South Asia Analysis Group analyses Darusman Report

Thomas Jefferson’s caustic comment, “whenever you do a thing, act as if all the world were watching,” unwittingly defined the situation of present day Sri Lanka with a prescience that appears lost on much of the current analysis pertaining to this conflict.

The rivalry there between the Sri Lankan Government (Sinhala) on one side and the Tamils on the other has thus far defied a solution. The former, with significant military strength still in the field, refuse to agree on a political settlement with the Tamils and continues with the militarisation of Tamil society.

The latter, with the support of its sympathisers (Jefferson’s “world”) insist that the problem will remain unsolvable until the Sri Lankan Government pays dearly for its aggression and self governance is established in occupied Tamil land. This argument has become such a cause celebre that any semblance of rational debate has been precluded.

The UN Expert Panel Report was given to the Sri Lankan Government a few weeks ago for their comments, with an offer to publish its response to the panel’s finding alongside the report. Regrettably, and quite predictably, the Government dismissed it as “flawed”.

While the Government claims that it pursued a policy of zero civilian casualties, the panel report sketches a very different picture, finding widespread violations of international human rights and humanitarian law on both sides, but particularly on that of the Government.

The Experts Panel Report

The controversial document was the result of a 10-month process of gathering evidence by the three-member panel, which was not allowed into Sri Lanka. The panel was set up to advice Ban Ki-Moon (UNSG) on accountability issues relating to the final stages of the war.

The report covers the circumstances surrounding the large stages of the war. In that respect the panel has based its judgement on the materials available to them. There is vast amount of material still to be collected, which is in the public domain including eye witnesses’ accounts of people who witnessed the war from within. There are several reports in the possession of international NGOs published and unpublished.

The Panel Report is the first opinion based on the available evidence of that period. Their judgement is a damning indictment of the Rajapaksa regime and the infectiveness of the UN as an organisation in protecting the civilians of Mullivaikal.

The report is at http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf.

It focuses on alleged war crimes committed by both the Sri Lankan armed forces and LTTE during the months leading up to the war ending in May 2009. Numerous allegations of war crimes by both sides were circulating at the time and have emerged since.

During that final stage of combat very few of the accusations could be independently verified as journalists and most aid groups were barred from the region. This report paints a brutal image of the final offensive on the LTTE held enclave between January and May 2009. They have found the allegations credible and could lead to formal charges if investigated.

Civilian deaths

Mullivaikal, a thin strip of land, was the brutal theatre of war during the closing phase of the conflict. Thousands of civilians were hemmed in as the Government battled LTTE rebels fighting for a separate homeland. In March 2009, the UN High Commissioner of Human Rights Navi Pillay described the level of civilian deaths as unacceptable and as “truly shocking,” and warned it could reach “catastrophic” levels.

The Government was accused of repeatedly shelling safe zones set up to protect civilians. The LTTE were accused of holding civilians as human shields and firing on those who tried to flee.

The report now says it believes tens of thousands of civilians were killed in that final stage, adding that most civilian casualties in the final phases of the war were caused by Government shelling.

Conduct of war

Sri Lanka’s Government was accused of using heavy weaponry and satellite appeared to show shelling damage in a Government-designated “no fire zones” for civilians. The report claims the Government shelled food distribution lines and near ICRC ships coming to pick up wounded civilians from beaches.

It describes prisoners being shot in the head and women raped, while the LTTE used 330,000 civilians as human shields, and shot those who tried to escape. The report also alleges the forced recruitment of children by LTTE.

Hospital shelled

The report accuses the Government of “systematically” shelling hospitals on the front line. In May 2009, sources in one hospital in Mullivaikal claimed that Government forces shelled it, killing dozens of people. At the time, the Sri Lankan Government denied the Army had caused civilian casualties but said it had pierced rebel defences.

After the conflict ended, a group of doctors who worked in Sri Lanka’s rebel-held war zone were arrested on suspicion of collaborating with LTTE. They later retracted their accusations against the government.

Extra-judicial killings

After the war more allegations emerged. Several videos obtained by Britain’s Channel 4 news purported to show the extra-judicial killing of what were thought to be captured Tamil civilians and/or LTTE cadres who were summarily shot. The pictures also showed several bloodstained and blindfolded bodies, Sri Lankan Government rejected the videos as fabrication.

The UN said independent experts concluded the footage was authentic, but the Government rejects this.

Civilian ordeal

In the midst of the fighting, the civilians fleeing the war recounted their ordeal. They said they had lived under constant gunfire, intense shelling and an acute shortage of water, food and medicine. They also confirmed accusations that the rebels were forcibly recruiting children.

The report also alleged that some people whom the Government separated out from displaced civilians during screening were summarily executed, some women may have been raped and others may have “disappeared”.

One controversial and widely criticised measure taken by the Government was the temporary internment of thousands of civilians and thousands of fighters.

The report also confirms the numerous allegations from Tamils that their relatives are missing, among them a number of senior rebel fighters.

The report also adds weight to other allegations made since the conflict ended. These include claims that the Sri Lankan Government deliberately underestimated the number of civilians remaining in the conflict zone and systematically deprived them of humanitarian aid, including food and medical supplies.

The report criticises UN officials for not pressing the Sri Lankan Government hard enough to exercise restraint and for not going public with high casualty figures in their possession which, it says, “would have strengthened the call for protection of civilians” and would have put more pressure on the Government.

A matter of transparency

The panel recommends that the Sri Lankan Government should respond to the serious allegations “by initiating an effective accountability process beginning with genuine investigations” which would meet international standards.

The panel also recommends implementation of a series of immediate and long term accountability measures.

The panel among other recommendations has also called for setting up of an “independent international mechanism” into what it called “credible” allegations that Sri Lankan military committed war crimes in its final decisive offensive against LTTE.

It said there were “credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity” and the panel’s report calls for further investigation both of the Sri Lankan Government and Tamil Tiger rebels.

Sri Lankan response

Sri Lanka Government response was to reject the report and charge that the publication threatens peace-building efforts and is motivated by the political agenda of “interested parties”.

Further, a Government statement said its findings were “baseless, biased and unilateral”.

“The public release of the report at this stage is divisive, and disrupts our efforts to reinforce peace, security and stability in Sri Lanka,” the External Affairs Ministry said in a statement.

The Government says that the military inflicted no civilian deaths during the final stages of its victory.

The Government has called it fraudulent and biased. It also said the world body was seeking to pre-empt the findings of its own Lessons Learned and Reconciliation Commission (LLRC).

Defence Secretary Gotabaya Rajapaksa went even further in his ‘analysis’ and announced: “They are jealous of us because they have not defeated terrorism as we have.”

Whilst it might appear that the ineptitude of the UN communications department prior to the report’s release is rivalled only by that of the Sri Lankan docile media generating mass hysteria against the report, mythmaking has largely shaped the narrative that will endure in Sri Lankan consciousness. Is Mullivaikal a hoax?

Unfortunately, the legend that Sri Lanka is in a deep moral mess has now become a fact.

United Nations: What next?

The pursuit of human rights was a central reason for creating the UN. World War II atrocities and genocide led to a ready consensus that the new organisation must work to prevent any similar tragedies in the future. An early objective was creating a legal framework for considering and acting on complaints about human rights violations.

The UN Charter obliges all member nations to promote “universal respect for, and observance of, human rights” and to take “joint and separate action” to that end. The Universal Declaration of Human Rights was adopted by the General Assembly in 1948 as a common standard of achievement for all.

The UN and its agencies are central in upholding and implementing the principles enshrined in the Universal Declaration of Human Rights. The UN contributes to raising consciousness of the concept of human rights through its covenants and its attention to specific abuses through its General Assembly, Security Council resolutions, etc.

That there is credible evidence that Government soldiers targeted civilians, shelled hospitals and attacked aid workers in the final months of the war against the LTTE is indisputable. That the LTTE used civilians as human shields and shot those attempting to flee the carnage at point-blank range is equally true. Tens of thousands died as a result of these twin brutalities.

The zone that the Government established in the north-east of the country in the final months of its civil war was an area where savagery was organised on a daily basis. Civilians, queuing at a food distribution centre within the ‘no fire zone’ were shelled while President Rajapaksa’s office instructed the Army to stop what it claimed it had not been doing.

It was a no-journalist, no-aid-worker zone. And it was anything but a no-fire zone. Mullivaikal indeed is a crime scene. Tens of thousands of innocent men, women and children were killed because the Government was indifferent to their fate. It did not occur to them that there was a distinction between LTTE cadres and innocent Tamil civilians. To them they are all the same.

The Secretary-General is a civil servant and CEO and is a symbol of United Nations’ ideals and a spokesman for the interests of the world’s peoples, in particular the poor and vulnerable among them. In that capacity he performs such functions as are entrusted to him by the Security Council, general Assembly, and other United Nations organs.

These guidelines both define the powers of the office and grant it considerable scope for action. The Secretary-General would fail if he did not take careful account of the concerns of Member States, but he must also uphold the values and moral authority of the United Nations, and speak and, even at the risk, from time to time, of challenging or disagreeing with those same Member States.

The Panel Report is only an advice to the Secretary General. It is for him to decide his course of action on the report. He is reported to have said that he could not order a probe, which the panel recommended, as Sri Lanka has refused it as a violation of its sovereignty, and without Colombo’s consent or a decision from member states to push it ahead.

The report confirms that the Sri Lankan state has opened the gates of hell to the Tamils in Sri Lanka. At least 40,000 innocent civilians perished, and most of them in ‘no fire zones’ established under international pressures. Not bad for six month work in Mullivaikal by the Sri Lankan Army that believes in “purity of arms”. Inaction by the Secretary General, in the face of this monumental tragedy recorded by his chosen advisors, would be a damning indictment on the moral authority of his office.

Two years on, the goal has to be to establish an independent inquiry into these events. The Sri Lankan Government has consistently opposed the UN, and at one point organised demonstrations against UN staff in Colombo. It has established two ad hoc bodies, but no one has been held accountable. Its supporters claim that anything more trenchant would endanger the peace that has reigned on the island since. All of these arguments are only self-serving for inaction and to let the perpetrators go free.

It is worth noting that para 138-139 of the 2005 World Summit Outcome adopted by the General Assembly states:

Heads of state and government agreed to the following text on the Responsibility to Protect in the Outcome Document of the High-level Plenary Meeting of the General Assembly in September 2005

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organisations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

The action recorded in the Panel Report is a direct riposte to the civilised sentiments and the noble aims enshrined in the above resolution.

That leaves the UN itself in a moral quandary. The Secretary General claims he lacks the authority to order an inquiry into the mass killings without the consent of the Sri Lankan Government, which is not a member of the international criminal court, or a decision by an appropriate international forum of member states. Human Rights Watch is right to disagree.

He has several other options. Having fought to establish the panel, the UN Secretary General has a responsibility to finish what he started. History needs closure.

The innocent civilians killed in Mullivaikal were denied protection by the UN, but can they at least have justice now?

(SAAG is the South Asia Analysis Group, a non-profit, non-commercial think tank. The objective of SAAG is to advance strategic analysis and contribute to the expansion of knowledge of Indian and International security and promote public understanding.)