Courtesy The Island

April 15, 2012, 12:50 am

There are many things in the latest US State DepartmentƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Office of Global Criminal Justice report to Congress (Stephen Rapp report) which the Sri Lankan public should take note of. Foremost among them is their heavy dependence on jailed former army commander and presidential candidate Sarath Fonseka in building a case against Sri Lanka. Many Sri LankanƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s would have thought that the famous ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”white flagƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ controversy had finally been laid to rest after Sarath Fonseka was found to have been spreading rumours which he knew were false and given a jail sentence of three years.

 

Moreover, after Col. Lawrence Smith the US Defence Attache in Colombo himself publicly raised questions about the veracity of the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”white flagƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ story, one would have thought that the Americans had given up on it. The main question that Col. Smith raised about the white flag story is that Pulidevan and Nadesan who were said to be those trying to negotiate a surrender were not competent to negotiate a surrender on behalf of the LTTE. What he said was that the offers to surrender seemed to come from “the mouthpieces of the LTTE,ƒÆ’-¡ƒ”š‚  Nadesan, KP – people who werenƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t and never had really demonstrated any control over the leadership or the combat power of the LTTE. So their offers were a bit suspect anyway, and they tended to vary in content hour by hour, day by day. I think we need to examine the credibility of those offers before we leap to conclusions that such offers were in fact real.”

 

“And I think the same is true for the version of events. ItƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s not so uncommon in combat operations, in the fog of war, as we all get our reports second, third and fourth hand from various commanders at various levels that the stories donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t seem to all quite match up.”

 

The enemy within

 

Despite what Col. Smith said, the white flag case has surfaced again in the latest State Department report to Congress with the title “Measures Taken by the Government of Sri Lanka and International Bodies to Investigate and Hold Accountable Violators of International Humanitarian and Human Rights Law”. What this report says about the white flag case is as follows ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…”

 

“The LLRC report also fails to critically analyze or investigate the `white flagƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ incident, in which high level LTTE leaders were allegedly shot despite assurances from the Government of Sri Lanka that they could safely surrender. While the circumstances surrounding the incident remain uncertain, the POE (Panel of Experts – a reference to Ban Ki-moonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s advisory panel on Sri Lanka) concluded that the LTTE leadership intended to surrender. However, the LLRC only mentioned the above incident briefly, citing testimonies that dismiss the allegations. The Department of State does not take a position regarding the allegations concerning this incident but notes that the discrepancy between the POE and LLRC reports merits further investigation.”

 

While it is true that the white flag case is only one of several issues raised in the Rapp report, it is clear that the US State depends on this incident to get them a handle on the Sri Lankan government. This latest report by Stephen Rapp started off with a reference to the previous report on Sri Lanka submitted by the US State Department to the US Congress on 11 August 2010. It is from the August 2010 report that we can find clues as to why the State Department clings so tenaciously to the white flag story.

 

The Following is what the August 2010 report titled “Report To Congress on Measures Taken by the Government of Sri Lanka and International Bodies to Investigate Incidents During the Recent Conflict in Sri Lanka, and Evaluating the Effectiveness of Such Efforts”, had to say about the white flag incident:

 

“Some former Sri Lankan officials have made public statements. For example, on July 10, 2009 at the margins of a Non-Aligned Movement summit in Egypt, former Sri Lankan General Fonseka reportedly stated, “Our soldiers have seen in life the kind of destruction carried out by those people before they decided to come carrying a white flag. Therefore, they carried out their duties. We destroyed anyone connected with the LTTE.”

 

(http://www.lankanewsweb.com/news/EN_2009_07_18_005.html.) On December 13, 2009 in an interview with The Sunday Leader, Fonseka said that information in the final days of the war was not conveyed to him, and he later learned that [former Senior Presidential Advisor and current Minister of Economic Development] Basil Rajapaksa conveyed to Gotabhaya Rajapaksa, who in turn spoke to Brigadier Shavendra Silva, Commander of the ArmyƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s 58th Division, giving orders not to accommodate any LTTE leaders attempting to surrender and that “they must all be killed.” (“Gota ordered them to be shot,” The Sunday Leader, December 13, 2009.) On February 8, 2010 the BBC reported that General Fonseka was arrested at his office in Colombo, and earlier in the day he had said on the subject of war crimes, “I am definitely going to reveal what I know, what I was told and what I heard. Anyone who has committed war crimes should definitely be brought into the courts.” (“Sri Lanka election loser Sarath Fonseka arrested,” BBC News, February 8, 2010, http://news.bbc.co.uk/2/hi/south_asia/8504882.stm.)

 

He made a similar statement on May 5, 2010 to reporters inside Parliament, “I will go out of my way to expose anyone who has committed war crimes. I will not protect anyone, from the very top to the bottom.” (Sri Lanka ex-army chief vows to expose war crimes,” AFP, May 6, 2010.)” ƒÆ’-¡ƒ”š‚ The above verbatim extract from the August 2010 State Department report to the US Congress gives us a clear indicationƒÆ’-¡ƒ”š‚ why the State Department keeps the white flag case alive. They believe that this is what would clinch the case against the Rajapaksa regime with the help of Sarath Fonseka and other dissident ex-army officers who are Fonseka supporters.

 

The August 2010 State Department report in fact mentions the testimony given by one such former army officer as follows ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” “The Department of State does not take a position on the accuracy of recent inquiries, findings, or specific recommendations of international NGOs, media outlets, or other sources. However, it is notable that since the release of the DepartmentƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s October 2009 report, new information has come to light, and potential witnesses with potentially relevant testimony have stated a willingness to provide testimony. For example, in a certified deposition, one former senior Sri Lankan Army officer has provided currently unsubstantiated background and exculpatory and inculpatory information regarding military chain of command, treatment of prisoners, avoidance of civilian targets, disappearances, and the 2006 commission of inquiry.

 

“The former officer said that government policy was to avoid churches, hospitals, and schools. He also said that colleagues had informed him that now deceased LTTE leader PrabhakaranƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s twelve-year-old son was killed along with five escorts after surrendering, although he admitted he did not know whether Defense Secretary Gotabhaya Rajapaksa or General Fonseka had ordered them killed. The former officer also said that the 2006 death of five students in Trincomalee was directed by a senior superintendent of police and carried out by a special task force.”

 

The Rajapaksa regime has tended to see traitors and quislings among the traditional demons ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” the opposition political groupings, the TNA and the foreign funded NGOs but the real danger to the regime may repose among disgruntled sections of the armed forces itself. Even when the LTTE was on its last legs, there were still high ranking army officers who were willing to play ball with the LTTE for a fee. One Lieutenant Colonel was even plotting the murder of the president himself as late as April 2009. So there is hardly anything surprising in that there would be ex-army officers who are willing to play ball with Western powers against the Rajapaksa regime and their own former colleagues. This is the most important thing everybody has to keep in mind as far as the US State Department is concerned. The JVP has sensed what the future holds and in order not to get drawn into an untenable situation,ƒÆ’-¡ƒ”š‚  K.D.Lal Kantha publicly disowned Fonseka saying it was the Americans who were clamouring for his release and implying that such an interest meant a political nexus between Fonseka and the USA.

 

Implementing a reviled report

 

The other most important thing in order of priority that the people of this country have to realize is that while on the one hand the US government sponsors resolutions in the UN human rights council calling upon Sri Lanka to fully implement the LLRC recommendations, the recent Stephen Rapp report which was published just days after the Geneva sessions of the HRC ended, raised serious questions about the legitimacy of the LLRC. What the Rapp report said about the LLRC is as follows:

 

“The members of the LLRC included former Attorney General C. R. de Silva, former Assistant Secretary of the Ministry of Justice Karunaratne Hangawatte, former Legal Advisor at the Sri Lankan Ministry of External Affairs Rohan Perera, former Foreign Secretary and Sri Lankan Permanent Representative to the UN HMGS Palihakkara, former Secretary to the Treasury C Chanmugam, former Deputy Legal Draftsman Manohari Ramanathan, former High Court Judge M.P. Paranagama, and senior attorney at law M.T.M. Bafiq. There was no information that indicated that the GSL consulted with affected communities in selecting the commission members. Despite the high percentage of women and Tamils among those giving testimony, only one of the eight commission members was female (also the sole Tamil commissioner), and only one was from the Muslim community.”

 

“All but one of the members of the commission previously worked for the GSL, raising concerns about their independence and impartiality. Two of the commission members were senior government officials during the last months of the conflict, one of whom, Hewa M.G.S. Palihakkara, as Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Permanent Representative to the UN, publicly commented on behalf of the government on events surrounding many of the allegations raised. Meanwhile, the Chairman of the LLRC served as Attorney General during the period when the 2006-2009 Presidential Commission of Inquiry to Investigate and Inquire into Serious Violations of Human Rights was in operation. That commission was charged with investigating sixteen allegations of serious human rights violations.

 

“The International Independent Group of Eminent Persons (IIGEP) identified significant concerns regarding independence of that commission due to the role of the then-Attorney General, the later-Chairman of the LLRC. These factors have fostered the perception that commission members had an interest tied to that of the government in a particular outcome of the commissionƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s work.”

 

This is criticism coming after the US sponsored resolution was passed in Geneva calling upon the Sri Lank an government to fully implement the recommendations of the LLRC. The question that this begs is, if the composition of the LLRC was so suspect, then why did the US State Department sponsor a resolution in the UNHRC asking Sri Lanka to implement the LLRC report? Perhaps this point should be brought to the notice of the Chair of the UNHRC so as to obtain a ruling on this matter before Sri Lanka proceeds any further with regard to the LLRC implementation process. It may be pertinent to initiate public interest litigation in the Supreme Court with a view to prohibiting the government from implementing the recommendations of the LLRC in view of the allegations raised against it by the US State Department itself.ƒÆ’-¡ƒ”š‚  There is not a word of praise for the LLRC throughout the Stephen Rapp report.

 

Rapp has even said as follows: “Serious concerns have also been raised regarding the process of questioning witnesses before the LLRC. The POE (Panel of Experts) report describes as “non-confrontational” the line of questioning used when dealing with members of the security forces and issues related to violations of IHL. The POE report goes on to relate that in some cases, commission members appeared to lead respondents with questions that contained the answers. The POE report also claims commission members failed in some cases to pursue important lines of questioning of government officials that could have revealed specific information relating to culpability for violations of IHL and IHRL.”

 

These are serious allegations indeed. The whole purpose in implementing the LLRC recommendations is to please the international community. But when the very sponsor of resolutions calling for the full implementation of the LLRC has such a poor opinion of that body, implementing its recommendations will become a trap for the government. If at all the government should implement only the recommendations of a mechanism which has international recognition ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” not that which is publicly reviled. When it is reviled in this manner that leaves room for further demands to be made on the Sri Lankan government on the grounds that what has been done up to now is of no value.

 

A mote in RappƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s eye

 

The most important matter discussed in the Rapp report is the number of civilian casualties during the last stages of the war. About this matter, Rapp says the following:

 

“The LLRC report recognizes that significant civilian casualties occurred during the final stages of the conflict. In particular, the report details the testimony of witnesses reporting eight attacks by GSL Security Forces against civilians that the witnesses describe as intentional….”

 

“The LLRCƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s recommendations fall short of fully acknowledging all credible allegations of intentional attacks on civilians by the GSL and LTTE.”

 

ƒÆ’-¡ƒ”š‚ “The handful of incidents noted in the LLRC report stands in stark contrast to the vast number of credible allegations examined in the POE report.” “While the GSLƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s public statements indicate it maintained a policy of “zero civilian casualties” and the only civilians killings occurred during crossfire, the POE estimated that civilian casualties range from 10,000 to 40,000 for the final months of the conflict.[12] Based on verified reports from civilians, seasoned aid workers, and doctors in the conflict zone, the POE concluded that in many cases, GSL security forces shelled areas it knew to be principally occupied by civilians. In addition, the Department of StateƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s 2009 Report to Congress listed 208 instances of harm to civilians or civilian objects….”

 

“Hence, the notable gap between LLRC and POE findings regarding civilian casualties suggests that the GSL should establish an accountability mechanism to ensure that all allegations, not just the three identified in the LLRC report, are fully investigated…”

 

Thus, Rapp takes note of the gap between the findings of the Ban Ki- moon advisory panel of experts and those of the LLRC, but he fails to take note of the fact that there was a vast gap between the number of incidents and the resultant casualties given in the US State DepartmentƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Report to Congress on incidents during the final four and a half months of the war from January to May 2009 on the one hand and the Ban advisory panel report.

 

The US Embassy in Colombo was a focal point for all International aid agencies, the UN, and other Western embassies and all these agencies exchanged information with one another. How is it that the information collected by the US while the war was on, from sources within the LTTE held area by all these actors are nowhere near the figures quoted by the Ban advisory panel? Does this discrepancy have anything to do with the fact that the panel itself says that their work should not be taken as established facts in paragraph 53 of their report? Quite obviously, the panel has been taking everything that was told to them at face value without the slightest attempt to sift fact from fiction.

 

As we noted in this column several weeks ago, even the Conservative government in Britain is having serious misgivings about such an approach. There had been various reports in the media that Tamil asylum seekers who were being deported to Sri Lanka from Britain were being harassed. The British High Commission had inquired into those allegations and all such reports had been found to be completely false. Because of this, the British government is wary even about the stories and figures in the Ban panel itself. Paragraph 53 where the panel says that the contents of their report should not be taken as established facts is well known to the British parliament too because this was discussed in the House of Commons several weeks ago. Rapp, however wants Sri Lanka to consider all allegations in the Ban panel as established fact.

 

Not enough casualties

 

The only accurate way to establish the actual number of people killed is to take a head count. Such a head count was in fact carried out last year by the Department of Census and Statistics but the Rapp report refuses to acknowledge the accuracy of that survey. His report says –

 

“In late February 2012, the GSL Department of Census and Statistics published “Enumeration of Vital Events, 2011, Northern Province, Sri Lanka,” a report of a census the department conducted in June and July 2011 of households in the former conflict region. Amongst many figures on population statistics during the last five years of the conflict, the report noted 7,934 deaths in the Northern Province in 2009 due to non-natural causes, with an additional 2,635 persons reported as untraceable. These figures, however, have been widely criticized by international non-governmental organizations, such as the International Crisis Group, as misrepresentative and not in conformity with professional standards.” The International Crisis GroupƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s criticism of this survey can be summarized as follows.

 

ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¢ƒÆ’-¡ƒ”š‚ There was no actual category on the census forms for deaths from military action ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” only the category of “other”. ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¢ƒÆ’-¡ƒ”š‚ With the north under effective military occupation by a victorious army accused of unlawful killings, with census workers reportedly staying in army camps and being assisted by the military while conducting the survey, and with a pattern of harassment of those who have previously reported military abuses, it is also far from certain that all deaths were reported. ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¢ƒÆ’-¡ƒ”š‚ Government officials have used these numbers in an effort to “disprove” estimates by the Secretary-GeneralƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s panel of experts and others that tens of thousands of civilians died in the final months of the war. ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¢ƒÆ’-¡ƒ”š‚ Nonetheless, that even the government is now admitting nearly 9,500 people were killed or went missing in just five months of fighting ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” after years of asserting there were no civilian deaths at allƒÆ’-¡ƒ”š‚  ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” suggests the extreme nature of the violence and the lack of adequate civilian protection.

 

The last point is an indication of how biased organizations like the ICG are. The deaths from non natural causes and disappearances mentioned in the Department of Census and Statistics survey, includes LTTE combatants as no differentiation has been made by the department of combatants and civilians. Moreover the death toll is for the entire year 2009 and not just the first five months. Looking at the spread of the number of casualties, it is quite obvious that most of those who died were combatants. For example, the total number that had died in the Mullaitivu district of non-natural causes was 2,019 and in the Kilinochchi district, it was 3,326. If one examines the number of army casualties in these two districts in the year 2009, there would be a correspondence which is consistent with the casualty rates of a soundly defeated enemy.

 

Non-existent no fire zones

 

The Rapp report talks about so called no fire zones, declared by the government and admits that the LTTE did not recognize any of the NFZs. It fails to point out that demilitarized zones can be established only with the consent of the warring parties and that without mutual agreement there is no demilitarized zone according to the law of armed conflict. The Rapp report has tried to impose on Sri Lanka a law of armed conflict that does not exist anywhere in the world, by trying to insist that the government should not fire into a non-existent demilitarized zone. The Rapp report has even found fault with the government for repeatedly trying to establish no fire zones when they knew that the LTTE was taking no notice and suggests that it was these no fire zones that put civilians in harms way and not the fact that the LTTE was using them as human shields. Clearly the Rapp report seems to be determined not to give Sri Lanka any credit whatsoever for having tried to declare safe havens for the civilians.ƒÆ’-¡ƒ”š‚  Clearly, the intention is not to be satisfied with anything that the Sri Lankan government does. The reason why the Rapp report condemned so unequivocally the composition of the LLRC is to bring pressure on Sri Lanka to go beyond the LLRC. Somebody has to go to the Supreme Court.