By Usha S Sri-Skanda-Rajah
In the light of the UN Panel of Expert’s report, with a view to moving forward with its recommendations, a convergence of opinions from the international community, in support of an international independent mechanism, leading to prosecution of those responsible is critical. The acid test for the UN and for the international community is to act – act fast and decisively; this is the time for the international community to restore its lost credibility and bring justice for the victims.
“Most civilian casualties in the final phases of the war were caused by government shelling,” was the unequivocal verdict of the Panel, which believed “Tens of thousands lost their lives from January to May 2009, many of whom died anonymously in the carnage of the final few days.”
In keeping with the spirit and letter of the report the countries which previously supported Sri Lanka’s conduct of the war, must have ‘a change of mind’ to adopt a UN resolution in favour of an international mechanism and to reconsider the ‘May 2009 Special Sessions Resolution’ of the Human Rights Council’. This is necessary in view of Sri Lanka’s rejection of the report and its “counter offensive” against the Panel’s conclusions, to try to garner support from as many countries as it possibly could, typical of the culture of impunity that prevails in Rajapaksa’s Sri Lanka and its intransigence in admitting to the truth.
The Report was clear: “the Panel’s determination of credible allegations reveals a very different version of the final stages of the war than that maintained to this day by the government of Sri Lanka. The government says it pursued a “humanitarian rescue operation” with zero civilian casualties. In stark contrast, the panel found credible allegations which if proven, indicate that a wide range of serious violations of international humanitarian and human rights law were committed both by the government of Sri Lanka and the LTTE some of which would amount to war crimes and crimes against humanity.”
It’s noteworthy that the Panel drew no distinction between the Rajapaksa government and its forces in its damning indictment.
With Channel Four News, UK suggesting after the Panel’s report was “leaked” that a staggering 140,000 may have been killed or disappeared, a figure which the Bishop of Mannar, Sri Lanka had earlier claimed to be true, strong pressure for the alleged perpetrators to be put on trial for genocide is growing. What most Tamils have deduced from the Panel’s findings, which they always suspected is the irrefutable conclusion that a crime of genocide of the people of Vanni took place.
The Panel has recommended a “domestic accountability process” in place of the Lessons Learned and Reconciliation Commission (LLRC), which it found lacking in international standards and incapable of investigating allegations of serious violations of international humanitarian and human rights law. But all eyes are on a parallel independent international mechanism recommended by the Panel that would not only monitor the domestic accountability process but also conduct investigations independently having regard to genuine and effective domestic investigations.
But effective implementation of both the domestic process and the international mechanism could be problematic. Tamil analyst Ithaya Chandran explains: “Rajapaksa could drum up enough support to derail such a process at home and a UN Security Council veto applied by one permanent member could completely wreck the implementation of an international mechanism, although much rests on Ban Ki-moon as some human rights defenders like Alan Keenan of the International Crisis Group has repeatedly stated that it is within the power of the Secretary General to directly appoint a commission as long as he has strong support from powerful member states and the larger part of the Security Council. An international mechanism could mean any thing from a prosecution to an investigation. This Panel has no real power to force Ban Ki-moon or the UN to implement its recommendations. It falls on many of these member countries to make up for their dismal inaction during the final stages of the war in Sri Lanka to support the establishment of an international independent mechanism. Considering the panel’s report is a damning indictment on Sri Lanka, countries need to provide a good reason to use their veto power.
Most Tamils from South India and the Diaspora believe India’s role in enabling a convergence can positively turn the tide towards a successful out come.”
The Panel also found the LLRC “to have not conducted genuine “truth seeking” about what happened in the final stages of the armed conflict, not sought to investigate systematically and impartially the allegations of serious violations on both sides, not employed an approach that treats victims with full respect for their dignity and suffering, and not provide necessary protection for witnesses.”
The Panel confirmed the Sri Lankan government’s actions were deliberate, committed with prior knowledge that civilians and civilian facilities were in harms’ way: “The government shelled on a large scale on three consecutive No Fire Zones where it had encouraged civilian population to concentrate even after indicating it would cease the use of heavy weapons. It shelled the United Nations hub, food distribution lines and near the International Committee of the Red Cross (ICRC) ships that were coming to pick up the wounded and their relatives from the beaches. It shelled in spite of its knowledge of the impact provided by its own intelligence systems and through notification by the United Nations, the ICRC and others.”
Allan Keenan of the International Crisis Group spoke of the kind of weapons used: “If you understand the kind of weapons that were used, the way the battle lines were configured, from eye witness reports, it is clear there was massive artillery shelling and aerial bombardment – every weapon in the book was used.” In addition there are allegations that banned substances including phosphorus chemical weapons were used. The book “What is to be done about this” which documents, in pictures, the brutality of the Sri Lankan government offensive against Tamils, has dead bodies showing signs of severe chemical burns. It’s also noteworthy that a journalist Prageeth Ekheligoda, who probed and found evidence of such weapons, is missing.
The Panel stated very clearly that hospitals in the frontline were hit “despite their locations being well known to the government.” This reckless act was admitted by the Sri Lankan Defence Minister who said “any thing outside the ‘safe zone’ was a legitimate military target.” It’s to be noted that what ever the Minister might say to justify his actions, the Panel accused Sri Lanka of shelling even ‘safe zones” (No Fire Zones)
The Panel found that “the government also systematically deprived the people in the conflict zone of humanitarian aid – food and medical and surgical supplies and adding to their suffering, purposely underestimating the number of civilians who remained in the conflict zone. The government subjected victims and survivors to further deprivation and suffering after they left the conflict zone. Screening for suspected LTTE members took place without any transparency or external scrutiny. Some were summarily executed, women may have been raped and others disappeared as recounted by their wives at the LLRC hearings. All IDPs were detained in massively over-crowded closed camps, breaching basic social and economic rights of the detainees. Some persons in the camp were interrogated and subjected to torture. Suspected LTTE carders were removed to other facilities that made them vulnerable to abuse.”
Channel Four in its film clip rejected President Rajapaksa’s claim that “no civilians were killed in the conflict,” quoting the UN report as saying “tens of thousands were killed.” The film clip showed evidence “suggesting the death toll could be much higher.” The “independent source who risked his life to film these pictures …recently in northern Sri Lanka had a startling observation to make” the news report said: “only 60% of the people had come back after the war, we don’t know what happened to the other 40%.” This view was backed up by documents obtained it said: “They are the census and they recorded the numbers of civilian in northern Sri Lanka in 2008, the period before the heaviest of fighting took place; the total is nearly 430,000; we can’t be sure about these numbers but these forms were approved by Sri Lankan government agents. At the end of the war the Sri Lankan government put a number of civilians in over-crowded internment camps where documents show that 290,000 civilians were housed in the camps, far fewer than the numbers recorded in the census earlier. So we have more than a hundred thousand people unaccounted for; it raises a critical question; what happened to these people; were they killed in the war?”
The LTTE was found responsible for six violations, mainly for holding civilians as “hostage”, shooting at those trying to “escape” and recruiting child soldiers as young as 14 years.
The role of the UN in failing to protect civilians and the UN Human Rights Council’s flawed resolution, acting on incomplete information, stands out as a clear signal that the UN needs to put its house in order.
The actions and omissions of international actors and their failure to prevent genocide in the Vanni should prick the conscience of those who were in positions of power to act. The UN had failed to protect civilians. The Panel was clear in its criticism of the United Nations political organs and bodies “for failing to take action that might have protected civilians.” It chided the UN for lack of transparency for not releasing casualty figures: “In the Panels view the public use of casualty figures would have strengthened the call for the protection of civilians while those events in the Vanni were unfolding.”
This is indeed a glaring incrimination, exposing the dismal failure of UN Secretary General’s and his right hand man Vijey Nambiar’s shuttle or subtle diplomacy, whichever way you put it, with Gotabaya Rajapaksa and his clan. “Although senior international officers advocated in public and in private with the (Rajapaksa) government that it protect civilians and stop the shelling of hospitals and United Nations and ICRC locations,” in the opinion of the panel that alone was not enough to protect civilians.
It is as if the UN had not learned from the Rwandan Genocide.
The Panel’s recommendation to the UN was to call for a review of the implementation of its humanitarian and protection mandates: “The Secretary-General should conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates. The Panel’s report and its advice to the Secretary-General, as encapsulated in these recommendations, are inspired by the courage and resilience of victims of the war and civil society in Sri Lanka. If followed, the recommendations would comprise a genuine process of accountability that would satisfy the joint commitment and would set Sri Lanka on the course of justice, dignity and peace.”
Gordon Weiss former UN Spokesman was brave and candid enough to express regret that the UN did not do enough. Talking to Channel Four he said he was “part of that structure” and “I bear my portion of the responsibility and blame for that.”
Channel Four also revealed what most Tamils have been concerned about two years after the war. The Sri Lankan army occupation and the “persecution” of the people of Vanni that the Panel spoke of during the final phases of the war continue unabated in the Tamil heartland: “This is northern Sri Lanka two years later; our pictures shot recently reveal a closed military zone” the news channel said: “but the survivors in northern Sri Lanka live in fear; the military still rules here.”
The Panel’s recommendations included some short term and long-term measures. In the short term the Rajapaksa government was told it must address the plight of those whose rights were and continue to be violated, with a focus on acknowledging the rights and dignity of all of the victims and survivors in the Vanni.
In the case of short term goals, the Panel told the government to end all violence by the state, its organs and all paramilitary and other groups, facilitate the recovery and return of human remains to families, allow for performance of cultural rights, provide death certificates, provide psycho-social support for all survivors, release all IDPs and facilitate their return to their former homes or provide for resettlement, continue to provide interim relief to assist the return of all survivors to normal life, investigate and disclose the fate and location of persons forcibly disappeared, undertake the immediate repeal of the Emergency Regulations, modify the provisions of the Prevention of Terrorism Act including publishing names of LTTE members detained and locations of their detention, notify the legal basis of their detention, allow family and legal counsel, charge those for whom there is evidence and release all other, allowing them to re-integrate in to society without hindrance.
In the long-term the Panel asked the Rajapaksa government to examine: the root causes of the conflict, including ethno-nationalist extremism on both sides; the conduct of the war and patterns of violations; and the corresponding institutional responsibilities; issue a public, formal acknowledgement of its role in and responsibility for extensive civilian casualties in the final stages of the war; institute a reparations programme, in accordance with international standards, for all victims of serious violations committed during the final stages of the war, with special attention to women, children and particularly vulnerable groups.
Gordon Weiss speaking to Channel Four seems to think senior political leaders and military will face charges: “culpability rested on “a fairly narrow range of senior leaders in Sri Lanka.”
Weiss has called this the Srebrenica moment. “This is Sri Lanka’s Srebrenica moment, in fact it’s a Srebrenica moment for the rest of the world,” comparing it to the war crimes claims to the infamous massacre of 7,000 men during the Bosnian war in 1995. The International Criminal Tribunal for the former Yugoslavia (ICTY) ruled that the massacre of these men constituted a crime of genocide. In 2005, at the tenth anniversary of the genocide, the then Secretary-General Kofi Annan did say that, “while blame lay first and foremost with those who planned and carried out the massacre and those who assisted and harboured them, great nations had failed to respond adequately, the UN itself had made serious errors of judgement and the tragedy of Srebrenica would haunt the UN’s history forever.”
Weiss spoke of the conditions for aid agencies and how they were prevented from helping: But conditions for aid agencies and UN officials on the ground were difficult. Weiss told Channel Four they were at the “hard edge of humanitarian work” and were prevented from reaching the area by the Sri Lankan government. There were “no foreign observer there to observe what was happening”, Weiss said.
It is hoped Weiss’s words hold true that “ultimately” there will be a War Crimes Tribunal: “I think it will be very difficult for any of the great powers to ignore now what went on in Sri Lanka. It may well have been swept under the carpet, but this panel report has reversed the tide and I think we will see action. I believe we will eventually see a war crime process.”
‘Truth seeking’ and ‘truth telling’ are important commodities for justice to prevail. It is for truth and justice seeking countries, to forge a convergence of opinions to adopt a UN resolution for an international independent mechanism, to move forward to prosecute, at the ICC, the individuals who are responsible for this heinous crime.
(The author is an expatriate Sri Lankan Tamil based in Canada and can be reached at [email protected])