Colombo Telegraph

Paranagama Report: Frequently Asked Questions

The Maxwell Paranagama Commission, officially known as the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances has published FAQ’s in its website. We publish below the FAQ’s in full;

Justice Maxwell Paranagama

1.Question: What does the Paranagama Report (Second Mandate) says about the allegation of Genocide as applied to the last stages of the war in 2009?

Answer: The Paranagama Report (Second Mandate) has carefully analysed the notion of genocide as a matter of law at paragraphs 48 – 50. The Commission has found no support for the allegation of genocide.

2.Question: Has the Paranagama Commission made a finding on the number of civilians who died between January – May 2009?

Answer: The Paranagama Report at paragraph 24 disagrees with the explosive Darusman narrative of up to 40,000 civilians killed in the final phase of the conflict – January to May 2009, and takes up the position that the figure is much less and indeed, unknowable. The OISL Report at paragraph 1267 of p.243, also states that it is impossible to estimate the exact number of civilian casualties. The OISL Report is, therefore, not inconsistent with the Paranagama findings, and indeed, if anything, supportive of the Paranagama position.

3.Question: What responsibility is ascribed to the LTTE in killing its own Tamil civilians?

Answer: The Paranagama Report deals with the LTTE contributing to the killing of its own Tamil civilians in order to assign blame to the Sri Lankan Army, so as to provoke an international intervention which would have the consequence of preserving the LTTE leadership. The OISL Report fully supports this conclusion, where at paragraph 908 of p.178 it says

“Witnesses stated that the LTTE told the civilians that they could not leave because the international community would intervene to protect them. Several sources suggested that the reason why civilians were not allowed to leave was also because some of the LTTE leaders believed that high civilian casualties as the SLA advanced would provoke the intervention of the international community.”

4.Question: What has the Paranagama Report (Second Mandate) said about those within the diaspora that have supported the LTTE?

Answer: The Paranagama Report is critical of the pro-LTTE Diaspora for failing to acknowledge LTTE atrocities and continuing to support the LTTE financially and in other ways. The OISL Report supports this, when at paragraph 1259 of p.241, it says

“At the same time the Tamil communities and organizations both inside Sri Lanka and the diaspora need to acknowledge the atrocities committed by the LTTE. Without these acknowledgements, reconciliation will be difficult.”

And further at paragraph 1273 of p.244, the OISL Report says

“Likewise, there must be recognition within the Tamil community, for example, of the destruction and harm inflicted on civilians and communities by the LTTE.”

5.Question: What evidence did the Paranagama Report (Second Mandate) highlight in relation to force recruitment of civilians and children?

Answer: The Paranagama Report finds that there is conclusive evidence that the LTTE forced civilians and children into the service of the LTTE. This is of course, a war crime. The OISL Report comprehensively supports the Paranagama conclusions. In paragraphs 640 at p.128 the OISL Report says

“The LTTE forcibly and arbitrarily took young males and females to serve with the LTTE. “

And in paragraph 641 of p.128, it says

“During the years before the final phase of the conflict, civilians were abducted from their homes, temples, churches, schools, places of work, and at LTTE checkpoints. When young persons were stopped at LTTE checkpoints, they were asked to produce their identity cards and questioned if anyone from their family had joined the LTTE”

6.Question: Did the Paranagama Commission recommensd a domestic or a foreign process for accountability?

Answer: Yes. The Paranagama Commission Second Mandate recommended a domestic mechanism. The Commission’s recommendation is made at Section E para 625 of the Second Mandate Report. In addition, the Paranagama Commission made a comprehensive analysis, with the assistance of its international experts, of various different judicial mechanisms that may be acceptable to the Government of Sri Lanka, such as in the Gambia, however, the Commission’s recommendation was for a domestic mechanism. The review of the different mechanisms should not be confused with the recommendation for either a hybrid or an international Gambian style mechanism. One of the reasons this was done was that it was been suggested by the Darusman Report that prosecution was the only mechanism opened for the Government of Sri Lanka to consider.

The Paranagama Report recommends “a domestic process” for accountability. The OISL Report supports this concept in principle, and at paragraph 1278 of p.244, says

“The commitment by the new Government to pursue accountability through a domestic process is commendable, particularly in a context where some political parties and sections of the military and society remain deeply opposed”

However, the OISL Report at paragraph 1278 at p.244, states that the Sri Lankan justice system is not yet fully equipped to promptly conduct an independent and credible investigation. It goes on to assert that there should be “a hybrid court” which will integrate international judges, prosecutors, and investigators.

7.Question. What is the difference between the first Mandate of the Paranagama Commission and the second Mandate of the Paranagama Commission?

Answer: On 15 August 2013, the former President of Sri Lanka, Mahinda Rajapaksa, established the Presidential Commission to Investigate into Complaints regarding Missing Persons comprised of three members: former Judge Maxwell P. Paranagama (Chairman), Mrs. Mano Ramanathan and Mrs. Suranjana Vidyaratne (‘Paranagama Commission’ or ‘PCICMP’). The Paranagama Commission has held public hearings in the North and East of Sri Lanka and has heard evidence in relation to approximately 2700 complaints relating to what will hereinafter be referred to as its First Mandate. There were no foreign legal experts involved in this part of the Mandate.

8.Question: What work did the second Mandate encompass?

Answer: The scope of the Commission’s mandate was expanded by Gazette of the Democratic Socialist Republic of Sri Lanka, No.1871/18, 15 July 2014 to address the facts and circumstances surrounding civilian loss of life and the question of the responsibility of any individual, group or institution for violations of international law during the conflict that ended in May 2009. The expanded mandate will hereinafter be referred to as the Second Mandate.

9.Question: Who were the foreign experts that were appointed as the Advisory Council to the second Mandate?

Answer: Rt Hon Sir Desmond de Silva, QC, is a world authority on the law of armed conflict. He has helped fashion international law.He was personally picked by Kofi Annan, the last Secretary General of the United Nations, to be the Chief Prosecutor of a UN sponsored international criminal court at a l;evel of an Under Secretary General of the UN.

Prior to his appointment in Sri Lanka, Sir Desmond was representing the Government of Qatar to investigate torture allegations in Syria. The British Government in 2011, appointed him to chair a highly sensitive Review into the British Security Services and their conduct in Northern Ireland during the conflict between the IRA and the British forces.

Indeed, he has also been a part of a panel of experts appointed by the United Nations High Commissioner for Human Rights, in 2010 to investigate a maritime incident that occurred in the international waters.

Sir Desmond was Knighted by The Queen in 2007 for his extraordinary contribution to International Law.

Therefore, it is wholly understandable, that he was chosen as the Chairman of the Advisory Council of experts.

Professor Sir Geoffrey Nice, QC is the Gresham Professor of International Law in London. He was the lead Prosecutor in the case of the late President Milosovic of Serbia at The Hague. He is an outstanding international lawyer with huge experience before international criminal courts.

Professor David Crane was also personally picked by Kofi Annan to be the Chief Prosecutor of the Special Court for Sierra Leone, and was also appointed at a level of Under Secretary General of the United Nations. Crane was responsible for the indictment of President Charles Taylor of Liberia who is currently serving 50 years imprisonment for war crimes. Crane also has considerable experience in the US military. In June 2014, Professor Crane together with Sir Desmond appeared in a Chamber of the Human Rights Council in Geneva on the issue of the torture and killing of detainees in Syrian detention centres. This is a measure of the high standing in which they are held by the international community.

10.Question: Were there other experts who contributed to the Second Mandate?

Answer: Yes. There were a number of Barristers, Lawyers and Military experts as well as law Professors from world recognized Universities.

11.Question: Why were foreign experts required to assist the Second Mandate of the Commission?

Answer: In view of the heavy workload of the Paranagama Commission, and specifically at the Chairman’s request for assistance in addressing the complex questions of international law raised by the Second Mandate, former President Rajapaksa appointed a legal Advisory Council to this Commission comprised of international legal experts. Other than Sir Desmond, there is no Sri Lankan who has occupied the position of a Chief Prosecutor of the United Nations within Sri Lanka. Furthermore, the Rome Statue has never been incorporated into Sri Lankan law. Therefore, neither Sri Lankan judges nor Sri Lankan lawyers have sufficient experience of dealing with this law as part of their usual practice. These legal experts have worked at the very highest level in international criminal tribunals, furthermore, as war crimes cases have not been litigated in Sri Lanka, there was an absence of domestic expertise at this level.

12.Question: Did the appointment of foreign experts to the Second Mandate of the Paranagama Commission mean that foreign judges were being appointed in Sri Lanka?

Answer: No. The foreign experts provided advice and did not sit as judges, nor did they hear witness testimony at the public sittings of the Commission. The foreign experts role was to apply:

a)international law to the facts as found by the Paranagama Commission or notorious facts in the public domain. Neither Sir Desmond nor any foreign expert played a judicial function at all nor did any other foreign experts. In that they did not attend sittings nor did they hear evidence;

b)All the factual evidence was heard by the three Commissioners, namely, Justice Maxwell Paranagama, Mrs Mano Ramanathan and Mrs Suranjana Vidyarathna;

c)Whilst the Second mandate Report, which is the Report that encompassed foreign expertise assistance, was a collaborative piece of work, it must be emphasized that it is the Commission and not the foreign experts ( Sir Desmond de Silva and the others) who had a final say as to the contents of the Report. The Commission could accept, reject or amend the advice given by the foreign experts and indeed this is exactly what took place. These Opinions supplied at one time may well have ben amended in the light of discussions between the experts and facts as found by the Paranagama Commission;

d)Therefore, although the Second Mandate Report was mistakenly described as the De Silva Report, it is in fact Second Mandate Paranagama Commission Report.

13.Question: Is this the first time that foreign lawyers have being permitted to play a role in Sri Lanka post independence?

Answer: No. Even in the Bandaranaike murder case an English QC Mr. Phineas Quass was retained to defend Somarama.

a)Similarly, the International Independent Group of Eminent Persons (IIGEP) nominated by the international donor community and the Government of Sri Lanka were vested with a wide mandate to observe a number of investigations and inquiries conducted by and on behalf of the Commission of Inquiry into alleged human rights abuses in Sri Lanka. This Commission of Inquiry included a former Supreme Court judge from India and members from United Kingdom and Indonesia amongst others.

b)The foreign experts appointed to the Second Mandate of the Paranagama Commission, however, had a more limited role. In that they were appointed to advice the Second Mandate Paranagama Commission rather than sit as judges hearing evidence.

Question: Were the foreign experts of assistance to the Second Mandate of the Paranagama Commission?

Answer: Yes for the following reasons:

The allegation of Genocide:

a)

(i)Some of the most serious allegations facing GoSL and indeed the Sri Lankan army concerned the issue of Genocide. A crime such as this is not on Sri Lankan statute books, nor are there lawyers who have practiced at the very highest level, either prosecuting or defending in international criminal courts. The foreign experts provided us with not only their experience but also were familiar with both international practice, procedure and international case law.

(ii)The international experts drew to our attention a recent judgment in a Dutch court that examined the LTTE’s assertion that the Sri Lankan state could be cited as a ‘racist regime’ in the context of Article 1(4) of Additional Protocol I. Prosecutor v X was decided in 2011 in the District Court of The Hague and in a 47 page judgement found that the Sri Lankan state could not be defined as a ‘racist regime’ in the context of IHL.

(iii)It is the view of this Commission that if the Dutch lawyers representing alleged LTTE members in this trial, were unable to substantiate before this Dutch Court the claim that the GoSL could be defined in law, as a ‘racist state’, it follows, that the higher legal threshold for ‘a genocidal state’ could not be met.

Allegations of Shelling:

b)

(i)The international experts were able to call upon other military and legal experts who were able to provide invaluable material to the Commission. One legal expert, with such military knowledge, was the former Senior Legal Advisor to the International Criminal Tribunal for the former Yugoslavia. He kindly provided what is termed the Fenrick check list, which demonstrated how difficult it is to prove culpability in cases of shelling and the necessary evidence – which is still absent to prove guilt. (Para 483 – Second Mandate of the Paranagama Report)

(ii)Furthermore, General John Holmes, who is a former Commanding Officer of the Special Air Service (SAS) of one of the most highly regarded regiments in the British Army and an expert in counter terrorism and hostage rescue at page 33 of his Report which is appended to the Second Mandate Paranagama Report said the following:

Para 79:

“The Wanni operation was not of the `classic’ hostage rescue variety if only because of the number of hostages involved and the ebb and flow of battle. However, there were similarities; the SLA did not rush in, but instead took its time to plan and adapt its tactics to take account of the civilian presence. It was, in the view of the author, an entirely unique situation and the fact that 290,000 people escaped alive is in itself remarkable.”

Para 83:

“…overall and for the reasons considered above, on the available evidence it is my opinion, that the SLA’s operations in broad terms, were proportionate in the circumstances. Whilst the SLA was a relatively unsophisticated army, they had evolved into a battle and ultimately war winning machine that made up for its lack of sophistication by the application of three of the most important principles of war: selection and maintenance of the aim; offensive action and concentration of force. In my military opinion, faced with a determined enemy that were deploying the most ruthless of tactics and which involved endangering the Tamil civilian population, SLA had limited options with regard to the battle strategy they could deploy. This would have posed a dilemma for the very best trained and equipped armies in the world. The SLA had either to continue taking casualties and allow the LTTE to continue preying upon its own civilians, or take the battle to the LTTE, albeit with an increase in civilian casualties. The tactical options were stark, but in my military opinion, justifiable and proportionate given the unique situation SLA faced in the last phase. Therefore, on the evidence available to me, taking into account my own combat experience, I do not find, in broad terms that the military and artillery campaigns were conducted indiscriminately, but were proportionate to the military objectives sought.”

Starvation of Civilians in LTTE controlled areas

The international experts were able to assist the Commission of this complicated area of international law.

1.It appears clear that there were inadequate supplies of medicines and food, though this is the sad fact that applies to many conflicts across the world. The essence of ‘blockade’ warfare lies in an attempt to capture the disputed territory through starvation. This Commission is of the view that the GoSL’s intention appeared to demonstrate a desire not to kill civilians through starvation, but rather, to induce the LTTE to surrender.

2.It is significant that Article 58 of Additional Protocol I places the obligation to facilitate evacuation on the party who controls the civilian population and who may be defending against an attack or siege operation. In this case, it was the LTTE. One account, given by one of the academics who belongs to UTHR(J), (the group of mainly Jaffna based academics that is critical of both the GoSL and the LTTE), recounts an instance which underlined the callous manner in which this control was exercised:

‘[Sivalojan] escaped and was caught by the LTTE and shot through the back just missing his heart […]. An LTTE doctor saw him, read the report from the cadres who brought him, and consigned Sivalojan to lie with the patients who were left to die […]. A government doctor later saw him, and left instructions for him to be washed, moved to a bed and to be administered certain injections and saline and later shipped on an ICRC vessel. Another LTTE doctor came later, looked at his record, placed his pen and drew a mark across the record and remarked that Lojan was a traitor who refused to fight and therefore not fit to live. He was sent back to lie with the dying […]. He was refused permission to board the ICRC ship. He miraculously survived […] and was later admitted to Vauniya Hospital.’

The Commission finds in such an example further evidence that it was the LTTE who were controlling those who could or could not leave the war zone, thereby subjecting their own civilians to additional harm.

14.Question: Did the new incoming Government of January the 8th extend the Second Mandate part of the Commission?

Answer: Yes. This Second Mandate part of the Commission was extended by President Sirisena on 5th February, 2015 by six months till 15th August 2015.

15.Question: Did the international experts attend and hear evidence at public sittings?

Answer: No. In setting out the legal framework, this Commission has relied heavily upon the legal expertise of the members of the Advisory Council, who have an unrivalled experience of international law practice before the ad hoc international tribunals created or sponsored by the United Nations. As this Commission expressly requested the assistance of international experts, we have adopted and incorporated as our own and as part of our collaborative work the opinions provided by experts on military and legal matters where we have agreed with their analyses. In preparing this Report we add that it is the product of numerous conferences and the consideration of learned and professorial advice from outside the immediate Advisory Council. Of course, this is in addition to the factual findings we have made upon the evidence we have heard. The members of the Commission as opposed to the experts have heard evidence from witnesses, have summoned witnesses to give evidence before them and have engaged in the usual fact finding processes of a Commission of this kind. The Advisory Council played no part in this latter process. This Second Mandate has been discharged with fact finding by the Commission while applying international and military law upon which we have been advised by the international legal experts on the Advisory Panel. Military experts and professors of law were also brought in to assist on difficult areas of law that concerned the Commission.

16.Question: Where did the material come from upon which the Commission has based its findings?

Answer: The Commission has of course made factual findings upon the evidence we have heard. This material together with the vast amount of material in the public domain has been considered by both the Commission and the Advisory Council.

Amongst these sources have been both primary and secondary, including highly relevant reports such as the ‘Darusman Report’ (2011), the ‘LLRC Report’ (2011), the Report of the Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka – 2012 (Petrie Report), the Sooka Report (2014) ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009—2015’ and the Reports to Congress by the US State Department (2009), reports by the International Crisis Group, Amnesty International, the University Teachers for Human Rights (Jaffna), Human Rights Watch, and many others.

In addition, the Commission had available to it via WikiLeaks, contemporaneous and classified cables from the US embassy in Colombo. The Commission is aware that in the judgment in the case of The Queen (on the application of Louis Oliver Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, the English Court of Appeal held that the evidence of these cables was admissible as it did not violate the archive and documents of the diplomatic mission which sent the cables, since they had already been disclosed to the world by a third party. The Commission has relied on the reasoning in that judgment.

The Commission has had the advantage of an independent Expert Military Report by Major General John Holmes, a former Commander of the Special Air Service Regiment (SAS) with extensive international experience, including in hostage operations (‘Expert Military Report’).

Furthermore, the Commission has relied upon the work of a number of academic writers in the field of IHL as well as the considerable body of law generated by international courts, inter alia the International Court of Justice (‘ICJ’), the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’), the International Criminal Tribunal for Rwanda (‘ICTR’), and the Special Court for Sierra Leone (‘SCSL’).

Finally, the Commission has consulted a number of books and other published accounts of the Sri Lankan war. Some books have featured prominently in the discourse, presenting on one view, a narrative that is hostile to the GoSL, such as Gordon Weiss’s, The Cage; Frances Harisson’s book Still Counting the Dead, Sir John Holmes’s The Politics of Humanity – The Reality of Relief Aid; and Rajan Hoole’s Palmyra Fallen from Rajani to War’s End.

The Commission has cited from these sources, sometimes to illustrate points, which have not been considered before. Some of these authors’ observations demonstrate that they had a wider perspective of events than has been acknowledged within Sri Lanka. However, the Commission wishes to underline at this early part of the Report, in the interest of fairness, that some authors as mentioned above, and some organisations, such as the Jaffna based NGO, ‘University Teachers for Human Rights (Jaffna), have been equally critical of the GoSL, as they have been of the LTTE. This Commission hopes it will be forgiven for not citing at every reference to the aforementioned, their overall stance at each and every citation. However, at the first citation referring to them, we make their criticisms of all sides, clear. Indeed, while their overall stance may be well known, we have provided a full citation of their work so that those who may wish to consider their texts more fully can do so.

Other works that have been consulted include Ahmed S. Hashim’s When Counterinsurgency Wins – Sri Lanka’s Defeat of the Tamil Tigers; K.M. de Silva’s Sri Lanka and the Defeat of the LTTE; Padma Rao Sundarji’s Sri Lanka: The New Country;

17.Question: What was the legal test that the Commission applied in analyzing the facts?

Answer:In approaching the task of making determinations on the evidence, ‘the reasonable basis to believe’ test to be found in Article 53(1)(a) of the Statute of the International Criminal Court (‘ICC’) has been employed by this Commission. The Prosecutor of the ICC relies on this standard for the purpose of initiating an investigation. It has been interpreted by the Chambers of the ICC as requiring ‘a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court “has been or is being committed”’. The Commission considers that this is the appropriate standard to use, given that it has not conducted an investigation of its own into all the relevant factual circumstances. The Commission has primarily reviewed information available in the public domain and reached findings to the extent that there exists a reasonable basis for such beliefs, recognising that these could constitute a foundation for further investigations and that such investigations could occur in due course. However, where there is strong supporting evidence for its findings, the Commission indicates that it is satisfied to the civil burden of proof, namely, the balance of probabilities.

18.Question: Was the Second Mandate Report served on time?

Answer: Yes. It was delivered to the Presidential Secretariat on 15th August 2015. Albeit, the formal presentation to the President took place at a later date.

19.Question: Has the Geneva OISL Report of September 2015 named individuals who are alleged to have committed war crimes?

Answer: No. The Report has not ascribed criminal responsibility to named individuals.

20.Question: Has the Paranagama Report (Second Mandate) (Second Mandate) named individuals responsible for war crimes?

Answer: No. The Report has not ascribed individual criminal responsibility.

21.Question: Why has the Commission limited its inquiry under the Second Mandate to the final phase of the war?

Answer: The final phase of the war can properly be regarded as the period between the fall of the LTTE administrative capital, Kilinochchi on 2nd of January 2009 and the conclusion of the war on 19th May 2009.

The decision to restrict the temporal scope of the Second Mandate is based on several considerations. Most importantly, the principal questions raised in the Second Mandate relate to the period identified as the ‘final phase of the war’. Additionally, the panel of experts appointed by the United Nations Secretary-General on 22 June 2010 (‘Darusman Panel’) was tasked with reporting on the obligations relating to accountability arising from the ‘last stages of the war’. Further, on 8 May 2015, the current Sri Lankan Minister of Foreign Affairs, Mangala Samaraweera, spoke of the government’s responsibility ‘to get at the root of all that had transpired during the closing stages of the war’. Finally, on 13 May 2015, the German Foreign Minister, Frank-Walter Steinmeier, called for a ‘credible domestic investigation of war crimes, during the last stages of the war.’ Therefore, noting both the domestic and international concern to address issues of accountability arising from the final stages of the conflict in Sri Lanka, this Commission will confine this section of its report to this relevant time frame. The Commission understands that this limitation may attract criticism but given the breadth of the factual and legal analysis over the period of the mandate and due to the Commission’s on going taking of evidence, this Report has concentrated on the principal causes of the loss of innocent civilian lives.

The Paranagama Report (Second Mandate) in confining itself to the final phase of the war, January to May 2009. The Paranagama Report (Second Mandate) was fully justified in doing so, as at paragraph 728 p.143 of the OISL report it says

“OISL gave priority to investigating the final months because of the intensity of the hostilities and the extensive impact on civilians and protected objects.”

*To read the commission report click here

Back to Home page