KAMALIKA PIERIS

OISL REPORT

This essay updates the information given in my essay on the OISL Report. http://www.lankaweb.com/news/items/2018/04/27/the-oisl-report/ 

The OHCHR Investigation on Sri Lanka” (OISL) was an investigation initiated by the   office of the UN Commissioner of Human Rights.  On 26th March 2014, the UNHRC by resolution A/HRC/25/L.1/Rev.1 requested the OHCHR to undertake a comprehensive investigation into serious violations and abuses of human rights and related crimes allegedly committed in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission.

The investigating team consisted of Martti Ahtisaari, President of Finland, Silvia Cartwright     Governor-General of New Zealand  and Asma Jahangir, Chairman, Human Rights Commission of Pakistan. The team started work in July 2014. The final report was released to the public on 16th September 2015 and at the same time was filed officially with the UNHRC. High Commissioner for Human Rights admitted that the OISL Report is ‘rather unique’ and is the first of its kind by his Office in respect of any country.

Critics pointed out that  the OISL report is based on a “desk review” of existing material including Government publications, international and Sri Lankan NGO/civil society reports, the reports of LLRC and other commissions etc., and above all, material considered credible by the Darusman Panel  which included  the evidence which will stay hidden until 2031.

The Report claimed to be a Human Rights investigation and not a criminal investigation, but it said that criminal acts may have happened. The purpose of the OISL report was to get a War Crimes Tribunal set up for Sri Lanka.

The   OISL Report specifically asked that special courts be set up to judge the war crimes of the Sri Lanka army .the Report also wanted universal Jurisdiction. Names of important military personnel and units have been mentioned in the Report in a manner designed to incriminate and direct investigations. This puts these persons at grave risk of being arrested in foreign countries and charged under universal jurisdiction, said analysts.

The war crimes listed in the OISL report are indiscriminate shelling, shelling of hospitals, unlawful killings, arbitrary arrests, denial of humanitarian assistance to civilians in the conflict zone, enforced disappearance, torture, sexual and gender-based violence. 

When Yahapalana agreed to support Resolution 30/1 of the UNHRC the Federation of National   Organizations (FNO) became alarmed. The Federation noted that the document used for the Resolution was the OISL Report. They saw that UNHRC had not subjected the OISL to a review or scrutiny.

In January 2017, Ven. Bengamuwe Nalaka  Dr. Gunadasa Amarasekara and  Rear Admiral (Retd) Dr. Sarath Weerasekara  of the Federation of National  Organizations, supported by Global Sri Lanka Forum, asked  lawyer Darshan Weerasekera to provide an evaluation of the OISL Report.   The OISL has not been subjected to such an assessment, they said. There was an urgent need for a thorough assessment and analysis of the facts in the OISL Report.

Darshan readily obliged and the report was ready in March 2017. It was titled A Factual Appraisal of the OISL Report: A Rebuttal to the Allegations against the Armed Forces”. It was available in both digital and printed form.

The purpose of the OISL report is to make a case for war crimes against the State, said Darshan. The OISL report suggested that the military leaders who oversaw the war committed war crimes and crimes against humanity.

The standard of proof accepted by the OISL team, which was   reasonable grounds to believe”, was the lowest threshold of proof recognized in law. OISL should have set itself a higher standard of proof, said Darshan. Also, the evidence in the OISL report is seriously flawed. It is characterized among other things by contradictions, omissions, lies and half-truths. Its claims could be easily contested and crushed.

In his   report, Darshan Weerasekera looked at each of the war crimes charges made in the OISL report and made the following observations.

There is an impression, Darshan said, in the outside world especially in the West that the Government of Sri Lanka simply expelled all foreigners including foreign correspondents from the conflict zone and then proceeded to carry out its military operations. This impression is wrong.

Members of the Western press were certainly not present in the conflict zone in large numbers. But, members of the Indian press were present throughout, particularly correspondents from

Frontline, the respected Indian news magazine, and also from All India Radio/Doordarshan. From international organizations, the ICRC was present inside the war zone until four days before the war ended. If indiscriminate killings of civilians had been made, then these representatives would have reported it.

B. Muralidar Reddy, of Frontline, was part of a group of embedded‖ reporters who was present in the battlefield right up to the end of the war on May 19, 2009. His stay was facilitated by the Defence Ministry and the Sri Lanka army.  No conditions were made to him on how to report from the war zone.

Reddy said we were allowed unfettered and unhindered movement up to 400 meters from the zone, where pitched battles were fought between the military and the remaining cadre and leaders of the LTTE. We had interference-free access to the internet.

Reddy interviewed the last batch of 80,000 civilians to flee the LTTE-occupied zone and found that the Tigers had decided on May 10 that they had lost the war and that no purpose would be achieved by holding on to the civilians.

On May 11, the Tigers seemed to have deserted their sentry-points, dismantled their defense-lines, and destroyed everything they could. The exodus of the last batch of civilians started on May 12/13 and perhaps by the night of May 15 there were no civilians left in the 1.5 square-kilometer area the Tigers were boxed into, continued Reddy.

 ICRC decided on May 15 to suspend humanitarian operations inside Tiger-held territory. This proved beyond doubt that the overwhelming majority of civilians were out of the battle-zone and that the military and the Tigers were engaged in a no-holds-barred fight. The beaming faces of the commanders and troops spoke volumes, said Reddy.

Reddy spoke with civilians who had just come out of the war-zone, civilians who wouldn‘t have had time to reflect on or even digest the events they had experienced, or, more important, to be coached by anyone as to what they ought to say to reporters.  Such spontaneous and unvarnished testimony is generally considered the best and most credible form of eye-witness testimony, and is recognized as such in courts of law.

There is not the slightest indication in Reddy’s articles that he heard the civilians say Government troops were carrying out massacres, or that he felt the need to ask the civilians about it. There is no record anywhere in Reddy‘s reports of people coming out of the battle-zone saying massacres of civilians were going on.

Instead there are published testimonials, where captured LTTE cadres say they were treated kindly by SLA troops. On a number of occasions troops had saved wounded LTTE cadres on the brink of death by treating them on the battlefield itself and transporting them to safety behind Government lines.

Darshan next looked at the number of civilians killed. In November 2011, the Department of Census and Statistics of Sri Lanka completed a full census of the Northern Province. The data is in their website.  Roughly 8,000 persons died in the first five months of 2009 as a result of the conflict, inclusive of LTTE combatants. Of this 5,000 were LTTE combatants which leaves 3,000 civilian deaths.

There is independent corroboration of the Census Department‘s numbers said Darshan. There is a UN Country Report, completed in 2009, during the conflict itself, that gives an estimate of the number of persons killed between August 2008-May 13 2009, as 7,721. That number is very close to the one generated by the Census Department.

There is also a study by the American Association for the Advancement of Science of aerial photographs of the conflict-zone at the very peak of the fighting. One purpose of the study was to find out if there was evidence of a rapid expansion of gravesites, or evidence of mass graves. The study found no expansion of gravesites, and no evidence of mass graves.

The OISL team had neglected to interview crucial witnesses who had first-hand knowledge including documents as to exactly how much food and medicine was in the Vanni at the relevant time. The team had made no attempt to interview the officials who had participated in the CCHA meetings (Consultative Committee on Humanitarian Assistance) that decided on supplies, as to whether the government of Sri Lanka had deprived civilians in the conflict zone of food and medicines.

The Panel could have had interviewed  Ms. Sukumar, S. B. Divaratne, officers responsible to sending the goods or Amin Awad, the UNHCR representative in Sri Lanka and asked them directly how much food was sent to the conflict zone during the time in question, whether or not there were buffer-stocks available, and if so in what quantities. Instead the OISL report stated that the GOSL followed a deliberate policy of depriving civilians in the conflict-zone of humanitarian assistance. The charge is simply not true, and the evidence exists to prove it.

Darshan also pointed out that the OISL report made statements which showed that the Panel itself had come to realize that the LTTE used hospitals for military purposes. (p 155).The OISL Panel had deliberately attempted to mislead the OHCHR on this issue.

The Panel‘s chief source of evidence for the charge of arbitrary arrest as well as for the charge of sexual and gender-based violence is anonymous witnesses, whose statements are not available to the public. They are kept secret.

The Paranagama Commission in its 1st Mandate has collected a vast database of complaints of disappearances. Its preliminary conclusions, with respect to the complaints, was that there was a large number of repeat complaints, and that a significant numbers of them were found to be living abroad, or in Sri Lanka under different names, concluded Darshan.

.A revised, updated version of the report by Darshan Weerasekera was published by Sarasavi in 2020.

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