by Neville Ladduwahetty

The issues raised by Deputy Asia Director of Human Rights Watch, Elaine Pearson in “Sri Lanka’s Diplomatic Initiative Won’t Make Killing Fields Disappear” are based on Channel 4’s video and the report by an expert panel set up by the UN Secretary General. Two commentators in the Channel 4 video namely, Steve Cranshaw and Prof. William Schabas have judged the actions of the Sri Lankan Government by the “Rules of War”. Therefore, this response is addressed from the perspective of “Rules of War”.

ƒÆ’-¡ƒ”š‚ 1. The issue of 40,000 civilians killed.

Elaine Pearson has drawn from the expert panel report and quoted the figure of “40,000 civilians killed in the final stages of the conflict”. This statement makes NO distinction between civilians and combatants. However, it is important that we recognize the need to account for such distinctions. An objective appreciation of the situation would convince anyone that estimating the number of civilians killed is realistically NOT possible.

ƒÆ’-¡ƒ”š‚ The No Fire Zones contained 4 groups: a) Civilians. b) Former LTTE combatants who had discarded uniforms in exchange for civilian clothes and abandoned their weapons. c) Former combatants who had exchanged their uniforms for civilian clothes but retained their weapons. d) LTTE cadres and combatants with weapons. Therefore, only those belonging to groups (a) and (b) would qualify to be categorized as “civilians”. Jon Snow in fact refers to the “indistinguishability” between civilians and LTTE. In view of this mix, how is it realistically possible to make a claim that all who died were civilians? Furthermore, a leaked UN document had “estimated the number of civilian deaths at 7,000 for the period from January 20 to May 7” 2009. This averages to 70 deaths per day during this period. This figure has been greatly exaggerated to 1000 per day for the remaining 11 days by a UN source. The UN was NOT present in the conflict area after the fall of Kilinochchi in 2008 as admitted in the video by Gordon Weiss of the UN. Under these circumstances, the figure of 1000 per day was pure conjecture. Such conjecture has to reach the realm of over 3000 civilians per day over the last 11 days of war to justify a figure of 40,000 “civilians killed” as claimed by the expert panel, and quoted by HRW. The hard reality is that it was not possible for anyone to establish the number of civilians and LTTE combatants killed. The complexity of the situation makes an assessment of the number killed pure conjecture. The inability of the expert panel to acknowledge that a realistic assessment was NOT possible as to the number of civilians killed, as opposed to the number of LTTE killed thus reflects a deliberate attempt to distort the numbers beyond reason, and a serious deficit of objectivity from a group from which neutrality and a lack of bias was expected.

ƒÆ’-¡ƒ”š‚ Jon Snow’s commentary refers to the “remains of the camps that had been home to at least 130,000 civilians” in the final NFZ. In the video commentary that followed his comment it is stated that the Government announced that “all the civilians have been released”. Snow responds that this “could not have been further from the truth”, because at least 40,000 or even more were killed based on the expert panel report. This means that the number of “Civilians Rescued” had to be 90,000 (130,000 minus 40,000). If to this figure, the 100,000 rescued earlier is added, it would total near 200,000. But the actual number turned out to be near 300,000 thus illustrating the inaccuracies in the assessments of the number of civilians in the NFZ, which demonstrates the extent of inaccuracy that is inevItably associated with the attempts to estimate the number of “Civilians Killed” as well.

ƒÆ’-¡ƒ”š‚ 2. The issue of indiscriminate killing of civilians.

Prof. Schabas acknowledges the legality of creating “enclaves” for the safety of civilians. This was the intention of the Government in setting up No Fire Zones (NFZ). But the safety of the NFZ was abused by the LTTE by hiding themselves among the civilians and using their cover as a human shield to carry out artillery attacks against the Government forces. And as Prof. Schabas admits, the Rules of War permit proportionate retaliatory action. The fact that the LTTE “deployed artillery close to civilians” is acknowledged in Pearson’s report. The Darusman Report goes further and states: “It also fired artillery in proximity to large groups of internally displaced persons (IDPs) and fired from, or stored military equipment near IDPs or civilian installations such as hospitals” (Executive Summary). Artillery attacks directed into the NFZ must be viewed from this perspective and not as deliberate acts to kill civilians. In this regard, the charge that the Government forces’ fire deliberately targeted hospitals is not evident in the Channel 4 footage. None of the hospital scenes depicted show any damage to the walls or floors of the buildings used as temporary hospitals. Nor are there any scenes showing body parts strewn about and plastered on walls as claimed by Vany Kumar, whose entire commentary appears to be from a home in the UK,. judging from the mantelpiece over a fireplace that forms the backdrop to her reports. The only damage depicted relates to broken clay roof-tiles. If there were direct hits to the roofs as claimed, the debris would have had structural roofing materials as well as tiles. The fact that only tiles were damaged indicates that it was possibly from nearby blast action caused by retaliatory fire in response to LTTE attacks from the proximity of hospitals and not from direct hits. Therefore, the charge that hospitals were deliberately targeted is not reflected in the footage judging from the extent of damage to the facilities.

ƒÆ’-¡ƒ”š‚ The expert panel has categorized the conflict as an internal “armed conflict”. Consequently, the provisions of Additional Protocol II of 1977 apply. Under these provisions the primary responsibility for the safety of civilians rests with the respective parties to the conflict (Article 4 “Fundamental Guarantees”). In this instance it was the LTTE who had civilians embedded with them; a responsibility referred to by Steve Cranshaw. It was the LTTE that put the civilians in harms way by hiding among them and using the civilians as cover to carry out artillery attacks against the Government forces. Therefore, it is the LTTE leadership and all those who gave “material support” to the LTTE who should be held responsible for war crimes and crimes against humanity.

ƒÆ’-¡ƒ”š‚ 3. The issue of “summary execution of prisoners”.

Channel 4’s Jon Snow states that video footage of these executions “were recorded on mobile phones as grotesque war trophies” by Government forces. This must mean that Channel 4 either received these recordings directly from members of the Government’s forces who recorded the executions, or through a contact or a series of contacts who would have eventually passed them on to Channel 4. Clearly, therefore, Channel 4 is in a position to trace back and establish the identity or identities of those who recorded the incidents. If Channel 4 is in such a commanding position, why are they going to extremes to establish authenticity of the video footage by consulting experts, when they are in a position to name and give the identities of the persons associated with the recordings of the trophies? The reluctance of Channel 4 to reveal their identities cannot be out of concern for journalistic ethics. The reason may either be because of uncertainty of the authenticity of the recordings, or due to some other reason that prevents them from disclosing the sources.

ƒÆ’-¡ƒ”š‚ The conclusion by Channel 4 that these acts were committed by Sri Lankan soldiers on the basis that they wore Army uniforms is not proof of such, because the LTTE has been recorded to have used Army uniforms to commit atrocities on several occasions. Furthermore, it is an established fact that a number of Government soldiers were held as prisoners under the LTTE. Their fate is not known to this day. If as the footage shows the LTTE resorted to killing Tamil civilians who attempted to escape there is a strong possibility that the LTTE would have carried out the summary executions of Government prisoners wearing Army uniforms during the final stages of the conflict. Considering the techniques resorted to discredit the Government, it cannot be ruled out that the footage of summary executions could even be from conflict areas outside Sri Lanka. Therefore, in the absence of Channel 4 revealing the identities of the sources of the recordings, and also in view of the fact that the recordings focused on the victims, with great care being taken not to reveal the faces of the perpetrators, there is a need to establish authenticity of the video/audio recordings by consulting expert opinion.

ƒÆ’-¡ƒ”š‚ COMMENT

ƒÆ’-¡ƒ”š‚ Channel 4’s video appears to be that of a crusader with a mission to expose violations committed by the Sri Lankan Government during the final stages of the conflict. In the light of the revelations coming out of UK with regard to practices adopted by the British media to get at a story there is serious doubt as to the methods and practices Channel 4 would have adopted in the fulfillment of its mission. These practices led to the closure of a newspaper that had existed for 168 years. It is now public knowledge that the media had resorted to unethical methods that involve Politicians at the highest level and cash transfers to the Police in exchange for information. In this background there is a strong possibility that Channel 4 too would have resorted to practices that go beyond the boundaries of professional journalistic practices to put together the report on Sri Lanka. Since the UK Government is planning to have a full inquiry into these practices it is hoped that the inquiry would be broad enough to expose possible commissions and omissions by Channel 4 in the development of its report on the final days of Sri Lanka’s conflict.