Official transcript of LLRC oral submission by Mr. Jayantha Dhanapala (Updated)

Groundviews exclusively carried Jayantha Dhanapala’s response to erroneous and selective media reports of his submission to LLRC a few days ago, in which he promised an authoritative transcript of his presentation and of the question and answer session from the LLRC.

A covering note to the media from Mr. Dhanapala and the transcripts were sent to us today. Download the transcript here as a PDF, and another PDF noting the members of the LLRC here.

Interestingly, Shamindra Ferdinando, the News Editor of the Island newspaper mentioned on two occasions that he and his newspaper stand by the initial story on Mr. Dhannapala’s submission to the LLRC (see here, and a more detailed explanation of sorts here). Shamindra’s article in the Island, Ex-UN Under Secy General tells LLRC: Intl. laws shouldn’t apply to conflicts between States and terrorist groups published on 25 August, had Mr. Dhanapala ostensibly saying that,

“International Humanitarian Law (IHL) should not be applied to Sri Lanka’s war against LTTE terrorism and the time is opportune for the country to push for new guidelines. The former head of the Peace Secretariat says a conventional army cannot be bound by international laws in fighting a terrorist organisation, which deploys suicide cadres, child soldiers and human shields.”

The Ministry of Defence website, featuring an article from the Presidential Media Unit of Mr. Dhanapala’s testimony, noted that he had seemingly said “Armed forces should not be charged with war crimes when they launch offensives against terrorists”.

These points, amongst others made in the Island article by Shamindra and others in print and online prompted Kalana Senaratne to write Internal Armed Conflicts, Humanitarian Laws and the Curious Transformation of Dr. Jayantha Dhanapala as a response.

Tellingly, neither in Shamindra’s article nor the article that appeared in the Ministry of Defence website refers to Mr. Dhanapala’s opening comments,

The recent history of Presidential Commissions has been a dismal and uninspiring one. We have the Udalagama Commission which was aborted and we have a number of Commission Reports which have not been implemented. Nevertheless, the personal stature of all of you as Commissioners and the integrity that is widely respected of yourselves encourages me to appear before you and speak in order that our country can enjoy a future of peace and reconciliation.”

Emphasis ours.

Shamindra notes on Groundviews that “Our report was based on what Ambassador Dhanapala told the LLRC.” However, reading through the official transcript, we can find no mention of what Shamindra, the Presidential Media Unit or the Ministry of Defence attribute to Mr. Dhanapala in their respective news reports.

Update, 5 September 2010: The Island has responded to Jayantha Dhanapala in two articles published today. Int’l laws shouldn’t apply to conflicts between States and terrorists Dhanapala’s denial and The Island and The rules of war as they exist do not meet today’s requirements Dhanapala calls for a new set of rules.

Shamindra’s ‘clarification’ still does not explain how he interpreted from Mr. Dhanapala’s testimony that “International Humanitarian Law (IHL) should not be applied to Sri Lanka’s war against LTTE terrorism and the time is opportune for the country to push for new guidelines” or where Mr. Dhanapala had categorically said that “a conventional army cannot be bound by international laws in fighting a terrorist organisation, which deploys suicide cadres, child soldiers and human shields.”

What Mr. Dhanapala does say is that,

“The primary purpose of International Humanitarian Law is the protection of civilians, and we have been exposed to a terrorist group who have used child soldiers unconscionably; who have used civilians as human shields and who have used suicide bombers to cause mindless destruction of property and the deaths of thousands of innocent civilians. How does a conventional Army of a nation state pursue a conflict with that kind of combatant? The rules of war as they exist today do not cater for that situation.”

That Mr. Dhanapala calls to question the possible responses of a conventional army against the brutality of a terrorist group like the LTTE, and goes on to suggest that IHL as it stands now does not cater to the situation in the Vanni in the final weeks of the war is not a prescription to do away with rules of engagement and IHL, lest we then by extension justify, for example, thousands of civilian deaths in Iraq and Afghanistan by American, coalition and NATO troops in wars against equally brutal combatants who use similar tactics.

The emphasis of Mr. Dhanapala is save non-combatant lives to the extent possible. The interpretation of the Island suggests that were a similar situation arise again, it would be entirely optional for a conventional army to discriminate non-combatants from armed terrorists. Mr. Dhanapala’s submission is a call for Sri Lanka to contribute to an international debate on refashioning IHL based on its experience in militarily defeating the LTTE, which means of course that testimony on what transpired during the final weeks of the war need to make it to the public domain. The Island’s interpretation and reportage, against this necessary accountability, can be strong a foundation for war crimes and crimes against humanity conducted with impunity.

  • VG

    Sir, what is the cumulative effect of ”Each and every Government which held office from 1948 till the present bear culpability for the failure to achieve good governance” ?

    Most barbaric state terrorism.

  • VG

    1. Summary of the Emergency: While the history of terrorism and terrorist acts goes back many centuries, the events of 11 September 2001, and the subsequent developments, have focused the attention of the contemporary world because of their deep impact on the structure and functioning of global society.
    The World Federation of Scientists immediately reacted by beginning its consideration of the subject, first in its Annual Session in 2002, and then by establishing a Permanent Monitoring Panel on Terrorism at its next Annual Session in August 2003.
    Priorities in dealing with the Emergency: The Permanent Monitoring Panel on Terrorism was established with the objective of identifying scientific and do-able solutions to contain and possibly eliminate the growing scourge and its impact.
    The Permanent Monitoring Panel on Terrorism brings together a large group of eminent scientists and scholars in regular session in Erice every May. Its consideration of the subject is divided into two sub-groups, the first entitled “Motivations” and the second “Mitigation”. While these two sub-groups view the problem from different angles, the two approaches are entirely complementary, as neither can succeed in resolving the problem alone.

    2. Eminent Jurists Panel(convened by International Commission of Jurists) call for urgent steps to restore Human Rights in efforts to counter terrorism in Assessing Damage, Urging Action(February 2009), their Report on Post-9/11 ‘’War-on–Terror” Policies and consequences:

    ‘’This report catalogues, with deep concern, the extent to which the responses to the events of 11 September 2001 have changed the legal landscape in countries around the world. It documents how States have reacted to the threat posed by terrorism and concludes that as a result of the cumulative impact of counterterrorism policies that are being pursued, the international legal order based on respect for human rights, built up painstakingly during the second half of the last century, is in jeopardy. The report reflects this concern and the urgent need for action by governments to repair the damage that has been done.”

  • justitia

    Dhanapala does have doubts that “the rules of war as they exist today dont cater for that situation”, referring to “………….a terrorist group who have used child soldiers unconscionably, who have used civilians as human shields and suicide bombers…………………”
    He also says “How does a conventional army of a nation pursue a conflict with that kind of combatant”.
    He then says “We would be providing something innovative……………………..”
    rather tan the rules of war as stated by International Humanitarian Law.
    In so many words he does suggest a revision of IHL in consultation with other experts.
    Shamindra Fernando, the Presidential Media Unit and Kalana Senaratne have interpreted/exposed his thoughts.
    His opening comments eulogising the commissioners are irrelevant – such remarks are usual in such situations. Their decisions will also be influenced by their political affiliations. The president would have ensured that they are of the ‘right’ group.
    All this is about to be overshadowed by the supreme court’s ruling on the proposed constitutional amendments which will decide the future of all citizens for many decades to come.

  • eeurekaa

    When the world has been progressing in unimagined ways by Science and Technology in the last sixty years, internal colonialism has been forcing Tamils to regress to extremely pathetic, subhuman conditions.

  • Shamindra Ferdinando

    This is what former Peace Secretariat Chief Jayantha Dhanapala said in relation to the International Humanitarian Law (IHL) according to the official transcript of LLRC (Lessons Learnt and Reconciliation Commission) posted on http://www.groundviews.org.

    … although there are more competent authorities in your Commission than I am to talk on the subject, I believe that we have learnt a great deal of lessons from the experience of combating one of the most ruthless terrorist groups in the country. The primary purpose of International Humanitarian Law is the protection of civilians, and we have been exposed to a terrorist group who have used child soldiers unconscionably; who have used civilians as human shields and who have used suicide bombers to cause mindless destruction of property and the deaths of thousands of innocent civilians. How does a conventional Army of a nation state pursue a conflict with that kind of combatant? The rules of war as they exist today do not cater for that situation. We would be providing something innovative to the international community if we can discuss amongst our outstanding international lawyers here – and we have a galaxy of talent from Judge Weeramanthri to Dr. Rohan Perera (a member of the LLRC) to Dr. Lakshman Marasinghe and many others – who could all form a brains trust on behalf of the Government,
    engage with the International Committee of the Red Cross, the guardian of the Geneva
    Conventions, the 4 Treaties and the 3 Additional Protocols which today constitute International
    Humanitarian Law in order to try to give some guidance to armies of nation states as to how they
    should react to such a situation. We were very fortunate that in the end game of our conflict in May of 2009 we were able through the bravery of our own Army to save ourselves the possible holocaust of 300,000 civilians dying in the final stage. The earth bund behind which they were held as human shields was breached at great sacrifice by our Army and we were able therefore to minimize civilian losses. I do not think we have an accurate estimate as to what the civilian losses were in the crossfire but there were civilian losses. The tragedy would have been much greater if not for the bravery of our soldiers. But what if there was a tragedy greater than what happened. We would have been then denigrated in the eyes of the international community for no other reason but the fact that these civilians were being held as human shields. We have to I think engage first of all the ICRC and then the rest of the international community in order to perhaps convene a diplomatic conference to discuss the formulation of a new protocol with regard to combat with non state actors. This is a phenomenon that is taking place all over the world and I think the marshalling of international opinion on this issue will be one of the contributions that we can make in the codification of international humanitarian law.

    Commenting on the the responsibility to protect concept, Ambassador Dhanapala said: “ …
    Now I think it is important for us to expand that concept to bring in the culpability of those
    members of the international community who have subscribed to the situation that has caused injury to the civilians of a nation. I talk about the way in which terrorist groups are given sanctuary; are harboured; are supplied with arms and training by some countries with regard to
    neighbours or with regard to other countries. We know that in our case this has happened, and I
    don’t want to name countries, but even countries who have allowed their financial procedures and systems to be abused in such a way that money can flow from their countries in order to buy the arms and ammunition that cause the deaths, the maiming and the destruction of property in Sri Lanka are to blame and there is therefore a responsibility to protect our civilians and the civilians of other nation states from that kind of behavior on the part of members of the international community, and I think this is something that will echo with many countries in the Non Aligned Movement where Sri Lanka has a very respected position and where I hope we will be able to raise this issue.

    I am surprised groundviews.org missed this

    Shamindra Ferdinando (News Editor The Island)

  • http://- Pandukabaya

    Now that the transcript for which Amb. Dhanapala was so eagerly waiting is out, we expect him to demand an official correction from the Island.

    In its absence, there is little point in this e-circulation of transcripts and outraged comments by Amb. Dhanapala who should, in fact, be little outraged if he expected the island to report what he said correctly. The people who should, in fact, be outraged are those who believed that Amb. Dhanapala was among those few people having credibility in this country and who are still waiting for a formal demand from him to the Island that the relevant news report is corrected. Probably my father, who is a senior public servant and does not surf the net may then relax after being outraged at the initial news report.

    While people are going before this Commission, expecting reconciliation and lessons to be learnt, the government merrily goes ahead with its hugely undemocratic constitutional reforms. Why are people like Amb. Dhanapala participating in this fraud? The only noticeable impact of the Commission’s sittings up to now has been to destroy the public credibility of witnesses like Amb. Dhanapala. It is quite striking that he commends the Commissioners. The Chair of this Commission was responsible, almost singlehandedly, while Attorney General, for destroying the legitimacy of the Udalagama Commisison. And yet, we commend these people?? Shame on you, Amb. Dhanapala!

  • longus

    eeureka

    True the Tamil society has been pushed to the darkest and the most pathetic era of its history. As President Rajapaksha told on 18-05-2010 in his special address in parliament, Tamil mothers were forced to make their daughters pregnant by outsiders in order to avoid forced conscription by the LTTE. Young children were taken away forcibly, civilians were taken with the terrorists to be used as a human shield;which they did, the escaping civilians were shot and displayed without medical treatment and videod and sent to the international media as evidence of Government atrocities against the Tamils.

    You only have to blame yourselves for glorifying a megalomaniac and expecting that he would bring victory over the Sinhalese and bring the old legendary Dravidian Empire-Maha Tamilnadu- back into existence with “Thambi” being coronated as the Emperor Sun God!

  • longus

    eeureka

    It is true to say that the Tamils are undergoing one of the darkest and the most pathetic periods of their history.As President Rajapakse said in his special address to the parliament on 18-05- 2010 mothers of Tamil daughters in the North had to ask their daughters to get pregnant by somebody in order to avoid forced conscription by the LTTE. The young children were taken away as child soldiers, the civilians were taken away to be used as human shields by the LTTE; which they did-as somebody suggested in a post they (the civilians)would have liked the idea!- ,the escaping civilians were shot and displayed without giving madical attention, then videod and sent to the international media as evidence of atrocities of the Sri Lankan Forces against the Tamils.

    The Tamils have only themselves to blame for their plight ;for glorifying a Psychopath, expecting that he would bring victory over the Sinhalese and bring the lost legendary Dravidian Empire -Maha Tamilnadu- back, with “Thambi” being coronated as the “Emperor Sun God”! You lost, and my sympathies go to you, but please stop shouting now!

  • http://- Pandukabaya

    The problem is the fact that the stress in Amb. Dhanapala’s submission as well as in his responses before the Commission is not on the need to protect civilians but on the need to reform the laws of war. The Island should have reported also on his passing reference to civilian protections but chose not to so which is not surprising given the line that, this newspaper pursues. However there is also an ambiguity in Amb. Dhanapala’s comments. So accusing the media of selective reporting is not the whole truth. There is really no need for anyone to apologise.

    The question is also why people persist in appearing before this Commission which is just a cover up while the Constitution is being thrown into the wastepaper basket. Are we expecting anything positive to come out of the Commission sittings?

    And then we have people rushing to the Supreme Court as if expecting that the Court will do anything against these amendments. Among these people is a noted sycophant of Chandrika Kumaratunge who was among those in league with the former Chief Justice, to destroy the judiciary, details of which can be found in Victor Ivan’s book, “The Unfinished Struggle” which I read as a law student at that time. And these individuals are our defenders of democracy now??

    No wonder ordinary people reject these games. No wonder civil society has so little moral standing in this country today.

  • justitia

    Dear longus,
    Tamils fought State Terrorism from early fifties, in order to survive.
    What remedy did Dhanapala have for this when he ran SCOOP?
    http://nesohr.org/hrr/?show=all
    There was no mention of International Humanitarian Law then.
    Now you and MR are maligning tamil women in addition.