Holes in the UN Secretary General’s Panel of Experts Report: Examining the Probable Alternate Events

Last week, I attended a seminar conducted by the Colombo-based Marga Institute, a think tank devoted to studying and influencing human development in Sri Lanka. Marga is in the process of putting together a review of the UN Secretary General’s advisory panel report on Sri Lanka (the well-known Darusman Report), which will analyze several aspects of this document, including its legal credibility; the manner in which it makes its allegations and narrates the series of events that made up the final stages of the war; the recommendations of the report; and, very importantly, the impact all of this will have on the reconciliation process in Sri Lanka, via accountability and restorative justice. The seminar itself was to elaborate on the thinking behind the review, discuss the draft, and possibly include the conclusions of such discussions in the final review.

The seminar was therefore conducted in a series of panel discussions, each looking at a different aspect of the Darusman Report, and each made up of experts in that area. I was there mostly because I was part of the panel looking at the allegations made against the Sri Lankan Armed Forces in their conduct of the final operations to defeat the Liberation Tigers of Tamil Eelam. With me was Arjuna Gunawardene, a defence analyst, writer, and expert in suicide terrorism, and the session was moderated by Asoka Gunawardene of the Marga Institute. While this session began with presentations by both Arjuna and I, it focused around a series of key questions that we had been asked to examine. What I’m now going to do in this blog post is present our view in the form of a Q&A that will include our presentations and the questions that were subsequently put to us by the moderator and the other participants.

In the Darusman Panel’s account of the last stages of the war, and the events that lead to the allegations of war crimes, is the panel’s account complete, or if not complete, adequate, and has it been able to access all sources of information that are essential for coming to fair and just conclusions concerning the events and actions?

The account is certainly not complete, nor adequate, if it is taken as an objective narration of the events. But I believe it isn’t meant to be so, and is a document comparable to a policeman’s request for a search warrant, which sets out to show sufficient suspicion of guilt. However, since the report has been released to the public and is being treated and used as a historical account, its biases and subjectivity must be brought into account.

To be fair and objective, the panel would have needed to interview combatants as well as eyewitnesses to ascertain motive for some of the acts which are alleged to be criminal. It would need to examine the actual scenes of the crimes instead of merely examining photographs. Therefore, in Part I of the report (Mandate, Composition, & Programme of Work), Section D (Interaction with the GoSL), paragraph 22, the panel says that visiting Sri Lanka “was not essential to its work”, thereby confirming that an actual investigation was never its intention.

In spite of this statement, the laying out of the events takes the form of a narrative or historical account, suggesting that it is fact rather than allegation. Footnotes are given to previously documented statements or reports, but there isn’t any indication of where the other information came from. It is, of course, understandable that witnesses cannot be named at this stage, but it is still necessary to indicate what the capacity of an eyewitness was. Was he or she a civilian IDP, an NGO worker, or a journalist? Often, allegations of the use of artillery, cluster munitions, white phosphorous, etc are made without any indication of the source, or what expertise that source may or may not have in determining whether these were indeed the weapons and munitions used.

This is compounded further in the Executive Summary of the report which, for example says in the section Allegations Found Credible by the Panel, “Some of those who were separated were summarily executed, and some of the women may have been raped. Others disappeared, as recounted by their wives and relatives during the LLRC hearings.” By lumping together the unattributed allegations of rape and execution with those made by identified witnesses before the LLRC, the report gives the rape and execution allegations a higher credence which they may not deserve. There are many such similar examples, and it is a strategy subsequently used by the Channel 4 “documentary” Sri Lanka’s Killing Fields, in which footage of identifiable Sri Lankan soldiers committing shocking but non-criminal activities is shown alongside footage of unidentified persons committing obviously criminal acts, thereby implying that all the acts shown are criminal ones committed by identifiable SL Army personnel.

Has the panel examined all possible explanations and interpretations of the events and actions before coming to its conclusions?

The report analyzes certain events and draws conclusions which often do not take into account factors that the report itself acknowledges elsewhere. While legally, the actions of the Tigers may not have any effect on the culpability of the Government of Sri Lanka or the SL Army, in a report which must examine motive, this refusal to examine the impact of Tiger actions on those of the GoSL and the SL Army is indicative of an unwillingness to acknowledge the possibility that there might be motives other than those alleged by the report.

For instance, in the Executive Summary’s conclusion to the allegations, it says, “the Panel found credible allegations that comprise five core categories of potential serious violations committed by the Government of Sri Lanka: (i) killing of civilians through widespread shelling; (ii) shelling of hospitals and humanitarian objects; (iii)denial of humanitarian assistance; (iv) human rights violations suffered by victims and survivors of the conflict, including both IDPs and suspected LTTE cadre; and (v) human rights violations outside the conflict zone, including against the media and other critics of the Government.”

It then goes on to say, “The Panel’s determination of credible allegations against the LTTE associated with the final stages of the war reveal six core categories of potential serious violations: (i) using civilians as a human buffer; (ii) killing civilians attempting to flee LTTE control; (iii)using military equipment in the proximity of civilians; (iv) forced recruitment of children; (v)forced labour; and (vi) killing of civilians through suicide attacks.”

However, there is no attempt to acknowledge the fact that allegations against the Tiger such as “(i) using civilians as a human buffer” and “(iii) using military equipment in the proximity of civilians” would contribute hugely to “(i) killing of civilians through widespread shelling” and “(ii) shelling of hospitals and humanitarian objects”, as the SL Army is alleged to have done.

It is on very rare occasions that the Tiger actions are specifically mentioned in relation to SL Army action. For instance in paragraph 79 of the report it says, “During the ninth and tenth convoys, shells fell 200 metres from the road, and both the SLA and LTTE were using the cover of the convoys to advance their military positions,” and then goes on to say in paragraph 86, “The LTTE did fire artillery from approximately 500 metres away as well as from further back in the NFZ,” without acknowledging that it was this very tendency of the Tigers to fire artillery and other weapons from close proximity to the civilians that was bringing in counter-battery fire 200 metres away.

500 metres is not a huge distance in such a restricted battle space, and it is very possible for even a single shell, or two or three, that could have devastating effect on concentrated civilians, to fall 500 metres off target. One or two shells could kill and injure a hundred civilians, and seem to indicate deliberate intent even when it isn’t so intended.

The strategies and actions of the LTTE – doesn’t the Panel’s account cover most of the LTTE’s actions which were observed during the war – use of civilians as a buffer, shooting of civilians who were escaping, conscription of civilians and pushing them to the front lines as cannon fodder, fortifying the no-fire zones, using mobile artillery shooting from proximity of hospitals?

It does, but not in a manner that indicates cause and effect. Again, we can assume that the Secretary General, for whom the report is said to be intended, is intelligent and experienced enough to draw the appropriate conclusions. However, it comes across as quite strange that a panel that allows itself to make the most tenuous of conclusions in certain areas, does not think it equally fitting to point out this factor even in passing. It is quite clear that the only reason there is even this solitary description of the Tiger artillery in action 500 metres from the civilians is because it was observed by a senior UN military officer, and that similar observations by IDPs and other less expert witnesses have been ignored. In contrast, the number of detailed descriptions of SL Army activities indicates that there was no such restriction in culling statements of non-expert witnesses.

Why does the report ignore its own evidence of the LTTE’s actions in integrating the civilians into the battlefield and its consequences for the options available to the SL Army?

In looking at the specific dismissal of Tiger military action in close proximity to hospitals and civilians, this must be viewed in the same way as the entire report. Its purpose is to show the UNSG that the GoSL and the SL military look guilty enough for further in-depth investigation. So to therefore create doubt about that guilt by pointing to Tiger violations as a probable cause that might have directly contributed to the civilian casualties would be counterproductive.

It is for that reason that the report refers to the SL Army’s attempts to help civilians escape as actions by “individuals”, rather than as part of a plan, suggesting that these “individuals” were acting alone and in contravention of the actual policy, which was to kill as many civilians as possible. Similarly, using phrases like “human buffers” instead of “human shields” reduces the perceived severity of the Tiger violations, thereby keeping the focus on allegations against the SL Army.

The Panel had no access to the Sri Lankan Government’s account of events, but does not openly admit the lacuna and state its implications. In the absence of a full account from the GOSL it falls back on a few statements of the Government which claimed that the war was a humanitarian operation directed at rescuing the Vanni population from the control of the LTTE with zero civilian casualties and dismisses these claims.

If the report is taken merely as an advisory to the UNSG, it is probably fair to say that the panel felt it didn’t have to elaborate on the implications of the GoSL’s non-cooperation, as the UNSG would be quite aware of these. However, as I earlier said, as a public statement, these need to be explained.

The few statements from the GoSL that the report quotes (none of which are addressed to the panel, and most of which were made during the war and in its immediate aftermath) have also been taken as statements of fact, and not looked at in the context of political rhetoric and propaganda. The “humanitarian operation” and “hostage rescue operation” claims, which the report tries to use to invalidate the actions taken by the SL military have as much credence as the United States calling the invasion of Iraq “Operation Iraqi Freedom”. To take these literally would be to display incredible naivete at best, or a intent to use things out of context to prove a point. Actions must be compared against an objective model, and not the claims of one party or another.

How should the Panel have dealt with its inability to gain access to the GOSL’s full account of what happened?

A: The panel could also have corresponded with the GoSL in a more detailed manner and asked specific questions pertaining to specific incidents. If these had been ignored by the GoSL, it would have been possible for the panel to at least claim to have attempted to get the full picture. But as I said before, such an advisory report, which isn’t supposed to be an investigation has no obligation to be that fair.

The report concludes that the GoSL denied adequate supplies of food and medicine to the civilian population, there was deliberate shelling of hospitals and civilians and that there is a credible allegation that the GOSL committed a crime against humanity by actions calculated to bring about the destruction of a significant part of the civilian population.

I’ll not comment too much on the allegations about misrepresenting the number of civilians in the area, since I believe a separate panel will look into the IDP issues, but I think it’s fair to say that there was a lot of confusion and contradictory claims by various organizations. Coupled with the movement of large numbers of civilians right across the Wanni, I don’t think it’s hard to conclude that the GoSL simply got the numbers wrong.

On the subject of deliberate shelling of civilians and hospitals, again it is impossible from the report to ascertain how this conclusion of intent was arrived at. As I said earlier, the movement of Tiger units and artillery within the NFZs and in close proximity to the civilians would indicate that even with the civilians best interests in mind, it would be very hard to avoid casualties amongst them, simply because of the restricted battle space. The report focuses only on civilian casualties and gives no information of Tiger units coming under fire in close proximity to the civilians, something which many eyewitnesses have admitted to seeing themselves. Leaving that out of the narrative suggests that there was very little or no military activity in the areas around the civilians, and that therefore there was no reason for any shelling by the SL Army.

The facts however are different, and a lot of UAV footage as well as SL military statements point to the fact that the Tiger units were actively fortifying and defending terrain even in the NFZs, often relocating high value weapons and ordnance within the NFZs and in close proximity to the civilians, and that far from the civilians and hospitals being easily recognizable islands in a sea of calm, they were right in the middle of an intensely contested battlefield.


PTK Hospital (image 3.1 of Annex 3 of the Darusman Report)

The report also carries a number of satellite images of some of the damaged hospitals, with individual holes marked as shell craters. The pictures themselves don’t indicate who fired the shells, what caliber they are, or which direction they came from; and it is left to the narrative to explain this. Several of these images have been cropped very tightly to show only the hospital grounds, and in the case of the PTK Hospital (Image 3.3 in Annex 3), it has been cropped to precisely follow the contours of the pentagon-shaped grounds. Such cropping makes it impossible to see what might have been in immediate proximity to the hospital, or to ascertain by counting shell craters, whether a larger percentage of the rounds were aimed at targets in the immediate vicinity, and not in fact at the hospital itself.

In spite of this attempt to be selective in what they present, it is possible to see that in five of the six images (the Udaiyaarkaddu, Vallipunam, PTK, Ponnampalam, and Puttumatalan hospitals) a major road or highway ran alongside the hospitals and, very likely were routes of movement for Tiger units.


Udaiyaarkaddu Hospital (image 3.1 in Annex 3 of the Darusman Report)

It is also clear in Image 3.1 of the Udaiyaarkaddu Hospital, that of the 17 craters marked, as many as seven have landed to the west and southwest of the hospital, many targeting buildings on the far side of the A35 Highway. It is possible that an examination of a more complete image would show impacts even further away, indicating that the hospital itself wasn’t the target, and simply unfortunate collateral damage.


Vallipunam Hospital (image 3.2 in Annex 3 of the Darusman Report)


Ponnampalam Hospital (image 3.4 of Annex 3 of the Darusman Report)

Image 3.4, of the Ponnambalam Hospital shows 13 instances of damage by what is claimed as artillery fire, and one SLAF airstrike. Of these 14 instances, only two occur within the hospital premises, and most hits are recorded to the north and northeast of the hospital. The date of the airstrike isn’t exact, but is indicated as prior to 18 February. The 13 artillery hits are dated between late January and early March 2009, indicating a hit every 3-4 days, which is hardly the sort of strike rate compatible with an allegation of deliberate targeting.

In paragraph 91, the report claims that the PTK Hospital was hit every day by multiple-barrel rockets (MBRL) and artillery fire between 29 January and 4 February and suffered nine hits, which is not more than one or, at most, two a day, which is more in line with accidental hits rather than deliberate ones. It is also very unlikely that the allegation of MBRL fire is true as this is a saturation weapon which doesn’t fire single rounds. In addition, Image 3.3 of the PTK Hospital, only shows three areas of impact, and it is unlikely that all nine claimed hits impacted so precisely in three areas.

In paragraph 94, the report says that the Tigers fired artillery from the vicinity of the PTK Hospital, but that they did not use the hospital for military purposes, clearly not seeing the incongruity of that statement. It also goes on to say that the Tigers used the hospital for military purposes after it had been evacuated.

There are more examples, but I think you get the picture, even without looking at the disparity between what the Darusman Report claims happened and that reported at the time by Tiger mouthpieces such as Tamilnet, which indicate the damage and casualties in the hospital premises were far less severe, and more in line with the damage visible in the satellite images.

The report also attempts to use dramatic prose to paint a picture and lend emotion to a narrative that often takes a tangential path to that of the actual dry facts. Even when describing the shelling of the UN personnel of Convoy 11 in late January 2009, the report calls their overnight camp at Susanthipuram Junction, on the A35, as a “UN hub”, suggesting that it was some sort of permanent facility, when it was nothing of the sort. The narrative uses words like “pounded” and “heavy” when describing even the landing of just several shells, and this seems intended to use a tone of voice to suggest prolonged and deliberate shelling rather than random ones.

If one examines the fighting both in northwest SL, the central Wanni west of the A9 Highway, and even in the Eastern Province, there is no indication of any such deliberate targeting of civilians in those areas. The civilian casualties mounted only after Kilinochchi fell in January 2009 and the SL Army divisions crossed the A9. This rather obvious aspect, which would be in contrast to the allegations is never commented on by the report. The fact is the casualties increased as the battle space shrank dramatically, and the Tigers started to replace their own casualties with conscripted civilians and increasingly used slave labour on the front lines.

When considering all of this, it’s clear there are major flaws in the Panel’s account. The dubious manner in which the Panel exceeds its mandate which does not include fact finding and investigation. The tendentious nature of presenting allegations as the true account of what happened. The lack of transparency in not disclosing the sources of information. Excluding government actions which are not consistent with the Panel’s interpretation. The untenable basis on which the charge of extermination is based. The refusal to examine other credible explanations relating to civilian casualties. The confusing speculation leading to the high estimate of civilian deaths. The significant omissions in the report that could provide a different explanation of the government’s strategy and actions.

As pointed out before, the purpose of the report is to give the UNSG enough ammunition to take whatever fresh action is possible to him. It is not supposed to be the results of an investigation, nor is it supposed to be an indictment that can stand up in a court of law. It is simply put together to show enough credible allegations that serious war crimes and crimes against humanity have been committed by the GoSL, and to overcome the resistance of the latter and its international allies to an independent investigation.

The Panel’s account of the government strategy as being the destruction of the LTTE along with the extermination of a considerable section of the Tamil population. Would it be correct to say that from the information given by the panel, the LTTE’s strategy was to integrate the civilians into the battlefield and as far as possible, obliterate the distinction between the combatant and non-combatant, military and non-military objects?

Certainly. It has always been the strategy of the Tigers, and all guerrilla/terrorist organisations. The fact that the Tigers had gradually transformed itself into a conventional force doesn’t change that. In the last stages of the war, particularly in 2009, after its units had been broken in battles like Aanandapuram, the Tigers were forced to revert back to a guerrilla force; unfortunately, they didn’t have the terrain area to maneuver in and had to instead maneuver amongst the civilians.

The Government’s and Army’s handling of the civilian situation regarding the necessity of separating civilians from the LTTE; what were the options; what were the efforts made?

This is hard to answer without being privy to the actual strategy and policy discussions the GoSL and its military would have obviously had. On the face of it, it is clear that the SL military did try to separate the civilians from the combatants, and that is a basic in modern warfare, particularly since most wars in the second half of the 20th century have been unconventional. In the few occasions where we have seen conventional warfare, there has been a tendency to revert to the unconventional when defeated in conventional battle; case in point, Iraq, where a conventional uniformed army reverted to the guerrilla/terrorist role with the onset of defeat. All of this has made it policy to separate civilians from combatants as quickly as possible in order to fix and destroy the combatants unhindered.

If the GoSL instead had a different policy, namely of lumping everyone together and killing them all, it is hard to see why there was no indication of that policy in either the East nor in the Northwest, and not even in the fighting west of the A9. The SL military also dropped leaflets telling the civilians to come over to the GoSL side; an act that the report states, albeit not in the form of an acknowledgment; something that would be counterproductive to a policy of murder.

It is possible to say that perhaps the GoSL didn’t try hard enough in the offensive east to Kilinochchi in late 2008, but perhaps the magnitude of what was to come wasn’t something they thought was possible. Perhaps they didn’t believe that such large numbers of civilians would accompany the Tigers.

It is also possible that the SL Army’s inability to pin down large Tiger units in the east and even the western Wanni, made them preoccupied with maneuver warfare where speed was of the essence to cut off Tiger units from the A9 while keeping others pinned down on the Jaffna Peninsula, holding the diversionary “ National Front” on the Muhamalai-Nagarkovil line. Until the loss of the A9 highway, Tiger units were fairly cohesive, and fighting conventionally, and the SL Army would have been concentrating on that problem. It was after Kilinochchi, Aanandapuram, etc that the Tigers collapsed and started to use the civilians so actively.

On the two main war crimes mentioned in the report — civilan casualties, were they intentional? Shelling of hospitals, what were the circumstances? Were they avoidable, indiscriminate, unjustifiable?

It seems very difficult to find instances of either deliberate killing by the SL military, or even reckless endangerment. They were fighting in difficult conditions against an enemy who was actively using civilians as cannon fodder. Many of these conscripts were killed in droves, but they cannot be said to be civilians if they were armed and manning fortifications. I would put down the shelling of hospitals as purely accidental. The damage presented is just not consistent with deliberate targeting.

I think anything in war is avoidable if one is willing to stop fighting. But the purpose of war is to achieve certain objectives, and often those do not permit a pause in the hostilities so that every single blurred line may be sorted out.

Government’s statements that they had stopped the use of heavy artillery and that they were maintaining the zero civilian casualty objective?

As said earlier, many statements by governments in wartime are merely for purpose of propaganda or for political reasons. It is naïve and willfully ignorant to take these as literal and expect the battlefield realities to conform to these statements. I’m sure the GoSL meant well with its “zero civilian deaths policy’, but I’m yet to see a policy that could stop an RPG-7.

The statement that the SL military had decided to cease the use of heavy weapons seems to have been a short-termed decision. It is highly likely that either this was mere propaganda meant to demoralize the Tiger supporters by suggesting that defeat was imminent, or that the GoSL actually thought the Tigers were closer to defeat than they actually were. If the latter, the GoSL would have reverted back to the use of such weapons. However, it’s clear that towards the latter stages, the use of fixed wing aircraft was severely curtailed. Even the report hasn’t many descriptions of airstrikes.

The Panel does not give us any estimate of the numbers engaged as combatants on both sides to gain some understanding of the scale and intensity of the fighting. What is your estimate of the number of combatants engaged on both sides and the combatant casualties?

The report does make an approximate estimation of the numbers. In paragraph 62, the report names the SL Army units as six divisions (the 53rd, 55th, 56th, 57th, 58th, and 59th). While they are right that there were six division-sized units in action in the Wanni after the fall of Kilinochchi, in reality the units were the 57th, 58th, and 59th Divisions and Task Forces 2, 3, and 4; which would be approximately 60,000 troops. The 53rd and 55th Divisions which had been on the Nagarkovil-Muhamalai line until the end of 2008 subsequently broke through, and while the 53rd secured Elephant Pass, the 55th joined the battle on the mainland in January, adding around 10,000 troops.

The Tigers were thought to have between 10-15,000 troops at the fall of Kilinochchi, but not all of them were of the same fighting standard, and perhaps half that number survived to the final stages. The report estimates, in paragraph 66, the Tiger fighting strength at 5,000 by April 2009.

Given the conditions in the last stages where the LTTE had tried to integrate the civilians into the battlefield and as far as possible obliterate the distinction between the combatant and non-combatant, military and non-military objective what do you think were the options available to the army?

Like I said before, one option open to the SL military was to slow down and use probing attacks to get the civilians out. However, the use of artillery would still have been necessary to keep the Tigers pinned down and prevent a breakout. Personally I see very little options open to the GoSL if they wished to both ensure that the Tigers didn’t escape, while still minimizing civilian casualties.

From a purely military perspective, it’s possible to say that a slowing down and a laying siege might have been effective. However, given the conditions that the civilians were in, and the intense international pressure to cease hostilities, such a slowing down would not have been practical if victory was to be achieved.

How would you comment on the Panel’s estimate of civilian casualties.

In paragraph 137, the report says that “Two years after the end of the war, there is still no reliable figure for civilian deaths, but multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out at this stage,” which is a very ambiguous statement, and without any explanation of why other estimates quoted in the same paragraph have been rejected. So I guess that even figures as low as 2,800 (the UNHCHR figure) similarly cannot be ruled out on the same grounds.

The Marga Institute review is scheduled to be released on 5th August 2011.

  • Mahinda

    Recommendations in the reports of UN Human Rights Committee(not UNHRC – the Council), International Commission of Jurists, International Bar Association, Amnesty International, Human Rights Watch, Minority Rights Group International and many others have been disregarded for decades. Journalists and Human rights activists have been murdered. UN Special Rapporteuers were denied entry for years, eg Prof Alston, former Special Rapporteur for Extrajudicial Killings had been pleading for entry from 2006.

    Please stop giving people in the Northeast gifts for votes and start practising what the teachers teach in schools and universities on Good Governance.

    No more UN reports, no more TV documents on bad governance in Sri Lanka.

  • Ravana

    Thank you DB for this comprehensive summary addressing a broad set of issues which cast significant doubts about the allegations about the Jan-Feb NFZ scenario.

    WRT underestimation of civilian numbers, the Defence Forces had the LTTE surrounded in the second NFZ for a number of weeks from April as I remember. I recall the intense debate about the numbers (claimed as 300 000 by LTTE sources such as Tamilnet and under 100 000 as claimed by GoSL). I recall discussing that given how small the area was it is very likely that soldiers would be able to observe that sort of density of population (of 300 000) quite easily and that this would be dramatically different from 100 000. This is not to mention estimates from UAV footage. I think that GoSL has some explaining to do about its estimates. I would concede however, that this cannot be regarded as a “crime” but would very easily influenced by contingencies of war.

    I would also like to point out the Rajiva Wijesinghe interview recently in which he vigorously defends the Defence Forces action in the 1st NFZ but let it slip that nothing went wrong up to May. My question therefore is if crimes occurred in the very last phase (2nd NFZ) when there were no independent observers at all. There are two potential allegations that need to be clarified which suggests some sort of command responsibility:

    1) There has been a hearsay allegation (although by at least one credible source acquainted with a minister) that the President had taken a call from the Indian PM during a Cabinet or Defence meeting and agreed to not engage in shelling until the end of the Indian election. He is alleged to have put the phone down and said “Gahanna” (attack)! Now this was a response received from a MR supporter after being challenged about MR’s role in the war. Again such allegations do not have legal currency but does have the mark of his character. The allegation is further straightened by the report in an Indian newspaper soon after the end of the war giving the date on which the Sri Lankan President is alleged to have given such an order. The date fell just after the General Sarath Fonseka had left for China. We really need clarification on this matter from the main actors involved. This is unlikely to occur anytime soon.

    2) The famous white flag affair: It is now alleged by a source on the Internet that there is a video of General Shavendra Silva taking orders from the Defence Secretary “not to take prisoners”. Again, this event is associated with an alleged date and times. General Fonseka is said to have returned to the Island on the same day when this alleged crime had taken place. Even though he is unlikely to have aware of the crimes before they occurred (if they indeed occurred), he would most certainly know the details subsequently. When one considers GR’s maniacal response to the idea of Fonseka giving evidence on War Crimes provides those of us who are not privy to what happened a glimpse at his fear of the latter.

    These two allegations are a real problem for those of us with a Sri Lankan background. Fonseka is clearly not going to clarify these matters unless he is commanded to do so by an appropriate judicial authority. Given the opportunity at the “White Flag” case he avoided actually clarifying what he knew, instead seeking to defend what he said to a Newspaper editor.

    The executions that we have seen intermittently in various forms in the past two years and new ones more recently could certainly be ascribed to rogue groups. But the lack action even on these matters by GoSL certainly erodes its credibility.

    In the context of above allegations, the latter crimes then assume a much more grim context. That of command responsibility. We can be now comfortable that Fonseka was not responsible for War Crimes (in terms of command responsibility). Even the allegations made by Gordon Weiss that he was responsible for crimes against humanity in the “Bheeshana” period is likely to be false on several verifiable accounts not the least of which is that JVP remains loyal to him. I still await final verification of this.

    Both Darusman Report and “The Cage” may significantly lack credibility and would be laughed out of court.

    On the whole it appears to me that the man most patently responsible for the conduct of the War (Eelam IV) and who was most optimally placed to prosecute it is very unlikely to be responsible for any war crimes. We have a real problem with those who were senior to him in the chain of command during Eelam War IV. They are the two men who had potential means to countermand Fonseka’s standing orders while he was out of the country. (There were obviously many who were senior, junior or parallel to him during the Bheeshana period who could be culpable- the recent warrants for two sinhala war criminals in Canada is the tip of the ice berg of action against such individuals both from the Eelam IV and prior conflicts).

    I realise that these are speculation on my part which are never the less based on statements made by others who allege privileged knowledge. It is very much in the interest of Sri Lanka and especially the reputation of its Armed Forces to lay these doubts to rest one way or another. Fonseka may be the key. Pride has to be swallowed and peace has to be made with him (even to the point of some individuals throwing themselves at his mercy). That is assuming there is some truth to the above allegations. If not, then GoSL should not spare any costs to bring a closure to such allegations through credible processes.

  • Samanthi

    Groundviews, it would be useful to know who David Blacker is, and in what capacity (e.g expert, academic, curious bystander??) he was invited to make these comments and observations at the Marga Institute.

  • eureka

    The most urgent report should be on:

    http://www.slbc.lk/index.php?start=63
    Construction of the 1st International Sports Complex of the North was inaugurated by President in Kilinochchi today.
    Wednesday, 20 July 2011 21:04
    ”President Mahinda Rajapakse inaugurated the construction of the first international sports complex in the north which will be constructed at a cost of 325 million rupees in Kilinochchi. The complex will consist 8 tracks and the indoor stadium will have facilities for 25 sports events. It will also have an international standard swimming pool and many other facilities”

    when

    1. hundreds of yards away, people are struggling to put four poles to have a plastic sheet over their heads on one side.

    On the other soldiers are manicuring green grass(in a dry zone where people have difficulty getting water only a kilometre – nothing near the monstrous monument – away) which can defeat that in a top royal garden.

    2.schools have no decent classrooms and pupils have no decent food.

    3.hospitals are non-existent.

    • policyminded

      UNICEF hospital underway in Killinochi

      construction of the stadium = jobs for locals (direct in construction,
      indirect in providing services for other workers)

      class rooms don’t make schools, teachers and students do

      food is a concern, but area that WFP, UNICEF, and GOSL have to work together still, most people during the LTTE time relyied on WFP and govt rations, now the WFP has cut funding (because we have peace and because we are a lower middle income country)

      Sports is a symbol of unity and a tool for reconcilliation

      • Davidson

        you don’t build a stadium to give employment to people. All schools can have sports facilities – you don’t need a common sports place at the given socio-economic level. There are newly built stadia in the South unused. Can the country afford another is another question. Whatis the socio-economic conditions of the people at the bottom rung of the society in the South. If you are talking about one country, you need to look at the whole country also though Northeast is at the bottom now.
        There is news that the newly -elected councillors are going to be trained. First let us start with the President – he must learn what sustainable and systemic development is. Then the departmental heads. Then the councillors. In a country that is politicised A-Z, what’s the point in training the councillors. Amyway it’s NOT training for sustainable and systemic development – it’s for brainwashing by the Defence Ministry. Have you seen the curriculum of the compulsory course for the university students. That’s against reconciliation – that’s what a civil society that managed to get the curriculum with great difficulty.
        In Sri Lanka every government has tried its best to see how it can stay longer in power, not looked at the welfare of the country.

      • Davidson

        Furthermore there is no sand and water to build the barest of houses if all are built. Not 1% of the houses is not yet built. The country cannot afford to say or do from the tip of the tongue any more. Everything should come from the bottom of the heart and an informed head.
        It isn’t enough to say one country. it should be a healthy country. Not a country with a lot of holes in it.

      • Modaya

        policyminded

        You sound like a typical Rajapakse policy advisor. Whither Sri Lanka?

  • eureka

    Holes in planning:

    International stadium instead of food, shelter, education for children, medicine for the sick, livelihoods for the community, employment for the youth, ??

    Economists and environmentalists, please don’t be silent.

  • eureka

    ”Marga Institute, a think tank devoted to studying and influencing human development in Sri Lanka” should voice its utter opposition to this stadium. In fact the whole country should oppose this.
    Academics? Civil societies?? Religious clergy ??? Professional associations ???? Learned scholars ?????

  • eureka

    Human development?

    The government asked people to leave Vanni. What happened to those who secretly fled Vanni?

    People who fled Vanni around Jan/Feb 2008 were held in Sirukkandal and Kalmoddai camps(March 2008 an inter-faith group visited them – visitors were asked not to take photographs and not to use mobile phones) and were still there in August 2009 according to a report I read here. A pregnant woman was not allowed to go and stay with her relatives. A boy who got an admission in a foreign educational institute was not allowed to go and his father wasn’t even allowed to see him. Camps were near snake pits and everyday at least one was killed according to the guards.

    No wonder such a President lays down foundation for an international stadium in a devastated place.

    Nobody out there to tell the President a society develops like a Maslow’s triangle?

    Does he know it’s ”sustainable development” everywhere?

    If this is one country how many stadia do we need? At what stage of human development do we need them?

    • Davidson

      A certain level of socio-economic development only can support a stadium and sportspersons. Building a stadium in the Vanni under the existing conditions is ethnocide. Where are the people going to find sand and water for building their houses? If newly elected councillors are going to be ”trained” by Defence Ministry, what sort of duty are these people going to do? When the President has told the visiting Indian team,”it’s curtains on me if I give devolution of power to the Tamils’ and in 2006/7/8, he was telling he would give ”maximum” devolution to the Tamils. He was meddling with APRC and at last he is sitting on their report.

      He’ll go on like this till he is out of office.

      People may probably be using the stadium as living quarters with cattle, goats, etc.

      When the planet is running out of oil, why do we need A9 with six lanes? We need a maximum of 4 lanes for A9. But we need good side roads without potholes. Why do we need several airports? People around the world are trying to cut down on flights. Why do we start with tourism when we start from scratch if farming and fishing are restricted eg expanding High Security Zone?

      Basil Rajapakse is talking about eco-tourism for Delft. Any tourism causes pollution and depletion of resources which are already scanty. Eco-tourism has been found to destroy ecosystems. Scientists are scratching their heads about how to get rid of the plastic in ocean currents. Under the water surface which we can’t easily see it is feared that we have destroyed marine life.

      Let us wait and see when the Provincial Council elections will be held for the North: will it be after the North is destroyed by the Presidential Task Force for Northern Development?

  • Davidson

    Holes ??

    How many holes are there in our history of the last 63 years. We failed to patch them up for so long. We’re still making holes non-stop.

  • Against Frauds

    Isn’t anybody sick yet of the sophistry of this warmonger and those who, in the name of “objectivity,” seek to rationalise what happened in the last days of Eelam War IV.

    Enough of these deliberately delaying tactics driven, I suspect, by reasons less than purer than the driven snow.

    Why don’t we just get on with a full-blown investigation and war crimes trials if such are justified?

    Among other things, it seems that the Blackers and the rest of the stooges of this regime have arrogated to themselves the right and authority to deliver “expert” status to all and sundry of their choosing. What the hell gives?

    I am old enough to remember writers such as Fleming and Monserrat who wrote great pot-boilers which I thoroughly enjoyed at the time. However, NOBODY would call them objective analysts as seems to have become the case with the sycophantic Blackers of Sri Lanka.

    Come on, folks, how about a little reality which includes getting rid of these people from “expert” panels.

    As a footnote, I know that at least one prominent member of the Marga Institute, for the pettiest of reasons, began to try to debunk Ban and his panel from the “get-go.” Respected “international civil servants” my foot!

    Time to expose the charlatans who do very well pandering to fascists, no matter in how sophisticated a manner

    • wijayapala

      Dear Against Frauds

      Among other things, it seems that the Blackers and the rest of the stooges of this regime have arrogated to themselves the right and authority to deliver “expert” status to all and sundry of their choosing.

      If David is a stooge of the regime, how come the regime itself has not made use of his arguments to defend its actions?

    • http://www.blacklightarrow.wordpress.com David Blacker

      Againstfrauds, since the Darusman Report is largely a work of fiction, the Marga Institute probably considered me ideal to sit on a panel reviewing its narrative ;)

    • Candidly

      If you disagree with what David Blacker writes, Against Frauds, then why don’t you tell us where his facts or arguments are in error? With respect, argument by insult doesn’t get us very far on this or other issues.

  • Luxmy

    http://english.aljazeera.net/programmes/peopleandpower/2011/04/2011420114515626866.html
    Al Jazeera, “Sri Lanka: War Crimes,” April 20, 2011
    [14.52]
    ”……..
    Journalist:He takes us to the bank of the lagoon that separated us from the Tigers’last stand.
    My understanding is that we are the first journalists who are actually allowed into this area.
    (Pointing towards the strip of land across the lagoon)That side is still entirely closed off?
    Major: Because it is not cleared . Demining is still happening.
    Journalist: Because it’s given wlld speulation about mass graves that are being covered up.
    So far nobody isn’t allowed in there?
    M: Nobody
    J: No international observers?
    M: No
    J: All these parts of the coastal strip was designated as no-fire zone.
    …………”

    This was 23 months after 300,000 emerged from the tiny area.

    UN and ICRC weren’t allowed in to see the vacated area.

    Who mined the area – the Major is talking about demining.

    Is it still closed to the public?

    This whole thing is an immense hole.

    What happened to the people who couldn’t get up and walk?

    Those who emerged have said that many on the ground pulled their sarongs and sarees and their feet and begged them to take them out. Some are unable to forget it.

    LTTE preventing the people from fleeing is unforgivable.

    What about the government that buried the people alive?

  • Ward

    Dear Marga Institute
    What else will be produced by six decades of ethnic outbidding in a small island in a world where the oppessive regimes have representation and the oppressed don’t have any?
    In an island of geopolitical significance?

    Some of us will not be here to see if the following will have any meaning to any rulers in the future – can they fill the holes with these:

    The Eight Fold Path of Buddhism:
    Right View
    Right Thought
    Right Speech
    Right Action
    Right Livelihood
    Right Effort
    Right Mindfulness
    Right Concentration

  • kris

    Before the war started is noth and east developed area like in developed country? now why Govn. have to do everything to noth and east to bring like developed contrry, if all the tamil diaspora demanding equal rights and facilities for noth and east they have to think abount other poor mulim and singalees people live in other parts of the country Govn has to work for them too

  • Gehan

    David, what may bother some–and what will remain a thorn in the side of the apologist–is that the counter narrative perhaps reveals a reckless disregard for civilian life. From what I gathered, extensive UAV footage (almost realtime?) was available throughout the final stages of the war. So, at best, the GoSL cut corners in an attempt to expedite the conclusion of operations. Alternatives such as the siege option would admittedly have reduced civilian casualties; but such options were deemed politically inconvenient.

    Even if we were to accept the counter narrative and conclude that the gravity of the violations were not comparable to, say, a Yugoslavia or a Rwanda, how do we reconcile this notion of recklessness? If we accept the legal position that, in dealing with violations of IHL, ‘willfulness’ encompasses ‘recklessness’, the question of war crimes still remains. As you rightly point out, the UNSG Panel Report merely seeks to trigger an investigation. Notionally, the report is not really meant to paint a complete picture. The question (although somewhat academic) is whether there is enough to trigger an investigation. Until one resolves the issue of recklessness, I don’t think one can simply dismiss the report’s ‘incomplete’ narrative.

    More important than the issue of investigations is perhaps the issue of reconciliation. We need to ask ourselves how reckless disregard for the lives of Tamil civilians could affect the so-called reconciliation process. Whether, as the Panel argues, the choice between retributive justice and restorative justice presents a false dichotomy, certainly requires further reflection.

    The most important aspect that emerged out of the Marga seminar was not necessarily the counter narrative. Remarkably, there was consensus that only a viable and expeditious political solution acceptable to the Tamil people could bring this unfortunate chapter to an end. I felt this was the main take away from the seminar.

    • http://www.blacklightarrow.wordpress.com David Blacker

      Gehan, I think the panel discussion on the legalities made it clear that there really is no way this is going to court, so I’m not sure that us arguing over the technical definition of recklessness is that useful anymore. From what I’ve seen of the UAV footage, and what I know of the conditions, I think recklessness will be extremely difficult to prove beyond a technical definition, which I think is probably applicable to any war fought amongst civilians. What war then doesn’t recklessly endanger civilians — Afghanistan, over OBL; Iraq over WMDs? I think going to war recklessly endangers civilians, but I speak from an ethical perspective rather than the legal definition.

      I was actually gonna suggest you do a similar post on the legal panel’s part of the seminar, but I couldn’t find your email address.

      I’m not sure that saying the siege would have been politically inconvenient is fair. From a military perspective there would be some reasons for concern as well.

      Perhaps the narrative wasn’t the most important part of the seminar, but since that was the part I was involved in, I thought it best I stick to that.

      I think a viable political solution is necessary regardless of whether there is a call for investigations, or even a reconciliation process. I think we all knew that before the seminar even started, so I’m not sure that was the most important take out. Personally, I’m not sure that will really do anything to stave off the accusations, but it should be done anyway.

    • Gehan

      Discussing recklessness is important for several reasons:

      1. Even the counter narrative notionally accepts the presence of recklessness. At least one panelist accepted the fact that the government could have avoided such a large number of civilian deaths. He accepted the hypothesis that the number of civilians killed would have been much less if a siege strategy was adopted. The same panelist also intimated that the reasons for pursing a more ‘expeditious’ course of action were largely political. So this gives us a mutually acceptable factual premise for a moderately sincere dialogue on what really happened. The adoption of absolutist positions is unhelpful.

      2. Recklessness is not confined to a mere technicality. It lies at the heart of principle of distinction. States are strictly prohibited from causing disproportionate civilian deaths even if such casualties are collateral. I don’t doubt that the examples you cite (Afghanistan, Iraq etc) are examples of war crimes. It is a shame that the international community does not show much interest in pursuing those cases. But what’s before us now is the Sri Lankan case.

      3. The presence of recklessness is a significant stumbling block for reconciliation. Unlike in the cases of Afganistan and Iraq, we witnessed a scenario where the government of a country exercised a military option that caused the deaths of a large number of its own citizens. The citizens belong to an ethnic group that is a (the?) key stakeholder in the future reconciliation process. Even if we assume none of the deaths were intentional, shouldn’t the GoSL at least assume responsibility for recklessly causing the deaths of so many of its citizens? Even if we assume that the counter narrative is the ‘complete version’, it still depicts a callous disregard for life.

      Having said that, if apologies are made, reparations paid, political solutions provided etc, the need for international pressure will slowly diminish. The threat of investigations is mainly a device for leverage. The Tamil people will support international investigations so long as they see it as giving them more leverage. The recent elections in the North perfectly illustrate the point. So let’s not kid ourselves about the politics behind the Report and the international support it garners. This is why the final conclusion of the seminar—that only a viable political solution can bring an end to this chapter—is not a mere reiteration of a position already held.

      • http://thecarthaginiansolution.wordpress.com/ Mango

        1. I’m glad that the SLA didn’t consider a siege to be a viable option for ending Eelam War 4. Modern armies hate sieges and try to avoid them whenever possible, and with good reason. The panelist who proposed a siege as an acceptable means of reducing civilian casualties must’ve not learnt from recent sieges like Sarajevo, Vukovar and Beirut (under siege by the IDF). All of those were long, drawn out and bloody affairs for the civilians who bore the brunt of incoming fire.
        Given the intermingling of civilians & LTTE cadres in the NFZ, civilians casualties would’ve been even more numerous than they were had a siege been adopted as military strategy.

        Further, a siege would’ve given the LTTE what they desperately needed; time. Time to get more ‘international humanitarians’, concerned EU countries and all the usual suspects to bring irresistible pressure on GoSL & SLA to halt the offensive, go for peace talks, let the LTTE leadership escape to Norway (?) and the rest. Thank goodness that saner counsel prevailed and it was ended as quickly as possible.

        2. The int’l community (i.e. major Western powers) won’t pursue themselves or their equals e.g. Russia over Chechnya, because of bog-standard geo-politics. I’d argue that the Western bloc, by the very nature of the actions they undertook towards the end of EW4, increased the ‘recklessness’ factor in Sri Lanka. We know that the LTTE expected ‘international action’ to stave off their demise, yet again, as had happened before.

        As for the ICC, it’s just a kangaroo court where the West judges the rest of the non-Western world. In 2000, the UK foreign secretary Robin Cook was honest enough to say that ICC was “‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States’.”
        http://www.spiked-online.com/index.php/site/article/10289/

        3. The govt had a right to exercise the military option because the LTTE (thankfully and disastrously for themselves) insisted on the military option. How exactly was GoSL supposed to neutralise a heavily armed, highly experienced, well-trained, semi-conventionally deployed enemy with its’ own organic artillery, naval wing and nascent air force? That they were also Lankan citizens (noting that many had rejected that citizenship) is frankly, irrelevant. The JVP were also citizens (and Buddhists, to boot!:) and their Lankan citizenship didn’t prevent their destruction.

        We can argue about the precise level of responsibility for the deaths of innocent civilians used as human shields, but the LTTE and their diaspora supporters are equally culpable for their deaths.

        If you want to see Gold Standard, World Class‘callous disregard for life’ look no further than the UN’s own sanctions against Iraq in the 1990s. “..In 1991 American representatives forcefully argued against permitting Iraq to import powdered milk on the grounds that it did not fulfil a humanitarian need. Later, the diplomats dutifully argued that an order for child vaccines, deemed ‘suspicious’ by weapons experts in Washington, should be denied.” http://www.lrb.co.uk/v32/n14/andrew-cockburn/worth-it

        It makes MR & GR look like Humanitarians of the Decade. Reconciliation may take 2-3 generations or longer. Recklessness has nothing to do with it.

        4. Apologies and Reparations: agree with both. GoSL is very, very bad at doing apologies. Here’s ‘how to do apologies':
        http://thecarthaginiansolution.wordpress.com/2011/07/04/saying-sorry-is-the-hardest-thing-to-do/

        Reparations? I’d like reparations from the UK and Norway, for a start, for having allowed the LTTE a free hand to fundraise for decades, ensuring a steady death toll in Sri Lanka. As long as ‘Tamil people’ support international investigations, they won’t any leverage. I just don’t see any current or future GoSL allowing itself to be held to account by external bodies, when the results of those investigations can be foretold and they’re supported by the very people who supported its’ mortal enemy.

        A viable political solution is the only way forward, but GoSL must be hoping that the war crimes nonsense will drag on for the foreseeable future (which it will given the attitudes of those groups promoting ‘war crimes’ trials), enabling it to use it as the ‘external threat’ factor to excuse its own hubris, arrogance and well-attested to corruption and drag its heels over the much-needed political solution.

      • http://thecarthaginiansolution.wordpress.com/ Mango

        1. I’m glad that the SLA didn’t consider a siege to be a viable option for ending Eelam War 4. Modern armies hate sieges and try to avoid them whenever possible, and with good reason. The panelist who proposed a siege as an acceptable means of reducing civilian casualties must’ve not learnt from recent sieges like Sarajevo, Vukovar and Beirut (under siege by the IDF). These were long, drawn out and bloody affairs for the civilians who bore the brunt of incoming fire.

        Given the intermingling of civilians & LTTE cadres in the NFZ, civilians casualties would’ve been even more numerous than they were had a siege been adopted as military strategy. Further, a siege would’ve given the LTTE what they desperately needed; time. Time to get more ‘international humanitarians’, concerned EU countries and all the usual suspects to bring irresistible pressure on GoSL & SLA to halt the offensive, go for peace talks, let the LTTE leadership escape to Norway (?) and the rest. Thank goodness that saner counsel prevailed and it was ended as quickly as possible.

        2. The int’l community (i.e. major Western powers) won’t pursue themselves or their equals e.g. Russia over Chechnya, because of bog-standard geo-politics. I’d argue that the Western bloc, by the very nature of the actions they undertook towards the end of EW4, increased the ‘recklessness’ factor in Sri Lanka. We know that the LTTE expected ‘international action’ to stave off their demise, yet again, as had happened before.

        As for the ICC, it’s just a kangaroo court where the West judges the rest of the non-Western world. In 2000, the UK foreign secretary Robin Cook was honest enough to say that ICC was “‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States’.”

        3. The govt had a right to exercise the military option because the LTTE (thankfully and disastrously for themselves) insisted on the military option. How exactly was GoSL supposed to neutralise a heavily armed, highly experienced, well-trained, semi-conventionally deployed enemy with its’ own organic artillery, naval wing and nascent air force? That they were also Lankan citizens (noting that many had rejected that citizenship) is frankly, irrelevant. The JVP were also citizens (and Buddhists, to boot!:) and their Lankan citizenship didn’t prevent their destruction.

        We can argue about the precise level of responsibility for the deaths of innocent civilians used as human shields, but the LTTE and their diaspora supporters are equally culpable for their deaths.

        If you want to see Gold Standard, World Class‘callous disregard for life’ look no further than the UN’s own sanctions against Iraq in the 1990s. “..In 1991 American representatives forcefully argued against permitting Iraq to import powdered milk on the grounds that it did not fulfil a humanitarian need. Later, the diplomats dutifully argued that an order for child vaccines, deemed ‘suspicious’ by weapons experts in Washington, should be denied.” http://www.lrb.co.uk/v32/n14/andrew-cockburn/worth-it

        It makes MR & GR look like Humanitarians of the Decade. Reconciliation may take 2-3 generations or longer. Recklessness has nothing to do with it.

        4. Apologies and Reparations: agree with both. GoSL is very, very bad at doing apologies. Here’s ‘how to do apologies':
        http://thecarthaginiansolution.wordpress.com/2011/07/04/saying-sorry-is-the-hardest-thing-to-do/

        Reparations? I’d like reparations from the UK and Norway, for a start, for having allowed the LTTE a free hand to fundraise for decades, ensuring a steady death toll in Sri Lanka. As long as ‘Tamil people’ support international investigations, they won’t any leverage. I just don’t see any current or future GoSL allowing itself to be held to account by external bodies, when the results of those investigations can be foretold and they’re supported by the very people who supported its’ mortal enemy.

        A viable political solution is the only way forward, but GoSL must be hoping that the war crimes nonsense will drag on for the foreseeable future (which it will given the attitudes of those groups promoting ‘war crimes’ trials), enabling it to use it as the ‘external threat’ factor to excuse its own hubris, arrogance and well-attested to corruption and drag its heels over the much-needed political solution.

      • Ravana

        “Having said that, if apologies are made, reparations paid, political solutions provided etc, the need for international pressure will slowly diminish.”

        Right on!

        I think there was both military and political expedience. I can understand the strategic reasons for what happened in the last two weeks of the war. I am not sure that I agree with it.

        One example is on the Ch4 video which speaks about a decision in April to aim artillery in the middle of the 2nd NFZ in order to divide the area and to diminish the space for LTTE. I guess Fonseka who micromanaged the whole war (except in the last two weeks when he was absent- says a lot about what Fonseka expected- i.e. that the war would continue in a siege format for another several months) should be able to explain this. I am prepared to accept a reasonable explanation but would reserve my judgement until then. I expect that judgement would be more a moral one than a legal one. All the same this is something that Fonseka should be honour-bound to defend.

        OTOH the shooting incidents on video can never ever be explained away and requires an independent investigation in the absence of any credible investigation by GoSL so far. Given the lack of credibility, it would serve Sri Lanka well to commission a friendly International group headed by an eminent Sri Lankan to investigate this. There is significant concern that the lack of investigation by the GoSL so far is because of command-responsibility. We can exclude Fonseka from such responsibility purely on the logic that he would have been charged with it by now if he was responsible. As we have seen , such attempts were made wrt Lasantha’s murder but it fell apart. Thus we know that GoSL would not hesitate to blame Fonseka if it could get away with it. I believe that it is this issue specifically which will bring the current “Turks” of the GoSL undone in the end.
        People being clearly murdered on video and probable perpetrators’ jubilation cannot be easily erased from the memories of thousands of people. It is not the “Goliath” of shelling accusations but the “David” of the individual murders which will come home to roost. Sri Lankans cannot rest in peace also because they have simply forgotten the 60,000 dead innocents of the 1987-89 period. This is payback. The injustice done to Tamil civilians or combatants may be relatively lower in magnitude but those who suffered at the hand of the state in 87-89 will surely back this 21st century version being exposed to the fullest extent.

      • yapa

        Dear Ravana;

        ” *****”“Having said that, if apologies are made, reparations paid, political solutions provided etc, the need for international pressure will slowly diminish.”

        Right on!”****** ”

        ARE YOU SURE ABOUT THAT?

        Thanks!

      • http://www.blacklightarrow.wordpress.com David Blacker

        Gehan, why mince words? Why not mention which panelist you mean? There were only two :) I myself acknowledged that a siege strategy would possibly have reduced the number of civilian casualties. I also acknowledged in my post that one option was to stop the attack, either temporarily or permanently. NOT going to war in the first place, would have prevented ANY casualties whatsoever. Therefore is it fair to say that the entire war was disproportionate and therefore reckless when considering the civilian casualties? It depends on your perspective, on an ethical standpoint. The legalities are, I think, unhelpful, as the seminar more or less proved, and largely academic.

        The point is the war — and all wars — are a result of politics or civil policies. Therefore to claim that since a siege was politically inconvenient, alternate military action that resulted in civilian casualties is reckless is an unrealistic position. We don’t even know what the actual civilian death toll was; or which percentage of those deaths were caused by SL military action, and of that latter percentage, which number in fact is a result of recklessness. Which then brings us down to discussing definitions and technicalities, which I think you should accept by now, is unhelpful to the larger issue; as was pointed out by a member of the audience to both you and Prof Marasinghe.

        You yourself have already said that absolutist positions are unhelpful, and yet you prefer to focus on SL to the exclusion of other wars, in the context of our which, outside of a courtroom, our war must be viewed. You seem to have taken the military operation to actually be a “hostage rescue mission”, when it isn’t. It’s purpose was twofold; to liberate the civilians and defeat the Tigers. To therefore simply hold up the well-being of the civilians is either naive willfully blinkered. If the invasion of Iraq was in fact about “Iraqi Freedom”, the US must be charged for every single civilian death after May 1st 2003, when George W Bush declared “mission accomplished”.

        Apologies, reparations, etc, must be done, as I said before, and not merely for the reasons of political expediency that you put forward. It must be done for moral and ethical reasons — because it is the right thing to do. These actions will probably have the by product of easing western state pressure on the GoSL, but I doubt it will do anything to change the stance of the vengeful portions of the diaspora, their mouthpieces such as CH4, and the advocacy groups such as AI.

        I don’t think that Jehan Perera’s bringing up of this point at the end of the seminar actually made it the conclusion of the seminar; just the final point ;)

        However, as long as the intense pressure to prosecute, charge, or at least vilify the GoSL continues unabated, it is very unlikely that the GoSL will consider such apologies and reparations, since it is likely that it will be used to show acknowledgment of war crimes.

      • http://www.blacklightarrow.wordpress.com David Blacker

        Ravana, as long as the executions are of captured Tigers and not civilians, I don’t think the west or any other government will really give a damn, anymore than they give a damn about OBL being shot out of hand. So far, there are NO civilians claiming that people were murdered, raped, or tortured by ground troops; at least not on the scale that’ll indicate that it was widespread. The new CH4 interview with this anonymous “Fernando” isn’t even supported by their own previous documentary, so I won’t really give it much credence.

        When you look at wars where it is clear massive crimes against humanity occurred (Bosnia/Croatia, Vietnam, etc), you will see that in addition to the deaths caused by artillery and airstrikes (that can often be explained away as accidental), the clincher is the large-scale killings of people by infantry. That just isn’t there in SL.

      • Gehan

        I think there is a place for dispassionate views on the final days of the war. But you’re being a tad too cynical, David. I don’t think it’s fair to dismiss the allegation of recklessness in respect of a specific event by claiming that all wars are in some way reckless. That’s what I mean by an absolutist stance. All of this boils down to one simple realization: during the final stages of the war, the GoSL could have prevented a large civilian death toll had it not prioritized political/military advantage over civilian life. Simply saying ‘war is nasty; deal with it’ is a conversation stopper. It also leads to impunity.

        You already know that, in dealing with the issue of proportionality, collateral damage is always weighed against military advantage. At the end of the day, the counter narrative does not rule out the presence of recklessness; nor does it suggest that the military advantage gained through exercising the high casualty option was such that it outweighed the civilian casualties that were incurred. Doesn’t this in the very least warrant some accountability? I thought the sessions on restorative justice and reconciliation were very much premised on this notion that there needs to be accountability. People are slowly realizing this. Remarkably, even the ultra Sinhala Nationalists are coming out of the woodwork calling for some investigations. Champaka Ranawaka is a case in point. Who would’ve thought?

        Also, the idea that only a viable political solution can bring an end to this chapter was presented by a number of participants including one of the panelists during the session on restorative justice. Crucially, no one challenged the idea. So it certainly remains (to me at least) the main conclusion of the seminar.

      • http://www.blacklightarrow.wordpress.com David Blacker

        “I think there is a place for dispassionate views on the final days of the war. But you’re being a tad too cynical, David. I don’t think it’s fair to dismiss the allegation of recklessness in respect of a specific event by claiming that all wars are in some way reckless. That’s what I mean by an absolutist stance.”

        I don’t think I’m being particularly cynical, Gehan. It’s just that I don’t see the decision to continue the attack and not besiege the Tiger area to be sufficiently specific. It was a strategic decision, much as the decision to attack in the first place was also strategic. Are you then suggesting that every single military act thereafter recklessly endangered civilians? How do you reckon such a thing? And isn’t that in fact absolutist?

        If your point is to get me to concede that GoSL recklessly endangered civilians by not besieging the area, I’m afraid I can’t do so anymore than I can concede that choosing the military option in 2008 recklessly endangered civilians.

        “All of this boils down to one simple realization: during the final stages of the war, the GoSL could have prevented a large civilian death toll had it not prioritized political/military advantage over civilian life. Simply saying ‘war is nasty; deal with it’ is a conversation stopper. It also leads to impunity.”

        Not at all, Gehan. The GoSL could also have prevented a large civilian death toll by never going to war in the first place. However, they did so because there was a political/military advantage to doing so. To say that advantage was prioritized over the cost of civilian life is correct; that is what every civil leader does when he chooses war to further political will. I’m not saying “war is nasty deal with it”, and certainly not from a legal standpoint; but from an ethical and moral one which was, as you yourself suggest, the seminar’s standpoint as well. This doesn’t bequeath impunity from culpability in war crimes; but to prove the latter, you need to look at things in a more detailed manner, just as you would look at any strategic decision. You have to look at the specifics; the tactics. And that was what my panel was attempting to do.

        “You already know that, in dealing with the issue of proportionality, collateral damage is always weighed against military advantage. At the end of the day, the counter narrative does not rule out the presence of recklessness; nor does it suggest that the military advantage gained through exercising the high casualty option was such that it outweighed the civilian casualties that were incurred.”

        The presence of recklessness cannot be ruled out without a far more detailed examination of the events. The tone of voice of the Darusman Report’s narrative points to the far more serious act of the GoSL intentionally setting out to kill as large a number of Tamil civilians as it possibly could, and it was to this allegation that Arjuna and I were briefed to look.

        Whether the advantage gained in killing or capturing the Tiger high command and destroying an organisation that was directly and indirectly responsible for the deaths of over 100,000 people in 30 years was insufficiently weighty enough in comparison to the numbers of civilians the GoSL expected would be killed around Mullivaikal is a very subjective matter. Personally, I think it was advantageous enough to warrant it.

        “Doesn’t this in the very least warrant some accountability?”

        I think accountability in all things is a necessary requisite of governance.

        “Also, the idea that only a viable political solution can bring an end to this chapter was presented by a number of participants including one of the panelists during the session on restorative justice. Crucially, no one challenged the idea. So it certainly remains (to me at least) the main conclusion of the seminar.”

        As I said earlier, a political solution is necessary regardless of what happened in the closing stages of the war. A political solution was necessary in 1975, and it still is.

      • Gehan

        I appreciate where you’re coming from, David. But there are a few issues that may require further clarification.

        ‘It [the decision not to besiege the tiger area] was a strategic decision, much as the decision to attack in the first place was also strategic. Are you then suggesting that every single military act thereafter recklessly endangered civilians?’

        No, I’m not. I think military actions need to be scrutinized individually–to the extent possible. This is why I limited my inquiry (at the seminar) to the use of heavy artillery in the second and third NFZs. I can’t imagine that EVERY single military act was reckless. But I have doubts about the absence of recklessness in the specific instance cited.

        ‘The GoSL could also have prevented a large civilian death toll by never going to war in the first place.’

        I fear lumping all military acts into one ‘war’ is unhelpful. Surely, a just or unjust war doesn’t automatically exempt or condemn all military acts taken therein. Isn’t that absolutist?

        ‘…to prove the latter [war crimes], you need to look at things in a more detailed manner, just as you would look at any strategic decision. You have to look at the specifics; the tactics. And that was what my panel was attempting to do.’

        You’re right. This is precisely why talking about the decision to go into war is not helpful. We need to examine individual military acts separately. We need to ask more specific questions relating to recklessness and proportionality. As I mentioned before, we can’t escape these specific questions if we wish to engage in a sincere dialogue on the need for accountability and the barriers to reconciliation.

        ‘The presence of recklessness cannot be ruled out without a far more detailed examination of the events.’

        Right again. Leaving aside the narrative of the UNSG Panel Report, the counter narrative at least raises the question of recklessness and warrants a more detailed examination of the events. This is all I really want you to concede; and you have.

      • Candidly

        From what is known and understood about the nature of the LTTE and its leadership, it seems to me pretty obvious that all a siege (as opposed to a concerted attack) would have done is to have given the Tigers even more time to ensure that more northern Tamils suffered and died than actually did. That, after all, was part of the Tigers’ end-game strategy: maximum Tamil suffering & casualties to provide fuel for their supporters in the West & future generations to create more myths & legends to feed future struggles.

      • http://www.blacklightarrow.wordpress.com David Blacker

        “No, I’m not. I think military actions need to be scrutinized individually–to the extent possible. This is why I limited my inquiry (at the seminar) to the use of heavy artillery in the second and third NFZs. I can’t imagine that EVERY single military act was reckless. But I have doubts about the absence of recklessness in the specific instance cited.”

        By instance, I assume you mean the use of artillery in the NFZs, and not the decision to continue military action? See, Gehan, IMO the latter is too broad an action on which to make a ruling of recklessness, which was why I compared it the decision to go to war. We need to look at the sub-actions that then made up that decision. Perhaps the use of artillery in the NFZs is a more realistic series of incidents to examine, but perhaps even then it would be necessary to look at the specific incidents. For instance, in WW2, the Brits decided to continue night bombing in spite of the fact that it was both less effective and more dangerous for the population of Germany, weighing it against the debilitating RAF Bomber Command casualties daylight bombing would entail. Can you therefore rule that reckless endangerment? I think not. HOWEVER, “Bomber” Harris’ decision (which Churchill acceded to) of increasing the target radius to include the housing estates of the German factory workers was a definite war crime within the night bombing decision. You follow?

        “I fear lumping all military acts into one ‘war’ is unhelpful. Surely, a just or unjust war doesn’t automatically exempt or condemn all military acts taken therein. Isn’t that absolutist?”

        I am not lumping them all into one war, but I fear you are lumping together all the acts subsequent to the decision to continue military action. Again, another example from WW2: the Germans decided to use submarine warfare in the Atlantic to cut off Britain and the USSR from US resupply. Submarine warfare in the ’40s wasn’t a precise art, and some might say that this recklessly endangered civilians. But the crime Donitz was charged with and found guilty of was unrestricted submarine warfare which allowed the U-boats to target all vessels in the area, including neutral ones. So it was a decision within a decision that was found wanting.

        “You’re right. This is precisely why talking about the decision to go into war is not helpful. We need to examine individual military acts separately. We need to ask more specific questions relating to recklessness and proportionality. As I mentioned before, we can’t escape these specific questions if we wish to engage in a sincere dialogue on the need for accountability and the barriers to reconciliation.”

        Fair enough, but I don’t think the time allowed my panel at the seminar (not to mention our inability to actually investigate) was sufficient to go into such a detailed examination. It was for this reason that Marga asked Arjuna and I to examine the narrative. I selected the hospital incidents for a detailed analysis because that seems to be at the heart of the report’s conclusions.

        “Right again. Leaving aside the narrative of the UNSG Panel Report, the counter narrative at least raises the question of recklessness and warrants a more detailed examination of the events. This is all I really want you to concede; and you have.”

        I don’t think our counter-narrative raised such a question. The question was always there, as it is in all wars. Reckless endangerment is probably the hardest charge to either prove or disprove. Perhaps you disagree and could point us to some cases where such charges were successfully prosecuted. Arjuna and I understood our brief from Marga as to examine the narrative regarding the SL Armed Forces covering the period January 2009 to the cessation of hostilities, and to specifically address the first two charges mentioned in the Executive Summary — “(i) killing of civilians through widespread shelling; (ii) shelling of hospitals and humanitarian objects”. And this was what we did. Reckless endangerment could very well be said to have contributed to the above two allegations, but the report’s tone of voice and insinuations focus on deliberate intent to kill civilians, and this was what we also therefore focused on. So if you feel that the counter-narrative left the issue of reckless endangerment unresolved, you would be right; because our task was not to resolve that issue.

  • Ward

    I do not know if anyone will ever care to take this government to the courts for what it has been doing from 19May 2009 todate.
    I don’t know about the others. But for me these 26 months have been the most humiliating to those in the Northeast and most disgusting/shameful to watch from the outside.

  • georgethebushpig

    Dear Mr. Blacker,

    Thank you for bringing together a number of points you have raised on different threads in a coherent overview. The question that came to mind as I read your article relates to a comment you made sometime ago, which went some thing like this if my memory serves me correctly:
    – the NFZ was called for as a means to get civilian movement and in doing so, to get the LTTE to scamper after them as their cover got blown
    – As a military strategy it worked remarkably well considering that the LTTE was corralled in a small space (the NFZ) and then made easy to handle.

    If indeed this was the GOSL strategy and how things unfolded, is it not obvious then that the GOSL knew and should have expected there to be LTTE and civilians all mixed up together? This point was made by someone on an earlier thread and I believe goes to the heart of the matter of “intentionality”. To say that the GOSL had to return fire at the LTTE hiding among civilians in the NFZ and that the civilian casualties were “unfortunate collateral” is a misrepresentation and a way of absolving GOSL of its essential responsibility to protect civilians. To my view, it don’t look like the “hole” story you’ve put forward!

    • http://www.groundviews.org Groundviews
    • wijayapala

      Dear georgebushthepig,

      If indeed this was the GOSL strategy and how things unfolded, is it not obvious then that the GOSL knew and should have expected there to be LTTE and civilians all mixed up together?

      Interesting observation- how should the GOSL have responded?

    • http://www.blacklightarrow.wordpress.com David Blacker

      “- the NFZ was called for as a means to get civilian movement and in doing so, to get the LTTE to scamper after them as their cover got blown
      – As a military strategy it worked remarkably well considering that the LTTE was corralled in a small space (the NFZ) and then made easy to handle.”

      That isn’t what I said, George. What I said was that the NFZs (particularly the first one) were created to try and separate the civilians from the Tigers and also deny vital terrain to the latter by forcing them to either reciprocate the declaration and withdraw from the NFZs, or risk condemnation by continuing to defend them. In fact the Tigers went a step further, showing they didn’t give a damn about condemnation, and actively started moving their more valuable assets into the NFZs, shielding them with the civilian presence.

  • wijayapala

    Burning_Issue, I look forward to your response to this article. Also, you can get a good idea how many Sinhalese view the call for war crimes investigations from watching the video at the bottom of the below link (Tamilnet, of all places!!):

    http://www.tamilnet.com/art.html?catid=79&artid=34225

  • http://www.groundviews.org Groundviews

    francesharris0n: @groundviews why doesn’tthis identify author as ex SLA? Holes in the UN Sec General’s Panel of Experts http://tinyurl.com/3ble5fx #lka

    From https://twitter.com/francesharris0n/status/96458167197773824

    • Justitia

      David Blacker is a former sri Lanka Army soldier wounded at Elephant Pass during battle. He later became a writer of fiction.
      http://en.wikipedia.org/wiki/David_Blacker
      Hence he cannot be a neutral commentater on what the SLArmy did during the last stages of the war.

      • wijayapala

        Justitia, are you sad that you could not come up with anything at all to refute David’s analysis, that you could only attack the messenger but not the message?

    • http://thecarthaginiansolution.wordpress.com/ Mango

      So Frances Harrison is annoyed that Blacker’s ex-SLA? Given that she’s “..Head of News, Amnesty International, ex BBC Foreign Correspondent [in SL from 2000-2004], writing book on the end of the civil war in Sri Lanka” I wouldn’t expect anything else :)

      “When will #ban ki moon move on #Sri #Lanka?” ? Yes, when, Frances, when? Aiyooo.. Her Twitter stream is certainly a delight.

      I was pleased to see her giving us the benefit of her long experience in this post-war discussion in Feb 2009, at the Frontline Club (“Sri Lanka – A Hoollow Victory?”) :) alongside Priyath Liyanage (BBC Sinhala), Charu Lata Hogg (Human Rights Watch), Pearl Thevanayagam (Tamil journalist) Raj Jayadevan (Alliance for Peace and Reconciliation in Sri Lanka) and Lal Wickrematunge (by phone).

      http://www.ustream.tv/recorded/1184340

    • wijayapala

      Could someone kindly point to a single pathbreaking or original article that Ms Harrison wrote while she was working for BBC in SL? Anything gleaned from sources other than local media?

      • http://thecarthaginiansolution.wordpress.com/ Mango

        Frances Harrison reported from SL from 2000-2004, so I guess she must’ve done lots of radio, tv and on-line pieces.
        http://www.bbc.co.uk/sinhala/fooc.shtml

        Classic quote from her chat at the Frontline Club discussion: ..Frances Harrison said “the ceasefire days were good to send reports from Sri Lanka but the situation there at the moment is not good.” Perfect. Ceasefire = Good. War = Bad.

        Interestingly, her FB accounts includes as ‘friends’, Sunanda Deshapriya and Arjunan Ethirveerasingam (PR forThe Vanga Machan LTTE ship and ex-TRO).

        For a ‘Person of Righteousness’ nothing particularly surprising, is there?
        http://thuppahi.wordpress.com/2011/06/27/people-of-righteousness-target-sri-lanka/

        There’s a dreadful of Culture Club song which encompasses her mindset perfectly. Watch if you dare:)
        http://www.youtube.com/watch?v=GBd5W9IA7n0

      • Dr Dayan Jayatilleka

        Wijayapala, Frances Harrison did produce a world class scoop, which was telecast globally but was strangely pulled off the BBC’s archives and which she has since developed amnesia about! During the honeymoon of the CFA, 2002 (or 2003), she covered Mahaveera Day. It was the first time that the Black Sea Tigers paraded, in masks. She interviewed Soosai, who said on the record that: “We think other liberation movements should learn from our tactics. We think that Al Qaeda learnt from us, in their attack on the USS Cole in Aden Harbour”. This was telecast on the BBC World’s Asia Today programme in December ( Dec 11th in some places such as Canada, I think) that year.