Private sector’s critique of Advisory of UN Panel of Experts­ - Part 2

The Sri Lanka Private Sector Assessment of the Report to the United Nations Secretary General by the Panel of Experts on accountability in Sri Lanka was released on Thursday. The private sector critique is a compilation of views raised by a private sector group in Sri Lanka who are concerned about the content of the advisory of the UN Panel of Experts and its possible impact on inter-ethnic confidence building and national reconciliation.

The assessment has been endorsed by four organisations – the Ceylon Chamber of Commerce, the Federation of Chambers of Commerce and Industry, the National Chamber of Commerce and the Joint Apparel Association Forum, which collectively represent a significant majority of Sri Lanka’s businesses.

The critique is to be sent to the relevant agencies of the UN and circulated among diplomatic missions.

The Critique seeks to answer three questions: A) Has the Panel of Experts (POE) overstepped its mandate in compiling an advisory, which appears to resemble a product of a fact finding inquiry, including factual conclusions on disputed facts? B) Are the conclusions drawn by the POE just and fair? and C)  Does the POE demonstrate bias?

The Daily FT yesterday via a double page spread featured most of the Critique and today we feature the remainder with the conclusions and footnotes.

Does the POE demonstrate bias?

56 In addition to the instances noted above which reflects bias, the following two factors may demonstrate that the POE has pursued an agenda based exercise in carrying out its task.

57 The POE takes to interpret events refusing to take information at its face value unlike an independent impartial body. For example it reports that “the Government regularly dropped leaflets urging civilians to leave the area”.116 Instead of taking this as evidence of the Government’s declared intent to minimize civilian casualties which is the most proximate conclusion any reasonable person could draw, the POE goes to great lengths to rebut that inference.117

58 Having acknowledged the reasons why the civilians could not have left in response to the Government’s leaflets, such as “LTTE pass system”, that most people were reluctant to leave as “Vanni was their home” and many had moved with the LTTE since 1995,118 the POE speculates further that “from experience” civilians feared what would happen to them if they crossed over to the Government held areas, feared internment, white vans, being raped or tortured by the SLA.119 The POE fails to explain the basis for this conclusion.

59 The agenda of the POE to conclude adversely against the GOSL regardless of the facts placed before them is easily discernible in the manner it reaches its conclusion on the civilian casualty figures. As demonstrated throughout the advisory, the POE was extremely receptive to information emanating from UN sources and drew wide conclusions solely on the basis of information received from the UN staff.120 Yet, in order to escalate the numbers of civilian deaths in the conflict the POE does not hesitate to reject official estimates on civilian casualties emanating from UN sources, without reasonable grounds.

60 The UN Country Team for Sri Lanka “in a document that was never released publicly” estimated a total figure of 7,721 killed and 18,479 injured from August 2008 up to 13 May 2009, after which it became too difficult to count.121 These figures were collated pursuant to a survey conducted via local networks within the war zones.122 The High Commissioner for Human Rights made a public statement that 2800 civilians may have been killed and more than 7000 injured since 20th January, many of them inside the NFZs.123 It is not clear when the High Commissioner made this statement, although the response by the Government124 indicates that the statement must have been made on or before 15 March 2009. Since the estimates provided by the UN Country Team are for the period up to 13 May, it can reasonably be concluded that the figures provided by the OHCHR are included therein.

61 Regardless of the above official estimates, the POE starts off its analysis with the statement that “there is no authoritative figure for civilian deaths or injuries in the Vanni in the final phase of the war”.125 Then it adopts a mechanism to escalate the figure by noting that while the number calculated by the UN Country Team provides “a starting point, but it is likely to be too low”.126 The POE concludes that “in reality, the total number could easily be several times that of the United Nations figure”.127

62 The POE lists two factors that could have rendered the casualty figures “several times” higher than the UN figure.128 The POE argues that firstly, the UN figures only account for the casualties observed in the LTTE-controlled areas and many casualties may not have been observed at all.129 Unless there is an allegation that any one of the factions shelled/shot civilians in areas under the control of the GOSL, the civilian casualties in the final phase of the war ought to have been within LTTE-controlled territory. And considering the extensive net-work of observers utilized in the UN survey within the LTTE-controlled territory,130 the figures observed ought to be taken as authoritative, leaving perhaps a narrow margin for the unaccountable.

63 The second factor contemplated by the POE is indeed reasonable.131 The number of civilian casualties after 13 May must have grown rapidly considering the intensity of the fighting and the narrow strips of land in which the civilians were trapped. Yet what the POE has failed to take into account is that the UN figures are for the period August 2008 up to 13 May 2009, a period of nine months during which there was intense fighting including shelling by both parties. In such context to guesstimate that the figures for the last five days of the operation could be “several times” higher than the total figure for nine months amounts to a wild speculation without any reasonable basis.

64 The POE refers to numerous baseless formulas adopted by “some”132 and imprecise or inflammatory language used by the UN in the public domain such as “heavy toll”,133 “unacceptably high”134 and “blood bath”135 to justify its conclusion that the figures ought to be “several times” higher than the UN Country Team estimates. It then makes a quantum leap and asserts that “multiple sources of information indicate that range of up to 40,000 civilian deaths cannot be ruled out at this stage”.136

65 It is significant that the POE did not think it fit to take seriously figures provided by none other than the UN Country Team consequent to perhaps the only proper and official survey conducted into this matter and has opted to rely on unnamed “multiple sources”. Even if all the factors listed by the POE as reasons for escalation of the casualty figures are taken on board, still it is highly improbable that the final civilian casualty figure could be over 500% more than the UN estimate (40,000 as opposed to 7721). Yet, the POE’s preference to rely on such an improbable figure rejecting the results of an authoritative survey by the UN team perhaps reflects the very essence of the “expert” exercise it has carried out.

66 Having escalated the figures as aforesaid, the POE then draws an untenable conclusion that “most civilian casualties in the final phases of the war were caused by Government shelling”.137 A conclusion of this nature could only have been made pursuant to a survey of the civilian casualties and the causes of their death. Such a survey would also require an assessment of the civilian/combatant status of the deceased considering the POE’s own finding that during the final phase of the conflict the LTTE cadre was indistinguishable from civilians as they were not always in uniform.138

    Considering the POE’s own claim that there is “no authoritative figure of civilian deaths”,139 it begs the question how the POE arrived at this conclusion.

67 The POE allocates an entire section to an analysis of the effectiveness of the LLRC,140 concluding that the LLRC “is deeply flawed”.141 It was imprudent for a panel of experts to express a judgment call of this nature prematurely without waiting to consider the report of the Commission.

68 The POE deals an egregious blow to any civilized individual/ body that respects human rights by describing the LTTE “as the most disciplined and most nationalist” of the Tamil militant groups.142 The LTTE has been described by the US Federal Bureau of Investigation (FBI) in its January 10, 2008 report as one of the most dangerous and deadly extremist outfits in the world. They are known to have ‘inspired’ terrorist networks worldwide, including the al-Qaeda and are also credited for introducing suicide bombing. It has been proscribed in 32 countries including India, U.S.,U.K. Canada, Australia and the EU. It has decimated the alternate democratic Tamil political voices and had held at ransom many liberal disenfranchised Tamil speaking citizens who would have preferred a political resolution to the conflict. It held at bay for three decades an entire nation and posed a serious international risk with its terrorism training, human and drug trafficking and arms dealing. The LTTE has been convicted by Indian Courts for the assassination of the Indian Premier, Rajiv Gandhi and as such, it is perhaps one of the very few, if not the only terror group to have assassinated a head of state of another country. Thus to describe the LTTE as “disciplined”, particularly in the backdrop of the POE’s own findings that the LTTE killed civilians who were attempting to flee the area,143 forcibly conscripted children,144 used civilians as “cannon fodder”,145 forced the already traumatized civilians to dig trenches146 etc. amounts to a grave blow to the very principles of humanity and the dignity of all those who have suffered at the hands of the LTTE.

69 This statement has shocked not only the Sri Lankan nation but also members of the international community. For example speaking on the POE’s findings, the Russian Ambassador to Sri Lanka, H.E. Vladimir Mikhaylov observed: “And to describe the LTTE as the most disciplined and nationalist militant group, it is very strange to describe not as a terrorist organization which it was recognized by many governments all over the world. I may say that immediately I was reminded of the SS Squads of Adolf Hitler was even more disciplined. But it is not the major characteristic of such organizations”.147

    Conclusion

70 All wars are intrinsically evil and the civilians are inevitably innocent victims of war. As such, all parties to a conflict must abide by the cardinal principle that civilians and civilian objects should not be the object of attack in the conduct of hostilities. It is thus critical that an international authority such as the United Nations oversees the arena of IHL to ensure universal compliance. But if the UN system is to remain relevant and realistic in a post conflict discourse, it must be consistently fair in its censure. Time and again this balance is lacking in the POE advisory.

71 The post conflict progress made by the peoples of Sri Lanka is evident. According to both the UNESCAP in its’ latest economic and social survey as well as the Asian Development Bank, Sri Lanka’s post-conflict economy is expected to grow at 8% in 2011. Last year’s growth (2010) at over 8% was the highest post-independent growth rate for Sri Lanka. The country has now reached middle income status and the GDP per capita is expected to reach US $ 4000 by 2016. It is envisaged that investments will be increased to about 33 per cent of the GDP with sustained commitment of public investment of 6-7 percent of GDP to support increased private sector investment. The IMF has classified Sri Lanka as an “Emerging Asian Economy” along with China, India, Thailand, Philippines, Malaysia, South Korea, Indonesia, Hong Kong and Taiwan. Sri Lanka is also undertaking important infrastructure development projects, integrating all parts of the country and expanding our connectivity to the world. Sri Lanka has given priority to the development of areas of the country which have lagged behind due to conflict and neglect.

    With the return of post-conflict stability, remittances from Sri Lankan workers overseas as well as income from tourism has risen. Many Sri Lankans who had sought refuge in western capitals are now returning to the North and East. In 2010, the Sri Lankan Stock Market was recorded as one of the fastest growing Stock Exchanges in the world.

72 For several decades, the LTTE had prevented the population of the North & East from exercising their democratic rights including the right to participate in free and fair elections. With the end of the conflict, the population living within the formerly LTTE controlled territory had the opportunity to elect their own local governments. In the recent most elections held in the North, the Tamil National Alliance swept into power. Additionally, in other parts of the country stringent security controls, such as military barriers and security check points have been greatly relaxed, enhancing people’s freedom of movement and establishing a sense of personal security and wellbeing.

73 Sri Lanka’s Private Sector, has contributed greatly in steering the nation’s economy through turbulent periods spanning over three decades. The resilience of the Private Sector backed by sound economic policies ensured that the country did not buckle under the pressures of waging a three-decade war against terrorism, a southern youth uprising and a devastating Tsunami, and spared the population from the ravages of war, such as famine, disease and degradation of the entire social structure as experienced by other war-torn nations. Economic stability will be pivotal to reparative justice and sustainable regeneration. Confidence building will be critical to investment appetite and the pace of change. The UN and the International Development Community must give peace a chance.

74 In this backdrop, the Sri Lankan Private Sector has observed with deep concern the exchanges between the GOSL and the international community on the issue of accountability without a resolution. While the quandary snowballs out of proportion, the negative impact of the measures taken by the international community so far to censure the GOSL is felt not at the level of the GOSL but at ground level by the citizens of the country. For example deprivation of the GSP Plus taxes by the EU is felt at the level of the small holder apparel manufacturers/exporters and the contemplated US economic sanctions, if implemented will greatly affect the population.

75 It is in this context that we commenced this critique: to explore its merits, demerits and the impacts on the future of sustainable peace, reconciliation and racial equity. The UN surely knows that a bridge of trust can only be built on commonalities and shared aspirations. Demonizing the GOSL war strategy will only fester old wounds. It is time to move on in constructive ways. The interim note of LLRC has some realistic suggestions. It is far from perfect, but it may be a step in the right direction.

76 We believe that the only pragmatic and sustainable mechanism that will have collective agreement amongst the nation’s fractured communities and its incumbent leaders, is one that uses a diverse representation of domestic public, private and ethnic composition. Sri Lanka has the intellectual and moral capital to formulate a process that is equitable and conforms to International standards and conventions and has buy- in with the people for a sustainable solution that does not flare up again.

77 It is our view that if the UN or any other body has concerns over a certain lacunae in the response and preparedness for accountability within the Government -the most appropriate mechanism for the crafting of this process is a public- private partnership with both civil society and media as part of the stakeholder participation. Further a capacity building of existing mechanisms such as the LLRC or a new body with appropriate oversight may be more effective, if we can focus on ensuring it is resourced with capable, committed and independent leadership of moral and intellectual stature. A tall order but not an impossible one. The people of Sri Lanka can and will rise to this momentous chance at true and lasting peace and reconciliation.

Footnotes

1 Para5.1 of the advisory (paragraph numbers and foot notes cited hereinafter refer to

paragraphs and foot notes in the advisory unless otherwise indicated)

2 Para5.2

3 Para51; see also para21

4 Para9

5 For example see para176

6 For example, see “Recommendations 3 (B): “The Government of Sri Lanka should issue a public formal acknowledgement of its role in and responsibility for extensive civilian casualties in the final stages of the war”, executive summary, page viii; “The Government systematically shelled hospitals… some of them repeatedly”, para176 (b); “The Government systematically deprived persons ..humanitarian assistance .”, para176 (c ); para251; foot note 127

7 Eg.Para193: “credible allegations point to the murder of civilians in widespread shelling of an indiscriminate nature by the SLA”; para247

8 Eg.Para177

9 Page ii of the executive summary, para2

10 Page ii of the executive summary, para3

11 Para49

12 id

13 Para52

14 id

15

Id

16 Paras52 and 54

17 Paras149,150, 153; see discussion at paras46-49 of the PSC below

18 Para23

19 See para23

20 Para51

21 See para5

22 Eg.paras63, 64

23 Para187

24 Paras347 - 352

25 Para347

26 Para350

27 Para351

28 Para347

29 Eg.paras100, 101, 104, 105, 176(a)(b)

30 Para60

31 Executive summary page ii, para3

32 Para81

33 Executive summary page iii, para3

34 Executive summary page iii, para4

35 Executive summary, page ii, para3

36 Executive summary, page ii, para5

37 Executive summary, page iii, para1;

38 Foot note 127

39 Para65

40 Para60

41 Para88

42 Para25

43 Eg.paras80 and 81

44 Para205

45 id

46 Paras176 (a)(b)

47 See ICRC publication, “How does Law protect in War?, Cases, Documents and Teaching

Materials on Contemporary Practice in International Humanitarian Law”, page 68

48 Arts 51 (2), 52-56 and 85 (3) of Protocol I and Art. 13 of Protocol II

49 Arts 48 and 52 (2) of Protocol 1; This principle reflects customary international law

50 Art. 28 of the Geneva Conventions IV and Art. 51 (7) of Protocol I

51 Art, 52 of Protocol I; See ICRC publication, “How does Law protect in War?, Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law”, page 167

52 See ICRC publication, “How does Law protect in War?, Cases, Documents and Teaching

Materials on Contemporary Practice in  nternational Humanitarian Law”, page 145

53 Prosecutor vs, Galic, IT-98-29-T, para58

54 Eg.Paras86,94,97,108,109,177(c)

55Paras177(c ); 239

56 Eg.paras86,94,97,99,112,177(a)(c)

57 Para97

58 Paras84, 85, 86

59 Para80

60 Para86

61 Id

62 id

63 Paras84, 85

64 For example see the cases of Prosecutor vs. Galic, IT-98-29-T, paras336, 344, 395-396, 405-406 and Prosecutor vs. Strugar, IT-01-42-T, paras71-72, 196-204 for the type of assessment required in determining the legality or illegality of an attack

65 Ft.nts. 112, 114, 115, 118, 1212, 122

66 Ft.nts.113, 114,

67 Ft.nts.111,118,119

68 Para94

69 id

70

Id, see also para95

71 Para94

72 id

73 Eg.para97:“LTTE leadership had a complex network of bunkers and fortifications and where it ultimately made its final stand”, They established a series of defensive bunkers “throughout the zone”, positioning mortars and other artillery among the IDPs

74 Para97

75 id

76 See executive summary page iii, para3, which reflects the POE’s alertness to the fact, yet its failure to factor it in when determining the intent behind SLA artillery fire

77 para101

78 Paras115- 123

79 Para119

80 Paras117, 120, 121

81 Para120

82 Paras115, 120

83 Paras117, 119

84 Para119

85 Para117

86 Executive summary, page iii, para4

87 Eg.Paras91, 105

88 For example see Prosecutor vs. Galic, IT-98-29-T, paras328, 334,335, 341, 377 378-380, 393;

Also Prosecutor vs. Dragomir Milosevic; Prosecutor vs. Strugar; Prosecutor vs. Ante Gotovina

et al

89 See Prosecutor vs. Galic,IT-98-29-T, paras340, 402 and Prosecutor vs, Strugar,IT-01-42-T, paras

63, 67, 106 for the type of assessment required

90 Para119

91 It is not an unknown phenomenon in conflicts, where a party attacks civilians within territory of its own control for propaganda purposes. For eg. see Prosecutor vs, Galic IT-98-29-T Para

206.

92 Paras149, 150

93 id

94 Para149

95 Foot note 87

96 Eg.Paras149, 150, 153

97 Para149

98Executive summary page iii, para2

99 Para152

100 Para153

101 Para158

102 Eg.para176(d)

103 Eg.Para153

104 Eg.Para150

105 Para119

106

id

107 Eg. Footage broadcast by ITN on or about 16th May 2009

108 Para65

109 Para74:On 8 Sept 2008, the GOSL requested the UN and the INGOs to leave the area as it

could not guarantee their safety any longer.

110 Para74

111 Para76

112 paras84, 85, 86 and 87

113 Para85

114 Paras87, 91

115 Foot note 41

116 Para71, see foot note 28

117 See para71

118 Para71

119 id

120 Eg.Paras84-87

121 Para134

122 Id

123 Para136

124 Reported at foot note 79

125 Para132

126 Para135

127 id

128 id

129 id

130 See para134

131 Para135

132 Para133

133 Para136

134 id

135 Foot note 79

136 Para137

137 Executive summary page ii, para4

138 Para97

139 Para132

140 Paras290-345

141Para345

142 Para31

143 Para 177(b) & (f)

144 Para 177(d)

145 Para 177(a)

146 Para 177(e)

147 http://www.news.lk/features/political/18011