Don Wijewardana, QSO, JP Sri Lanka Association of New Zealand

INTRODUCTION

Since the war in Sri Lanka against the Tamil terrorist group LTTE ended, and particularly since the UN Secretary General’s Panel of Experts report (Darusman Report) was published in 2011, there has been a spate of accusations of genocide against GOSL. They have been from a range of NGOs such as Amnesty International, a number of western governments, some authors such as Gordon Weiss and Frances Harrison[1] as well as parts of the United Nations itself, mainly the High Commissioner for Human Rights. In these allegations the number of civilian deaths during the last stages of the war range from 40,000 in the Darusman Report to 150,000 in Harrison’s study.

GOSL has vehemently and persistently protested at these claims. At the same time a range of new independent research and surveys has emerged which cast severe doubts on the veracity of the death toll calculations and have presented more plausible alternative estimates. These studies include two reports by University Teachers for Human Rights (UTHR (J) a group of Tamil teachers based in the Jaffna University[2], Independent Diaspora Analysis Group’s The Numbers Game: Politics of Retributive Justice[3], and Marga Institute and Consortium of Humanitarian Agencies publication, Issues and Accountability relating to the Last Stages of the War in Sri Lanka: Narrative iii[4]. These are in addition to the report of a Presidential Commission, of eminent jurists,- Lessons Learnt and Reconciliation Commission Report (LLRC)[5],  produced following widespread consultations in different parts of the country. There were also a number of other well-researched articles, as well as a Sri Lankan Census Department’s Enumeration of Vital Events[6].

 But the main interlocutors completely ignored these inconvenient reports.  Furthermore, when the LLRC invited the INGOs, who were claiming massive HR breaches by GOSL, to give evidence, they refused en masse. The rejection was inexcusable but understandable. None of the critics was paid to find the truth or the fairness of accusations: they were paid to achieve an objective, which was to pursue human rights violators among the weaker nations. Also, the information met all their needs. So why look a gift horse in the mouth? Sadly, the position taken by the UN High Commissioner for Human Rights was no different from that of other critics. With that bitter five year experience the position taken by GOSL not to support the investigation is understandable.

We are making this submission in the belief that the expert panel which consists of two world renowned jurists and a Nobel Peace Prize winner will not wish to associate their names with yet another biased and unfounded litany of allegations to reinforce predetermined positions, while turning a blind eye to the mass of evidence that contradicts the long held stance of the powerful lobby. Instead, we hope, the experts take a more judicious and impartial position to evaluate the evidence on both sides of the argument in undertaking the investigation, as professed, to be guided at all times by the principles of independence, impartiality, objectivity, transparency, integrity and do no harm”. Such an impartial enquiry only will restore the faith of smaller nations in the UN system.

BACKGROUND

The terrorist problem that plagued Sri Lanka for over three decades was very complex. To understand it, it is essential to learn its background. Unfortunately, most critics who have written at length on it have not attempted to understand these intricacies.

There are several factors worth noting. The first relates to the position of Tamils within the Sri Lankan population. Of the 20 million living in the country, Sinhalese comprise 76 per cent and Tamils account for 11 per cent. This immediately evokes the a priori conclusion that in that situation the minority must be discriminated against. But the truth is quite different.

Ever since the British colonised Sri Lanka in 1796 they nurtured an English educated class of Tamils in the north of the country as part of the ‘divide and rule’ policy as applied in most of its colonies. The country was administered in English and Jaffna was well endowed with good schools. For instance, the northern region with less than half a million Tamils, had two well equipped grade one schools while whole of the rest of the country, with over 15 million people, had just one, and that was in Colombo. Altogether, about ten per cent of the population was English educated and they formed the elite class that ran the country.

Results of this were predictable. Of all the coveted university courses such as medicine, engineering and commerce, often over 50 per cent of students were Tamil, in spite of the fact that they were only 11 per cent of the population. This favoured position continues to this day although with less intensity with the opening up of more universities. These facts could be verified from the data produced by the Census and Statistics Department and universities.

Then abruptly the situation changed in 1956. SWRD Bandaranaike who became Prime Minister that year made Sinhalese the official language with Tamil as a regional language. And later Tamil also became an official language. The shift opened up the public service and other technical areas to massive competition from the Sinhalese educated who were virtually disenfranchised before.  Tamils interpreted this loss of privilege as discrimination. In fact the discrimination was against the Sinhalese and Bandaranaike only corrected the anomaly that had existed for centuries.  That was the beginning of the claims of discrimination by Tamils.

This is not to deny there were issues affecting Tamils but none requiring resort to terrorism.  But terrorism thrived in the north for another reason. The amicable relations Bandaranaikes had with the closest neighbour India led by the Gandhi’s ended with west-leaning JR Jayewardene assuming power in 1977. To prevent Sri Lanka following a foreign policy opposed by India and bring about some control on its behaviour, Indian Prime Minister Indira Gandhi worked out a way to destabilise Sri Lanka by exploiting the Tamil discontent.  She set up over 30 camps in different parts of India in the early 1980s to train, arm and fund Tamil terrorists from Sri Lanka[7]. The idea was to eventually unleash them in Sri Lanka. Rajiv Gandhi who succeeded her after her assassination in 1984 pursued the same policy until 1991 when he too was assassinated by a LTTE suicide bomber.

In the meantime Tamil Nadu state in India with 72 million Tamils and separated from Sri Lanka’s north only by 30 km of sea, continued to provide a safe haven for LTTErs who attacked Sri Lankan soldiers and escaped by boat. Thus terrorism thrived in Sri Lanka.

In 1983, a debacle by the Jayewardene regime, which was slow in responding to gangs attacking Tamils living in Colombo, saw a mass exodus of Tamils to Western countries as refugees.  Some of them were well placed in commerce and industry while others resorted to criminal activity such as human trafficking, credit card fraud and drug smuggling. They comprised the Tamil Diaspora in the west, which by 2000 had swelled to almost a million who contributed significant funds to support the LTTE led by Velupillai Prabhakaran. Jane’s Defence Weekly estimates that annually the LTTE received over $300 million from them[8]. Most of it was used to buy arms.

At the peak of power, in 2004, the LTTE controlled 15,000 km2 of land area and had carried out 378 suicide bombings. It was the only terrorist group to kill two world leaders – Rajiv Gandhi former Indian Prime Minister and Ranasinhghe Premadasa, President of Sri Lanka. It also killed 8000 innocent Tamils considered traitors by the LTTE[9]. All told, over 100,000 civilians, men, women and children had been driven to their grave by the LTTE during its 30-year reign of terror. When seven successive Sri Lankan governments failed to bring about peace it was clear the government was the underdog. Prabhakarn knew this and in August 2006 launched the Eelam war IV” on the newly elected President Rajapaksa who, he considered a lame duck. With that he expected to wrest control of north and east of the country to set up a separate state (eelam). But Rajapaksa, slowly and methodically managed to end the carnage three years later in 2009.

LTTE’s success was partly the power of its propaganda, which helped to portray the world’s deadliest terror group” as described by FBI, as freedom fighters in the western minds, and partly its ability to acquire modern armaments, including kitset aircraft, to fight an army severely demoralised and mismanaged by southern political leaders.

Conventional wisdom is that a picture cannot lie. Capitalising on this belief, the LTTE used modern technology of ‘cut and paste’ very effectively to spread misinformation. Tech savvy Tamil terrorists portrayed powerful images of how they were being tortured by government soldiers.  For instance Tamils, who were mostly Hindu, mutilate their own bodies to show devotion to their gods. At Kovil functions one often finds young Tamils hanging from hooks pierced through their skin, as penance.  These very same pictures were presented as torture inflicted by Sri Lankan soldiers. Yet another instance was when a picture of a smiling LTTE leader Prabhakaran reading a newspaper, which carried a banner headline Prabhakaran is dead” appeared in the LTTE newspaper. This was an actual headline that appeared in the daily newspapers the day after the war ended. But at that time his body had not been recovered and the terrorists wanted to tell their followers he was still alive. The next day however the body was found and the picture was removed from the website.

There were also several YouTube videos of people dressed in army uniforms executing civilians. You see shots being fired and a naked man fall into a pit. But the directing was so bad that these so-called Sinhalese soldiers spoke in Tamil with each other in the mock execution. But a foreigner deeply shaken seeing the heinous event will not notice the difference.  In more recent times Frances Harrison presented a ‘documentary’ on BBC how Tamils are regularly tortured and raped by Sri Lankan soldiers. As doctors testified they were not fakes but actual scars of torture on the bodies of these victims. Then it was discovered that the scars were indeed real but they were inflicted not in Sri Lanka but in the back streets of London at a heavy financial cost to the victim to help gain residency in the UK[10]  Nandani, the main victim” in the video had in fact got UK residency on the strength of the documentary which had been produced to discredit Sri Lanka to coincide with CHOGM held there end of last year.   That is only one of many fake videos still available on YouTube.

For an average person it is difficult to imagine such manipulation of the media. Knowingly or unknowingly the western media continue to show the clips over and over to drum up support whenever an international meeting on Sri Lanka was about to take place.

Promoting itself by fair or foul means was essential for the LTTE to promote its cause. And when it all ended abruptly in 2009 with a six billion dollar investment up in smoke and a dream of a separate state shattered, the Tamil Diaspora had enough cause to continue with the propaganda for retribution and rebuilding. But several other groups and activists joined to support them for different reasons. For instance some powerful NGOs like Amnesty International, to bolster their funding base[11] and politicians to beef up their vote banks[12].  Some of them also may have been there for genuine concern as the propaganda was powerful and touching.

The call for submissions by the Darusman Panel against Sri Lanka had received hardly any input and it had to extend the deadline twice. Then the Panel made the declaration that almost all its records, written and oral material will be embargoed for 20 years from the day of the release of the report in March 2011. Even after the lapse of 20 years, declassification review would have to be undertaken prior to the release of material signifying that some of the information would never be released. Along with that announcement the Diaspora posted a set of sample submissions in the Internet.  Then the submissions flooded in. Some of it had to be fabrications with impunity for the LTTE agents in capitals went door-to-door and email-to-email urging people to fill the blank spaces in the sample submissions. The Diaspora reeling from the defeat found this a godsend for revenge. That allowed the Darusman Panel to conclude that it had received  credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law had taken place”. But the irony is, to this day, GOSL does not know what that credible evidence was. And it will never know. Does it sound like a Kangaroo Court?

But the practice has not ceased. The same action of making fake submissions to the current UNHRC enquiry is taking place as found by the police when they arrested a person tasked by the main Tamil political party in Sri Lanka, Tamil National Alliance (TNA), to collect signatures on blank ‘UN war crimes complaints forms’ in the northern region. At the time of the arrest, the suspect had six signed blank ‘UN war crimes complaints forms.’[13] This may be only the tip of the iceberg, for the method was widely used by the diaspora for the 2011 enquiry and hard to imagine they will not do it again.

THE NUMBER OF CIVILIANS KILLED

The main accusation against Sri Lanka is that it allegedly killed a large number of civilians indiscriminately, estimates ranging from 40,000 in the Darusman report to 150,000 in Frances Harrison’s book.   How plausible are these numbers?

Sadly none of the critics accusing Sri Lanka has bothered to check the authenticity of the data on which the serious allegations were based. Perhaps it is a sign of the fast moving times where people have no time to check information which especially others had already accepted, while ‘cut and paste’ was so freely and speedily available. Perhaps they had genuinely believed the propaganda videos. Or perhaps the information as it was, suited their purposes well. Whatever it is, this lack of scrutiny of the assumptions had resulted in a grave injustice to Sri Lanka.  This is despite the fact that researchers, technical experts, analysts and writers have presented ample evidence of the unreliability of the information.

So how plausible are those numbers? We examine it under eight categories:

1. Deaths to injury ratio

Missing from all the calculations of civilian deaths was an immutable fact of war – the ratio of dead to the wounded. This was first highlighted in a groundbreaking study in the British Medical Journal (BMJ) in 1999, which examined casualty ratios in wars from 1940 to 1988[14]. The study showed that the number of people wounded is at least twice the number killed and may be 13 times as high” depending on the conflict type, weapons used and other factors.

The table below provides data on some of the death toll estimates. It is worth noting that the two sources that were on the ground and meticulously collected the data –the UN country group in Sri Lanka and the census carried out by the Department of Census and Statistics have almost similar number of civilian deaths.

All other calculations were based on University Teachers for Human Rights (Jaffna) (UTHR(J) Reports 32 and 34 which were based on a simple calculation subtracting the 290,000+ in IDP camps from the total population claimed to be 330,000 in the second No-Fire-Zone in February 2009. And that methodology and the basic data became the basis for the calculations of others that followed.

In other words, the accuracy of the estimate on which Sri Lanka is accused of mass killing of innocent civilians and the need for an international investigation is based on:

1. a) the accuracy of the figure of 330,000 as the number of people who lived there in February 2009 and
2. b) the ability to differentiate between combatants and non-combatants from the total fatalities.

With regard to a) the figure of 330,000 came from a situation report made to the Ministry of Public Administration & Home Affairs by the AGA for the Mullaitivu district, Mr. K. Parthipan, on March 5, 2009. Parthipan was still trapped inside the second No-Fire-Zone along with the

Different civilian casualty calculations

Casualties Time period	Casualty Type	Number Dead & Missing	Number wounded Actual	wounded predicted on basis of deaths	KIA to WIA Ratio	Data Source
Aug 08 to May 09	Tamil civilians	7,721	18,479		1.3	United Nations in Sri Lanka, May 2009(1)
Jan-May 2009	Tamil Civilians	40,000		120,000	1:3	Darusman Report, March 2011 (2)
Late 2008 to May 2009	Tamil Civilians	26,000 to 146,679		78,000 to 440,037	1:3	‘Still Counting the Dead’ F.Harrison, Oct. 2012 (3)
Late 2008-May 2009	Tamil Civilians	10,000 to 40,000		30,000 to 120,000	1:3	The Cage”. G, Weiss, May 2011 (4)
Jan to May 09	Tamil Civilians	7,400		22,200	1:3	Sri Lnkna Govt Census Report Jan 2013 (5)
Late 2008 to May 2009	Tamil Civilians	26,000 to 146,679		78,000 to 440,037	1:3	‘Still Counting the Dead’ F.Harrison, Oct. 2012 (3)
Late 2008-May 2009	Tamil Civilians	10,000 to 40,000		30,000 to 120,000	1:3	The Cage”. G, Weiss, May 2011 (4)
Jan to May 09	Tamil Civilians	7,400		22,200	1:3	Sri Lnkna Govt Census Report Jan 2013 (5)
Aug 2006 to May 09	Armed forces	6261	29551		1:4.6	Ministry of Defence(6)

Sources of information: (1) The UN’s Country Group in Sri Lanka established a total figure of 7,721 killed and 18,479 wounded.” International Crisis Group. (2) The United Nations Country Team is one source of information; in a document that was never released publicly, it estimated a total figure of 7,721 killed and 18,479 injured from August 2008 up to 13 May 2009, after which it became too difficult to count.” [paragraph 134, Darusman Report] (3)  ..anywhere from 26,000 to 146,679 people unaccounted for, presumed dead.” p.238, Frances Harrison, Still Counting the Dead: Survivors of Sri Lanka’s Hidden War” (4) ..by late June, when all civilians were inside the [post-war IDP] camps, a collection of aid agencies had made a preliminary calculation of 15,000-20,000 wounded civilians”. p. 321, The Cage”, Gordon Weiss I believe that between 10,000 and 40,000 [deaths] is a reasonable estimate. I think most likely it’s somewhere between 30,000 to 40,000 [deaths] ”, Gordon Weiss on Australian TV & interviews (5) Sri Lanka Government’s post-war census report recorded that about 7,400 people died of undefined or other” causes during the months leading up to the end of the war. Source: http://www.statistics.gov.lk/PopHouSat/VitalStatistics/EVE2011_FinalReport.pdf (6) http://www.lankabusinessonline.com/news/sri-lanka-lost-over-6,200-troops-to-beat-tigers:-report/1735448254

displaced population of the Vanni. In it he claimed the population of Mullaitivu District at present is about 81,000 families consisting of about 330,000 persons”.

It became clear later that AGA Parthipan was not directly responsible for doing a headcount but prepared the estimates based on information provided by Grama Sevakas (Village officials) (GS) who were also in the NFZ. But as the UTHR(J) notes the reliability of the information by the GS was questionable because the GS’s in the Killinochchi and Mullaitivu districts worked very closely with the LTTE, in many instances directly assisting in enforcing the groups oppressive diktat.  Also, even as the statistics were being compiled people were either escaping into Government controlled territory or being killed in the cross-fire. Ever since Kilinochchi fell on 1 January 2009 the LTTE was on the move and confined to an increasingly shrinking area around Puthukkudiyiruppu. Realising their plight the hostages were taking every opportunity to escape. In the space of 21 days (from February 6 – 27) – the period over which AGA Parthipan was collecting data – more than 29,000 people crossed over from LTTE-controlled territory in Mullaitivu into Government controlled territory[15].

There were other caveats too that UTHR(J) added to qualify the 330,000 population figure but everyone that followed using the figure ignored the warnings.

At the end of February 2009, the UN country team informed the Sri Lankan Government that, in its view, there were 267,618 civilians present in the No-Fire-Zone^_. It had based the estimate, in part, on UNOSAT Quickbird and Worldview satellite images, used to count the number of IDP shelters. The resolution of the imagery produced by both satellites was 0.6 and 0.5m respectively, meaning a pixel resolution of 60cm × 60cm or 50cm × 50 cm square. This resolution density is sufficient to be able to distinguish a single person on the ground. This figure combined with the 36,378 already in the IDP camps as at 25 February 3013 yields a total number of civilians of 303,996. To match Parthipan’s figure of 330,000 the UN calculation had to have an error of +23%, which is unlikely given the reliability of the imagery[16].

The Darusman Panel used data from medical centres and government hospitals within the NFZ in calculating the number of civilian deaths. Using deaths to injuries ratio of 1:2 or 1:3 it estimated the number of fatalities between 15,000-22,500. But it dismissed this somewhat more plausible number in favour of 40,000, claiming it had received  credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law had taken place”. They must be the calculations referred to in the table above.

1. Definition of civilian

Another major factor bearing on the integrity of the figure of civilians within the NFZ in February 2009 provided by Parthipan, was the blurring of the difference between combatant and civilian. UTHR(J) report quotes a large number of instances where combatants/conscripts/auxiliaries were routinely treated at civilian medical centres and their deaths included as part of civilian casualty data. In addition civilians killed by the LTTE were regularly passed off as fatalities due to shelling – allegedly always by the Sri Lankan Army^_:

Doctors working in the NFZ under those conditions did not dare defy the orders of the LTTE. The UTHR(J)  summed up this general state of fear that gripped the State medical fraternity, and other civil servants not aligned to the LTTE cause. Sources close to him (Dr Shanmugarajah) told us that he had tried to escape from the Vanni and was apprehended by the LTTE, and beaten and taken back to the NFZ. The LTTE kept all the doctors under close watch. An armed guard was placed near them even when they did surgical operations”^_

In these circumstances No doctor in an LTTE-controlled area dared to certify the LTTE as the cause of a death. Often they were spared this dilemma. When the wife of someone executed by the LTTE for political reasons went to the local headman in Jaffna, which was by then under Army control, to make an application for a death certificate, he, without batting an eyelid, wrote or altered the cause of death to Army shelling”^_.

1. Misinterpreting satellite imagery

IDAG-Sri Lanka, which had the engineering expertise in satellite imagery, which the Panel lacked, identified major shortcomings in the analyses and misinterpretations of images by the Panel to draw partisan conclusions to support its predetermined position. Following a detailed study IDAG concluded that the Panel was keen to emphasize that the Sri Lankan Army was primarily firing artillery shells into the No-Fire-Zone, which it said was the reason for a large number of casualties. But the evidence gathered from analyzing high-resolution satellite imagery of the areas was far less supportive of this position. Its statement that the Army needlessly used heavy weapons in the last weeks since LTTE heavy weapons no longer posed a threat was flawed thinking, for the LTTE used them until May 17^th from within the third NFZ.

Compounding these serious deficiencies in analysis the Panel concluded that the Army’s artillery batteries were constantly adjusted to increasingly target the NFZs”. But this judgment shockingly ignored the underlying ground situation. Analyzing the images covering this period in parallel with images of the No-Fire-Zone depicting the locations of IDP shelters, IDAG showed that it was quite clear that from February 5 to March 29, the fire bearings of the artillery and mortar batteries were constantly changing in accord with the changes to the forward defence lines where front line soldiers needed fire support. A critical mistake made by the Panel was in assuming that these weapons were at all times consistently firing up to their maximum permissible range as projected in their illustrations – hence overlapping the No-Fire-Zone. It was amateurish to assume that artillery was firing constantly in one direction. There are always two parties involved and one reacts to the other. It was a major error to consider one side in isolation.

In another event on May 9/10, which the UN had referred to as a blood bath”^_ the Sri Lankan Army was alleged to have bombed the No-Fire-Zone with heavy artillery, rockets and mortar, leading to a large number of civilian casualties. Human Rights Watch and Amnesty International requested the Science and Human Rights Program of the American Association for the Advancement of Science (AAAS) to analyse and report for advocacy purposes the conditions within the No-Fire-Zone. The conclusions the AAAS reached having studied the satellite imagery between May 6 and May 10 are striking:

What caused the IDP structures to be removed between May 6 and May 10 is uncertain based solely on the imagery. It is notable how complete the removal of IDP structures appears, in that while some debris and evidence of the structures remains, overall the area appears to have been swept relatively clean. This is less indicative of the entire area being razed by shelling, though it could correspond with an emigration from those specific areas by the IDPs due to some outside driver[17]”

The US may have been aware of these shortcomings of the Panel’s assessment for, as Ambassador Blake warned President Rajapaksa, their satellites were watching what was going on in the battle front. But it was convenient and advantageous to the political agenda not to raise inconvenient questions. There were several other glaring errors in how the Darusman Panel, which had no specialist expertise on satellite imagery, interpreted the images. (See IDAG-Sri Lanka for more information).

1. Completion of the Eastern Province campaign without any criticism

When the LTTE launched into the eelam War IV they were sure of victory against an ill prepared and little known opponent Mahinda Rajapaksa. But before long their military capacity in the Eastern Province had been reduced to nil. In this the breaking away of the Eastern Province Commander Vinayagamoorthy with 5000 cadres was a severe blow. By January 2008 they lost control of the north-western coastline. That was the loss of a lifeline for arms supplies from India. Outgunned and outnumbered, their troops were forced into a retreat that moved from west to east for the most part. They used landmines, bunds, trenches and booby traps to slow down the government forces.

The capture of the Eastern Province by the Sri Lankan army went smoothly. There were no accusations of HR violations. Did the army turn monster after Eastern Province?

The change occurred in fact with the LTTE. It increased its conscription of civilians to build defences and replenish troops. It was not very dangerous for them until January 2009 after which they were exposed to the crossfire. This was what the LTTE wanted. The civilians were, now not only a source of labour and conscripts; they were also hostages shielding the Tigers and providing a concern for humanitarian agencies, which intervened and sought a ceasefire from the warring parties. Since the LTTE had no intention of releasing the civilians or respecting any ceasefire, such interventions, as ADAG-S noted, were in fact a form of military aid for the LTTE. The humanitarian outcry raised by AI, HRW, ICG as well as some Western leaders was also a potential escape route that would have enabled the LTTE leadership to return to the fight another day. Pushing IDPs into the no-fire zones was a part of this strategy.

1. Wikileaks Cables

Wikileaks cables provide valuable unbiased information and mostly US government’s internal assessments on the situation in Sri Lanka since they are often meant for State Department eyes only. One such cable contains the views of ICRC on the role of the Sri Lankan armed forces:

On July 9, 2009 the then U.S. Ambassador-at-Large for War Crimes Issues –  John Clint Williamson – whilst collecting information in relation to a U.S. Congressional reporting requirement, met with Jacques de Maio, the ICRC’s Head of Operations for South Asia who noted that the Sri Lankan military was somewhat responsive to accusations of violations of International Humanitarian Law (IHL) and was open to adapting its actions to reduce casualties […] He could cite examples of where the Army had stopped shelling when ICRC informed them it was killing civilians. In fact, the Army actually could have won the military battle faster with higher civilian casualties, yet chose a slower approach which led to a greater number of Sri Lankan military deaths…”

In the same cable, on the LTTE, de Maio said that it had tried to keep civilians in the middle of a permanent state of violence. It saw the civilian population as a protective asset” and kept its fighters embedded amongst them. De Maio said that the LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred[18]…”

In another Wikileaks Cable from Colombo, US Ambassador Robert Blake reports to Washington that he told the President on January 8, 2009 that according to General Sarath Fonseka the war could end within two months. But Blake says President Rajapaksa told him that it could take several months more because he was intent on avoiding large-scale civilian casualties”. If not the war would have ended in February 2009. But that information was completely forgotten as evident in the US actions that followed with the accusations of mass killings brought in UNHRC.  All these show the allegations against Sri Lanka were politically motivated.

1. Other relevant factors

A major accusation against Sri Lanka is that heavy artillery was permanently directed to the no-fire zones with the aim of killing large numbers of civilians in a genocide strategy. The direction of fire issue has been dealt with elsewhere in this submission. But with regard to accusations of genocide it reflects the level of ignorance of the critics, of the situation in Sri Lanka.  There are several important reasons for this:

It is  a little acknowledged fact that only 43 per cent of Sri Lanka’s Tamil population reside in the north. All the rest live among the Sinhalese in the south as they have done for generations. If the government was keen on genocide it had a target much closer. This type of nonsensical argument stems not from ignorance but from their determination to pin the country by fair or foul means.

There was even greater opportunity to incarcerate a generation of young Tamils for years under the law of the land when 12,000 of the LTTE cadres who fought the armed forces were detained at the end of hostilities. But the President ordered the army to treat them as your own children”. As a result, except for some 400 who had committed major criminal offences, all the rest were rehabilitated, trained in a trade to help them earn a living, given bank loans on the basis of government guarantee and released back to the community.

That was not all. Since the end of the war there has been massive investment in the north building houses and infra structure such as roads, schools, hospitals and other facilities to modernise the region that had been badly neglected under 30 years of LTTE rule.  Growth rate in the five years since the end of the war was estimated at 22 per cent, which shows the massive scale of investment in the region.

Are these the signs of a government bent on genocide of Tamils?

1. Accusations politically motivated

Western political leaders rely on the LTTE for two favours. One is funds and the other votes. These have been driving at least the Democratic Party leaders in the US and both parties in the British parliament.  Evidently French too are involved in a similar way.

According to the US Federal Election Commission (FEC.GOV), Obama (as well as the head of the US Congress Sri Lanka Caucus – Representative Rush Holt) had accepted donations from, as well as funds raised by, the same American LTTE fundraiser, Mr. Ram Ranjan, who was fired by Hillary. Ranjan was formerly regional director of the banned TRO, according to the Seattle Times”[19].

Other support given by Tamils for Obama and their expectations in return, are documented in a letter written to the President after reelection:

• During the campaign season we raised funds for your campaign through our website.‘ We polled opinion among Tamil Americans (95% preferred you), and distributed this result in the battleground states (all the major networks reported this poll and its result on their websites). ‘Our Tamil American friends, working with your campaign, worked at phone banks in the days leading up to the election.’ We made and distributed two not-so-obviously-partisan videos”.

Then the payback: We hope to see an independent Tamil homeland–Tamil Eelam–merge in northeastern Sri Lanka. We hope that you and your next secretary of state will have an active part in helping Tamil Eelam to be born”[20].

Meanwhile in the UK the campaign by former foreign secretary David Miliband to champion aid and human rights during the Sri Lankan humanitarian crisis was largely driven by domestic political calculations, according to a Foreign Office official.

A leaked May 2009 cable from the US embassy in London quotes the official, Tim Waite, a Foreign Office team leader on Sri Lanka, explaining Miliband’s intense focus on the plight of the country’s Tamils in terms of UK electoral geography.

“Waite said that much of [Her Majesty’s government] and ministerial attention to Sri Lanka is due to the ‘very vocal’ Tamil diaspora in the UK, numbering over 300,000, who have been protesting in front of parliament since 6 April,” Richard Mills, a political officer at the US embassy, reported.

“He said that with UK elections on the horizon and many Tamils living in Labour constituencies with slim majorities, the government is paying particular attention to Sri Lanka, with Miliband recently remarking to Waite that he was spending 60% of his time at the moment on Sri Lanka.”

To use the United Nations to push their political agenda Miliband and Kouchner would be hosting a meeting on the issue on the sidelines of an international meeting in New York within a week, while Miliband would be raising the subject with American officials in Washington on the same trip[21]”.

1. Tamil Diaspora continues to fight for a separate state

The war has ended five years ago but the diaspora continues to entertain dreams of a separate state in Sri Lanka. As the International Crisis Group saysFunding networks established by the LTTE over decades are seriously weakened but still in place. There is little chance, however, of the Tigers regrouping in the diaspora. …Nonetheless, most Tamils abroad remain profoundly committed to Tamil Eelam, the existence of a separate state in Sri Lanka. This has widened the gap between the diaspora and Tamils in Sri Lanka. Most (Tamils) in the country are exhausted by decades of war and are more concerned with rebuilding their lives under difficult circumstances than in continuing the struggle for an independent state. There is no popular support for a return to armed struggle. ….So long as this is the case, most Western governments will remain sceptical of the diaspora’s post-LTTE political initiatives.[22].

What the international community can do is to stop stoking diaspora aspirations to destabilize Sri Lanka since the main victims will be, as before, the Tamils living in the country whose life will be disrupted just when they are emerging from 30 years of pain and suffering.

CONCLUSION

Under the UNHRC resolution Sri Lanka is accused of major human rights and humanitarian law violations. These are mainly based on the report of the Secretary General’s Panel of Experts and accusations by some western governments and NGOs. Also it is clear a large volume of fake claims will be lodged this time round too. Police have last week arrested a man in the north with six signed ‘UN war crimes complaints forms’. But since the Darusman report was released Sri Lankan Presidential Commission- LLRC, as well as a number of well-researched independent reports have strongly disputed the Panel’s conclusions. But the two sets of arguments run on parallel tracks. Unless they come together a mutually acceptable position can never be reached.

It is clear the allegations are largely politically motivated with the Tamil diaspora continuing to pressure western governments to help establish a separate state in the north of Sri Lanka. For this the diaspora uses its political clout especially in the UK, France and the US, all key players in the Unite Nations.

The irony of this is that richer and more powerful countries that have committed more atrocious human rights violations are never taken to task while helpless poor nations are pursued relentlessly. This double standard has created the strong impression among the poorer countries that the UN is not for them. Consequently there is a groundswell of support for an alternative option. Sadly, such a move will defeat the founding aims of the United Nations.

Sri Lanka has accomplished a lot in bringing about reconciliation in the five years since the war. This is a marvelous accomplishment for a developing country devastated by war. But in its haste to persecute Sri Lanka the UNHRC has never acknowledged this achievement. If taken, such measures will encourage the country to do even more and cease nurturing resentment against the organization of which it is also an equal partner. Also this preoccupation consumes resources of the world body that could be more fruitfully allocated for more pressing current issues in the international arena.

The Panel of Experts, we hope, will look at the evidence on both sides objectively and help achieve a fair outcome, instead of endorsing the actions of the Commissioner as all previous consultants did, and restore confidence of developing nations in the UN system.

RECOMMENDATIONS

We recommend that the Panel of Experts:

1. Recommend that UNHRC work with authors of studies critical of the Darusman report and other similar material to establish their veracity and take on board their views.
2. Recommend that the UNHRC move away from the current prosecuting mode and work towards bringing together a working party of the two sides to achieve a compromise solution.
3. Recommend action to insulate the UNHRC from being hijacked for political or other unintended purposes so that it will not go the same way as its discredited predecessor Human Rights Commission.
4. Reconsider whether the role of the High Commissioner for Human Rights needs to be changed from prosecutor to an impartial official, and leave prosecution to a more specialized body. That will help to maintain the Council as a consensus building body promoting human rights in keeping with UN traditions: and
5. Urge a review of the Humanitarian law and human rights law with a view to specifically addressing internal conflicts and how to bring in non-state parties to account for their actions

We have no objection to this submission being published. For further information please contact:

Don Wijewardana, QSO, JP

Sri Lanka Association of New Zealand

donwije@paradise.net.nz

Tel. +64 4 3844566 or +64 274844137

[1] Still Counting the Dead. Survivors of Sri Lanka’s Hidden War, London: Portobello Books, 2012.

[2] http://www.uthr.org/SpecialReports/spreport32.htm, and

http://www.uthr.org/SpecialReports/Special%20rep34/Uthr-sp.rp34.htm

[3] The Numbers Game Politics of Retributive Justice: http://www.satp.org/satporgtp/countries/shrilanka/document/TheNG.pdf

[4] http://margasrilanka.org/blog/issues-of-truth-and-accountability-the-last-stages-of-the-war-in-sri-lanka-narrative-iii-marga-a-private-sector-perspective-chandra/

[5]http://www.presidentsoffice.gov.lk/index.php?option=com_content&view=article&id=54:llrc-report&catid=53&Itemid=290

[6] http://www.statistics.gov.lk/PopHouSat/VitalStatistics/EVE2011_FinalReport.pdf

 

[7] http://www.eurasiareview.com/30072013-india-armed-trained-financially-sponsored-ltte-terrorists-and-sri-lankan-tamil-militants-oped%E2%80%8F/

 

[8] http://www.amazon.com/WORLDS-DEADLIEST-TERRORIST-TAMIL-TIGERS-ebook/dp/B004SI430I

 

[9] http://en.wikipedia.org/wiki/Liberation_Tigers_of_Tamil_Eelam#Suicide_bombings

[10] http://www.defence.lk/new.asp?fname=Witness_Accounts_on_Sri_Lanka_Asylum_Seekers_20141007_04

[11]Http://www.khaleejtimes.com/displayarticle.asp?xfile=data/international/2012/February/international_February274.xml&section=international&col=

 

[12] In a Wikileaks released cable dated 7 May 2009, the British Foreign Office Sri Lanka team leader”, Tim Waite, wrote that, with UK elections soon due, and with many Tamils living in marginal UK constituencies, the UK government was calling for a ceasefire in Sri Lanka and would later pay close attention to the IDP (internally displaced persons) camps. [Foreign Secretary] Miliband said that he was spending 60% of his time on Sri Lanka.” https://pcolman.wordpress.com/2013/11/

 

[13] http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=112951

[14] Robin M Coupland, surgeon and David R Meddings, epidemiologis, Mortality associated with use of weapons in armed conflicts, wartime atrocities, and civilian mass shootings: literature review, BMJ. Aug 14, 1999; 319(7207): 407–410t

 

[15] IDAG-S p18

[16] Ibid.

[17] AAAS, High Resolution Satellite Imagery and the Conflict in Sri Lanka, 12 May 2009 (Quoted in ADAG _Sri Lanka)

[18] Cable: 09GENEVA584

 

[19] http://pamelageller.com/2008/10/obama-accepts-d.html/#sthash.HzrGjPmg.dpuf

[20] http://www.prweb.com/releases/2012/11/prweb10177960.htm

[21] http://www.theguardian.com/world/2010/dec/01/wikileaks-david-miliband-sri-lanka

[22] http://www.crisisgroup.org/~/media/files/asia/south-asia/sri-lanka/186%20the%20sri%20lankan%20tamil%20diaspora%20after%20the%20ltte.pdf