KAMALIKA PIERIS
‘War crimes’ is a new thing. Nobody bothered about war crimes, when in World War II, major cities like London, Dresden and Berlin, were bombed, killing millions, or when bombs were dropped on Hiroshima, or when Biafra was starved into submission in the Nigerian Civil War of 1967.
The present day notion of ‘War Crimes’ started when in 1971 the ICRC called a Conference to create an International Humanitarian Law Applicable in Armed Conflicts’.98 This did not take off. Twenty years later, in the 1990s, wars such as the Gulf War, led to a heightened concern about the consequences of war. It was then suggested that the 1977 Additional Protocols to the Geneva Convention together with certain other Geneva regulations, should be categorized as a separate International Humanitarian Law” .At the end of the 1990s, suddenly and without any formal mechanisms, said analysts, ICRC’s notion of an International Humanitarian Law (IHL) was accepted.
The full title of this law, ‘International Humanitarian Law applicable in Armed Conflicts’ was abbreviated to International Humanitarian Law” or ‘Humanitarian Law.’ ICRC said that IHL focused on civilians caught up in a war. IHL concentrates on protecting those civilians and their property’. It should be remembered, though that there is no specific body of law which was born as ‘International Humanitarian Law”. It is a concoction with a lopsided focus.
Sri Lanka is accused of violating the international Humanitarian law’ and committing war crimes. A war crime” is an action performed by the armed forces, during a war, which constitutes a serious violation of the laws of war. These ‘laws of war’ are found in the Geneva Conventions. Army personnel who have violated these laws can be charged in a court of law.”
The Eelam Wars” fall within the category of ‘non-international armed conflict’ (NIAC) where an armed group launches high intensity battles with the security forces of the country. But the government of Sri Lanka did not get the Eelam War recognized as an armed conflict. The government of Sri Lanka said the conflict was an internal law and order situation and not an armed conflict. However, analysts such Neville Ladduwahetty, Desmond de Silva, as well as the LLRC and Paranagama Commission call it an Armed Conflict.
For non-international armed conflicts”, there are two laws which apply, Common Article 3 of the Geneva Conventions of 1949 and Additional Protocol II of 1977, Sri Lanka did not sign the Protocol, so only Common article 3 applies to Sri Lanka. Common article 3 says civilians should be treated humanely. Attack may be directed only at combatants and not at civilians.
The custodian of IHL is the ICRC therefore ICRC rules also come into play. ICRC rules says inter alia, those parties to the conflict must at all times distinguish between civilians and combatants and attack may only be at combatants. Launching an attack which may also cause loss of civilian life or injury is forbidden. . each party must, as far as possible, remove civilian persons from the vicinity of military objectives. Each party must avoid, as far as feasible, locating military objective within or near densely populated areas. (Rules 14, 23, 24).
This notion of a ‘war crime’ based on International Humanitarian Law is very new and is still in its infant stage. Analysts say that Nuremberg trials after World War II were not a war crimes probe. The victor was punishing the defeated. Anyway, that was an international conflict. The first two tribunals for war crimes in internal conflict are the tribunals for Yugoslavia (1993) and Rwanda. (1994).
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia (ICTY), was a body of the United Nations established to prosecute serious crimes committed during the Yugoslav Wars,
The tribunal was an ad hoc court located in The Hague, Netherlands. The Court was established by UN Security Council in 1993. It had jurisdiction over four clusters of crimes committed on the territory of the former Yugoslavia since 1991, grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity. The maximum sentence it could impose was life imprisonment.
The International Criminal Tribunal for Rwanda[a] was an international court established in November 1994 by the United Nations Security Council by Resolution in order to judge people responsible for the Rwandan genocide and other serious violations of international law . The court functioned from Tanzania. The tribunal had jurisdiction over genocide, crimes against humanity, and violations of Common Article Three and Additional Protocol II of the Geneva Conventions
For Rwanda the judges were elected by the United Nations General Assembly from a list submitted by the Security Council. The Judges were elected for a term of 4 years and were eligible for re-election. Initially, the Chambers were composed of 16 judges and no two could have been nationals of the same states. However, in 2002, the Security Council established a pool of 18 judges and since then, expanded the use of these judges in order to complete the existing trials and conduct additional trials.
Chandraprema observed that the work of these tribunals have been heavily criticized by international jurists and other experts. Many jurists are appalled. The standard of evidence in these trials differed significantly from the legal standards of most member nations of the UN.
The trials in Yugoslavia and Rwanda are based entirely on oral testimonies Stephen D. Roper observed that in the case of witness accounts, recollection become blurred and unreliable with the passage of time. Alvarez pointed out that when trials are conducted with the aid of interpreters, and without knowledge of culture or manners of the country, misunderstandings are bound to occur. H.B. Jallow, then chief prosecutor for Rwandan trial agreed. Nuances were lost in translation and this could have distorted what a person said. In these courts, the investigators were all foreigners and had to work through interpreters.
I have a question. These two courts have functioned with what seems like a rolling panel of judges. There are dozens of them, coming from all over the world. They function for a set period after which they are replaced by another set of judges. Won’t this affect the decisions and international acceptance of those decisions?
The war crimes charges against the Sri Lanka army include deliberately underestimating civilian numbers in the Vanni in order to deprive them of food and medicine; deliberately or recklessly endangering the lives of civilians in the No Fire Zone; targeting civilian objects including hospitals and executing or causing the disappearance of surrendees.
This essay looks at some of the war crimes charges made against the Sri Lanka army. I start with the charge of Genocide.
GENOCIDE
The UNHRC and the Tamil Separatist Movement have charged the Sri Lanka army with Genocide”. The word genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 for the killing of Jews in World War II. The United Nations General Assembly recognized Genocide as a crime under international law in 1946. ‘UN Convention on the Prevention and Punishment of the Crime of Genocide’ appeared in 1948.
The international legal definition of the crime of Genocide is found in Articles II and III of this Convention. Genocide is defined as ‘ acts intended to destroy a national, ethnical, racial or religious group, by either killing members of the group,, causing serious bodily or mental harm to members of the group or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.’
Genocide can be limited to part of the group, but it must be a substantial part of the group, significant enough to have an impact on the group as a whole. The target must be the group, as such, and not its individual members.
There must be a proven intent to physically destroy the group. International Court of Justice rejected claims of genocide by both Croatia and Serbia making it plain that the crime can be established only if it is proved that the perpetrators acted with specific intent to destroy physically the group concerned.
The Paranagama Commission rejected the charge of Genocide in Eelam War IV. The Paranagama Commission said that after many months of investigations and serious engagement with the top legal experts it had concluded ‘on the basis of the evidence available to this Commission and the prevailing law, the suggestion that the crime of genocide was or may have been committed during the final phase of the war is without foundation.
The Commission rejected the suggestion that civilians were either targeted directly or indiscriminately by the SLA as part of an alleged genocidal plan. The Commission pointed out that the army rescued 295,000 hostages and 12,000 former terrorist cadres, who were captured or had surrendered, were rehabilitated. That is not genocide. The rescue of civilians shows that there was no intention on the part of the SLA to target civilians.
The Paranagama Commission also drew attention to a leaked US diplomatic cable dated 15 July 2009, which dealt with a discussion Geneva-based US Ambassador Clint Williamson had with ICRC Head of Operations for South Asia Jacques de Maio. Jacques de Maio, head of ICRC operations in South Asia, stated that any serious violations of IHL that may have been committed by Sri Lankan forces did not amount to genocide. The University Teachers for Human Rights (Jaffna) have similarly found that there is no evidence of genocide in the final stage of the war by the SLA.
British Defence attaché, Lieutenant Colonel Anton Gash told Lord Naseby in January 2009 that he was surprised at the controlled discipline and success of the Sri Lankan army and in particular the care that it was taking to encourage civilians to escape and how well they were looked after, and that certainly there was no policy to kill civilians.
Following are excerpts of a redacted dispatch from Lt. Col. Gash dated Monday, February 16, 2009, 4:44 PM Subject IDP Reception – Trincomalee 12 Feb 09 among other things states the following; “On Thu evening (12 Feb) I observed the arrival of 400 IDPs by sea in Trincomalee.” “From 1930 hrs (12 Feb) to 0300 hrs (13 Feb) the ship to shore transfer took place. (I was present 2200 – 0200 hrs). “The operation was efficient and effective, but most importantly was carried out with compassion, respect, and concern. I am entirely certain that this was genuine – my presence was not planned and was based on a sudden opportunity; I had free access to the 300m long stretch of beach over a 4-hour period and was able to observe upwards 200 SLN personnel working extremely hard in difficult conditions.” “IDPs were having their mobile phones checked, but they were then returned to them.”
NO FIRE ZONES
Modern wars have provision for No Fire Zones. These Zones provide a refuge for civilians caught up in the war and are created for their safety. However, analysts point out that a ‘No Fire Zone’ becomes a No Fire Zone only if there is mutual agreement by both parties. A declaration by just one party, that a particular area is a NFZ, does not make it a safe zone (Rules 35 and 36 of Customary IHL).
In Eelam War IV, Sri Lanka‘s offers of No Fire Zones (NFZ) for the hostages were rejected by the LTTE. LTTE rejected the army suggestion that they create mutually agreed No Fire Zones for the protection of civilians. Since there was no mutual agreement between the Government and LTTE regarding the establishment of the NFZs, there were no legally protected No Fire Zones, in the last phase of Eelam War IV, said Retd. Major General Lalin Fernando. The Sri Lanka army was entitled to attack lawful targets within such areas using lawful weapons in a lawful manner as permitted under the laws and customs of war.
Sri Lanka government made three attempts to create No Fire Zones and each time, the LTTE got into the zones, with their guns and attacked the Sri Lanka army from there. LTTE occupied the NFZs and intermingled with the 300,000 civilians. This meant the whole conflict area was a Free Fire Zone (FFZ) not a No Fire Zone. The Forces however did at no time treat any part of the LTTE occupied areas as a FFZ until the hostages had escaped. Fire was selective and minimized at considerable cost in lives to the troops, said Lalin Fernando.
The Government unilaterally declared a series of No-fire Zones within the conflict area, and told civilians to move into them. The first No Fire Zone was created on 20 January 2009. However, the LTTE refused to acknowledge the NFZs as protected zones. Instead, when the Sri Lanka army declared a No Fire Zone, and the civilian population went there, the LTTE also went , taking their heavy weapons with them.. The civilians were again trapped. These actions of the LTTE violated the terms of an NFZ. Additional Protocol (I) of the IHL stipulated that the NFZ should not have inside it, combatants, military weapons and there should be no military activity from it, such as firing,
The LTTE had ‘willfully’ moved their heavy artillery into the first NFZ and began to shell the SLA from there. Also, witnesses who were present on the morning of 18 May 2009 state that the majority of those killed in the NFZ during the last twelve hours of the war were killed by LTTE shelling. The witnesses said they were certain that they were being fired upon by the LTTE. The UTHR(J) also stated ‘Some reliable witnesses and other IDPs who were present when the Army entered are certain that a large number, perhaps the majority, of those killed in the NFZ during the last 12 hours were killed by LTTE shelling’.
HUMAN SHIELDS
Hostage taking and the use of human shields are forbidden in war. The active use of civilians as shields in non-international armed conflicts is prohibited in the international law. It is prohibited in Additional Protocol II, Common Article 3 and the rules of the ICRC. San Remo Manual on the Law of Non-International Armed Conflict also prohibits the use of civilians as shields. International Criminal Tribunal for former Yugoslavia (ICTY) considered Human shielding a violation of the international law of warfare.
Paranagama Commission observed that LTTE had deliberately placed the civilian population in danger by bringing them into the war zone. They prevented the hostages from escaping and moved them around to protect LTTE military targets. Therefore the crime of human shielding was clearly established, declared the Commission.
Tamil civilians were used by the LTTE during the final stages of the armed conflict, In the last phase of the Eelam War the LTTE took the 300,000 to 330000 civilians as hostages. This was well known. Wartime Norwegian Ambassador in Colombo Tore Hattrem on February 16, 2009 wrote to presidential advisor Basil Rajapaksa: “I refer to our telephone conversation today. The proposal to the LTTE to release the civilian population now trapped in the LTTE controlled area has been transmitted to the LTTE through several channels. So far there has regrettably been no response from the LTTE and it does not seem to be likely that the LTTE will agree to this in the near future.”
The ICRC Head of Operations for South Asia, Jacques de Maio, informed US officials that the LTTE were trying to keep civilians in the middle of the conflict area. A US diplomatic cable said the LTTE kept its fighters embedded amongst the civilian population.’
LTTE next prevented the civilians from fleeing to areas away from the fighting. They shot and killed civilians hostage when they attempting to escape. The LTTE hoped this would attract international attention. Pulidevan told a BBC journalist that the aim of keeping hundreds of thousands of women and children trapped was that if enough of them were killed the world would intervene. They wanted the deaths to be blamed on the Sri Lanka army.
The final stage of the campaign was obstructed by the presence of thousands of Tamil civilian hostages acting as a human shield in the area, In 2011, Amnesty International published a report based on information independently gathered from sources such as eyewitness testimony and information from aid workers which confirmed that ‘the LTTE used civilians as human shields.
These hostages were armed and forced to into the front line, chidden were also included in this, many hostages directly participated in LTTE activity by constructing fortifications, protecting LTTE military installations by being human shields, and being in the vicinity of protected objects such as hospitals. They were forced to dig trenches, bunkers and the formidable earth bunds behind the lagoon. These civilians, taken as a whole were also acting as a buffer. Acting as a ‘buffer’ is considered a hostile act. So in this way too, they were participating in the war.
It is extremely unlikely that 20,000 LTTE cadres could have taken control of 330,000 hostages against their will, said Desmond de Silva and David M. Crane. A large section of these civilians would have gone voluntarily with the LTTE, to play their part in the LTTE war. If so, then the captive Tamil civilian population is not ‘innocent’, they are voluntary human shields, said Newton.
By placing themselves in the line of fire, voluntary human shields’ are actually participating in the war. They are playing a passive role, not an active one, but they are definitely a part of the war and they definitely helped to influence its outcome. Since they had directly participated in hostilities, voluntary hostages were not entitled to protection as civilians. They had forfeited that protected status.
When civilians directly participate in hostilities, they become lawful targets themselves, said de Silva and Crane. When civilians supported LTTE military efforts, voluntarily or involuntarily, they lost their protected status and became instruments of war. They ceased to qualify as civilians. This means that no person within the conflict zone would come under the category of “civilians” under rules of IHL, observed Ladduwahetty.
Michael Roberts referred to the Jaffna citizens as a sandbag used by the LTTE, they were moved to the coastline to prevent the army form attacking. They used it as a human shield and defensive embankment, also to encourage a ceasefire. However, the Sri Lanka public always had reservations about the ‘innocence’ of the Tamil civilians living amidst LTTE. The public also concluded that It was extremely unlikely that 20,000 LTTE cadres could have taken control of 330,000 hostages against their will, A large section of these civilians would have gone voluntarily with the LTTE,
The public saw that the Tamil civilians did nothing to bring the war to an end. They could have helped the army but they did not. Instead they implicitly obeyed the LTTE. On the orders of the LTTE, they even removed the roofs of the houses and carried them with them, when they left. Tamil civilians were not ignorant and passive. They were capable of taking decisions. In October 2017, when President Sirisena visited Kilinocchi, a Tamil woman told the President, in Sinhala, ‘it is we who voted you into power.’
PERFIDY
The legal specialists engaged by the Paranagama Commission say that LTTE is also guilty of ‘Perfidy.’ The use of civilian human shields by LTTE in the final stages of the war is comparable to the war crime of ‘Perfidy’, said de Silva, Crane, and Newton. Perfidy is defined in law as acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence”. LTTE committed perfidy when they told the civilians that they were safe from attack, and were entitled to protection under IHL, while intending to use them as human shields, between themselves and the advancing Sri Lanka Army.
LTTE has had a long history of engaging in perfidious conduct throughout the 30 year conflict with the government of LTTE added de Silva and Crane. For years, it allegedly disguised its attackers as civilians to gain access to the Sri Lanka forces and then killed them through the use of suicide bombers. In 2002, LTTE suicide bombers accounted for “over one third of the total suicide bombings in the world”.
Our conclusion, said the Paranagama Commission, is that when the full set of factual circumstances are considered, the applicable legal standards did allow the Sri Lankan forces to attack the LTTE and its military locations despite the presence of civilian hostages. LTTE had continued to shell the Sri Lanka army from its embedded position among a civilian hostage population. Failure to respond to these deliberate attacks, would, in the view of this Commission, have been a signal to the LTTE and the world that the LTTE had won by illegal means. The IDPs are uniformly emphatic that the Army shelled only in reply to the LTTE gun fire from among the civilians, during the hostage period.
HOSPITALS
It is prohibited to direct an attack against a safe zone established to shelter the civilians, the wounded, and the sick from the effects of hostilities. This includes hospitals. In a Resolution adopted in 1970 on Basic Principles for the Protection of Civilian Populations in Armed Conflicts, the UN General Assembly stated that places or areas designated for the sole protection of civilians, such as hospital zones, or similar refuge, should not be objects of military operations”.
The Darusman report, the OISL report and the Channel Four films said that the Sri Lanka army attacked hospitals and refugee areas mercilessly and killed thousands of civilians. They make exaggerated charges, using photographs and maps. Channel Four showed clips which could have been from anywhere, and said they were of hospitals in the Mullavaikkal area. Darusman Panel has taken satellite imagery from UNOSAT looked at the positions of the government artillery and concluded that the army had fired at the hospitals. The Darusman Panel also examined artillery shell craters in the war area.
Paranagama Commission did not agree. This Commission finds that it is essential when considering the alleged attacks against hospitals to take account of the fact that the LTTE had deliberately set up artillery firing positions in the vicinity of hospitals. There is strong evidence that the LTTE was relying on return fire from the SLA to lead to some damage to the hospital so as to make the allegation against the SLA that it was deliberately shelling a hospital. LTTE had stationed weapons in hospitals and used them, said Shamindra Ferdinando.
The Paranagama Commission requested an expert military report from Major General John Holmes. Holmes said. It is not possible at this point in time, on the evidence available, to accurately state which side’s artillery and mortars caused identified shell craters and civilian casualties. The clinching argument as to where responsibility lies for the shelling is in the direction from which the shells were fired. It was absurd to suggest as one report does, that because the barrels of SLA artillery tracked the declaration of the ‘NFZs’ is an indication that they fired into those NFZs. It is normal artillery practice for guns to be laid in the direction of the threat, but that does not mean they actually fired.
It is unlikely that multi barreled rocket launchers were used, as Darusman Panel alleges, they cause such a high level of destruction that it would almost certainly be identified from imagery. Such weapons would devastate these areas in a very short space of time. The number of temporary shelters that were still standing on 10 May shows that the army did not use their weapons indiscriminately and that they did not target civilians.
Holmes then provided a detailed analysis. Holmes notes that Paragraph 81 of the Darusman Report states that during the period 19 -20 January 2009 shells hit Vallipuram Hospital in NFZ Imagery dated 21 January 2009 indicates that the hospital had not received indirect fire on those dates.
Paragraph 91 of the Darusman Report states that the hospital at Puthukkudiyiruppu was hit every day between 29 January and 4 February 2009 by Multi Barrelled Rocket Launchers (MBRLs) and other artillery taking at least nine direct hits. Imagery dated 5 February 2009 indicates that the hospital had suffered two possible areas of damage during the time frame, but not nine direct hits. Even one salvo from a MBRL would have devastated the entire area.
Three images relating to the Ponnambalam Hospital at page 189 of the Darusman Report are also possibly erroneous. Two of these images refer to specific buildings being destroyed between 21 January and 5 February 2009, yet on the available imagery dated 5 February 2009, both buildings are still standing. The third image again relates to a specific building being destroyed in the same time frame. The building is still standing in imagery dated 16 March 2009.
Paragraph 111 of the Darusman Report states that on 11 and 12 May 2009 the temporary hospital at Vellamullivaikkal was also hit by shells killing a number of people. Imagery dated 10 May 2009 revealed that the hospital had already received damage from probable indirect fire. However, imagery dated 24 May 2009 detected no additional damage.
Paragraph 120 of the Darusman Report states that on 16 May the LTTE destroyed a lot of its equipment in a large explosion in an area of NFZ 3. A change detection study using imagery dated 16 March and 24 May 2009 showed no evidence of large-scale destruction (craters or debris) was noted throughout the NFZ, concluded Holmes.
FOOD AND MEDICINE
One of the charges against Sri Lanka is that the government denied food and medicine to the Tamil population in Vanni during Eelam war IV. Denial of food and medicine is one of the three major violations under IHL. This is a lie, said analysts. Sri Lanka never deprived the north of food and medicine. Even during the Vanni offensive they received supplies, said Shamindra Ferdinando.
Paranagama Commission said that there was no evidence of a deliberate campaign to starve the civilian population. Paranagama Commission took the view that there was no intention to kill civilians through starvation, nor by deprivation of medicines. ‘There is no evidence that any form of blockade warfare was employed by the Sri Lanka Army in the final months of the war.’ On the contrary, there is general agreement that humanitarian foodstuffs and aid were permitted to enter LTTE held areas. However, the Commission observed that the Petrie Report says that LTTE may have taken up to 20% of all the assistance that had been sent into the Wanni. LTTE had fired at food convoys during the war.
Food supplies to LTTE held areas were decided by the Consultative Committee on Humanitarian Assistance (CCHA) set up by President Rajapaksa to ensure essential supplies to the Northern Province. CCHA was composed of government, diplomatic, NGO and INGO representatives. The CCHA had representatives from WHO, WFP , FAO, ILO, ICRC, UNHCR, UN Office for the Coordination of Humanitarian Affairs, the Ambassadors for US, EU , Japan, UK, and lastly, Jeevan Thiagarajah and Firzan Hashim, of the Consortium of Humanitarian Agencies.
The minutes of Consultative Committee on Humanitarian Assistance (CCHA) meetings could confirm measures taken by the then government to move required supplies overland and by sea. These minutes are yet available; verification could be made said Gotabhaya Rajapaksa. The minutes will also show that there were no complaints about food and medicine shortage. However, Gotabhaya observed that a top UN official who had taken much trouble to top UN official who had taken tangible measures to store sufficient food stocks in the north was moved out to Japan on a false pretext.
No one had complained about shortage of food and other essential items, though there were requests for zinc sheets, cement and iron, said Gotabhaya. Substantial amounts of food and other essential supplies had been shipped to Puthumathalan, from February 10, 2009, to May 9, 2009, in accordance with a joint plan implemented by Sri Lanka and the international community.
SYSTEMIC KILLING
In ‘war crimes’ there is the charge of ‘systemic killing,’ meaning killing systematically, not randomly. Those supporting Eelam said the Sri Lanka army had killed ‘innocent civilians’ systematically inside the war zone. These charges were publicized over and over again in the Channel Four television films and were also emphasized in the Darusman and OISL reports. The LLRC report and the Paranagama Commission reports categorically state that according to the evidence the Sri Lankan security forces did not commit systemic war crimes at the last stages of the war. In the final analysis the Commission is satisfied that a large percentage of the LTTE cadres were killed and the vast majority of the civilians, who had been held hostage, were saved, said the Paranagama Commission.
The Sri Lanka army denies all charges of ‘war crimes’, especially systemic killing. The Sri Lanka army drew attention to the hostage rescue of around 29,000 Tamils. Sri Lanka army’s epic hostage rescue is a feat of heroism and dedication, said analysts. Gotabhaya Rajapaksa said the army could have finished off the LTTE much earlier had the military conducted the offensive without taking into consideration civilian concerns.
In a leaked US diplomatic cable dated 15 July 2009, which dealt with a discussion Geneva-based US Ambassador Clint Williamson had with ICRC Head of Operations for South Asia Jacques de Maio. The US envoy declared that the Army actually could have won the battle faster with higher civilian casualties, yet chose a slower approach which led to a greater number of Sri Lankan military deaths.
Until the hostages were rescued, the SL Forces were hamstrung, said Lalin Fernando. They could not use their fire power that included MBRLs and aircraft to the full. That caused the delay. Once the hostages were rescued there was nothing legally or morally as far as waging wars go, to restrain the Forces. The land the terrorists were occupying was Sri Lanka sovereign land. The proscribed, fully armed terrorists were a military target by law. Their destruction was justifiable. The force used was proportionate and legitimate, concluded Lalin Fernando.
The Paranagama Commission said the LTTE and not the Sri Lanka army was responsible for civilian deaths. This Commission is satisfied that the LTTE, both directly and indirectly, bears the primary responsibility for the loss of innocent civilian life during the final phase of the conflict that formally ended on 19 May 2009.
It was the LTTE that killed the majority of Tamil civilians during the last 12 hours of the final siege, added the Paranagama Commission. There is positive evidence that such shelling of Tamil civilians by the LTTE did take place. What is not verified is how many hostages were actually killed by the LTTE concluded the Paranagama report. Further, the LTTE systematically refused all calls by the international community to free the civilian hostages.
The LTTE’s use of homemade multi barreled rocket launchers (MBRLs), would inevitably have added to the civilian casualty figures, said the Paranagama Commission. According to the Commission’s military expert these launchers lacked a solid platform and would thus have been extremely unstable when fired, resulting in a loss of range, inaccuracy and a much greater spread of rounds. Their homemade MBRLs caused more casualties to them than to their targets, said Lalin Fernando, bluntly.
In April 2009, the government declared a 48 hours ceasefire to enable civilians wishing to leave the conflict zone to do so. The LTTE refused to release any of the civilian hostages. The LTTE continued offensive operations against the SLA until the ceasefire expired. Had the LTTE freed the civilian hostages when repeatedly asked to do so, the number of civilian deaths is likely to have been significantly reduced.
Major General John Holmes a recognized specialist in counter terrorist operations, providing expert military advice to the Paranagama Commission stated-
“In my opinion, faced with a determined enemy that were deploying most ruthless of tactics and which involved endangering the Tamil civilian population, SLA had limited options with regard to the battle strategy they could deploy. This would have posed a dilemma for the very best trained and equipped armies in the world. The SLA had either to continue taking casualties and allow the LTTE to continue preying upon its own civilians or take the battle to the LTTE albeit with an increase in civilian casualties. The tactical options were stark, but in my military opinion, justifiable and proportionate…….Therefore on evidence available to me, taking into account my own combat experience, I do not find in broad terms that the military and artillery campaigns were conducted indiscriminately, but were proportionate to military objectives sought”. (‘Expert Military Report’ by Major General John Holmes as Annexure 1 in Paranagama Commission Report)
‘WAR WITHOUT WITNESSES’
The conflict in Sri Lanka has been dubbed a ‘war without witnesses’. It was alleged that the government was not letting the media into the war area, in order to hide the crimes the army was committing. The Paranagama Commission points out that TV footage showed that journalists were present in the war area. There were at least two embedded foreign journalists who were given access to the warzone, except for the last two days of the conflict.
Frances Harrison, resident BBC Correspondent, had said that dubbing the Eelam war as war without witness” is simply not true’. There were 60 catholic priests and nuns, 240 local NGO workers and Tamil civil servants working for the Central Government including five doctors.
The measures to exclude journalists from conflict zones by the SLA in the final months of the armed conflict need to be assessed in the light of international practice. The US restricted the access of journalists to the battlefield in Iraq. The US military ordered a complete black-out of media reporting when ground operations began in Iraq.
SURRENDER
In war there are regulations about ‘Surrender’. Those who surrender must be allowed to do so and they must thereafter be treated with respect. There are allegations that the LTTE wanted to surrender but were not allowed to do so. That is rejected by analysts, as totally incorrect. The LTTE had not made a direct offer of surrender to the government of Sri Lanka. Shamindra Ferdinando drew attention to a note from Norwegian ambassador to Basil Rajapaksa dated 16.2.2009 saying that they had not been able to persuade the LTTE to surrender.
Lawrence Smith, US defense adviser in Colombo said, at the inaugural defense seminar in 2011 that he had been defense attaché here from 2008, so he ‘saw it at first hand.’ He said the LTTE had made no move to surrender. There was no credibility in the so called offers to surrender. The stories do not seem to match up.”
He also confirmed there had never been an agreement or an understanding regarding organized surrender between the government and the LTTE through the intervention of the UN or Western governments. The offers to surrender that I am aware of seemed to come from the mouthpieces of the LTTE, Nadesan, KP. People who weren’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”
US quickly dissociated itself with Smith’s remarks. The embassy said that Smith had not been at the Defence Seminar in an official capacity. But analysts noted that US did not contradict Smith’s statement, The US official wouldn’t have shielded Sri Lanka if he had an iota of suspicion as regards the conduct of the military, observed Shamindra Ferdinando. As the senior Colombo-based US military officer, Smith would certainly have had access to all relevant information.
The much publicized ‘surrender’ of Balasingham Nadesan, Seevaratnam Pulidevan and others was communicated to the British journalist, Marie Colvin, of The Sunday Times. She wrote, ‘Through highly placed British and American officials I had established contact with the UN special envoy in Colombo, Vijay Nambiar, chief of staff to Ban Ki- moon, the secretary-general. I had passed on the Tigers’ conditions for surrender, which he said he would relay to the Sri Lankan government.’
Some spice was added to this by Sarath Fonseka, who said that a journalist had told him that Gotabhaya Rajapaksa had instructed the army to shoot all those surrendering with white flags. Sarath Fonseka said that journalist had told him that Gotabhaya Rajapaksa had instructed the army to shoot those who were surrendering with white flags at the end of the LTTE war. Gota, according to Fonseka, had told Brigadier Shavendra Silva, commander of army’s 58th divisions not to accommodate any LTTE leaders who wanted to surrender, they must all be killed. Sarath Fonseka was in China from May 1 and returned on May 17, said Shavendra Silva.
Lawyers expressed concern over this ‘errant and treacherous statement’ made by Fonseka, UN Security Council can bring Sri Lanka before International war crimes tribunal due to this type of statement, warned the media. Sarath Fonseka should be arrested for his sudu kodi story, said Nalin de Silva. This is the first step in war crime charges. Nalin de Silva observed that Fonseka’s name is never mentioned in the west war crime charges though he was the commander of the army at the time. ( CONTINUED)
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Gotabaya has not been charged by any US court of law as of now. Not that we trust the US justice system any more than we do ours of course. The issue of citizenship can come into the frame if and only if he is taken to court. If the intention is less about concern over rights violations (and we know the USA is big on talk and lethargic or at best selective on action) than about outcome preferences that are in the interest of the USA, then we need to be concerned.
