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
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. Continue reading
There’s been a lot of discussion and drama around the UN Secretary General’s advisory panel on Sri Lanka, it’s validity, necessity, and legality. These have ranged from newspaper editorials to street farce. Rather than adding my own narrative to this, I thought I’d reproduce some of the conversations that have been taking place online. This particular one emerged in the comment thread of one of Indi’s posts on the matter, and amongst other things, discusses Star Trek. The debate can be seen in whole on that blog, but I’ve just selected a portion of it that I think highlights some of the viewpoints, as well as a lot of the fallacies. It often gets off the topic, but in order to avoid being accused of manipulation, I haven’t edited any of the comments.
Mahinda: This whole mess was created by our dearly beloved Mahinda & Co. in the run up to the Presidential Elections.
Our General (who has a bit of a bad habit of speaking his mind sometimes, even when it may not be appropriate) mentioned to Indi’s boss, the Jansz woman, that he had information that our friend Gota issued a silly order to a certain Major General to “shoot any LTTE personnel, even if they were trying to surrender waving white flags”. The General went on to add that no such thing occurred on the ground, and that he himself took responsibility for actions of the Sri Lankan Army during the final stages of the war, as the serving Commander of the Army. I think the General was just getting involved in a spot of character assassination here, and to try and show the public what sort of man our Gota is, in his opinion. Our Frederica immediately got extremely wet, sensing an opportunity to flog a few more copies of her rag with a controversial exclusive. She wrote and published her infamous story, presumably omitting bits she felt would have lessened the impact of the controversy. The General and his media team, understandably upset, issued a correction, stressing that the General was certain, as a Commander who had direct contact and control with and over troops on the ground, that no acts in contravention of the Geneva Convention were committed by the SL Army. Frederica made some noises to the effect that she had a tape recording of the interview and that he actually said war crimes had been committed, but seeing as she has failed to produce the said tape, I suppose we can write this off as a little white lie.
Philip Alston also got wind of the Jansz woman’s controversial article, and was obliged to contact the Sri Lanka Ministry of Disaster Management and Human Rights regarding the article. The Secretary of the said Ministry at the time, (who was, unusually for a Secretary to a Sri Lankan Ministry, an Oxbridge educated, presumably intelligent man) promptly replied to Alston saying that the article was erroneously published and that the General had issued a correction claiming that no one waving a white flag trying to surrender was shot by SL Army troops.
However, Team Mahinda & Co. had other ideas-they retracted the reaction of the Secretary to the Ministry of Human Rights and Disaster Management (which would have solved the whole problem) and turned the issue into a political drama to dupe the easily fooled masses. They even went as far to publish full page ad’s of a noose with the caption “don’t vote in the man who will send our brave soldiers to the gallows”. And lo and behold, the highest ranked serving Officer in the history of the SL Army, the man credited with ending the war, became a traitor who betrayed the country (this was similar to the process by which Ranil, the man who convinced Karuna to defect along with his eastern LTTE types, which weakened and lead to the defeat of the LTTE, became a “deshadrohiya”). Continue reading