not using an UAV, but this would only have satisfied the military necessity requirement and then only in terms of self- defence. In these circumstances, the LTTE must also share a large proportion of the blame because they were operating out of uniform amongst
  3. The precise number of civilian deaths and their exact status at their time of death may never be known. The accusations against GoSL imply either a deliberate policy to target civilians or disinterest in the scale of civilian casualties in achieving their strategic objective. All the available evidence discounts any form of deliberate policy or systematically reckless or disproportionate conduct, despite the civilian casualties, to the extent that it is even possible to determine what proportion of those killed were
  4. It is undeniable, though, that had LTTE not driven civilians before them and executed them when they attempted to escape, then civilian casualties would have been significantly lower. A figure of up to 40,000 civilian deaths is much quoted and has been simply arrived at by subtracting the number of IDPs processed (290,000) from the Darusman estimate of the number of civilians caught up in the final months of the war (330,000). The author believes that, in principle, there is every reason to challenge this estimate of the numbers killed: for instance, in the imagery analysis there are 1,332 obvious graves (para 63 above). These might be LTTE gravesites, but let us assume that they are IDP ones and that there are 4 bodies to each grave; then that gives a total of 5,328 bodies. There would, of course, be unmarked graves invisible to imagery and a large number of bodies were never recovered because they died by drowning, were buried in LTTE bunkers and fortifications or just decomposed quickly in the monsoon climate. However, in most wars the number of missing presumed dead is lower than the number of bodies recovered. A cable from US Ambassador Blake to the State Department on 7 April 2009 states that the UN estimate of deaths for the period 20 January to 6 April was 4,164 with a further 10,002 wounded. The cable also states that the estimated daily kill rate was 33 a day in January and 63 a day in February and March. 1006 To reach 40,000 deaths would require a kill ratio of 287 per day over 139 days (1 January to 19 May) and to reach 26,000 deaths would require a rate of 187 per day. Comparisons are of course invidious, but the accepted figure for German civilian deaths after the 1945 Dresden raid(s) is 25,000; and 24,000 Polish and German soldiers died during the 63 days intense fighting of the 1944 Warsaw Uprising. The figure of 40,000 civilians killed which has been repeatedly published is, in my view, extremely difficult to sustain on the evidence which I have
  5. The Wanni operation was not of the `classic’ hostage rescue variety if only because of the number of hostages involved and the ebb and flow of battle. However, there were similarities; the SLA did not rush in, but instead took its time to plan and adapt its tactics to take account of the civilian presence. It was, in the view of the author, an entirely unique situation and the fact that 290,000 people escaped alive is in itself
  6. Indeed, given the allegations of the use of MBRLs and use of heavy weaponry against the civilian population, had the SLA embarked on an indiscriminate campaign of bombardment, the trite but obvious point that any military expert is forced to conclude, is that 2/3 days of shelling would have decimated all those in that final confined area. I reiterate, in my experience of hostage rescue, the fact that so many escaped, is
  7. This suggests to the author that it is extremely difficult to sustain an accusation of the deliberate killing of civilians by the SLA by shelling, which had the artillery potential over a very short period of time to devastate the temporary civilian encampments, particularly in NFZs 2 and
  8. Mistakes that resulted in unnecessary civilian deaths were most definitely made by the SLA, but  all  armies  in all  conflicts  make such mistakes.  There may even  have     been

1006 US Ambassador Robert Blake, ‘Northern Sri Lanka SitRep 48’, Embassy Colombo, WikiLeaks, 7 April 2009 released 26 August 2011. < http://www.cabledrum.net/cables/09COLOMBO402   >.

mistakes that were reckless and greater analysis of particular incidents, such as some of the IDF hospital strikes may demonstrate this. Again, this will depend on whether this was SLA return fire on the LTTE, who had deliberately used ‘shoot and scoot’ tactics, to endanger the hospitals and patients.

  1. However, overall and for the reasons considered above, on the available evidence it is my opinion, that the SLA’s operations in broad terms, were proportionate in the Whilst the SLA was a relatively unsophisticated army, they had evolved into a battle and ultimately war winning machine that made up for its lack of sophistication by the application of three of the most important principles of war: selection and maintenance of the aim; offensive action and concentration of force. In my military opinion, faced with a determined enemy that were deploying the most ruthless of tactics and which involved endangering the Tamil civilian population, SLA had limited options with regard to the battle strategy they could deploy. This would have posed a dilemma for the very best trained and equipped armies in the world. The SLA had either to continue taking casualties and allow the LTTE to continue preying upon its own civilians, or take the battle to the LTTE, albeit with an increase in civilian casualties. The tactical options were stark, but in my military opinion, justifiable and proportionate given the unique situation SLA faced in the last phase. Therefore, on the evidence available to me, taking into account my own combat experience, I do not find, in broad terms that the military and artillery campaigns were conducted indiscriminately, but were proportionate to the military objectives sought.

London Date

ANNEXES:

A: Bibliography.

B: Map of the Wanni.

C: Photographs of Battle Damage. D: Examples of Leaflet Drops.

E: Presidential Pause Statement. F: Example of a Bund.

G: List of LTTE Weapons Recovered. H: Photographs of LTTE weapons.

I: Log of Suicide Attacks.

  1. NFZ Letters.

K: Photographs of LTTE Positions. L: SF HQ (W) 6 x Signals.

M: ROE Definition.

N: McKenzie Intelligence Services Report No 1. O: McKenzie Intelligence Services Report No 2.

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