KAMALIKA PIERIS

This essay looks at four assessments of the Darusman Report, by Godfrey Gunatilleke,   John Holmes, Geoffrey Nice, Rodney Dixon, and the Paranagama Commission.

Godfrey Gunatilleke wrote ‘An Analysis and Evaluation of the Report of the UN Secretary General’s (UNSG) Panel of Experts on Accountability in Sri Lanka” for the Law and Society Review under the title ‘Truth and accountability: the last stages of the war in Sri Lanka.” (2011)

Godfrey Gunatilleke said the Darusman Report is worthless as  an account of the final stages of the war.  However it is extensively used by the pro Eelam groups and therefore counter action has to be taken. ‘He pointed out that the Panel showed bias. It ignored the ample information it had on LTTE’s activities in the No Fire Zone. It made no reference to the army’s rescue of civilians. The emotional tone in certain parts of the Report showed that the Panel was driven by a personal dislike and righteous indignation” against the Government.

The Panel has written a dramatic account of what they thought had actually happened, said Gunetilleke. The Report lacked a neutral objective tone. In many parts of its report the Panel has adopted a tone towards the Sri Lanka government which was unseemly for a Panel appointed by the UN Secretary General.

Gunetilleke observed that the Panel has treated the war in Sri Lanka like any other armed conflict. It has failed to make a distinction between a terrorist organization and the army of a democratic state. War on a terrorist organization is different from any other armed conflict. Further, the Panel has   failed to discuss the critical issues arising out of the unique conditions of the Sri Lankan case. It has not examined the impact terrorism has on the existing laws relating to warfare, either.

In 2014 Gunatilleke and the Consortium of Humanitarian Agencies issued ‘The third narrative ‘. This focused on Darusman Report’s allegation that the army deliberately killed Tamil civilians. They say that earlier when the fighting was in the eastern province there was no allegation of war crimes against the Sri Lanka Army though it was the same army.

The authors say that note must be taken of the unique context of this war. It was a war fought under extraordinary circumstances, where a large civilian population was forcibly held within the battle zone and deliberate positioned to gain military advantage. It was very difficult for the army to apply humanitarian principles fully.

The authors point out that Darusman Panel ignores the fact that it was the LTTE that initially committed the war crimes of using civilians as a human shield, locating their artillery in the midst of the civilian population, and firing into the advance positions of the SLA from within the NFZ. The LTTE’s actions were such that the SLA was left with limited military options.

The Darusman Report says that the government deliberately tried to starve the civilian population by restricting the supply of food. The authors said that when the population in Kilinochchi was forced by the LTTE to move with their cadres towards Mullaitivu in January 2009, the buffer stocks of food in Kilinochchi district was transported and handed over to GA Mullaitivu to be distributed to the civilians. The buffer stocks were adequate for a period of three months. In addition to this, evidence presented to the LLRC had also shown that there were buffer stocks adequate for a quarter of a year in Puthukudirippu as well in January 2009. Furthermore, there was the purchase of food grains from the locality by the government officials present and also the quantities that were shipped to the No Fire Zone by the ICRC.

Lastly, this book says there must be a comprehensive investigation into the crimes of the LTTE. The activities of the UN and international organizations’ involved in the war should also be scrutinized.

The Paranagama Commission (2014) observed that the Darusman Panel has made very serious allegations about the government of Sri Lanka and the Sri Lanka army, and these have influenced the thinking about the final phase of the war. Speeches in the British Parliament have been made on the assumption that what the Darusman report said about the government and army are correct and conclusive.

This Commission therefore sees as one of its duties the demonstration of errors in the Darusman Report and the presentation of an alternative narrative which, in this Commission’s view, reflects more accurately the true circumstances and associated responsibilities related to the final phase of the war in Sri Lanka.

In order to do so, the Commission obtained a technical report from Major General John Holmes and a legal report from Geoffrey Nice QC and Rodney Dixon QC and incorporated their findings into the Paranagama Report. The full text of these two reports are given in Pts 4 and 5 of this series. Extracts are provided below.

The Paranagama Commission requested an expert military report from Major General John Holmes. Holmes was Director UK Special Forces, 1999. He commanded the hostage rescue operation in Sierra Leone and was involved in planning operations in Kosovo. Holmes helped evolve the tactics and equipment that have subsequently been used world-wide in hostage rescue operations. His report to the Paranagama Commission is dated March     2015.

Here are some extracts from the Holmes report:.

Holmes firstly mentions the praiseworthy intention of the Sri Lanka army cadres to minimize Tamil civilian deaths. They probably received an order to do so, from the high command. That is why 290,000 Tamil civilians survived to be rescued by the Sri Lanka army. There are many well recorded instances of soldiers helping Tamil civilians to escape indicating that the policy was understood by all ranks. Gordon Weiss  says on page 216 of his book  ‘The Cage’ It remains a credit to many of the front-line Sri Lanka army soldiers that they so often seem to have made the effort to draw civilians out from the  fighting in an attempt to save lives. The capture of approximately 12,000 cadres also illustrates this effort.

In my opinion it might also be argued that some of the deliberate operations completed by the Sri Lanka army had as an additional aim, the rescue of civilian hostages. In a US Embassy cable to the State Department on 20 April 2009, US Ambassador Blake reports a successful Sri Lanka army operation near and in Putumattalan that enabled 35,000 civilians to escape the combat zone with a further 1,500 escaping by sea, continued Holmes.

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

If I compare this approach to internal conflicts of which I have personal experience, such as in Sierra Leone, where widespread and systematic atrocity crimes took place, this supports my opinion that this was not an army that was seeking to indiscriminately exterminate their enemy or civilians. Of course, this does not exclude individual instances where war crimes may have  occurred,” said Holmes.

However, overall and for the reasons considered above, on the available evidence it is my opinion, that the SLA’s operations in broad terms, were proportionate in the circumstances. Whilst the SLA was a relatively unsophisticated army, they had evolved into a battle and ultimately war winning machine that made up for its lack of sophistication by the application of three of the most important principles of war: selection and maintenance of the aim; offensive action and concentration of force. In my military opinion, faced with a determined enemy that were deploying the most ruthless of tactics and which involved endangering the Tamil civilian population, SLA had limited options with regard to the battle strategy they could deploy.

This would have posed a dilemma for the very best trained and equipped armies in the world. The SLA had either to continue taking casualties and allow the LTTE to continue preying upon its own civilians, or take the battle to the LTTE, albeit with an increase in civilian casualties.

The tactical options were stark, but in my military opinion, justifiable and proportionate given the unique situation SLA faced in the last phase. Therefore, on the evidence available to me, taking into account my own combat experience, I do not find, in broad terms that the military and artillery campaigns were conducted indiscriminately, but were proportionate to the military objectives  sought.

In everything the author has had access to and reviewed there is no indication that SLA deliberately or disproportionally targeted the civilian population in the course of their operations. In fact, the available evidence suggests the reverse, he concluded.

Homes then spoke on technical matters. The Darusman report makes much of the analysis of  artillery shell craters in the war area. The Darusman team had used the satellite imagery to conclude that SLA were guilty of the widespread shelling of a large IDP population” . It is not possible at this point in time, on the evidence available, to accurately state which side’s artillery and mortars caused identified shell craters and civilian  casualties.

Most craters make a clearly defined pattern on the ground and differ according to the type of projectile fired and the type of fuze used, said Holmes . It is therefore necessary for such a team to show that a specific crater was caused by a shell from a particular type of weapon which was fired on a particular bearing.

The clinching argument as to where responsibility lies for the shelling is in the direction from which the shells were fired. This can only be retrospectively determined from analysis of the shell craters either on the ground as soon as possible after the event or from available imagery or, to a lesser extent, from credible witnesses at the receiving end. To suggest, as one report does, that because the barrels of SLA artillery tracked the declaration of   the  ‘NFZs’ is an indication that they fired into those NFZs is inaccurate and speculative,. It is normal artillery practice for guns to be laid in the direction of the threat, but that does not mean they actually fired.

Holmes notes  that Paragraph 81 of the Darusman Report states that during the period 19 -20 January 2009 shells hit Vallipunam Hospital in NFZ 1. Imagery dated 21 January 2009 indicates that it was likely that the hospital had not received indirect fire on those  dates”.

Paragraph 91 of the Darusman Report states that the hospital at Puthukkudiyiruppu was hit every day between 29 January and 4 February 2009 by Multi Barrelled Rocket Launchers (MBRLs) and other artillery taking at least nine direct hits. Imagery dated 5 February 2009 indicates that the hospital had suffered two possible areas of damage during the time frame, but not nine direct hits. Even one salvo from a MBRL would have devastated the entire area

Paragraph 94 of the Darusman Report states that on 6 February 2009 the Ponnambalam Hospital was shelled causing part of it to collapse and that it was shelled again on the 9 February 2009. Only imagery dated 5 February was available for this site and this shows the hospital to be in relatively good condition.

Three images relating to the Ponnambalam Hospital at page 189 of the Darusman Report are also possibly erroneous. Two of these images refer to specific buildings being destroyed between 21 January and 5 February 2009, yet on the available imagery dated 5 February 2009, both buildings are still standing. The third image again relates to a specific building being destroyed in the same time frame. The building is still standing in imagery dated 16 March 2009.

Paragraph 111 of the Darusman Report states that on 11 and 12 May 2009 the temporary hospital at Vellamullivaikkal was also hit by shells killing a number of people. Imagery dated 10 May 2009 revealed that the hospital had already received damage from probable indirect fire. However, imagery dated 24 May 2009 detected no additional  damage.

Paragraph 120 of the Darusman Report states that on 16 May the LTTE destroyed a lot of its equipment in a large explosion in an area of NFZ 3. A change detection study using imagery dated 16 March and 24 May 2009 showed no evidence of large-scale destruction (craters or debris) was noted throughout the NFZ”.

It is unlikely that multi barreled rocket launchers were used , as Darusman Panel alleges, they cause such a high level of destruction that it would almost certainly be identified from imagery. The number of temporary shelters and their lay out that were still standing on 10 May is also significant. It refutes any suggestion of the deliberate targeting of civilians by SLA artillery or indiscriminate use of these weapons. They had the potential to devastate these areas in a very short space of  time. My conclusion in this Report is that both sides fired into the so called ‘NFZs’, but only  the government that is being held to account, said Holmes.

The Paranagama Commission  requested a legal Review of the Darusman report by Sir Geoffrey Nice QC & Rodney Dixon QC. Here are a few selected observations from the report, but this section must not be treated as a substitute for reading the full text. I have given the full text at Pt 4 of this series.

Nice and Dixon thoroughly condemn the  Darusman Report and say  the     government’s wish for a detailed analysis of the Panel’s work is justified. Reports like the Darusman one can be used to spread  false ideas, which, when repeated over and over again become the accepted narrative. However,  the  real  purpose of the report is to discuss accountability said Nice and Dixon. Its   main task is considering appropriate accountability mechanisms. There is absolutely nothing about modalities , applicable international standards, or comparative experience given in their terms of reference.

Nice and Dixon firmly state that the Darusman Report  is not acceptable in law. No international tribunal will accept it. It  will be thrown out. ‘Analysis of the complex and intricate legal requirements 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.’

Darusman Panel had used ‘reasonable basis to believe’ as its standard of proof. Nice and Dixon point out that this is the lowest standard of proof  accepted in a court of law. International Criminal Court uses  it only to initiate an investigation. But even at that level sound evidence is required.

Before starting its work the Panel should have sought a mandate to conduct a proper investigation in accordance with international legal standards. Without such a mandate all it would be able to do was assemble allegations and counter allegations from all sides.  The Panel however used this to its own advantage. The Panel adopted a ‘halfway house’ solution.

It did not conduct a full fact-finding investigation but consulted various individuals and organizations and examined  information, avoiding the detailed inquiries that characterize a full investigation.   Instead of saying  that there are many disputed allegations which require further investigation, the Panel positively claims that the allegations are credible and reliable and  must be seen as  trustworthy allegations that should be accepted.

The Darusman Report  is highly defective when it comes to evidence, especially when  judged by established legal standards for the assessment of evidence. The reader is left in the dark as to which were the primary sources used in the Report.   The full body of evidence that was taken into account is unknown,. The statements of those who were interviewed and consulted were not submitted with the Report. Some journalistic accounts are footnoted as sources.

There are very many instances in the Report in which strong allegations and statements are made with no sources to substantiate the findings. For example,  the Report says the Government unlawfully shelled civilians in the first No-Fire Zone, but not a single source is given. (paragraphs 80-89)  For the shelling of PTK hospital, some sources are provided ,but no evidence  as to who was responsible. (paragraphs 90-96) Attack on Putumattalan hospital only a single source – an ICRC news release – is footnoted.  This cannot be considered primary evidence.

the Panel attaches some examples of satellite imagery and diagrams of SLA artillery positions  pointing at the NFZs. No expert report or evidence is provided with this material to explain its value and relevance. The diagrams do not show or confirm any artillery fire. International  tribunals now do not consider “Impact Analysis” being critical in determining whether an attack was unlawful. The Darusman Report, however,  focuses only on the impact of the shelling.

Nice and Dixon     say that 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. It is well-established under international law that military objects may be targeted and that an attack which causes loss of civilian life may be justified if it is not excessive in relation to the concrete and direct military advantage anticipated.

They say that it is not clear on what basis the Panel makes conclusions about the responsibility of the Government for the civilian deaths that occurred, The assertion is simply made repeatedly in the Report that the Government forces indiscriminately killed civilians, No attempt is made in the Report to assess the extent of the LTTE’s targeting of the NFZs

Similarly, the allegations about there being a policy to target, torture, and execute LTTE and other persons after the conflict are made as statements of fact without a body of clearly identifiable primary evidence, including witness statements, to back them up. The Panel’s approach also assumes that the persons killed, whatever the number, were in fact civilians as opposed to persons who had taken up arms voluntarily or under compulsion on the side of the LTTE. ( continued)