Norway reveals LTTE ‘human shields’ at the onset of eelam war IV

GoSL, civil society yet to conduct comprehensive study

SPECIAL REPORT : Part 38

August 26, 2014, 7:35 pm 

by Shamindra Ferdinando

The recently launched Narrative III examined eelam war IV (August 2006-May 2009) with the focus on the plight of the Vanni civilian population trapped between the advancing Sri Lankan Army (SLA) and the LTTE.

The authors of Narrative III, Messrs Godfrey Gunatilleke (Marga Institute), Jeevan Thiagarajah (Consortium of Humanitarian Agencies) and Asoka Gunawardene (Marga Institute) dealt with a range of accountability issues during the last stages of the conflict. Having divided the Vanni war into two phases (phase I-SLA advance from Madhu to Kilinochchi and phase II from Kilinochchi to Nanthikadal).

The liberation of Madhu on April 24th, 2008 had been the first significant battlefield victory achieved by the 57 Division commanded by Maj. Gen. Jagath Dias. It was the first fighting Division launched on the Vanni front in early March 2007 under the command of the then Brigadier Sumith Manawadu. The then Army chief, Lt. Gen. Sarath Fonseka placed Dias at the helm of 57 Division amidst initial setbacks. It would be pertinent to mention that the 57 Division had fought a series of devastating battles over one-year period before it could bring Madhu, the first major civilian center under, government control.

Narrative III examined the deplorable failure on the part of Western powers, the UN, the Catholic Church (Bishop of Mannar, Rt. Rev. Drr Rayappu Joseph) as well as the NGOs to intervene to thwart the retreating LTTE from forcing civilians from accompanying them. Narrative III quite rightly asserted that a major humanitarian crisis could have been averted had Western powers stepped in. However, for some reason, the authors refrained from discussing the culpability of the Tamil National Alliance (TNA) in the Vanni tragedy. Obviously, they didn’t want to embarrass the TNA leadership, particularly its leader R. Sampanthan, MP, as well as the General Secretary of the TNA and the Illankai Tamil Arasu Kadchi (ITAK) Mavai Senathirajah, MP. The TNA and Bishop Joseph remained silent as long as they felt the LTTE could somehow turned around the situation. Hence, they tacitly approved the despicable LTTE’s strategy. All those who had been demanding international action against the Sri Lankan government since the conclusion of the conflict in May 2009, ignored the SLA declaration that the LTTE had prevented people from seeking refuge in the government-held area. The SLA warning came ahead of the 57 Division liberating Madhu. Narrative III referred to the LTTE closing the entry/exit points at Uliyankulam, on the Vavuniya-Mannar road and Omanthai, north of Vavuniya.

The so-called civil society turned a blind eye to what was happening on the ground. In fact, the Marga Institute and CHA should examine their conduct during the conflict. They should explain their failure to intervene on behalf of the Vanni population at least now. In fact, The Island revealed the LTTE blocking civilian movements a year before, though Western embassies and well-funded NGOs ignored the plight of Tamil civilians. The TNA leadership remained tight lipped.

EPRLF MP Suresh Premachandran, a vociferous critic of the Sri Lankan government and a leading advocate of an international war crime probe targeting the government never raised the issue. The main Opposition party, the UNP, too, remained silent, though it was aware of the developing crisis in the Vanni.

UN fiasco

The UN never inquired into the failure of its mission in Colombo to save the Vanni population even after The Island revealed Velupillai Prabhakaran stopping civilians leaving the area under his control. The UN mission in Colombo refused to act even after the LTTE detained Tamil UN workers for helping civilians to escape (LTTE detains UN workers-The Island, April 20th, 2007). The revelation was made a year before the 57 Division fought its way into Madhu. Would you be surprised that there hadn’t been a single follow-up story in both the print and electronic media other than The Island? The Colombo based diplomatic community maintained silence. Those who had been accusing the government of abuses at the drop of a hat had turned a Nelsonian eye to what was happening, though The Island vigorously followed-up the story (UN had talks with Tigers with strap line UN workers in LTTE custody-The Island, April 23, 2007), (Sri Lanka urges UN not to shield Tigers-The Island, April 25, 2007), (UN HQ admits Colombo office kept it in the dark-The Island, April 28, 2008) Narrative III, too, ignored the UN complicity.

The government, too, should be blamed for its pathetic failure to closely examine events leading to the final confrontation in the Mullaitivu district, once considered impregnable. The government’s failure is inexcusable. The government is still struggling on the diplomatic front for want of a clear strategy. The government’s failure had allowed some of those who had been eagerly waiting for an ultimate LTTE battlefield victory to move the Geneva-based United Nations Human Rights Council (UNHRC) against the country.

Now that President Mahinda Rajapaksa has appointed an International Advisory Council (IAC) headed by Sir Desmond Silva, QC, to advice the presidential commission headed by retired High Court judge Maxwell Paranagama investigating accountability issues, the government should place all available information, including US diplomatic cables now in the public domain thanks to whistle blowing website Wiki Leaks, pertaining to the conflict before the expert council.

Dixit’s revelation

The government shouldn’t hesitate to back its case with all available information, though some may tend to oppose discussing the infamous Indian intervention here. But as Paranagama’s commission is empowered to investigate external intervention among other factors, the government cannot afford to formally place the relevant information before the investigators. In fact, investigations, including the one conducted by the UN cannot ignore the Indian intervention leading to a bloody battle in the Mullaitivu district three decades later. One-time Indian Foreign Secretary J.N. Dixit in his memoirs titled Makers of India’s Foreign Policy: Raja Ram Mohun to Yashwant Sinha launched in 2004 admitted the Indian role in terrorism. As the top Indian diplomat based in Colombo at the time of the signing of the Indo-Lanka peace accord in July 1987, there couldn’t be a better person than Dixit to acknowledge New Delhi’s guilt. It would be important to study Dixit’s explanation for the destabilization of the JRJ administration at the behest of the then Indian Premier Indira Gandhi. Although the writer had discussed the Dixit affair on many occasions before, it would be pertinent to discuss how the Indian envoy justified the terrorism project. Dixit said: "India’s involvement in Sri Lanka, in my assessment, was unavoidable not only due to the possible ramifications of the Sri Lankan government’s oppressive and discriminating policies against its Tamil citizens but also in terms of India’s national concerns due to the Sri Lankan government’s evolving security connections with the US, Pakistan and Israel," (Page 144). Dixit went on to say: "It would be relevant to analyze India’s motivations and actions vis-a-vis Sri Lanka in the larger perspective of the international and regional strategic environment obtaining between 1980 and 1984," (page 144).

Having accused the US and Pakistan of creating in Sri Lanka what he called a politico-strategic pressure point against India and JRJ of establishing substantive defence and intelligence contacts with the US, Pakistan and Israel, Dixit paid a glowing tribute to Premier Gandhi for steering the country in the face of daunting foreign policy challenges. Interestingly, Dixit faulted Mrs Gandhi on two issues. "The two foreign policy decisions on which she could be faulted are: her ambitious response to the Russian intrusion into Afghanistan and her giving active support to Sri Lankan Tamil militants. Whatever the criticisms about these decisions, it cannot be denied that she took them on the basis of her assessments about India’s national interests. Her logic was that she could not openly alienate the former Soviet Union when India was so dependent on that country for defence supplies and technologies. Similarly, she could not afford the emergence of Tamil separatism in India by refusing to support the aspirations of Sri Lankan Tamils," (page 147).

Narrative III, too, had failed to at least briefly discuss India’s culpability. Successive Sri Lankan government’s hadn’t realized the pivotal importance of examining the entire gamut of issues and events leading to the Nanthikadal battle. Had there been a genuine post-war study, Sri Lanka could have easily exposed Dixit’s lie as regards JRJ having overt or covert defence relationships with the US, Israel, Pakistan and China. In fact, Sri Lanka never felt the need to expand the SLA until India provided Tamil terrorists the required expertise to mount a coordinated ambush in July 1983. The loss of 13 soldiers in a single confrontation stunned the SLA leadership in Jaffna. The poorly equipped and ill-trained SLA reacted savagely causing death and destruction. JRJ had no option but to seek US military assistance. Israel stepped-in on behalf of the US along with China and Pakistan. JRJ was reacting to Indian sponsored terrorism, though Dixit propagated a lie. There is absolutely no basis for Dixit’s assertion that JRJ’s relationship with the US, China, Pakistan and Israel prompted Delhi’s intervention here. Plainly, India’s motivations as well as actions had been prompted by domestic political and security reasons or the Tamil Nadu factor.

A new role for LKIIRSS

Perhaps, the Lakshman Kadirgamar Institute for International Relations and Strategic Studies (LKIIRSS) which functions under the auspices of the External Affairs Ministry should undertake a comprehensive study into the conflict without further delay. Had there been a well researched effort, the country could have countered unsubstantiated allegations directed against the armed forces and at the same time exposing those human rights champions, who had refused to throw a lifeline to Tamil civilians. LKIIRSS can begin with a study of Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka (1997-2009). The Chr. Michelsen Institute (CMI) and School of Oriental and African Studies (SOAS) should be complimented for producing an excellent report that dealt with the conflict here. Unfortunately, the Sri Lankan government hadn’t studied the Norwegian report either. The government simply refused to cooperate with the CMI and SOAS, hence missing another opportunity to present its case. The government refused to cooperate with the Secretary General’s Panel of Experts on Accountability in Sri Lanka. Had authors of Narrative III perused the Norwegian report, they would have known that the LTTE forced civilians to accompany retreating LTTE units in the Eastern Province, at a time the government hadn’t even thought of launching an offensive in the Northern Province.

The Norwegian report revealed the LTTE’s use/deployment of a human shield at the onset of eelam war IV.

The report was based on interviews with over 120 persons conducted in the US, Europe and India due to Sri Lanka’s refusal to cooperate with the CMI and SOAS. Former president Chandrika Bandaranaike Kumaratunga, UNP leader Ranil Wickremesinghe, several of their advisors and staff, people close to the LTTE, Norwegian politicians and officials, members of the Sri Lanka ceasefire monitoring mission, Indian officials as well as ICRC and UN officials had been among those interviewed by the CMI and SOAS.

Sri Lanka not only failed to present its case before the Norwegian-hired investigators, it didn’t at least study the report, thereby missing an opportunity to expose the murderous nature of the LTTE and those who turned a blind eye to atrocities committed by Prabhakaran.

Commenting on bloody fighting for Sampur in the wake of the SLA recapturing the predominately Muslim township of Muttur, in mid 2006, the Norwegian report said: "The LTTE is pushed southwards and forces the civilian population to withdraw with them. Large number of civilians get trapped as an LTTE ‘human shield’ in the battle zones on the Eastern front. ICRC manages to broker a brief ceasefire to let civilians out," (Chapter 6: War, Victory and Humanitarian Disaster- page 61).

This information couldn’t have come from anyone else than the ICRC. Although, the ICRC insists that it cannot discuss sensitive issues publicly, the Geneva-based humanitarian agency had obviously helped the Norwegian investigation. A US diplomatic missive from Geneva dated July 15, 2009, a month after the conclusion of the conflict, should be examined against the backdrop of knowledgeable ICRC officials being interviewed by CMI/SOAS on behalf of the Norwegian government.

The presidential commission investigating atrocities should seek to clarify relevant issues with the ICRC. Now that the ICRC had shared information with the US and ICRC, it couldn’t have any valid reason not to discuss the same with the presidential commission or the International Advisory Council led by Sir Desmond Silva.

The then US ambassador in Geneva in a message to Washington, quoted the ICRC Head of Operations for South Asia, Jacque de Maio as having told him on July 9, 2009: The LTTE had tried to keep civilians in the middle of a permanent state of violence. The LTTE saw the civilian population as a ‘protective asset’ and kept its fighters embedded amongst them. The LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred. They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter. De Maio, now in charge of ICRC operations in Gaza and Israel said: "It would be hard to state that there was a systematic order to LTTE fighters to stick with civilians in order to draw fire. Civilians were indeed under ‘physical coercion not to go here or there. Thus, the dynamics of the conflict were that civilians were present all the time. This makes it very difficult to determine at what point such a situation becomes a case of ‘human shields.’

A strategic LTTE-TNA miscalculation and events leading to eelam war IV

SPECIAL REPORT : Part 37

August 19, 2014, 8:00 pm 

The Marga Institute and Consortium of Humanitarian Agencies (CHA) recently launched Issues of Truth and Accountability Narrative iii Last Stages of the War in Sri Lanka at the BMICH. Among the invitees were many diplomats and members of the civil society. From left: Canadian High Commissioner, Shelley Whiting, and European Union Ambassador to Sri Lanka and the Maldives, David Daly, along with diplomatic representatives from South Africa and Australia.

by Shamindra Ferdinando

The Marga Institute (MI) and the Consortium of Humanitarian Agencies (CHA) on August 15 launched Issues of Truth and Accountability Narrative iii Last Stages of the War in Sri Lanka with the participation of a section of the Colombo based diplomatic community at the BMICH.

Although the organisers wanted to launch the book before the 25th sessions of the Geneva-based United Nations Human Rights Council last March, they couldn’t meet the deadline. The MI and CHA declared that their effort was meant to present an ‘alternative narrative of the events of the last stages of the war. Godfrey Gunatilleke, Jeevan Thiagarajah and Asoka Gunawardene who spearheaded the project had been influenced by the Report of the Secretary General’s Panel of Experts’ on Sri Lanka, the Lessons Learnt and Reconciliation Commission (LLRC), Human Rights Watch (HRW), International Crisis Group (ICG), Amnesty International (AI) as well as the University Teachers for Human Rights (UTHR) Jaffna. They focused on special UTHR reports bearing numbers 32 and 34 that dealt extensively with the final phase of the conflict. The team also took into consideration various other publications, including those issued by the Sri Lankan military, Petrie report as well as the International Crimes Evidence Project (ICEP).

Messrs Gunatilleke, Thiagarajah and Gunawardene as well as those who had worked behind the scenes to produce Issues of Truth and Accountability Narrative iii Last Stages of the War in Sri Lanka without doubt made a significant contribution to post-war efforts to comprehend the annihilation of the LTTE, widely believed to be invincible on the battlefield. They should be commended for recognising the significance of a statement made by war-time US Defence Advisor in Colombo, Lieutenant Colonel Lawrence Smith that LTTE leader Velupillai Prabhakaran hadn’t agreed to surrender, contrary to reports (page 43). A section of the US official’s statement as well as a part of statement issued by the State Department contradicting the then Colombo based officer are reproduced in pages 116 and 117. In fact, The Island exclusively revealed the US official’s comments (Sri Lanka Defence symposium: Now, US suspects credibility of LTTE surrender offer with strap line Dismisses KP, Nadesan as ‘mouthpieces’ with no real authority-The Island, June 3, 2011).

The statement was made on June 1, 2011 at the first edition of the Defence Seminar. Lt. Col. Smith was responding to a query posed by retired Indian Maj. Gen. Ashok Kumar Metha to Maj. Gen. Shavendra Silva, the first General Officer Commanding (GoC) of the celebrated 58 Division on the second day of the three-day conference that dealt with the combined security forces campaign against the LTTE. In the backdrop of the US relentlessly pushing for war crimes investigation targeting the government of Sri Lanka, it was the most important statement made (from Sri Lanka’s point of view) during four editions of the defence symposium (fourth one ends today-August 20). Unfortunately, the government never made a real effort to build its defence on the statement made by the US official. Issues of Truth and Accountability Narrative iii Last Stages of the War in Sri Lanka emphasised that the US official would have been privy to US efforts (page 43).

It would be pertinent to mention here that Smith was responding to Metha’s specific query about the execution of LTTE personnel and members of their families carrying white flags. As Smith was making the statement two years after the conclusion of the conflict, he would have had time to verify claims and counter claims made by various countries as well as the UN Secretary General’s Panel of Experts two months before. The Panel of Experts released its report on March 31, 2011, though it was available to the US as well as Sri Lanka much earlier. Obviously, the authors of Issues of Truth and Accountability Narrative iii Last Stages of the War in Sri Lanka didn’t take into consideration that the disputed US statement was made in the wake of the UN report, hence it challenged the very basis of the US resolution on Sri Lanka adopted at the last Geneva session.

In spite of calling for an impartial evaluation of conflicting and contradictory accounts of the war from different sources, the authors had failed to discuss a controversial move by the Panel of Experts to prevent examination of those making various claims. For some unforgivable reason, the authors had ignored a confidentiality clause recommended by the Panel of Experts to prevent reexamination of allegations for a 20 year period with effect from March 31, 2011. Interestingly, even after 20 years records cannot be released without them being subject to declassification review (page 6 of the UN report). The previous page placed the number of submissions received from affected persons at 4,000 and 2,300 respectively. Messrs Gunatilleke, Thiagarajah and Gunawardene might have felt that the UN had every right to protect those giving evidence inimical to the Sri Lankan government. But they cannot ignore that such a scenario can facilitate ongoing efforts to punish Sri Lanka on the basis of unsubstantiated allegations.

The UN investigation team led by British national Sandra Beidas too, is silent on this issue. Rupert Colville, the spokesman for the OHCHR (Office of the High Commissioner for Human Rights) declined to comment on their position on the 20-year confidentiality clause when the writer raised the issue with him recently. For some strange reason, the government is yet to take up this issue, forcefully in accordance with an overall plan to challenge those wanting to undermine post-war stability here.

Those interested in accountability issues as well as events leading to eelam war IV cannot fail to peruse Issues of Truth and Accountability Narrative iii Last Stages of the War in Sri Lanka. The 150-page publication dealt briefly with some of the issues tackled by The Island staffer C.A. Chandraprema’s Gota’s War: The Crushing of Tamil Tiger Terrorism in Sri Lanka launched in 2012.

However, for want of a comprehensive study of the events, Issues of Truth and Accountability Narrative iii Last Stages of the War in Sri Lanka regrettably missed an opportunity to detail the circumstances leading to all out war.

Messrs Gunatilleke, Thiagarajah and Gunawardene wrongly declared that "the GoSL launched an offensive in the Vanni in early 2008 with a clear military objective of defeating the LTTE...." (page 3). "The narrative of the Vanni war begins in January 2008 after the LTTE had been fully defeated in the Eastern Province..." (page 19).

The then Army chief, Lt. Gen. Sarath Fonseka launched Vanni operations in March 2007, while troops were still battling in the Eastern Province. The 57 Division commenced operations on the Vanni ‘Central front’ on March 5, 2007. Seven months later (mid September 2007), the army opened another front with the launch of Task Force I (subsequently named 58 Division) to clear the coastal area from Mannar northwards towards Pooneryn. In fact, the army launched 59 Division in the Weli Oya in January 2008 to draw terrorists operating in the Anandakulam forest reserve, commonly known as the Mullaitivu jungles.

But nothing can be as wrong as the claim that the Norwegian arranged Ceasefire Agreement had ceased to be operative from the time Mahinda Rajapaksa took office in November 2005 (page 20).

Although President Mahinda Rajapaksa formally withdrew from the Ceasefire Agreement (CFA) in early January 2008, five months after the liberation of the entire Eastern Province, the CFA effectively ended in April 2003 during UNP leader Ranil Wickremesinghe’s tenure as Prime Minister. The LTTE suspended its participation in direct negotiations with Wickremesinghe’s government under Norwegian auspices. It would be pertinent to mention that President Rajapaksa sent a top level government delegations twice to Geneva in 2006 in a bid to reach an understanding with the LTTE. The President also accept Norwegian facilitation though his political associates strongly opposed the move. The LTTE ignored President Rajapaksas’s peace offer because it was certain of an outright battlefield victory.

Those interested in knowing the events leading to eelam war IV should closely study US embassy cables which dealt with Sri Lanka during 2002-2010 period. Thanks to Wiki Leaks many important documents originating not only from US mission in Colombo but those in New Delhi, London as well as Geneva can be accessed on the internet. A US diplomatic missive from its Colombo mission in May 2003 quoted the then Japanese ambassador, here Seiichiro Otsuka as having told US ambassador Ashley Wills that the LTTE suspended talks for strategic reasons. Otsuka had briefed Wills after having met Prabhakaran and LTTE theoretician Anton Balasingham in Kilinochchi in the wake of LTTE quitting the negotiating table. According to the Japanese envoy, Balasingham had said:"We suspended peace talks to get concessions."

Having suspended direct negotiations in April 2003, the LTTE engaged in a series of attacks, though it never indicated its desire to resume an all out war until August 2005. Prabhakaran wouldn’t have assassinated the then Foreign Minister Lakshman Kadirgamar on the night of August 12, 2005 if it wasn’t ready for war. But the then President Chandrika Bandaranaike Kumaratunga’s government quickly reiterated its commitment to the Norwegian led-peace process. The government feared to take on the murderous LTTE. Subsequently, Wiki Leaks revealed Norwegian peace facilitators raising the Kadirgamar assassination with London based Anton Balasingham, though Western powers never held Prabhakaran accountable for the assassination.

Western powers demanded that Sri Lanka should continue with the peace peace process. Local NGOs as well as the TNA justified the assassination.

US Secretary of State Condoleeza Rice said: "We must honour Kadirgamar’s memory by re-dedicating ourselves to peace and ensuring that the Ceasefire Agreement remains in force."

European Union Commissioner Ferrero-Waldner said: "We must all honour the passing of Foreign Minister Kadirgamar by continuing his work for peace and maintaining the Ceasefire Agreement."

French Foreign Minister Philippe Douste-Blazy said: "France believes that more than ever the respect of the Ceasefire Agreement and the continuation of the peace process is necessary."

Norwegian Foreign Minister Jan Petersen: "The killing puts the peace process to a serious test. It is of great importance that both parties to the conflict do their utmost to fully fulfill their obligations according to the Ceasefire Agreement."

UNSG Kofi Anan expressed hope that Kadirgamar’s assassination wouldn’t weaken the commitment of the people of Sri Lanka to achieve durable peace.

The UN Security Council stressed that Sri Lanka should proceed with the peace process in spite of the assassination.

Jehan Perera, on behalf of the Norwegian funded National Peace Council declared that Kadirgamar’s assassination was tragic but inevitable.

The LTTE persisted in its attempts to resume what it believed was the final war. The LTTE engineered UNP presidential candidate Ranil Wickremesinghe’s defeat four months after Kadirgamar’s assassination to pave the way for war.

The LTTE facilitated the then Premier Mahinda Rajapaksa’s victory at the November 2005 to create an environment conducive for war. The LTTE believed that it could easily overwhelm President Rajapaksa.

The Tamil National Alliance (TNA) on behalf of the LTTE ordered Tamil speaking people not to exercise their franchise at the presidential polls. It was a deliberate move meant to deprive UNP presidential candidate Ranil Wickremesinghe of Tamil votes. The TNA withdrew its support. When this writer raised the issue with TNA leader R. Sampanthan on the night of November 15, 2005, the Trincomalee-based politician said: "Nothing can be achieved by supporting Rajapaksa or Wickremesinghe. Batticaloa-based TNA heavyweight Joseph Pararajasingham told the writer that the decision was taken after having met the LTTE leadership in Kilinochchi. Both Sampanthan and Pararajasingham stressed that there wouldn’t be a change in the position taken by the LTTE and the TNA. In a related move, TNA MP Sivajilingham dismissed claims that a victory for Rajapaksa would lead to an imminent outbreak of all out war (TNA refuses to change polls boycott stance-The Island, November 16, 2005). The LTTE-TNA move (remember, the TNA declared the LTTE as the sole representative of Tamil speaking people in the run-up to Dec 2001 parliamentary election. The EU in its post-election report asserted that the TNA benefited from LTTE violence directed at its rivals. The TNA never challenged the EU report).

The then UNP Chairman Malik Samarawickrema told the writer that Wickremesinghe could have easily won the November 2005 presidential poll if Tamils were allowed to exercise their franchise freely. Samarawickrema claimed that Wickremesinghe anticipated approximately 450,000 votes from the Northern and Eastern electoral districts. An irate Samarawickrema said that LTTE-TNA move on the eve of the crucial election stunned the UNP (LTTE action belies ali-koti pact-The Island, November 21, 2005).

One-time Wickremesinghe’s confidant, Milinda Moragoda came under heavy fire at the first Working Committee of the UNP following the election for causing the UNP presidential candidate’s defeat. Moragoda was blamed for claiming a few days before the election that the UNP had caused the Prabhakaran-Karuna split. Some UNPers alleged that Moragoda’s statement prompted the LTTE to deprive Wickremesinghe of victory. Moragoda alleged that his statement was taken out of context. Wickremesinghe opposed the attack on Moragoda (Hot air at Sirikotha over LTTE polls boycott order-The Island, December 1, 2005).

Perhaps the then President Kumaratunga knew the pivitol importance of preventing the LTTE from interfering in the presidential election. Mrs Kumaratunga, on the sidelines of the UNGA sessions to help in this regard (Norway to facilitate presidential poll-The Island, September 26, 2005). The Norwegian embassy or President Kumaratunga’s office never challenged this story.

The bottom line is that the LTTE felt that election of the then Premier Rajapaksa could help it achieve eelam. It was undoubtedly, the biggest single blunder made by them. It was even bigger than the assassination of one-time Indian Prime Minister Rajiv Gandhi on May 21, 1991.

Can HRW's interpretation holding Syrian civilians a war crime be applied to Sri Lanka?

SPECIAL REPORT : Part 36

August 12, 2014, 7:50 pm 

by Shamindra Fedinando

New York based Human Rights Watch (HRW) recently warned that holding of civilians could amount to a war crime.

The AFP in a Beirut datelined story quoted HRW’s Middle East and North Africa Director Sarah Leah Whitson as having said that individuals and countries that backed groups involved in hostage taking could be complicit in war crimes. Whitson was commenting on Syrian armed groups holding 54 persons, including 34 children hostages for an entire year to win concessions from the Syrian government, including exchange of hostages for detainees in state custody.

"Civilian lives are not pawns for fighters to trade. The hostages should be let go immediately," the AFP quoted Whitson as having said, while citing the Syrian government giving armed groups safe passage out of the besieged Old City of Homs in May this year in return for the release of 40 hostages as an example of the Opposition’s despicable strategy.

Whitson claimed that the HRW had identified several individuals, mostly from Gulf countries responsible for funding those fighting the Syrian government.

The UN, now investigating accountability issues in Sri Lanka cannot ignore HRW’s statement which dealt especially with the issue of hostages in conflict. In fact, other international human rights organizations backing UN war crimes targeting Sri Lanka cannot take a position different to that of HRW as regards the hostages crisis in Northern Sri Lanka during the last phase of the conflict.

The HRW statement was issued as fighting continues in Syria. The Sri Lankan government should ask HRW whether its position on the Syria hostage taking situation applies to war-time Sri Lanka too. Had HRW been genuine in its concern for those trapped between the Syrian army and armed groups funded by Western powers, how could it ignore the situation here five years ago?

However, HRW as well as other well funded international bodies dealing with accountability issues remained silent, though the LTTE had held the entire Vanni population hostage to discourage the Sri Lankan Army (SLA) from advancing on multiple fronts. There hadn’t been a previous instance of a terrorist group holding such a large group of civilians captive amidst a bloody high intensity battle. But Western powers chose to ignore the LTTE strategy as long as they believed the group had the wherewithal to halt the SLA advance on the Vanni east front.

Did the Western powers, the UN, foreign funded local peace merchants, the Tamil National Alliance (TNA) as well as all those demanding accountability on the part of Sri Lankan government for civilians on the Vanni front at least issue public statements urging the LTTE to release civilian captives? If they actually issued statements, when did that happen? Did Tamil media carry their statements? Did the Bishop of Mannar Rev. Father Rayappu Joseph request the LTTE to release the hostages? Did he at least urge LTTE leader Velupillai Prabhakaran to release children? Did anyone bother to ask EPRLF leader Suresh Premachandran, MP, whether he requested Prabhakaran to allow the ICRC to evacuate wounded LTTE cadres? Did one of the largest recipients of Norwegian funding, Jehan Perera on behalf of the National Peace Council (NPC) demand from Prabhakaran not to use children as cannon fodder, at least after the SLA evicted the LTTE from Kilinochchi and the entire stretch of the A9 road north right upto Elephant Pass in January 2009, hence making an LTTE fightback impossible.

None of those Diaspora spokesman dared to utter word, let alone request Prabhakaran to release civilians. Instead of urging the LTTE to either surrender or give up its civilian shield, human rights champions secretly urged Western powers to compel President Mahinda Rajapaksa to halt the final assault. In fact, even the last attempt made by the US and Norway to stop fighting was meant to save the top LTTE leadership trapped in the one-time LTTE stronghold, Mullaitivu, widely believed to be impregnable. The US-Norway project involved the Sri Lankan Air Force (SLAF) airlifting ICRC and perhaps top UN representative/representatives to the rapidly shrinking area under LTTE control possibly on May 17, 2009. The operation was intended to pave the way for the LTTE leadership to surrender to a ‘neutral third party.’

The SLA shot dead Prabhakaran on the morning of May 19 on the banks of the Nanthikadal lagoon.

A person who had even access to Prabhakaran, now backing an international war crimes investigation on July 30, 2014 told the writer: "Although the LTTE realized the pathetic ground situation it was facing, a section of the diplomatic community obviously believed in the theory propagated by a section of the media. Had they realized the gravity of the situation, they would have made an earlier bid to arrange a ceasefire between the warring parties. Both the SLA and the LTTE could have avoided thousands of deaths if Western powers managed to arrange a ceasefire to pave the way for the LTTE to surrender. But as long as they felt that the LTTE could somehow turn around the situation, they choose to ignore the carnage. Kumaran Pathmanathan’s move to arrange a ceasefire made in the late hours of May 16, 2009 apart of being too late, lacked the support of Prabhakaran."

His recent assertion is very much similar to that of one-time US defence advisor in Colombo, Lt. Col. Lawrence Smith who declared in June 2011 that there had never been a formal attempt to arrange a ceasefire between the SLA and the LTTE. The writer had dealt with this factor on numerous occasions over the past few years, though officialdom seemed to unaware of the significance of the US statement made at the inaugural defence seminar. Undoubtedly, it was the most important statement made at a defence seminar held in Colombo. The fourth edition of the defence seminar series will be held over a period of three days beginning August 18. Perhaps the SLA will exploit this opportunity to justify Sri Lanka’s actions before an international audience. May be the question and answer sessions can generate much more interest than actual presentations. The US defence advisor made his irrefutable statement during a question and answer session, much to the disappointment of the US State Department.

One-time head of Sri Lanka Peace Secretariat Jayantha Dhanapala in his lengthy submissions before the Lessons Learnt and Reconciliation Commission (LLRC) in late August 2010 explained the battlefield challenges during the final phase. Dhanapala, a retired diplomat of international repute declared: "We were very fortunate that in the end game of our conflict in May of 2009 we were able through the bravery of our own Army to save ourselves the possible holocaust of 300,000 civilians dying in the final stage. The earth bund behind which they were held as human shields was breached at great sacrifice by our Army and we were able therefore to minimize civilian losses. I do not think we have an accurate estimate as to what the civilian losses were in the cross fire but there were civilian losses. The tragedy would have been much greater if not for the bravery of our soldiers. But what if there was a tragedy greater than what happened. We would have been then denigrated in the eyes of the international community for no other reason but the fact that these civilians were being held as human shields."

The government didn’t realise the importance of this statement either. No government politician or an official had so far referred to  Dhanapala’s comment on the rescue operation carried out by the SLA. Strangely, the SLA had never used the veteran diplomat’s great comment to dispel accusations that it engaged in genocide. Could there have been a better rebuttal than Dhanapala’s, whose association with ‘Friday Forum’ as well as his criticism of government actions earned him respect from those wanting to undermine the Rajapaksa administration.

In spite of having undeniable evidence that the UN diplomatic mission in Colombo as well as the ICRC had been aware of the LTTE’s intentions to hold the Vanni civilian population in the midst of the war zone regardless of consequences, Western powers did absolutely nothing to thwart Prabhakaran’s plan. The LTTE went to the extent of preventing Tamils employed by the UN and other INGOs from leaving the area under its control as the SLA gradually pushed the LTTE on multiple fronts. The war wouldn’t have lasted nearly three years if the LTTE lost its civilian cover at an early stage of the Vanni battle. The writer revealed the LTTE’s efforts to keep the civilian population under its control at the onset of the SLA’s 57 Division launching operations on the ‘central front.’ None of those who had been demanding accountability for atrocities committed during the last phase of the conflict bothered about what was going on (LTTE detains UN workers-The Island -April 20, 2007). That exclusive report was followed by (‘UN had talks with Tigers on the sly-The Island-April 23, 2007, Lanka urges UN not to shield Tigers-The Island-April 25, 2007, UN HQ admits Colombo office kept it in the dark-The Island-April 28, 2007).

General Officer Commanding (GoC) of the SLA’s famous 58 Division Maj. Gen. Shavendra Silva asserted that the LTTE at a very early stage of Vanni battle realized that its very survival largely depended on the civilian population. Having realized that it couldn’t match the growing firepower of the SLA backed by tremendous SLAF capabilities, the LTTE forced civilians to accompany them as it retreated across the Vanni. The LTTE quite rightly believed that the heavy presence of civilians could greatly hinder deployment of heavy guns as well as air power (After the conclusion of the conflict, the ICRC too, acknowledged severe difficulties experienced by the SLA due the ‘civilian factor.’ This too, was revealed by Wiki Leaks). The fleeing numbers swelled as they retreated across the A9 road towards the Mullaitivu coast with thousands of families living in areas east of A9 joining them, Maj. Gen. Silva, Sri Lanka’s Deputy Permanent Representative in New York maintained. All available information, including US diplomatic cables originating from Colombo point to the fact that there hadn’t been a genuine effort on the part of Western powers to arrange a ceasefire until May 16, 2009. But that effort too, was meant to save the top LTTE leadership as revealed by a US embassy cable, the Gajaba Regiment veteran told The Island, adding that those concerned about the well being of civilians should have forced the LTTE to surrender soon after the SLA annihilated over 400 LTTE cadres, including many of its top commanders in early April 2009. Widely believed to be the worst debacle suffered by the LTTE during the entire conflict, the confrontation in the Puthukudirippu area should have compelled the LTTE to bring the war to end, said Maj. Gen. Silva. But the LTTE continued to resist for about seven more weeks believing help was coming from overseas, the soldier said. The diplomat said that he had never heard those shedding crocodile tears for civilians today urging the LTTE to release people, particularly children at least, when it was obvious Prabhakaran couldn’t turn around the ground situation.

The use of human shields here should be reexamined in the backdrop of HRW’s declaration that holding of civilians against their will is a war crime, Maj. Gen. Silva said. Unlike in some other parts of the world, the international community knew what was exactly happening in the Vanni as foreign representatives were given the opportunity to visit areas under LTTE control.

Thanks to Wiki Leaks we now know that the ICRC had CONFIRMED the LTTE’s strategic use/deployment of civilians in no fire zone/zones. Having met the ICRC’s Head of Operations for South Asia Jacque de Maio, on July 9, 2009, the then Geneva based US ambassador Clint Williamson revealed the unpalatable truth. Williamson quoted de Maio as having told him that the LTTE had tried to keep civilians in the middle of a permanent state of violence. The LTTE had considered the civilian population as a `protective asset` and kept its personnel embedded among them, De Maio was quoted as having said. "...the LTTE commanders’, objective was to keep the distinction between civilian and military assets blurred. They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter."

De Maio was quoted as having claimed that it would be hard to state that there was a systematic order to LTTE personnel to stick with civilians in order to draw fire. Civilians were indeed under `physical coercion not to go here or there,` he said. Thus, the dynamics of the conflict were that civilians were present all the time. This makes it very difficult to determine though at what point such a situation becomes a case of ‘human shields.’

War crimes probes: Sri Lanka suffers for want of cohesive planning

Pathetic failure to exploit Wiki Leaks, US Defence Advisor’s declaration baffling

SPECIAL REPORT : Part 35

August 5, 2014, 7:26 pm 

In the immediate aftermath of the liberation of Kilinochchi in January 2009:President Mahinda Rajapaksa with Defence Secretary Gotabhaya Rajapaksa and the then army Chief Gen. Sarath Fonseka visit the town.

by Shamindra Ferdinando

The Sri Lankan government should have anticipated the latest move against Defence Secretary Gotabhaya Rajapaksa on the human rights front. With war veteran Rajapaksa being the subject of a recent Congressional hearing meant to explore ways and means of prosecuting him as a US citizen for alleged war crimes committed during the last phase of eelam war IV, the government can expect a hardening of the UN position also on the human rights issue.

The Congress was told that the most obvious federal criminal statute is the War Crimes Act of 1996, which applied to U.S. citizen Rajapaksa. In case, the Justice Department felt that there was insufficient evidence for a criminal indictment, it could consider pursuing civil liability.

In fact, the US revealed its intention to zero-in on Rajapaksa over accountability issues a couple of months after the conclusion of the conflict in May 2009. The US project came to light when the then Chief of Defence Staff (CDS) General Sarath Fonseka was on a private visit to the US.

Although the Department of Homeland Security refrained from interviewing the General following strong objections by the Sri Lankan government, Professor of Law Ryan Goodman, who is also the Co-Chair of the Center for Human Rights and Global Justice raised the possibility of using various statements made by the former army chief against Defence Secretary Rajapaksa before Congress. Goodman made his presentation titled ‘Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes—The Case of Gotabhaya Rajapaksa’ on July 30.

Goodman wants to exploit Rajapaksa and Fonseka having dual Sri Lankan and US citizenship to prosecute the Defence Secretary on the basis of Fonseka’s testimony. Goodman wouldn’t have gone before Congress, unless he was convinced the US administration was serious about opening a new front against Sri Lanka. Goodman called General Fonseka a long term permanent resident of the US aka green card holder. Obviously, Goodman wanted to use Gen. Fonseka, a green card holder to prosecute Defence Secretary Rajapaksa though the writer inadvertently identified both Rajapaksa and Fonseka as dual Sri Lankan, US citizens in a front-page news item headlined Newest moves on war crimes exploit Gota’s & Gen SF’s US citizenship in the August 2 edition of The Sunday Island.

Goodman made the first part of his presentation titled ‘What more Congress (and the administration) can do to promote accountability in Sri Lanka’ on July 15.

With the US now set to explore ways and means of using whatever statements that can be attributed to retired Gen. Fonseka, a green card holder to build a case against Defence Secretary Rajapaksa, a US citizen, the government will have to re-examine all available information pertaining to war crimes allegations. Such a course of action will help Sri Lanka to counter the ongoing UN investigation as well as specific US operations targeting the Defence Secretary. The bottom line is that Sri Lanka’s defence in Geneva as well as the US largely depend on its ability to effectively use information/evidence now in the public domain. Such information can be of pivotal importance to negate unsubstantiated allegations made against the country, as well as expose the absurdity of some of the accusations.

It would be pertinent to study the circumstances under which Gen. Fonseka left the country on a private visit to the US in late October 2009. The visit took place amidst speculation that Fonseka would quit government service to challenge President Mahinda Rajapaksa at the presidential polls. Having reached the US, the then Lt. Gen. Fonseka on Oct. 28, 2009 declared that even if he had to leave the uniform, he wouldn’t hesitate to take whatever action necessary to ensure the security as well as prosperity of the country. Addressing a gathering at a Sri Lankan Buddhist temple in Washington DC, Gen. Fonseka alleged that some were trying to share the credit for the army’s triumph over LTTE terrorism (Gen. Fonseka says he is ready to leave uniform-The Island October 29, 2009).

Close on the heels of Lt Gen. Fonseka’s statement, Defence Secretary Rajapaksa, in an exclusive interview with the writer explained the events leading to the appointment of the former Army Chief as the CDS (Gota speaks out on Fonseka issue-The Island October 31, 2009).

Although Goodman told Congress that Gen. Fonseka had been at the helm of the Sri Lankan Army at that time, the Sinha Regiment veteran was in fact the CDS, having relinquished command of the victorious Army in July 2009.

Goodman said: Sri Lanka’s then-Army chief, Sarath Fonseka (who happens to be a long-term permanent resident of the United States) was in the United States on a personal visit. He was contacted by the Department of Homeland Security to schedule a special interview and was reportedly told by the DHS that "the intention behind the request for the interview is to use him ‘as a source against human rights violations done by Secretary/Defence." The interview was scheduled for November 4.

The then Sri Lankan ambassador in Washington Jaliya Wickremasuriya and Minister Basil Rajapaksa raised the issue with the senior official in charge of South and Central Asian Affairs, Robert Blake (former US ambassador in Sri Lanka) and his successor in Colombo Patricia Butenis, respectively, though both denied having any knowledge of the Department of Homeland Security seeking to interview Lt. Gen. Fonseka. The Defence Secretary is on record as having said that it was Gen. Fonseka, who informed him of the US move. The Defence Secretary said that Fonseka had contacted him on October 30, 2009 after having received a request from a US official two days before that there was a requirement to interview him (US seeks info on Gota from Fonseka-The Island-November 2, 2009 and Gota says Gen. Fonseka alerted him to the US move The Island- November 3, 2009).

Fonseka returned to the country during the first week of November, 2009 (Gen. Fonseka permitted to avoid ‘interview’, leave US The Island-November 5, 2009). Just over a week after having returned from the US, Gen. Fonseka tendered his resignation. Sri Lanka’a most successful army chief ceased to be in uniform with effect from December 1, 2009 (President promptly accepts Fonseka’s resignation-The Island November 13, 2009).

Thanks to whistle blowing website Wiki Leaks, several classified cables originating from the US embassy in Colombo are now in the public domain. The government’s failure to closely study these cables that dealt with the conflict/war originating not only from Colombo but US diplomatic missions in New Delhi, London as well as Geneva is inexcusable. Had such a study been undertaken, it could have helped the country to successfully counter major accusations, including the genocide charge (No less a person than Jacque de Maio, ICRC Head of Operations for South Asia, is on record as having told top US Geneva-based diplomat, ambassador Clint Williamson that there was no basis for genocide allegation directed at the Sri Lanka Army. Wiki Leaks revealed that the conversation took place on July 9, 2009 in Geneva. Maio, now in charge of ICRC operations in Gaza asserted that the SLA could have finished off the LTTE with less losses if it didn’t take into consideration the civilian factor). Unfortunately, the government never realized the importance of de Maio’s statement. In addition to that, particular statement attributed to Maio, there are a spate of other cables which can be effectively used to shield Defence Secretary Rajapaksa, thereby derailing the Western project meant to pave the way for a regime change in Sri Lanka. The government should realize that the defence of Rajapaksa in the US cannot be isolated from the war the threat coming from Geneva.

The international community cannot ignore Wiki Leaks revelations as a post-war inquiry undertaken by the Norwegian government examined released US cables (Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka (1997 – 2009). Norway released the study in September 2011. Norway admitted that Wiki Leaks revelations pertaining to Sri Lanka can help in investigation/examination of accountability issues.

A US diplomatic cable dated January 15, 2010 originating from Colombo authored by the then US ambassador here, Patricia Butenis now in public domain thanks to Wiki Leaks can expose the wonky US position on human rights. Just over two months after the Department of Homeland Security wanted to interview Gen Fonseka to explore the possibility of using him as a source to prosecute the Defence Secretary, Butenis asserted that Fonseka too, was responsible for war crimes. If not for the unbeatable combination of Bradley Manning-Wiki Leaks, the world would never have known that ambassador Butenis categorized President Mahinda Rajapaksa, Defence Secretary Gotabhaya Rajapaksa, army chief Gen. Sarath Fonseka as well as Minister Basil Rajapaksa as war criminals. Butenis couldn’t have been unaware that the Department of Homeland Security intended to use Gen. Fonseka against Defence Secretary Rajapaksa yet called him a war criminal because she never expected that particular missive to get into the public domain. The US supported Gen. Fonseka’s candidature at the January 26, 2010 presidential election.

Goodman conveniently didn’t make any reference to the cable authored by ambassador Butenis. In fact, except the Norwegian investigation, none of those wanting to haul Sri Lanka up before an international war crimes tribunal publicly admitted the relevance of Wiki Leaks revelations to accountability issues here. Strangely, the government too, ignored the revelations in spite of them which can be used to explain the events leading to the final confrontation on the banks of the Nanthikadal lagoon.

Wiki Leaks exposed the absurdity of the US position on human rights by releasing cables detailing atrocities committed by US forces in various parts of the world.

Another US diplomatic cable was based on a conversation between de Maio and ambassador Williamson also on July 9, 2010, the LTTE’s despicable use of civilians to hinder the advancing army. If Maio’s previous statement was examined together with the one below, the difficulties as well as sacrifices made by the army could have been proved. Sadly, no such attempt was made. The Ambassador quoted Maio as having said that the LTTE had tried to keep civilians in the middle of a permanent state of violence. The LTTE saw the civilian population as a ‘protective asset’ and kept its fighters embedded amongst them. The LTTE commanders, objective was to keep the distinction between civilian and military assets blurred (emphasis mine). They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter.

The cable was written by the US Ambassador to Geneva, Clint Williamson on July 15, 2009.

US ambassador Williamson wrote; "De Maio said it would be hard to state that there was a systematic order for LTTE fighters to stick with civilians in order to draw fire. Civilians were indeed under ‘physical coercion not to go here or there,’ he said. Thus, the dynamics of the conflict were that civilians were present all the time. This makes it very difficult to determine though at what point such a situation becomes a case of ‘human shields.’

Another Wiki Leaks cable revealed that a joint US-Norwegian effort to arrange the surrender of the top LTTE leadership to what the US embassy called a neutral third party failed to materialise due to failure on the part of the LTTE to provide the names of those willing to surrender as requested by Defence Secretary Rajapaksa. This cable too is available on the internet.

But there cannot be a better response to Goodman’s effort to pin the blame on Defence Secretary Rajapaksa over the alleged execution of surrendering LTTE cadres during the closing stage of the military offensive on the Vanni east front than a public statement made by war-time US Defence Advisor in Colombo, Lt. Col. Lawrence Smith two years after the conclusion of the conflict, hence he would have had time to verify the entire range of issues before going public.

The following is the US official’s statement made in response to a query posed by retired Indian Maj. Gen. Ashok Metha to Maj. Gen. Shavendra Silva, the General Officer Commanding (GoC) the celebrated 58 Division.

Lt. Col. Lawrence said: "Hello, may I say something to a couple of questions raised. I’ve been the defence 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."

The government never used this statement in its defence. Perhaps, with Defence Secretary Rajapaksa now facing a fresh US threat, the government will have to reexamine its options again.