By Laksiri Fernando –

Dr. Laksiri Fernando

When asked “Do you really believe the proposed judicial mechanism can help address accountability issues?” former Defence Secretary, Gotabaya Rajapaksa (GR), has started talking about “one of the major accusations directed against the army” – the “execution of surrendering LTTE cadres during the last phase of the offensive on the Vanni east front.”

I am quoting his own words published by Shamindra Ferdinando in ‘The Island’ (7 October 2015). The interview is titled ‘War crimes probe Gotabhaya speaks out.’ As a teacher, I am well aware that there are people who fail to answer questions directly and sometimes we call them ‘rigmaroles’ or malle polls. However, there are other psychological reasons why people become obsessed with something, even when something else is asked. The possible reasons can be ‘guilt’ or ‘over enthusiasm.’

However, it should be admired that GR has been straight forward and bold in giving this interview particularly at this juncture. As the interviewer has stated “the former Defence Secretary now faces the prospect of a no holds barred judicial investigation never held in this part of the world.” He may also be believing that he has done ‘nothing wrong’ according to his ‘limited knowledge and beliefs.’

It is interesting note that he has not disputed the validity of the now proposed ‘judicial mechanism’ whereas he has been apparently opposing purely an ‘international investigation’ before. Even he has suggested that the “The proposed court [could] call the then Norwegian Ambassador in Colombo Tore Hattrem (present State Secretary at the Norwegian Ministry of Foreign Affairs) to verify accusations.” The interviewer however has noted, that in the past, “The Gajaba Regiment veteran strongly opposed an external investigation into Sri Lanka’s war which he quite rightly believed was an internal matter.”

GR has admitted that the “Widely dubbed the white flags killings, the allegation brought the Sri Lankan Army to disrepute.” However, according to him, the army hasn’t done anything wrong because “There had never been an agreement or an understanding between the government and the LTTE for the latter’s surrender though various interested parties alleged execution of surrendering persons.”

But for surrender, there is no need for an agreement or understanding between two parties and in this case ‘between the government and the LTTE.’ Of course the Ceasefire Agreement (CFA) was now defunct and abrogated. According to Jan Romer (Killing in a Grey Area between Humanitarian Law and Human Rights) the customary international humanitarian law (IHL) pertaining to non-international armed conflicts rules the following.

“Attacking persons who are recognized a horse de combat is prohibited. A person horse de combat is:

(a) Anyone who is in the power of an adverse party;

(b) Anyone who is defenceless because of unconsciousness, ship wreck, wounded or sick; or

(c) Anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape.” (p.74).

One difference is that in this case the matter is not about ‘attacking’ as Romer said, but alleged killing or massacre. More pertinently, what should have applied in this case is the principle C, the protection of ‘anyone who clearly expresses an intention to surrender.’ Romer further says,

“Surrender requires that attacked person to discontinue his/her participation in hostilities, in particular, by resisting or defending him or herself. Surrender is not bound by strict formalities. In general, a soldier surrenders by laying down his or her weapons, raising his/her hands, or waving a white flag.” (p. 77, with my emphasis).

The surrender does not require strict formalities. Does not require an agreement between the two parties to the conflict or war. And in this case, did not require the dictates or ruling from GR who was in Colombo (I may add in an air conditioned room!). It was a simple procedure, of course with caution, which should have been followed by the commanders or whoever in charge on the ground.

The following is the narration that GR has given about his part on the saga which might not be the full story.

“On the night of May 16th, 2009, Hattrem visited me at my official residence, Baudhaloka Mawatha, where he claimed that LTTEer Pulithevan had offered to surrender along with some other cadres and their families as all senior leaders were dead by then. Hattrem had been in touch with Pulithevan over the phone. However, arrangements couldn’t be made for the surrender as Hattrem failed to get in touch with Pulithevan to know the identities of those willing to surrender. Primary objective of an investigative judicial mechanism is to verify accusations made by various parties.”

Note that ‘all senior leaders were dead by then.’ It is commendable that GR has accepted the objective of ‘investigative judicial mechanism to verify accusations made by various parties.’ There is no question that there can be some questions that Hattrem has to answer as well.

However, there cannot be any dispute that GR was placing unnecessary preconditions or one might say obstacles from Colombo for the purported surrender. Of course there can be some reasons why he was doing that, and he has explained some of the matters in his interview. However, those are not necessary under the international humanitarian law and what were at stake in this instance were lives, not only one or two but of several.

We at least know or have credible evidence that at least the lives of Pulidevan and Nadesen (and their families) were involved. For some people, those lives might not be worth, but those are not the premises of the international humanitarian law or our civilized human conscience. Killing of those who surrender is barbaric. What we have lost is also valuable information to know the ‘truth’ from the LTTE side.

This is not the first time that such things have happened in Sri Lanka. We know that a similar fate happened to Rohana Wijeweera (the JVP leader), who was under state custody, whatever the crimes he himself had committed. The impunity has continued. That is another reason why these incidents should be investigated and investigated thoroughly.

GR has said, ‘for the failure of the surrender arrangements,’ passing the buck to Hattrem, “However, arrangements couldn’t be made for the surrender as Hattrem failed to get in touch with Pulithevan to know the identities of those willing to surrender.”

It is a strange order to rule that ‘the identities of those willing to surrender’ should be known or revealed before the acceptance of surrender. This was 16th of May 2009 evening, two days before the body of the LTTE leader Prabhakaran was found. This was a period of extreme uncertainties. However, the demise of the LTTE was exceedingly clear. It is not revealed in what form the identities of those who wanted to surrender was required. The decisions were taken in Colombo. Verifications were obviously problematic and communications were exceedingly difficult with those who wanted to surrender. GR was asking for the impossible.

The interviewer has very clearly asked, “Q: Who wanted to establish the identities of those wanting to surrender?”

The answer given is also very clear, “A: That decision was mine.”

It is apparent that the decision was given over and above the international humanitarian law and in violation of international humanitarian concerns. The alleged ‘massacre’ was the result, extent of which has to be determined.