H. L. D. Mahindapala

ƒÆ’-¡ƒ”š‚ The chain of events that finally forced Ban Ki-Moon to get involved directly in the Sri Lankan conflict and appoint arbitrarily a three-man panel, without the authority of the UN, constitutes an intriguing saga in itself. Almost immediately after the war the West was maneuvering at the United Nations Human Rights Council (UNHRC) in Geneva and UN in New York to get either or both to condemn Sri Lanka for fighting the war to a finish instead of calling for another ceasefire which would have resulted in giving cornered Velupillai Prabhakaran another lease of life. Another ceasefire would have inevitably taken the nation back to another bloody stalemate causing more deaths and violations of human rights on both sides.

ƒÆ’-¡ƒ”š‚ The post-war gains have proved that the West, with their misguided interventions, failed to grasp the ground realities. Anyway, their moves to condemn Sri Lanka collapsed in Geneva with Ambassador Dayan Jayatilleka leading the battle against the West. It was also a stunning blow to the Tamil lobby which was maneuvering internationally to nail Sri Lankan leaders as war criminals. The shock was unexpected. It even provoked Radhika Coomaraswamy, the UN Under Secretary-General for Children at War, to brand DayanƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s speech as ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-obnoxiousƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

ƒÆ’-¡ƒ”š‚ The defeated West then shifted their maneuvers to the UN. They worked behind the scenes to bring up the Sri Lankan issue in the Security Council. In his quiet way, Ambassador H. M.G. S. Palihakkara deftly shifted the issue to an unofficial meeting in the basement which deflated and deflected any serious impact.

ƒÆ’-¡ƒ”š‚ Faced with defeats in the two key international fora the West took the backdoor entrance to Ban Ki-Moon and pushed him to appoint a three-man inquiry into the last days of the war in Sri Lanka, The contents of the report was predictable. It was going to be an anti-Sri Lankan rigmarole which was not going to helpful to the UN, the war victims or for peace and reconciliation in Sri Lanka. Besides, investigating the last days of a 33-year-old war was not only sinister but absolutely absurd. Why only the last days and not the years before?

ƒÆ’-¡ƒ”š‚ This narrow approach would necessarily exclude the historical origins, the underlying socio-political causes, the external and internal forces that engineered Tamil violence and the grass root dynamics of peninsular politics which are vital requirements to pass judgment on the last days. For instance the Vadukoddai War was a military solution chosen deliberately by the Jaffna Tamils to achieve their separate state. The Vadukoddai War came out of the Vadukoddai Resolution passed on May 14, 1976 by the Jaffna leadership that met in Vadukoddai. It was a war which even international community could not end with their negotiated settlements. But when the Sri Lankan government finally decided that enough was enough and fought to a finish ending a 33-year-old war ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” the longest running war in Asia ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” the West, NGOs and the Tamil lobby raised moral issues which have not been applied by any other power in ending their wars.

ƒÆ’-¡ƒ”š‚ The whole issue was about last few months (from September 2008 to May -2009) and not the 32+ years that went before. The West was most vociferous about the last stages of the war despite the fact that they ended their wars by dropping atom bombs in Hiroshima (140,000 civilians dead in one hit) and Nagasaki (80,000). These are the moralists who are now accusing Sri Lanka of ending the war on figures ranging from 1,500 to 50,000 deaths. (More of this later.) Besides, they have stockpiled in their armoury WMDs explosive enough to pulverize the earth ten times over. They are not keeping those WMDs to decorate their front or back gardens. They are there to flatten their enemies, civilians, children, women et al if they canƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t win through conventional warfare on the ground. So what moral authority have they to accuse Sri Lanka of not ending the war according to their dictates?

ƒÆ’-¡ƒ”š‚ Predictably, the pro-Tamil lobby in the NGOs and the TNA, who were the servile lackeys of Velupillai Prabhakaran, are delighted because they think they got what they wanted by the three men who used remote control mechanisms to fill their report with their preconceived judgments on Sri Lanka from New York. The Panelists dared to pass strictures on the LLRC which, unlike them, are conducting investigations with their nose to ground. MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Panelists criticizing their parallel investigators, with access to direct evidence at home. is not surprising. That, however, is irrelevant. What is clear from the local and foreign reactions is that MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s report is not going anywhere.

ƒÆ’-¡ƒ”š‚ First, Russia has already signaled that MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s report will not reach the Security Council. Moon took this decision on his own without the approval of the UN, according to the Russian Ambassador in Colombo. Mr Vladimir P. Mikhaylor. He has argued at a press conference in Colombo that the report is a private one produced at the request of Moon and not the UN. This statement of a veto-wielding power at the Security Council gives a knockout blow to MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s arrogant decision to go it alone without the backing of the UN or Security Council. So MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s report is destined to gather dust in some corner of the UN. Amen, to that.

ƒÆ’-¡ƒ”š‚ Second, it produced a positive reaction at home. The UNP and the JVP reacted instantly to attack the report. These two main opposition parties are calling a for united front to defend the sovereignty of the nation from needless interference of intruders from the UN, which, in any case, is accused of being a party to crimes it mentions.

ƒÆ’-¡ƒ”š‚ This brings me to the third and most important point. The report admits that the UN is guilty of failing to protect civilians. I quote: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-During the final stages of the war, the United Nations political organs and bodies failed to take actions that might have protected civilians.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ Failing to take action to protect civilians is also the charge against Sri Lanka. So arenƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t both parties guilty of the same crime? There are differences in some aspects but ultimately the charge boils down to failing to take action to protect civilians. IsnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t this an open admission of the abysmal failure of Moon and his officers to uphold international humanitarian law (IHL)? This places Moon in heaps of trouble. How can Moon, for instance, turn round and ask for explanations from Sri Lanka when he has to first answer for his failure to give protection to the civilians? Can he tell the world why he ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-failed to take action that might have protected civiliansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚? This leads to conclude that Moon, the CEO of the UN, has failed to honour his legal obligations. Clearly, as CEO who is responsible for the actions of his officers, he stands accused as a war criminal who failed to take action to protect civilians. How is he going to get out of this when his own report accuses him failing to protect civilians.

ƒÆ’-¡ƒ”š‚ Besides, UN claims to be the superior moral and legal authority assigned to uphold IHL. If the report of the men appointed by the Secretary-General admit that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-the United Nations political organs and bodies (headed by Moon) have a failed to take actions that might have protected civiliansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ then Moon and his men in the field have to answer for their failure. Moon must first tell the UN what he proposes to do about the war crimes committed by his own men operating under his command before coming down to Sri Lanka. He may use this report to (a) make recommendations to the Security Council or (b) to rake up the issue again in UNHRC in Geneva, as recommended by the Panel. Before doing that, will he also make recommendations to take action against himself, his officers and ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-political organs and bodiesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ of the UN who are responsible for ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-failing to take action that might have protected civiliansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚?

ƒÆ’-¡ƒ”š‚ MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s is now faced with a boomerang coming straight back at his head. He appointed three-mean to demonize Sri Lanka but the report has ended up accusing MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-political organs and bodies failing to take actions that might have protected civilians.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ This accusation against Moon questions his own integrity, competency and authority to protect and preserve human rights globally. More than Sri Lanka there is an urgent need to save the world from Moon and his men in the field because they are guilty of failing to protect civilians in conflict zones. MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s man in Colombo Gordon Weiss has written an article in The Australian (April 23, 2011) quoting from the report that the cover-up by he government constitutes ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-an assault on the entire system of international law and securityƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. Since Gordon Weiss was the man in the field responsible for monitoring and reporting back to the UN isnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t he and Moon both guilty of being an integral part ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-an assault on the entire system of international law and securityƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. I have e-mailed him raising some of these issues with him and I am awaiting a reply. Hope he replies.

ƒÆ’-¡ƒ”š‚ The foregoing was written not to deny that some collateral damage did occur in the last stages of the war. It is a fact that despite declaring No-Fire Zones some civilians were killed in the intensification of the war to immobilize ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-the deadliest terrorists in the worldƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚(FBI report) banned by the international community. This was inevitable not because the Security Forces targeted civilians deliberately but because the Tamil Tigers knowingly used Tamil civilians as a human buffer (1) to give themselves protective cover and (2) to win international sympathy by deliberately provoking the Sri Lanka forces to target the civilians. This is confirmed by the UN report which states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The final stages of the war reveal six core categories of potential serious violations (by the LTTE): i) using civilians as a human buffer; (ii) killing civilians attempting to flee LTTE control; (iii) using military equipment in the proximity of civiliansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ etc.

ƒÆ’-¡ƒ”š‚ All three moves were deliberately designed to turn the No fire Zone into a War Zone. Faced with this grim reality the only way to save the Tamil civilians was to breakthrough the human buffer set up as a defence line to protect Prabhakaran. This was not a kamikaze force of volunteers freely sacrificing their lives for a cause. No. Prabhakaran was forcibly throwing other parentsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ children into the frontline for the protection and survival of his fascist regime. The Tiger tactic was to lock in Tamil civilians inside a No Fire Zone which they deliberately turned into a War Zone by firing at the Security Forces knowing that the return fire would hit the civilians.

ƒÆ’-¡ƒ”š‚ By definition a No Fire Zone is a non-violent domain where fire does not move either way. Fire does not go into the No Fire Zone nor does fire come out of it. But if fire comes out of it deliberately provoking defensive and retaliatory fire to come into it then it is no longer a No Fire Zone. Besides, soldiers have reason to believe that no fire would come at them from a No Fire Zone. In a No Fire Zone soldiers are entitled to the same protection as the civilians. But if the No Fire Zone turns into a War Zone arenƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t they entitled to protect themselves with least harm to civilians as in any other conflict zone? The rules apply to a zone that does not fire at the soldiers and the civilians. But if one party breaks the rules and fire at the other it ceases to be a No Fire Zone and the soldiers have a right to protect themselves and the civilians by firing at the Tamil Tigers.

ƒÆ’-¡ƒ”š‚ Then it is the provocateurs who are guilty of turning it into a War Zone. Under these circumstances can there be a justification to accuse the Security Forces as war criminals for targeting Tigers hiding being a civilian human shield? Returning fire to stop provocative fire coming out of a No Fire Zone, even though it would cause collateral damage, cannot be reasonably classified as a war crime. In any case, holding fire at this critical stage was not going to save the civilians because the human buffer will be used in another place at another time to gain the advantage over an advancing army.

ƒÆ’-¡ƒ”š‚ What is more, the civilians were held hostage and given no option by the Tigers to escape. They face instant execution from their captors if they tried to escape. No doubt the civilians have been the meat in the sandwich. It is at this point the role of the UN officers in the zone comes into question. What were the UN field officers doing when they knew that Prabhakaran was deliberately and maliciously turning the No Fire Zone into a War Zone? What action did they take to prevent civilians being sacrificed by the tactics of Prabhakaran? The war crime was in turning a No Fire Zone into a War Zone by firing at targets from inside the No Fire Zone, knowing that retaliatory and defensive fire would hit the civilians. So the intention to get civilians killed was there primarily in the Tiger tactic. But the primary intention of the retaliatory firing was to target the Tamil Tigers and any damage done to civilians was collateral. Therefore, it is the Tamil Tigers who are responsible for getting the civilians killed and not the Security Forces. No one is guaranteed protection in a War Zone and the Tamil Tigers must take full responsibility for the inevitable consequences of turning a No Fire Zone into a War Zone.

ƒÆ’-¡ƒ”š‚ In any case, the firing of the Security Forces at the Tamil Tigers cannot ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” and should not — be judged purely on the collateral damage, if it did take place at all on the scale stated by the Panelists and others. It should be judged on two counts: 1) was the intention to deliberately violate the rules of the No Fire Zone and kill the civilians and 2) even if that was the intention did it serve a greater cause of saving 300,000 civilians? In other words, was the firing to target civilians intentionally or to target the Tigers which would ultimately save a greater number of lives and restore peace and order?

ƒÆ’-¡ƒ”š‚ Morally speaking, there wasnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t much of a choice when Prabhakaran was cornered in the battlefield in Mullivaikaal. The choice was either to go for the lesser evil or to hide behind evil / counter-productive doctrines that would perpetuate a greater blood bath by letting Prabhakaran off the hook.? The countless lives saved in ending the war swiftly in Mullivaaikal and the post-war benefits to all communities confirm that the only moral choice was to go relentlessly at the Tamil Tigers who were holding 300,000 Tamil civilians. It is the principle pronounced in the Bhagavad Gita: DO YOUR DUTY. And the duty in Mullivaikaal was to destroy the evil force of Prabhakaran and his followers.

ƒÆ’-¡ƒ”š‚ Undoubtedly, as stated earlier, some Tamil civilians would have been victims of the firing of the Security Forces. But the overall result was the freeing of 300,000 Tamil civilians. What is wrong with that when prolonging the war would have meant extending the life span of Prabhakaran without any redemption and the adding to the escalating death toll? The violations of IHL would have been incalculable if Prabhakaran was allowed to escape. The alternative would have been to let the 300,000 be used as a human buffer for the protection of Prabhakaran as long as he lived. MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Panelists instead of commending the soldiers for freeing 300,000 Tamils from the clutches of Prabhakaran blames the Security Forces who were forced to defend themselves and the Tamil civilians by returning fire coming from the No Fire Zone. This is not stupidity. This is not ignorance. This is pure vindictive prejudice aimed at writing a script to put Sri Lanka on the dock.

ƒÆ’-¡ƒ”š‚ This also leads to the role of the UN. As stated in MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s report the duty of ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-the United Nations political organs and bodies (was) to take actions that might have protected civiliansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ If the Security Forces are accused of ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-failing to take actions that might have protected civiliansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ then that war crime must be shared equally by ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-the United Nations political organs and bodies (that) failed to take actions that might have protected civilians.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ The ultimate responsibility of running the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-United Nations political organs and bodiesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ lies with the Secretary-General. In the chain of command he is responsible for all acts of commission and omission. If he decides to make recommendation on the report of the Panelists then he too must face the same music. He too must recommend unequivocally that the stricture, punishments and any other action he proposes against Sri Lanka must also apply to him for his ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-failing to take actions that might have protected civilians.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

ƒÆ’-¡ƒ”š‚ The action and the recommendations he makes on the basis of the report will be a test of his integrity. If Sri Lanka is to be hauled before a court then he must also recommend that he too be tried for his failures. So if any charges are to be leveled against Sri Lanka then the Sri Lankans and Moon will have to stand in the same dock, facing the same charges and the same judges. However, if one accepts the admission of the UNƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s failure to protect civilians when they could have taken action, as stated by the Panelists, then it can be argued that Sri Lanka is plainly a victim of the UN bungling. The final responsibility falls on the UN as the superior authority in upholding IHL. Consequently, Sri Lanka stands as a curious case of the UN war criminals accusing the victims for the failure of the accusers to do their duty.

ƒÆ’-¡ƒ”š‚ The report, incidentally, does not recommend any action against the UN for its culpability, criminality, negligence and incompetence. But the Panelists arrive at the conclusion that at the last stages ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-tens of thousandsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ were killed (more of this later). Then isnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t the UN too guilty of the war crimes of killing ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-tens of thousandsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚? If that is the accepted figure what the hell was UN doing when ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-tens of thousandsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ were being killed? Since the PanelƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s figure runs into ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-tens of thousandsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ isnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t Moon now obliged to hold another inquiry into the role of the UN in the last stages of the war? Or will he back off now that he is also on a possible list of war criminals?

ƒÆ’-¡ƒ”š‚ An inquiry into the role of the UN officers is necessary because the figures quoted by the UN are critical to assess war crimes. In the last analysis, the enormity of war crimes depends on the figures. For instance, when Gordon Weiss was the UN representative in Sri Lanka, he went on record saying that 7,000 civilians died. This became the official figure of the UN though MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s spokeswoman in New York , Ms. Michelle Monas, in a press interview with Mathew R. Lee, admitted that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-there was no way of knowing what the exact figure is.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ She added: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-We donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t have an overall exact count. We donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t have an overall evaluation. We have no way of knowing what the exact count is.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚(UN Webcast: www.un.org webcast).

ƒÆ’-¡ƒ”š‚ Nevertheless, after Weiss left the UN and went back to his home in Australia he jacked up the figure to 40,000. Will Moon ask for an explanation from Weiss as to how the figures jumped up exponentially within a matter of days? And who counted the bodies for Weiss? Besides, if action is to be taken against Sri Lanka are we to take the UN figure of 7,000, or PanelsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ figure of ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-tens of thousandsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚, or WeissƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s revised figure of 40,000? Or go higher and take the figure of 50,000 quoted by Prof. Francis A. Boyle of Illinois University Chicago, who is ever ready to concoct legal arguments and fictitious figures to back up the Tamil Tiger agents in America.

ƒÆ’-¡ƒ”š‚ The AchillesƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ heel of the UN report is in the figures. When it speaks of ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-ten of thousandsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ can the Panelists tell us how many tens of thousands are in it? Two? Five? Fifty? Or is it going to be like the recurring decimal running into eternity? Whatever the figure Moon is also responsible for it because his officers failed the escalation of figures. It is MoonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s knee-jerk reaction to appoint a panel of his own that is now pointing a finger at him as a war criminal. Now he must face the consequences or scrap his own report as a load of rubbish.