Wednesday, 23 July 2014

How the ICRC exonerated SLA from genocide charge

War crimes: The relevance of a secret US missive from Geneva




Maj Gen. Shavendra Silva, commanded the much celebrated 58 Division on the Vanni front. Currently functions as Sri Lanka’s No 02 in New York.

by Shamindra Ferdinando

Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka (1997-2009) commissioned by the Norwegian government largely dealt with eelam war IV. The report, officially released in September 2011 by Chr. Michelsen Institute (CMI) and the School of Oriental and African Studies (SOAS) much to the surprise of those wanting to blame the government of Sri Lanka (GoSL) for the bloody end to the conflict examined a series of classified US diplomatic cables that shed light on the situation here. The evaluation team which commenced data collection in September 2010 included Gunnar M. Sørbø (Social anthropologist, team leader), Jonathan Goodhand (Development studies, deputy team leader), Bart Klem (Geographer, conflict analysis, monitoring and mediation),Ada Elisabeth Nissen (Historian, archival studies) and Hilde Beate Selbervik (Historian, overview of Norwegian aid to Sri Lanka).

The evaluation team, in its final report acknowledged that the examination of confidential US diplomatic cables released through whistle-blowing Wiki Leaks relating to Sri Lanka had been useful. However, the team admitted that Wiki Leaks released what it called new material of relevance to assess the situation in Sri Lanka and that such information couldn’t be evaluated.

Had the LTTE not resumed the war in early August 2006, leading to its eventual battlefield defeat in May 2009, Sri Lanka wouldn’t have been discussed extensively in US diplomatic cables, primarily originating from Colombo. But there had been references to Sri Lanka in diplomatic cables originating from New Delhi as well as London. But perhaps, the most important cable relevant to Sri Lanka originated from Geneva soon after the conclusion of the conflict in May 2009. Unfortunately, Sri Lanka never exploited the situation to its advantage. Surprisingly, even five years after the war the government is yet to examine all available information to counter accountability issues. Had there been a cohesive effort on the GoSL’s part, it could have successfully challenge war crimes accusations, including genocide, targeting the Vanni population.

If not for U.S. soldier Bradley Manning, who was sentenced in August 2013 to 35 years in a military prison for turning over more than 700,000 classified files to Wiki Leaks in the biggest breach of secret data in the US history, Sri Lanka wouldn’t have known what was happening behind the scenes.

Manning was working as an intelligence analyst in Baghdad in 2010 when he gave WikiLeaks a trove of diplomatic cables and battlefield accounts that included a 2007 gunsight video of a U.S. Apache helicopter firing at suspected insurgents in Iraq, killing a dozen people including two Reuters news staff.

A US diplomatic cable

from Geneva

The cable dated July 15, 2009 signed by the then Geneva based US ambassador Clint Williamson cleared the Sri Lankan Army (SLA) of crimes against humanity during the mulch-pronged Vanni offensive. The cable addressed to the US State Department was based on a confidential conversation Ambassador Williamson had with the then ICRC head of operations for South Asia, Jacque de Maio on July 9, 2009. Ambassador Williamson wrote: "The army was determined not to let the LTTE escape from its shrinking territory, even though this meant the civilians being kept hostage by the LTTE were at an increasing risk. So, de Maio said, while one could safely say that there were ‘serious, widespread violations of international humanitarian law,’ by the Sri Lankan forces, it didn’t amount to genocide. He could cite examples of where the army had stopped shelling when the ICRC informed them it was killing civilians. In fact, the army actually could have won the military battle faster with higher civilian casualties, yet that chose a slower approach which led to a greater number of Sri Lankan military deaths. He concluded however, by asserting that the GoSL failed to recognize its obligation to protect civilians, despite the approach leading to higher military casualties."

Wouldn’t it be interesting to know whether this particular cable had been examined by the Norwegian funded inquiry conducted by the CMI and SOAS. The Ambassador also quoted de Maio as having said that the Sri Lankan military was somehow responsive to accusations of violations of international humanitarian law. The Sri Lankan military was also open to adapting its actions to reduce casualties, but only to the extent that it wouldn’t undermine its overriding military objective to destroy the LTTE, de Maio was quoted in the secret US cable. Now that Norway had accepted US diplomatic cables could help establish the situation in war-time Sri Lanka, perhaps the Office of the High Commissioner for Human Rights (OHCHR) inquiring into alleged atrocities committed here too, should examine the US diplomatic cables.

It would be pertinent to mention that the Jacque de Maio had unhindered access to war zone information from the ICRC mission in Sri Lanka. The Secretary General’s Panel of Experts’ on Accountability in Sri Lanka too, acknowledged that the ICRC maintained a permanent ground presence at Puthumathalan, east of Kandy-Jaffna A9 road until February 10, 2009. Although, the international ICRC staff at Puthumathalan were evacuated on February 10, 2009, in a ship deploy to rescue wounded civilians, they returned and stayed onshore for several hours every time the ships came back. Altogether, 16 evacuations were carried out between February 10, 2009 to May 9, 2009, according to the UN panel. The war ended ten days later. The writer had an opportunity to observe the ICRC operation from an SLN Fast Attack Craft (FAC) deployed off Puthumathalan. On board the FAC were the then Captain Noel Kalubowila, the Commanding Officer of FAC squadrons and SLN media spokesman, Captain D.K.P. Dassanayake, temporarily posted there.

The SLN made arrangements to hand over those evacuated from Puthumathalan to an Indian medical team based at Pulmoddai, north of Trincomalee in accordance with an agreement between India and Sri Lanka. India would be able to explain to UN investigators the circumstances under which the medical team accommodated the wounded as well as categorize those who received treatment from them. For some strange reason, the Sri Lankan government hadn’t bothered to get in touch with the Indian team.

Front-line fighting formations lost a staggering 2,350 officers and men on multiple fronts during January-May 19. A further 70 personnel were categorized as missing in action. Deaths due to reasons other than combat during the same period were placed at 334. Thousands were injured. The losses suffered on the Vanni east front during the first five months of 2009 was over 100 per cent when compared with battlefield losses in the previous year. For the whole of 2008, the SLA lost 2,174 killed and 43 missing in action. Sri Lanka’s Deputy Permanent Representative in New York and the General Officer Commanding (GOC) of the celebrated 58 Division, Maj. Gen. Shavendra Silva told the writer that the Sri Lankan military had the wherewithal to decimate the LTTE in a far shorter period if not for the human shields. "We paid a heavy price for being mindful of the civilian presence among the LTTE cadres. Restricted use of long range weapons as well as air support on the Vanni east front caused a quite a bit of problems."

Responding to a query, the Gajaba Regiment veteran said that none of those giving vastly different figures as regards deaths among civilians are strangely silent about the losses suffered by the LTTE fighting cadre.

The army lost 784 personnel in 2006, 571 in 2007, 2,174 in 2008 and 2,350 during the first five months of the conflict.

Maj. Gen. Silva, who holds ambassadorial rank, said that it would be important to establish the losses suffered by the LTTE during those four years as an attempt was now being made to portray all dead as civilians.

A surprising response

from Geneva

Unlike faceless and nameless sources/witnesses quoted by the Secretary General’s Panel of Experts’ on Accountability in Sri Lanka in its report released in September 2011, the US cables provide authentic assertions/statements attributed to responsible government officials, which can be verified. The writer recently sought an explanation from OHCHR spokesman, Rupert Colville as regards the UN position on Wiki Leaks. Colville declined to answer the following question: would Wikileaks cables that dealt with the situation here (August 2006-May 2009) originating from the US embassy in Colombo, New Delhi and London be considered as evidence (Post-war study undertaken by the Norwegian government also examined WikiLeaks cables pertaining to Sri Lanka. The Norwegian report titled Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka, 1997-2009 revealed the examination of WikiLeaks.) The Norwegian report too was released in September, 2011.

The following questions submitted to the OHCHR through the UN mission in Colombo too, went unanswered. The Island wrote:

Now that the UN investigation on accountability issues in Sri Lanka during Feb 2002-May 2009 is underway, The Island, would like to clarify some matters with the UNHRC spokesperson.


(1) Against backdrop of the Government of Sri Lanka (GoSL) denying UN investigators as well as the three-member panel an opportunity to visit the country, would you seek access to those who had provided information to the Secretary General’s Panel of Experts on Accountability in Sri Lanka. (According to the Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka released on March 31, 2011, the panel received over 4,000 submissions from more than 2,300 persons- point number 17/page 5 of the report).

(2) Would you request the Secretary General’s Panel of Experts to declassify its records to facilitate your investigation (According to the report issued on March 31, 2011, records wouldn’t be available for examination for a period of 20 years- 20 years from March 31, 2011- point number 23/page 6 of the report).

(3) As the US resolution adopted at the last session of the UNHRC in March, 2014, was largely based on the Secretary General’s Panel of Experts on Accountability in Sri Lanka, would UN investigators examine the evidence/information available to the Panel of Experts?

(4) Would you take into consideration the hitherto ignored report prepared by The United Nations Country Team during the conflict? The report that 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 of the report).

(5) The UK media outfit, Channel 4 News in its first documentary that dealt with eelam war IV alleged that 40,000 civilians perished during the last phase. The Channel 4 News allegation was made in June 2011. However, various persons and human rights organizations have given vastly different figures with British Labor Party MP Siobhan McDonagh (Mitcham and Morden-Labour) declaring in September, 2011 that 60,000 LTTE cadres and 40,000 Tamils died during January-May 2009. However, a special Amnesty International report titled When will they get justice: Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission issued in September 2011 estimated the number of civilian deaths at 10,000. Would you summon UK MP McDonagh and Amnesty International representatives as well as the Channel 4 News team to establish the number of deaths on the Vanni front? 

(6) In the run-up to eelam war IV in August 2006, the Tamil National Alliance (TNA) recognized the LTTE as the sole representative of the Tamil speaking people; hence the political grouping encouraged the LTTE to go on the offensive. Senior TNA members attended passing out parades of child combatants during the Norwegian arranged Ceasefire Agreement. Would UN investigators speak to TNA leaders regarding their culpability? (The EU Election Observation Mission in Dec 2001 alleged that the TNA benefited from LTTE terror at the Dec 2001 parliamentary polls).

Obviously, the OHCHR is unwilling to examine Wiki Leaks as well as the report prepared by the United Nations Country Team during the conflict. It would be the responsibility of the government to take up these issues vigorously even if didn’t want to cooperate with the ongoing investigated launched in accordance with resolution 25/1. The government should take tangible measures to expose OHCHR’s approach inimical to Sri Lanka. The forthcoming three-day Defence Seminar titled Sri Lanka: Challenges faced by a rising nation can be a platform to present counter arguments. Sri Lanka will not have another opportunity before the OHCHR presented an oral update at the 27th sessions in Geneva in September 2014. Regrettably, officialdom seems clueless as regards to the importance and the relevance of Wiki-Leaks revelations as well as the secret UN report.

(More on Wiki Leaks next week)