D.B.S.Jeyaraj - The controversial report presented by the Lessons Learnt and Reconciliation Commission (LLRC) has evoked much interest in many different circles. It is being projected by some as Sri Lanka’s effective response to the demand for an International accountability mechanism on the one hand while others criticize it as falling far short of International standards.
The premier political organization of the Sri Lankan Tamils at present is the umbrella group known as the Tamil National Alliance(TNA). The TNA has released a 114 page analytical response to the LLRC report.
The TNA report which appears to have been compiled meticulously has turned out to be a devastating critique of the LLRC report
The executive summary, preamble and table of contents of the TNA report is posted on my website www.transcurrents.com and the full contents of the report (in PDF) is also available here on dbsjeyaraj.com.
I hope readers will avail of that posting and read the executive simmary and preamble as well as the report in full to obtain a thorough understanding of the “situation” from an effective “indigenous”perspective.
Among many observations made in the TNA report are the ones about the methodology and approach adopted by the LLRC in dealing with evidence before it and application of laws to that.
The TNA report faults the LLRC over “selective application of evidence” and “the failure to apply law to the facts”.It charges the LLRC of having “neglected to closely examine possible violations of International Humanitarian law and Domestic law “that may have been allegedly committed.
I thought the observations made in the TNA report on these crucial issues deserve greater in depth attention by readers. I am therefore excerpting sections of the report from 4.1 to 4.89 and posting them on my blog.
Here it is Friends - DBSJ
Devastating critique of LLRC Report by the TNA
4. LLRC Final Recommendations
4.1 The final report of the LLRC was released through Parliament on 16th December 2011. The report purports to deal with a number of areas including the ceasefire agreement, the security forces operations, humanitarian law issues, human rights, land issues and reconciliation. This section specifically deals with the manner in which the LLRC report approached issues of accountability.
A. Methodology and Approach
4.2 At the outset, it is apparent that the LLRC disregards credible allegations made against the Government of Sri Lanka with respect to violations of IHL amounting to war crimes and crimes against humanity. These allegations include:
1. Deliberately underestimating civilian numbers in the Vanni in order to deprive them of food and medicine;
2. Deliberately or recklessly endangering the lives of civilians in No-Fire Zones (NFZs);
3. Targeting civilian objects including hospitals; and
4. Executing or causing the disappearance of surrendees.
4.3 The government is also accused of illegally and arbitrarily detaining a large part of the displaced civilian population, destroying civilian property and means of livelihood, and rendering civilians destitute, all of which are violations of international law. The LLRC does not directly deal with these allegations from the perspective of IHL. Yet, these allegations remain the subject of domestic and international concern.
4.4 It is noted that the LLRC confirms many of the factual allegations relating to civilian deaths, attacks within NFZs, shelling of hospitals and disappearances of surrendees, which were characterized by the UN Secretary General’s Panel of Experts as ‘credible’ allegations of IHL violations. Yet the findings and observations of the LLRC with respect to the four above-mentioned credible allegations against the government are based on a flawed analysis of the law. The LLRC deals with many of these allegations only in a cursory manner, which exposes its true intention: to absolve the government of all responsibility with respect to war crimes and crimes against humanity. Moreover, in cases where strong evidence of violations by the security forces was presented to the Commission, it routinely characterised the crimes as ‘individual’ and ‘isolated’, or concluded that responsibility could not be determined due to lack of evidence.
4.5 Two general criticisms may be levelled against the LLRC’s approach and methodology in dealing with the above allegations:
(1) the selective application of evidence; and
(2) the failure to apply the law to the facts.
a. Selective Application of Evidence
4.6 The Panel fails to properly assess the factual situation relating to the allegations against the government and consistently places undue reliance on witness testimonies that lack credibility. The Commission sites the evidence of government doctors working in the North and East on at least twenty occasions when attempting to recount the factual situation during the final stages of the war. Incidentally, the doctors – including Dr. S. Sivapalan, Dr. T. Sathiamoorthy, Dr. V. Shanmugarajah and Dr. T. Vartharajah – are quoted extensively without any reference to the context within which these doctors provided testimony to the LLRC. These witnesses provided an immense service to the people of the North and East, particularly during the final stages of the war. However, they were amongst the five doctors who were taken into custody in May 2009 after reporting extensively on civilian casualties, the desperate humanitarian situation, and the shelling of hospitals by government forces from within the NFZs during the final stages of the war.
Following their arrests, these doctors recanted their earlier statements on the situation during the final stages of the war after being trotted out on public television whilst still in custody. Thus the credibility of the evidence submitted to the LLRC by these doctors was heavily compromised owing to the context within which such evidence was submitted. Yet, the LLRC neither makes reference to the detention of these witnesses nor to the possibility that they were speaking under duress. Hence extensive reliance on witnesses who recanted earlier versions of their experiences and who spent a considerable amount of time in government custody seriously calls into question the LLRC’s interpretation of the factual situation.
4.7 This approach is particularly disconcerting given the voluminous evidence that the LLRC could potentially have called for in terms of UAV footage, videos of aerial attacks and military logs – particularly since the military witnesses acknowledged that every attack was videotaped and received the official sanction of the commanders. It is unclear as to why the LLRC chose not to summon military officers to explain at least the attacks that the LLRC itself acknowledges to have taken place during the last stages of the war.
4.8 Moreover, the LLRC appears to have discarded parts of the evidence contained in the representation by Ms. Imelda Sukumar, who served as the Government Agent (GA) for Mullaitivu from 2002 to 12th July 2009. For instance, when the Commission questioned her, the GA claimed that approximately 360,000 civilians remained in the NFZ in the Puthumattalan area when she left on 22nd January 2009.
The LLRC makes only a passing reference to this estimate and thereafter concludes that it is unable to confirm the actual number of civilians who were trapped in the Vanni during the final stages of the war – an estimate that remains crucial to dispelling the allegation that the government deliberately underestimated the number of civilians in the Vanni in order to deprive them of food and medicine.
b. Failure to Apply the Law to the Facts
4.9 The LLRC’s overall methodology in examining the facts and applying the law to the facts appears to be deeply problematic. The Commission consistently fails to test the credibility of the evidence it selects to apply. A good example of this failure is the routine acceptance of the evidence provided by the four doctors referred to above. Further, the LLRC also accepts the testimonies of senior government and military officials while making no attempt to verify such evidence by summoning subordinate officers.
4.10 The LLRC appears to be preoccupied with examining ambiguities and dilemmas in IHL when it is not clear as to why these ambiguities are even relevant. The main question that the LLRC should have focused on in greater depth is whether the parties to the conflict violated established, fundamental rules of IHL.
4.11 The LLRC also fails to rigorously analyse the evidence. In some cases, the LLRC made broad assertions and arrived at concrete conclusions without considering voluminous evidence before it. For example, it arrived at the conclusion that the government did not underestimate the civilian population in the Vanni solely on the basis that the government had cooperated with the International Committee of the Red Cross (ICRC) and the World Food Programme (WFP) in delivering food to the Vanni population.
4.12 In other cases, the LLRC fails to draw vital conclusions from the evidence. For example, the LLRC fails to investigate or inquire into the question of government culpability or responsibility for crimes admittedly committed by armed paramilitary groups. The nexus between these groups and the government is never questioned. Moreover, the LLRC fails to engage in a legal inquiry into whether the crimes attributable to these groups render the government culpable through any of the established modes of liability in domestic or international law, such as aiding and abetting, conspiracy, joint criminal enterprise or command responsibility. In fact, the LLRC makes no reference whatsoever to the concept of command responsibility in its entire report.
4.13 Hence, the LLRC makes no genuine attempt to apply the law to the facts. It neglects to closely examine the possibilities of violations of IHL and domestic law that are credibly alleged to have been committed.
4.14 A more detailed analysis of this failure is presented in the next section.
B. Violations of International Humanitarian Law
4.15 This section closely examines the LLRC’s treatment of the allegations against the government with respect to violations of IHL.
a. Starvation of the Civilian Population
4.16 The LLRC observes that during the final stages of the war, shelling by the LTTE made the transportation of food to the displaced population in the Vanni extremely difficult.
Accordingly, ‘[w]hatever shortages that prevailed during this period, had been mainly due to the absence of unloading facilities, without a proper port and the associated security risks.’ The LLRC opines that the government took every effort to supply food and medicine to the people who were trapped in the NFZs. However, it concedes that ‘adequacy levels appear to have declined during the months of February, March, April and the first half of May 2009 as the conflict intensified’ The LLRC report presents a table64 in explaining the food delivered via sea route to Puthumattalan, Mullaitivu during this crucial period between 17th February 2009 and May 2009.
4.17 This table, however, does not indicate the approximate number of civilians for whom the food was delivered. The LLRC fails to address the central question of whether the government deliberately or recklessly underestimated the population in the Vanni. Instead, the LLRC observes that the material before it provided ‘varying estimates of the number of civilians who were held hostage by the LTTE in the NFZs.’ Moreover, despite its ‘best efforts to verify the estimates with documentary evidence from relevant civilian authorities,’ the LLRC concedes that it was unable to secure any original documentation with respect to population estimates.
4.18 This statement is facetious given the volume of documentation provided at the time by the GAs in Mullaitivu and Kilinochchi. Most crucial was the evidence provided by Ms. Imelda Sukumar, the GA for Mullaitivu during the final stages of the war. She specifically mentions that approximately 360,000 civilians remained in the NFZ at the point of her departure in January 2009. This figure, she explains, reduced due to some civilians escaping to government controlled areas. Yet, what remains clear from the GA’s testimony is that the figure could not have been as low as the official government estimates.
4.19 Moreover, the LLRC had in its possession detailed statistical data on the population of the Vanni during the time. For instance, the Bishop of Mannar, Rt. Rev. Dr. Rayappu Joseph made detailed representations to the LLRC on the number of civilians trapped in the Vanni during the final stages of the war.
4.20 It is clear that the Commission paid no attention to the voluminous evidence before it confirming that the food intended for the Vanni population was grossly inadequate.
Accordingly, the LLRC ought to have inquired into the question of whether the government had deliberately underestimated the number of civilians in the Vanni. The Commission observes: ‘the non-availability of such documentation does not have a decisive bearing on the fact that what was practically feasible under the circumstances was undertaken.’ This observation clearly demonstrates the Commission’s lack of regard for the importance of accurate population estimation in order to avoid major shortages of food.
The LLRC emphatically concludes:
The strenuous efforts taken by the Government in coordination with international agencies such as the ICRC and WFP, as described above, does not warrant any possible inference that there was a deliberate intention to downplay the number of civilians in the NFZs for the purpose of starving the civilian population as a method of combat.
4.21 The LLRC appears to ignore evidence of population underestimation by the government.
Compelling data on population estimates is presented in the U.S. Department of State report to Congress on Incidents During the Recent Conflict in Sri Lanka (2009). The following table accurately depicts the possible extent of the violation, and confirms the seriousness of the allegations against the government with respect to the deliberate starvation of the Vanni population.
4.22 According to the U.S. State Department, there were numerous reports that the food shortage during the final four months of the conflict resulted in deaths due to starvation.
Hence, the LLRC ought to have dealt with the unavoidable questions of
(1) whether the government had underestimated the population in the Vanni, and
(2) whether such underestimation was deliberate and for the purpose of starving the population.
4.23 The U.S. State Department figures are consistent with a report published on 13th December 2009 by the University Teachers for Human Rights (Jaffna). The report carefully documents the various estimates of the government with respect to the Vanni population during the final stages of the war. On 4th November 2008, the GAs of Mullaitivu and Kilinochchi estimated the total displaced population to be 348,103. Yet, the official government estimation during the time was reported to be much lower – approximately 100,000.
By early March 2009, approximately 37,000 civilians had escaped to government-controlled areas. Thereafter, the government estimated the number of civilians remaining in the Vanni to be 70,000. Yet as many as 103,000 civilians were said to have escaped to government controlled areas from 20th to 22nd April 2009, which was 33,000 more than the government’s estimation. On the morning of 30th April 2009, the Ministry of Defence claimed that only 15,000 to 20,000 people were left in the NFZ. This figure also appeared to be a gross underestimation, as the IDP count in camps on 28th April 2009 was 172,000, whereas this figure increased to 290,000 on 25th May 2009 presumably due to the fact that over 100,000 persons had come out of the conflict zone. The increase in this figure confirmed that more than 100,000 people remained in the NFZ after the April 20th to 22nd exodus.
4.24 Customary International Humanitarian Law (CIHL) is unambiguous on the prohibition of using starvation of a civilian population as a method of warfare. In the circumstances, the allegation of deliberate underestimation of the civilian population in order to deprive civilians of food and medicine ought to have received more serious attention in the LLRC report. For instance, as early as September 2008, then Secretary to the Ministry of Foreign Affairs, Dr. Palitha Kohana maintained that the international community was ‘exaggerating’ the population figures in the Vanni. He contended that the figure was in the ‘thousands’ rather than in the ‘hundreds of thousands’. This estimate turned out to be a gross underestimation of the displaced population in the Vanni and ought to have received the attention of the LLRC.
4.25 The LLRC ought to have examined the numerous news updates and situation reports published by the Ministry of Defence, which appeared to grossly underestimate the population figures in the Vanni. For example, in mid-February 2009, the Ministry of Defence expressly stated that only 50,000-70,000 civilians remained in the war zone, when in fact international aid organisations estimated the population to be more than three times that number.
4.26 Importantly, the LLRC does not examine the alleged role played by the then Commissioner General of Essential Services in blocking essential food and non-food aid to the Vanni, which was specifically requested by the GAs of the region. In a letter to the GAs of Vavuniya, Mullaitivu and Kilinochchi dated 20th November 2008, the Commissioner General of Essential Services, S.B. Divaratne stated the following:
It has been noted, that most of the INGOs and some UN Agencies requesting humanitarian assistances to be transported to Wanni, are based on the request made by You, I believe, are more familiar with the untiring efforts of the government of Sri Lanka in this regard, than anyone else. Therefore, you are kindly requested to refrain from making any requests for food and non-food assistance from these organizations in future. All your requirements should be processed through the Commissioner General of Essential Services, even in the event of any urgent necessity.
4.27 This letter, if authentic, is evidence of a systematic effort on the part of the government to prevent the GAs of the Vanni from seeking outside assistance to feed a potentially starving population. Incidentally, the letter is copied to senior government officials including the then Senior Advisor to the President, Basil Rajapaksa, and the Defence Secretary, Gotabaya Rajapaksa. Hence government responsibility for the subsequent deaths by starvation that are alleged to have taken place in the Vanni may be established, if the letter was in fact authentic. Neither the contents nor the authenticity of this letter is considered by the LLRC.
4.28 The failure to examine this allegation against government officials – which, if proven, amounts to a grave breach of IHL – casts serious aspersions on the credibility of the LLRC.
b. Targeting Civilians within the NFZs
4.29 At the outset, it is strongly emphasised that the issue of NFZs does not change the core obligation of the government with respect to the protection of civilians. The government is not accused of failing to respect the NFZs per se. The real crux of the allegations against the government is that, notwithstanding the existence or otherwise of legally recognised NFZs, the government violated IHL applicable under the common regime of law, i.e. the law applicable to all situations of war, as opposed to the law specifically applicable to NFZs. Moreover, it is noted that the allegations against the government are not limited to the targeting of civilians in NFZs, but in fact extend to the targeting of civilians in ordinary civilian populated areas. The full extent of such allegations is, however, not specifically dealt with by the LLRC.
4.30 In the circumstances, the general corpus of IHL would be applicable and forms the standards by which the actions of both parties are ultimately judged. Bearing this central caveat in mind, the analysis of the LLRC with respect to the issue of targeting civilians within the NFZs is examined in detail below.
4.31 The LLRC report addresses the allegation against the government with respect to targeting civilians and civilian objects in the three NFZs that the government unilaterally declared during the final stages of the war. The Sri Lankan experience is characterised as ‘unprecedented’, as the LTTE had ‘no intention whatsoever of agreeing to a negotiated declaration of such zones providing for civilian protection.’ There is credible evidence that the LTTE endangered the lives of civilians within the NFZs. To this extent, the LLRC observes:
‘[t]he situation had become complicated by the fact that the LTTE had moved into the NFZ together with their heavy weapons and placed them amidst civilians. This had converted the NFZ into a virtual operational base from which the LTTE had directed fire against the Security Forces.’
4.32 Yet the LLRC arrives at a flawed conclusion regarding the consequences of the LTTE’s actions within the NFZs. It concludes: ‘the State and Field Commanders [of the Sri Lanka armed forces] [we]re faced with the dilemma of protecting civilians on the one hand and neutralizing the enemy fire power emanating from within the NFZ, on the other.’ IHL, however, governs this so-called ‘dilemma’, and provides a clear answer with respect to the obligations of the State.
4.33 One major lapse on the part of the LLRC is its failure to adequately discuss the IHL definition of civilians and civilian objects. The Commission observes:
From a legal perspective, the critical failure of the Protocols to provide a precise definition of the term “civilian”, “civilian population” and a similar lack of clarity with regard to the term “take a direct part in hostilities” has contributed to a substantial degree of ambiguity, leaving, vital terms which have a bearing on core IHL principles such as the Principle of Distinction to be dealt with largely on a case by case basis. This aspect assumes a heightened degree of uncertainty in the context of the complexities involved and the challenges posed by the very nature of non-international armed conflicts involving non State armed groups. It is often the case that the non State armed groups do not intentionally, as a matter of strategy distinguish themselves from the civilian population and conceal their identity among the civilians until the very moment of attack, placing civilians in peril. This leads to a position where the civilian, either willingly or in some cases unwillingly, becomes part and parcel of an overall combat strategy of the non State armed groups, and thereby placing at risk the protection the civilian is entitled under IHL.
4.34 It is simply not true that the definition of civilians is unclear in IHL applicable to noninternational armed conflicts. The LLRC ought to have elaborated upon the definition of direct or continuous participation in hostilities and its implication on the Principle of Distinction.
4.35 In this respect, the analysis by the UN Secretary General’s Panel of Experts is authoritative.
The Panel observes that IHL specifically prohibits attacks on civilians and civilian objects. The Panel specifically addresses more ‘complicated’ situations where combatants mingle with civilians within protected zones. It cites the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has held that the absolute ban on attacks against civilians extends to a population that is ‘predominantly civilian’, and that ‘the presence within the civilian population of individuals who do not come within the definition of civilians [i.e. combatants] does not deprive the population of its civilian character.’
Several other authoritative statements by the ICTY may also be cited in this regard. In Strugar, the Trial Chamber of the ICTY held:
As regards the notion of civilians, the Chamber notes that members of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.
4.36 Similarly in Galic, the ICTY Trial Chamber opined:
For the purpose of the protection of victims of armed conflict, the term ‘civilian’ is defined negatively as anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict. It is a matter of evidence in each particular case to determine whether an individual has the status of civilian.
4.37 The uncertainty on the exact degree of involvement of LTTE members, whether in continuous combat function or in direct participation in hostilities, does not mean that the definition of direct participation in hostilities is not clearly recognised in customary international law. In fact a clear definition has been applied by the ICTY and the International Criminal Tribunal for Rwanda (ICTR), and is detailed in the ICRC’s interpretive guidance on direct participation in hostilities.
4.38 The ICRC, in its interpretation on ‘continuous combat function’ observes:
In non-international armed conflicts such as civil wars, organized armed groups constitute the armed forces of a non-State party to the conflict. It can be difficult to tell the difference between members of organized armed groups and the civilian population. Civilians support insurgencies in many different ways including, at times, by directly participating in hostilities in a spontaneous, sporadic or unorganized way. However, civilians cannot be regarded as members of an organized armed group unless they assume a “continuous combat function,”
i.e. unless they assume continuous function involving their direct participation in hostilities (emphasis added).
4.39 The ICRC study on CIHL also deals with the issue of doubts over civilian status in its commentaries on Rule 6 of CIHL.
The commentaries clearly recommend that in the case of doubt, the solution is the same as for international armed conflict:
In the case of non-international armed conflicts, the issue of doubt has hardly been addressed in State practice, even though a clear rule on this subject would be desirable, as it would enhance the protection of the civilian population against attack. In this respect, the same balanced approach as described above [i.e. as discussed under Rule 6] with respect to international armed conflicts seems justified in non-international armed conflicts.
4.40 Accordingly, it is clear that whoever does not fulfill the criteria of direct participation in hostilities is a ‘civilian’. Therefore, there is no justification as to why the criteria that have been adopted to define the concept of ‘direct participation of hostilities’ are not applicable to the Sri Lankan situation. Thus, the LLRC fails to justify why the situation in Sri Lanka would render the acknowledged categories of IHL irrelevant.
4.41 The UN Secretary General’s Panel of Experts also cites CIHL, which prohibits parties from directing attacks on a zone established to shelter the wounded, the sick and the civilians from the effects of hostilities. Moreover, the ICTY has clearly held:
The presence of certain non-civilians among the targeted population does not change the character of that population. It must be of a ‘predominantly civilian nature’.
4.42 Yet the LLRC’s analysis of the actions of the armed forces within the NFZ runs contrary to the norms established by CIHL. The Commission observed, wrongly, that the conduct of the LTTE had ‘radically transformed the very character of the NFZ.’ Moreover, it was contended that the LTTE’s actions would have constituted a material breach of an agreement pertaining to the NFZs had the zones been established following the general practice in inter-state conflicts. In those circumstances, the government ‘would have been entirely justified in terminating the agreement and ceasing the protection afforded to the NFZ’ Applying these principles to the situation at hand, the Commission concludes that ‘the Security Forces had been compelled to resort to return fire in response to LTTE attacks from within the NFZ, thereby exposing the civilians being held hostage by the LTTE in the NFZ to danger.’ Hence, the picture painted by the Commission with respect to the government’s actions is one arising purely out of necessity and reasonable self- defence. In one solitary sentence, the Commission proceeds to disregard all allegations that government initiated attacks within the NFZ:
It further transpired from these and other representations that the Army had never initiated attacks in the Safety Zones and return fire was in response to LTTE attacks.
4.43 This analysis is flawed for two reasons. First, as mentioned above, it ignores established IHL principles that apply to complicated situations of this nature. The UN Secretary General’s Panel of Experts carefully analyses the argument that the Sri Lankan Army did not intend to make the civilian population the object of attack, but instead aimed to neutralise the LTTE. Citing a landmark decision of the International Criminal Court, the Panel concludes that ‘an attack remains unlawful if it is conducted simultaneously at a lawful military object and an unlawfully-targeted civilian population.’ Hence the simultaneous nature of any attack needed to be more closely examined by the LLRC.
4.44 Second, the LLRC’s preferred narrative of ‘retaliation to LTTE attacks’ is an unreasonable generalisation that fails to tally with numerous accounts by victims of the conflict. One witness who made representations in at Kandawalai Divisional Secretariat claimed that the Sri Lanka Broadcasting Corporation announced on 2nd or 3rd February 2009 that Suthanthirapuram was a safe place. After civilians moved there, shell attacks killed nine members of one family. The witness claimed that approximately 300 people were subject to continuous shelling by both sides. The LLRC in fact mentions this specific representation but leaves out the reference to the Sri Lanka Broadcasting Corporation.
Moreover, the witness’s narrative does not suggest the close proximity of any LTTE gun positions to the location of the civilians. The narrative instead reveals an indiscriminate bombing of an area that was previously announced on national radio to be a ‘safe area’.
4.45 Another crucial account that the LLRC does not deal with is the attack on the United Nations hub at the Suthanthirapuram junction inside the first NFZ. According to evidence reviewed by the UN Secretary General’s Panel of Experts, on 23rd and 24th January 2009, the Sri Lanka Army continuously shelled the area in which the UN had established the hub. It was mentioned that the coordinates of the hub had been relayed to the Vanni commander of the Sri Lanka Army. According to the evidence presented to the Panel, ‘[a] large number of civilians also relocated to the NFZ and set up their shelters around the United Nations hub’ and the Additional GA had established a food distribution centre nearby.
The Panel recounts:
In the early morning hours of 24 January, hundreds of shells rained down in the NFZ. Those with access to the United Nations bunker dove into it for protection, but most IDPs did not have bunkers and had nowhere to seek cover. People were screaming and crying out for help.
The United Nations security officer, a highly experienced military officer, and others present discerned that the shelling was coming from the south, from SLA positions. He made frantic calls to the head of United Nations Security in Colombo and the Vanni Force Commander at his headquarters in Vavuniya as well as the Joint Operations Headquarters in Colombo, demanding that the shelling stop, which sometimes resulted in a temporary adjustment of the shelling before it started again. Heavy shelling continued over night, and shells continued to hit the United Nations hub and the distribution centre, killing numerous civilians [sic].
4.46 The gruesome details of what the UN staff discovered on the morning of 24th January 2009 as they emerged from their bunkers is presented in the next paragraph of the Panel’s report. Crucially, the Panel’s account dispels the generalisation that all attacks by the Sri Lanka Army within the NFZ were necessarily responses to LTTE attacks. The Panel observes:
Although LTTE cadre were present in the NFZ, there was no LTTE presence inside the United Nations hub. The LTTE did fire artillery from approximately 500 metres away as well as from further back in the NFZ, but the area where the United Nations was based was very clearly civilian. The Government never gave an explanation for its shelling of the United Nations hub, which was the only international presence in the NFZ (emphasis added).
4.47 This account reveals that the LLRC categorically failed to examine the entirety of the evidence with respect to government shelling of the NFZs. The Commission instead concludes:
There was no material placed before the Commission suggesting any policy or incident of deliberately targeting civilian concentrations in the NFZs or elsewhere by the Security Forces, except for three incidents described by three persons: One alluded to by an LTTE inmate at the Boossa Camp and two incidents of alleged Navy fire, described by civilians who appeared before the Commission.
4.48 On the one hand, incidents similar to the shelling of the UN hub may not have been brought to the LLRC’s attention, perhaps owing to the gross inadequacy of the time spent in the North and East to gather evidence. On the other hand, the LLRC has been generally selective in its consideration of evidence, preferring to cite only anecdotes that support its premeditated conclusion:
On consideration of all facts and circumstances before it, the Commission concludes that the Security Forces had not deliberately targeted the civilians in the NFZs, although civilian casualties had in fact occurred in the course of crossfire…It would also be reasonable to conclude that there appears to have been a bona fide expectation that an attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack
involved.
4.49 Additionally, the LLRC concludes that the actions of the security forces complied with the Principle of Proportionality.111 It opines: ‘[g]iven the complexity of the situation that presented itself as described above, the Commission after most careful consideration of all aspects, is of the view that the security forces were confronted with an unprecedented situation when no other choice was possible and all “feasible precautions” that were practicable in the circumstances had been taken.’ This analysis is deeply flawed, as it fails to hold the government to the standards expected of it under IHL. It fails to take account the fundamental principle of avoiding civilian harm. Hence, any notion of military advantage including defense of the troops must be weighed against the loss of civilian lives. The LLRC reaches its conclusion that attacks were proportionate without applying the test of weighing anticipated military advantage vis-à-vis civilian loss. It is pertinent to note that this test could not have been adequately performed without a reasonable estimate of civilian casualties caused due to each attack – an estimate that the LLRC concedes it is reluctant to make.
4.50 The government certainly had the means to comply with the Principle of Distinction, one of the cornerstones of IHL. As specifically highlighted by the LLRC, UAVs were specially used in ‘real time mode’ in order to monitor the movements of the civilians and avoid civilian casualties.113 The ‘real time’ surveillance of the conflict zone indicates that the security forces had the necessary means to distinguish between civilians and combatants in order to carry out concentrated attacks, thereby minimising civilian casualties. Leaving aside the legality of carrying out such attacks within specially protected zones, it is noted that only concentrated attacks with minimal civilian casualties could have ensured compliance with the Principle of Proportionality.
4.51 The UN Secretary General’s Panel of Experts concludes that the government clearly failed to comply with the Principle of Proportionality, particularly with respect to attacking the second and third NFZs. The Panel observes:
Broadly speaking, once both the civilian population and the LTTE were confined to the very limited spaces of the second and third NFZs, the LTTE was no longer mobile as an armed force, and more precise means to defeat the LTTE than barrages of widely-spread artillery and mortar attacks could and should have been employed in order to ensure respect for international humanitarian law.
4.52 The LLRC suggests that the government had ‘restricted’ the use of heavy weapons with the establishment of the NFZs. However, the actual claim made by the government both on 27th February 2009 and 27th April 2009 was that the security forces had been instructed to cease the use of heavy artillery within the NFZs.116 Moreover, in an interview on BBC HARDtalk dated 2nd March 2009, Minister for Disaster Management and Human Rights, Mahinda Samarasinghe responded to a question on the justifiability of using heavy weapons. The Minister stated:
There is absolutely no justification to use heavy weapons and, in fact, about ten days ago, the armed forces took a conscious decision not to use any heavy weapons. We have not been using heavy weapons; we are fighting man-to-man, door-to-door and street-to-street. This is the way that we are going to ensure that terrorism is wiped out because, as you know, the LTTE is now restricted in fact to a very small area of about 48 sq. km. and we cannot use heavy weapons.
4.53 It is noted that the government declared the second NFZ on 12th February 2009.118 Hence the Minister’s reference to a decision to cease the use of heavy weapons coincided with the declaration of the second NFZ.
4.54 In any event, the LLRC fails to adequately deal with the allegation against the government pertaining to the disproportionate use of force within the NFZs. It also fails to consider the views of the UN Panel of Experts that ‘more precise means’ should have been used as alternatives to heavy weapons in order to minimise civilian casualties.
4.55 The countless anecdotal testimonies referenced in the UN Secretary General’s Expert Panel Report, as well as some accounts of witnesses who came before the LLRC, confirm the continued use of heavy weaponry within the NFZs and suggest that civilian casualties did in fact take place as a result of the indiscriminate use of these weapons.
4.56 Instead of citing from the rich jurisprudence of the International Criminal Court, the ICTY and the ICTR, the LLRC chooses to cite an obscure and irrelevant precedent set in 1990 by the International Centre for the Settlement of Investment Disputes to arrive at the following conclusion:
It would also be pertinent in this context to recall that, in determining questions of State responsibility in respect of death, injury or property damage in the course of military operations, international tribunals referring to doctrinal authorities, have described as “next to impossible”, the obtaining of a re-construction in front of a tribunal of all the conditions under which the “combat action” took place with an adequate reporting of all accompanying circumstances.120
4.57 The LLRC consistently uses arguments of this nature to deflect credible allegations that the government used disproportionate force within the NFZs. The Commission ought to have considered the authoritative jurisprudence of the ICTY. In Kordic and Čerkez, the ICTY held:
It is accepted that attacks aimed at military objectives, including objects and combatants, may cause ‘collateral civilian damage.’
International customary law recognises that in the conduct of military operations during armed conflicts a distinction must be drawn at all times between persons actively taking part in the hostilities and civilian population and provides that the civilian populations as such shall not be the object of military operations, and every effort be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to the civilian population. Nevertheless, international customary law recognises that this does not imply that collateral damage is unlawful per se.
4.58 Moreover, in Galic, the ICTY Trial Chamber made certain crucial observations with respect to the Principle of Proportionality. In the absence of any reference to this jurisprudence in the LLRC report, it is important that the entirety of the ICTY’s conclusions on the subject is reproduced:
The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible. Once the military character of a target has been ascertained, commanders must consider whether striking this target is ‘expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’ If such casualties are expected to result, the attack should not be pursued. The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack. In determining whether an attack was proportionate it is necessary to examine whether a reasonably well informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack. The Trial Chamber considers that certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack.
As suggested by the Defence, the parties to a conflict are under an obligation to remove civilians, to the maximum extent feasible from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas. However, the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack (emphasis added).
4.59 The unilateral declaration of the NFZs by the government appears to be deeply problematic in terms of its objectives and location. The LLRC does not examine in any detail the causal link between the unilateral declaration of the NFZs, which amounted to an active encouragement of civilians to congregate within a given zone, and the subsequent bombardment of those very zones. In this regard, the actual declaration of the NFZs by the government seriously exposed civilians to subsequent harm. Importantly, the government unilaterally declared not just one, but three NFZs, notwithstanding the LTTE’s widely known policy of mingling with civilians. Armed with this knowledge, it is difficult to maintain that the government was completely unaware of the imminence of carrying out attacks within the NFZs – and the civilian casualties such attacks would cause – at the time of unilaterally demarcating the zones as ‘No-Fire’.
4.60 The LLRC alludes to the above causal link in its observation: ‘by unilateral declaration of a No Fire Zone, the government unwittingly provided the LTTE an opportunity to consolidate itself amongst the civilian enclave for strategic purposes’ (emphasis added).
It is astonishing that the Commission would choose to make this observation given the fact that the LTTE strategically mingled with the civilian population within the NFZs not once but on three occasions. Hence, even if the government ‘unwittingly’ provided the space for the LTTE to mingle with civilians when declaring the first NFZ, it could not be held out that the government was unaware of the same likelihood when declaring the second and third NFZs. In the circumstances, the unilateral declaration of the second and third NFZs, and the active encouragement of civilians to move to these zones, are deeply problematic.
In fact, it could be easily inferred that the government was, at the time of declaring the second and third zones, well aware of the likelihood that civilians would be seriously exposed to harm. This inferred awareness – described as a ‘cynical manipulation’ by the UN Secretary General’s Panel of Experts – gives credence to the allegation that the government deliberately or recklessly lured civilians into harm’s way i.e. by repeatedly declaring NFZs with the knowledge that such zones would be subsequently attacked due to the LTTE’s presence within them.
The perceived refusal of the LLRC to carefully examine this issue is a serious lapse on its part.
4.61 Considering the foregoing analysis, the LLRC’s overall assessment of the allegations against the government reveals a fatal contradiction, which requires further reflection.
4.62 On the one hand, the LLRC accepts the government’s position that it meticulously monitored attacks carried out within the NFZs. The government’s narrative reveals that the military command was intimately aware of the nature and location of the target of each and every attack that took place within the NFZs and that every effort was taken to distinguish between civilians and the LTTE before the attack was carried out. The relevant paragraphs of the LLRC report that detail the procedure adopted by the government before an attack was carried out is worth reproducing:
The requirement for the proper identification of military targets and minimizing of civilian casualties is a cornerstone of the Principle of Distinction between civilians and combatants. In this context it has been stated before the Commission that Special Forces personnel had been deployed on long range reconnaissance patrols and given the specific task of ascertaining, confirming or reconfirming LTTE targets that had been given by the Directorate of Military Intelligence or the Sri Lanka Air Force Intelligence. It was further stated that these personnel had, in small groups, penetrated through LTTE defenses and had provided accurate information with the help of Global Positioning Systems (GPS) and other sophisticated means. It was pointed out that through this process, the Security Forces had been able to clearly identify the LTTE targets and thereby avoid or minimize civilian casualties.
Elaborating on the procedure followed by the Sri Lanka Air Force in carrying out air strikes, it was stated before the Commission that any air strike consequent to requests from the Intelligence branches of the Security Forces or the Ground Troops, had to be carried out only after following well laid out procedures. It was stated that when a target was planned, not only normal digital maps, but also aerial photographs had been used. Furthermore, it was stated that a thorough survey of the area of the target had been carried out by utilizing Unmanned Aerial Vehicles (UAVs). Beechcraft had also been deployed in the target area, in order to ascertain that civilians were not present in the location or to avoid protected places such as hospitals, kovils and churches etc. It was explained that air strikes could only be carried out with the approval of the Air Force Commander.127
4.63 The LLRC also heard the evidence of the Commander of the Air Force, which further revealed the meticulous planning that went into each attack. The Commission recounts:
He stated that the LTTE targets were observed for at least one week before initiating action. He explained the procedure as follows: “DMI (Director, Military Intelligence) confirmation, revalidation, day recce, night recce. We match our weapons to the target and then my approval is obtained, the air crew is briefed and then engagement under observation of the UAV or any other surveillance asset that we decide to use” He also went on to state “sometimes some of the targets – we know very well that there are certain terrorist leaders hiding here; there is a training camp there – but we had to stop operations, and wait without taking those targets because there were civilian habitations close to these targets”
4.64 The LLRC presents this evidence in order to examine ‘the procedure adopted to engage identified LTTE targets in the No Fire Zone in the case of LTTE attacks’. Hence the procedure cited by the Commission, i.e. Situation report from ground troops, identification of personnel with weapons only, UAV missions with help of SLAF, and target acquisition on precision guided mechanism, was applicable to all divisions of the military, and not merely to the Sri Lanka Air Force.
4.65 Based on this evidence, the Commission later concludes that the security forces had in fact taken all ‘feasible precautions’ to avoid civilian casualties when carrying out attacks within the NFZs.
4.66 On the other hand, the LLRC acknowledges that civilian casualties did in fact take place within the NFZs. Yet these deaths are characterised as ‘unintentional’, as the Commission concludes that the security forces ‘had not deliberately targeted the civilians in the NFZs, although civilian casualties had in fact occurred in the course of crossfire,’132 and that such decisions to return LTTE artillery fire were made in the ‘heat and confusion of an armed conflict’ by field commanders in situ, and thus could not be second-guessed.133
4.67 This narrative of field commanders being left with no option but to return fire despite the presence of civilians in the area that was being subjected to counter-attack contradicts the LLRC’s position that attacks had been carried out within the NFZs only after careful planning and intimate knowledge of the precise whereabouts of civilians. Incidentally, it is also diametrically at odds with the internationally publicised position of the government during the last stages of the war that the use of heavy weaponry was no longer necessary.
4.68 In a nutshell, the LLRC accepts that the security forces used sophisticated means to ascertain the precise location of civilians within the NFZs, but concludes that the civilian deaths that did in fact occur were unintentional and resulted from ‘an unprecedented situation when no other choice was possible.’ This analysis is, at best, self-contradictory and reflects the LLRC’s reluctance to genuinely examine the allegations against the government.
c. Shelling of Hospitals
4.69 The LLRC concedes that it was confirmed that shells had in fact fallen on hospitals causing damage and resulting in casualties. Yet the Commission concludes that the material placed before it ‘points to a somewhat confused picture as to the precise nature of events, from the perspective of time, exact location and direction of fire.’ The following statement reveals the general attitude of the LLRC with respect to the shelling of hospitals:
The Commission’s task of reaching a definite conclusion as to who was responsible for the shelling of hospitals and loss of lives / damage to property is made extremely difficult by the non–availability of primary evidence of a technical nature and also the fact that supportive civilian evidence is equivocal in nature and does not warrant a definitive conclusion that one party or the other was responsible for the shelling.
4.70 In light of this purported lack of evidence, the Commission concludes that it is not in a position to come to a definitive conclusion in determining responsibility that one party or the other was responsible for the shelling. Nevertheless, the Commission acknowledges the large number of representations made by civilians that ‘shells had in fact fallen on hospitals causing damage to the hospitals and in some instances loss or injury to civilian lives’ However, the LLRC feels no compulsion to recommend a further investigation into this issue. Instead, it makes the recommendation that ‘consideration should be given to the expeditious grant of appropriate redress to those affected after due inquiry as a humanitarian gesture which would instill confidence in the reconciliation process.’ Such a recommendation offends the dignity of the numerous witnesses that were directly affected by the indiscriminate shelling of hospitals. Many of the witnesses continue to suffer from the trauma and grief of witnessing the death of loved ones due to these attacks.
The LLRC’s suggestion that mere humanitarian gestures would instill confidence in the reconciliation process amongst the victims of the war is a reflection of either its utter insensitivity, or its complete lack of sincerity. As noted above, it is internationally accepted that reparations must be based on the acknowledgment of crimes.
4.71 It is difficult to maintain that primary evidence of a technical nature with respect to the targeting of hospitals was not available to the LLRC. As highlighted extensively by the LLRC – to establish that the government had taken precautions to minimise civilian casualties – the security forces had at their disposal ‘state of the art’ surveillance devices that enabled them to closely monitor the conflict zone. Importantly, the government routinely used UAVs. According to submissions made before the LLRC, ‘UAVs were specially used in real time mode where the pilots, the Field Commanders and the Director Operations at the Air Force Head Quarters could all view the target simultaneously, in order to monitor the movements of the civilians with a view to avoiding civilian casualties.’ In fact, the Defence Secretary himself was quoted by the LLRC as stating:
‘the Air Force used the aerial vehicles extensively, to spot LTTE movements and to give the Army, Navy and Air Force valuable intelligence so that the attack took on only LTTE
targets.’ Moreover, the ICRC sent the coordinates of each of the hospitals to the government. While in possession of such abundant information, it is difficult to understand how the LLRC concluded that there was a lack of primary evidence of a technical nature.
4.72 It is even more puzzling that the Commission found no reason to call for further investigations into the shelling of hospitals, so as to ascertain who was responsible for the death of civilians, a fact that is explicitly admitted by the LLRC. The reluctance of the Commission to call for further investigations into the shelling of hospitals – a violation of IHL that may amount to a war crime – may be contrasted against its recommendation to appoint a Special Commissioner of Investigation with respect to disappearances.
In the case of shelling hospitals, what is at stake is the government’s culpability in the possible commission of war crimes. In the case of disappearances, the LLRC frames the issue as isolated incidents for which the government cannot be held accountable. Hence, a Special Commissioner would only be tasked with investigating individual acts committed by ‘a few’. This contrast confirms that the LLRC’s treatment of accountability issues is not only woefully inadequate but also palpably disingenuous.
d. Disappearances of Surrendees
4.73 The LLRC considered representations with respect to alleged disappearances of persons after surrender to or arrest by security forces in paragraphs 4.241 to 4.260 of the report. The number of such incidents, particularly those that took place on 17th and 18th May 2009, is significant and gives rise to prima facie evidence of a systematic policy to disappear surrendees. Annex 5.1 of the report in fact indicates that 1,018 incidents of disappearances took place following arrest by the Sri Lanka Army. Moreover, the LLRC recounts sixteen specific anecdotes relating to disappearance after surrender to the security forces on 17th or 18th May 2009. Most significant is the general pattern of these disappearances, as the incidents appear to be very similar, thereby indicating the systematic nature of the alleged violations. The details of the entire list of 1,018 disappearances involving the security forces are not provided in the LLRC report. In fact, such a number is only a fraction of the total number of disappearances following surrender to or arrest by the security forces, as this number only accounts for incidents specifically brought to the attention of the LLRC.
Given the woeful inadequacy of the time spent in the North and East and the general superficiality of the LLRC’s public sittings in those areas, this figure of 1,018 only represents a fraction of a much larger problem. The figure of 1,018 constitutes more than 25 percent of the total number of disappearances, i.e. 3,596, reported to the LLRC. Despite the lack of details on the disappearances reported in camera and through written submissions, there appears to be some consistency in the numbers. For instance, an analysis of disappearances reported at public sittings reveals that the army was implicated in nearly 27 percent of the alleged disappearances.
4.74 Under the Rome Statute of the International Criminal Court, the systematic practice of enforced disappearance constitutes a crime against humanity. Notwithstanding the fact that Sri Lanka has failed to ratify the Rome Statute, the principle is clearly recognised in CIHL and International Criminal Law, and is therefore binding on the government.
4.75 In response to the undeniable spate of violations, the LLRC purports to recommend a comprehensive approach to address the issue of missing persons. It draws attention to the non-implementation of the recommendations of past commissions and suggests that the ‘[c]ontinued failure to give effect to such critical recommendations of past commissions gives rise to understandable criticism and skepticism regarding government appointed Commissions.’ Hence it recommends that a Special Commissioner of Investigation be appointed to ‘investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate.’
4.76 However, the LLRC makes it clear that, in its opinion, these disappearances are isolated incidents, and not systematic violations that may be part of an official policy. It concludes:
The launching of a full investigation into these incidents and where necessary instituting prosecutions is imperative also to clear the good name of the Army who have by and large conducted themselves in an exemplary manner in the surrender process and when civilians were crossing over to cleared areas, which conduct should not be tarnished by the actions of a few (emphasis added).
4.77 The Commission reaches this conclusion despite specifically recognising its lack of capacity to conduct investigations. During public hearings, the LLRC refused to interpret its mandate as contemplating any investigative functions. In the Puttalam public hearing, the Chairman of the LLRC stated:
We do not have any investigative powers. Our Warrant does not invest us with any investigative powers. Representations were made to us about this incident and now we have given directions to the police to look into the matter and submit us a report. There is nothing more that we can do because we cannot investigate. We do not have the powers to investigate. We will only have to report the matter back to the IGP if we are not satisfied with the investigations that have been conducted.
Our warrant is to bring about ethnic reconciliation. Our warrant does not permit us to go into these individual complaints [sic.].
4.78 Despite the above interpretation of its mandate, the LLRC reached the curious conclusion that over 1,000 complaints of disappearances involving surrender to or arrest by the security forces cannot be prima facie evidence of a systematic practice. Without even so much as acknowledging an investigative function, the LLRC was still able to conclusively determine that each of these incidents were isolated. Accordingly, the LLRC recommends that a Special Commissioner of Investigation be appointed to investigate the incidents further. If such an investigation is actually launched, it could very well reveal that widespread disappearances of surrendees were part of an express or tacit governmental policy of executing surrendees. Hence the mischaracterisation of the disappearances of surrendees as ‘isolated’, as opposed to ‘systematic’, is prejudicial to any future investigation, and is specifically aimed at counteracting allegations of war crimes and crimes against humanity with respect to the systematic practice of enforced disappearances and the execution of surrendees. This mischaracterisation also grants immunity to civilian and military leaders responsible for devising such a policy. In the circumstances, the LLRC has compromised its impartiality and credibility, and has reinforced impunity.
C. Civilian Casualties
4.79 The LLRC does not adequately deal with the question of the scale of civilian casualties during the final stages of the war. The Commission’s response to the question of civilian causalities is evasive and non-committal.
4.80 The Commission admits that a ‘key question’ confronting it was the ‘the scale of civilian casualties, especially during the final phase of the conflict; January to May 2009.’ It also claimed that it ‘gave this matter the highest priority given the conflicting nature of statements made by various persons including media reports.’ In fact, the Commission specifically states:
The need to have an estimate of casualties was also crucial to the mandate of the Commission in addressing the question of possible violations of International Humanitarian Law and Human Rights Law during this period.
4.81 The Commission attempts to address the issue of civilian casualties by referring to the testimonies of civilian officials, including Chief Secretaries, District Secretaries and the Divisional Secretaries of the affected districts of Kilinochchi, Mullaitivu and Mannar as well as the senior officials of the Ministry of Health. However, the Commission concludes:
The representations made by other civilian officials to the Commission indicate that they were not in a position, under the circumstances of conflict, to carry out any assessment of civilian casualties.
Consequently, no estimated or verified figures of civilian casualties were available with them.
4.82 The LLRC also considers the representations of officials from the Ministry of Defence on estimated LTTE deaths, though an estimate of civilian deaths was not available with these officials. According to the Ministry officials, it was estimated that 22,247 LTTE deaths took place between July 2006 and May 2009, while 4,264 LTTE deaths were confirmed by name for the period January to May 2009.
4.83 Apart from the above references to civilian casualties, the LLRC makes no attempt to closely examine the evidence of witnesses with respect to the number of civilians unaccounted for during the period January to May 2009. However, representations made
before the Commission did in fact address this issue specifically.
For instance, the Bishop of Mannar Rt. Rev. Dr. Rayappu Joseph testified (with supporting documentation) that information from the Kachcheris of Mullaitivu and Kilinochchi indicated that 429,059 persons resided in the Vanni in early October 2008.161 Moreover, according to the submissions to the LLRC by Ms. Imelda Sukumar, who served as the GA for Mullaitivu during the relevant time, approximately 360,000 civilians remained in the NFZ in the Puthumattalan area when she left on 22nd January 2009.
The United Nations Office for the Coordination of Humanitarian Affairs issued an update on 15th July 2009 estimating that the total number of people who came out of the Vanni to government-controlled areas as at 10th July 2009 was only 282,380. This figure effectively represents the number of civilians who survived the final stages of the war. It is noted that the UN estimate was based on reports by the relevant GAs, and that the government never disputed this figure.
Thus, according to the Bishop’s estimate of 429,059 persons residing in the Vanni in early October 2008, 146,679 (429,059 – 282,380) people appear to be unaccounted for.
Moreover, according to Ms. Imelda Sukumar’s estimate of 360,000 civilians residing in the NFZ in January 2009, over 75,000 (360,000 – 282,380) civilians remain unaccounted for since January 2009.
4.84 It is unclear as to why the Commission preferred not to confront this issue, given the fact that Ms. Sukumar was a government official working in the Vanni at the time.
4.85 The Commission does, however, allude to a conflation between civilians and the LTTE. It asserts that a ‘[l]arge number of civilians, of all ages and gender, were conscripted by the
LTTE to engage in active combat or coerced to provide support services to the LTTE.’
The Commission further asserts that a ‘considerable number of LTTE cadre would have been among any estimate of casualty figures.’
4.86 Even if it is assumed that the LTTE forcibly conscripted some of the civilians during the time, the Ministry of Defence confirmed only 4,264 LTTE deaths during the period January to May 2009. Hence the LLRC ought to have examined the issue in greater depth and acknowledged the potential scale of civilian deaths.
4.87 In this context, the estimate of the UN Secretary General’s Panel of Experts with respect to the number of civilian deaths from January to May 2009 appears to be credible. The Panel concluded that civilian deaths were in ‘the tens of thousands.’ Given the well substantiated evidence before the LLRC, between 75,000 and 146,679 civilians who resided in the Vanni remain unaccounted for.
It is reasonable to conclude that a majority of these civilians died during the final stages of the war.
4.88 The LLRC’s reluctance to examine this issue must be viewed in the wider context of the government’s own attempts to conceal the truth. The government adopted the following measures with the intention of concealing the truth with regard to civilian casualties during the war:
1. Grossly underestimating the Vanni population as 70,000 persons;
2. Denying domestic and international media access to the conflict zone, thereby ensuring a complete media blackout on the subject of civilian casualties;
3. Ejecting Non-governmental Organizations and International Non-governmental Organizations from the conflict zone in September 2008;
4. Causing UN agencies and personnel to withdraw from the conflict zone;
5. Denying Tamil Members of Parliament access to the conflict zone; and
6. Arbitrarily interning the civilians who came out of the conflict zone and preventing them from having contact with family or legal counsel.
4.89 These measures seriously call into question the government’s claim that it adopted a ‘zero civilian casualty policy’ throughout the prosecution of the war.
16 January 2012
TC
The premier political organization of the Sri Lankan Tamils at present is the umbrella group known as the Tamil National Alliance(TNA). The TNA has released a 114 page analytical response to the LLRC report.
The TNA report which appears to have been compiled meticulously has turned out to be a devastating critique of the LLRC report
The executive summary, preamble and table of contents of the TNA report is posted on my website www.transcurrents.com and the full contents of the report (in PDF) is also available here on dbsjeyaraj.com.
I hope readers will avail of that posting and read the executive simmary and preamble as well as the report in full to obtain a thorough understanding of the “situation” from an effective “indigenous”perspective.
Among many observations made in the TNA report are the ones about the methodology and approach adopted by the LLRC in dealing with evidence before it and application of laws to that.
The TNA report faults the LLRC over “selective application of evidence” and “the failure to apply law to the facts”.It charges the LLRC of having “neglected to closely examine possible violations of International Humanitarian law and Domestic law “that may have been allegedly committed.
I thought the observations made in the TNA report on these crucial issues deserve greater in depth attention by readers. I am therefore excerpting sections of the report from 4.1 to 4.89 and posting them on my blog.
Here it is Friends - DBSJ
Devastating critique of LLRC Report by the TNA
4. LLRC Final Recommendations
4.1 The final report of the LLRC was released through Parliament on 16th December 2011. The report purports to deal with a number of areas including the ceasefire agreement, the security forces operations, humanitarian law issues, human rights, land issues and reconciliation. This section specifically deals with the manner in which the LLRC report approached issues of accountability.
A. Methodology and Approach
4.2 At the outset, it is apparent that the LLRC disregards credible allegations made against the Government of Sri Lanka with respect to violations of IHL amounting to war crimes and crimes against humanity. These allegations include:
1. Deliberately underestimating civilian numbers in the Vanni in order to deprive them of food and medicine;
2. Deliberately or recklessly endangering the lives of civilians in No-Fire Zones (NFZs);
3. Targeting civilian objects including hospitals; and
4. Executing or causing the disappearance of surrendees.
4.3 The government is also accused of illegally and arbitrarily detaining a large part of the displaced civilian population, destroying civilian property and means of livelihood, and rendering civilians destitute, all of which are violations of international law. The LLRC does not directly deal with these allegations from the perspective of IHL. Yet, these allegations remain the subject of domestic and international concern.
4.4 It is noted that the LLRC confirms many of the factual allegations relating to civilian deaths, attacks within NFZs, shelling of hospitals and disappearances of surrendees, which were characterized by the UN Secretary General’s Panel of Experts as ‘credible’ allegations of IHL violations. Yet the findings and observations of the LLRC with respect to the four above-mentioned credible allegations against the government are based on a flawed analysis of the law. The LLRC deals with many of these allegations only in a cursory manner, which exposes its true intention: to absolve the government of all responsibility with respect to war crimes and crimes against humanity. Moreover, in cases where strong evidence of violations by the security forces was presented to the Commission, it routinely characterised the crimes as ‘individual’ and ‘isolated’, or concluded that responsibility could not be determined due to lack of evidence.
4.5 Two general criticisms may be levelled against the LLRC’s approach and methodology in dealing with the above allegations:
(1) the selective application of evidence; and
(2) the failure to apply the law to the facts.
a. Selective Application of Evidence
4.6 The Panel fails to properly assess the factual situation relating to the allegations against the government and consistently places undue reliance on witness testimonies that lack credibility. The Commission sites the evidence of government doctors working in the North and East on at least twenty occasions when attempting to recount the factual situation during the final stages of the war. Incidentally, the doctors – including Dr. S. Sivapalan, Dr. T. Sathiamoorthy, Dr. V. Shanmugarajah and Dr. T. Vartharajah – are quoted extensively without any reference to the context within which these doctors provided testimony to the LLRC. These witnesses provided an immense service to the people of the North and East, particularly during the final stages of the war. However, they were amongst the five doctors who were taken into custody in May 2009 after reporting extensively on civilian casualties, the desperate humanitarian situation, and the shelling of hospitals by government forces from within the NFZs during the final stages of the war.
Following their arrests, these doctors recanted their earlier statements on the situation during the final stages of the war after being trotted out on public television whilst still in custody. Thus the credibility of the evidence submitted to the LLRC by these doctors was heavily compromised owing to the context within which such evidence was submitted. Yet, the LLRC neither makes reference to the detention of these witnesses nor to the possibility that they were speaking under duress. Hence extensive reliance on witnesses who recanted earlier versions of their experiences and who spent a considerable amount of time in government custody seriously calls into question the LLRC’s interpretation of the factual situation.
4.7 This approach is particularly disconcerting given the voluminous evidence that the LLRC could potentially have called for in terms of UAV footage, videos of aerial attacks and military logs – particularly since the military witnesses acknowledged that every attack was videotaped and received the official sanction of the commanders. It is unclear as to why the LLRC chose not to summon military officers to explain at least the attacks that the LLRC itself acknowledges to have taken place during the last stages of the war.
4.8 Moreover, the LLRC appears to have discarded parts of the evidence contained in the representation by Ms. Imelda Sukumar, who served as the Government Agent (GA) for Mullaitivu from 2002 to 12th July 2009. For instance, when the Commission questioned her, the GA claimed that approximately 360,000 civilians remained in the NFZ in the Puthumattalan area when she left on 22nd January 2009.
The LLRC makes only a passing reference to this estimate and thereafter concludes that it is unable to confirm the actual number of civilians who were trapped in the Vanni during the final stages of the war – an estimate that remains crucial to dispelling the allegation that the government deliberately underestimated the number of civilians in the Vanni in order to deprive them of food and medicine.
b. Failure to Apply the Law to the Facts
4.9 The LLRC’s overall methodology in examining the facts and applying the law to the facts appears to be deeply problematic. The Commission consistently fails to test the credibility of the evidence it selects to apply. A good example of this failure is the routine acceptance of the evidence provided by the four doctors referred to above. Further, the LLRC also accepts the testimonies of senior government and military officials while making no attempt to verify such evidence by summoning subordinate officers.
4.10 The LLRC appears to be preoccupied with examining ambiguities and dilemmas in IHL when it is not clear as to why these ambiguities are even relevant. The main question that the LLRC should have focused on in greater depth is whether the parties to the conflict violated established, fundamental rules of IHL.
4.11 The LLRC also fails to rigorously analyse the evidence. In some cases, the LLRC made broad assertions and arrived at concrete conclusions without considering voluminous evidence before it. For example, it arrived at the conclusion that the government did not underestimate the civilian population in the Vanni solely on the basis that the government had cooperated with the International Committee of the Red Cross (ICRC) and the World Food Programme (WFP) in delivering food to the Vanni population.
4.12 In other cases, the LLRC fails to draw vital conclusions from the evidence. For example, the LLRC fails to investigate or inquire into the question of government culpability or responsibility for crimes admittedly committed by armed paramilitary groups. The nexus between these groups and the government is never questioned. Moreover, the LLRC fails to engage in a legal inquiry into whether the crimes attributable to these groups render the government culpable through any of the established modes of liability in domestic or international law, such as aiding and abetting, conspiracy, joint criminal enterprise or command responsibility. In fact, the LLRC makes no reference whatsoever to the concept of command responsibility in its entire report.
4.13 Hence, the LLRC makes no genuine attempt to apply the law to the facts. It neglects to closely examine the possibilities of violations of IHL and domestic law that are credibly alleged to have been committed.
4.14 A more detailed analysis of this failure is presented in the next section.
B. Violations of International Humanitarian Law
4.15 This section closely examines the LLRC’s treatment of the allegations against the government with respect to violations of IHL.
a. Starvation of the Civilian Population
4.16 The LLRC observes that during the final stages of the war, shelling by the LTTE made the transportation of food to the displaced population in the Vanni extremely difficult.
Accordingly, ‘[w]hatever shortages that prevailed during this period, had been mainly due to the absence of unloading facilities, without a proper port and the associated security risks.’ The LLRC opines that the government took every effort to supply food and medicine to the people who were trapped in the NFZs. However, it concedes that ‘adequacy levels appear to have declined during the months of February, March, April and the first half of May 2009 as the conflict intensified’ The LLRC report presents a table64 in explaining the food delivered via sea route to Puthumattalan, Mullaitivu during this crucial period between 17th February 2009 and May 2009.
4.17 This table, however, does not indicate the approximate number of civilians for whom the food was delivered. The LLRC fails to address the central question of whether the government deliberately or recklessly underestimated the population in the Vanni. Instead, the LLRC observes that the material before it provided ‘varying estimates of the number of civilians who were held hostage by the LTTE in the NFZs.’ Moreover, despite its ‘best efforts to verify the estimates with documentary evidence from relevant civilian authorities,’ the LLRC concedes that it was unable to secure any original documentation with respect to population estimates.
4.18 This statement is facetious given the volume of documentation provided at the time by the GAs in Mullaitivu and Kilinochchi. Most crucial was the evidence provided by Ms. Imelda Sukumar, the GA for Mullaitivu during the final stages of the war. She specifically mentions that approximately 360,000 civilians remained in the NFZ at the point of her departure in January 2009. This figure, she explains, reduced due to some civilians escaping to government controlled areas. Yet, what remains clear from the GA’s testimony is that the figure could not have been as low as the official government estimates.
4.19 Moreover, the LLRC had in its possession detailed statistical data on the population of the Vanni during the time. For instance, the Bishop of Mannar, Rt. Rev. Dr. Rayappu Joseph made detailed representations to the LLRC on the number of civilians trapped in the Vanni during the final stages of the war.
4.20 It is clear that the Commission paid no attention to the voluminous evidence before it confirming that the food intended for the Vanni population was grossly inadequate.
Accordingly, the LLRC ought to have inquired into the question of whether the government had deliberately underestimated the number of civilians in the Vanni. The Commission observes: ‘the non-availability of such documentation does not have a decisive bearing on the fact that what was practically feasible under the circumstances was undertaken.’ This observation clearly demonstrates the Commission’s lack of regard for the importance of accurate population estimation in order to avoid major shortages of food.
The LLRC emphatically concludes:
The strenuous efforts taken by the Government in coordination with international agencies such as the ICRC and WFP, as described above, does not warrant any possible inference that there was a deliberate intention to downplay the number of civilians in the NFZs for the purpose of starving the civilian population as a method of combat.
4.21 The LLRC appears to ignore evidence of population underestimation by the government.
Compelling data on population estimates is presented in the U.S. Department of State report to Congress on Incidents During the Recent Conflict in Sri Lanka (2009). The following table accurately depicts the possible extent of the violation, and confirms the seriousness of the allegations against the government with respect to the deliberate starvation of the Vanni population.
4.22 According to the U.S. State Department, there were numerous reports that the food shortage during the final four months of the conflict resulted in deaths due to starvation.
Hence, the LLRC ought to have dealt with the unavoidable questions of
(1) whether the government had underestimated the population in the Vanni, and
(2) whether such underestimation was deliberate and for the purpose of starving the population.
4.23 The U.S. State Department figures are consistent with a report published on 13th December 2009 by the University Teachers for Human Rights (Jaffna). The report carefully documents the various estimates of the government with respect to the Vanni population during the final stages of the war. On 4th November 2008, the GAs of Mullaitivu and Kilinochchi estimated the total displaced population to be 348,103. Yet, the official government estimation during the time was reported to be much lower – approximately 100,000.
By early March 2009, approximately 37,000 civilians had escaped to government-controlled areas. Thereafter, the government estimated the number of civilians remaining in the Vanni to be 70,000. Yet as many as 103,000 civilians were said to have escaped to government controlled areas from 20th to 22nd April 2009, which was 33,000 more than the government’s estimation. On the morning of 30th April 2009, the Ministry of Defence claimed that only 15,000 to 20,000 people were left in the NFZ. This figure also appeared to be a gross underestimation, as the IDP count in camps on 28th April 2009 was 172,000, whereas this figure increased to 290,000 on 25th May 2009 presumably due to the fact that over 100,000 persons had come out of the conflict zone. The increase in this figure confirmed that more than 100,000 people remained in the NFZ after the April 20th to 22nd exodus.
4.24 Customary International Humanitarian Law (CIHL) is unambiguous on the prohibition of using starvation of a civilian population as a method of warfare. In the circumstances, the allegation of deliberate underestimation of the civilian population in order to deprive civilians of food and medicine ought to have received more serious attention in the LLRC report. For instance, as early as September 2008, then Secretary to the Ministry of Foreign Affairs, Dr. Palitha Kohana maintained that the international community was ‘exaggerating’ the population figures in the Vanni. He contended that the figure was in the ‘thousands’ rather than in the ‘hundreds of thousands’. This estimate turned out to be a gross underestimation of the displaced population in the Vanni and ought to have received the attention of the LLRC.
4.25 The LLRC ought to have examined the numerous news updates and situation reports published by the Ministry of Defence, which appeared to grossly underestimate the population figures in the Vanni. For example, in mid-February 2009, the Ministry of Defence expressly stated that only 50,000-70,000 civilians remained in the war zone, when in fact international aid organisations estimated the population to be more than three times that number.
4.26 Importantly, the LLRC does not examine the alleged role played by the then Commissioner General of Essential Services in blocking essential food and non-food aid to the Vanni, which was specifically requested by the GAs of the region. In a letter to the GAs of Vavuniya, Mullaitivu and Kilinochchi dated 20th November 2008, the Commissioner General of Essential Services, S.B. Divaratne stated the following:
It has been noted, that most of the INGOs and some UN Agencies requesting humanitarian assistances to be transported to Wanni, are based on the request made by You, I believe, are more familiar with the untiring efforts of the government of Sri Lanka in this regard, than anyone else. Therefore, you are kindly requested to refrain from making any requests for food and non-food assistance from these organizations in future. All your requirements should be processed through the Commissioner General of Essential Services, even in the event of any urgent necessity.
4.27 This letter, if authentic, is evidence of a systematic effort on the part of the government to prevent the GAs of the Vanni from seeking outside assistance to feed a potentially starving population. Incidentally, the letter is copied to senior government officials including the then Senior Advisor to the President, Basil Rajapaksa, and the Defence Secretary, Gotabaya Rajapaksa. Hence government responsibility for the subsequent deaths by starvation that are alleged to have taken place in the Vanni may be established, if the letter was in fact authentic. Neither the contents nor the authenticity of this letter is considered by the LLRC.
4.28 The failure to examine this allegation against government officials – which, if proven, amounts to a grave breach of IHL – casts serious aspersions on the credibility of the LLRC.
b. Targeting Civilians within the NFZs
4.29 At the outset, it is strongly emphasised that the issue of NFZs does not change the core obligation of the government with respect to the protection of civilians. The government is not accused of failing to respect the NFZs per se. The real crux of the allegations against the government is that, notwithstanding the existence or otherwise of legally recognised NFZs, the government violated IHL applicable under the common regime of law, i.e. the law applicable to all situations of war, as opposed to the law specifically applicable to NFZs. Moreover, it is noted that the allegations against the government are not limited to the targeting of civilians in NFZs, but in fact extend to the targeting of civilians in ordinary civilian populated areas. The full extent of such allegations is, however, not specifically dealt with by the LLRC.
4.30 In the circumstances, the general corpus of IHL would be applicable and forms the standards by which the actions of both parties are ultimately judged. Bearing this central caveat in mind, the analysis of the LLRC with respect to the issue of targeting civilians within the NFZs is examined in detail below.
4.31 The LLRC report addresses the allegation against the government with respect to targeting civilians and civilian objects in the three NFZs that the government unilaterally declared during the final stages of the war. The Sri Lankan experience is characterised as ‘unprecedented’, as the LTTE had ‘no intention whatsoever of agreeing to a negotiated declaration of such zones providing for civilian protection.’ There is credible evidence that the LTTE endangered the lives of civilians within the NFZs. To this extent, the LLRC observes:
‘[t]he situation had become complicated by the fact that the LTTE had moved into the NFZ together with their heavy weapons and placed them amidst civilians. This had converted the NFZ into a virtual operational base from which the LTTE had directed fire against the Security Forces.’
4.32 Yet the LLRC arrives at a flawed conclusion regarding the consequences of the LTTE’s actions within the NFZs. It concludes: ‘the State and Field Commanders [of the Sri Lanka armed forces] [we]re faced with the dilemma of protecting civilians on the one hand and neutralizing the enemy fire power emanating from within the NFZ, on the other.’ IHL, however, governs this so-called ‘dilemma’, and provides a clear answer with respect to the obligations of the State.
4.33 One major lapse on the part of the LLRC is its failure to adequately discuss the IHL definition of civilians and civilian objects. The Commission observes:
From a legal perspective, the critical failure of the Protocols to provide a precise definition of the term “civilian”, “civilian population” and a similar lack of clarity with regard to the term “take a direct part in hostilities” has contributed to a substantial degree of ambiguity, leaving, vital terms which have a bearing on core IHL principles such as the Principle of Distinction to be dealt with largely on a case by case basis. This aspect assumes a heightened degree of uncertainty in the context of the complexities involved and the challenges posed by the very nature of non-international armed conflicts involving non State armed groups. It is often the case that the non State armed groups do not intentionally, as a matter of strategy distinguish themselves from the civilian population and conceal their identity among the civilians until the very moment of attack, placing civilians in peril. This leads to a position where the civilian, either willingly or in some cases unwillingly, becomes part and parcel of an overall combat strategy of the non State armed groups, and thereby placing at risk the protection the civilian is entitled under IHL.
4.34 It is simply not true that the definition of civilians is unclear in IHL applicable to noninternational armed conflicts. The LLRC ought to have elaborated upon the definition of direct or continuous participation in hostilities and its implication on the Principle of Distinction.
4.35 In this respect, the analysis by the UN Secretary General’s Panel of Experts is authoritative.
The Panel observes that IHL specifically prohibits attacks on civilians and civilian objects. The Panel specifically addresses more ‘complicated’ situations where combatants mingle with civilians within protected zones. It cites the International Criminal Tribunal for the Former Yugoslavia (ICTY), which has held that the absolute ban on attacks against civilians extends to a population that is ‘predominantly civilian’, and that ‘the presence within the civilian population of individuals who do not come within the definition of civilians [i.e. combatants] does not deprive the population of its civilian character.’
Several other authoritative statements by the ICTY may also be cited in this regard. In Strugar, the Trial Chamber of the ICTY held:
As regards the notion of civilians, the Chamber notes that members of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.
4.36 Similarly in Galic, the ICTY Trial Chamber opined:
For the purpose of the protection of victims of armed conflict, the term ‘civilian’ is defined negatively as anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict. It is a matter of evidence in each particular case to determine whether an individual has the status of civilian.
4.37 The uncertainty on the exact degree of involvement of LTTE members, whether in continuous combat function or in direct participation in hostilities, does not mean that the definition of direct participation in hostilities is not clearly recognised in customary international law. In fact a clear definition has been applied by the ICTY and the International Criminal Tribunal for Rwanda (ICTR), and is detailed in the ICRC’s interpretive guidance on direct participation in hostilities.
4.38 The ICRC, in its interpretation on ‘continuous combat function’ observes:
In non-international armed conflicts such as civil wars, organized armed groups constitute the armed forces of a non-State party to the conflict. It can be difficult to tell the difference between members of organized armed groups and the civilian population. Civilians support insurgencies in many different ways including, at times, by directly participating in hostilities in a spontaneous, sporadic or unorganized way. However, civilians cannot be regarded as members of an organized armed group unless they assume a “continuous combat function,”
i.e. unless they assume continuous function involving their direct participation in hostilities (emphasis added).
4.39 The ICRC study on CIHL also deals with the issue of doubts over civilian status in its commentaries on Rule 6 of CIHL.
The commentaries clearly recommend that in the case of doubt, the solution is the same as for international armed conflict:
In the case of non-international armed conflicts, the issue of doubt has hardly been addressed in State practice, even though a clear rule on this subject would be desirable, as it would enhance the protection of the civilian population against attack. In this respect, the same balanced approach as described above [i.e. as discussed under Rule 6] with respect to international armed conflicts seems justified in non-international armed conflicts.
4.40 Accordingly, it is clear that whoever does not fulfill the criteria of direct participation in hostilities is a ‘civilian’. Therefore, there is no justification as to why the criteria that have been adopted to define the concept of ‘direct participation of hostilities’ are not applicable to the Sri Lankan situation. Thus, the LLRC fails to justify why the situation in Sri Lanka would render the acknowledged categories of IHL irrelevant.
4.41 The UN Secretary General’s Panel of Experts also cites CIHL, which prohibits parties from directing attacks on a zone established to shelter the wounded, the sick and the civilians from the effects of hostilities. Moreover, the ICTY has clearly held:
The presence of certain non-civilians among the targeted population does not change the character of that population. It must be of a ‘predominantly civilian nature’.
4.42 Yet the LLRC’s analysis of the actions of the armed forces within the NFZ runs contrary to the norms established by CIHL. The Commission observed, wrongly, that the conduct of the LTTE had ‘radically transformed the very character of the NFZ.’ Moreover, it was contended that the LTTE’s actions would have constituted a material breach of an agreement pertaining to the NFZs had the zones been established following the general practice in inter-state conflicts. In those circumstances, the government ‘would have been entirely justified in terminating the agreement and ceasing the protection afforded to the NFZ’ Applying these principles to the situation at hand, the Commission concludes that ‘the Security Forces had been compelled to resort to return fire in response to LTTE attacks from within the NFZ, thereby exposing the civilians being held hostage by the LTTE in the NFZ to danger.’ Hence, the picture painted by the Commission with respect to the government’s actions is one arising purely out of necessity and reasonable self- defence. In one solitary sentence, the Commission proceeds to disregard all allegations that government initiated attacks within the NFZ:
It further transpired from these and other representations that the Army had never initiated attacks in the Safety Zones and return fire was in response to LTTE attacks.
4.43 This analysis is flawed for two reasons. First, as mentioned above, it ignores established IHL principles that apply to complicated situations of this nature. The UN Secretary General’s Panel of Experts carefully analyses the argument that the Sri Lankan Army did not intend to make the civilian population the object of attack, but instead aimed to neutralise the LTTE. Citing a landmark decision of the International Criminal Court, the Panel concludes that ‘an attack remains unlawful if it is conducted simultaneously at a lawful military object and an unlawfully-targeted civilian population.’ Hence the simultaneous nature of any attack needed to be more closely examined by the LLRC.
4.44 Second, the LLRC’s preferred narrative of ‘retaliation to LTTE attacks’ is an unreasonable generalisation that fails to tally with numerous accounts by victims of the conflict. One witness who made representations in at Kandawalai Divisional Secretariat claimed that the Sri Lanka Broadcasting Corporation announced on 2nd or 3rd February 2009 that Suthanthirapuram was a safe place. After civilians moved there, shell attacks killed nine members of one family. The witness claimed that approximately 300 people were subject to continuous shelling by both sides. The LLRC in fact mentions this specific representation but leaves out the reference to the Sri Lanka Broadcasting Corporation.
Moreover, the witness’s narrative does not suggest the close proximity of any LTTE gun positions to the location of the civilians. The narrative instead reveals an indiscriminate bombing of an area that was previously announced on national radio to be a ‘safe area’.
4.45 Another crucial account that the LLRC does not deal with is the attack on the United Nations hub at the Suthanthirapuram junction inside the first NFZ. According to evidence reviewed by the UN Secretary General’s Panel of Experts, on 23rd and 24th January 2009, the Sri Lanka Army continuously shelled the area in which the UN had established the hub. It was mentioned that the coordinates of the hub had been relayed to the Vanni commander of the Sri Lanka Army. According to the evidence presented to the Panel, ‘[a] large number of civilians also relocated to the NFZ and set up their shelters around the United Nations hub’ and the Additional GA had established a food distribution centre nearby.
The Panel recounts:
In the early morning hours of 24 January, hundreds of shells rained down in the NFZ. Those with access to the United Nations bunker dove into it for protection, but most IDPs did not have bunkers and had nowhere to seek cover. People were screaming and crying out for help.
The United Nations security officer, a highly experienced military officer, and others present discerned that the shelling was coming from the south, from SLA positions. He made frantic calls to the head of United Nations Security in Colombo and the Vanni Force Commander at his headquarters in Vavuniya as well as the Joint Operations Headquarters in Colombo, demanding that the shelling stop, which sometimes resulted in a temporary adjustment of the shelling before it started again. Heavy shelling continued over night, and shells continued to hit the United Nations hub and the distribution centre, killing numerous civilians [sic].
4.46 The gruesome details of what the UN staff discovered on the morning of 24th January 2009 as they emerged from their bunkers is presented in the next paragraph of the Panel’s report. Crucially, the Panel’s account dispels the generalisation that all attacks by the Sri Lanka Army within the NFZ were necessarily responses to LTTE attacks. The Panel observes:
Although LTTE cadre were present in the NFZ, there was no LTTE presence inside the United Nations hub. The LTTE did fire artillery from approximately 500 metres away as well as from further back in the NFZ, but the area where the United Nations was based was very clearly civilian. The Government never gave an explanation for its shelling of the United Nations hub, which was the only international presence in the NFZ (emphasis added).
4.47 This account reveals that the LLRC categorically failed to examine the entirety of the evidence with respect to government shelling of the NFZs. The Commission instead concludes:
There was no material placed before the Commission suggesting any policy or incident of deliberately targeting civilian concentrations in the NFZs or elsewhere by the Security Forces, except for three incidents described by three persons: One alluded to by an LTTE inmate at the Boossa Camp and two incidents of alleged Navy fire, described by civilians who appeared before the Commission.
4.48 On the one hand, incidents similar to the shelling of the UN hub may not have been brought to the LLRC’s attention, perhaps owing to the gross inadequacy of the time spent in the North and East to gather evidence. On the other hand, the LLRC has been generally selective in its consideration of evidence, preferring to cite only anecdotes that support its premeditated conclusion:
On consideration of all facts and circumstances before it, the Commission concludes that the Security Forces had not deliberately targeted the civilians in the NFZs, although civilian casualties had in fact occurred in the course of crossfire…It would also be reasonable to conclude that there appears to have been a bona fide expectation that an attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack
involved.
4.49 Additionally, the LLRC concludes that the actions of the security forces complied with the Principle of Proportionality.111 It opines: ‘[g]iven the complexity of the situation that presented itself as described above, the Commission after most careful consideration of all aspects, is of the view that the security forces were confronted with an unprecedented situation when no other choice was possible and all “feasible precautions” that were practicable in the circumstances had been taken.’ This analysis is deeply flawed, as it fails to hold the government to the standards expected of it under IHL. It fails to take account the fundamental principle of avoiding civilian harm. Hence, any notion of military advantage including defense of the troops must be weighed against the loss of civilian lives. The LLRC reaches its conclusion that attacks were proportionate without applying the test of weighing anticipated military advantage vis-à-vis civilian loss. It is pertinent to note that this test could not have been adequately performed without a reasonable estimate of civilian casualties caused due to each attack – an estimate that the LLRC concedes it is reluctant to make.
4.50 The government certainly had the means to comply with the Principle of Distinction, one of the cornerstones of IHL. As specifically highlighted by the LLRC, UAVs were specially used in ‘real time mode’ in order to monitor the movements of the civilians and avoid civilian casualties.113 The ‘real time’ surveillance of the conflict zone indicates that the security forces had the necessary means to distinguish between civilians and combatants in order to carry out concentrated attacks, thereby minimising civilian casualties. Leaving aside the legality of carrying out such attacks within specially protected zones, it is noted that only concentrated attacks with minimal civilian casualties could have ensured compliance with the Principle of Proportionality.
4.51 The UN Secretary General’s Panel of Experts concludes that the government clearly failed to comply with the Principle of Proportionality, particularly with respect to attacking the second and third NFZs. The Panel observes:
Broadly speaking, once both the civilian population and the LTTE were confined to the very limited spaces of the second and third NFZs, the LTTE was no longer mobile as an armed force, and more precise means to defeat the LTTE than barrages of widely-spread artillery and mortar attacks could and should have been employed in order to ensure respect for international humanitarian law.
4.52 The LLRC suggests that the government had ‘restricted’ the use of heavy weapons with the establishment of the NFZs. However, the actual claim made by the government both on 27th February 2009 and 27th April 2009 was that the security forces had been instructed to cease the use of heavy artillery within the NFZs.116 Moreover, in an interview on BBC HARDtalk dated 2nd March 2009, Minister for Disaster Management and Human Rights, Mahinda Samarasinghe responded to a question on the justifiability of using heavy weapons. The Minister stated:
There is absolutely no justification to use heavy weapons and, in fact, about ten days ago, the armed forces took a conscious decision not to use any heavy weapons. We have not been using heavy weapons; we are fighting man-to-man, door-to-door and street-to-street. This is the way that we are going to ensure that terrorism is wiped out because, as you know, the LTTE is now restricted in fact to a very small area of about 48 sq. km. and we cannot use heavy weapons.
4.53 It is noted that the government declared the second NFZ on 12th February 2009.118 Hence the Minister’s reference to a decision to cease the use of heavy weapons coincided with the declaration of the second NFZ.
4.54 In any event, the LLRC fails to adequately deal with the allegation against the government pertaining to the disproportionate use of force within the NFZs. It also fails to consider the views of the UN Panel of Experts that ‘more precise means’ should have been used as alternatives to heavy weapons in order to minimise civilian casualties.
4.55 The countless anecdotal testimonies referenced in the UN Secretary General’s Expert Panel Report, as well as some accounts of witnesses who came before the LLRC, confirm the continued use of heavy weaponry within the NFZs and suggest that civilian casualties did in fact take place as a result of the indiscriminate use of these weapons.
4.56 Instead of citing from the rich jurisprudence of the International Criminal Court, the ICTY and the ICTR, the LLRC chooses to cite an obscure and irrelevant precedent set in 1990 by the International Centre for the Settlement of Investment Disputes to arrive at the following conclusion:
It would also be pertinent in this context to recall that, in determining questions of State responsibility in respect of death, injury or property damage in the course of military operations, international tribunals referring to doctrinal authorities, have described as “next to impossible”, the obtaining of a re-construction in front of a tribunal of all the conditions under which the “combat action” took place with an adequate reporting of all accompanying circumstances.120
4.57 The LLRC consistently uses arguments of this nature to deflect credible allegations that the government used disproportionate force within the NFZs. The Commission ought to have considered the authoritative jurisprudence of the ICTY. In Kordic and Čerkez, the ICTY held:
It is accepted that attacks aimed at military objectives, including objects and combatants, may cause ‘collateral civilian damage.’
International customary law recognises that in the conduct of military operations during armed conflicts a distinction must be drawn at all times between persons actively taking part in the hostilities and civilian population and provides that the civilian populations as such shall not be the object of military operations, and every effort be made to spare the civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to the civilian population. Nevertheless, international customary law recognises that this does not imply that collateral damage is unlawful per se.
4.58 Moreover, in Galic, the ICTY Trial Chamber made certain crucial observations with respect to the Principle of Proportionality. In the absence of any reference to this jurisprudence in the LLRC report, it is important that the entirety of the ICTY’s conclusions on the subject is reproduced:
The practical application of the principle of distinction requires that those who plan or launch an attack take all feasible precautions to verify that the objectives attacked are neither civilians nor civilian objects, so as to spare civilians as much as possible. Once the military character of a target has been ascertained, commanders must consider whether striking this target is ‘expected to cause incidental loss of life, injury to civilians, damage to civilian objectives or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’ If such casualties are expected to result, the attack should not be pursued. The basic obligation to spare civilians and civilian objects as much as possible must guide the attacking party when considering the proportionality of an attack. In determining whether an attack was proportionate it is necessary to examine whether a reasonably well informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack. The Trial Chamber considers that certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack.
As suggested by the Defence, the parties to a conflict are under an obligation to remove civilians, to the maximum extent feasible from the vicinity of military objectives and to avoid locating military objectives within or near densely populated areas. However, the failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack (emphasis added).
4.59 The unilateral declaration of the NFZs by the government appears to be deeply problematic in terms of its objectives and location. The LLRC does not examine in any detail the causal link between the unilateral declaration of the NFZs, which amounted to an active encouragement of civilians to congregate within a given zone, and the subsequent bombardment of those very zones. In this regard, the actual declaration of the NFZs by the government seriously exposed civilians to subsequent harm. Importantly, the government unilaterally declared not just one, but three NFZs, notwithstanding the LTTE’s widely known policy of mingling with civilians. Armed with this knowledge, it is difficult to maintain that the government was completely unaware of the imminence of carrying out attacks within the NFZs – and the civilian casualties such attacks would cause – at the time of unilaterally demarcating the zones as ‘No-Fire’.
4.60 The LLRC alludes to the above causal link in its observation: ‘by unilateral declaration of a No Fire Zone, the government unwittingly provided the LTTE an opportunity to consolidate itself amongst the civilian enclave for strategic purposes’ (emphasis added).
It is astonishing that the Commission would choose to make this observation given the fact that the LTTE strategically mingled with the civilian population within the NFZs not once but on three occasions. Hence, even if the government ‘unwittingly’ provided the space for the LTTE to mingle with civilians when declaring the first NFZ, it could not be held out that the government was unaware of the same likelihood when declaring the second and third NFZs. In the circumstances, the unilateral declaration of the second and third NFZs, and the active encouragement of civilians to move to these zones, are deeply problematic.
In fact, it could be easily inferred that the government was, at the time of declaring the second and third zones, well aware of the likelihood that civilians would be seriously exposed to harm. This inferred awareness – described as a ‘cynical manipulation’ by the UN Secretary General’s Panel of Experts – gives credence to the allegation that the government deliberately or recklessly lured civilians into harm’s way i.e. by repeatedly declaring NFZs with the knowledge that such zones would be subsequently attacked due to the LTTE’s presence within them.
The perceived refusal of the LLRC to carefully examine this issue is a serious lapse on its part.
4.61 Considering the foregoing analysis, the LLRC’s overall assessment of the allegations against the government reveals a fatal contradiction, which requires further reflection.
4.62 On the one hand, the LLRC accepts the government’s position that it meticulously monitored attacks carried out within the NFZs. The government’s narrative reveals that the military command was intimately aware of the nature and location of the target of each and every attack that took place within the NFZs and that every effort was taken to distinguish between civilians and the LTTE before the attack was carried out. The relevant paragraphs of the LLRC report that detail the procedure adopted by the government before an attack was carried out is worth reproducing:
The requirement for the proper identification of military targets and minimizing of civilian casualties is a cornerstone of the Principle of Distinction between civilians and combatants. In this context it has been stated before the Commission that Special Forces personnel had been deployed on long range reconnaissance patrols and given the specific task of ascertaining, confirming or reconfirming LTTE targets that had been given by the Directorate of Military Intelligence or the Sri Lanka Air Force Intelligence. It was further stated that these personnel had, in small groups, penetrated through LTTE defenses and had provided accurate information with the help of Global Positioning Systems (GPS) and other sophisticated means. It was pointed out that through this process, the Security Forces had been able to clearly identify the LTTE targets and thereby avoid or minimize civilian casualties.
Elaborating on the procedure followed by the Sri Lanka Air Force in carrying out air strikes, it was stated before the Commission that any air strike consequent to requests from the Intelligence branches of the Security Forces or the Ground Troops, had to be carried out only after following well laid out procedures. It was stated that when a target was planned, not only normal digital maps, but also aerial photographs had been used. Furthermore, it was stated that a thorough survey of the area of the target had been carried out by utilizing Unmanned Aerial Vehicles (UAVs). Beechcraft had also been deployed in the target area, in order to ascertain that civilians were not present in the location or to avoid protected places such as hospitals, kovils and churches etc. It was explained that air strikes could only be carried out with the approval of the Air Force Commander.127
4.63 The LLRC also heard the evidence of the Commander of the Air Force, which further revealed the meticulous planning that went into each attack. The Commission recounts:
He stated that the LTTE targets were observed for at least one week before initiating action. He explained the procedure as follows: “DMI (Director, Military Intelligence) confirmation, revalidation, day recce, night recce. We match our weapons to the target and then my approval is obtained, the air crew is briefed and then engagement under observation of the UAV or any other surveillance asset that we decide to use” He also went on to state “sometimes some of the targets – we know very well that there are certain terrorist leaders hiding here; there is a training camp there – but we had to stop operations, and wait without taking those targets because there were civilian habitations close to these targets”
4.64 The LLRC presents this evidence in order to examine ‘the procedure adopted to engage identified LTTE targets in the No Fire Zone in the case of LTTE attacks’. Hence the procedure cited by the Commission, i.e. Situation report from ground troops, identification of personnel with weapons only, UAV missions with help of SLAF, and target acquisition on precision guided mechanism, was applicable to all divisions of the military, and not merely to the Sri Lanka Air Force.
4.65 Based on this evidence, the Commission later concludes that the security forces had in fact taken all ‘feasible precautions’ to avoid civilian casualties when carrying out attacks within the NFZs.
4.66 On the other hand, the LLRC acknowledges that civilian casualties did in fact take place within the NFZs. Yet these deaths are characterised as ‘unintentional’, as the Commission concludes that the security forces ‘had not deliberately targeted the civilians in the NFZs, although civilian casualties had in fact occurred in the course of crossfire,’132 and that such decisions to return LTTE artillery fire were made in the ‘heat and confusion of an armed conflict’ by field commanders in situ, and thus could not be second-guessed.133
4.67 This narrative of field commanders being left with no option but to return fire despite the presence of civilians in the area that was being subjected to counter-attack contradicts the LLRC’s position that attacks had been carried out within the NFZs only after careful planning and intimate knowledge of the precise whereabouts of civilians. Incidentally, it is also diametrically at odds with the internationally publicised position of the government during the last stages of the war that the use of heavy weaponry was no longer necessary.
4.68 In a nutshell, the LLRC accepts that the security forces used sophisticated means to ascertain the precise location of civilians within the NFZs, but concludes that the civilian deaths that did in fact occur were unintentional and resulted from ‘an unprecedented situation when no other choice was possible.’ This analysis is, at best, self-contradictory and reflects the LLRC’s reluctance to genuinely examine the allegations against the government.
c. Shelling of Hospitals
4.69 The LLRC concedes that it was confirmed that shells had in fact fallen on hospitals causing damage and resulting in casualties. Yet the Commission concludes that the material placed before it ‘points to a somewhat confused picture as to the precise nature of events, from the perspective of time, exact location and direction of fire.’ The following statement reveals the general attitude of the LLRC with respect to the shelling of hospitals:
The Commission’s task of reaching a definite conclusion as to who was responsible for the shelling of hospitals and loss of lives / damage to property is made extremely difficult by the non–availability of primary evidence of a technical nature and also the fact that supportive civilian evidence is equivocal in nature and does not warrant a definitive conclusion that one party or the other was responsible for the shelling.
4.70 In light of this purported lack of evidence, the Commission concludes that it is not in a position to come to a definitive conclusion in determining responsibility that one party or the other was responsible for the shelling. Nevertheless, the Commission acknowledges the large number of representations made by civilians that ‘shells had in fact fallen on hospitals causing damage to the hospitals and in some instances loss or injury to civilian lives’ However, the LLRC feels no compulsion to recommend a further investigation into this issue. Instead, it makes the recommendation that ‘consideration should be given to the expeditious grant of appropriate redress to those affected after due inquiry as a humanitarian gesture which would instill confidence in the reconciliation process.’ Such a recommendation offends the dignity of the numerous witnesses that were directly affected by the indiscriminate shelling of hospitals. Many of the witnesses continue to suffer from the trauma and grief of witnessing the death of loved ones due to these attacks.
The LLRC’s suggestion that mere humanitarian gestures would instill confidence in the reconciliation process amongst the victims of the war is a reflection of either its utter insensitivity, or its complete lack of sincerity. As noted above, it is internationally accepted that reparations must be based on the acknowledgment of crimes.
4.71 It is difficult to maintain that primary evidence of a technical nature with respect to the targeting of hospitals was not available to the LLRC. As highlighted extensively by the LLRC – to establish that the government had taken precautions to minimise civilian casualties – the security forces had at their disposal ‘state of the art’ surveillance devices that enabled them to closely monitor the conflict zone. Importantly, the government routinely used UAVs. According to submissions made before the LLRC, ‘UAVs were specially used in real time mode where the pilots, the Field Commanders and the Director Operations at the Air Force Head Quarters could all view the target simultaneously, in order to monitor the movements of the civilians with a view to avoiding civilian casualties.’ In fact, the Defence Secretary himself was quoted by the LLRC as stating:
‘the Air Force used the aerial vehicles extensively, to spot LTTE movements and to give the Army, Navy and Air Force valuable intelligence so that the attack took on only LTTE
targets.’ Moreover, the ICRC sent the coordinates of each of the hospitals to the government. While in possession of such abundant information, it is difficult to understand how the LLRC concluded that there was a lack of primary evidence of a technical nature.
4.72 It is even more puzzling that the Commission found no reason to call for further investigations into the shelling of hospitals, so as to ascertain who was responsible for the death of civilians, a fact that is explicitly admitted by the LLRC. The reluctance of the Commission to call for further investigations into the shelling of hospitals – a violation of IHL that may amount to a war crime – may be contrasted against its recommendation to appoint a Special Commissioner of Investigation with respect to disappearances.
In the case of shelling hospitals, what is at stake is the government’s culpability in the possible commission of war crimes. In the case of disappearances, the LLRC frames the issue as isolated incidents for which the government cannot be held accountable. Hence, a Special Commissioner would only be tasked with investigating individual acts committed by ‘a few’. This contrast confirms that the LLRC’s treatment of accountability issues is not only woefully inadequate but also palpably disingenuous.
d. Disappearances of Surrendees
4.73 The LLRC considered representations with respect to alleged disappearances of persons after surrender to or arrest by security forces in paragraphs 4.241 to 4.260 of the report. The number of such incidents, particularly those that took place on 17th and 18th May 2009, is significant and gives rise to prima facie evidence of a systematic policy to disappear surrendees. Annex 5.1 of the report in fact indicates that 1,018 incidents of disappearances took place following arrest by the Sri Lanka Army. Moreover, the LLRC recounts sixteen specific anecdotes relating to disappearance after surrender to the security forces on 17th or 18th May 2009. Most significant is the general pattern of these disappearances, as the incidents appear to be very similar, thereby indicating the systematic nature of the alleged violations. The details of the entire list of 1,018 disappearances involving the security forces are not provided in the LLRC report. In fact, such a number is only a fraction of the total number of disappearances following surrender to or arrest by the security forces, as this number only accounts for incidents specifically brought to the attention of the LLRC.
Given the woeful inadequacy of the time spent in the North and East and the general superficiality of the LLRC’s public sittings in those areas, this figure of 1,018 only represents a fraction of a much larger problem. The figure of 1,018 constitutes more than 25 percent of the total number of disappearances, i.e. 3,596, reported to the LLRC. Despite the lack of details on the disappearances reported in camera and through written submissions, there appears to be some consistency in the numbers. For instance, an analysis of disappearances reported at public sittings reveals that the army was implicated in nearly 27 percent of the alleged disappearances.
4.74 Under the Rome Statute of the International Criminal Court, the systematic practice of enforced disappearance constitutes a crime against humanity. Notwithstanding the fact that Sri Lanka has failed to ratify the Rome Statute, the principle is clearly recognised in CIHL and International Criminal Law, and is therefore binding on the government.
4.75 In response to the undeniable spate of violations, the LLRC purports to recommend a comprehensive approach to address the issue of missing persons. It draws attention to the non-implementation of the recommendations of past commissions and suggests that the ‘[c]ontinued failure to give effect to such critical recommendations of past commissions gives rise to understandable criticism and skepticism regarding government appointed Commissions.’ Hence it recommends that a Special Commissioner of Investigation be appointed to ‘investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate.’
4.76 However, the LLRC makes it clear that, in its opinion, these disappearances are isolated incidents, and not systematic violations that may be part of an official policy. It concludes:
The launching of a full investigation into these incidents and where necessary instituting prosecutions is imperative also to clear the good name of the Army who have by and large conducted themselves in an exemplary manner in the surrender process and when civilians were crossing over to cleared areas, which conduct should not be tarnished by the actions of a few (emphasis added).
4.77 The Commission reaches this conclusion despite specifically recognising its lack of capacity to conduct investigations. During public hearings, the LLRC refused to interpret its mandate as contemplating any investigative functions. In the Puttalam public hearing, the Chairman of the LLRC stated:
We do not have any investigative powers. Our Warrant does not invest us with any investigative powers. Representations were made to us about this incident and now we have given directions to the police to look into the matter and submit us a report. There is nothing more that we can do because we cannot investigate. We do not have the powers to investigate. We will only have to report the matter back to the IGP if we are not satisfied with the investigations that have been conducted.
Our warrant is to bring about ethnic reconciliation. Our warrant does not permit us to go into these individual complaints [sic.].
4.78 Despite the above interpretation of its mandate, the LLRC reached the curious conclusion that over 1,000 complaints of disappearances involving surrender to or arrest by the security forces cannot be prima facie evidence of a systematic practice. Without even so much as acknowledging an investigative function, the LLRC was still able to conclusively determine that each of these incidents were isolated. Accordingly, the LLRC recommends that a Special Commissioner of Investigation be appointed to investigate the incidents further. If such an investigation is actually launched, it could very well reveal that widespread disappearances of surrendees were part of an express or tacit governmental policy of executing surrendees. Hence the mischaracterisation of the disappearances of surrendees as ‘isolated’, as opposed to ‘systematic’, is prejudicial to any future investigation, and is specifically aimed at counteracting allegations of war crimes and crimes against humanity with respect to the systematic practice of enforced disappearances and the execution of surrendees. This mischaracterisation also grants immunity to civilian and military leaders responsible for devising such a policy. In the circumstances, the LLRC has compromised its impartiality and credibility, and has reinforced impunity.
C. Civilian Casualties
4.79 The LLRC does not adequately deal with the question of the scale of civilian casualties during the final stages of the war. The Commission’s response to the question of civilian causalities is evasive and non-committal.
4.80 The Commission admits that a ‘key question’ confronting it was the ‘the scale of civilian casualties, especially during the final phase of the conflict; January to May 2009.’ It also claimed that it ‘gave this matter the highest priority given the conflicting nature of statements made by various persons including media reports.’ In fact, the Commission specifically states:
The need to have an estimate of casualties was also crucial to the mandate of the Commission in addressing the question of possible violations of International Humanitarian Law and Human Rights Law during this period.
4.81 The Commission attempts to address the issue of civilian casualties by referring to the testimonies of civilian officials, including Chief Secretaries, District Secretaries and the Divisional Secretaries of the affected districts of Kilinochchi, Mullaitivu and Mannar as well as the senior officials of the Ministry of Health. However, the Commission concludes:
The representations made by other civilian officials to the Commission indicate that they were not in a position, under the circumstances of conflict, to carry out any assessment of civilian casualties.
Consequently, no estimated or verified figures of civilian casualties were available with them.
4.82 The LLRC also considers the representations of officials from the Ministry of Defence on estimated LTTE deaths, though an estimate of civilian deaths was not available with these officials. According to the Ministry officials, it was estimated that 22,247 LTTE deaths took place between July 2006 and May 2009, while 4,264 LTTE deaths were confirmed by name for the period January to May 2009.
4.83 Apart from the above references to civilian casualties, the LLRC makes no attempt to closely examine the evidence of witnesses with respect to the number of civilians unaccounted for during the period January to May 2009. However, representations made
before the Commission did in fact address this issue specifically.
For instance, the Bishop of Mannar Rt. Rev. Dr. Rayappu Joseph testified (with supporting documentation) that information from the Kachcheris of Mullaitivu and Kilinochchi indicated that 429,059 persons resided in the Vanni in early October 2008.161 Moreover, according to the submissions to the LLRC by Ms. Imelda Sukumar, who served as the GA for Mullaitivu during the relevant time, approximately 360,000 civilians remained in the NFZ in the Puthumattalan area when she left on 22nd January 2009.
The United Nations Office for the Coordination of Humanitarian Affairs issued an update on 15th July 2009 estimating that the total number of people who came out of the Vanni to government-controlled areas as at 10th July 2009 was only 282,380. This figure effectively represents the number of civilians who survived the final stages of the war. It is noted that the UN estimate was based on reports by the relevant GAs, and that the government never disputed this figure.
Thus, according to the Bishop’s estimate of 429,059 persons residing in the Vanni in early October 2008, 146,679 (429,059 – 282,380) people appear to be unaccounted for.
Moreover, according to Ms. Imelda Sukumar’s estimate of 360,000 civilians residing in the NFZ in January 2009, over 75,000 (360,000 – 282,380) civilians remain unaccounted for since January 2009.
4.84 It is unclear as to why the Commission preferred not to confront this issue, given the fact that Ms. Sukumar was a government official working in the Vanni at the time.
4.85 The Commission does, however, allude to a conflation between civilians and the LTTE. It asserts that a ‘[l]arge number of civilians, of all ages and gender, were conscripted by the
LTTE to engage in active combat or coerced to provide support services to the LTTE.’
The Commission further asserts that a ‘considerable number of LTTE cadre would have been among any estimate of casualty figures.’
4.86 Even if it is assumed that the LTTE forcibly conscripted some of the civilians during the time, the Ministry of Defence confirmed only 4,264 LTTE deaths during the period January to May 2009. Hence the LLRC ought to have examined the issue in greater depth and acknowledged the potential scale of civilian deaths.
4.87 In this context, the estimate of the UN Secretary General’s Panel of Experts with respect to the number of civilian deaths from January to May 2009 appears to be credible. The Panel concluded that civilian deaths were in ‘the tens of thousands.’ Given the well substantiated evidence before the LLRC, between 75,000 and 146,679 civilians who resided in the Vanni remain unaccounted for.
It is reasonable to conclude that a majority of these civilians died during the final stages of the war.
4.88 The LLRC’s reluctance to examine this issue must be viewed in the wider context of the government’s own attempts to conceal the truth. The government adopted the following measures with the intention of concealing the truth with regard to civilian casualties during the war:
1. Grossly underestimating the Vanni population as 70,000 persons;
2. Denying domestic and international media access to the conflict zone, thereby ensuring a complete media blackout on the subject of civilian casualties;
3. Ejecting Non-governmental Organizations and International Non-governmental Organizations from the conflict zone in September 2008;
4. Causing UN agencies and personnel to withdraw from the conflict zone;
5. Denying Tamil Members of Parliament access to the conflict zone; and
6. Arbitrarily interning the civilians who came out of the conflict zone and preventing them from having contact with family or legal counsel.
4.89 These measures seriously call into question the government’s claim that it adopted a ‘zero civilian casualty policy’ throughout the prosecution of the war.
16 January 2012
TC
