By Dr. Chandana Jayalath

At the outset, the decision to appoint a panel is clearly a violation of the authority under which the Secretary-General of the UN is expected to function under Article 100, Clause 1 of the UN Charter. The Article 100 stipulates that in the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. However being fundamentally in breach of this Article, the UN Secretary General has acted ultraviors. Therefore, the Darusman Report is NOT an official UN Report sanctioned by the UNƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Security Council, instead, it is a composition written in a report form by a group of persons interested in Sri Lankan politics on a historical reason.

Marzuki Darusman was a member of the International Independent Group of Eminent Persons (IIEGP) who skipped from the IIGEP observation role with effect from April 1, 2008. Irrespective of the grounds behind resignation, a reciprocal ethical obligation arises as to why the penal members failed to disclose any interest or relationship likely to create an appearance of partiality or bias. The member, Steven Ratner who is an adviser to the Human Rights Watch (HRW) has been very critical of Sri Lanka from the beginning of the Ealam dream. Yasmin Sooka is also a figurehead responsible for the resolution that was brought against Sri Lanka before the UNHRC in May 2009. Therefore, the purpose of appointing a penal of three members having peculiar interests against the Sri Lankan government is obvious. A preconceived anti Sri Lankan government mindset has not only led to the conclusions that are one sided, but also prejudices the primary purpose of the UN to maintain international peace and develop friendly relations among nations.

The ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”reportƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ with shot listed events that are jotted down hither and thither has been found to be inclined towards the interests of the economic Tamil migrants in the Europe and Canada. Basically, the panel knew one thing, that is, the fallacy of incomplete evidence – the act of pointing to individual cases that seem to confirm a particular position, while ignoring a significant portion of related cases that may contradict that position. The author wishes to quote this act of ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”cherry pickingƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ should arise a serious ethical consideration within the premises of the United Nations if it can be found the panel committed it intentionally bring internationally the ha-ho on the credibility of the UN as an organization, thus demanding an Alternate UN. More particularly with the selective use of evidence from sources that the panel unilaterally consider reliable leading to materials altogether favourable to their own arguments causes a dilemma as to its own credibility.

If the panelƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s mandate as stated in the report is to advise the Secretary-General of the UN regarding the modalities, it should have taken a serious study on all and everything instead of ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”splitting the babyƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ in terms of outrages at the last lap. The question of why has the panel focused only on the last five months of a 30 years bloodshed that resulted in over 100,000 killings is an oxymoron. The report had no answer for the circumstances that made them limit their own remit, although it is clear to the world at large.

What has been ignored in the report outweigh than what is given. For instance, there were 11 ship loads of weapons smuggled in through the east coast via Mullaithivu for the Tamil Tigers during the Ceasefire Period between February 2002 and January 2008, all used to kill innocent unarmed Tamil civilians. Amongst the known circumstances are the international crackdown on the funding for the Tamil Tigers, started with the September 11th, where the government took control of the entire area previously controlled by the Tamil Tigers, including Kilinochchi, Mullaitivu and the A9 highway leading the LTTE to finally admit its defeat on May 17, 2009. This victory essentially forms part of the victory of the global effort to curb terrorism that was unequivocally announced across the globe with the incident on September 11th. It is also known that the tactics employed by the LTTE resulted in their being branded as a terrorist organization in 32 countries, including the United States, India, Australia, Canada and the member nations of the European Union. After three decades of fighting and four failed attempts at peace talks, including the unsuccessful deployment of the Indian Army, the Indian Peace Keeping Force from 1987 to 1990, a lasting negotiated settlement to the conflict appeared impossible when a cease-fire that was declared in December 2001 violated by the LTTE over 10,000 times. Without understanding the historical background and the seriousness of the purpose, the panel has chosen a period loosely and unaccountably. The panel must have been prudent enough to believe in the context of falling period of Prabakaran who was running short of everything including his human shield that amounted to any damn thing that he could do for his own survival at the brink of his grave, what launched by the Sri Lankan government at the latter part of the war was not necessarily a war against terror but a rescue operation that deserves its own merit. ƒÆ’-¡ƒ”š‚ 

One time it was George W Bush who asked the entire world to rally round for anti terrorism. Quoting part of his speech ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Thousands of lives were suddenly ended by evil, despicable acts of terror. The pictures of airplanes flying into buildings, fires burning, huge — huge structures collapsing have filled us with disbelief, terrible sadness, and a quiet, unyielding anger. We will make no distinction between the terrorists who committed these acts and those who harbor them. America and our friends and allies join with all those who want peace and security in the world, and we stand together to win the war against terrorismƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. This was only when US lost four aircrafts while Sri Lanka had already lost 2 helicopters 2 fighter jets and 2 airbuses in addition to damages to 12 fighter jets and 3 air buses. With this saga, it should be noted that Sri Lanka is the first country in the modern world to eradicate terrorism on its own soil, thus bringing the ever best example to the UN forces on how to answer terrorists in a language understandable to them.

The next point is that the panel says it undertook an assessment of the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-nature and scope of alleged violationsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ as required by its Terms of Reference to satisfy a ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”joint commitmentƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢, which is not defined in precise terms. If the purpose of the panel is to advice the Secretary-General on the modalities, to fulfil the so-called ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”jointƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ commitment to an accountability process, then initiatives of ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”accountability processƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ should come from the local context. Further, any effort into understanding into the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”nature and scopeƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ of alleged violations should have been more technical in nature than ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”narrating storiesƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ and unsubstantiated information. If the panelƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s mandate does not extend to fact-finding or investigation, a doubt exists as to how the panel characterized the extent of the allegations, in order to establish credibility whenever the panel had no authenticated contemporary records other than hearsay evidence and informal information.ƒÆ’-¡ƒ”š‚  It further goes on to say that an allegation is deemed to be credible if there was a reasonable basis for the panel to believe that the underlying act or event occurred and that ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”standardƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ gives rise to a legal responsibility for the State or other actors to respond.ƒÆ’-¡ƒ”š‚  Allegations are considered as credible in this report only when based on primary sources that the panel deemed relevant and trustworthy. So, it is panelƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s infinite sovereignty to decide relevance and genuineness of information.

The panel also worries about the tactics employed by Sri Lankan armies at the later part of the rescue. It says between September 2008 and 19 May 2009, the Sri Lanka Army advanced its military campaign into the Vanni using large-scale and widespread shelling in three consecutive No-Fire Zones, where it had encouraged the civilian population to concentrate. It shelled the United Nations hub, food distribution lines and near the International Committee of the Red Cross (ICRC) ships that were coming to pick up the wounded and their relatives from the beaches. More blatantly it says the government ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”systematicallyƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ shelled hospitals on the frontlines and ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”allƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ hospitals in the Vanni were hit by mortars and artillery; some of them were hit ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”repeatedlyƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ despite the fact that their locations were well-known to the Government. The Government also systematically ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”deprivedƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ people in the conflict zone of humanitarian aid, in the form of food and medical supplies, particularly surgical supplies, adding to their suffering. It has to be admitted without an iota of reluctance that the aforementioned had no justifications in the report.

Also, the panel has attempted its level best to show their balance in quoting violations in a smart way by fingering at not only LTTE and Sri Lankan government but also the UN staff on board for failing to speak out forcefully enough on civilian casualties during the fighting. The panel says if these ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”credible allegationsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ are proven, some of which would amount to war crimes and crimes against humanity. The author wishes to reiterate that the indictments are false. Is this Killing of civilians or Denial of humanitarian assistance? The thing itself speaks.

ƒÆ’-¡ƒ”š‚ The lady behind this epic at UN, Navi Pillay, the UN High Commissioner for Human Rights, is an Indian Tamil descent always to do a jolly good job in human rights. She said, “The way this conflict was conducted, under the guise of fighting terrorism, challenged the very foundations of the rules of war and cost the lives of tens of thousands of civiliansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. In the wake of the killing of Osama bin Laden by U.S. Navy Seals Special Forces in Pakistan in May, 2011, it was Navy Pillay who called for more details about the action. Pillay’s request “came even as the world body continues to falter over its multi-year bid to define terrorism and also contradicted the position held by UN Secretary General, who described the U.S. action as a ‘watershed moment in our common global fight against terrorismƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢. This is her ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”jobƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢!

The report also says reflecting the panelƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s approach to vindicate the historical basis of their allegations that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-By the 1970ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s, young Sinhalese from the South, disillusioned by exclusion on class grounds, on the one hand, and young Tamils from the North, disillusioned by exclusion on ethnic grounds, on the other, reacted separately to the emerging State, turning to militancy and launching armed revolts against the State.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ What is distorting in this interpretation is that then the governments used usurped power to eliminate ideologies using state violence against rebels operating on fair footage. The report also says, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The State treated these movements primarily as a threat to national security, rather than addressing the underlying political issues, meeting challenges to state power with repression, including disappearances, unlawful killings and torture.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ Ironically the sentence has a footnote to four commissions appointed by the said State itself to investigate these violations. It is natural to address violence through violent means and particularly when a State is challenged through extreme violence, the State would treat these ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”revoltsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ as threat to national security. It would have been better, therefore, for the panel, if they did their part without undertaking an incomplete political analysis.

There is no question that the panel has tried its best to balance between the Government and the LTTE in respect of reporting the alleged violations. However, most of the allegations appear to have come from the LTTE supportive sections and hence the balance is compromised. According to the panel, there are ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-six core categories of potential serious violationsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ on the part of the LTTE, but all ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-associated with the final stages of the war.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ In the case of the government, the panel has categorized even ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-human rights violations outside the conflict zone, including against the media and other critics of the Government.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ This is obviously beyond the mandate ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” what they have been asked for ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” a fundamental defect in their approach. The white van episode is another side of the same token to show alleged brutality adopted by the Sri Lankan government. It says that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-A potent symbol of these operations was the ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”white vansƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ that were used to abduct and often disappear critics of the Government or those suspected of links with the LTTE, and more generally, to instil fear in the population. After stating, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-An elite unit within the Special Task Force (STF) of the police is implicated in running these operations,ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ the report says, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-those abducted were removed to secret locations, interrogated and tortured in a variety of ways, including through beatings, forced nudity, suffocation with plastic bags, partial drowning, extraction of finger or toe nails, or administration of electric shocks,ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ as if clear evidence were obtained to make these accusations. Such a serious allegation must essentially deserve valid proofs. The ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”denial of humanitarian assistanceƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ being another category of violation is only a fable without much substance, except that there could have been serious logistical difficulties apart from sabotage and plunder by the LTTE of food, clothing, medicine and other amenities sent by the government to the civilians during the last stages of the war. The panel themselves admit that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-these accounts should not be taken as proven facts.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

The panel says it applied the rules of international humanitarian and human rights law to the credible allegations involving both of the primary actors in the war, that is, the Liberation Tigers of Tamil Eelam (LTTE) and the Government of Sri Lanka. It says ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢neither the publicly expressed aims of each side (combating terrorism, in the case of the Government, and fighting for a separate homeland, in the case of the LTTE), nor the asymmetrical nature of the tactics employed affects the applicability of international humanitarian and human rights lawƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. Although it tries to show middle position that they are feeding both with the same spoon, the glaring anomaly is to cloud their bias by fingering at LTTE and there is no one to come forward. Fundamentally, the panel must admit that LTTE has been in the list of designated terrorist organizations by national governments, former governments and inter-governmental organizations, where the proscription had a significant impact on the group’s activities. It is natural for many organizations that are accused of being a terrorist organization to deny using terrorism as a military tactic to achieve their goals, and definitely hide behind the lack of international consensus on the legal definition of terrorism. However, the panel with no shame advertently and with no definite parameters in relation to application of the human rights law, has attempted to promote the idea of applicability in all grounds.

The phrase ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-the war in Sri Lanka ended tragically, amidst controversyƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ is controversial. Many Sri Lankans and others around the world were relieved that the Liberation Tigers of Tamil Eelam (LTTE), renowned for its brutality, was defeated and that 30 years of armed conflict had come to an end. It ended tragically because the conflict could not be ended peacefully; a matter the report has not addressed. Needless to say a conflict that ends in defeating one party causes immense death and destruction in addition to the death and destruction by the perpetuation of the conflict itself. Equally true is the fact that any armed force might use maximum force to defeat an organization like the LTTE, whatever the pretensions to be ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”humanitarian.ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ What was ignored the LTTEƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s brutality is comparable with none of the terrorist organizations. Therefore, it is nothing strange to see that tactics are changing throughout the final combat. It is therefore sensible to be extremely nervous of an international intervention, like the Indian intervention last time in 1987, which was perhaps the biggest hope even on the part of the LTTE and their supporters. Boasted of an all-round military force ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” Tigers (infantry), Sea Tigers (sea wing) and Air Tigers (Air Wing), The Federal Bureau of Investigation (FBI), in its January 10, 2008 report, had said that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-LTTE is one of the most dangerous and deadly extremist outfits in the world and the world should be concerned about the outfit as they had ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”inspiredƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ networks worldwide, including the al-Qaeda in IraqƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. The panel has blatantly evaded the level of military strategies to deal with combating this Specially Designated Global Terror.

It is good that at least the panel accepted that the LTTE refused civilians permission to leave, using them as hostages, at times even using their presence as a strategic human buffer between themselves and the advancing Sri Lanka Army and with the policy of forced recruitment of all ages, including children as young as fourteen. Point-blank shooting of civilians who attempted to escape the conflict zone, significantly added to the death toll in the final stages. This was evidenced by a group of Ambassadors resident in Colombo, also. If the panel also accepts that LTTE fired artillery in proximity to large groups of internally displaced persons (IDPs) and fired from, or stored military equipment near, IDPs or civilian installations such as hospitals, then definitely it would be the immediate cause of death of their own community. If throughout the final stages, the LTTE continued its policy of suicide attacks outside the conflict zone and even though its ability to perpetrate such attacks was diminished compared to previous phases of the conflict, and if it perpetrated a number of attacks against civilians outside the conflict zone, there is no point of arguing on the death toll. It should also be reminded that there were ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”MahaviruƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ families who did not want to get themselves vacated when the Government made an open invitation well before any military infiltration.ƒÆ’-¡ƒ”š‚ 

The author wishes to emphasize that the barbaric practice of terrorismƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬‚deliberately threatening or harming innocent unarmed civilians to achieve political, ideological, or material gainƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬‚must be abolished through the concerted efforts of all peaceful nations. Organizations such as LTTE had established a worldwide network of operatives, with links to other terrorist organizations to provide mutual support and assistance. This network has developed links with organized crime, drug trafficking, state sponsors, and companies and corporations sympathetic to its causes. Therefore, the fight against terrorism requires a multidimensional approach aimed at the entire spectrum of terrorism. It was the National War College report that emphasized a concerted effort at the global, regional, and sovereign-state level, to eradicate terrorism through offensive action, taking the fight directly to terrorist organizations, building capabilities and policies that deter future acts of terrorism, and by attacking their centres of gravity that includes seeding and breading ideology, finances, command and control network, and sanctuaries. While it is unrealistic to hope to eliminate every single terrorist who possesses the desire to threaten innocent individuals, it is possible to eliminate the synergy created by cooperation of disparate terrorist organizations. The panel must understand that full engagement of law enforcement mechanisms is possible only such efforts reduce the operational scope and capabilities of global and regional terrorists to the point that they become threats only at the individual level to prosecute under Penal Codes. The Prevention of Terrorism Act of 1978 is therefore a law in Sri Lanka that provides the police with broad powers to search, arrest, and detain suspects, that potentially served in the best interest of the majority of peace urging people of Sri Lanka.

Recalling the history, many diplomats and analysts believed that the war against terrorism should have been commenced when Foreign Minister Lakshman Kadirgamar was assassinated. The level of patience of the government exceeded only when the LTTE made an aborted attempt to take the life of Army Commander General Sarath Fonseka on April 25, 2006 inside the Army Headquarters. Again with the closure of the Mavil Aru anicut, and the massacre in Kebithigollewa, the attempts to attack unarmed troops carrying vessels Green Ocean and Jet Liner, the incident at Digampatana were all enough why the Government had to respond militarily. These facts have been conveniently forgotten by the critics who so harshly criticize Sri Lankan government, for its militaristic approach to tame the LTTE.

However, unlike in some other parts of the world, there was no outflow of refugees from Sri Lanka. Some thousands of ex-LTTE combatants, mostly child-soldiers, have been reintegrated into society. Demining projects as well as large scale road rehabilitation and electrification projects are on-going. There can be no argument that terror in all its manifestations must be fought relentlessly and globally. Gone are the days that Sri Lanka came under terror. Under circumstances, the motivation behind the report is quite clear; to create division among Sinhalese and Tamils, to defeat the HE the President and defeat Sri Lanka emerging as a main power in the South East Asian region. In nutshell, there is no clear scientific, objective, credible or legal basis for the report. The inclusion of disheartening photographs in the body of the report shows the sensational nature of the report. More particularly, the images of artillery battery locations indicating fire ranges are completely wrong because no artillery can operate by projection of munitions lesser than the range of effect of personal weapons. Thus it does not make sense to give credence to such an anti-Sri Lankan report. It appears the whole effort to be a waste of Secretary-GeneralƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”unforeseen budget.ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ It is simply sensational perhaps arousing Tamil Diaspora.