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Wednesday, 13 August 2014 00:00 - - {{hitsCtrl.values.hits}}
The report has been prepared as a logical sequel to the initiative that was taken by a group of concerned citizens in early March 2014 to propose an alternative to the UNHRC resolution. The alternative that was proposed by the group recommended a course of action which would be directed not as an inquiry into allegations of war crimes but as a full and impartial evaluation of the conflicting and contradictory accounts of the war available from different sources.
There are various accounts of the last stages of the war. These include the version of the war given by the army in its report on the humanitarian operation, the advocacy-oriented documents of the international Non-Governmental Organisations (INGOs) such as Human Rights Watch, International Crisis Group and Amnesty International, which came out immediately after the end of the war and the more comprehensive eye-witness account of the (Jaffna) University Teachers for Human Rights (UTHR).
But of all these the reports that have received most attention are the two that have been submitted by two officially accredited sources – a panel appointed by the UN Secretary General (UNSG) and a commission appointed by the Government of Sri Lanka (GoSL) – the Lessons Learnt and Reconciliation Commission(LLRC). They present two sharply contrasting irreconcilable narratives of the last phase of the war against the LTTE. These reports provide the frame of reference for the international discourse on the war and the post conflict situation.
Given this context, the narrative and analysis that follows are organised as: How the war was fought; The accountability of the LTTE; The accountability of the Government and Sri Lankan armed forces; The Accountability of the International Community; The Accountability of the UN and its agencies.
The narrative that is presented draws heavily from accounts in the public domain. In addition to the primary sources of witnesses, available in the LLRC and UTHR, the chronology of the war draws on communiqués issued by the Ministry of Defence, news releases by agencies such as BBC, TamilNet and other media, and the accounts of NGOs, scholars and journalists. Some of the factual statements are taken verbatim from some of the compilations available in the public domain.
The conflicting narratives
The GoSL launched the offensive in the Wanni in early 2008 with a clear military objective of defeating the LTTE fully and finally. The operation was aimed at recovering all the territory occupied by them, completely destroying their military capability and the illegal administrative apparatus they had established in this territory, and freeing the population who were forcibly held captive by them.
The international community did not at any stage contest this position. The group of western powers who had backed the ceasefire accepted the necessity of the war while cautioning the GoSL on the major humanitarian risks that the war entailed. The statement by the President of the UN Security Council issued a few days before the end of the conflict recognised GoSL’s right to combat terrorism, condemned the LTTE and did not pass any strictures on the GoSL except reminding it of its own unilateral commitment (given to India) not to use heavy weapons. It urged the LTTE to lay down arms, surrender and let the human shields go to safety (both of which the LTTE refused). It took note of the humanitarian efforts of the GoSL to look after civilians in the conflict zone.
The UNSG’s panel (PoE) while it does not contest the GoSL’s right to conduct the war, alleges that the war was conducted by GoSL not only with the objective of eliminating the LTTE but also with the deliberate intention of killing a large number of Tamil civilians. In the process, it claimed that the GoSL committed a variety of war crimes, including indiscriminate shelling of the NFZs, targeting civilians in the NFZs, shelling hospitals and non-military locations, denying food and medical supplies to the civilians trapped in the war zone, extra judicial killings of surrenders and involuntary disappearances.
The LLRC’s narrative of the war presents detailed account of the progress of the war, the way in which the civilians were trapped into the NFZs and the efforts made to free the civilians. The LLRC describes the war in the Wanni – the part of the Northern Province that had been held by the LTTE – as the necessary sequel to the campaign to defeat and evict the LTTE from the Eastern Province. This part had been successfully completed with minimum civilian casualties. It was the same army – which had acquitted itself commendably, minimising civilian casualties and leaving no room for allegations of war crimes – which conducted the Wanni operation. The report describes the methods employed by the LTTE and the dilemmas facing the Sri Lanka Army (SLA). The unfolding of the narrative and the LLRC’s explanations and interpretations of the events become an implicit refutation of the interpretations that the UNSG’s panel (and later IPEC et al) give to the strategy and actions of the GoSL and SLA.
Divergent narratives
Several narratives of the war currently exist. The first was the government’s initial version put forward by the Ministry of Defence, which provides details of the nature of the military operations, but does not deal with issues of accountability per se. The UNSG’s PoE provides a vastly different narrative, which alleges that the war was conducted by the GoSL not only with the objective of eliminating the LTTE but also with the deliberate intention of killing a large number of Tamil civilians.
The LLRC’s narrative of the war presents a detailed account of the progress of the war, the way in which the civilians were trapped in the NFZs and the efforts made to free the civilians. This narrative denies the existence of systematic violations of international law, but acknowledges that some violations had taken place. Finally, the UTHR provides a detailed account of events during the war, with a particular emphasis on the last stages. This narrative paints both parties as equally culpable for gross rights violations and abuses.
What emerges from a detailed study of these narratives is that the war was fought in the most extraordinary circumstances in which a large civilian population was held forcibly within a battle zone and deliberately positioned to gain military advantage. The story that unfolds is one in which the LTTE employs every method at their disposal to resist the SLA and the SLA attempts to overcome every obstacle that stands in the way of achieving their military objective of killing or capturing the LTTE leadership. The issues of accountability and the norms of distinction and proportionality need to be set within this specific context. Thus the accountability of actors must be assessed on the basis of this unique context.
Ambiguity in IHL
The primary aim of the notion of accountability in the conduct of hostilities is the protection of civilians and the regulation of the conduct of hostilities on the basis of a balance between the rights of civilians to protection and military necessity. Yet the context of the fighting during the last stages of the war points to the inherent problems in defining the categories that the framework of accountability addresses.
Thus the critical failure of existing IHL to provide a precise definition of the terms “civilian” and “civilian population”, and a similar lack of clarity with regard to the term “take direct part in hostilities” have contributed to a substantial degree of ambiguity. Vital terms which have a bearing on core IHL principles such as the principle of distinction is left to be dealt with largely on a case by case basis.
Accountability of the LTTE
Regardless of whether the perpetrators are alive or not, a comprehensive investigation into the LTTE’s crimes is essential for a number of reasons. A full investigation of LTTE crimes will provide more detailed information on how, when and for what purpose the crimes were committed and how they are related to the actions that were taken by the SLA and the allegations of crimes committed by the SLA. It will also shed light on the complicity of other parties in LTTE crimes including those who have fled the country.
Finally, such an investigation may enable the international community to re-examine how counter-terrorist military operations could be conducted to deal with the extreme conditions such as those created by the LTTE in the last stages of the war. This report concludes that a comprehensive inquiry into LTTE crimes has not been undertaken to date, and ought to be undertaken for the reasons enumerated above.
Accountability of the Government
In considering the GoSL’s accountability for acts and omissions during the war, it is important not to separate each action or omission from the context of the particular situation of the attack. To do so, is to place the action or omission in a reconstruction of the circumstances of the combat action that is only partial and does not take into account all the accompanying circumstances.
The alleged violations must therefore be placed in the context of the concurrence of the strategic interplay of such actions, omissions and inadequate actions where each party seeks a military advantage. In any event, where state and non-state actors are involved in a conflict, the expectation of a non-state actor to observe certain human rights standards does not in any way lessen the state’s primary responsibility to protect and fulfil human rights.
On the matter of NFZs, the totality of the situation – i.e. the LTTE strategy of continuing to place mobile military artillery amidst civilians, the aggressive conscription of civilians including young children within the safe zones by the LTTE, the continued provision largely through coercion of a range of support services by civilians to the LTTE establishment, and the LTTE cadres fighting in civilian clothes – challenged the full realisation of the humanitarian objective underlying the creation of NFZs and demarcation of safe corridors for civilians to move out of the theatres of combat. The civilians who would have expected conditions of safety were thus placed in jeopardy while neutralising LTTE gun positions was necessary to preserve the NFZ and pursue the military objective. Therefore the proportionality of the ground reality that emerged in engaging with the LTTE in NFZs must be placed within the context of the overall military objective of the GoSL.
On the question of intentionality, it would appear that to allege the GoSL’s intent in the conduct of the military campaign as being to persecute the population of the Wanni or being primarily directed against the civilian population is to deliberately ignore the actual circumstances that exposed the civilian population to the immense suffering they underwent during the course of the war. In any event, the intent of the government must be gathered from the proportionality of its actions. On the issue of proportionality, it is not possible to assume a simple arithmetical relationship between the numbers of civilian casualties and the proportionality of the means and methods of war during the last stages. Hence a precise and credible assessment of causalities, which no mainstream analysis has succeeded in doing thus far, must precede a genuine evaluation of the proportionality of the GoSL’s military actions.
The allegations of specific violations committed by the GoSL include the denial of food, and medical facilities and supplies to civilians. The supply of food was more than a question of the estimation of numbers. There is no doubt that supplies were adequate until January 2009. In fact with buffer stocks and locally available produce there is high likelihood that a surplus was available that would have been carried over on to the final stages of the war. Hence the real issue pertaining to food distribution was perhaps the obstruction of the dispatch of relief to civilians. It is a question about logistics in the supply and distribution. It is important to note that the civilian population in respect of whom humanitarian relief was targeted were held hostage by the LTTE, and were prevented from leaving the NFZs. The period during which humanitarian supplies were affected was precisely the period when the conflict entered the NFZ – after January 2009. Prevention of civilians from moving out of the conflict area amounted to a denial of humanitarian assistance, as the civilians were prevented from accessing available supplies. Hence the denial of humanitarian assistance must be assessed in light of the LTTE’s actions of preventing civilians from leaving the conflict zone.
Specific allegations were also made with regard to the treatment of IDPs and surrendees, extrajudicial killings and disappearances, and torture, rape and sexual abuse. The narrative of the LLRC does not indicate evidence of systematic violations. Yet conflicting accounts continue to emerge from witnesses, which warrants further investigation into individual cases. The obligation on the part of the Security Forces requires verification that targets are in fact military objectives and that for each attack a legitimate military objective is identified. All narratives of the war agree that the LTTE had gun positions within one kilometre radius of safe area demarcated for most hospitals. Hence there was a consistent policy on the part of the LTTE to comingle with civilians, which dramatically changed the nature of the safe zones. There is also the question of a medical object displaying distinctive emblems of the Geneva Conventions in conformity with international law being allowed to be merged into the means and methods of combat operations of the LTTE.
The testimony recording the LTTE disregarding ICRC’s request to refrain from driving or parking combat vehicles in front of the Puthukudiyiruppu hospital is a case in point indicating the dilemma of targeting. The proportionality of the means and methods used by the Security Forces must be assessed in this context.Its apt to conclude quote A US diplomatic from Geneva dated July 15, 2009 signed by the then Geneva based US ambassador Clint Williamson. The cable addressed to the US State Department was based on a confidential conversation Ambassador Williamson had with the then ICRC head of operations for South Asia, Jacque de Maio on July 9, 2009.
Ambassador Williamson wrote: “The army was determined not to let the LTTE escape from its shrinking territory, even though this meant the civilians being kept hostage by the LTTE were at an increasing risk. So, de Maio said, while one could safely say that there were ‘serious, widespread violations of international humanitarian law,’ by the Sri Lankan forces, it didn’t amount to genocide. He could cite examples of where the army had stopped shelling when the ICRC informed them it was killing civilians. In fact, the army actually could have won the military battle faster with higher civilian casualties, yet that chose a slower approach which led to a greater number of Sri Lankan military deaths. He concluded however, by asserting that the GoSL failed to recognise its obligation to protect civilians, despite the approach leading to higher military casualties.”
Accountability of the international community and UN
As far as the accountability of the international community is concerned, the extraordinary conditions that had developed during the last stages of the war provided a test case for developing effective modalities for the international community to deal with extreme situations in which a terrorist group was violating IHL on a massive scale. A firm foundation of mutual trust is needed between the international community and the state concerned, and such trust requires well-defined codes of conduct on the part of the international community, the UN and the national government.
Such a foundation was obviously lacking in the Sri Lankan case and in probability all three parties – the Western nations, the UN and the GoSL – contributed to that lack. A full inquiry into all the circumstances that led to that situation could help to define the codes of conduct that each party must observe in dealing with extraordinary and extreme cases such as the LTTE in Sri Lanka. The findings and recommendations coming out of such an inquiry would consequently strengthen the international framework for the implementation of IHL and IHRL and R2P.
Finally, UN accountability must also be carefully considered. What emerges from an analysis of UN decision-making during the period of review is a distinct institutional culture of trade-offs. The Petrie Report points to this culture and observes that in the case of Sri Lanka, the UN staff consistently preferred to err on the side of caution in responding to the crisis (Petrie Report, para.75). This general indecisiveness was fundamental to the UN failure on numerous counts. In reviewing the UN’s approach to similar crises in the future, it is crucial that the deployment of competent personnel, with appropriate experience and expertise and with the capacity to think strategically within the context of armed conflict, be prioritised at all levels. The authors must be lauded presenting for the first time a 360 degree overview of the war. Until now the focus has focused on allegations of war crimes if any committed in SL by the GoSL or LTTE. The UN has likewise sought a similar focus. The 3rd narrative proposes: a full and impartial evaluation of the conflicting and contradictory accounts of the war available from different sources including-
After the initial phase of the operation the actions of the LTTE in using the civilians as shield and hostage placed new demands on the government and the army. How did the government meet this challenge? Could the civilians have been separated from the LTTE before they were compelled to move into the narrow coastal zone? The search for the truth about the hostage situation would have to go further. Analysts of the situation have pointed out that the civilian population consisted of a hard core of about 15% to 20% who were strong supporters of the LTTE and that the expectation that foreign countries might intervene encouraged the LTTE to adopt the hostage strategy. Could the impossible situation that arose in the coastal area have been averted? Could the international community have been more active at this point and provided strong material and moral support to the Sri Lankan government to rescue the civilians? Examining these and similar issues would mean a critical evaluation of the operation and eliciting the lessons to be learnt from it.
After the long cycle of conflict and violence which lasted for more than five decades, it would appear that Sri Lanka has ended where it began its post-independence journey. It has returned to the same intractable realities of the majority- minority relationship that the country faced at the time of independence – a relationship in which a permanent majority and permanent minorities are struggling to arrive at a national consensus on the key issues of equality, proportionality and an equitable sharing of power and resources.
