Opinion:

Understanding American psyche towards Sri Lanka:

War crimes or violation of Intl. Humanitarian Law?

by Daya GAMAGE

Michele J. Sisson	Patricia Butenis	Samantha Power

In response to the US ambassador-designate to Sri Lanka Michele J. Sisson's submission before the confirmation testimony of the Senate Foreign Relations Committee on June 6 focusing on "serious allegations of violations of human rights law and international humanitarian law at the end of the war remain to be investigated", Sri Lanka's foreign secretary Karunatillake Amunugama, obviously under the behest of the government, took offence to some of her remarks.

Exactly three years ago when the incumbent American ambassador Patricia Butenis made even a more serious statement when she went before the same committee for her confirmation hearing the Sri Lanka government took no note of it.

In her Senate confirmation hearing before the Foreign Relations Committee on 16 June in 2009 then ambassador-designate to Sri Lanka Patricia Butenis did not conceal her objectives, targets and passions when she declared that "the Sri Lankan government must seriously address previous human rights abuses, including establishing accountability and rule of law by bringing to justice those responsible for extrajudicial killings, disappearances, and the numerous attacks against press freedom that have occurred in the last several years."

At that time, this writer now suspects, and many others be well do now, the GSL did not know or understand the psyche of the state department or had no wisdom to visualize the rough 'agenda' or 'design' which was carefully in the making, the time period immediately after the military defeat of the once politically, diplomatically and militarily well equipped separatist movement, Tamil Tigers which was indestructible according to the 'super intelligence and understanding' of the State department.

What the 15 January 2010 confidential diplomatic cable that was dispatched from the Colombo American Embassy under Ambassador Patricia Butenis' signature to Washington read in one paragraph on the issue of accountability was: "There are no examples we (Americans) know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power."

The reasonably well developed mind-set of the United States Department of State very clearly reflected in the above 'top secret' message to Washington, but manifested even well as to who were responsible for the 'war crimes' in the adjoining paragraph written by Ambassador Patricia Butenis: "In Sri Lanka this is further complicated by the fact that responsibility for many alleged crimes rests with the country's senior civilian and military leadership, including President Rajapaksa and his brothers and opposition candidate General Fonseka.

The Sri Lanka media last week said: (Quote) "The government has cautioned the United States' Ambassador Designated to Sri Lanka, Michele Sisson, regarding her opinion on the situation in the country.

Karunatilaka Amunugama, Secretary to the Ministry of External Affairs, explained that the ministry was aware of her recent comments but would not be taking any action at this point in time.

He did add however, "If she is appointed as ambassador to Sri Lanka, and she continues to make such preconceived comments then the government will look at taking further action."

Amunugama went on to say that at this point in time the government was only concerned about comments from the US State Department, and not an individual."I am confident that the ideas expressed by the ambassador designate and the US government are two different ideas," he said.(End Quote)

The Asian Tribune gave extensive coverage to her confirmation hearing which took place June 6 including the 'Sinhalese Won' statement made by Senator Casey who chaired the foreign relations committee.

In the 14 December 2009 diplomatic cable (this is seven months since the defeat of the Tamil Tigers and halfway through the development of the 'design' or 'agenda') Assistant Secretary Blake's sentiments were reflected in this manner:

(Quote) A/S Blake expressed both publicly and privately the need for steps to ensure political reconciliation and accountability for abuses, including possible crimes committed during the war. (Unquote)

The State Department Human Rights report for the year 2009 released March 2010 made the following statement: (Quote) During the SLA offensive against the LTTE, several hundred thousand ethnic Tamil civilians were trapped in LTTE-held land. As the conflict reached its final months, the government declared two no-fire zones, areas into which it would not fire weapons. As the conflict progressed, the LTTE and civilians under its control were confined to an increasingly small area.

Artillery shelling, mortar fire, and aerial bombing reportedly killed many civilians during the final five months of conflict. While only the Sri Lankan Air Force used aerial bombs, it was difficult to attribute artillery and mortar fire to one side or the other.

There were frequent reports of the LTTE positioning artillery and mortar positions close to and among civilian encampments, hospitals, and churches, drawing return fire from the government. Some reports estimated that fighting in the last week of the conflict may have killed 1,000 civilians per day. (End Quote)

Civilian casualties

The Office of Global Criminal Justice of the U.S. State Department, in its 04 April 2012 report on 'measures taken by the Government of Sri Lanka to investigate and hold accountable violators of international humanitarian and human rights law', dealing extensively on civilian casualties during final months (Jan-May 2009) of the battle does not fully believe the interpretation given by the LLRC report that the GSL took efforts to safeguard civilians.

Throughout the report the State Department's emphasis was the civilian casualties mostly caused by Sri Lanka's military while combating the separatist LTTE and whether the GSL took adequate measures for accountability and transparency of the final stages of the battle.

The report declares "The LLRC's recommendations fall short of fully acknowledging all credible allegations of intentional attacks on civilians by the GSL and LTTE. The LLRC report does not call for investigations into allegations of deliberate attacks on civilians in the Vanni other than the three instances briefly discussed in the report."

The State Department says in this report, despite the GSL military forces had advanced technical knowhow to separate the civilians and the LTTE fighting cadre it deliberately attacked the civilians.

This determination was made having Article 48 Additional Protocol 1 in mind which provides that in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

The just released Human Rights report for the year 2010 states "Many international and national observers stated that the LLRC did not adequately address accountability for alleged war crimes committed by the government and the LTTE during the final months of the conflict."

It further states "They noted that the LLRC report found no systematic government wrongdoing on issues such as the "white flag" incident of the alleged killing of surrendering LTTE fighters, extensive shelling of No Fire Zones, systematic shelling of hospitals, and the withholding of humanitarian supplies from civilians entrapped by the LTTE."

Abuses

And then it states "The government prosecuted a small number of security force personnel who allegedly committed human rights abuses, but it generally did not seek to identify the great majority of those responsible for such abuses or bring them to justice. Case law generally failed to uphold the doctrine of command responsibility for human rights abuses."

The writers of the report editorialize "Evidence of serious violations of international humanitarian law and international human rights law in the final stages of the war continued to mount, but the government refused to acknowledge credible allegations that members of the armed forces were involved in such incidents."

International Investigation

The most vital observation the Office of Global Criminal Justice of the U.S. State Department in its 04 April 2012 is when it declared:

"There are a variety of ways in which a government may undertake effective investigations and other accountability processes. While some international law conventions call for criminalization of certain human rights violations and serious violations of IHL, other routine administrative and special investigative processes, such as commissions of inquiry (COI), can play an important role in establishing a factual record of events. Although COIs and other investigative bodies are often implemented at the national level, in some instances governments seek international participation to bring specialized expertise into, and help foster public confidence in, so-called "hybrid" investigations."This warns:

"Fully internationalized processes undertaken without the relevant government's consent have generally been pursued by the international community only when the State concerned lacks the capacity, political will, or both, to undertake an independent, credible, and effective inquiry.

In the case of serious violations of IHL and human rights, including the type of atrocities alleged to have occurred in the final months of the conflict in Sri Lanka, however, such commissions do not obviate the need for criminal investigation and, if appropriate, prosecutions."

The United States expresses its skepticism whether a (domestic) commission of inquiry (COI) is capable of undertaking such a task in expressing "Whether domestic, international, or hybrid, investigative processes should operate consistent with best practices derived from extensive experience in order to be both credible and effective.

There are several key criteria for evaluating the adequacy of a COI, including: independence and competence; adequate mandate and authority; witness and COI protection; adequate resources; a public report; and a timely and transparent government response."

Thus it justifies an international investigation if the GSL fails to undertake effective investigations and accountability process clearing a path for the international community to intervene whether Sri Lanka violated international humanitarian law (IHL) and international human rights law (IHRL).

War Crimes

This is how the State Department very steadily developed its policy toward Sri Lanka to project that the nation's administration was responsible for war crimes. Its officials alternately use 'violation of international humanitarian law (IHL) and/or international human rights law (IHRL) and/or war crimes' in their documents - classified or not - or in official statements.

It doesn't matter whether these officials in their documents or pronouncements use the term 'violation of the IHL and IHRL' because in international documents, these state department officials are fully aware that it means none other than 'war crimes'.

"International humanitarian law sets out detailed rules aimed at protecting the victims of armed conflict and restricting the means and methods of warfare. It also establishes mechanisms to ensure that these rules are respected. In particular, humanitarian law holds individuals responsible for violations of humanitarian law which they commit, or order others to commit. It requires that those responsible for serious violations should be prosecuted and punished as criminals.

The most serious violations of humanitarian law are termed war crimes" says one International Committee of Red Cross (ICRC) document.

This document further states "international humanitarian law. They are specific acts listed in the Geneva Conventions and Protocol I, including willful killing, torture or inhuman treatment, and wilfully causing great injury".

ICRC document

Grave breaches specified in the four 1949 Geneva Conventions (Art. 50, 51, 130, 147 respectively) includes willful killing.

This ICRC document notes the International humanitarian law requires State to take the following specific action in relation to grave breaches: First, a State must enact nationallegislation prohibiting and punishing grave breaches either adopting a separate law or by amending existing laws. Second, a State must search for and prosecute those alleged to be responsible for grave breaches.

When state department officials in their documents or pronouncements use the term IHL and they are very clear the message conveying using the determinations of internally-accepted documents.

Dr. G. Werle and Dr. J. Bung of Berlin's Humboldt-Universitat in their War Crimes-2010 Summer Semester Paper declare: A war crime is a violation of a rule of international humanitarian law that creates direct criminal responsibility under international law. The law of war crimes extends not only to international armed conflict, but to non-international armed conflicts as well.

They say the primary purpose of the law of Geneva is to protect persons not or no longer taking part in hostilities.

Conclusion

As much as it was clear the U.S. Department of State quite rightly declared the LTTE as a foreign terrorist organization (FTO) and wanted a severe control of this separatist movement blocking material support to it to prevent the movement's ability to unleash terror tactics and brutality in Sri Lanka, to those who have closely observed the policy development of the United States toward Sri Lanka's 'national question' and especially those who worked with department officials like this writer it was equally apparent that the U.S. never wanted the Tamil Tigers totally annihilated.

The reason was that the U.S. at all times believed the GSL was controlled by the majority Sinhalese ethnic group and that chauvinistic Sinhalese elements' has had influential position to affect government policies, and that the minority Tamils were marginalized in areas of governance and public policies.

Therefore, the state department wanted to defeat the LTTE short of total annihilation to maintain it as a pressure group to effect changes in the body politic and governance of the country toward reconciliation. The foreign service officials (FSOs) stationed in Colombo since the eighties have been developing policy planks for the state department on those lines and had been advocating more space for the Tamil minority in the country to reduce or eliminate the 'Sinhalese dominance' .

Failed in their attempt to salvage the LTTE, which the state department officials largely believed was representing the 'aspirations of the Tamil people', since the demise of the LTTE and the 'victory' of the GSL in May 2009 it developed the policy of bringing pressure on the GSL in areas of 'transparency - accountability - reconciliation' . This package includes 'violation of the IHL and IHRL'.

In short, the U.S. State Department, and now joined by Dr. Samantha Power's Atrocity Office in the White House, as documented in this political note, steadily developed an atmosphere that the GSL during the final months of the conflict in fact committed 'war crimes'When ambassador-designate Michele J. Sisson is committed to have human rights on top of her agenda that is what it means. If any official of the state department refers to IHL and IHRL they are undoubtedly referring to war crimes.

In fact, the incumbent American ambassador Patricia Butenis was clear when she remarked - and serious remark as it looked - in a diplomatic cable the state department never expected to be in the public domain "There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power.

In Sri Lanka this is further complicated by the fact that responsibility for many alleged crimes rests with the country's senior civilian and military leadership, including President Rajapaksa and his brothers and opposition candidate General Fonseka."

Understanding the psyche of U.S. State Department and its officials in Washington and Colombo through their pronouncements and written documents is not very difficult when one very carefully scrutinize their diplomatic behaviour, reach, insinuations and aspersions along with the careful study of host of documents that are attributed to the officials and the department in Washington.

But it is very much easier for anyone to comprehend with little effort who worked very closely with them who had critical access to their classified thinking and behaviour even at a time the WikiLeaks released documents give only a glimpse of it.

Courtesy: Asian Tribune