Q and A: Godfrey Gunatilleke meets Darshanie Ratnawalli
In contrast with the standard Q and A sessions, the series here is marked by in-depth reading of weighty documents and incisive questions with their own political agenda. Indeed, the questions were so combative that at one point Gunatilleke told Ratnawalli: “I must say I find your ad hominem questions a little amusing. This is what you call argument by exclamation.” Be that as it may, this series provides absorbing reading in relation to several momentous issues facing concerned Sri Lankans everywhere. The exchanges are long however and demand patience. To say “enjoy” at this point is misleading. Prepare for the benefit derived from the hard yards of a cross-country run. Emphases within the text are my insertions.Michael Roberts
Conversations with Godfrey Gunatilleke – Part 1: “Cautious Optimism about the OHCHR Report and the Resolution”
Darshanie Ratnawalli, courtesy of Sunday Island, 10 October 2015
Dr. Godfrey Gunatilleke will perhaps go down in history as spearheading the first comprehensive review of the Darusman Panel report. The Marga Institute under his leadership brought together its own panel of experts to dissect the performance of the panel appointed by the UN Secretary General at a time when it was thought presumptuous by many to aspire to criticize a UN panel. Over time, as the Marga report made its slow inroads into rational minds, the UN panel grew smaller and the Marga panel grew bigger in many eyes – Sri Lankan and international. They consolidated their gains in 2014 by partnering the Consortium of Humanitarian Agencies to present an alternate narrative of the events of the last stages of the war in Sri Lanka that had been left out of the dominant international discourse. How much of that alternate narrative does the recent OHCHR report incorporate? Sunday Island met Dr. Godfrey Gunatilleke to inquire.
Q- What’s your overall impression of the OHCHR report?
Ans- It is significantly different from the Darusman report. It is presented with greater legal rigor and restraint. I’d say it was a report we could live with after making reservations regarding its gaps and deficiencies arising from the process which mandated it. From the beginning the report makes it clear that it is an investigation into violations of human rights, distinguishing it from an inquiry into war crimes. It tries to set a higher standard for reporting on the evidence it has gathered.
While the Darusman report listed the allegations against both the LTTE and the government it never saw the connection between the two and it did not describe the battle as being a process where the LTTE provoked the artillery fire by the army into the NFZ. But all of that comes out more clearly in this report. The narration of the final stages is much more objective than in the Darusman report.
Q- What do you think about the foreign minister’s statement that this is a balanced and impartial report?
Ans- I would agree that it is balanced. But it has many gaps. It is partial and incomplete to the extent that it did not have access to evidence from the government and the army and witnesses in Sri Lanka. One cannot say that the chapters on rape and sexual violence are balanced and impartial. They are based on the testimony of 48 victims who were LTTE suspects tortured during interrogation for the purpose of extracting information. The conclusions drawn go far beyond what is borne out by the testimony. They try to make out that torture and rape were systematic and widespread and directed at the civilian population.
Then, take this whole issue of collateral damage. The investigators had no opportunity to obtain any evidence from the military regarding the strategy and mode of fighting adopted in the last stages of the war. Yet the report doesn’t state clearly that they are constrained by the lack of that evidence. It doesn’t say “this is our evidence, it must be matched and examined with the evidence of the military, but we do not have it.”
However on the whole the report avoids the strident accusatory tone and language of the Darusman report. The sweeping allegations of genocide and extermination, of a war strategy designed by government to trap and kill a large number of Tamil non-combatants, wildly speculative estimates of numbers killed, all these are dropped.
Q- One of the allegations you directed against the Darusman report in your Narrative III was that they disregarded the facts that do not agree with a preconceived narrative. Can the same be said against this report?
Ans – I don’t think so. I didn’t find that in the report.
Q- No? What about its failure to mention that as late as May 2009, the World Food Programme who was a major international partner in the humanitarian relief distribution effort to the conflict zone, held the view that there was no food shortage whatsoever. The OHCHR report makes the same allegation as Darusman’s against the GOSL, of deliberately underestimating the number of civilians in the conflict zone during the last stages of the war, in order to deny them humanitarian relief. One gets the impression that they refrain from mentioning the WFP position because it goes against a preconceived narrative. As you noted in your Narrative III, in a statement released on 4 May 2009, Aseb Asrat, the Deputy Country Director of WFP talked about the ‘baseless assumptions of inadequate food supplies to the hostages in the 4.5 Sq. Km No-fire Zone, claiming ‘no let-down in food distribution to hostages in the NFZ’ and that ‘since February till end of April, the WFP in collaboration with the GOSL has sent over 3,000 MT of food supplies’.
Ans- Yes, there is a big gap there. In dealing with the humanitarian relief the OHCHR report does not discuss the steps taken by the government – the whole co-ordinating mechanism that had been put in place with the WFP giving the leadership. The question is whether there was an actual shortage. It is true that there were conditions that led to individual cases of starvation. But there is no evidence of large scale deprivation. Right up to the end there is evidence that some of the stores had stocks. The entire operation was done with the government and the UN agencies like the WFP working together. The supplies were monitored very closely. At the very end when the land convoy stopped, supplies had to be shipped in very difficult conditions. In these circumstances shortages may have occurred but to construe these as a deliberate effort to deny humanitarian assistance would be grossly unfair.
Q- But why not mention the WFP stance? Why sweep it under the carpet as if it was an embarrassment?
Ans —I don’t think it’s deliberately done. It’s a failure, a gap. They could certainly have got hold of the WFP statement. I don’t know why they did not. But all of that will come out in an inquiry. They are harping on the fact that the government underestimated the numbers and supplied less than what was required. The facts don’t really support this.
The government –WFP operation was basing their supply on a population estimate of about 210,000. Taken together with locally available supplies, WFP argued that adequate food was available.
Q- In Narrative III, you say that the Darusman’s and, the Petrie report fail to refer to the minutes of Consultative Committee on Humanitarian Assistance (CCHA) meetings. The OHCHR report also does not refer to them. If referred to, what would they have revealed?
Ans – That they met regularly, almost weekly to assess the situation. That the quantities to be supplied were agreed upon by all parties, the government and its international partners in the humanitarian aid distribution operation.
Q- Even though you say that the OHCHR report is a vast improvement from the Darusman report, they still use the word ‘expulsion’ to describe the departure of the UN and the humanitarian INGOs from the Wanni in 2008 September. The report even says “On 3rd September 2008, the Defence Secretary ordered all United Nations agencies and non-governmental organizations to leave the LTTE-controlled area by 29 September.”. This is not quite true (The date is wrong too. It was on 8th September that the Defence Secretary came out with his decision to relocate.) The Petrie Report says “On 8 September, a large majority of UNCT members opted to relocate staff out of the Wanni, to Vavuniya. In contrast, ICRC reacted to the security situation by relocating from Killinochchi to Puthukuddurippu (PTK), and therefore staying in the Wanni; DSS was reported to have said this was not a viable option for the UN because of the proximity of PTK to LTTE headquarters. A senior UNCT official would later say that the then-recent bombing of UN offices in Algiers had affected the global UNDSS analysis of the UN’s options when confronting security threats.” The UN media spokesperson in Sri Lanka Gordon Weiss said on 10th September 2008; “It is the prime responsibility of the government to provide security to humanitarian workers and if they cannot give it to us then we will leave…”
Ans – If you object to the word ‘expulsion’ one can substitute it. But the actual process was one where the UN could not remain. The Government was strong. They said by this date we can’t protect you, so you better go. So if you want to paraphrase the situation, it was like that. It had been interpreted as getting the UN to leave because the government didn’t want independent observers of actions the Army was going to take because those actions might go against human rights. That was the charge the Darusman report brings. Why don’t we go to the substance instead of arguing about words?
Q- But why doesn’t the OHCHR report mention the root of the matter. The ultimate trigger which led to the departure of the humanitarian people from the Wanni? Which was that even as far back as 2007 or earlier, the “UN had agreed with the Government and the LTTE on a conflict-free zone, known as the ‘Killinochchi box’, of about two by 11 kilometres, which covered Killinochchi town. The LTTE repeatedly abused the principle of the box by placing strategic offices and equipment not only within the box but sometimes also close to UN premises.”- (The Petrie report, Annex III-B-24). When the LTTE repeatedly abused the box why didn’t the UN issue urgent public statements that the LTTE’s infiltration of the box will draw attacks into the box by the military, place humanitarian staff in danger and make it impossible for them to stay? Why didn’t the UN put pressure on the LTTE to withdraw from the box saying if you don’t leave the box, we may be forced to?
Ans – You can fault the report for not mentioning it. I think the UN did issue warnings but it was evident that it had no means of enforcing compliance. Perhaps the real challenge was for the UN to have negotiated for a no-conflict zone or zones in which the civilians would be safe and the UN staff could continue to function.
They haven’t critically examined the role of the UN and the International Community; why didn’t they act more firmly to separate the LTTE from civilians. Were the UN and the International Community not able? It’s important for the UN system to look at situations of this kind and lay down procedures and rules. One gets the impression that the whole operation of the LTTE of taking the civilians with them was seen as something they were entitled to do.
Q- According to the OHCHR report, when the UN decided to withdraw from the Wanni in 2008 September, the civilians protested for three days. Even from the Petrie report evidence emerged that the LTTE had instigated the civilians to protest and block the exit of the departing UN convoys because they wanted to use the cover of the UN presence to withdraw their own equipment from the Kilinochchi box area. Does the OHCHR think we are simple?
Ans – Yes there are gaps and flaws like this
Q- The OHCHR report says that the LTTE did not use the hospitals for a military purpose. Why isn’t firing artillery from the vicinity of the hospital considered as using the hospitals for military purposes?
Ans – The report is quite clear. They say yes the LTTE did fire from the vicinity. And this attracted fire from the military. And they point out that it was difficult to abide by the rules of distinction if they were doing that. But they say that we had the technological capacity (and this has to be established) to avoid hitting the hospitals. What they say is that there is no evidence that they recorded that the hospital itself was used for military purposes. The hospitals were apparently used for treating LTTE patients.
Q- In the review of the Darusman report conducted by Marga, it is said; “In paragraph 94, the report says that the Tigers fired artillery from the vicinity of the PTK Hospital, but that they did not use the hospital for military purposes, clearly not seeing the incongruity of that statement.” The exact same thing is said in the OHCHR report. Why is it not incongruous this time?
Ans – In all the battles that were being fought at the very end in the Second NFZ when the soldiers were advancing, the hospitals were very much part of the battle ground. The battle was taking place on a field which contained the hospitals. But many of the incidents the OHCHR report relates, (they are events that have actually occurred and I don’t think the LLRC report refers to them) occurred prior to the hand to hand fighting and the advance into the Second NFZ. There the military was aiming at an area where they suspected the LTTE was having its artillery and positioning its guns. The question to establish is whether the hospital was deliberately targeted or whether it fell in the range of fire. It will be good to investigate these allegations not only to establish the culpability or the innocence of the Army but to examine the issue of how a battle can be fought within circumstances of this kind where the LTTE merged and mingled with the people and made it difficult for the attacking army to distinguish between combatants and non-combatants.
Q- This is exactly my question, when everyone knows that this happened, that the LTTE merged and mingled, wore civilian clothes and made it difficult to distinguish between civilian and non-civilian spaces and between combatants and non-combatants, how can anyone say that the LTTE was not using the hospitals and other civilian spaces for a military purpose? Weren’t they using all civilian spaces and the civilians themselves for a military purpose? That military purpose being tying the hands of the attacking army? Forcing them to choose between a rock and a hard place? Either stop advancing or advance and risk damaging the civilians?
Ans – All these issues will come up in an investigation. When we analysed this we said these are unique examples. IHL when applied to this will have to take in all these circumstances. Perhaps we will come out with new rules and insights into how to protect civilians in extreme situations like this. These civilians were our citizens and we were fighting a terrorist group. How do we act in a manner that can protect the rights of these civilians? That was an enormous dilemma. You can’t apply the rules of distinction that apply in normal war situations. The LLRC saw and brought that out clearly. This report does not. While it says proportionality has to be examined carefully, it does not quite get the dilemma.
Q- According to you the OHCHR report’s failure to mention these things was just a gap, a weakness and not deliberate. Are you making allowances for the OHCHR because you have a pre-conceived notion of its fairness?
Ans – It was the Darusman report that created most of the problems. In the context of the Darusman report the UNHRC assumed the role of the prosecutor with the Sri Lankan government as the accused. In my view the co-sponsored resolution has changed that context entirely. The former government’s stubborn refusal to engage with the UNHRC on UNHRC’s terms was itself a good response. But I think we should have re-negotiated terms. Failure to engage had a variety of consequences. The government’s domestic processes of accountability failed to command the full confidence and acceptance that was required. Its confrontation with the Western nations and the UNHRC was fraught with grave hazards at the international level. But it may have also perversely helped to persuade Western nations to rethink their approach and set the stage for the consensus that was reached after the change of regime. We have now re-engaged with the UN system on the most favourable terms possible. Having said that I think the OHCHR report must be subjected to full impartial and objective scrutiny to identify its gaps and inadequacies in dealing with allegations of human rights violations and war crimes. You might say that I am cautiously supportive of the co-sponsored resolution as it appears to contain all the ingredients of a durable and sustainable process of reconciliation – it has for the first time brought in all the key stakeholders, [I am] cautious because we have to guard against the possibility of it being manipulated to serve other objectives that are inimical to the national interest.
Conversations with Godfrey Gunatilleke – Part 2: “Disputing OHCHR Report’s Intellectual Standards Counter Productive”
Darshanie Ratnawalli, courtesy of Sunday Island, 17 October 2015
A thick pile of printouts sits on the table. It’s the OHCHR report on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka. Arif Zaman Executive Director, Commonwealth Businesswomen’s Network (CBW) sits before me tucking into a pizza. It’s September 16, 2015 and he is in Sri Lanka to organize the First Commonwealth Businesswomen Multilateral Trade Mission. “But this report is quite damning. I haven’t read it, but that’s the impression I get. More damning than they expected. War crimes trials for the security forces, do you see that happening?” he asks me. I look at him aghast and a little irritated. He goes on “If you follow the logic of this, that’s what’s going to happen. The language talks very clearly about war crimes of the security forces. Would Sri Lankan Generals appear in Hague on war crimes charges in 18 months? According to this report that’s the logic.”
That’s not at all the logic but in all fairness Arif cannot be faulted for thinking so. In their review of the UNSG‘s Darusman report, Sir Geoffrey Nice and Rodney Dixon describes this phenomenon; “Panels of experts established by the UN should be ‘on guard’ against the risk that unsourced assertions or allegations appearing in a sequence of reports allow the development of ‘false collateral’ of one report by another, that may have been constructed on the same un-sourced allegations. Narratives develop in opinion-formers and decision makers, none of whom may have the time to read, let alone rigorously to analyze, reports that, like the instant Report, are often hundreds of pages long.”
The OHCHR report however has an illustrious and admiring fan-base, which includes Dr. Godfrey Gunatilleke, Chairman emeritus of Marga Institute and robust critic of the Darusman report. Sunday Island continues the dialogue with him from last week.
Q- I bring to your attention para 785 from the advanced version of the OHCHR report: ”In at least two instances, attacks on Vallipunam and Udayarkaadu hospitals occurred shortly after the coordinates were relayed. Witnesses also told OISL that hospital and humanitarian workers alerted military and Government officials to the fact that hospitals were being shelled, and called for the shelling to stop. In some instances, the shelling from SLA positions continued, in others the firing was adjusted, suggesting that the SLA was able to control where the shells hit.”
You say that this report is fair. How would you redeem the last sentence? So the SL Army was able to control where the shells hit? With that control they caused the shells to hit the hospital but when they were asked nicely, they sometimes made the shells stop hitting? Nothing about trajectories and error margins and how adjusting the trajectory once they knew the hospital was falling inside the error margin may have made the hospital fall outside the error margin? Surely if the military sometimes adjusted fire when alerted that shells were hitting the hospital, the balanced (and the commonsense) conclusion to draw should have been that the hits were not intentional?
A- I have indicated that there are chapters of the OHCHR which I did not consider to be balanced. As I said earlier the government as well as civil society groups should make a thorough analysis of the full report when implementing the co-sponsored resolution. Positions have to be taken on various conclusions that are made. Let me reiterate what I have stated earlier – there is a basic imbalance in all the reports we have for the reason that none of them have had access to the evidence of all the key parties involved. This lack of balance is blatant in the Darusman report. In the OHCHR report the fact that the evidence is still what has been obtained at the first stage of an investigation is made explicit. Read this extract in para 1148 on the issue of distinction and proportionality regarding attack on hospitals; “The manner the attacks were carried out suggests that the security forces may have treated all of the NFZ as a single military objective. While OISL ‘s investigations are not conclusive for the proportionality assessment of each of the incidents reviewed in this report it believes this matter must be investigated.”
We need to focus on the factual content of the statement. The OHCHR report as well as the LLRC raise fundamental issues as to how a war can be fought in the conditions of the NFZ. The OHCHR implies that the Army had both the information and capacity to avoid attacks on the hospital and says it has to be further investigated. This can be answered fully only with the help of military experts and the Army who fought the battle and were faced with instantaneous decision making in the field. I think the investigation is important not so much for the purpose of determining whether there were war crimes committed but more for the purpose of asking how civilians can be protected in the extreme conditions that can be created by war. In fact it might be argued that the Sri Lankan Army was justified in regarding the whole of the NFZ as a military object. I believe some of the legal experts have made this point. However even in those circumstances could more have been done to protect civilians? The answers to those questions are important both for our peace of mind as well as for future guidance. They have implications for the grey area in contemporary warfare – the use of drones and the killing of civilians, the NATO killings in Kosovo and Libya, the “mistaken” Der attack on the Afghanistan hospital. How is distinction and proportionality to be determined in each case? What is the range of error permissible in each case? In this larger context to imply that OHCHR report falls short of the highest intellectual standards or quarrel about the extent to which it lacks balance will distract us from the substantive issues.
Q- You talked of the huge dilemma faced by the Army when the LTTE fired from the vicinity of hospitals and located guns and fortifications close to these civilian spaces. You said that the OHCHR report doesn’t quite get the dilemma. Is it because as far as their knowledge of war and weaponry extends, there was no dilemma? The Army knew the location of the hospitals to a T. They had GPS coordinates. The hospitals displayed the red-cross symbol prominently. They had been there for ages and were well known landmarks. The Army had technologies that could do precision targeting. So where was the dilemma? They shouldn’t be hitting any civilian objects no matter how much the other side merges and mingles their attacking bases with the civilian spaces. This is the plaintive cry of the OHCHR panel. Did you notice any evidence in the OHCHR report that the panel was aware of error margins of the weapons, human error, human fatigue and how much the error margins go up when the space between the military and civilian objects shrink? Did you find any evidence in this ‘balanced report’ that they had bothered to get an opinion from a military or weaponry expert about these things?
How is it that you, a civil society activist who is considered by certain people to be one of the finest brains of the country and who has done extensive analysis of the Darusman and related reports fail to see the ignorance of the panel and their drawing room and office background which is behind it?
A- I must say I find your ad hominem questions a little amusing. This is what you call argument by exclamation. The simple answer to this question may be that what you have heard of me might be highly exaggerated. But let that pass. Your “hard talk” helps me to elucidate the facts and give the answers that provide what I think is the reasonable approach to the OHCHR report.
In the first part of your question you have interpreted the OCHR report correctly. But the cry is far from being “plaintive”. The OHCHR sees no dilemma. The position taken by them is clearly argued and should be answered. You do not seem to be disputing the facts – the Army‘s knowledge of the locations and shells falling on these locations causing damage and killing and injuring non-combatants. What you imply is that all the shelling was within a permissible margin of error or were mistakenly targeted. In the Third Narrative we have argued on similar lines. Having heard and gathered the full story of the war, we started from a position that was sympathetic to the Army and saw their dilemma. But we acknowledged that we did not have the full story. The OHCHR panel having been denied a large part of the story owing to the position taken by the government, cannot be expected to share that same sympathy. Based on the evidence they collected the OHCHR panel comes to the conclusion that the Army could have avoided the shelling of hospitals and nonmilitary objects- take for example the food distribution queues. A “mistake” as bad as the shelling of the hospital in Kunduz. You should not forget that the OHCHR panel would have had to deal with pro-LTTE submissions that have argued (very persuasively for those biased in their favor) that all these were selective acts of violence deliberately calculated to instill terror into the civilian population and cause disorder which the LTTE would have found difficult to manage and therefore part of a well-designed military strategy. The Darusman report was inclined to take such submissions seriously, the OHCHR panel does not.
Did the OHCHR consult military experts? The Report does not discuss the issues that you have raised about margins of error, etc. or quote military experts. But there is no reason to conclude that they did not have expert military advice. These same issues were raised in the report of the International Crimes Evidence project and dealt with extensively; they claim to have consulted military experts on the shelling into the NFZ regarding military necessity and collateral damage. The OHRHC report says it had access to all these reports. Your rhetorical questions about the ignorance of the OHCHR on the military aspects of the shelling or on why I don’t see the defects of the OHCHR report that you see, seem to be based on the misguided conviction that “the error margins of the weapons, human error, human fatigue” will provide a full explanation of the shelling of hospitals and the collateral damage that occurred. We simply do not have the information to come to that conclusion. The Army has never spoken of these problems. In the account they give in their report on the war, they claim that they had the capacity and information to avoid any mistakes. Initially the Army denied having shelled the hospitals and said that there were no hospitals in the area. What is important to note is that the crucial information as to how and why the shelling occurred is with the Army and this may go beyond the generally applicable criteria of margins of error etc.; this may cover information such as how the Army planned their advance into the NFZ; how they viewed the LTTE actions and the military use they were making of the hospitals, the quality of the equipment and ammunition used; the skills of those who manned the guns and were responsible for the targeting and the possibility of human error specific to the Sri Lankan Army given the conditions in which they had to fight. This information can be best supplied by the Army and was not available to the OHCHR panel.
Q- You asked an important (rhetorical) question in your previous answer; ‘What is the range of error permissible in each case?’ Whatever military expertise it had access to ‘permissible range of error’ does not seem a concept the OHCHR panel was aware of. I refer para 45 of the first report to your attention…. ”OISL notes with grave concerns the repeated shelling of hospitals in the Vanni… The recurrence of such shelling despite the fact that the security forces were aware of the exact location of hospitals raises serious doubt that these attacks were accidental.” …. The report does not compare the actual strike rates on the hospitals with the strike rates that fall within permissible range of error. The report could have said something like “according to the weapons experts we consulted the permissible range of error in this particular weapons system (based on manufacturer’s estimate and other research) would translate into x number of hits per week falling on objects other than the intended target but within a close radius of the intended target. Therefore assuming that trained soldiers acting in good faith fired these weapons so many times at a military target located so many metres away from a known civilian object, as many as x number of hits per week on the civilian object could not be avoided. However the strike rates on Wanni hospitals were way higher than this even if the permissible range of error were to be extended to cover other variables outside the manufacturer’s control. This may point to intentional targeting of hospitals. Instead of taking a scientific position like this they seem to be trying to link ‘recurrence’ to intention on no other basis except that that is their inclination. In contrast, the Marga panel report which reviewed the Darusman report, even with the limited resources available to it, grasped this point about strike rates compatible with accident and error vs strike rates suggesting intentional targeting. I refer you to page 16 of that report;
“Image 3.4, of the Ponnambalam Hospital shows 13 instances of damage by what is claimed as artillery fire, and one SLAF airstrike. Of these 14 instances, only two occur within the hospital premises, and most hits are recorded to the north and northeast of the hospital. The date of the airstrike isn’t exact, but is indicated as prior to 18 February. The 13 artillery hits are dated between late January and early March 2009, indicating a hit every 3-4 days, which is hardly the sort of strike rate compatible with an allegation of deliberate targeting.
In paragraph 91, the report claims that the PTK Hospital was hit every day by multiple-barrel rockets (MBRL) and artillery fire between 29 January and 4 February and suffered nine hits, which is not more than one or, at most, two a day, which is more in line with accidental hits rather than deliberate ones.”
Ans – I find your analysis of number of strikes and actual hits quite interesting. Linking the number of strikes to the number of hits on a particular object to determine whether the object was being directly targeted seems plausible. But I do not feel competent to comment on it as I certainly do not have the necessary military expertise. I think what you describe is consistent with area wide shelling, Both the Darusman report and the OCHCHR appear to blame the Army for area wide shelling as well. The question then arises whether the Army could not have lawfully resorted to area wide shelling as a military necessity for the purpose of achieving their military objective. In our critique of the Darusman report and the third narrative we point out that the army’s military choices were severely constrained by the LTTE strategy of keeping the civilians hostage. In the prevailing situation any legitimate military action taken to achieve their objective would lead to civilian casualties. Both the Darusman report and the OCHCHR do not seem to be ready to concede this and can be faulted for it. You would then ask me why I do not condemn these reports in a more forthright manner. I think the mandate of the UNHRC is to protect noncombatants in all circumstances and in pursuit of that mandate the position they take is understandable. The UTHR (University Teachers for Human Rights) argue that in the circumstances that prevailed, the war should not have been fought. I think the Darusman report and the OHCHR report has to be approached within this human rights perspective. The Sri Lankan case raises all these issues and it is necessary that all these be raised. All these issues need military expertise and full knowledge of the battle conditions to enable us to come to any reliable conclusion. As I said earlier these have international implications for the dilemmas of contemporary warfare when it has to deal with the terrorist phenomenon.
Q- We are all civilians groping in the darkness of our ignorance of how the war was fought. I refer you to paragraphs 733 to 743 where the OHCHR report reproduces testimonies of higher echelons of security forces to the LLRC about steps that were taken, technologies that were used and policies that were followed to avoid civilian casualties. Army and Air Force officers and the Defense Secretary are quoted waxing lyrical about the use of precision weapons, how the accuracy of artillery and mortars was a sure thing because they always had locating devices, how Air force attacks obtained 100% spot on results, multiple warnings to civilians before an attack, sophisticated technology to confirm departure of civilians, how they knew exactly where civilian concentrations were thanks to UAVs and so managed to take on the LTTE without any difficulty to civilians. All this is said to the LLRC to show that extensive measures were taken to avoid civilian casualties, implying that any casualties that happened were unfortunate collateral damage. But the OHCHR turns this evidence on its head and concludes in para 744; “These statements indicate that the loss of civilian life and damage to civilian property reported below may have been anticipated, known and accepted by Government and military leaders in breach of international humanitarian law.” Does this make sense to you at all? These two wildly differing interpretations of the same set of evidence?
Ans- This is precisely where the problem lies. You would recall that there were a large number of reports including statements by UN personnel describing the incidents to which the Darusman and the OHCHR report refer. The statements made by the government amounted to a denial of these incidents and insistence on near zero casualties and zero collateral damage and they pointed to their capacity for avoiding such collateral damage to maintain this near zero claim. It is correct that the OHCHR uses the same evidence to draw an opposite conclusion. This is what they say: If the Army had all this capability to minimize and avoid collateral damage and states that therefore there was little or no collateral damage, then they were implying that all the deaths and damage caused as described in other reports were known and treated by them as military objects and caused intentionally. Then they would have been acting in breach of international law. I think the problem has arisen because the government and Army have not clearly stated that there were unavoidable civilian deaths and collateral damage, explained the reasons for the inevitability, then pointed out that the primary responsibility lay with the LTTE and credibly defended their actions. I think with the domestic investigations that are envisaged, an opportunity has arisen to do just this. Then I think the confusion would be cleared and the true worth of the military action taken by the Army to eliminate terrorism would gain full recognition.
Conversations with Godfrey Gunatilleke – Part 3: “Paranagama report could serve no purpose in Geneva”
Darshanie Ratnawalli: courtesy of Sunday Island 31 October 2015
Mangala Samaraweera, the Foreign Minister of Sri Lanka speaks at an election rally in Kumburupitiya (youtube link). It’s 26 July 2015. He is talking about the war. His ignorance of its progression seems beyond belief. “The Rajapaksas merely grew the war and benefited from it. We won the war in 2010. We are happy about it. It was not the Rajapaksas who won this war but the Armed Forces of this country. Every government of this country helped set the stage for that victory. Before they gave the government to us in ‘94, President D. B Wijetunga and Prime Minister Wickremesinghe together liberated the East from the LTTE. After ‘94 Chandrika Kumaratunga liberated the Jaffna peninsula which was under the LTTE; Prabhakaran’s office was in the Jaffna Kachcheri. That time, under that government, the war heroes chased the Tigres from Jaffna and restricted them to the jungles of Mulativu. It was only after that that Mahinda Rajapaksa defeated even those remaining tigers dwelling in that jungle.”
The war was won in 2009 not 2010. While that might be a minor ministerial slip, the huge gap in the Foreign Minister’s knowledge about the liberation of the East is difficult to justify. The final war or Elam War IV was not a remnant jungle war fought in the Wanni after successive pre-Rajapaksa governments had driven the LTTE into the jungles of Mulativu. The first phase of the last Elam war was fought in the Eastern province from July 2006 to July 2007, with the entire country and the world watching in suspense. Starting with Mavil Aru and ending with Thoppigala, it featured such highlights as the then Opposition Leader Wickremesinghe’s famous Thoppigala speech. With the capture of Thoppigala on 11 July 2007, the Sri Lankan Armed Forces attained their objective of clearing the entire Eastern province of the LTTE after one year of military operations. The world’s intense focus may be on the last phase of the Wanni war, yet no serious assessment of it can afford to blank out the Eastern war.
One crucial difference between the Eastern war and the Wanni war may provide the key to understanding the motives of the last phase of the Wanni war. The SL military operations in the Eastern war did not draw war crimes allegations. Civilian casualties never became an issue. That the war was fought in a manner designed to minimise civilian casualties and that civilian casualties were minimal was accepted by all parties. It was in the Eastern war, specifically in the battle for Vakare waged from 30 October 2006 to 15 January 2007 that the SL Army first encountered the LTTE’s strategy of using the civilians as a human shield and hospital premises as an artillery launching pad. This drew from the SLA, a counter strategy which prevented a major humanitarian tragedy and demonstrated an intention to avoid civilian casualties. Without a frontal assault on Vakare, the deep penetration unit of the SL Army infiltrated the area under the LTTE and launched surprise attacks. This tactic caused the LTTE to engage with the SLA, diverting some of its cadres from their task of holding the civilians captive and providing opportunities to the civilians to escape into the area under SLA control. The Eastern war also differed from the Wanni war by placing a multi ethnic civilian population at the disposal of the LTTE. As the Vakare experience demonstrated, compared to the homogenous civilian population of the Wanni, this population proved less amenable to be held hostage. It was reported by NGOs who were active in the area that the Mullahs defied the LTTE and led the Muslim civilians out of Vakare.
It was also in the Eastern war that the location of LTTE armour and equipment in a hospital and the use of UN and NGO property by the LTTE- boats, vehicles, tents- for military purposes came to the notice of the SL Army. This may have ‘educated’ the SL military that prima facie non-military objects aren’t always what they seem and that UN symbols and designated humanitarian locations sometimes hide the tiger. This may help to explain some of their military decisions with regards to hospitals and UN/INGO locations in the Wanni war.
Extrapolating from the intention and reality of the above election speech by the Sri Lankan Foreign Minister, is the government’s frontline response to the Geneva intervention fortified by adequate intellectual resources? Is the Geneva Resolution essentially a good thing? How can we use it to further our national interest? Are the politicians in power big enough to rise above Party rivalries? Dr. Godfrey Gunatilleke, Chairman emeritus of Marga Institute and co-author of Narrative III, from which the above narration of the Eastern war is drawn, spoke to Sunday Island about related issues in this final instalment of our conversation.
Q- How do you assess some of these pronouncements of the Foreign Minister?
Ans – I don’t want to comment on people but he was very strong in his condemnation of the Rajapaksa regime. He made very strong allegations. That may be counterproductive to the process of reconciliation. Some things are said in the heat of victory. Let’s hope these things get tempered. The spirit of this whole process should encompass everyone who takes part.
Q- How do you see the government’s decision to not table the Paranagama report in Geneva?
Ans – If the strategy was to get a consensus resolution, what are you going to gain by tabling the Paranagama report? Are you going to confront the OHCHR report with the Paranagama report and get into a debate on that? What our diplomatic people did; I was reading their 15 September statement; it said nothing about the OHCHR report itself. They talked about the process, that we are now going in, we are committed to do these things, we take account of what the OHCHR report says and stopped there. It did not say, these parts of the report we can’t accept. It did not go into that at all. It was part of their diplomacy. That can come later. We can’t raise that at this point of time. The main objective was to get a domestic process approved by the UNHRC. They achieved that. It’s an excellent opportunity.
Q- You think tabling the Paranagama report would have hampered that process?
Ans – It would have distracted from the objective. It would have given room for them to say: here’s another report which does not come to very much. What can we expect from a domestic report? Rather than have that, bring it out when you need to. Let it feed into the domestic mechanism. Like the OHCHR report the Paranagama report is ex-parte. It did not get the evidence of people who went before the OHCHR. It’s the other side. Now we are expecting that all this will come together.
Q- In a hybrid mechanism?
Ans – Well, it’s not hybrid. Hybrid as given in the OHCHR report suggests something in which foreign judges will be nominated by them like in Cambodia and Lebanon. We won’t have that. We won’t have UNHRC nominating our judges. The choice is ours. It won’t be hybrid in that sense. It will be hybrid in the sense that we will be bringing in international expertise to give credibility to this mechanism. I am with it.
Q- Do no parts of the resolution ring alarm bells in your mind? What about the bit about “ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law”?
Ans – What it means is that there should be a process of vetting which keeps those persons guilty of having committed crimes away from high office. An administrative process is one which applies the findings of a court. Guilt is determined by a judicial process.
Q- The Resolution presses for the demilitarisation of the North?
Ans -We have already said that we are committed to demilitarisation. We don’t need a Resolution to recommend that to us. De-militarisation can be interpreted in many ways. We will have our Army outposts in the North as we have in rest of the country. We will have a military presence. But the Army will be withdrawn from the civil administration of the North. It’s already happening.
Q- Haven’t we been too limp wristed in our response to the report and the Resolution? Don’t we need a more robust taking care of our own interests?
Ans –We certainly have to take care of our interests. I was quite pleased at Ravinatha Aryasinghe’s criticism of the 1st draft of the Resolution where he said, this is repetitive, prescriptive judgemental, this is not what we want. And we got an amended Resolution which is substantially different. All those prescriptive “we call upon”s were changed to “we encourage Sri Lanka to do this”. You can’t really confront the Western Nations. It’s unrealistic. It would have been realistic if we had achieved consensus here; reconciliation, political solution…We were getting nowhere there. That’s why a confrontational position wouldn’t have got us anywhere except putting us into more and more difficulties, even economically. Individual countries could have followed policies that were harmful to our economy. We have Russia and China in the Security Council but it doesn’t mean by-lateral action couldn’t have been taken.
Q- Do you think the previous government missed a chance? When all these dominant narratives were being established, Darusman’s, etc. should they have offered to co-author them or contributed to them by supplying them with information from their side?
Ans – There was a problem. The agenda was directed against the regime that existed. I have no doubt that one of the objectives was to change the regime. They felt that they could not have a credible inquiry with that regime in place. The leaders of that regime was also involved in the whole process of fighting the war. Under those circumstances the regime would not have opened up. There was always the overhang of a war crimes tribunal.
Q- They had things to hide?
Ans -No. It’s like an innocent man being told not to talk about it by a lawyer because the things said can be held against him. The legal advice would have been not to cooperate because you can’t control a process which is implemented from outside. Today it’s not like that. Today we can control the entire process.
Ans – Because today it’s a domestic inquiry led by the government, owned by the government.
Q- With the participation of foreign judges?
Ans -We select the judges in consultation. Why should we not? I have always argued; how do we set up a credible mechanism to inquire into this, credible to the Tamils, credible to the rest of the world, and credible to ourselves? I don’t think you can do that exclusively with a local system. You need to bring credibility to the system you are setting up by bringing in an international panel of experts to preside over, but don’t lose control over the process. I think it can be done. Foreign judges are basically judges who will apply the law.
Q- But will these judges be above our judiciary like the British Privy Council we could appeal to under the Soulsbury Constitution? Isn’t that a constitutional regression?
Ans –There were some very good judgements as well as bad judgements from the Privy Council. That is quite possible in this case. But the point is foreign judges are governed by the law they practice. There is no reason to think that they will be biased. I don’t know how they are going to set it up. Will foreign judges be an advisory panel? But some involvement which shows that this is an open, transparent process is necessary to bring confidence to all stakeholders. It’s pointless to have an inquiry if it doesn’t lead to an acceptance by all parties. The South Africans were able to do that. Both the whites and the blacks accepted it. And they came together and set it up. We must find an equivalent. Now it’s very promising. We have a large part of the TNA and the Tamil Diaspora ready to go along with this process. However this should not be impelled by a desire to bring punitive justice to people you don’t like. With the regime change there was a statement made by Mr. Ranil Wickremesinghe that President Rajapaksa won the war against terrorism.
Q- But was winning the war a good thing? The dominant view held internationally and by internationally funded civil society groups is that the war should not have been fought, the LTTE shouldn’t have been defeated.
Ans -Yes. A lot of them feel that we should have continued to negotiate and not resorted to war
Q- They feel that an equation to produce a political solution demands the LTTE or something like it.
Ans -It was a theory held by many people. Even the Tamils perceived that having the LTTE enabled them to extract from the government the best possible deal. This theory assumes that the government was prepared to come to a settlement only if it had the threat of great violence. I don’t buy that. But I think we should always have tried to take the ethnic relations in a direction which avoided war. But once the LTTE came into being as a terrorist organisation, now looking back, it seems that there was no alternative but to defeat them militarily. Though some of us felt that, for one thing a military defeat may not be possible for various reasons- even many of the Army Commanders felt this- for another, that it would lead to such a vast fallout in terms of human suffering that it may not be worth it.
Q- You still subscribe to that idea?
Ans –No. I think defeating the LTTE was a very positive thing. Eliminating terrorism to the extent we have been able to, is a major achievement.
Q- It must have taken tremendous courage to rise above the dominant zeitgeist that it couldn’t, shouldn’t be done and then go ahead and do it.
Ans – Yes we should quite appreciate the fact that it came out of a major combined effort of the political and military leadership. Both changed and both came together. It is a major achievement. It would be counterproductive to deny adequate credit for the defeat of terrorism. These are inter-Party rivalries.
Q- Do you think we can rise above these?
Ans – We have the opportunity now. Whether we will be able to do that will depend on leaders who are in power as well as leaders out of power. To place the interests of the country and society above all requires….
Q- Big men?
Ans – Yes. In South Africa both Mandela and Clerk had that capacity. They ran risks. But they were ready to do so.
– @ http://ratnawalli.com / and email@example.com
ALSO SEE– LISTEN
Mr. Christopher Black, lawyer from Canada who has defended several persons indicted for war crimes
and crimes against humanity has exposed the irregularities and undue procedures adopted at these trials
to convict persons who have fallen out of favour with western powers in order to falsely convict them.
Please watch his 19 minute presentation at the world Public Forum (Rhodes Forum 2014) by clicking on the
link given below:
Preview YouTube video Christopher Black: The Criminalisation of International Justice
Marga 2011 An Analysis and Evaluation of The Report of the Advisory Panel to the UNSG nn the Final Stages of the War in Sri Lanka, https://www.dropbox.com/s/0eybj1ynej6spaa/The%20Darusman%20Report-%20Final%20doc-2.doc
Marga 2014 Issues of Truth and Accountability. The Last Stages of the War in Sri Lanka,https://www.dropbox.com/s/tdxwntf7wu5andq/The%20Last%20Stages%20of%20the%20war%20in%20Sri%20Lanka.pdf?n=66191473
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Harrison, Frances 2012 Still Counting the Dead, London: Portobello.
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IDAG [i.e. Citizen Silva] 2013 “The Numbers Game: Politics of Retributive Justice,” http://www.scribd.com/doc/132499266/The-Numbers-Game-Politics-of-Retributive-Justice OR http://www.satp.org/satporgtp/countries/shrilanka/document/TheNG.pdf.
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Narendran, Rajasingham 2014 “Harsh Ground Realities in War: Decomposing Bodies and Missing Persons and Soldiers,” 28 January 2014,http://thuppahis.com/2014/01/28/11702/
Noble, Kath 2013b “Numbers Game reviewed by Kath Noble: The Full Monty,” 14 July 2013, http://thuppahis.com/2013/07/14/numbers-game-reviewed-by-kath-noble-the-full-monty/
Prasad, Kanchan  “Mullivaikkal Hospital in NFZ Last Redoubt,” http://www.flickr.com/photos/thuppahi/sets/72157626797848747/
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Roberts, M. 2014 “Generating Calamity, 2008-2014: An Overview of Tamil Nationalist Operations and Their Marvels,” 10 April 2014, http://groundviews.org/2014/04/10/generating-calamity-2008-2014-an-overview-of-tamil-nationalist-operations-and-their-marvels/
Roberts, M. 2014 “The War in Sri Lanka and Post-War Propaganda,” 18 Nov. 2014, http://thuppahis.com/2014/11/18/the-war-in-sri-lanka-and-propaganda-debates/
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