Why does the Darusman Panel Ignore Evidence of War Crimes?
In June 2010, UN Secretary General Ban Ki Moon appointed a panel to investigate and and advise him on the possibility of large scale human rights violations in the closing stages of the war in Sri Lanka, primarily in the first quarter of 2009. This was done close on the heels of the UN Human Rights Council’s rejection of a call by advocacy groups for a full-scale international investigation. Ban appointed his Special Rights Investigator to North Korea, Marzuki Darusman, as the panel’s chair and, in April 2011, the panel released its report. This report has been variously viewed by the different parties. At one end of the spectrum it is seen as totally biased and unfair by the government of Sri Lanka, and at the other end as proof of genocide by the Tamil nationalists. Somewhere in the middle, most balanced observers have seen it as a scathing indictment against both the victorious Sri Lankan military and the defeated Liberation Tigers of Tamil Eelam (LTTE). Certain international advocacy groups such as Amnesty International, the International Crisis Group, and Human Rights Watch, then immediately mounted a media campaign accusing the GoSL of war crimes, and one particularly contentious issue is that in this campaign, the panel’s use of the phrase “credible allegation” has been replaced by that of “credible evidence”, giving the impression that the panel has evidence of war crimes committed by the GoSL. The recently aired Channel 4 documentary, Sri Lanka’s Killing Fields, opens with this lie.
In reality, the panel uses the phrase only twice; in the positive, saying that it had credible evidence that superiors in the Sri Lankan chain of command were responsible for any violations committed by their subordinates; and in the negative, claiming to have no credible evidence of the LTTE’s use of human shields. Everywhere else, the term used is that of credible allegations. At no point does the Darusman Report reveal what evidence it examined, which portions were deemed credible, and which portions were rejected. Nor does it explain how an allegation was deemed credible, and whether this credibility was based on actual evidence, eyewitness testimony, or both. In spite of this, legal minds contend that credible evidence is necessary for an allegation to be termed credible, though it is unclear as to how the Darusman panel adjudged credibility.
Let’s take the statement by the panel that they cannot find credible evidence of the Tigers using civilians as human shields. This is what the report says:
“…With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study).”
Rule 97 of the Customary International Humanitarian Law, as set out by the ICRC, prohibits the use of human shields, and is based on a number of customary practices, international conventions, military manuals, and state laws which are cited in support of Rule 97.
Now, given that in addition to eyewitness testimonies to the fact, there exists video footage shot by unmanned aerial vehicles (UAVs) of the Sri Lanka Air Force which clearly show violations of Rule 97, the Darusman report seems to fly in the face of the actual evidence.
The first clip shows the Tigers holding agitated and terrified civilians at gunpoint on the beach close to Mullaitivu. Part 2 of the second clip shows Tiger gunboats being dragged up the beach and concealed just feet away from civilian dwellings. While the Youtube clips are of a low resolution, the original footage shows the actual grid coordinates of the area being viewed. These two clips alone contain enough evidence of the violation of Rule 97, the use of human shields. When looked at alongside photographs that show LTTE installations located amongst refugee dwellings, footage of tiger armour and artillery operating within the GoSL-declared No Fire Zones, and civilians fleeing to the government side at every opportunity, the evidence is overwhelming.
Now Rule 97 defines the use of human shields thus:
“The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations. Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks. The military manuals of New Zealand and the United Kingdom give as examples the placing of persons in or next to ammunition trains. There were many condemnations of the threat by Iraq to round up and place prisoners of war and civilians in strategic sites and around military defence points. Other condemnations on the basis of this prohibition related to rounding up civilians and putting them in front of military units in the conflicts in the former Yugoslavia and Liberia.
In the Review of the Indictments in the Karadžić and Mladić case, the International Criminal Tribunal for the former Yugoslavia qualified physically securing or otherwise holding peacekeeping forces against their will at potential NATO air targets, including ammunition bunkers, a radar site and a communications centre, as using “human shields”.
It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”
As with all war crimes, intent to commit the crime is crucial to proving guilt. Therefore it is necessary to prove that the perpetrators were aware of what they were doing; that they were shelling a hospital that they knew housed civilians, that they were holding civilians in order to protect a military target from enemy attack, and so forth. So a lawyer defending the Tigers, or indeed the Darusman report, could argue that while the above footage shows definite violations, it does not show the Tigers violating Rule 97 on the prohibition of the use of human shields. Certainly, the Tiger actions recorded by the UAVs show the Tigers to be in violation of Rule 23 in which “each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas”; Rule 24 in which “each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives”; Rule 96, in which “the taking of hostages is prohibited”; and possibly a few others. However, it could be argued that the intent to use the civilians to shield a military target isn’t evidenced in the footage.
Therefore, a defending lawyer would argue that the Tigers need to be seen to be displaying intent by a particular act, namely that of deliberately moving or placing the civilians in a position that makes it clear that their presence would make the target immune from attack. For this, the defence would cite the New Zealand Armed Forces’ Interim Law of Armed Conflict Manual DM112 which says, “The manual further states: “The presence of a protected person in a particular place or area must not be used to give that place immunity from military operations (for example by placing trainloads of protected persons in railway sidings alongside ammunition trains)”; and Britain’s Manual of Military Law 1958 Part III: the Law of War on Land which says, “In the past prominent inhabitants were placed on engines of trains running on the lines of communication in occupied territories to ensure the safety of the trains. Such a measure exposed innocent inhabitants to the illegitimate acts of train wrecking by private enemy individuals, and also to the lawful operations of raiding parties of the armed forces of the belligerent. It now comes within the prohibition of the [1949 Geneva Convention IV].” Taken in isolation, these two military manuals might give the impression that deliberate movement of civilians to a specific location or object is necessary for intent and, thereby guilt, to be ascertained.
However, as I said before, Rule 97 cites a number of articles and laws as support, and when taken as a whole, they lay out a number of actions which may be examined to arrive at the perpetrators’ intent, which is the bottom line. The fact that intent can be inferred by other actions beside moving the protected persons to a particular location can be confirmed by examining the only criminal case cited in Rule 97, that of Radovan Karadzic and Ratko Mladic, who were charged by the International Criminal Court in the Hague in July 1995. While parts I and II of the indictment relate to genocide and the Sarajevo sniping, it is Part III that concerns us, namely the charges of taking hostages and using human shields. Paragraphs 46 and 47, on page 14 of the indictment, say this:
“46. Between 26 May 1995 and 2 June 1995, Bosnian Serb military personnel, under the direction and control of RADOVAN KARADZIC and RATKO MLADIC, seized 284 UN peacekeepers in Pale, Sarajevo, Gorazde and other locations and held them hostage in order to prevent further North Atlantic Treaty Organisation (NATO) airstrikes. Bosnian Serb military personnel held the UN peacekeepers throughout their captivity by force or by the threat of force. In some instances, the UN hostages were assaulted. During and after protracted negotiations with Bosnian Serb leaders, the UN hostages were released in stages between 3 June 1995 and 19 June 1995.
47. After seizing UN peacekeepers in the Pale area, Bosnian Serb military personnel, under the direction and control of RADOVAN KARADZIC and RATKO MLADIC, immediately selected certain UN hostages to use as “human shields,” including but not limited to Capt. Patrick A. Rechner (Canada), Capt. Oldrich Zidlik (Czech Republic) Captain Teterevsky (Russia), Maj. Abdul Razak Bello (Nigeria), Capt. Ahmad Manzoor (Pakistan) and Maj. Gunnar Westlund (Sweden). From on or about 26 May 1995 through 27 May 1995, Bosnian Serb military personnel physically secured or otherwise held the UN peacekeepers against their will at potential NATO air targets, including the ammunition bunkers at Jahorinski Potok, the Jahorina radar site and a nearby communications centre in order to render these locations immune from further NATO airstrikes. High level Bosnian Serb political and military delegations inspected and photographed the UN hostages who were handcuffed at the ammunition bunkers at Jahorinski Potok.
48. RADOVAN KARADZIC and RATKO MLADIC, individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the taking of civilians, that is UN peacekeepers, as hostages and, additionally, using them as “human shields” and knew or had reason to know that subordinates were about to take and hold UN peacekeepers as hostages and about to use them as “human shields” or had done so and failed to take necessary and reasonable measures to prevent them from doing so or to punish the perpetrators thereof.”
Clearly, the indictment makes no mention of a specific movement of the UN peacekeepers to specific locations; merely that they were forcibly detained at these specific locations. The fact that the locations were stated military targets of NATO, and that the deliberate holding of the peacekeepers made the locations immune to attack was sufficient to infer intent. The indictment then goes on to say on page 15:
“In regard to UN peacekeepers seized and held hostage between 26 May 1995 and 19 June 1995, RADOVAN KARADZIC and RATKO MLADIC, by their acts and omissions, committed:
Count 13: a GRAVE BREACH as recognised by Articles 2(h) (taking civilians as hostage), 7(1) and 7 (3) of the Statute of the Tribunal.
Count 14: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR (taking of hostages) as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal.
In regard to the UN peacekeepers used as “human shields” on 26 and 27 May 1995, RADOVAN KARADZIC and RATKO MLADIC, by their acts and omissions, committed:
Count 15: a GRAVE BREACH as recognised by Articles 2(b) (inhuman treatment), 7(1) and 7(3) of the Statute of the Tribunal.
Count 16: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR (cruel treatment) as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal.”
So, amongst other things, Karadzic and Mladic stand accused of using human shields, in spite of the fact that there was no apparent movement of the peacekeepers. Intent is inferred by the evidenced actions of the accused. Similar intent can therefore be inferred by the actions of the Tigers visible in the UAV footage, specifically holding and preventing civilians from leaving military targets, firing upon those attempting to do so, and co-locating military targets with the civilians.
Interestingly, the prosecutor in the Karadzic/Mladic case was the controversial South African judge Richard Goldstone, who headed the UNHRC’s team investigating the the Gaza conflict, submitting a report in 2009 that was highly critical of the Israeli government; a report Goldstone later claimed was based on insufficient information. Goldstone was also the prosecutor in the Rwandan Tribunal, and has gone on record saying that he hopes the Sri Lankan administration will not escape justice. It would be interesting to see what Goldstone would make of the evidence against the Tigers.
Now, one would expect lawyers of the capacity of Darusman to be capable of interpreting the evidence, the law, and the legal precedents in order to make an accurate assessment in the report. And that expectation would be a fair one if we looked at the panel report as an actual indictment or charge sheet of some kind; it is neither. The closest analogy in legal terms, is that of a police detective applying for a search warrant. Unlike in a court of law, he doesn’t need to present actual evidence; all he need do is show sufficient suspicion of guilt in order to obtain the necessary permission to violate privacy and investigate more closely. That is exactly what the Darusman report is trying to do. Set up by Ban ki-Moon after initial attempts at an investigation failed, it’s sole purpose is to create sufficient suspicion that the GoSL is guilty of war crimes. It is the GoSL that is resisting calls for an investigation, and it is this resistance that must be overcome. The Tigers, and their war crimes are irrelevant. At the moment, the Tiger remnants in the diaspora, certain UN departments, and the human rights advocacy groups want the same thing — investigations. To therefore acknowledge that the only actual available evidence shows war crimes to have been committed by the Tigers would be counter-productive.
The Darusman report isn’t about getting at the truth; it’s about overcoming GoSL resistance to a UN investigation. The only way to do that is to show the GoSL to be guilty. For that, the truth must be ignored for what is convenient, and the Darusman report does just that. Regardless of evidence, it makes the GoSL look guilty.