Photo courtesy Ada Derana

Lieutenant General Daya Ratnayake, a former military spokesman and decorated combat officer, assumed duties on the 1st of August 2013 as the 20th commander of the Sri Lanka Army. No former commander ever assumed duties under more inauspicious circumstances for barely had the ceremonial takeover of command concluded than straightaway came reports that the Sri Lanka Army had clashed with unarmed protesters in Weliveriya in the Gampaha District, with scores injured and several dead.

The new commander has ordered an Army inquiry into the incident and notwithstanding the same, since civilians are dead, with emergency regulations no longer in force, a magisterial inquiry must also be held into the deaths of the individuals concerned.

Awaiting the pending results of the inquiry and at least the magisterial inquiry report must be made public to show justice being manifestly done; the following are some crucial aspects and facts which require the attention of the Army and Magisterial inquiries as well as the attention of the Rajapakse Administration.

A comprehensive defense review is required

Any country following the conclusion of a long drawn out war, would take stock of its post war situation, its post war national security challenges and assess its needs and required resources. Sri Lanka has not really done anything like that and just continued with the huge military machine built up to fight the Tigers, long after they are no more in Sri Lanka. Consequently we have a larger defense budget in peace time than in war time and the utilization of the military in everything from the most benign urban development projects to the potentially more potentially deadly crowd control as Weliweriya demonstrated. A comprehensive defense review in Sri Lanka is required and the Rajapakse Administration should engage in such an exercise.

Should the military be deployed against unarmed civilians?

The United States military has a policy of never deploying its forces for armed action within the United States in situations where the military would be expected to combat American civilians. Specially trained police and the equivalent of our special task force (STF) are available for deployment against even heavily armed civilians, but essentially civilians are managed and controlled by a civilian force rather than the military, an almost essential feature of a democratic and free society. The rationale behind this policy is rather simple. Militaries and military personal are not trained to either use minimum force or deal with apprehending or neutralizing opponents, be they unarmed, lightly armed or even heavily armed, as police forces are trained. Military personnel are trained to defend against or attack and destroy armed actors engaged in waging war, whether such war is conventional, jungle guerilla type or urban terroristic. By no stretch of the imagination were the Weliweriya crowds, any of these.  With the emergency laws no longer in effect the legal basis for the military deployment was also dubious.

The rules of engagement of the military and respect for the media

Now the military spokesman in his initial response was to claim that the police had requested Army assistance for a situation which it could not control or contain. This is in itself surprising, because one presumes the police should have requested its riot squad and not a military contingent of almost brigade strength headed by an infantry brigadier.  However there are key rules of engagement which the inquiry should explore, such as at what point and how long after using tear gas was lethal or deadly force used and why? Namely why did the Army fire live ammunition at crowds that were clearly running away. Generally the objective of crowd and riot control is to disperse. So when crowds were dispersing why was deadly force used. Numerous documented eye witness accounts state that when fleeing protestors took refuge in the nearby Catholic church, any place of religious worship a historic and time honored place of refuge and safety. Yet, like in the Ratnayake Free Trade Zone protest, where the protestors who fled into the factories where followed into the private premises for retribution with deadly force rather than apprehension, the military by numerous eye witness accounts, followed the villages into the church, forced them to kneel down and then split open skulls and caused grievous hurt with rifle butts. There have been some allegations by security authorities that homemade explosives similar to Molotov cocktails were used by the protestors. Even if this was so, an issue would arise as to if the counter force used was both proportionate and specific and directed at the threat. Initial reports seem to indicate that the deadly violence was retributive in nature. Also the military seemingly had a policy of targeting the accredited media present at the scene of a matter of national importance. 

The challenges of demilitarization in the North

From the Association of Working Journalists, the free media movement and the Bar Association, civil society groups have expressed deep concern regarding the incident and in the case of the Bar Association offered pro bono legal services to watch over the interests of the deceased, injured and other victims.

The incident in Weliweriya brings home to the South, the issue of a militarization of society and some empathy with the desire of Tamil leaders for a less heavy handed military presence in the North. Due to the nature of our civil war being essentially ethnic in character, the Achilles heel of the Sri Lankan military is that it is nearly mono ethnically Sinhala and especially the North has a preponderance of Tamils. The thought that might arise among observers is if this is how the Regime uses its military in the Gampaha District against Sinhala villages who are the SLFP’s core constituency, complaining about a particularly non political issue of safe drinking water, then how would they possibly treat Tamil civilians demanding democratic and human rights. As respected academic, writer and diplomat Dr.Dayan Jayathilake wrote “The war came home to the South when the same army that was deployed to liberate Maavilarru was brutally and stupidly deployed against unarmed Sinhala protestors demanding potable water for their daily consumption. In doing so, the regime has irreparably gashed the social contract. Credibility and legitimacy are leaking through that gash”.

  • warforpeacehypocrite

    why not demilitarization of east?

  • I think there are circumstances which allow an American governor to call out the state National Guard to put down civil unrest. The National Guard is part of the US military.

  • Punitham

    ”the police had requested Army assistance”:

    After the Police came under the Defence Ministry they haven’t been doing their duty: what did they do to the BBS monks who attacked Muslim businesses and mosques?

  • Dr Dayan Jayatilleka

    David, only when cities are in flames and snipers are on the rooftops. And the Governor calls in the Guard.

    • I’m not arguing the circumstances, Dayan; just pointing out that the author’s claim that the US has a policy of never using the military against citizens is incorrect. The option is available to the civil leadership, and the decision to use the option is left to subjective analysis of the situation.

      In 1957, the Arkansas National Guard was used by the governor to prevent black students attending a high school, until Eisenhower federalized the unit and took it out of the governor’s control. In the ’60s the National Guard was routinely called out to handle protesting university students, and in May 1970 shot dead four Kent University students and wounded nine. The National Guard has regularly been used to put down riots, the last in 1992 — the LA riots, when both the California National Guard and the state’s Air National Guard was used. They shot five curfew violators. The next year, in the Branch Davidian bloodbath, the Texas National Guard used ground troops, helicopters, and armoured vehicles in support of the ATF.

      The decision to use the National Guard in the above incidents were highly controversial, and not all of them were of the “cities in flames and snipers on the rooftop” variety.

      • I had always thought of the US National Guard as more like our STF or possibly like our home guards, specifically designed for domestic defense and deployment but not deployed overseas. Technically they may be considered military though possibly more para military than law enforcement. But the crucial issue is what David says, their deployment in the instances mentioned were controversial and challenged by society and other organs of government. In fact I believe the ATF was disbanded or merged into another agency after the Camp Davidian affair. Sadly, tragically and alarmingly in Sri Lanka at least among the authorities and the powers that be, Weliweiya seems very routine and nothing controversial at all.

        • The only difference between the US National Guard and the US Army/Navy/Air Force is that the Guard comes under the control of individual state governors while the others come under the command of the president. Most states also have an Air National Guard with its own fighter planes, ground strike aircraft, gunships, etc. They are part of the US Armed Forces and have nothing to do with law enforcement except when called up in circumstances of public security.

          The National Guard is certainly not restricted from overseas deployment; a battalion of the 138th Field Artillery, Kentucky National Guard, served in Vietnam in 1968-69 in support of the 101st Airborne.

          Our Home Guards (now the Civil Defense Force) came under the police administration, and not SL Army, but the National Guard Battalions which are part of the Army Volunteer Force are certainly comparable to the US National Guard, though our guys are basically light infantry and don’t have the integral armour and artillery units that the US version has.

          The STF was always more military than police, created to fight insurgencies and modeled on South African police special forces. It is only after the war that the STF has been given a sort of SWAT-type role against heavily armed criminals.

          • Dev

            You are comparing the US with its many different levels of authority with clear separation of powers to SL -there is only one authority here in Sri Lanka, its the sec of defense !

          • georgethebushpig

            Ok fine. Point made. Can we get back to the issue at hand?

            What is necessary is a large scale demobilization to suit peace time needs. The post-war fears of the military consolidating itself as a actor in civil affairs is now a reality. The checks and balances that curtail military excesses is in tatters, if it ever did exist.

            Here’s the definitive response to all those who want to be apologists for the scum that sicced the war dogs on innocent people…

            http://youtu.be/UYO-YopffOo
            “Aney nikan pala yako yande!”

          • It wasn’t I who made the comparison, Dev.

  • Off the Cuff

    Dear Mr Harim Peiris,

    These military personnel lived through a war. They were trained and conditioned to kill without thinking and their lives depended on that reflex.

    It is foolish to use such personnel in a peace time stressful situation of crowd control without undergoing a proper debriefing program. However they were used and the results were catastrophic.

    You quote Dr Dayan who captured the folly in one sentence. Unquestionably this was an inexcusable folly of great magnitude that should be never repeated. But I am not sure why DJ thought it fit to highlight ethnicity.

    You say “…..and just continued with the huge military machine built up to fight the Tigers, long after they are no more in Sri Lanka. Consequently we have a larger defense budget in peace time than in war time”

    Yes that is true.
    The govt could have demobbed the war veterans like the USA. Would that have solved the problem? Yes the govt would have had a smaller salary bill and a lower defence budget than the current 290 billion rupees.

    Would that be ethical?
    In the world of hard finances sentiment has no place is it? Society is indebted to the soldiers who risked everything to bring about peace. Using a foolhardy administrative act to argue for demobilisation is short sighted. Whatever the ethnicity, Sri Lankans are not ingrates.

    Is demobilisation the answer?
    Gave a thought as to what an unemployed 100,000 military would do to make a living? According to wiki in May 2009 Sri Lanka had a 300,000 strong military. Hence that is just 1/3 demobilisation! Conducive to general law and order I suppose?

    You say “…. and the utilization of the military in everything from the most benign urban development projects …”

    Demobilise them and we have a grave threat to civil society. Keep them idle without utilising the manpower and we have a much heavier burden on the National Budget.

    An idle mind is the devils workshop. Hence we cannot keep them idle either.

    Can you suggest a viable solution to this apparent dilemma?

    • Actually, a significant percentage of the Armed Forces, both officers and men, have seen little or no combat. Many were still in training when the war ended, or were recruited in the four years of expansion since.

      • Punchinilame

        The solution is in hand and LLRC has found it – The Police Dept.
        MUST be removed from the Defence Dept. to start with. Had this been
        so, the deaths may have been avoided at Weliweriya?

  • KK

    People demand water -very reasonable

    But how they demand ? peacefully ? Blocking main roads disturbing other peoples day today activities, burning public property, throwing stones and fire bombs

    Do those activities are fair ?

    Those are the tactics used by the JVP many years to agitate the police ,when fire tear gas, rubber bullets and real bullets , innocent people will be the victims and that will give new beginning to JVP political activities

    People who blame only for one side should think about the other side of the coin

    • I think it’s perfectly reasonable for people to act this way in the circumstances, KK. You comment as if this is the first option these people have chosen. When all the legitimate methods have been exhausted, and you have no clean drinking water, what would you do?

  • Foreign Minister G L Peiris says that nothing will affect GHOGM, He says WHAT HAS HAPPENED IS PART AND PARCEL OF LIFE.

    The Foreign Minister is saying that shooting unarmed civilians is part and parcel of life in Sri Lanka. I am extremely disappointed to hear this from him. His words are hard to believe than those uneducated soldiers’ actions. He is dancing according to their music, instead of directing them to a right path according to his knowledge. He is letting down his people. He is betraying his mother and his motherland.

  • Most of the Sri Lankans are well aware of my writings, if you are not aware then you must visit http://www.lakbimanews.lk and read my comments under the head line “Cannot risk a parallel army in North: Basil.” As a Sri Lankan intellectual I have an obligation to tell what is right for the country and its people. You have a choice to listen to the intellectuals people like us and take the country to the next level, or you can shut us down as LTTE/Western puppets; and let the chaos carry-on. What has happened in Weliweriya is simply wrong, and it has to be stopped at any cost. The government thinks it can shoot or beat up anyone, because it has expanded the Colombo harbor, and eliminated the LTTE by dropping thousands of bombs indiscriminately on Tamils. If the government was really concerned about the innocent Tamils who got caught during the war and taken steps to secure their lives; it would have declared a mourning day after the end of war, instead of encouraging the public to celebrate. You don’t need a PhD in love and care, if you want to feel others’ love and care towards you and your community. Since Weliweriya incidence I don’t believe the government. I really don’t believe the government feels any accountability or responsibility to others. In fact, they are shooting the people without a second thought, because they got away from killing thousands of innocent Tamils. Their present behaviour is saying something about their past. I am reluctant to take their word anymore. Don’t let them to justify their killings and wrongdoings by waving the LTTE flag; if you allow them it will carry on forever. Law and order is extremely vital for the country’s prosperity and growth. Therefore, I am urging all the political leaders, intellectuals, business entrepreneurs, religious leaders and law abiding citizens to rise up, and put a pressure on the government to put an end to its uncontrollable madness. If you keep silence then you are approving the arrogant and ignorant governments’ actions; by doing so you are betraying yourselves and your future generations.

    • Punchinilame

      The voice of the intelligentsia was not visible over the triumphalism of the Regime – it is seeping out now that the South is being treated on
      similar lines, after 4 yrs.
      The modus-operandi is the same – a game of numbers, from zero to 70,000
      deaths, and at Weliweriya from 3 to 11 deaths. This I assure you will
      be the pattern in future as long as the Bros. & co “govern” us.

  • Shan

    It was a time that people of the country believed that police is corrupted and army is more close to the heart of people. One time people use to pray for army and treated them as Heroes. These few soldiers and the commanding officers has tarnished that image in the heart of the people in locally as well as internationally. Every one who love to mother land tried to prove that the Sri Lankan Army is the most disciplined Army in the world. It has been proved in internationally like our peace keeping missions in UN. They were honored with the best peace keeping army in the world. This Weliweriya incident and the way Army has acted has shown the brutalism to the world. I wish top of the Army should act wisely to bring those culprit into books in order to keep our onetime heroes remain the same in heart of people.

  • Dev

    Some people including Dayan, Rajiva and Tamara included have started a petition called:

    Justice for Weliweriya :Time for Indignation!

    Thank you !

    The petition raises the following important question regarding the incident (among others):
    How many have been killed?
    How many injured?
    How many arrested?
    How many disappeared?

    Sounds to me like the same questions the mothers/fathers/brothers/sisters/children of the north have been asking for as well since 2009 ! ! Ironic that the regimes biggest defenders in the international fora(Dayan/Rajiva/Tamara) have also been signatories for this !

    Robin Cook of UK resigned his cabinet post over the war in Iraq as protest.
    Will Rajiva who is a national list MP resign out of “Indignation”? After all he is a national list MP so no question of betraying the voters mandate arises and nothing could indicate his “Indignation” than that !!!

    • J Fernando

      You must be joking or living in a parallel universe !

      Rajiva resigning his MP seat? Yes that will happen when earth flips on its pole !

      Tamara as you might remember fought tooth and nail to remain in at the UNCHCR

      Do you honestly think these people resign ?? Heaven forbid these people having any morals like that….

    • Dr Dayan Jayatilleka

      Please read the Appeal in full. There is a fundamental distinction between a situation of war and one of peace. In Weliweriya, just as in the case of the Trinco 5, there was no ‘fog of war’. There is a basic distinction between the deliberate deployment and use of lethal military force against unarmed civilians, and civilian casualties sustained in the closing stages of an intense war.

      Certainly the initiators and drafters of the Weliweriya Appeal (of which I was one, though not the prime author) have always supported and endorsed the position of the LLRC report that (a) there are identifiable incidents in which crimes may have been committed and which require independent investigation and (b) there was no attempt ‘genocide’ nor was there a policy of deliberately targeting unarmed non-combatant civilians.

      I personally believe, and have published a 500+ page book to argue and not merely assert the case, that it was basically a Just War, but is by no means a Just Peace, in either North or South. I also think that this is the view of the bulk of our citizens including in Weliweriya, and will remain so.

    • georgethebushpig

      Dear Dev,

      I for one welcome Dayan, Tamara and Rajiva putting their names down on this petition (although I agree with Kumar David that reference should have been made to the innocent Tamils killed in April/May 2009). In signing this petition they are tacitly acknowledging that the mindset of the military command structure that precipitated the murder of innocents in Weliweriya is no different from the mindset that drove the massacre of innocents in Mullivaikkal. In fact, the impunity displayed in “peace time” by the GOSL in the Weliweriya incident, confirms the suspicions that the military were equally rabid, or worse, in their killing of Tamil civilians.

      It is good that the apologists themselves are criticizing their beloved regime; this is a harbinger of the coming implosion of this bankrupt family-run dictatorship!

      Regards
      GTBP

  • Dev

    Rajiva/Tamara and Dayan signing this otherwise laudable initiative made me think of Shakespeare, The Merchant of Venice:

    The devil can cite Scripture for his purpose.
    ……

    Oh, what a goodly outside falsehood hath!

  • Sarathe Fernando

    Hey Dayan,

    Any chance there is enough cojones to answer any the questions I posted three or four days ago – on the same subject under your article?

    For the allegations on Army brutality at Mullaivaikal, you defended Governments response of internal investigations and LLRC as adequate and appropriate, and spearheaded the move to scuttle any other accountability initiatives.

    Now, the Government has already ordered an Internal investigation by the Army, and who knows, may even follow it up with a mini LLRC for this Gampaha incidence. Would that satisfy you or do you have any views on this?

    Too ashamed and embarrassed to answer?

    Now Amnesty International has pointedly challenged the appropriateness of the Army to be the one to be given the responsibility for the investigation.

    Do you support the Amnesty or the Army/State? What is your recommendation to the President on this?

    We would like to see if you have the courage and conviction required of a man to take a stand and defend it, never mind a political scientist, an academic, intellect or a diplomat, the other several hats you fancy donning.

    Or, is all your prolific writing merely reflective of that age-old “vessel that makes the loudest noise?!”

    • Dr Dayan Jayatilleka

      I made the point about an independent inquiry rather than an army one, in public, on the record, in Colombo Telegraph a few hours after the episode, in The Island the very next morning, and at length in Sinhala on national TV (Sirasa, Sithijaya, Tuesday Aug 6th 11;15 pm available currently on its website and Youtube) DAYS BEFORE the AI statement and obviously long before you woke up…

      But then again, that isn’t new. When I was Ambassador/PR in Geneva, I wrote a signed piece in the mainstream press ( starting with The Island), denouncing as a fascist act, the murder of Lasantha.

      I did the same before I was a diplomat, regarding the murder of Sivaram.

      Go figure…:))

      • Sarath Fernando

        Hey Dayan,

        [Edited out]

        That aside, it was you who justified the Regime’s LLRC based accountability mechanism of Mullaivaikal as adequate – obviously in equitable terms of your above criteria “transparently fair, independent and impartial”? How come if the state-planned and implemented (LLRC) investigation was adequate for the alleged killing of thousands of unarmed civilians, as well as allegation of war-crimes over those who surrendered, the same is not “transparently fair, independent and impartial” for the killing of three at Welliveriya? Why the sudden fear that there may be an attempt by the State to “Cover-up?” That was my question. Your attempts to red-herring the issue with Sivaram, Lasantha, Richard Soyza and heap of others is just pathetic and desperate.

        Now you wonder in seeming pain: “how must that state have treated the Tamils in the closing stages of the war,… how must they have conducted themselves in the North and East for thirty years and how must they be functioning in the former conflict zones today?”

        The three or so families at Weliweriya have you and Rajiva and Tamara to ask these questions on their behalf – or so you pretend. Who did the thousands of Tamils in the North, their brethren in the Diaspora have to help answer their questions?

        More importantly, wasn’t it you who single handedly blocked all their options? Didn’t you boast about that for four-years unrelentlessly? Didn’t you condemn and dismiss as “domestic Diaspora” any fair-minded Sinhalese asking the same questions?

        Don’t you then owe an apology to all those Tamils, the Diaspora and the “Domestic Diaspora? If not, don’t you think you are just shedding crocodile tears because you have a hidden Agenda with your cohorts – Rajiva and the Bazooka?

        Isn’t it because of your urgency to change course and fashion the soon- to-be-homeless-trio as champions of Democracy that you’ll rushed to leverage the Weliweriya incidence to distance yourselves from the regime and your own loathsome past about which you used to chest-thump repeatedly and often?

        You have the audacity to point your fingers now at the regime and proclaim “Credibility and legitimacy are leaking through that gash” – May I suggest that you get a full length mirror!

    • Dr Dayan Jayatilleka

      Let me make this simple.

      I condemned the murder of Richard de Zoysa at the time, despite what I knew of his JVP affiliations.

      By contrast, when asked by The Island for my comments on the liquidation of Wijeweera and Gamanayake, I was accurately quoted as saying “it couldn’t have happened to a pair of nicer guys”.

      Is the distinction far too subtle for your intelligence?

      Here’s a clue: it was not because Richard and I came from the same part of town or knew the same people, or because his aunt and my dad had been friends.

      When Thamilchelvan was taken out in an air strike, I was pleased and defended it. But I condemned the murder of Sivaram despite what I knew of his Tiger affiliations.

      Try to figure it out.

      • Dev

        Many (myself included) have asked this question many times and yet Dayan keeps a stoney silence on this matter-why do your statements always shield the president? He is after all the “commander in chief” of the armed forces and is ultimately responsible?

  • Dr Dayan Jayatilleka

    In response to the shooting of unarmed civilians in Weliweriya and Balummahara by the Sri Lankan army, today a group of Sri Lankans including two former Ambassadors of Sri Lanka to the United Nations in Geneva issued the statement below;

    APPEAL

    Justice for Weliweriya :

    Time for Indignation!

    “Some party hack decreed that the people had lost the government’s confidence and

    could only regain it with redoubled effort. ?

    If that is the case, would it not be simpler?If the government simply dissolved the people and

    elected another?” – Attributed to Bertolt Brecht, “The Solution” [“Die Lösung”] (c. 1953)

    The shooting of unarmed civilians in Weliweriya and Balummahara by army soldiers equipped with T-56 assault rifles, armoured vehicles, and bullet-proof vests, is of unusual gravity for the consequences it will certainly have on the confidence placed by the ordinary citizen on those in power.

    What confidence can people have in a State that uses live ammunition against its own unarmed citizens, whose peaceful protest for drinking water cannot by any stretch of imagination be compared with participation in hostilities in an armed conflict situation? They were only exercising their fundamental democratic right to organise and to protest. Their demand was for the basic right to clean drinking water and closure of the export-oriented glove-manufacturing factory Venigros Ltd owned by Dipped Products PLC, a subsidiary of Hayleys Group allegedly responsible for contaminating ground water by disposal of dangerous chemicals. The company must also assume responsibility for the tragedy if it failed deliberately to take timely action to respond to the legitimate concerns of the people.

    Why did the members of the Government, and local authorities in charge, fail to take action, and to prevent escalation by ensuring that the company fulfils its responsibilities, despite the matter having brought to their attention?

    A number of other pertinent questions arise.

    Who gave the army orders to intervene and deploy as it did?
    Who gave the army orders to fire?
    Did the law enforcement authorities exhaust all other means available to them before calling in the army?
    Did those who directed the operation identify an external enemy or a lethally armed internal enemy to justify army intervention?
    Who decided to impose the unofficial curfew, electricity blackout, curtailment of telephone transmission, and stoppage of transport along the Colombo-Kandy road?
    Why were representatives of the media deliberately targeted?
    When the military spokesman Brigadier Ruwan Wanigasooriya seeks to justify army action by arguing that a certain group had attempted to “fish in troubled waters” and denies, despite evidence to the contrary, the attack on journalists, does this reflect the position of the Government?
    Even if the claim by the Ministry of Defense is true, that a political group was indeed involved in organising the protest action, since when does that give the army the right to fire live bullets at unarmed civilians? Such actions are neither morally nor legally acceptable. They must be repudiated through clear condemnation and an independent, impartial inquiry that makes responsibilityfor the tragedy clear.
    The people also have a right to know the truth. How many have been killed? How many injured? How many arrested? How many disappeared?
    The fundamental principles, rules and standards that should govern every organised State in the world today, whatever form that State may take, were violated last Thursday, on 1 August, in Weliweriya and Balummahara when army soldiers fired on unarmed villagers, killing several, among them two schoolboys. News reports allege more, with injuries to numerous others, of whom three are in a critical condition under intensive care, and also assaulting of journalists as well as youth.

    It cannot be stressed enough that the role and responsibility of the armed forces of a State is to defend the sovereignty, independence and territorial integrity of the country and people against external threats, an external enemy (international armed conflict) and to deal with internal (non-international) armed conflict situations. Ensuring law and order within the territorial borders is the responsibility of the law enforcement authorities, primarily the police force.

    Law enforcement operations in situations other than armed conflict are conducted by the police and are governed by the human rights obligations of the State. During such operations, law enforcement officials must pay utmost attention to their obligations to respect and protect the life and security of all persons.

    When armed forces are required to come to the assistance of civil authorities to deal with internal disturbances and tensions, they must play a reinforcement role, subordinated to civilian authorities.

    The International Covenant on Civil and Political Rights (ICCPR) lays down that the only time a government may take measures derogating from some of its obligations is “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. (emphasis added).”

    The right to life, the prohibition of torture, the right to recognition as a person before the law, are among the non-derogable rights.

    In Weliweriya, the authorities clearly failed to abide by the principles of legality, necessity, proportionality and precaution, violating the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF), as well as the standards for law enforcement practices that are consistent with provisions on basic human rights and freedoms, as set forth in the UN Code of Conduct for Law Enforcement Officials (CCLEO).

    While extending our solidarity and support to the residents of Weliweriya and Balummahara and other affected areas of Gampaha, we would like to note that in this mobilisation, the people of Weliweriya and Balummahara are exercising their fundamental right to organise, mobilise and to take direct action for drinking water, the supreme right to life, without which all other human rights would be devoid of meaning.

    While it is the responsibility and duty of the State to create the conditions favourable and necessary for the exercise of all human and democratic rights, the role of law enforcement authorities is to guarantee those rights. It is understandable that the President has publicly refrained from apportioning blame on anyone prior to a comprehensive inquiry, but a public statement from him condemning the incident and promising severe action against those found responsible for the deaths and other excesses would have helped a great deal in reassuring the hapless victims of Weliweriya that the State would not shirk its responsibilities towards its citizens.

    But is the role of the army in Sri Lanka now being distorted at the cost of human lives?

    Are Weliweriya and Balummahara a foretaste of what is in store for those who exercise their right of democratic dissent? Katunayake in May 2011, Chilaw in February 2012, Weliweriya in 2013, on top of numerous events in the North during this period, amount to more than coincidence, with so many instances of workers, fisherfolk, and villagers paying the price. Who’s next? Is Weliweriya a turning point? Is the Government going to protect and promote the interests of a privileged few, at the expense of the toiling multitude and the citizens at large, with grave consequences for democracy, in which sovereignty resides collectively with the « demos » i.e.« the people ». Is it not immoral to actively encourage the construction of a 38-storey casino when the regime is not committed to the provision to 10,000 modest families of clean drinking water?

    We must recognize that, without assuming all provocative acts are by external agents, there are those within the State too who wish to provoke and polarize. But the vision they propagate, of domination rather than consensus, of violence for elimination of opposition rather than discussion, will inevitably provoke similar extremism in others – as we found to our cost over the last several decades.

    Popular mobilisation is never without reason. There is still time to awaken from our collective stupor and take our destiny into our own hands, to build a society in which we can all live together, as equals, in peace and harmony, enriched by our cultural differences, in a united Sri Lanka.

    It is Time for Indignation! Let us take collective action to ensure respect for the rights and dignity for all!

    Signed by:

    Tamara Kunanayakam, Economist, former Permanent Representative/Ambassador of Sri Lanka to the United Nations in Geneva & the Vatican, and in Havana; Mandana Ismail Abeywickrema, Journalist/President, Sri Lanka Journalists’ Trade Union (SLJTU); Dr. Sarath Buddhadasa, Management Consultant; Nirmal Ranjith Dewasiri, President/The Federation of University Teachers’ Association (FUTA); Amar Gunetilleke. Consultant; Vajira Gunawardena, Artist; Jayanthi Gunawardena, Tourism Professional;

    M.A.M. Fazul; Dr. Manoranjana Herath, Sculptor/Lecturer, University of the Visual and Performing Arts; Dr. Nalinda Jayatissa, Convenor, National Organiser, Socialist Student Union; DBS Jeyaraj, Journalist; Dr. Dayan Jayatilleka, former Permanent Representative/Ambassador of Sri Lanka to the United Nations in Geneva, in Paris, and UNESCO; (Mrs) Sanja Jayatilleka, Accountant; Supipi Jayawardena, Lecturer, Monash College Sri Lanka; Dumith Kulasekera, Artist; Sanjeewa Kumara, Artist; Kamal Nissanka, Attorney at Law, Secretary General/Liberal Party, Member of Rule of Law Committee, Bar Association of Sri Lanka; Subramaniam Nagendra, Engineer; Dr. Newton Peiris, Vice-President/Liberal Party; Selyna Peiris, Attorney-at-Law, former Chair/Council of Asian Liberals and Democrats Youth; Wasantha Samarasinghe, President/Inter Company Employees’ Union (ICEU); Dr. Ranil Senanayake, Systems Ecologist; M.H. Mohamed Hisham, Former Convenor (2007-2009), Sri Lankan Youth Parliament; Easwaran Christian Rutnam, Journalist/Foreign Correspondent; Chandraguptha Thenuwara, Artist; Fr. Vimal Tirimanna, CSsR; Dr. A C. Visvalingam, President/The Citizens’ Movement for Good Governance – CIMOGG; J.C. Weliamuna, senior lawyer and anti corruption activist; Priyantha Udagedara, Artist; Rajiva Wijesinha, MP; Javid Yusuf, Attorney at Law

    To sign the Appeal “Justice for Weliweriya – Time for Indignation!” please send your signatures to [email protected]

  • Strike One

    the military blocks the main roads in Colombo for several days to hold night races. but when people block a road for a few hours demanding clean water the military shoots them…

  • georgethebushpig

    Dear Dr. Jayatilleke,

    You have finally come clean (or dirty as some would argue). You would call for an independent inquiry into the killing of innocents in Weliweriya but make a “distinction between war and peace” when it comes to the killing of innocents in Mullivaikkal.

    Let’s look at it this way: if the “fog of war” didn’t influence the decision making in Weliweriya and it led to the murder of innocents, is it not reasonable to assume that the “fog of war” didn’t have any role in the decision making when it came to the liquidation of innocents in Mullivaikkal?

    Sorry mate, there’s no “distinction” to be made when it comes to killing innocents whether in war or peace. Here’s where you’ve been wrong all along. Just accept that you were swept up with the rest of the jingoistic Sinhala chauvinists and maybe, just maybe, you’ve come to see the truth now.

    On your other point, it is mighty big of you that you condemned the murder of Richard De Soyza despite his “affiliations with the JVP”, as if affiliation with the JVP was a crime punishable by extra judicial killing. Pray tell what was it, if it wasn’t that he was from the “same part of town”, that made you condemn his murder but cheered on the murder of Wijeweera and Gamanayake? If it was personal, hey, fair enough… if someone was planning on taking you out and they got taken out first, hurray!

    But alas, this is not about the personal, but about the wielding of STATE POWER and the RULE OF LAW! As a moral actor and political scientist you need to rise above the personal, otherwise you are no different from the rest of the gangsters living in paradise!

    Regards
    GTBP

    • RE

      GTBP,

      Well said! You are one of the most perceptive observers of the local scene (BTW, thank you for posting the link to that most apt youtube video!) While I am hopeful that the worm might be turning I am a bit weary as well, since we’ve been here before.

      The ink on that excellent piece by Prof. Niranjan wasn’t even dry when Weliveriya happened, proving yet again the existence of the ‘Sri Lankan constant.’ It may be that some are waking up (or admit to waking up) to the true nature of the beast, but it will probably not help the problem of those unable to pronounce ‘bambarayak.’ Here’s hoping this ‘waking up’ will make the latter’s burden slightly more bearable.

      Thank you once again for your most pithy comments!

      • georgethebushpig

        Dear RE,

        Thank you for the kind words although I don’t believe I’m deserving of your characterization of me being “one of the most perceptive….”.

        Glad to know that we see things the same way.

        Peace
        GTBP

    • The main distinction is whether the killings were intentional. In Weliweriya it was, in the NE it wasn’t. That’s not too hard to grasp, I think.

      • georgethebushpig

        How did you reach such an emphatic conclusion that Weliweriya was intentional?

        • georgethebushpig

          Dear David,

          Glad to see you are deeply contemplating this question; hopefully, you’ll reach the same conclusion I did.

          Regards
          GTBP

          • David Blacker

            Actually, I hadn’t noticed your question ’til just now. I’m not sure why you are so keen that I reach the same conclusion as you, but let’s test that. Are you suggesting that the Weliweriya killings might have been accidental?

          • David Blacker

            I had responded yesterday when I first saw your question, but comments seem to be disappearing. I’m not too sure why you hope I will reach the same conclusion as you, but what exactly is your conclusion; that the Weiweriya killings were accidental?

          • georgethebushpig

            Both your responses don’t answer the question how you reached the
            conclusion that Weliweriya was intentional. Wanna take another shot at
            it (no pun intended)?

          • David Blacker

            To take another shot implies there was a first shot. Since you claim to have reached a conclusion and hope that I will reach the same eventually (suggesting that your conclusion is different to mine) I asked you how you came to believe the Weliweriya killings were accidental. Want to take a shot at answering that?

            On my opinion that the killings were deliberate, this is my train of thought:

            (1) The protestors were not apparently armed with firearms (I say apparently because there has been no credible report of any firearms), and so the deployment of infantrymen armed with assault rifles gives the impression that the possibility of a protestor being shot was on the table as a solution to breaking the demonstration.

            (2) The unarmed protestors were the objective of the deployment; in other words, they were not bystanders but the targets. Whether the individuals killed were part of the protest or bystanders hasn’t been conclusively determined, but even if they were bystanders, their deaths cannot be said to be accidental. They were either shot deliberately as protestors, or shot in reprisal.

          • georgethebushpig

            Dear David,

            Firstly, your use of the term “intentional” to make a distinction between what happened in Weliweriya as opposed to Mullivaikkal is incorrect, considering that Weliweriya was not a war situation. The distinction is a non sequitur. We could stop the discussion right there however let’s examine the 2 situations in the sense of what could be understood as “deliberate”.

            Let’s look at the alleged liquidation of innocents during the so called “mopping up operations” in Mullivaikkal using the same arguments you have put forward with regard to Weliweriya. The Tamil civilians caught in the crossfire were not armed. While the objective of the deployment was to eliminate the LTTE, the conflation of the terms Tamil and terrorist, resulted in those remaining in Nandikadal after the last battle, whether innocents or combatants, becoming targets for liquidation. “Bystanders” were transformed into combatants and were deliberately shot.

            The commonality between Weliweriya and Mullivaikkal is political expediency. The underlying command structures reflexively respond with massive force. Weliweriya is a recent reminder of the exercise of deadly force against civilians and shows that the standard operating procedures apply irrespective whether in war or peace.

            The Mullivaikkal narrative above will undoubtedly elicit howls of protest saying these are all unsubstantiated and the same old arguments will be churned out. Currently, the only real distinction that can be made between Weliweriya and Mullivaikkal is the fact that there are on-going army and magisterial investigations with regard to Weliweriya (although it is hard to expect a credible outcome from either one of them).

            I guess we will never really know the truth of what happened in Mullivaikkal until we have an independent and credible investigation. Hence my criticism against the hypocrisy
            of calling for investigations with relation to Weliweriya but not Mullivaikkal. Calling for one and not the other is morally abhorrent.

            Regards

            GTBP

          • David Blacker

            Oh dear, looks like someone’s having a slow day at the office.

            “Firstly, your use of the term “intentional” to make a distinction between what happened in Weliweriya as opposed to Mullivaikkal is incorrect, considering that Weliweriya was not a war situation. The distinction is a non sequitur. We could stop the discussion right there however let’s examine the 2 situations in the sense of what could be understood as “deliberate”.”

            Yes, we could stop there and leave you looking a bit foolish for asking me to explain a concept that you had already dismissed regardless of my explanation. Aside from that, I never claimed Weliweriya was a war situation, nor does intent to kill necessarily have to be qualified by war. There are many instances where legal violence can be applied.

            “The Tamil civilians caught in the crossfire were not armed. While the objective of the deployment was to eliminate the LTTE, the conflation of the terms Tamil and terrorist, resulted in those remaining in Nandikadal after the last battle, whether innocents or combatants, becoming targets for liquidation.”

            There was no such conflation in reality, and no civilians were targeted for liquidation, so I guess your argument falls flat at the first step.

            ““Bystanders” were transformed into combatants and were deliberately shot.”

            They were not. I thought this was going to be a serious discussion, but I guess I should have taken my cue from your first para lol.

            “The commonality between Weliweriya and Mullivaikkal is political expediency. The underlying command structures reflexively respond with massive force. Weliweriya is a recent reminder of the exercise of deadly force against civilians and shows that the standard operating procedures apply irrespective whether in war or peace.”

            Unsurprisingly, you’re wrong again. While in Weliweriya the military was unneeded and therefore the force used was disproportionate, the force applied in the NE was proportionate to the threat.

            “The Mullivaikkal narrative above will undoubtedly elicit howls of protest saying these are all unsubstantiated and the same old arguments will be churned out.”

            More like gales of laughter actually that you had to make up stuff to build an argument.

            “Hence my criticism against the hypocrisyof calling for investigations with relation to Weliweriya but not Mullivaikkal. Calling for one and not the other is morally abhorrent.”

            Only if you need to twist one incident so that it looks like the other as you have so crudely done above. The distinction as I stated days ago, is that civilians in the NE were killed in the course of a war to destroy the Tigers; the civilians were not the targets and their deaths were not deliberate; but in Weliweriya, the protestors were the targets and the Army was sent in with assault rifles to stop them, and they did so by shooting at them. So in Weliweriya it was deliberate.

            Once more, the advocates (such as you) calling for investigations in the NE have taken the lazy way out and attempted to compare two different situations in the hope of getting a piggy-back ride. Laziness is not going to help you gain what you seek. It’s going to take hard work, and you’re just too lazy to do it, sadly.

          • georgethebushpig

            Reading through your response again I was reminded of Monty Python’s Flying Circus skit the “Argument Clinic” – see from 1:27 http://youtu.be/wdoGVgj1MtY

            “No it isn’t, yes it is”

            Cheers
            GTBP

          • David Blacker

            Yes, stay focused on comedy; you’re much better at that than analysis.

      • Sarath Fernando

        David,

        Dayan has been giving us and the internationals this same assurance about Mullaivaikal over the last four years.

        Now he suspects that the Government is capable of “Cover-up” and wonders, presumably in pain,”how must that state have treated the Tamils in the closing stages of the war,… how must they have conducted themselves in the North and East for thirty years and how must they be functioning in the former conflict zones today?”

        Would you know why? Or do you think it is up to Dayan to enlighten us on his radical change in opinion and sudden loss of trust in the Government?

        • David Blacker

          As far as I can see, DJ hasn’t changed his opinion on the civilian casualties in the NE, and in fact has clearly indicated the NE and Weliweriya as distinctly different. So I don’t think there is any change in opinion (I might be wrong, and DJ can clarify that); just a seeming change in attitude towards the GoSL.

  • hannah rajaratnam

    Spot on GTPD.

    It is called ‘sitting on the fence’ first leaning,falling over to the left,sitting up the fence again and waiting to take a dive to the other side’ Always watching which side has the biggest mean and cruel clout so that ‘he will not be taken out’.
    Thanks
    rg

  • Jayalath

    Who is responsible for the attack?

  • David Blacker

    A lot of comments seem to have disappeared or are hidden?

    • Changed commenting system to Disqus. All the comments are there, but may need to click on the tabs above to see them (Newest, Best etc).

      • georgethebushpig

        Can’t see the comment while it is being moderated anymore.

        • Incorrect. After submitting it, just click on the ‘See your comment’ link on Disqus.

          • Off the Cuff

            Is the tab that gave the latest comments of all web comments (mixed topics) on GV no longer available?

          • No. All of that functionality is now on the commenting system itself, plus a whole lot more. See here – http://disqus.com/websites/

          • OTC, managed to get Disqus to show the latest comments on the sidebar – replicating the feature on the earlier site you were asking about. Hope this is to your liking.

          • Off the Cuff

            Yes, that is great. It facilitates discussions in a wider area.

          • georgethebushpig

            Ok. But if you close the tab and return to it later it doesn’t show that it is still pending moderation like in the previous version. Maybe I’m missing something.

          • It does for us on our end, and in any case, Disqus is far more reliable than our previous comments system.

  • David Blacker

    “It seems you have access to results of an independent and credible investigation about what happened in Mullivaikkal that none other than yourself has.”

    Given your emphatic claim of targeted mass murder in the NE, I would think it was you that needed to share the evidence that has led you to such a belief. I myself have used whatever evidence (or lack thereof) available in the public domain.

    “[Edited out] we will continue to agitate for the reinstatement of the rule of law for all Sri Lankans.”

    Admirable as that crusade is, I believe hard unglamourous work is more likely to glean results than laziness oops, I mean agitation. When one gets too agitated there’s an inevitable editing out.

    • georgethebushpig

      “Given your emphatic claim of targeted mass murder in the NE, I would
      think it was you that needed to share the evidence that has led you to
      such a belief. I myself have used whatever evidence (or lack thereof)
      available in the public domain.”

      Sorry mate, it was you who made an emphatic statement that NE wasn’t intentional and that Weliweriya was. My point is that this is a false construct and without an independent and credible investigation for Mullivaikkal, as called for in Weliweriya, concluding that NE wasn’t intentional is hypocrisy at its worst.

      Please do come back with a “no it isn’t”.

      Regards
      GTBP

      • David Blacker

        “Sorry mate, it was you who blah blah”

        You mean that’s better than a “no, it isn’t”? Lol. It’s always amusing when argument is abandoned (inevitably) for “No, it was you who said, etc”, coupled with comments on grammar, syntax, psychological analysis, etc. Inevitable.

        My comment is based on my opinion, as is yours. If you believe that you can conclude guilt in the NE without an investigation, I see no reason for me to require one to refute it. My opinion is based on existing evidence, yours is based on conjecture and fantasy. I have explained to you how I arrived at my conclusions, and predictably you have been unable to.

        Quick, google another comedy show or come back with another “no, mate it was you who who”. 😀

        • georgethebushpig

          Are you being deliberately obtuse? I haven’t concluded guilt because I cannot without recourse to an independent and credible investigation – that is the reason I say what is good for Weliweriya should also be good for Mullivaikkal. You on the other hand are able to exonerate the military without one because it seems that you have some divine insight into what happened. Bravo!

          • David Blacker

            “Are you being deliberately obtuse? I haven’t concluded guilt because I cannot without recourse to an independent and credible investigation”

            George, please don’t embarrass yourself further by adding lies to your long list of squirming, backtracking, denying, and goalpost shifting. This is what you said: “the conflation of the terms Tamil and terrorist, resulted in those remaining in Nandikadal after the last battle, whether innocents or combatants, becoming targets for liquidation.” Targeting civilians for liquidation is a war crime, and those doing the targeting would be war criminals. You have arrived at this conclusion of guilt. You refuse to explain how. And yet you claim my conclusions require an investigation. If you stopped wriggling and trying to score brownie points and instead answered my first question, you wouldn’t have your buttock in this particular crevice.

            Exoneration, doesn’t require evidence, hence it doesn’t require investigation to prove it. Have you never heard of the burden of proof and where it lies? The evidence thus far available on the NE doesn’t show signs of a crime against humanity by the SL military; whereas at Weliweriya it indicates a crime/atrocity was committed by the SL military. In the latter case, an investigation could find the individuals who are responsible for it, and whether culpability can be extended to the civil leadership.

            To avoid further embarrassment on your part, I suggest you think your argument through before committing it to the public domain so hastily.

          • georgethebushpig

            Dear David,

            This is the sentence I wrote which preceded what you quote: “Let’s look at the alleged liquidation of innocents during the so called “mopping up operations” in Mullivaikkal using the same arguments you have put forward with regard to Weliweriya”.

            Does this convey the sense of a conclusion? For a pretty decent writer you have rather poor comprehension; weren’t they meant to be learned together in primary school?

            You have a rather poor habit of projecting on to others your own failings and a breathtaking inability to accept when you are wrong.

            That’s all from me.

            Regards
            GTBP

          • David Blacker

            Oh dear, George, more backtracking and “no, I didn’t say its”?

            The point is that these are ALL allegations, and I made mine. You challenged it, I explained it. You then attempted to invalidate the allegation while making one of your own. The difference I was pointing out is whether intent can be concluded from the available evidence. It was you that brought up the need for an investigation, which is quite unnecessary except to prove guilt.

            My conclusions/allegations are based on existing evidence, and there is none to support the allegations in the NE, but seemingly enough at Weliweriya. Your reluctance to commit yourself to a standpoint (aside from “we need an investigation”) is the problem. You demand that I substantiate a conclusion, suggest it’s different to yours, refuse to state your own conclusion, and then backtrack and shift goalposts for days.

            Do you even have a point, or are you now going away because you’ve forgotten? When you debate dishonestly, you just look slimy. What’s the point of that?

          • georgethebushpig

            Dear David,

            Please permit me one last attempt… here’s the comment you made that set this
            all off:

            “The main distinction is whether the killings were intentional. In Weliweriya it was, in the NE it wasn’t. That’s not too hard to grasp, I think.”

            That’s a pretty definitive and authoritative statement to make don’t you think?
            Which part of that statement sounds like an “allegation” to you? Furthermore, you derisively dismiss those who don’t see this distinction as being thick.

            Is it that difficult for you to concede that maybe, just maybe, you don’t have
            all the “evidence” to be able to draw such a definitive and authoritative conclusion? Wouldn’t a little circumspection on your part be too much to ask for?

            What I was hoping from you with regard to the distinction you made, was an explanation of how the decision making of the command structure that was patently unconcerned about killing civilians in Weliweriya would somehow have been different in relation to how it perceived civilians in the NE. In other words if civilians are murdered by the army in peace time what checks and balances were there to avoid them doing the same in war?

            Regards
            GTBP

          • David Blacker

            “That’s a pretty definitive and authoritative statement to make don’t you think?”

            Only if you believe I am the definitive authority on it 😀 I’m flattered, but your faith could be misplaced.

            “Which part of that statement sounds like an “allegation” to you? Furthermore, you derisively dismiss those who don’t see this distinction as being thick.”

            All accusations are allegations, some supported by evidence, some not. As for derision, please read through your own comments and consider the tone of them for yourself. You have been insincere in this debate from the beginning. You claim to have reached a conclusion, suggested it’s different to mine, but on every occasion questioned have refused stubbornly to state what it is. Thus with your conclusion/standpoint hidden, you seek to invalidate other conclusions and opinions. Why are you so insecure about your conclusion?

            I even wrote a post about debaters like you, check it out: http://blacklightarrow.wordpress.com/2011/03/09/blacklight-manual-bm-9876-counter-guerrilla-intellectual-operations/

            The distinction between Weliweriya and the NE is so glaringly obvious to all but the most blinkered. There is evidence of deliberate killing in Weliweriya; there isn’t in the NE. If you believe differently, then let’s discuss the evidence. Either way, George, it requires you to take a standpoint and state the actual context of your opinion; not wriggle around in the hope that you can confuse me into saying something you can then wave like a flag. I can assure you I’ve debated far more slippery characters than you in the past.

            “Is it that difficult for you to concede that maybe, just maybe, you don’t haveall the “evidence” to be able to draw such a definitive and authoritative conclusion?”

            I have unequivocally stated several times over the past few days that my opinion/conclusion is based ON THE AVAILABLE EVIDENCE and the apparent intentions of the parties. I can’t help it if you read selectively. The available evidence doesn’t indicate deliberate killing of civilians in the NE. This has been debated now for four years and that seems to be the consensus; that there is no evidence of war crimes, and no other indications either. The final summing up has been done by the IDAG-S Report (have you read it?). In the case of Weliweriya, the evidence indicates that the killings were deliberate. If you wish me to patiently humour naivete, I really can’t be bothered, and I’m sorry if this upsets you, but it’s time to move on from that dead horse.

            “What I was hoping from you with regard to the distinction you made, was an explanation of how the decision making of the command structure that was patently unconcerned about killing civilians in Weliweriya would somehow have been different in relation to how it perceived civilians in the NE.”

            I’m glad you’ve finally found the capacity to stop beating around the bush and ask questions instead of pretending to know the answers. From this I take it that your actual intent is not to come to a conclusion on Weliweriya based on events, but form a parallel between Weliweriya and the NE based on command attitude; ie it’s the same alleged perpetrators so therefore the intents and actions must be the same. For that, the question you need to ask is what the intentions were at Weliweriya; was it lack of concern that civilians might be killed, or was an escalation and probable killing the actual intention? I can’t help you there, and you will have to do your own searching for that. My distinction wasn’t based on that. If you had asked this question at the beginning we could have avoided all this to’ing and fro’ing.

            What I can point out to you is that in the NE, the intent (as far as we know) was not to harm civilians but to destroy the Tigers. There could and probably was an acceptance that certain numbers of civilians would die as a result. That doesn’t indicate intent to kill as long as it was proportionate. At Weliweriya, it was the civilians themselves who were the targets of the military; there wasn’t a third party in the event. So if armed infantry are sent in to break up a demonstration by unarmed protestors, proportionality has already been breached. Intent has been declared.

          • georgethebushpig

            Dear David,

            I see you’ve been battling with an imaginary foe (i.e. “guerrilla intellectual”) and not necessarily understanding the point I made in my original post on the duplicity of calling for investigation in to Weliweriya as opposed to Mullivaikkal, or the following conclusion I had put forward 5 days ago:

            “The commonality between Weliweriya and Mullivaikkal is political expediency. The underlying command structures reflexively respond with massive force. Weliweriya is a recent reminder of the exercise of deadly force against civilians and shows that the standard operating procedures apply irrespective whether in war or peace.”

            Your response was to refer to “proportionality” and to conclude that military actions in NE were indeed proportional – case closed . In your recent response you say the following: “The available evidence doesn’t indicate deliberate killing of civilians in the NE. This has been debated now for four years and that seems to be the consensus; that there is no evidence of war crimes, and no other indications either. The final summing up has been done by the IDAG-S Report (have you read it?).”

            Yes I have, and the IDAG-S report concludes the following, among others:

            “13. Nevertheless, that civilian deaths and injuries from Government Forces firing did occur is indubitable, but one has to be cautious in concluding intentionality from such a result without having studied each incident in detail and taken into account issues like: (a) the conditions ruling at the time of the attacks; (b) whether the commander ordering the attack believed his actions would cause clearly excessive levels of civilian harm in relation to the anticipated military advantage gained; (c) the reasons behind the choice of weapon used in a vast majority of the attacks – mortar as against artillery, rockets and airstrikes; (d) considered the military advantage gained as being part of the overall military objective of which the attack was a part.”

            If “one has to be cautious about concluding intentionality” the reverse must also be true: one has to be cautious about concluding unintentionality , especially without “studying each incident in detail”. The IDAG-S goes on to complete its report with a defining quote from you (obviously someone thinks you are an authority), which seems to suggest that there is no necessity for an independent and credible investigation given that the only evidence available points to war crimes of the LTTE.

            Conclusion 13 and yours are however contradictory considering that yours is based on “as far as we know” and “available evidence” rather than on a rigorous independent and credible investigation of specifics. It is only through the investigation of the specifics will we be able to draw an overall credible conclusion. Otherwise it is pure conjecture based on a partial analysis. Only through the analysis of the specifics will we be able to determine if crimes were committed, who was responsible (whether GOSL or LTTE) and to bring those responsible for crimes to justice.

            Which brings me back to where I started: calling for an investigation into Weliweriya as opposed to Mullivaikkal is just two-faced. What I would like to see is that we institute a process that counteracts the continued exercise of impunity in our country, restore the value of human life and not be pawns of those who wield the monopoly of violence.

            Regards
            GTBP

          • David Blacker

            “I see you’ve been battling with an imaginary foe”

            Lol, it is a viewpoint on a style of debate that you have embraced, that’s all. I leave imaginations and fantasies to you.

            “and not necessarily understanding the point I made in my original post”

            Which is why I asked you to state your point. Which part of “Do you even have a point, or are you now going away because you’ve forgotten,” did you not understand?

            “If “one has to be cautious about concluding intentionality” the reverse must also be true: one has to be cautious about concluding unintentionality”

            At the risk of being mocked for disagreeing with you (always a good ad hominem strategy when one can’t abide disagreement), I must point out that this isn’t true. It is not a 50-50 situation; the burden of proof is on the accuser, and until such evidence is produced, “unintentionality”, aka innocence, is taken for granted.

            There is a school of thought that believes that the reason there is opposition and scorn for calls to investigate Weliweriya is that it will cripple attempts to prove that killings in the NE were genocidal based on racism. After all, if the racist Sinhalese Buddhist state can kill Sinhalese in the same way as Tamils, then it will be hard to substantiate a charge of race-based genocide.

            “The IDAG-S goes on to complete its report with a defining quote from you (obviously someone thinks you are an authority), which seems to suggest that there is no necessity for an independent and credible investigation given that the only evidence available points to war crimes of the LTTE.”

            It may be your opinion that only an international investigation can be credible, and in the case of an investigation in to the entire final campaign as a whole, I agree. However, I believe that other forms of domestic investigation can be credible, and in fact must be allowed — and indeed pushed for — before concluding the necessity for an overall investigation of the entire campaign by an independent body. The grounds for an overall investigation can only really be on charges of crimes against humanity (ethnic cleansing, genocide, etc) which require a large scale investigation in order to prove guilt. But I believe there are many steps before that step; given that there seems to be no credible grounds to launch the larger investigation as yet.

            The smaller steps are the investigation of specific incidents such as the ACF massacre, or better still, any other specific instance of alleged murder of regular civilians. I would also suggest the investigation of specific instances of murder of non-combatant former combatants such as POWs and surrenderees (the now infamous white-flag incident, the killing of Col Issipriya and Col Ramesh, etc), but I believe there won’t really be much international support (much less local) of an investigation into the extra-judicial killing of Tigers anymore than there would have been into lynching of Waffen-SS and other Nazi personnel.

            If these specific investigations are able to then show a pattern of deliberate murder, it could warrant a larger investigation by an international body; but until the smaller steps are taken it is very unlikely you can simply jump to this messianic international investigation you are all dreaming about. So in that context, I don’t believe what I’ve been quoted as saying by the IDAG-S Report contradicts point 13; not unless you fail to understand just why an international investigation is so unlikely without a lot of hard work at the initial stages; hard work that people like you seem unwilling to undertake. Contrary to popular belief, manna doesn’t fall from heaven anymore.

            The first step will be to form specific charges/allegations on specific incidents and push for investigation locally.

            “Otherwise it is pure conjecture based on a partial analysis.”

            Presumption of innocence is always based on conjecture, because well, that is what a presumption is, and that presumption doesn’t require a complete analysis. The complete analysis via a thorough investigation requires credible allegations, and whether the allegations made thus far are credible or not is the question. The Darusman Report believes they are; the IDAG-S disagrees. And so far the international judicial body capable of action in this regard has not acted, leading us to believe that the allegations are not credible enough to warrant an international investigation.

            “Which brings me back to where I started: calling for an investigation into Weliweriya as opposed to Mullivaikkal is just two-faced. What I would like to see is that we institute a process that counteracts the continued exercise of impunity in our country, restore the value of human life and not be pawns of those who wield the monopoly of violence.”

            Pushing for such a process is a good idea, and I hope you actually do that rather than simply talk about it; but that hardly warrants devaluing an attempt to investigate a specific incident. This contradicts your previous claim that specific incidents must be investigated. Blocking one investigation because all incidents have not been investigated won’t really progress your cause. While it is important not to miss the forest for the trees, it is equally important to understand that the forest is made up of trees.

            In the end, it is pointless to build castles in the sky about commonalities between incidents until inroads have actually been made into creating a base of investigation that substantiates any commonalities.

          • David Blacker

            One more thing: there’s a school of thought that suggests that the reason behind the scornful opposition to calls for a fair inquiry into Weliweriya is that if it finds the state and the SL military to be culpable in an atrocity, it will destabilize claims of genocide in the NE. Ie, if a Sinhalese Buddhist state can kill unarmed Sinhalese Buddhists, how can it be accused of race-based genocide in the NE?

          • georgethebushpig

            Dear David,

            This is indeed a major breakthrough. Those who wouldn’t even tolerate the word “investigation” in the same sentence as “end of war 2009” have finally come around to conceding that there is a need for investigating specifics. Let’s now try and put behind us the 4-year momentary lapse of reason and move forward together. Welcome home my brother!

            ”If these specific investigations are able to then show a pattern of deliberate murder, it could warrant a larger investigation by an international body; but until the smaller steps are taken it is very unlikely you can simply jump to this messianic international investigation you are all dreaming about.”

            There are a few loose ends we need to tie up however. First, let’s first dispense with the lie – nowhere in this exchange have I prefaced credible and independent investigations with the word “international”. If it’s any consolation to you, my personal preference is for a local independent investigation where justice is not only done but seen to be done; something that goes significantly beyond the recent military court of inquiry and its risible conclusions.

            Second, pitting an “investigation into the entire final campaign as a whole” as opposed to “investigation into the specifics” is nothing but a false dichotomy. The only way a credible conclusion can be arrived at whether crimes were committed, and by whom, during the final stages of the war, is through an examination of the specifics – anyone with half a brain was aware of this right from the beginning. So if you’ve finally come around to this conclusion that’s great, but please let’s not pose as if this is what you (or Dayan) have been arguing for the last 4 years.

            Third, you need not be mocked because you disagree with me, but you certainly should be for suspending basic logic in pursuit of an untenable position. Which part of the word “indubitable” don’t you understand? If the very authorities you refer to (IDAG-S) state that civilians were killed by GOSL what more burden of proof would you consider necessary for initiating an investigation into the determination of intentionality and proportionality? If you are unwilling to accept the other reports, at least accept those you yourself put forward as being authoritative. I trust you will be more circumspect in future about peddling the belief that there was no intentionality associated with civilian deaths in the NE without having investigated the specifics.

            Finally, I want to thank you for engaging in this discussion and for enabling us to come to a common understanding on the need for investigations into incidents that led to the deaths of civilians in the final stages of the war. “It’s going to get better now. You can sort of tell these things”.

            Regards
            GTBP

          • WINSTON DE VALLIERE

            George, sorry for butting in but did you take a couple of minutes to study this sentence of DB quoted from a post above:’My comment is based on my opinion, as is yours. If you believe that you can conclude guilt in the NE without an investigation, I see no reason for me to require one to refute it. My opinion is based on existing evidence, yours is based on conjecture and fantasy’ Some 40k civilian deaths are dismissed by DB as ” conjecture and fantasy”… to me that goes beyond an animalistic ‘ who gives a damn” approach to human lives. Of course there won’t be any evidence…not when so much is at stake. Judging from your analysis and argument you’re a deeply sensitive and caring human being.Why waste your time with brutish elements who shamelessly make evident their lack of moral integrity and duplicitously masqueradewith a vacuous brand of logic that is used in defense of their political masters. GROUNDVIWS would do well to take a closer look at editorially purging out elements that buttress mass murder , assassinations of media men, brutal killing of demonstrators exercising their leitimate democratic rights,emasculating and controlling the judiciary. sheltering killers to the extent of restoring their positions in the legislature, sendingarmed army deserters to kill journalists uch as Laantha Wickrematunga, Shauketaly, Mandana Ismail et al.

            [Edited out]

            ,

            isapearances,

          • David Blacker

            Interesting, Winston, that you advocate censorship and the stifling of opinion you disagree with. I guess the two sides of the coin aren’t too different.

            It’s a pity that you didn’t bother to actually read the conversation before quoting me. Firstly, the 40,000 number has been conclusively proven to be nonsense by the IDAG-S Report. Secondly, the fantasy I was referring to was the imaginary evidence people seem to think exists that will prove that SL military troops murdered civilians, not the actual civilian deaths. I would appreciate it if you could engage with what I’m actually saying rather than attributing the voices in your head to me.

            For now, there exists not a SINGLE photograph or frame of video showing an SL soldier killing a civilian (deliberately or accidentally); not one. Now, if you believe that four years after the war, the GoSL has been so efficient as to suppress EVERY SINGLE photo and video of civilians being killed (even though it has been unable to prevent video of dead Tiger POWs), they must be the most amazingly thorough body that has ever existed in the history of man. Good luck with that theory.

  • Jmn

    Dear Groundviews,

    Is your website optimized for mobile devices, in particular for the iPhone? Because your new site functions extremely poorly on my iPhone 5, especially when it comes to the comments section.

    1. As the number of replies in a thread increase, the text moves further and further to the right, become more and more compressed, until the reply consists of just one word per line .

    2. Half of the last word on the right of these replies cannot even be seen sometimes, and that includes your reply and share links.

    3. I tried replying from my phone and that was just impossible. I typed an entire comment, then tried to edit it to find I could delete but not add any further content. This happened 3 times before I gave up and used my wife’s iPad, which incidentally is a lot better but still very flawed.

    I have been a long time daily reader of your website, mostly from my mobile, and it really sucks when things become worse, in the name of improvement, to the point where basic functionality doesn’t exist. I understand that issues can come up when going through such a big change but these are problems with very basic functions.

    Could you give mobile users the option, like you did before, of switching to your full site?

    I am a long time reader and a big fan of your site and I hope you take this feedback positively.

    Thanks.

    • It has been tested on the iPhone with none of the issues you mention.

      • Jmn

        Really? Because I’ve tested it on 3 different iPhones in my household and have found the exact same problem in each of them.

  • georgethebushpig

    Dear David,

    “…or is your contention that every single civilian death must be investigated?

    Every single civilian death in Mullivaikkal ought to be investigated to determine the cause and manner of death as would be done in
    Weliweriya. Where evidence points to criminality, the perpetrator needs to be identified and brought to justice. This would entail exhuming the bodies unceremoniously bulldozed over in Mullivaikkal and accounting for each and every one of them, as is being done with regard to the mass grave in Matale.

    On another note, where identity can be determined the remains of the deceased should be returned to the respective families for proper funeral rites to be undertaken. Furthermore, in commemoration of the dead civilians a monument should be erected in Mullivaikkal lest the coming generations forget the calculated sacrifice of innocents in the final throes of a bloody war.

    Regards
    GTBP

    • David Blacker

      “Every single civilian death in Mullivaikkal ought to be investigated to determine the cause and manner of death as would be done inWeliweriya. Where evidence points to criminality, the perpetrator needs to be identified and brought to justice.”

      On what grounds must the Mullivaikkal deaths be investigated? What indications are there to suspect a criminal killing? The evidence pointing to criminality that you mention must be presented.

      “This would entail exhuming the bodies unceremoniously bulldozed over in Mullivaikkal and accounting for each and every one of them, as is being done with regard to the mass grave in Matale.”

      Aside from an investigation, I think the dead should be identified and recorded if possible, but I’m not sure that it will be practically possible. Many dead in wars simply have to be assumed dead. I don’t think the Matale dead have been successfully identified either.

      “Furthermore, in commemoration of the dead civilians a monument should be erected in Mullivaikkal lest the coming generations forget the calculated sacrifice of innocents in the final throes of a bloody war.”

      Calculated by whom? 😉 All of these things have political overtones, and as long as the Tamil nationalists in the diaspora continue their pursuit of the war crimes route and calling for a separate state, it is very unlikely such memorials will be built.

      • georgethebushpig

        Dear David,

        Your circular argument can be finally given the unceremonial burial that it deserves.

        “On what grounds must the Mullivaikkal deaths be
        investigated?”

        Because they are dead! In any death you need to determine the cause and manner of death; this helps ascertain whether a crime was committed or not, and whether further investigation is necessary. Preempting an examination of the cause and manner of death is not simply bad law enforcement but also, an indication of objectives other than justice being pursued.

        With regard to the identification of the war dead, it is political will rather than “practicality” that determines this.

        Regards
        GTBP

        • David Blacker

          “Your circular argument can be finally given the unceremonial burial that it deserves.”

          Rofl, your arguments have been so circular you should change your pseudonym to Billy Bunter.

          “Because they are dead! In any violent or suspicious or unattended death you need to determine the cause and manner of death; this helps ascertain whether a crime was committed or not, and whether further investigation is necessary.”

          Oh dear, you really don’t pay attention, do you, George. Nor do you seem to understand what you agree and disagree with. We’ve been through all of this. Did we not agree that we must look at specific incidents? Mullivaikal is not a specific incident; it is a place in which many incidents occurred. To take Mullivaikkal as a whole is similar to taking the whole war as a whole; and we have agreed that that is a dead end.

          Now, let’s instead take it that you see each death as a specific incident. You’re arguing from the position that all unattended deaths of civilians in a war can be termed suspicious and/or violent. While this is true in everyday life, it is not true in war. It is a given that in a war civilians will die. This is not a debatable point; it is a fact. Therefore the assumption that all unattended civilian deaths in war must be viewed with suspicion, is false. It is possible in fact to go so far as to say that ALL civilian deaths in war will be unattended, violent, or at the very least a result of the violence. So therefore, violent and unnatural death in war in fact becomes the natural cause in those circumstances, unlike in everyday civil society where an unattended death requires an autopsy. In fact, IHL allows for an acceptable number of civilian deaths in military actions; so therefore ALL civilian deaths cannot be deemed suspicious from the outset. So if there’s any burying to be done, it’s that argument (you can have a ceremony if you like, I’m sure no one will mind).

          If you disagree, I urge you to quote the relevant law or convention that states that all civilian deaths in war can be assumed to be suspicious and requiring of investigation.

          Now, given that there is no reason or rationale to assume that the average civilian death at Mullivaikkal was anything other than an unfortunate byproduct of the war, each and every such death does not require investigation. What requires investigation is a death in which there is suspicion that the killing was deliberate and/or a result of a disproportionate amount of violence.

          So instead of crippling your argument by generalizing everyone at Mullivaikkal (or indeed in the NE), you need to select incidents in which the deaths seem to indicate the above causes. If there is enough cause to substantiate those suspicions, investigations can commence.

          “Preempting an examination of the cause and manner of death is not simply bad law enforcement but also, an indication of objectives other than justice being pursued.”

          While IHL parallels regular criminal law in many areas, it is not simply a copy. Allowances have to be made for the circumstances, and I’m afraid you’re ignoring that in the hope of defending your argument. It is because of these allowances that IHL in fact accepts the possibility of civilian deaths in war, and only defines criminality if the deaths are disproportionate to the military objectives. In regular criminal law, no such allowances are made for the acceptable deaths of certain numbers of innocent parties.

          So the burden remains to determine which deaths are suspicious enough to warrant investigation; which is why we must return to examining specific incidents. It’s hard work, I know, but self-proclaimed activists such as yourself should be willing to put in the hard time rather than being lazy and taking shortcuts.

          I note that your comments seem to have got scattered and repeated all over the thread, but I’ll try and cover all your points.

          “With regard to the identification of the war dead, it is political will rather than “practicality” that is the determining factor.”

          Not really. Can you point to any war where all of the dead were identified and accounted for? Were all those failures a result of a lack of political will?

          • georgethebushpig

            Dear David,

            You’re arguing from the position that all unattended deaths of civilians in a war can be termed suspicious and/or violent. While this is true in everyday life, it is not true in war. It is a given that in a war civilians will die.

            What I said was “In any violent or suspicious or unattended death you need to determine the cause and manner of death”. The following is a summary of arguments made by Professor Susan Breau and Rachel Joyce (2011) that have bearing on our discussion. Of the IHL and IHRL obligations that they refer to, I present a sub-set that are relevant to the purposes of our discussion.

            According to the Geneva Convention IV (protection of civilians
            during war), Article 129, the 2nd sentence states the following (the bold emphases are mine):

            “Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred.”.

            Furthermore, under the Geneva Convention Additional Protocol 1, Article 33, the following paragraphs place further obligations:

            ”1. As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party. Such adverse Party shall transmit all relevant information concerning such persons in order to facilitate such searches.

            2) (a) record the information specified in Article 138 of the Fourth Convention in respect of such persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention;

            (b) to the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilities or occupation”.

            Whether the civilians were detained by the LTTE or not is irrelevant considering that according to the Right to Know, Principle 2 “Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.”.

            Furthermore, according to Principle 4, ”Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.”.

            What the above Articles and Principles highlight are the obligations of a State with relation to dealing with civilian casualties. Considering that the LLRC did not having the mandate to look into the violations committed by both sides this “imprescriptible (inalienable) right” referred to above yet remains to be realized.

            Once GOSL has gone through the process of recording civilian casualties we will be able to determine if a pattern emerges with relation to violations, if any, on either side, whether crimes were committed and who should be held accountable for those crimes.

            So yes, it is hard work recording the causes of death and the conditions under which it occurred, considering that each civilian death has to be accounted for. This is the responsibility of the GOSL as signatory to the Geneva Convention and member of the UNHRC, and not of individuals or civil society, unless of course the GOSL wants to delegate that responsibility. “Intentionality and proportionality” have nothing to do with the above obligations.

            I rest my case.

            Thank you
            GTBP

          • David Blacker

            Lol, and away those goalposts go, racing down the field once more, George pushing frantically 😀

            “What I said was “In any violent or suspicious or unattended death you need to determine the cause and manner of death”.”

            I know what you said, and I have responded as to the difference between what is considered suspicious in wartime and that in peacetime. The fact that IHL allows for an acceptable number of civilian deaths dismisses your argument that all civilian deaths are automatically deemed suspicious. We’ve been through this. Can we move on now.

            “According to the Geneva Convention IV (protection of civiliansduring war), Article 129, the 2nd sentence states the following (the bold emphases are mine): “Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred.”.”

            Yes, internees. Are you suggesting that all the civilians killed at Mullivaikkal can be termed “internees”? You really are grasping at straws, aren’t you? Even if we were to humour you and accept this absurd claim, surely the implication is that the onus of certifying the deaths lies with those who had interned these individuals (and were therefore responsible for their wellbeing) rather than those who were trying to free them.

            “Furthermore, under the Geneva Convention Additional Protocol 1, Article 33, the following paragraphs place further obligations:”

            I quite agree. Any info on individuals who were being held prisoner during the war — or are still being held — should be divulged. What has this got to do with your demand that all the deaths of Mullivaikkal must be investigated despite the fact that you can show no suspicious circumstances?

            All of what you have quoted of Article 33 indicates that what is being suggested is a recording and disclosing of the status of said internees — are they alive, are they dead, how were they killed — and not an investigation into possible criminal action.

            “Whether the civilians were detained by the LTTE or not is irrelevant considering that according to the Right to Know”

            In the context of what you have quoted above, it is certainly relevant because, if they were not being detained by the Tigers they cannot be defined as internees and the above articles would not be discussing them. In the context of who is responsible for their wellbeing (and therefore responsible for accounting for their deaths) the detail of whether they were interned by the Tigers or not is totally relevant. George, you can’t have it both ways 😀 If you want to quote articles on internees you can’t then get wishywashy on whether they are actually internees or not, and who interned them! Lol, that is crucial to your argument, and I suspect as usual you haven’t thought this through.

            Now, let’s look at your quoting of Principals 2 and 4, which you obviously haven’t grasped.

            Principal 2 (I am highlighting what you’ve missed):“Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.”

            My dear George, Principle 2 is making suggestions on actions to be carried out in the event of a crime; not on the assumption of a crime.

            Principle 4: ”Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.”

            Again, Principle 4 is talking about actions to be carried out in the event of a crime, not in the investigation of an allegation. Don’t you bother to read through the stuff you quote?

            “What the above Articles and Principles highlight are the obligations of a State with relation to dealing with civilian casualties.”

            Once again, risking being called illogical for daring to point out that you’re ignorant, I must tell you that you’re wrong. Those articles and principles are outlining the obligations of those responsible for the welfare of internees and the investigation into the victims of war crimes. As has been pointed out to you repeatedly, which point you duck when called on to respond to, civilian deaths in war are NOT considered a war crime per se or a violation of IHL. I have asked you to quote the relevant conventions that rule ALL civilian deaths as violations, and you simply avoid responding; predictably, of course.

            “Once GOSL has gone through the process of recording civilian casualties we will be able to determine if a pattern emerges with relation to violations, if any, on either side, whether crimes were committed and who should be held accountable for those crimes.”

            I would agree if there was indeed such an obligation which, I have clearly shown you above, there isn’t. The obligation is to each party to account for those it has interned (not those interned by an adverse party), to account for “to the fullest extent possible” (a subjective stipulation) those reported as missing by an adverse party, and to investigate the circumstances behind the deaths of victims of war crimes. Nowhere does it say that all deaths must be investigated for possible criminality. If a party was to state that X number of civilians were killed by shellfire during the assault and capture of Y town, and list out their names, that would be reasonable.

            “So yes, it is hard work recording the causes of death and the conditions under which it occurred, considering that each civilian death has to be accounted for. This is the responsibility of the GOSL as signatory to the Geneva Convention and member of the UNHRC, and not of individuals or civil society, unless of course the GOSL wants to delegate that responsibility.”

            It would be the GoSL’s responsibility if the GCs actually said that; but it doesn’t as has been explained to you. Intentionality and proportionality certainly do not have anything to do with articles and principles you have quoted, but they certainly have everything to do with the ones concerning the defining of an event as a violation of IHL. You’ve simply not read the conventions you have quoted and have therefore misunderstood the relevance.

            “I rest my case.”

            Prematurely, I’m afraid. Until an event can be credibly shown to have been a possible violation, investigation is unnecessary. Try again, take as long as you like, but do it right. Don’t waste both our time.

          • georgethebushpig

            Dear David,

            Is your understanding that the LTTE didn’t commit any violations and heinous crimes? If people are held at gunpoint and are shot in the back if they try to escape aren’t they being detained/interned? As you have argued elsewhere, the LTTE used civilians as a human shield and co-located military objects among civilians. Are you now suggesting that there is no evidence even of LTTE violations that need to be investigated?

            The following sentence was badly formulated “Whether the civilians were detained by the LTTE or not is irrelevant considering that according to the Right to Know” – what I wanted to say was “Regardless of whether the civilians were detained by the LTTE or not, according to the Right to Know…”

            Please reread the argument I put forward more carefully in light of the above clarifications.

            Regards
            GTBP

          • David Blacker

            “Is your understanding that the LTTE didn’t commit any violations and heinous crimes? … Are you now suggesting that there is no evidence even of LTTE violations that need to be investigated?”

            Certainly, the only actual evidence that exists is of Tiger violations (video footage, eye witness testimony), and I have consistently pointed this out. So the fact that violations took place doesn’t need to be further established. Any investigations now have to be to determine the guilty and possibly punish them. The GoSL has chosen not to pursue a case in this matter, for various reasons (the guilty being themselves dead for the most part in the case of Mullivaikkal). The fact that the UN itself (in the form of the Darusman Panel) refuses to acknowledge that the Tamil civilians trapped at Mullivaikkal were in fact held by force as hostages and used as human shields (both violations of IHL) in spite of the evidence makes it doubly unlikely that investigation of Tiger violations will be possible even as an academic exercise. And, in the case of accounting for and certifying the deaths of civilians held by the Tigers, as I said in my last comment, Article 129 identifies the interning party (in this case the Tigers) as responsible for that task. If we accept the evidence as conclusive enough to show that the Tigers held the entire population of Mullivaikkal as hostages (the word internment suggests a more formal system), thereby placing them in fatal endangerment, the Tigers bear an automatic complicity in their deaths. The degree of complicity depends on whether the killings were deliberately done (as in the case of shooting escapees) or accidental; but either way, the Tigers would be cited as complicit. GoSL complicity requires an additional establishment of suspicious circumstances to disprove an accidental death.

            “what I wanted to say was “Regardless of whether the civilians were detained by the LTTE or not, according to the Right to Know…””

            Well, the right to know that you quote in Principle 2 is in the event of a violation being established, and so far the only violations established is with regard to Tiger IHL violations. So with regard to this, petitioners are already aware that their loved ones were killed as a result of being held hostage and/or used as a human shield. Any further details would be the obligation of those who’s actions caused the deaths by tacit responsibility (taking hostages) and/or direct responsibility (using human shields or actually killing). IHL doesn’t oblige the adverse party (in this case the GoSL) to take on accountability. Personally, I believe that the GoSL should indeed account for the dead as far as is possible, to give the families some closure. However, I doubt that the level of accounting will satisfy those that are demanding that investigations be pursued with the aim of establishing GoSL culpability for the civilian deaths.

          • David Blacker

            I just noticed that a second comment of yours has appeared that was probably delayed by moderation, so let me respond to that as well. I must however point out that you continue to amuse me with your backtracking whenever you realize you’ve talked your way into a cul de sac 😉

            “These laws define the relationship of the State with respect to its citizens and the rights of civilians in conflict. The overarching responsibility of the State for protecting the “dignity and sanctity of life (which includes death)” is a cornerstone in the frameworkof these laws. Another fundamental principle is that the State cannot abrogate its responsibility towards its citizens.”

            I do not believe that a conflict being defined as a civil war changes any of the emphasis in the principles and articles you have quoted. The state’s responsibility to its citizens notwithstanding, the portions you have quoted clearly define two adverse parties and what their responsibilities are. I suspect that since your ego will not allow you to admit you were mistaken in quoting those articles and principles so that you could take a new tack, you are now attempting to reinforce failure.

            Even in the event of the conflict being defined a civil war (which doesn’t change any of the rights of the parties involved; ie you don’t have less or more rights depending on the type of war), the fact is that the civilians were SL citizens, held hostage by the Tigers (or interned as you prefer to call it). I will address later your attempt to straddle both sides of the fence by now also suggesting the civilians were trapped by hostilities 😉 According to Article 129, which you quoted, the responsibility for those held lies with the interning party. A state’s responsibility to its citizens doesn’t outweigh the adverse party’s responsibility to adhere to IHL, and as far as I know, nowhere in any convention does it suggest that in the event of a civil war that the state is responsible for the actions of the non-state party it is fighting.

            “Let me turn to the Articles I have referred to and the rationale for using them. In the case of Mullivaikkal it could be argued that the civilians were trapped both as captives of the LTTE and also as, a consequence of the circumstances of the war (the latter being the restriction of movement of people as a consequence of hostilities as interpreted by customary law).”

            But a few days ago, you claimed that the entire population of Mullivaikkal were interned by the Tigers in your attempt to suggest that responsibility for internees lay with the state. I pointed out that you hadn’t understood what you were quoting, and I guess you went back and actually read through it. Now that you’ve realized you’ve painted yourself into a corner by removing all responsibility from the GoSL, you’re backtracking and claiming that not all the civilians were internees (part of the reason why I scoffed when you made the initial claim was because I realized what an untenable position you were traipsing into). Basically you’re trying to define the civilians as broadly as possible to make as many laws applicable. Pretty pathetic, even for this forum.

            Nevertheless, I’ll humour you, as I did before, but let me ask you if you’re prepared to abandon the “internee” argument now that it has crippled your attempt to place responsibility with the GoSL, or whether your new position is that some of the civilians were internees/hostages/human shields and others were simply trapped by “circumstances”. I’ll understand if you want to sit on the fence and keep your options open, but it would be nice to see some sincerity even at this late stage of the debate.

            I hope your belated attempt to balance your “internee” argument off with another has now made it clear to you that Mullivaikkal cannot be defined as a single event with silly generalizations of the entire population as internees, etc, and that specific events within the area must be examined for suspicious circumstances.

            Now, let’s examine your contention that some of the civilians might have simply been trapped by the circumstances of war (“the restriction of movement of people as a consequence of hostilities,” as you say). So what were these circumstances? The SL Army had been advancing relentlessly for something like two years, gradually pushing back the Tigers, capturing their territory, and holding it against counterattack. The Tigers had been pushed first out of the entire Eastern Province and gradually from the western Wanni coast to the eastern coast. Along the way, the Tigers bundled into their retreat entire populations from towns and villages across the Wanni, taking the civilians with them as they retreated. No doubt, some civilians went willingly too. (families of Tigers, supporters, those who feared GoSL retaliation, etc). But the fact of the matter is that throughout the SL military campaigns in the Eastern and then Northern provinces, every opportunity was taken to convince civilians to come over to the GoSL side of the lines whenever there was a lull in the fighting, and throughout the Tigers attempted to prevent this (shooting at civilians, executing the families of successful escapees and deserters, using suicide bombers against refugee centers, etc). Now some might argue that it was actual fear of the SL military and possible abuse that drove the civilians east across the Wanni, and those were part of the circumstances; but the above actions of the Tigers and the fact that there was no such move of civilians during the Eastern Province campaign dismisses that argument. In the East, the Tigers made no attempt to seriously defend territory nor to coerce the civilians into retreating with them as hostages and human shields. The Tigers traded territory for troops, saving their fighting strength to defend their heartland in the Wanni. The fact that there were negligible civilian casualties in the East, that the civilians moved wholesale into GoSL territory whenever the fighting approached, and that none were trapped by the Tigers makes it clear that it was only the difference in Tigers strategy between the two provinces that changed the circumstances of the war. So it is safe to say that the “circumstances” you refer to were entirely of the Tigers’ making, and thus their culpability in the fate of the civilians is clear.

            “If we were to consider that it was the LTTE’s responsibility to undertake the certification of deaths (as the detaining power), given that they were decimated during the hostilities, they couldn’t be expected to dischargethis obligation.”

            I never said that that was my expectation; however, the death of the person or persons responsible for an act doesn’t then shift responsibility to the adverse party, as you’re attempting to suggest.

            “The reference to GC AP 1, Article 33 is to point out that the unrecorded deaths in Mullivaikkal have to be considered “missing” and as such, the GOSL has a continued obligation to search for the missing because they are citizens of Sri Lanka.”

            Article 33 says, “1. As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party. Such adverse Party shall transmit all relevant information concerning such persons in order to facilitate such searches.” The obligation is to account for those missing from the adverse party’s side (and reported thus), whereas your most recent argument is that the GoSL is accountable because the missing are its own citizens. So which is it? Article 33 isn’t talking about a party being obliged to account for the dead from its own side is it? Again, your backtracking and fence sitting on several points have led you to some confusion, it seems. This parallels the usual argument that when the Tamils are doing the killing they are citizens of Eelam, and when they are being killed they are citizens of SL. You can’t have it both ways.

            “While it is recognised that 2(b) refers to the search being undertaken “to the fullest extent possible”, the bulldozing of thedead in Mullivaikkal cannot be considered an action that goes towards meeting this obligation.”

            Bulldozing the dead into mass graves (if this actually occurred) is sometimes a necessity of circumstance, and can’t be said to be an attempt to avoid accountability. Many of the dead found by the Allies in German concentration camps had to be similarly disposed of to avoid disease, etc, but it’s hardly likely that the Allies were unconcerned about recording the victims of the Holocaust.

            “The reference to the Right to Know principles is to point out that regardless of the intransigence of the GOSL to examine its own conduct, at least it must assume the responsibility of making known the truth of violations and crimes committed by the LTTE. Among the other alleged violations, if the LTTE was holding civilians at gunpoint and shot them when trying to escape, the families of the victims, and we as Sri Lankans, need to know the truth.”

            They may assume that responsibility if they wish, but they are not obliged to. As I already told you several days ago, the GoSL might respond in broad terms by saying that x number of civilians were killed in the assault on y town, and so forth, which would fulfill their obligations. I doubt that would satisfy the detailed investigation you are demanding, but as I said at the very beginning there is no obligation or necessity to undertake the latter.

            “Despite the intransigence of the GOSL, as Sri Lankans we also have a right to know the truth about the alleged crimes committed by the military, for example the execution of a 12 year old boy as punishment for the sins of hisfather.”

            I am not familiar with this anecdote. Can you refer me to it and explain the relevance?

            “The argument that there has to be evidence of wrong doing prior to war crimes investigations being instituted is correct however it does not annul the State’s responsibility with relation to certifying citizens’ deaths. This is a first vital step.”

            I am glad to see that you have now accepted the argument about the necessity to establish the occurrence of a war crime prior to the launch of an investigation. Given the numbers of dead, and the time that has elapsed, it is practically impossible for the GoSL to issue certificates with the detail you require, but yes, it could issue documentation to any applicants cross referenced to the latest census certifying that an individual was believed killed in the fighting. Legally that would suffice. But as I said before, it will hardly satisfy those keen on an investigation with culpability as its objective. It also leaves many holes in which actually living individuals could be certified as dead. However, it is not likely that actual exhuming of remains will actually help in identification, much less a detailed conclusion of the circumstances of their death.

            “If as a result of the process of certification a pattern of violations and crimes emerge this would be the evidence needed for investigations to be initiated. Furthermore, the certification of deaths also allows for an accurate counting of the dead. This will help bury the absurd claim of the “proportionality” of the war despite no record of the actual number of people that died.”

            As I said, the certification pattern is unlikely to reveal circumstances of death, and even an exhuming is unlikely to give an accurate count, given that many victims of shellfire leave such small pieces behind.

            “The unwillingness of the GOSL to certify this many deaths is a gross violation of its obligation to its citizens and a demonstration of callous disregard at best and a conspiracy of silence at worst.”

            As long as elements outside SL continue to agitate for a prosecution of the current SL leadership for war crimes, it is unlikely that the GoSL will ever formally certify even these deaths. It might be possible if their is a change in government, but I wouldn’t hold my breath. It’s unfortunate, but it’s not Hague Tribunal stuff. Far more were killed during the JVP insurgencies under far more suspicious circumstances with nothing done about it.

            “Which takes me back to the original question: if an investigation (which must by definition start by determining the cause and manner of death) can be called for in Weliweriya why can’t the same be done for Mullivaikkal?”

            The cause and manner of death at Weliweriya is already known and doesn’t require further investigation. The cause was the deployment of an assault-ready infantry unit to put down a protest by unarmed civilians; the manner of death was by shooting. The lack of proportionality defines this as a crime, and what is now necessary is an investigation to identify a guilty party and possible prosecute. Which takes me back to my original comment that the difference between Weliweriya and the Mullivaikkal is that in the former the killings were deliberate, and in the latter it wasn’t.

          • David Blacker

            Just as an addendum; by proposing that every civilian at Mullivaikkal was an internee of the Tigers, and quoting Article 33, which places accountability with the interning party, you have effectively removed responsibility for accountability from the GoSL, except in circumstances of suspicion. This is basically what the GoSL has been saying for the past four years — the Tigers were endangering the civilians, so it is their fault. The GoSL would applaud you 😉

          • georgethebushpig

            Dear David,

            My sincere apologies. Having reread my previous post I realise that it was dumb on my part indeed to expect you or anyone else to make sense of the Articles that I referred to without an accompanying explanation. Here it is albeit late.

            While the following points will be obvious to you, it needs to be stated so the context is clear. The conflict in Sri Lank falls under the category of a civil war or technically speaking a Non-International Armed Conflict (NIAC). As such, customary international law and customary humanitarian law is widely applicable in addition to International Humanitarian Law (IHL) and International Human Rights Law (IHRL). These laws define the relationship of the State with respect to its citizens and the rights of civilians in conflict. The overarching responsibility of the State for protecting the “dignity and sanctity of life (which includes death)” is a cornerstone in the framework
            of these laws. Another fundamental principle is that the State cannot abrogate its responsibility towards its citizens.

            Let me turn to the Articles I have referred to and the rationale for using them. In the case of Mullivaikkal it could be argued that the civilians were trapped both as captives of the LTTE and also as, a consequence of the circumstances of the war (the latter being the restriction of movement of people as a consequence of hostilities as interpreted by customary law). As such, the following GC IV Article 129 is relevant and applicable – “Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred.”.

            If we were to consider that it was the LTTE’s responsibility to undertake the certification of deaths (as the detaining power), given that they were decimated during the hostilities, they couldn’t be expected to discharge
            this obligation. However, regardless of whether LTTE was responsible or not,
            given GOSL’s responsibility towards its own citizens under national and
            international law, the certification of deaths remains an obligation under its
            domain and cannot be ignored. Simply put the issuance of birth certificates and death certificates is the responsibility of the GOSL.

            The reference to GC AP 1, Article 33 is to point out that the unrecorded deaths in Mullivaikkal have to be considered “missing” and as such, the GOSL has a continued obligation to search for the missing because they are citizens of Sri Lanka. While it is recognised that 2(b) refers to the search being undertaken “to the fullest extent possible”, the bulldozing of the
            dead in Mullivaikkal cannot be considered an action that goes towards meeting this obligation.

            The reference to the Right to Know principles is to point out that regardless of the intransigence of the GOSL to examine its own conduct, at least it must assume the responsibility of making known the truth of violations and crimes committed by the LTTE. Among the other alleged violations, if the LTTE was holding civilians at gunpoint and shot them when trying to escape, the families of the victims, and we as Sri Lankans, need to know the truth. Despite the intransigence of the GOSL, as Sri Lankans we also have a right to know the truth about the alleged crimes committed by the military, for example the execution of a 12 year old boy as punishment for the sins of his
            father.

            So to tie this all together consider the following points:

            a) Certifying deaths of civilians is an obligation of the State and is not contingent on evidence of suspicion or war crimes. Through the certification of deaths the causes of death and the conditions under which it occurred have to be recorded. This is a basic obligation of the State. The argument that there has to be evidence of wrong doing prior to war crimes investigations being instituted is correct however it does not annul the State’s responsibility with relation to certifying citizens’ deaths. This is a first vital step.

            b) If as a result of the process of certification a pattern of violations and crimes emerge this would be the evidence needed for investigations to be initiated. Furthermore, the certification of deaths also allows for an accurate counting of the dead. This will help bury the absurd claim of the “proportionality” of the war despite no record of the actual number of people that died.

            c) If we take what you consider to be the authoritative voice (IDAG-S) on the “numbers game”, between 15 000 – 18 000 civilians died (albeit some from natural causes etc. but the majority from hostilities). The unwillingness of the GOSL to certify this many deaths is a gross violation of its obligation to its citizens and a demonstration of callous disregard at best and a conspiracy of silence at worst.

            d) Which takes me back to the original question: if an investigation (which must by definition start by determining the cause and manner of death) can be called for in Weliweriya why can’t the same be done for Mullivaikkal?

            Best regards
            GTBP

      • georgethebushpig

        GV, I made an edit to this post and it seems like it went missing…..

        Dear David,

        Your circular argument can be finally given the unceremonial burial that it deserves.

        “On what grounds must the Mullivaikkal deaths be investigated?”

        Because they are dead! In any violent or suspicious or unattended death you need to determine the cause and manner of death; this helps ascertain whether a crime was committed or not, and whether further investigation is necessary. Preempting an examination of the cause and manner of death is not simply bad law enforcement but also, an indication of objectives other than justice being pursued.

        With regard to the identification of the war dead, it is political will
        rather than “practicality” that is the determining factor.

        Regards
        GTBP