25 May, 2022


Allegations On War Crimes And How To Investigate Them?

By Laksiri Fernando

Dr Laksiri Fernando

It is normal that those diehard ‘patriots’ who are not willing to be self-critical of one’s own country or government or even some sections of the armed forces would dismiss any allegations on war crimes or anything similar with various credible, partly credible and mostly incredible arguments. But there can be others who look at the issues and allegations from a longer term perspective and see the value of independent investigations to strengthen the already won over (relative) peace, democratization and reconciliation in the country.

Perhaps I was the first to question the reliability of the revelations of the ‘White Flag’ incident by the former Army Commander immediately after the Sunday Leader article in a Rupavahini interview. I called the accusations irresponsible for his former position since he said he heard it from a third party which he did not reveal. All appeared politically motivated at that time and he himself retracted some of the statements later. By then the first round of Channel 4 footages were out, but the authenticity of the sources were questionable and therefore I didn’t make any comment. I was simply disturbed. But things have changed since then.

Credible Allegations

When the Darusman report came out, I made a critical assessment of the report disputing some aspects but said the government should take the report seriously and the allegations should be investigated. After all it was a UN sponsored report and the allegations were both on the armed forces and the LTTE. There cannot be any doubt that Sri Lanka is duty bound to investigate alleged ‘war crimes’ on its own or in coordination with the UN under the prevailing international laws. Any country’s sovereignty is subject to the international laws and in practice to what can be called the ‘international reality.’ If Sri Lanka does not conduct investigations, there is a possibility that the UN or the International Criminal Court (ICC) imposing such an investigation on Sri Lanka. Whether such an imposition is hypocritical or not is a different question.

Since the Darusman report and until recently my position has been that Sri Lanka can and should investigate the allegations. The LLRC did not investigate the allegations and its main mandate was to come up with proposals for reconciliation which they did in an admirable and an independent manner. Likewise an independent national commission on war crime allegations could have alleviated the concerns; and the reconciliation strengthened. But no commission was appointed for the reasons best known to the government. Now the ball has been almost put to the international court.

Let me briefly explain why the allegations should be investigated. The reasons are both moral and legal; and both national and international. The alleged crimes are something happened on the Sri Lankan soil. Even our regular judiciary has a mandate to investigate at least some of them. Extra judicial killings directly contravene the fundamental rights in the constitution and war or emergency is not an excuse. On the international side, Sri Lanka is party to the main international covenants and the international humanitarian law. Therefore, if the government had initiated credible investigations nationally then no one needed to shout about ‘international interference.’

Moral Obligations

The matter is not only legal but also moral. There are victims and their relatives. They should be appeased and assured of justice. One way of assuring ‘justice’ is punishing the perpetrators and compensating the victims. There is a possibility of forgiveness if they genuinely repent. There is a victim community and they may feel the victimization collectively. This is not a matter that can be discarded through obnoxious arguments. This is a matter quite central to a genuine reconciliation.

Not only justice but the truth should be known as a lesson for the future. Sri Lanka has suffered so much of violence since 1970s. It is only recently that we uncovered a mass grave in Matale that possibly belongs to the late 1980s. Sri Lanka has experienced too much of brutal killings and it appears from what people write and say that our supposed to be sane minds are also completely brutalized. We need some ‘therapy’ in the form of knowing the truth and realizing the ‘brutality.’

There are countries which are beset with even more violence than Sri Lanka. But I have not seen a country like ours that justifies violence directly and indirectly and trivialize the killings. We need a new determination to make a complete stop to this insane behaviour both indulging and defending violence. What is the point in having a ‘miracle of Asia’ if it is based on injustice, killings and brutality?

Don’t get me wrong that I am only condemning the atrocities of the army or terrorism of the state. The organizations like the LTTE and the JVP are also responsible (equally or more) for the atrocities in the past. The Tamil community should realise that the LTTE was a terrorist menace in the country and defeating it militarily was a must to bring a situation like today at least for us to debate these matters in relative peace. We should also appreciate the good soldiers and the commanders in the armed forces for doing the right thing without violating human rights or the humanitarian laws. But obviously there had been some culprits. Our effort should be to make a complete break to violence in the future. The JVP has come around now to a large extent and the LTTE or their remaining supporters should do the same.

For all these purposes the truth should be known. There are allegations on both sides. The allegations of the killing of Prabhakaran’s son, interrogation and killing of Ramesh and the two eye witnesses revealed by Frances Harrison on the ‘White Flag’ incident are credible to investigate. Equally credible are the allegations on the LTTE loading the injured cadres and civilians into buses and blowing them up to blame the government troops. Shootings of those who attempted to flee the war zone are also numerous.


One may ask the question ‘what is the point in investigating’ these matters since the perpetrators on the LTTE side might not be found any longer and therefore any investigation might be imbalanced. That may or may not be the case. Some perpetrators must be hiding among the diaspora, in the country or in the prisons or within the government itself. The truth should be known not in a religious fashion but in a sociological manner. The investigative procedure should not only be judicial but also sociological.

A commission should look into the questions of not only who killed x and y and on whose orders, but what were the individual and political motives behind them if any? What were the social, structural and institutional contexts within which gross violations took place on both sides and what are the remedies proposed to avoid them in the future? What are the general lessons for the country not only looking at the last stages of the war but also the previous cycles of violence (1971, 1978-9, 1983 and four rounds of Eelam Wars) and their underlying causes?

If the investigation is purely international it would only look into the accountability issues. If the investigation is purely national it might lack credibility and try to side step accountability issues while focusing on some pseudo-sociological issues. Therefore, the best way to go about the truth, justice and also accountability might be a commission on the lines of what was set up in Cambodia, both national and international.

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Latest comments

  • 0

    Regarding the killings of students in trinco and aid workers in mutur

    Human Rights Watch (HRW), a US based human rights advocacy group, says there is little reason to believe the government when it assures accountability.
    “Seven years after the execution-style slaying of five Tamil students on Trincomalee beach, the Sri Lankan government has taken no real action to apprehend the perpetrators, despite compelling evidence of involvement by the security forces. The government has claimed this case is a priority, including it in the now forgotten presidential commission of inquiry and in its response to the UN Human Rights Council, but actual progress in this case is sadly nonexistent. There is little reason to believe government promises of accountability so long as highly publicized cases like the Trinco 5 and the killings of the 17 ACF aid workers go without arrests or prosecutions,” Brad Adams, the Asia Pacific Director of Human Rights Watch told The Sunday Leader.
    Former Attorney General Mohan Peiris, who is a legal adviser to the President, had told the UN Human Rights Council last year that the government is moving forward towards fresh investigations into two massacres that happened in 2006.
    The former Attorney General gave this assurance during an interactive session with representatives of countries interested in the Sri Lankan issue in Geneva. Mr. Peiris is reported to have said that the government had in no way swept everything under the carpet. He said the matter had been investigated and the government would reopen the case to ascertain the truth behind some of the allegations.
    One relates to the students who were gunned down while they were chatting near the Gandhi statue in Trincomalee.
    However the Asian Human Rights Commission says what is of very real interest is that according to a Wikileaks cable the government had informed the former US envoy in Colombo Robert Blake that the security forces were involved in the killing. – See more at: http://www.thesundayleader.lk/2013/01/06/trinco-killings-calls-for-accountability-seven-years-on/#sthash.W2wIDSgR.dpuf

    In 2010 the US-based pressure group Tamils Against Genocide (TAG) submitted an affidavit containing the personal testimony of Dr Manoharan and two detailed reports of evidence collected on the killings by a Rights Group whose members are in self-exile due to threats to their lives, as record of evidence to the Dublin war-crimes tribunal hearing.
    The tribunal subsequently urged the government to allow the UN to investigate the killing as well as several other incidents of crimes against humanity. The government however rejected the ruling saying the tribunal was not an accepted body.
    Separately in April 2013, a panel of international experts will convene as Judges of the Permanent People’s Tribunal (PPT) to examine reports on Sri Lanka including the Trincomalee killing. Among the many PPT panelists are Nobel Prize winners Adolfo Perez, Sean MacBride and George Wald. – See more at: http://www.thesundayleader.lk/2013/01/06/trinco-killings-calls-for-accountability-seven-years-on/#sthash.W2wIDSgR.dpuf

    So there is no let up on the need for justice. The victims and their survivors demand justice which is their right. By covering up the reports, destroying evidence and harrasing wittnesses the govt does no favour to itself nor to the people of this country.

  • 0

    The ethno/political killings during the period 1950 to the present ie. almost since independence, have sanitised the minds of Sri Lankans to the extent that they justify them for various reasons. The killings of JVP by the security forces, the killings by LTTE, students and Aid workers killings,the horrific rapes and brutality at the conclusion of the war, the white van killings etc etc, the list is inexhaustive. And now, we face additionally political strangulation, lawlessness, thuggery, corruption.

    This is the land of Buddha and the majority of the people are Buddhists. How did we come to this state of affair? Any introspection ?

  • 0

    When it comes to fooling others nobody can beat the Westerners. The Westerners even surprise the devil. The Indians are with the Westerners, because they have a very short memory. The Indians are ignoring thier past between 1505 and 1947, this will lead to a disaster. The Indians are putting the whole Asia in danger. I know what is going on in Sri Lanka, we need a solution from the Tamil and the Sinhalese leaders, this will only happen through true revolution. Educating and informing the leaders is the only true and effective revolution, bringing the foreigners to have a solution will lead to a disaster. Educating and informing the Sinhalese leaders is easier than the Tamil leaders, because the Tamil leaders are under the grip of the Indians and the Westerners. Last week I met a group of Young Tamil leaders who were organising a lunch for Tamil refugees. Those young leaders are X – LTTE members who came to New Zealand three years ago as refugees. Those Tamil leaders have no qualification, have no idea about politics, can’t even speak English, but the Westerners and Indians adore those leaders in order fulfill their own motives.

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