Missing Persons Reports and Civilian Casualties :

Darusman Report inflated estimates- Maxwell Paranagama

by Manjula Fernando

Chairman of the Missing Persons Commission, retired High Court Judge Maxwell Paranagama, said although it was extremely difficult to cite a definite figure of civilian deaths in the final phase of the war, the Darusman Report has greatly inflated estimates. On the Channel 4 footage, he said, "We are not shedding our responsibility merely on technical grounds. There should be other evidence to confirm if this incident actually took place. "

Excerpts :

Q: The final report on the second mandate of the Presidential Commission to investigate complaints regarding missing persons was tabled in Parliament by Prime Minister Ranil Wickremesinghe on Wednesday. Have you fulfilled the task up to expectations ?

A: I am satisfied because we have prepared it in a very balanced way. We have tried our best to set forth a platform to achieve the truth as to what has happened in the last phase of the war.

Q: How did you come to the conclusion that civilian deaths from January 1 to May 18, 2009 could be somewhere around 7,500 ?

A: We have been very truthful in this matter. We said the Darusman Report, which claimed 40,000 civilian deaths had no basis. We can definitely say that the civilian death toll cannot be as high as that. Our findings are based on a UN Country team report, leaked US embassy cables giving daily casualty updates, which estimated 6,710 as the civilian death toll and a survey conducted by the census and statistics shortly after the war among other reports. But we have also said that there is no way of knowing a definite figure.

Q: Can these civilian casualties be construed as collateral damage ?

A: A vast majority of these deaths can be construed as collateral damage but there have been isolated incidents that need further investigation. When the people were being moved, the Army established a ' No fire zone' for the safety of civilians. Armed LTTE cadres also moved in and fired on the military from among the civilians. The Army retaliated and civilians have died in the crossfire.

Q: On what basis did you reject the Darusman Report?

A: On many grounds. They have made allegations in that report and these allegations have not been corroborated by evidence. There was no basis. We also criticised their estimates on civilian casualties.

But the Commission took note of certain matters discussed in their report. We decided that further investigation is needed on some of their allegations, the Channel 4 claims, surrendees going missing, shelling and the white flag issue. We recommended further investigations on those incidents. I must say there were wrong and hasty interpretations to our findings for unknown reasons.

Q: Is it wrong to say that you have accepted that there had been war crimes during the final stages of the war. This news was given wide coverage in the media ?

A: The whole world knows about the excesses the LTTE committed - recruitment of child soldiers,the human shield they set up and so on. But the allegations of isolated incidents against the security forces need to be established.

Q: Have you come to the conclusion about the authenticity of the Channel 4 footage ?

A: No. We are not worried about the technicalities. We have taken what is mentioned in the LLRC on Channel 4. The allegations refer to crimes against humanity. The truth must be ascertained.

Q: There have been many interpretations to your findings, in the media, especially on the Channel 4 documentary.

A: The report cannot be read like a newspaper. It has to be studied in depth before criticising it.

We have analysed this footage. We have been critical of the program's failure to deal with the controversy on civilian deaths fairly and itsemphasis on the number 40,000. However, the footage is just a piece of evidence. There should be other evidence to confirm that the Channel footage is true. Similarly, wrong interpretations must not be given to what is mentioned in the report.

Q: The US led UNHRC Resolution on Sri Lanka proposes a criminal inquiry into the war crimes allegations. Sri Lanka's legal system provides for such a mechanism ?

A: We have set out a mechanism. We referred to a certain section in the constitution where it says, any crime committed before any law is enacted cannot be dealt with. In general there is no retroactive effect of Sri Lanka's law. A subsection of this article says notwithstanding that, any crime committed against community of nations must be dealt with.

If Sri Lanka's domestic law is not exhaustive, we can make use of that provision to bring in new legislation with retrospective effect. We have also proposed to set up a new High Court, for anyone to prove his innocence, and a 'Truth Commission' if a perpetrator wants to admit the wrongs he had committed and seek amnesty.

Q: To ensure closure of those serious allegations, have you suggested any action ?

A: We recommended to appoint a special investigating team. In April, on the President's approval, a five-member team comprising retired police officers and headed by a retired Supreme Court judge was appointed. They met all the LTTE detainees and displaced people in IDP camps to inquire about missing people. It also studied war-time hospital registries, going through 14,000 names. The team is currently probing six incidents of alleged war crimes under the second mandate. Once the investigation report is submitted it can be referred to the Attorney General for legal action.

Q: In what way did the international panel of experts headed by Sir Desmond De Silva QC assisted the Commission ?

A: Their contribution was vital. Sir Desmond, as a prosecutor on behalf of the UN, had first hand experience in applying humanitarian and Human Rights Laws, as well as the other members Prof. Sir Geoffry Nice and Prof. David Crane. The evidence collected by us had to be judged according to international law. Their expertise were sought in studying claims on genocide, shelling and starvation of civilians.

Q: Is there a separate report by the international advisory panel?

A: No. For the second mandate, which covered incidents that took place from January 2009 to May 18, 2009, there is only one report and that is the Paranagama Report. It had been prepared with expert advice from the advisory panel.

Q: The UN Human Rights High Commissioner recently made a statement where he said the Missing Persons Commission lacked credibility hence, it had to be disbanded. Your comments ?

A: I rejected that comment. No explanation was given for making this criticism. When we invite 25 people in the North to appear before the Commission for submissions, nearly 1000 people line up, amidst organised protests demanding foreign investigations. The best litmus test is the reaction of the people.

Q: What could have prompted that comment ?

A: I can't say anything without any reason. I don't know why he came to that conclusion.

The Commission also covered many issues outside the mandate, on a humanitarian note, regarding employment, livelihoods, pension claims, death and birth certificates.

Q: When can the Commission complete the first mandate where 19,000 cases of missing persons are being investigated ?

A: With two additional Commissioners appointed recently, we have five Commissioners attending sittings now. The Commissioners are sitting separately and we hope to conclude the work expeditiously.