Last week, I attended a seminar conducted by the Colombo-based Marga Institute, a think tank devoted to studying and influencing human development in Sri Lanka. Marga is in the process of putting together a review of the UN Secretary General’s advisory panel report on Sri Lanka (the well-known Darusman Report), which will analyze several aspects of this document, including its legal credibility; the manner in which it makes its allegations and narrates the series of events that made up the final stages of the war; the recommendations of the report; and, very importantly, the impact all of this will have on the reconciliation process in Sri Lanka, via accountability and restorative justice. The seminar itself was to elaborate on the thinking behind the review, discuss the draft, and possibly include the conclusions of such discussions in the final review.

The seminar was therefore conducted in a series of panel discussions, each looking at a different aspect of the Darusman Report, and each made up of experts in that area. I was there mostly because I was part of the panel looking at the allegations made against the Sri Lankan Armed Forces in their conduct of the final operations to defeat the Liberation Tigers of Tamil Eelam. With me was Arjuna Gunawardene, a defence analyst, writer, and expert in suicide terrorism, and the session was moderated by Asoka Gunawardene of the Marga Institute. While this session began with presentations by both Arjuna and I, it focused around a series of key questions that we had been asked to examine. What I’m now going to do in this blog post is present our view in the form of a Q&A that will include our presentations and the questions that were subsequently put to us by the moderator and the other participants.

In the Darusman Panel’s account of the last stages of the war, and the events that lead to the allegations of war crimes, is the panel’s account complete, or if not complete, adequate, and has it been able to access all sources of information that are essential for coming to fair and just conclusions concerning the events and actions?

The account is certainly not complete, nor adequate, if it is taken as an objective narration of the events. But I believe it isn’t meant to be so, and is a document comparable to a policeman’s request for a search warrant, which sets out to show sufficient suspicion of guilt. However, since the report has been released to the public and is being treated and used as a historical account, its biases and subjectivity must be brought into account.

To be fair and objective, the panel would have needed to interview combatants as well as eyewitnesses to ascertain motive for some of the acts which are alleged to be criminal. It would need to examine the actual scenes of the crimes instead of merely examining photographs. Therefore, in Part I of the report (Mandate, Composition, & Programme of Work), Section D (Interaction with the GoSL), paragraph 22, the panel says that visiting Sri Lanka “was not essential to its work”, thereby confirming that an actual investigation was never its intention.

In spite of this statement, the laying out of the events takes the form of a narrative or historical account, suggesting that it is fact rather than allegation. Footnotes are given to previously documented statements or reports, but there isn’t any indication of where the other information came from. It is, of course, understandable that witnesses cannot be named at this stage, but it is still necessary to indicate what the capacity of an eyewitness was. Was he or she a civilian IDP, an NGO worker, or a journalist? Often, allegations of the use of artillery, cluster munitions, white phosphorous, etc are made without any indication of the source, or what expertise that source may or may not have in determining whether these were indeed the weapons and munitions used.

This is compounded further in the Executive Summary of the report which, for example says in the section Allegations Found Credible by the Panel, “Some of those who were separated were summarily executed, and some of the women may have been raped. Others disappeared, as recounted by their wives and relatives during the LLRC hearings.” By lumping together the unattributed allegations of rape and execution with those made by identified witnesses before the LLRC, the report gives the rape and execution allegations a higher credence which they may not deserve. There are many such similar examples, and it is a strategy subsequently used by the Channel 4 “documentary” Sri Lanka’s Killing Fields, in which footage of identifiable Sri Lankan soldiers committing shocking but non-criminal activities is shown alongside footage of unidentified persons committing obviously criminal acts, thereby implying that all the acts shown are criminal ones committed by identifiable SL Army personnel.

Has the panel examined all possible explanations and interpretations of the events and actions before coming to its conclusions?

The report analyzes certain events and draws conclusions which often do not take into account factors that the report itself acknowledges elsewhere. While legally, the actions of the Tigers may not have any effect on the culpability of the Government of Sri Lanka or the SL Army, in a report which must examine motive, this refusal to examine the impact of Tiger actions on those of the GoSL and the SL Army is indicative of an unwillingness to acknowledge the possibility that there might be motives other than those alleged by the report.

For instance, in the Executive Summary’s conclusion to the allegations, it says, “the Panel found credible allegations that comprise five core categories of potential serious violations committed by the Government of Sri Lanka: (i) killing of civilians through widespread shelling; (ii) shelling of hospitals and humanitarian objects; (iii)denial of humanitarian assistance; (iv) human rights violations suffered by victims and survivors of the conflict, including both IDPs and suspected LTTE cadre; and (v) human rights violations outside the conflict zone, including against the media and other critics of the Government.”

It then goes on to say, “The Panel’s determination of credible allegations against the LTTE associated with the final stages of the war reveal six core categories of potential serious violations: (i) using civilians as a human buffer; (ii) killing civilians attempting to flee LTTE control; (iii)using military equipment in the proximity of civilians; (iv) forced recruitment of children; (v)forced labour; and (vi) killing of civilians through suicide attacks.”

However, there is no attempt to acknowledge the fact that allegations against the Tiger such as “(i) using civilians as a human buffer” and “(iii) using military equipment in the proximity of civilians” would contribute hugely to “(i) killing of civilians through widespread shelling” and “(ii) shelling of hospitals and humanitarian objects”, as the SL Army is alleged to have done.

It is on very rare occasions that the Tiger actions are specifically mentioned in relation to SL Army action. For instance in paragraph 79 of the report it says, “During the ninth and tenth convoys, shells fell 200 metres from the road, and both the SLA and LTTE were using the cover of the convoys to advance their military positions,” and then goes on to say in paragraph 86, “The LTTE did fire artillery from approximately 500 metres away as well as from further back in the NFZ,” without acknowledging that it was this very tendency of the Tigers to fire artillery and other weapons from close proximity to the civilians that was bringing in counter-battery fire 200 metres away.

500 metres is not a huge distance in such a restricted battle space, and it is very possible for even a single shell, or two or three, that could have devastating effect on concentrated civilians, to fall 500 metres off target. One or two shells could kill and injure a hundred civilians, and seem to indicate deliberate intent even when it isn’t so intended. Continue reading “The Holes in the Darusman Defence — Examining the Probable Events”