By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

“The [Security] Council reiterated that “any acts of terrorism are criminal and unjustifiable, regardless of their motivation, wherever, whenever and by whomsoever committed,” reaffirming the need for all States to combat, by all means, threats to international peace and security caused by terrorist acts.” ~ (‘Four peacekeepers killed in two deadly attacks against UN mission in Mali’, UN News Centre, 24.11.2017)

Pablo de Greiff, speaking at the UNGA’s 72^nd session in New York in October 2017, having visited Sri Lanka earlier that month said that “…The impetus to develop new institutional mechanisms and competences for prevention came from the independent Internal Review Panel on United Nations Action in Sri Lanka” and that as a result, a brand new initiative of the UN was established, called “The Human Rights Up Front initiative”.

As part of this initiative, in October 2014, the UN Secretary-General convened a High-level Independent Panel on Peace Operations to undertake a review including prevention and resolution of conflicts, chaired by José Ramos-Horta, former Head of State of Timor-Leste. Radhika Coomaraswamy was a panelist.

The Panel on Peace Operations accurately observes that terrorist groups are a “… particularly malignant threat to international peace and security” and that their “maximalist objectives directly threaten the very existence of nation States”.

The Panel’s report acknowledges that in “hostile environments…where asymmetric threats are present” the “…willingness to use force tactically to protect civilians and United Nations personnel” is necessary.

However, in a feeble attempt at defining terrorism, the Panel’s report says: “Security Council resolution 2178 (2014) notes that violent extremism can be conducive to terrorism and it was with that meaning that the term was used in the present report.” This is woefully inadequate and is dangerously deficient. Much deeper insight is needed in order to design appropriate responses and offer solutions to this particular form of threat. It is evident that further effort at a proper evaluation of ‘terrorism’ has to be undertaken.

Terrorism has proliferated in all parts of the world, its root causes varying with each community, group or even individual. The UN Human Rights Commission appointed a Special Rapporteur on ‘The promotion and protection of human rights and fundamental freedoms while countering terrorism’ in 2005, with its successor, the UN Human Rights Council extending its mandate regularly. Despite this, the failure to fully grasp this complex phenomenon is evidenced by the fact that the UN is yet to agree on a definition of ‘terrorism’ (Menon, 2016) and has failed at prevention.

The UN’s response to conflict is directly impacted by its understanding of the underlying threats and their dimensions. Certainly in the case of Sri Lanka, the UN Secretary General’s Panel of Experts (PoE) Report on Sri Lanka (locally known as the Darusman Report) is in places, irresponsible, deficient and has been criticized for its lack of intellectual rigor. Here was an opportunity to use Sri Lanka as a proper case study with which to understand this most dangerous, unpredictable and complex of all modern threats, including the State’s response in successfully eliminating it, which in itself is a rarity. Instead, even with the caveat that the State in question did not cooperate, the Panel was disappointingly biased against the State to the extent that it included figures reaching genocidal levels of civilian causalities without credible evidence.

Sir Geoffrey Nice QC, and Rodney Dixon QC, reviewing the PoE report say:

“…the Panel’s findings in respect of the alleged criminal violations fall well short of the legal standards usually associated with a rigorous and impartial inquiry in to evidence in order to make such findings. (p4)

“Analysis of the complex and legal requirement for an unlawful attack under international humanitarian law and customary international law to the facts in each particular case is completely lacking in the Report.”(p5) (Review of “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka)

From the subsequent evidence that has entered the public domain, especially the confidential documents released by the British Foreign and Commonwealth Office (FCO) which challenge the large civilian casualty figures quoted in the report, it has become clear that the Panel’s approach had been the limited focus of ‘accountability’. The two reviewers say:

“There are necessarily complex questions which the Panel does not address in its Report. The panel has instead taken a “broad brush approach” and ascribed responsibility in a general way to both sides in order to get on to its primary task of considering appropriate accountability mechanisms. Yet any discussion about these mechanisms can be of little relevance or use without an accurate account of the conflict and of the alleged violations that were committed in it.”

Sir Geoffrey Nice and Sir Rodney Dixon have experience with the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Court (ICC).  The UN Secretary General did not take this opportunity to advise the PoE on an approach that would have been more useful to the UN instead of rushing to establish grounds for accountability hearings. As the two eminent lawyers say:

“This overly simplistic approach to characterizing the alleged attacks represents a major flaw as the Report simply does not grapple with the difficulties and intricacies of establishing whether any particular attack was justified militarily on all of the available evidence.”

Resolution 30/1 with which Sri Lanka is now saddled was based on such flawed reports. The UN High Commissioner for Human Rights had been so influenced by them that he called for Universal Jurisdiction to be applied by the courts of all UN member states to those “allegedly responsible for such violations as torture, enforced disappearance, war crimes and crimes against humanity”.

The Sri Lankan State certainly didn’t help itself. No state is a passive victim of the ‘International Community’. We are all members of it. The current government took the witless path of co-sponsoring those Resolutions, while the previous one stonewalled unsuccessfully. When the Darusman Report was published, the Government of the day did nothing to challenge it. We passed up the opportunity to contribute to the international discourse on combating terrorism even though Sri Lanka had two reports, the LLRC (during the previous government) and the Paranagama (Second Mandate) report. This government delayed the tabling of the Paranagama report in Parliament, though completed, until after resolution 30/1 was adopted. Neither report was submitted to the UNHRC.

Another opportunity has now arisen for Sri Lanka to address this issue differently. Lord Naseby engaged in a long, hard struggle to obtain documents from the FCO which convincingly challenge the current UN view of Sri Lanka’s war against terrorism. In the last such document Lord Naseby received dated 26^th April 2009, the British Defense attaché establishes that the method of engagement of the Sri Lankan military was thoughtful and precise. It is far from the indiscriminate attacks on Tamil civilians that the hostile propaganda has now popularized. The Defense attaché writes:

“The question is what the SLA does next. The lagoon obstacle makes it harder than before to mount a breaching operation or to attempt to bisect the NFZ again. It is likely that tactics will remain the same– patient assessment, infiltration, then sudden and decisive action at an identified weak point.”

Going on to describe how the Sri Lankan Army’s options were constrained by its risk-assessment of the danger to civilians held as a human shield, he says:

“It remains possible that the military could consider an amphibious or air assault operation to attempt to unhinge the LTTE through a coup de main operation into the heart of the NFZ, but this would be highly risky. It is probable that this would only be resorted to if there was compelling evidence that the LTTE was planning the elimination of the remaining civilians as part of a mass suicide.”

Here was a State and its military facing this chilling outcome. Evidence comes in a despatch which quotes a UN report dated 10^th February which says that “19 civilians were killed and 75 wounded by the LTTE as they tried to escape to Govt. held territory. The UN reports civilians reaching ICRC medical facilities manned with gunshot wounds to the lower limbs– to prevent them leaving.”

It must take nerves of steel for a State and a military to make the right decisions in these most unusual of situations, with the rescue of civilians the most important objective. The UK Defense attaché describes how, having rescued a large number, the IDPs were screened by the Sri Lankan military:

“The operation was efficient and effective, but most importantly was carried out with compassion, respect and concern. I am entirely certain that this was genuine – my presence was not planned and was based on a sudden opportunity; I had free access to the 300m long stretch of beach for over a 4 hour period and was able to observe upwards of 200 SLN personnel working extremely hard in difficult conditions. Their high morale was notable; they were enjoying the work and clearly finding it satisfying. There were constant examples of thoughtful assistance- looking after babies while mothers were being searched, helping elderly ladies or mothers of babies with their bags, cheerfully offering food etc.”

Adding a comment to the end of this note, he brings home to us the conduct of the military in so fraught a situation:

“There is real risk that a suicide bomber could cause mass casualties in the beach environment. I was genuinely surprised how calm the atmosphere was in the aftermath of the suicide bomb at the Vavuniya screening centre, and by how much compassion was being shown. Welfare appeared to be overriding some security considerations.”

Summarizing his findings after a careful reading of all the despatches up to the 26^th of April 2009, Lord Naseby states the following:

• “The huge number of IDPs who escaped the clutches of the LTTE and voluntarily fled to the Sri Lanka Army personnel who looked after them before the final stage number 165,000. This totally refutes the charge that the Sri Lanka Government had a policy to kill Tamils.
• There is clear evidence of the kindness, concern and efficiency with which the IDP’s were cared for.
• Although firing in and out of PTK hospitals, the despatch of Jan 28^th page 4 makes clear that the Sri Lanka army showed restraint.
• The despatches clearly report the behavior of the LTTE in relation to their own Tamil IDPs.
  1. ‘LTTE forcible recruitment especially women and children has increased- many to die in LTTE counter attacks’ (March 12^th)
  2. ‘Of the 37197 IDPs who had crossed over by end of Feb2009, over 200 LTTE cadres were identified trying to infiltrate disguised as IDPs (March 12^th)
  3. ‘LTTE ensuring their own needs met before any capacity is allowed for civilians’ (March 12^th)
  4. ‘It is not possible to distinguish civilians from LTTE cadres as few cadres are now in uniform.’ (28^th January)
  5. Civilians killed in Period February 1st up to April 26^threportedto be 6432.
• These…clearly indicate there is no case for sweeping War Crimes allegations particularly against the Political and Military Leadership of Sri Lanka…it is time the UN recognized that their estimate of 40,000 civilians killed is totally wrong. All evidence now points to a figure of around 7000-8000.”

It’s time for both the Government and the UN to urgently review these revelations. Sri Lanka’s experience in eliminating terrorism needs to be understood accurately. For conflict-prevention, root causes of conflict need close study. But when the aggrieved choose ‘terrorism’ (not just violence) as the means of negotiation, it imposes a hierarchy of values on States, in protecting civilians, and especially when it “directly threaten[s] the very existence of nation States” as the UN itself has recognized. This reality has to be factored in. Only then can the real lessons of Sri Lanka be of use to the international community in the UN’s larger undertaking of bringing ‘conflict-prevention to the fore’.