Tuesday, 1 September 2015

War crimes: Allegations and wasted opportunities




By Shamindra Ferdinando

A two-day defence seminar, the fifth of an ongoing series, commenced at Galadari Hotel yesterday. This year’s sessions, themed on ‘National Security in the Context of Emerging Global Threats’, were segmented into a range of related issues, including ‘Terrorism and Challenges to National Security.’

The first three-day defence seminar was held on May 31, to June 2, 2011, two years after the conclusion of the war. The seminar dealt with Defeating Terrorism: Sri Lankan Experience.

The seminar series was the brainchild of the then Defence Secretary, Gotabhaya Rajapaksa, whose contribution to Sri Lanka’s triumph over terrorism could never be matched under any circumstances. The Gajaba Regiment veteran ensured the largest ever combined security forces offensive, undertaken by the military, on track, until troops wiped the last organized LTTE resistance, on the banks of the Nanthikadal lagoon, in May, 2009.

Unfortunately, Sri Lanka’s most successful Army Chief, the then Gen. Sarath Fonseka, had been behind bars, at Welikada, at the time the military shared its experience with foreign countries, in May-June, 2011. Having arrested the Sinha Regiment veteran, during the second week of February, 2010, the then government had him detained at the Navy Headquarters, pending court martial proceedings.

Although Fonseka was released in May, 2012, the war veteran never had an opportunity to participate in the SLA’s post-war flagship project. Army Commander, Lt. Gen. Crishanthe De Silva, extended an invitation to Field Marshal Sarath Fonseka for the inauguration of this year’s seminar.

Last year’s three-day conference was held, in August, under the auspices of Gotabhaya Rajapaksa. It was held under the theme, ‘Sri Lanka: Challenges to a Rising Nation’.

In addition to the army, the Galle Dialogue, conducted by the navy, as well as the annual research conference, organised by the General Sir John Kotelawela Defence University, too, failed to focus on real challenges faced by Sri Lanka. For some strange reason, Sri Lanka never wanted to set the record straight. Even the much touted Lessons Learnt and Reconciliation Commission (LLRC) was denied the required mandate to conduct a comprehensive inquiry.

Much to the disappointment of those who had backed the successful military campaign, the military never launched a special project to disapprove unsubstantiated allegations, pertaining to battlefield atrocities, committed during the final phase of the offensive. In fact, the Army failed to capitalize on a statement made by the then US Defence Advisor in Colombo, Lt. Colonel Lawrence Smith, at the inaugural defence seminar. It would be pertinent to mention that the comment was made two years after the conclusion of the conflict. The Island dealt exclusively with the revelation made by the US official (Sri Lanka Defence symposium: Now, US suspects credibility of LTTE surrender offer-The Island, June 3, 2011) The then Army Commander, Lt. Gen. Jagath Jayasuriya, failed to take advantage of the US statement. The External Affairs Ministry never realized the significance of the US statement. The previous government simply ignored the US statement. The government lacked the capacity to pursue the matter to its advantage. Both the Army and the External Affairs Ministry pathetically failed to take notice that there couldn’t have been a better defence for Sri Lanka than a top US representative publicly denouncing propaganda directed at Sri Lanka.

Instead, the previous government squandered millions of US dollars in a futile bid to change the US stance, with the help of foreign based public relations firms. The SLA missed an opportunity to use the defence seminar series to respond to unsubstantiated allegations propagated by interested parties. Unfortunately, none of those who had been invited to address this year’s two-day seminar were likely to address the accountability issues. The Maithripala Sirisena-Wickremesinghe government should initiate a thorough investigation to establish the amount of funds transferred by the previous government to various PR firms in the UK, UK as well as India.

The writer was one of the few journalists present at the question and answer session, at the 2011 defence seminar, when celebrated field commander, Maj. Gen. Shavendra Silva, found an unexpected ally in the US Embassy’s Defence Attaché, Lt. Colonel Lawrence Smith, when a question was raised about the alleged move by some LTTE leaders to surrender during the last few days of the war, in May, 2009.

The Defence Attaché intervened after an Indian delegate, Major General (retd) Ashok Mehta, who had served as an IPKFs commander during late 80s, queried about the alleged surrender moves by LTTE cadres, now the subject of an international investigation. The report of the investigation, conducted in accordance with a US resolution, approved at the March, 2014, Geneva session, is scheduled to be submitted to the UNHRC next month This is what Lt. Col. Lawrence Smith had to say in response to Metha’s question, directed at Maj. Gen. Shavendra Silva..

"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. "

Lt. Colonel Smith earned the wrath of the State Department straight-away. In Washington, no sooner, The Island published his remarks, the US State Department disassociated itself with Lt. Col. Smith’s statement. The State Department’s the then Deputy Spokesman, Mark. C. Toner, was to answer a series of questions. This is how the Question and Answer session went.

QUESTION: I have one on Sri Lanka. The senior Defense Attaché, at the U.S. Mission, in Sri Lanka, went public in the newspapers that he questioned the credibility of surrender offers made by senior LTTE leaders who was the head of the (inaudible) last year. Does this reflect any change in the U.S. position on the war crime victims

TONER: Right. You’re talking about remarks that were made at a conference in Colombo?

QUESTION: Yes. Yeah.

TONER: Well, just to clarify, the U.S. did decline invitations to participate in that conference as either a conference speaker or panelist. My understanding is that the defense attaché was there as an observer and a note taker. His comments reflected his personal opinions. There’s no change in the policy of the United States, and his remarks do not reflect any change in our policy.

QUESTION: So that was a personal opinion?

TONER: Personal opinion. The United States – and just to reiterate that policy – remains deeply concerned by the allegations in the panel of experts report, and we’re committed to seeing a credible accounting of, and accountability for, violations of international human rights law and international humanitarian law. And we believe that the Sri Lankan Government must act quickly and credibly to address these allegations.

QUESTION: Who was the attaché?

TONER: I don’t have his name.

QUESTION: Is he still the attaché? (Laughter.) Was there any discussion

TONER: I believe he’s still there, but I’ll try to get an update.

Shortly thereafter Lt. Colonel Smith left Sri Lanka.

Perhaps, Sri Lanka should have invited Lt. Colonel Smith to address defence seminar, at a subsequent year. The US officer would have probably accepted the invitation. Unfortunately, those in charge of defending Sri Lanka lacked the foresight to explore all ways and means to tackle the accountability issues.

The previous government didn’t even realize the significance of Lt. Colonel Smith’s declaration that he had been in Sri Lanka, since June, 2008, therefore well versed with the situation on the ground. The US official must have had access to information, provided by international agencies, based in Northern and Eastern Sri Lanka, as well as other Western diplomatic missions, and India. The Army, and the Foreign Ministry, never bothered to pursue the matter. The US State Department couldn’t have absolve itself of responsibility by merely denying its Colombo based defence advisor was at the event in a personal capacity. The Army and the External Affairs Ministry never bothered to examine Wiki Leaks. Had they examined leaked US diplomatic cables, originating from Colombo, in the backdrop of Lt. Colonel Smith’s statement, the country could have faced the Geneva challenge. Unfortunately, the previous government squandered the opportunity. Wiki Leaks revelations, as well as certain diplomatic notes, in Sri Lanka’s hands, strongly justified Lt. Colonel Smith’s assertion that the LTTE leadership hadn’t made a move to surrender. Let me reproduce a note, dated Feb 16, 2009, sent by war time Norwegian ambassador in Colombo, Tore Hattrem, to the then Minister Basil Rajapaksa. The Norwegian missive revealed Norway’s serious concern over the LTTE’s refusal to release civilians held by them. The Island recently received a copy of the hitherto unknown Norwegian note, headlined ‘Offer/Proposal to the LTTE’, personally signed by Ambassador Hattrem. The Norwegian envoy had written to Basil Rajapaksa on behalf of those countries trying to negotiate a ceasefire between the government and the LTTE, to facilitate the release of civilians, held hostage by the latter.

The following is the text of Ambassador Hattrem’s letter, addressed to Basil Rajapaksa: "I refer to our telephone conversation today. The proposal to the LTTE on how to release the civilian population, now trapped in the LTTE controlled area, has been transmitted to the LTTE through several channels. So far, there has been, regrettably, no response from the LTTE and it doesn’t seem to be likely that the LTTE will agree with this in the near future."

The previous government pathetically failed to examine available evidence to establish the circumstances under which the LTTE had held the entire Vanni population hostage, giving the army no other option than to overrun the LTTE.

In fact, those tasked with defending Sri Lanka had neglected their duty. The Army leadership, too, obviously failed to take up the discrepancy in the number of Tamils killed on the Vanni east front as alleged by various interested parties.

In the absence of a cohesive strategy to counter LTTE and Western propagandists, the alleged killing of over 40,000 civilians remained an extremely serious issue. But a British Labour Party MP, for Mitcham and Morden, Siobhain McDonagh, told British Parliament, in September, 2011, that fighting claimed the lives of 100,000 Tamil civilians and LTTE combatants, during 2009. McDonagh subsequently alleged that the Sri Lankan military had dropped cluster bombs on areas designated as no fire zone. The MP declared that even now nearly 150,000 Tamils remain unaccounted for. She was addressing the Westminster Hall debate, on March 25, 2014.

The British politician should be invited to assist the US/UN backed domestic investigation undertaken by the Maithripala Sirisena-Wickremesinghe administration. Now that the Rajapaksas had been ousted, those who steadfastly refused to cooperate with them could assist the new administration. There couldn’t be any justification in refusing to assist US/UN backed investigation meant to establish the fate of Tamils trapped between the advancing SLA and the LTTE. In fact, the new government should request the UN to make available all information in its hands to the proposed local domestic mechanism. The US resolution (25/1) adopted at the Match, 2014, session, in Geneva, was based on unsubstantiated allegations made by UNSG Ban ki moon’s three-member Panel of Experts (PoE) in March, 2011. The previous government couldn’t even comprehend that Lt. Colonel Lawrence Smith, in a way disputed some accusations made by the PoE. Lt. Colonel Smith commented on alleged atrocities about three months after the release of the PoE report.

Having failed to obtain the anticipated response to its public call for submissions, the PoE had no option but to extend the deadline to Dec 31, 2010. The PoE posted a notice in English on the UN website, on Oct 27, 2010, calling for submissions on or before Dec 15, 2010. Sinhala and Tamil versions of the notice, too, were subsequently posted. The PoE report, released on March 31, 2011, acknowledged that the decision to extend the deadline to Dec. 31, though it didn’t give a specific reason.

The PoE comprised former Indonesian Attorney General Marzuki Darusman (Chairman), US attorney-at-law Steven R. Ratner and South African NGO guru Yasmin Sooka. From Oct 27, 2010 to Dec 31, 2010, the PoE received 4,000 submissions from 2,300 persons.

Sri Lanka should take up the controversial confidentiality clause meant to conceal the identity of those 2,300 complainants for 20 years, from the date of the publication of the PoE report.

When the writer raised the issue, with the UN, as well as the UNDP Resident Representative, in Colombo, Subinay Nandy, whether the UN would do away with the confidentiality clause to facilitate the UNHRC probe, the Colombo mission issued the following statement after having consulted UN headquarters. The UN said: "The High Commissioner for Human Rights will now be making arrangements for a comprehensive investigation requested by the UNHRC and the issue of the confidentiality clause will need to be considered at a later stage," (UN to revive 20-year confidentiality clause ‘at a later stage’-The Island April 7, 2014).

Now that the stage is set for the release of external investigation report on Sri Lanka, in September, this year, and the US moving another resolution, this time, in support of the new Sri Lankan government, the time is opportune for the UN to assist the proposed domestic investigation. Let there be a UN role in the proposed domestic probe to ensure that all accusations are verified and those found guilty of atrocities punished through a domestic mechanism. Thanks to Wiki Leaks, we know what the ICRC comment on the final phase of the offensive on Vanni east front.

A secret US diplomatic 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 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 they 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."

Most probably, Lt. Colonel Smith had access to ICRC version of the events, including the specific cable from Geneva authored by Ambassador Clint Williamson.