The Panel’s showpieces
By Prof. Rajiva WIJESINGHE
Civilians being helped by Forces personnel |
Civilians fleeing the LTTE |
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| Female LTTE cadre training
civilians |
In the almost two years that have passed since the LTTE was defeated,
there have been numerous allegations about possible war crimes, but in
fact, there have been only two major instances adduced. One was the
Channel 4 video which was shown on August 25, 2009, the second was the
White Flag allegation.
Before that, Human Rights Watch (HRW) had produced a report which
dealt with a few areas it considered the basis for war crimes charges.
One of these related to the episode in which foreign UN officials stayed
behind in Kilinochchi, ostensibly to bring out the UN local employees
and their families whom the LTTE was keeping behind forcibly.
The Darusman Panel also mentions this episode, using it as the basis
for allegations about the numbers killed and attributing responsibility
for these deaths to the Government.
I have dealt with this episode and those allegations, pointing out
first the manner in which the advance of our Forces was stopped during
that time as we waited anxiously for these guys to be allowed to come
out, second the insidious behaviour of the leader of this little
adventure, Chris du Toit, and third, the admission of the UN that much
of the firing was established as having come from the LTTE side,
although they had first accused us of being responsible.
The second area on which the HRW report concentrated was attacks on
hospitals. I pointed out at the time that the laws of war relate first
to recognised hospitals, not buildings suddenly declared makeshift
hospitals, and also that the LTTE used these buildings also for
offensive weaponry.
Trying to deal with attacks from such is not only acceptable, it is
essential in a context in which delays would only increase the suffering
of the people the LTTE was holding hostage. I also pointed out the
exaggeration the LTTE engaged in with regard to what they presented as
attacks on hospitals, one example being the report of the US State
Department that the Puthukkudiyirippu Hospital did not seem “to show
visible damage and appeared to be functioning” according to satellite
imagery of January 28, even though there were several reports of it
being attacked earlier in the month.
It is noteworthy too that the pictures attached to the Darusman
Report, while showing signs of shelling, suggest that the hospitals
themselves were not targeted. Had they been targeted, there would have
been little or nothing of them left.
I responded again at length with regard to this question of attacks
on hospitals after reading the Darusman Panel Report, pointing out that,
even if they believed everything they set down, without comparing it
with what was cited in previous reports, they had no grounds at all for
claiming that there was systematic shelling of hospitals. I also
explored all allegations of attacks on hospitals made by TamilNet during
the entire period of hostilities in the North, and was able to show that
there was obviously no policy of attacking hospitals, though hospitals
did suffer damage as the LTTE began as a matter of policy to concentrate
weapons near hospitals, as the Panel records, if not actually in them.
Unfortunately, the Government failed to respond to the relatively
sober manner in which the US State Department noted various allegations
in a report issued towards the end of 2009. The source for these
allegations, several of which related to hospitals, was Human Rights
Watch, and it would have been relatively easy to respond, as also to
allegations with regard to later fighting, since by then we also had the
harsh, but unbiased report issued by the Jaffna University Teachers for
Human Rights, which recorded some remarkably decent behaviour of Sri
Lankan troops even in the height of battle.
Dramatic
By then however, the discourse had become more dramatic, and I fear
the West may have contributed to suspicions that made us hesitant to
treat their report in good faith, given what seemed the flirtation of
some of them with Sarath Fonseka.
Be that as it may, we were precluded then from responding even to
what seemed the most serious allegation they recorded, namely that
Fonseka “stated that the military had to overlook the traditional rules
of war and even kill LTTE rebels who came to surrender carrying white
flags”.
Astonishingly, assuming one did not know what their agenda was, the
Darusman Panel does not cite this allegation.
They have obviously done their homework, for they even cite,
misleadingly, something I wrote early in 2009. I cannot then believe
they were not aware of the State Department Report, and its reference
here to an alleged claim by a senior Sri Lankan official that the
military committed a war crime.
The Panel claims that “the Government gave several different accounts
of the incident”. What it means by this is not clear. I cannot myself
recollect any account by the Government of what, if anything, happened,
unless this statement by Fonseka while he was Chief of Defence Staff is
considered. The web account of that statement also included the claim
that it was people in air-conditioned rooms who wanted to accept the
surrender, but he himself had put a stop to this.
In December, however, he claimed the opposite, which was that it was
people in air-conditioned rooms who had done the killing - though it
should be noted that, if not quite cleanly, that allegation too was
subsequently withdrawn. If Fonseka is considered a credible witness,
then surely this must be the strongest evidence for an allegation of war
crimes, a statement by someone with command responsibility. But given
the political compulsions of the Panel, we can see why this particular
bit of evidence had to be forgotten.
This element becomes more worrying in the face of credible
allegations that certain elements have been trying to persuade Army
officers to provide evidence against the Sri Lankan Government.
This amounts to bribery, but we know perfectly well that moral
scruples have never applied with regard to foreign relations. Instead of
getting indignant therefore about the potential criminality of such
efforts, we should try to understand what makes characters like this
tick.
Sheer hostility to Sri Lanka is not an answer we should be satisfied
with, even with strong inferences that he is influenced by much stronger
Sri Lankan personalities with dangerous axes to grind. Rather, we should
consider why someone in theory concerned with human rights, in practice
devoted to advancing Western interests, should engage in what seems to
us such sinister behaviour.
Mitigatory factors
The answer may lie in reports that, while he wants a war crimes
trial, he believes that we can plead innocence given all the mitigatory
factors. I was wondering then whether what has not got the proverbial
American goat - or perhaps donkey, given that the Democratic Party is
now in power, and feeling slightly diffident about the war in Iraq that
it has inherited - is our claim that we conducted a more humane
operation than others engaged in fighting terrorism.
Given the massive civilian casualties efforts in Afghanistan and Iraq
and elsewhere have led to, albeit with few exceptions they claim that
these were not intentional, it seems that, like the proverbial fox that
lost its tail, they want us to get into the same boat.
Ironically, while I have no doubt that our policies were very clear,
and utterly decent, it would seem that any exceptions would have been
because of what might be termed the Sarath Fonseka mentality, as
indicated in the speech Western elements referred to before they decided
to use him for higher things. There is even an argument that the humane
strategy the Forces had decided on was changed, when he insisted on the
techniques Daya Ratnayake had used so effectively in the East (which
resulted in no civilian casualties except in one instance when the LTTE
fired mortars from among civilians) being changed. The Army which had
become expert in moving in such a way as to cut off and thus rescue
groups of civilians in small areas thus became a surrounding noose
rather than a precise surgical tool.
To make matters worse, Fonseka seems also to have resented the
sending up of supplies. Though the Government did its best, and managed
to send adequate food and vast quantities of medical supplies, including
emergency kits, he was reportedly very harsh on those who ensured that
such arrangements were carried out.
In this context, the Government has not made enough of the fantastic
work done not only by the Commissioner General of Essential Services,
but also by the Navy personnel who ensured that essential services could
be maintained, despite difficult conditions.
With regard to the Channel 4 video, the Panel makes no reference to
the arguments that the video was doctored. It is true that the UN
Special Rapporteur has tried to rebut these, but his experts too grant
that there are elements in the video that cannot be explained.
The Panel also fails to note contradictions in the Channel 4
presentation of the video and what it claims is a continuation of the
scene which was shown on December 2, 2010, on which occasion the scene
was dated differently from what had been put forward in August 2009.
Channel 4 video
The second paragraph in the Darusman Panel Report that seems also to
relate to the Channel 4 video introduces someone described as “the boy”,
a use of the definite article suggesting what much of the Report
indicates, that it is a cut and paste job using information supplied by
nameless and unreferenced sources.
That paragraph ends with an account of a video that “shows a young
man who has been tied to a tree and is covered in blood. He later
appears dead, lying in a grave covered by a Tiger flag”.
I find it odd that, if this young man was indeed killed by the Sri
Lankan military, they should then have placed him in a grave and covered
him with a Tiger flag. I do not know if the Panel, which asserts
elsewhere of insulting behaviour to the dead, believes this was supposed
to be an insult, of if they thought it necessary to record this touching
instance of respect for the dead. It is also possible that by this stage
they have ceased to believe in their own rhetoric.
Certainly, Sri Lanka should recognise that in any army, as in any
institution, there are individuals who behave badly.
But these, I believe, were few and far between. Generally speaking,
the Army had made clear its position, and soldiers in general followed
orders. To cite a simple but telling example from the report the Jaffna
University Teachers for Human Rights (UTHR) issued on December 13, 2009,
one of their witnesses describes how, on one occasion, Ganeshapillai was
among civilians advancing towards the Army line in Iruddumadu.
Four LTTE cadre joined the civilians and kept firing, deliberately
provoking the Army. A group that had gone ahead of them had told the
Army that more civilians are following along the road. The Army kept
shelling, but was then careful not to shell the road. As they got close,
the four LTTE cadre ran back and turned into snipers. As the Army was
receiving the civilians, the snipers opened fire, killing four soldiers.
But the other soldiers betrayed no signs of reacting against the
civilians. They calmly carried their dead, loaded the civilians into
tractor trailers and sent them on. The LTTE seemed to pin their hopes on
ensuring maximum civilian casualties, in the hope that outside forces
would intervene.
This makes it clear what the policy was. It is inconceivable that the
Army itself cared nothing about inflicting civilian casualties, and that
soldiers spared civilians, at risk to themselves.
Relentless animosity
Given the relentless animosity of the Darusman Panel, it is not
surprising that they did not consider the findings of the UTHR Report.
That is certainly not positive about the Government, but as I have
argued before, given the lack of bias of UTHR, we should engage with
them and take their findings seriously, even if we do not agree with
them, and think some of them erroneous.
They are certainly among the few agencies willing to admit it when
they get things wrong, and we should treat them with respect.
I will conclude then with some elements in the UTHR Report that
indicate what a difficult job our Forces had, in particular because the
LTTE strategy included sacrificing civilians so as to promote anger
against the Government - The ICRC had in fact asked the LTTE not to
bring their vehicles and weapons near the PTK Hospital, but to no avail.
Some of the hospital ambulances had also been taken over by the LTTE,
whose leaders were using them to move around.
Injured LTTE cadre were brought to the hospital and left there for
two days and were then taken over by the LTTE. Although shells were
falling in the vicinity and exceptionally inside the hospital premises,
there was no major shell damage.
An Army post across the lagoon had a direct view of the hospital. The
Army fired with RPGs or small arms whenever they saw a vehicle
approaching the hospital. They did not fire at ambulances displaying the
red light above.
The principal described something else he had seen. Fifteen escapees
had been shot dead opposite the Putumattalan Hospital.
Along with the daily quota of dead resulting from shelling, these
bodies too were placed in a space ringed by ropes on a side of the
hospital. With the help of labourers, the doctor looked at the bodies
and pronounced the cause of death.
The distinction was clear between shell injuries and bullet injuries.
The doctor regularly pronounced all of them to have died due to Army
firing. The principal remarked, “I wonder how he did it?”.
This went on day after day and perhaps above a thousand died trying
to cross the strip of water.
Before we judge, we must keep in mind practices that had come to be
accepted as normal under the provenance of terror. No doctor in an
LTTE-controlled area dared certify the LTTE as the cause of a death.
Dilemma
Often, they were spared this dilemma. When the wife of someone
executed by the LTTE for political reasons went to the local headman in
Jaffna, which was by then under Army control, to make an application for
a death certificate, he, without batting an eyelid, wrote or altered the
cause of death to Army shelling.
A senior officer who lost close relatives due to shelling, and is
just coming out of a prolonged depression, blamed the LTTE for much of
the suffering and said emphatically that the LTTE fired shells on
civilian institutions such as hospitals.
A woman officer came out even more strongly. She recounted angrily
the violence used by the LTTE during conscription, dragging people out
of bunkers, beating them along with their parents and shooting those who
followed the abductors pleading and protesting.
Generally, people were angry and negative about the LTTE that they
were quite ready to say and believe that many cases of civilian places
being shelled were the work of the LTTE. One man said that the LTTE
would fire two shells at civilians from Chalai and then two shells at
the Army, provoking it to fire at the civilians, so that the people
would blame the Army. He was very positive that the shelling of the PTK
Hospital was by the LTTE.
Once the Army controlled parts of the bund, about 7.00 a.m., soldiers
at certain points showed white flags, signalling the civilians to exit
the zone at those points. Soldiers helped them to scale the bund and
instructed them to lie low and move when they told them it was safe.
They also saw the dead bodies of many who had perished from the
firing. At the same time, LTTE cadre who had withdrawn east, away from
the bund, started firing at the soldiers with small weapons and RPGs.
Such stories do not figure at all in the Report of the Panel, making
it clear that the LTTE strategy on promoting civilian casualties is now
proving useful to a host of other enemies of a pluralistic Sri Lankan
State.
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