KAMALIKA PIERIS

In August 2013, President Mahinda Rajapaksa appointed a Presidential Commission to investigate complaints of abductions and disappearances”.  The terms of reference were expanded in July 2014 to    include an investigation into civilian loss of life at the end of Eelam War IV   in May 2009 and whether there were any violations of international law during this period.

The panel consisted of Maxwell P. Paranagama, former High Court judge (Chairman), Manohari Ramanathan, former Deputy Legal Draftsman and Suranjana Vidyaratne, Director General, Department of Census and Statistics. There was also an Advisory Council of three international legal experts, Sir Desmond de Silva, QC. (UK) as Chairman, with Sir Geoffrey Nice QC. (UK) and   David M. Crane (USA).  The committee continued to function under President Sirisena. The period examined was 2 January 2009 to 19 May 2009.  The report on the ‘second mandate’ was published in August 2015.

S.V.Kirubaharan and M.A.Sumanthiran objected to the inclusion of Desmond de Silva on the grounds of conflict of interest. Desmond had been consulted by Rajapaksa earlier. A group of   ‘civil society members’ wrote   to President Sirisena In August 2015 saying that the  Bar Standards Board of the United Kingdom has decided to initiate a formal investigation into the conduct of Sir Desmond de Silva with respect to his role in Sri Lanka

The investigation had commenced on 20 July 2015. This group wanted Desmond removed from the Advisory committee. Centre for Policy Alternatives and World Evangelical Alliance were among the signatories.  However, Desmond de Silva was not removed and  the case against him was thrown out.

The Paranagama Commission observed that none of the studies to date had provided a thorough analysis of the applicable international law on warfare or used it in analyzing the last phase of the Eelam war. The Commission wished to conduct a proper analysis of the final phase of the conflict, taking into account expert military and legal advice and recognizing the core IHL principles of distinction, military necessity and proportionality.

However, the Commission said that it was necessary, first of all, to correct a certain view of sovereignty that is no longer current but which is bandied about in Sri Lanka. Some people in Sri Lanka say that the international community has no right to investigate what took place in the final stages of the conflict. This violated the sovereignty of Sri Lanka. For example by the UNHRC setting up of a Commission of Inquiry into the conduct of the war.

The Commission pointed out that prior to World War II, there were no controls over the way wars were conducted. But now there are international laws regulating the conduct of war. Sovereign states are today subject to these international laws when they engaged in war, including internal wars like Eelam War IV. The law which applied to the Eelam War IV is International Humanitarian law as given in Additional Protocols I and II, 1977 of the 1949 Geneva Convention.

The Commission received advice on international and military law from the three legal experts on the Advisory Panel.  The commission also obtained the advice of Rodney Dixon, QC. (UK/ South Africa),  Michael Newton (USA) Vanderbilt University who formerly served as the Senior Advisor to the United States Ambassador-at-Large for War Crimes, Commander William Fenrick (Canada) and  Nina Jorgensen of Harvard and The Chinese University of Hong Kong.

The Commission also referred the work of the International Court of Justice (‘ICJ’), and the proceedings of the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’), the International Criminal Tribunal for Rwanda (‘ICTR’), and the Special Court for Sierra Leone (‘SCSL’).

Before starting on its investigation, the Commission did a considerable amount of desk research. The Commission looked at the relevant UN reports, NGO assessments and US reports made on the Eelam wars. The commission studied, inter alia,  Reports to Congress by the US State Department (2009), the  ‘Darusman Report’ (2011),  ‘LLRC Report’ (2011),  Report of the Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka, 2012 (Petrie Report) and  the Sooka Report (2014) ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009—2014’. The Committee also read reports by the International Crisis Group, Amnesty International, Human Rights Watch and the University Teachers for Human Rights (Jaffna).

The Commission also looked at the classified cables from the US embassy in Colombo, published by Wikileaks.  Such cables were now accepted in courts of law abroad as evidence. These cables shed light on matters hitherto unknown or only guessed at, said the Commission.

Finally, the Commission   consulted a number of books and other published accounts of the Sri Lankan war, some of which were hostile to the government of Sri Lanka. They included the writings of Gordon Weiss, Frances Harrison, John Holmes and Rajan Hoole. The Commission has cited from these sources, sometimes to illustrate points, which have not been considered before. These writings have been cited fully ‘so that those who may wish to consider their texts more fully can do so.’

Tamil Separatist Movement has alleged that successive Sri Lankan governments have committed genocide against Tamils.  The Commission points out that Genocide is a legal and not a political term and simply citing numbers will not do.  Genocide is a very precise legal concept with definite meaning.  Genocide is defined in Article 2 of the 1948 Genocide Convention.

A charge of genocide must show a specific intent to destroy in whole or in part a national, ethnic, racial or religious group and there must be very strong evidence to prove this. The International Court of Justice rejected claims of genocide by both Croatia and Serbia. The intent to destroy the group in whole or in part has to be convincingly shown. ICJ wanted the highest standard of proof ‘beyond reasonable doubt’.

Paranagama Commission categorically says that the government of Sri Lanka did not practice genocide in the final phase of the Eelam war.  It could jolly well have done so if it wanted to. Major General Holmes in his military report to the Commission,   pointed out that if the   Sri Lanka   military wanted to wipe out the Tamil civilian population it could have done so within two to three days of shelling. Its multi barreled rocket launchers, with fierce fire power and high firing speed could have done the job easily.

The Commission rejects the idea that the government and Sri Lanka army deliberately targeted Tamil civilians with intent to destroy the Tamil race.  It quotes Jacques de Maio, head of ICRC operations in South Asia, told US Ambassador Clint Williamson, In a US diplomatic cable, 2009 that any crimes that may have been committed by Sri Lankan forces did not amount to genocide. University Teachers for Human Rights, Jaffna, in its report of June 2010 also said ‘there is no evidence of genocide. It is hard to identify any other Army that would have endured the provocations of the LTTE, which was angling for genocide, and caused proportionately little harm.’

The Commission has made no attempt to suppress or whitewash killings and disappearances. The Commission   says it has been clearly established in the evidence given at its public sittings that several individuals who handed themselves in or who were handed in to the SLA were put on buses or other transport and that those individuals now remain among the disappeared. Furthermore, where there is evidence that persons who went missing were subsequently mistreated and/or killed, this may constitute an allegation of a violation of Common Article 3 to the Geneva Conventions, namely murder, cruel treatment, torture or the carrying out of executions without prior judgment, as war crimes.

Here are some of the disappearances and killings placed before them and listed in the report.

1. Typical of the evidence taken by the Commission at a public sitting in Mullativu on 4 November 2014, said the Commiiosn, was the case of the two brothers Selvakumar and Raja whose mother Murugesu Sellamma gave evidence that on 17 May 2009 she handed over her two sons, 29 and 26 years of age, to the army. One of them had been forcibly taken by the LTTE, whilst the other had not been involved in the LTTE in any way. Neither of them has been seen again

ii     Vasanthan Regina giving evidence before the Commission at Pudhukudiyiruppu on 6 July 2014 referred to handing over her 35 year old husband at Vattuvaahal Army check point on 17 May 2009. He had been an LTTE cadre but had escaped and joined his family. She testified that she was him when he handed himself in as a result of an announcement by the Army directed at those who were or had been members of the LTTE. She witnessed him being put on to a bus with others who had also surrendered. She was informed by the Army that those who were taken were going to be inquired into, after which they would be returned.  She never saw her husband again.564

iii. Bageerathan Perinbanayagi giving evidence before the Commission sitting at Pudhukudiyiruppu on 5 July 2014 informed the Commission that her husband Selvarajah Paheerathan, who had been in the security service of the LTTE, surrendered to the army on 18 May 2009. She was with him at the time of the surrender. Her husband was one of roughly 50 people put on to a bus after they surrendered. He was never seen again.565

Iv. Chandrakumar Dayalinie gave evidence before the Commission at Mullativu on 5 November 2014. Her evidence related to her brother aged 42, whose name was Thirichelvam Mailwahanam. He was a member of the LTTE. Her evidence was that he was one of many people who responded to the call by the army for LTTE members to surrender. He surrendered at Wattuwal on 17th May 2009. She gave evidence that neither his wife nor family have seen him again.

2014. Thanabalasingham Pushpabal gave evidence before the Commission at Mullativu on 3 November 2014. She gave evidence about her son aged 32, Thanabalasingham Wijayapaskar. She accompanied her son when he handed himself in to the army at Mulliwaikkal on 19 May 2009. She was separated from her son who was taken away for the purpose of inquiry and put onto a red bus by the army, with about 40 others. She got on to another bus. She was taken to Chettikulam Zone 4 in Vavuniya and the last she saw of her son was him waving to her from the bus in which he was. She knew three other boys of the 40 that were loaded onto the red bus with her son. She has seen none of them again although she had carried out searches at army camps within Vavuniya. They were all members of the LTTE.567
2015. Yasmin Sooka, Executive Director of the Foundation for Human Rights in South Africa and former UN Adviser on Post-war Accountability issues in Sri Lanka has made an allegation to the UNHRC supported by a list of 110 names of those it is alleged surrendered to the SLA on 18 May 2009 and were loaded onto busses. These individuals who were last seen in the custody of the military, it is alleged, have never been seen again by their families. This number includes a Catholic Priest, Fr. Francis Joseph.568

vii. November 2013 Channel 4 Television released footage of Shoba alias Isaipriya as a prisoner of the SLA. She was a high profile member of the LTTE press and communication wing. Images of her dead body also shown by Channel 4, clearly suggest arbitrary execution. The Commission has also received first hand information of this disappearance from the family of Isaipriya.

viii. Channel 4 also showed T. Thurairajasingham alias ‘Colonel Ramesh’ video and photographic material obtained by Channel 4 and other sources depict this LTTE commander being interrogated by the security forces. the faces of interrogators are shown The metadata from the recording device, taken some days after this, with ‘still’ images of Colonel Ramesh’s mutilated body would again suggest arbitrary execution.

 

2009. In February 2013, a series of photographs emerged depicting Balachandran Prabahakaran, the 12-year old son of the LTTE leader. The images suggest that he was in a bunker alive and well in May 2009. The allegation is that he was then in the custody of the SLA. Not long afterwards he is shown dead on the ground with his chest pierced by bullets. Whilst both sets of photographs are said to have been taken, a few hours apart with the same camera. Forensic pathologists instructed by Channel 4 suggest that the child was executed. Clearly if this allegation is proven, this is a clear breach of the laws of war.

 

During the course of these hearings it was evident to the Commission, that some of the complaints would have to be further investigated by a special investigation team. There are credible allegations, which if proved to the required standard, may show that some members of the armed forces committed acts during the final phase of the war that amounted to war crimes. These matters must be the subject of an independent judicial inquiry, said the commission.

The Commission also wished to establish whether a discernible pattern of widespread or systematic conduct emerged. Furthermore, where there is evidence that persons who went missing were subsequently mistreated and/or killed, this may constitute war crimes. Thus individual investigations are required before guilt can be established. The Commission recommended a judge-led inquiry of all these incidents.

The Commission therefore asked for a separate investigation unit, so that the Government and the public would be satisfied that investigations were being carried out in a transparent, unbiased manner.  The Commission    turned down the initial offer of a team from Terrorist Investigation Department (TID) and Criminal Investigation Department (CID) of the Sri Lanka Police. In July 2015 a team comprising of investigative officers drawn from all ethnic communities and headed by retired High Court Judge was appointed.  A female investigating officer will be selected from the district in which the investigations are to be conducted.

The Commission briefed the team on the manner in which the investigation should be carried out. A code of ethics and terms of reference were given to the team setting out details of the requirements of responsibility, accountability, honesty, integrity, caution, thoroughness and other essential requirements that should govern their approach in order to achieve the highest standards in the conduct of the investigations.

The commission stated in its report that work of the newly appointed investigative team has begun and is continuing. The Commission heard first hand testimony on one of the incidents dealt with in the Channel 4 allegations. It was about the alleged forced disappearance and alleged summary execution of approximately 100 persons who boarded a bus during the last days of the war. There is reasonable basis to believe, having heard evidence on this issue, that these individuals may have been executed.  The investigation team was looking into it.

The commission’s approach to the Channel 4 video is interesting. The Commission said that the authenticity of the video footage is not an issue that this Commission can resolve, It is not possible for the Commission to form any valuable opinion on whether the footage is fake, in whole or part, without having access to all relevant material and discussing the issue with at least one, and possibly more than one, of the relevant experts who have already contributed different opinions.

The Commission accepts that despite some opinions to the contrary, the weight of independent expert analysis of the video footage of the Channel 4 video”, suggests the images are unlikely to be faked. Forensic pathology and other corroborative expert evidence support the video footage as genuine. Philip Alston, UN Special Rapporteur on extrajudicial, summary or arbitrary executions, had commissioned three experts who authenticated the footage while accepting that a small number of characteristics in the footage could not be explained.

As the UN has used a number of pathologists and firearms experts of world renown, who have now corroborated this footage, the Commission has acted on the assumption, which of course can be displaced by evidence, that the images depicted are genuine.

In the Commission’s view, the Channel 4 programmes provide enough material to form a reasonable basis to believe that war crimes may have been committed, warranting a proper judicial enquiry.  Having heard some primary evidence on at least one allegation contained in the documentary, this Commission requested an investigation team to be appointed to conduct a full investigation into what it has found to be credible allegations of criminal conduct.

The Commission takes the view that the extra-judicial executions of 18 May 2009 that were dubbed ‘White Flag Killings’ in the Channel 4 programmes must also be the subject of an independent judicial inquiry. These events are alleged to have led to the deaths of Balasingham Nadesan, the head of the political wing of the LTTE, and Seevaratnam Pulidevan, the LTTE’s head of the peace secretariat, and others who are said to have emerged under the protection of a white flag and on assurances of their personal safety. If proven, such conduct undoubtedly qualifies as a war crime under the Hague and Geneva Conventions.

The Commission took the position that the  depiction of executions and of bodies said to have died in circumstances suggesting they were executed points to the need to investigate, even if that investigation were ultimately to show that all the adverse scenes had been ‘stage managed’ by the LTTE. These are not images that can be set aside simply because the journalism is extravagant. The true central issue is not the journalistic standards of Channel 4 but the death and maltreatment of people who had the right to be properly treated. The reputation of the SLA is indeed at stake, but proper accountability is of equal, if not greater importance.

However, he Commission warns that neither television programmes nor reports of commissions of inquiry can ever be substitutes for a proper investigation and accountability process. It is a common occurrence in the modern media age to assume guilt from the findings of UN and INGO reports without the proper testing of allegations and evidence.

The Commission is critical of Channel 4 for not releasing the original video footage to the government of Sri Lanka. The Commission also notes that the video does not show who was doing the shelling. There is abundant evidence that the LTTE were both shooting and shelling their own civilians. The video also forgets that since the LTTE had failed to accept the Government’s No Fire Zone (‘NFZ’) that under international law there were no NFZs in existence. The commission observed that the Channel 4 allegations were made the subject of proceedings before a Military Court of Inquiry in Sri Lanka in 2014. But the findings have not been made available to the Commission.

The Paranagama Commission recommends the creation of a War Crimes Division within the Sri Lankan law court system, as a domestic mechanism for the purpose of investigating international crimes that apply in all conflicts, including non- international armed conflicts.  At the same time the core crimes applicable in non-international armed conflicts must be added to statute law so that they could be used to investigate and prosecute crimes of the Eelam war,

In particular, the doctrine of command responsibility, which is part of customary international law for all conflicts and thus applicable to the Sri Lankan conflict, should be incorporated into Sri Lankan law. This has occurred in many other countries through the adoption of specific legislation to create certainty about the applicable law. Once the relevant provisions of international law have been incorporated into domestic law there is no difficulty in establishing a new jurisdiction to try war crimes within the existing Sri Lankan court structure. Other countries like Fiji and Gambia have done so. If Sri Lanka sets up a purely domestic tribunal without the participation of any foreign judges, the Commission said there    should be international technical assistance and observers. (continued)