By Rajeewa Jayaweera –

Rajeewa Jayaweera

Special Rapporteur Pablo de Greiff has departed after a 14 day official visit to Sri Lanka, his fifth since March 2015. During this period, he has traveled throughout the country, supposedly meeting with a cross-section of Sri Lankans in South, East, North and West, holding discussions in Aluthgama, Jaffna, Kilinochchi, Mannar, Matara, Mullaitivu, Puttalam and Trincomalee. In addition, he has met with President Sirisena, Prime Minister Ranil Wickramasinghe, Speaker Karu Jayasuriya, Leader of Opposition and TNA leader Sampanthan, numerous cabinet ministers, senior government officials, forces commanders, the IGP, Governors of Northern and Eastern provinces, Colombo based foreign diplomats and some members of civil society. Family members of Sri Lankan forces missing in action and members of the so-called ‘Joint Opposition’ were missing elements in his otherwise comprehensive list of meetings, in pursuit of the promotion of truth, justice, reparation, and guarantees of non-recurrence.

Prior to his departure, De Greiff issued a statement titled ‘Sri Lanka continues to deprive itself of the benefits of Transitional Justice’. He utilized the opportunity to dismiss President Sirisena’s assurance to the nation “war heroes will never be brought to trial” as “rhetoric and a legally unenforceable political statement and therefore cannot offer any real security”. He further stated, “Moreover, needless to say, it offers no warranty internationally” and made specific reference to the recent case with General Jagath Jayasuriya. He has thus contradicted Prime Minister Ranil Wickremesinghe’s assurance, given during ratification in Sri Lankan parliament of the International Convention for the Protection of All Persons from Enforced Disappearances (ICPAPED) “It will be in effect only for the future. We can’t pass laws to have a retrospective effect”. In light of De Greiff’s statement, will Prime Minister Wickreeasinghe reiterate his earlier statement and publicly reject De Greiff’s assertion?

In his 11-page statement, De Greiff has touched on a gamut of issues. It contains seven reminders to GoSL and three overall recommendations comprising on issues of; Slow progress on pre-conditions for transitional justice erodes trust in the Government’s capacity to move forward with the reforms, Truth, Justice, Reparations and Guarantees of non-recurrence.  A ‘full report’ has been promised at a future date, possibly in Geneva in September 2018.

De Greiff states “As I write this statement the debate continues in the newspapers concerning the number of victims at the end of the conflict, whether it was 40,000 or ‘merely’ 8,000. While the final number may be impossible to determine with absolute precision, there is, of course, a lot that has been learned in the last 30 years about forensics and other methods offering the reliability that political opinions cannot”. There is no doubt, it is impossible to determine final numbers in any conflict and at best, only estimates are possible. However, a discrepancy of 32,000 deaths in the final run-up is too big a disparity to ignore and calls for a thorough investigation. Even if the international community, backed by Tamil diaspora and NGOs did claim the number of deaths as 40,000 in the aftermath of the conclusion of the hostilities in the banks of Nandikadal on May 19, 2009, a fresh perusal of new information coming to light thereafter is warranted.

Towards this end, it is essential, members of the international community, especially US and UK, chief proponents of UNHRC Resolution 30/1 against Sri Lanka make available, all material, especially dispatches from their respective embassies in Colombo during first half of 2009, for examination during any investigation. De Greiff, in view of his status of Special Rapporteur and his boss, High Commissioner for Human Rights, Zeid Ra’ad Al Hussein need devote as much effort and energy they expend in bringing about accountability and transitional justice in Sri Lanka to convince those members in the international community who seek the truth, to make available all such material in their possession, albeit in a unredacted state.

Veteran journalist and news editor of The Island Shamindra Ferdinando, with his in-depth knowledge from extensive research of the 30-year conflict, has placed in the public domain, several instances which merit close scrutiny and investigation. A few such instances are; 

• Among the over 70,000 classified diplomatic cables released by US soldier, Bradley Manning to Wiki Leaks was a cable dated July 15, 2009 signed by the then Geneva-based US ambassador Clint Williamson. It cleared the Sri Lankan Army (SLA) of crimes against humanity during the multi-pronged Vanni offensive. The cable addressed to the US State Department dealt with a discussion Ambassador Williamson had with ICRC Head for Operations for South Asia Jacques de Maio. The US envoy declared on July 15, 2009, that the Army actually could have won the battle faster with higher civilian casualties, yet chose a slower approach which led to a greater number of Sri Lankan military deaths.

• A confidential report prepared by the United Nations Country Team in Colombo during the conflict dealt with the ground situation from August 2008 to May 13, 2009 placed the number of dead (including LTTE combatants) at 7,721. The report estimated the number of wounded at 18,479. (The war ended less than a week after the UN stopped collecting data due to the intensity of fighting- point number 134/page 40).

• Colombo – based US Defense Attaché, Lt. Colonel Lawrence Smith, during a seminar organized by the Army in June 2011 dealing with ‘Defeating Terrorism: The Sri Lanka Experience’ in response to a question, regarding the alleged move by some LTTE cadres to surrender during the last few days of the war, had this to say; “Hello, may I say something to a couple of questions raised. I’ve been the Defense Attaché here, at the US Embassy, since June 2008. Regarding the various versions of events, that came out in the final hours and days of the conflict-from what I was privileged to hear and to see – the offers to surrender, that I am aware of, seemed to come from the mouthpieces of the LTTE, Nadesan, KP, people who weren’t and never had really demonstrated any control over the leadership or the combat power of the LTTE. So their offers were a bit suspect anyway, and they tended to vary in content, hour by hour, day by day. I think we need to examine the credibility of those offers before we leap to conclusions that such offers were, in fact, real. And I think the same is true for the version of events. It’s not so uncommon in combat operations, in the fog of war, as we all get our reports second, third and fourth hand from various commanders at various levels, that the stories don’t seem to all quite match up. But, I can say that the version presented here so far in this is what I heard as I was here during that time. And, I think I better leave it at that before I get into trouble”.

• Lord Naseby of the House of Lords in the British parliament, after repeated requests to the Foreign and Commonwealth Office, managed to obtain 38 pages of highly redacted dispatches between January 1 and May 19, 2009, after seeking the intervention of UK’s Information Commissioner. He had this to say; “US Ambassador Blake stated on 7 April that there were deaths of 4,164  from 20 January to 6 April. Major General Holmes in his expert military report of March 2015 concurs with 7,000 to 8,000. Above all, all the people I have cited state that there was no policy to ​kill civilians—in fact, the opposite.

I have discovered an unpublished report from the United Nations country team, which stated that from August 2008 up to 13 May 2009, the number of civilians killed was 7,721. The war ended six days later, so it cannot possibly have got up to 40,000. Then I looked at what Gordon Weiss, the former UN spokesman said. He produced an estimate in 2009 of 7,000 civilian deaths. He also made the simple observation that, for the Sri Lankan army, it made no tactical sense to kill civilians. To these I add the British Defense Attaché, Lieutenant Colonel Anton Gash, who said to me in January 2009 that he was surprised at the controlled discipline and success of the Sri Lankan army and in particular the care that it was taking to encourage civilians to escape and how well they were looked after, and that certainly there was no policy to kill civilians. There could not be a better military man: he is knowledgeable, independent and would be authoritative about what happened in his reports in his dispatches”. Interestingly, one unredacted dispatch dated January 28, 2009 states, “It is not possible to distinguish civilians from LTTE cadres as few are in uniform”. Lord Naseby has urged the British government to ‘get the UN and UNHRC in Geneva to accept a civilian casualty level of 7,000 and 8,000, not 40,000′.

Only by producing the various actors, especially US and British Defense Attachés and former Colombo based UN officials, besides related reports and dispatches can a realistic assessment of causalities be made and to quote De Greiff’s own words, ‘rights of suspects and the accused are protected as required in transitional justice accountability’.

US-sponsored UNHRC Resolution 30/1 was largely based on the Report of United Nations Secretary General’s Panel of Experts on Accountability in Sri Lanka, released in March 2011. This report, in turn, was based largely on over 4,000 submissions by over 2,300 persons (point 17 / page 5). These anonymous witnesses mostly live in Europe, some under assumed names. Neither witnesses nor their submissions would be made available for cross-examination for a period not less than 20 years.  How is transitional justice and accountability served by not disclosing identities of complainants, at least some of who may be listed as missing persons and some others, supposedly executed by the army?

Of paramount importance is, armed forces of Sri Lanka fought against a terrorist group and not the Tamil community. In such conflicts, civilian causalities are inevitable but need be minimized as required by International Humanitarian Law. It is well and good for defenders of human rights to pontificate on “the legitimate and lawful use of force and the contrary, under conditions in which all relevant due process guarantees are meticulously adhered to”. Yet none of these experts have found a solution to the critical issue of how to differentiate between a terrorist in civilian garb and innocent civilian mingling together, may it be LTTE, ISIS Jihadist or any other. Further, the army, criticized for shelling LTTE detachments holding civilians as human shields need be compared with the relentless bombing of ISIL held territory full of civilians held as hostages, by US and other Air Forces.  Civilian deaths far outnumber those of ISIL Jihadists. Yet, the silence by Zeid Ra’ad Al Hussein led UNHRC of this campaign from Mosul in Iraq all the way to Raqqa in Syria is deafening. Is it due to such bombings and civilian causalities being deemed “legitimate and lawful use of force”, referred to by De Grieff?     

It need be stated a clear distinction must be made of civilian deaths resulting from engagements between soldiers and LTTA and civilians abducted, raped, tortured or killed by soldiers, in their individual capacity. Such offenders should not be protected but prosecuted according to criminal law.

The previous administration, in its amateurish and unsophisticated handling of UNHRC, claimed ‘zero civilian causalities’ in the Vanni campaign. The present administration, faced with a hostile international community, cosponsored Resolution 30/1 with little or no understanding of consequences, without opting out of challengeable paragraphs.    

It is imperative, GoSL even at this late stage muster a group of professionals to formulate a coherent strategy and plan of action to convince UNHRC of the need to revisit the issue of the much bandied 40,000 causalities, during the final period of the conflict.