Confronting the OCHR Investigation in Geneva, September 2014: Memorandum from Jeevan Thiagarajah

Jeevan Thiagarajah, whose title was  “A Note on the discussions the representatives of the Marga Institute and the Consortium of Humanitarian Agencies had with the Chief Co-ordinator of the OCHR investigations into alleged war crimes committed in the last stages the war in Sri Lanka” **

The Chairman Emeritus of the Marga Inbstitute Godfrey Gunatilleke, the Chairman of the Marga Institute, Asoka Gunawardene and the Executive Director of the Consortium of Humantarian Agencies Sri Lanka, (CHA) Jeevan Thiagarajah met Ms Sandra Beidas chief co-ordinator of the OCHR investigating team on war crimes alleged to have been committed in the last stages of the war in Sri Lanka.

 The Circle of Hope in front of the Palais Wilson

The discussions were held in UN Palais Wilson on the 8th of September 2014.from 8.30 a,m, to 11.a,m. The representatives of the Marga Institute and CHA formally handed over their publication titled Issues of Truth and Accountability – Narrative 111 – the Last Stages of the War in Sri Lanka-. and requested that it be dealt with as their joint submission for consideration by the OCHR investigating team. They informed the Chief Coordinator that they had made a similar formal submission to the Sri Lankan Presidential Commission on Disappearances. They then proceeded to present the main findings and conclusions of their work contained in the publication.

They stressed the following points:

• At present there are several sharply conflicting and divergent narratives of the war .The two main accounts are those given in the report of the UNSG’s panel of experts (PoE) , commonly referred to as the Darusman report, and the report of the Lessons Learnt and Reconciliation Commission (LLRC) of Sri Lanka . The report of the PoE alleges that the war was conducted not only with the objective of eliminating the LTTE but also with the deliberate intention of driving civilians to the No Fire Zone denying them adequate food and medicine and targeting and killing a large number of civilians. Consequently the PoE has argued that the government of Sri Lanka and the Sri Lankan army may, among other crimes, have been guilty of genocide and crimes against humanity The account of the LLRC presents a brief narrative of the progress of the war, the LTTE’s strategy of using civilians as a human shield and hostage and the efforts made to free the civilians. The LLRC Report rebuts the allegations of systematic violations of International Humanitarian Law (IHL) by the Sri Lankan government and army but identifies individual violations that had occurred which need further investigation. Each of these, the PoE and the LRRC, did not have access to the evidence available to the other. The PoE could not obtain the evidence of the main actors – the army, the government officials, the civilians who were in the battle zone and the LTTE cadres who had survived who had given their testimony to the LLRC. The LLRC had no access to the witnesses from the Tamil diaspora, the INGOs and the UN staff who went before the PoE.
• The Third Narrative which is being presented by Marga/CHA attempts to fill a crucial gap in the information currently available in the public domain on the last stages of the war and the events that have been the basis of the allegations of war crimes. It draws on a great deal of material that have come into the public domain on the last stages of the war after the Darusman and LLRC reports and which challenge and contest, in particular, the conclusions on the accountability of the Sri Lankan Army as framed in Darusman report and other reports that have been produced in support of the Darusman report such as that of the International Crimes Evidence Project (ICEP). The Third Narrative argues that it is essential to make a full and detailed analysis of the conduct of the war and how the war was fought by both combatant parties before issues of accountability are framed . It proceeds to provide as faithful and as detailed an account of the war as can be reconstructed on the documentation available .
• The Third Narrative begins with the war in the Eastern Province which immediately preceded the Wanni war. The authors argue that the conduct of the Eastern province war is vital for an understanding of the tragic events in the Wanni war. In the Eastern Province war there were no allegations of war crimes against the SLA and it was widely acknowledged that the SLA was successful in keeping civilian casualties to the minimum. It was the same army, which had acquitted itself commendably, protecting civilians and minimising civilian casualties, that conducted the Wanni operation. What the Eastern Province war demonstrates is that in a situation where there was a reasonable observance of the rules of war by the adversary, the SLA was able to ensure that its military operations were strictly in compliance with the rules of conventional war. Then what led to the events that gave rise to allegations of war crimes?
•  The Third Narrative describes the Wanni war in three phases – the first phase from Madhu and the South of Mullaitivu up to the fall of Kilinochchi in January 2009 . The civilian casualties in this first phase was minimal; neither the international community nor the UN raised any major issues regarding civilian casualties. The war was fought mainly in jungle terrain and the civilians were outside the field of direct combat. It was in the second phase, after the fall of Kilinochchi, that the character of the war changed significantly. Faced with total defeat LTTE began to use the civilians as part of their military strategy and integrate them into the battlefield, the LTTE combatants discarding their military attire and mingling with civilians, locating military equipment and moving gun mounted vehicles in the midst of civilians and close to protected locations, preventing civilians from escaping and shooting those who attempted to escape. The LTTE now began to focus on the possibility of international intervention. With this new objective the LTTE began to raise the spectre of an imminent humanitarian disaster, and acted deliberately to draw army fire on to civilians and non-military objects.
•  The Third Narrative argues that issues of accountability have to be framed in the context of the extra-ordinary conditions of battle that were created by the actions of the LTTE by preventing civilians from escaping and making them a part of the battlefield and deliberately positioning them to gain military advantage. The LTTE refused to permit the No Fire Zones to function and made them the theatre of their military operations. The LTTE’s blatant and continuous violations of IHL , their total refusal to protect civilians and prevent them from escaping presented the Sri Lankan army with military options in which the principles of distinction and proportionality as are applicable in normal combat could not be readily applied.
• The methodology of the report of the PoE is seriously flawed . It examines the alleged crimes of the LTTE and those alleged against the Sri Lankan independently of each other as individual events. They are not examined in the context of a fierce ongoing battle in which the LTTE had succeeded in blurring the distinction between civilians and military targets. They are not seen in the sequence in which they occurred with LTTE committing the war crimes first and posing a challenge to the army to respond. The tragedy has been encapsulated in the statement of the US Amabassador who said that the LTTE deliberately planted their artillery and equipment amidst civilians to draw fire from the Sri Lankan army and use the civilian casualties to provoke international outrage” and emphasised that “if the LTTE had allowed the civilians to leave none of this would have happened.”
• The Third Narrative  concludes that the allegations of systematic violations of IHL , indiscriminate firing of artillery on civilians, killing of a large number of civilians between 40,000 and 130,000 and genocide are wholly untenable and what remains for investigation are the individual violations.

The presentation also dealt with the estimate of civilian casualties and explained why the highly speculative estimates of civilian casualties that are cited in the PoE report and other reports of International NGOs cannot be given any credence.

The presentation next dealt with the allegation regarding the denial of food and medicine and described the system which was operating for the supply of food and medicine up to the last stages of the war. From September 2006 a Consultative Committee on Humanitarian Assistance (CCHA) was functioning to provide humanitarian assistance and ensure adequate food and medical supplies to the conflict affected areas in the Northern Province. This Committee included ambassadors of Western nations heads of UN agencies and government officials.. This well laid out open and accountable mechanism was in place to exercise oversight of all humanitarian relief operations during the last stages of the war. The estimates of the population to be provided were agreed upon at the meetings of the CCHA.

 Gunatilleke  Thiagarajah

The team in their presentations drew attention to the accountability of both the UN and the group of Western nations for the failure to engage effectively at crucial stages of the war when the strategy of using civilians as hostage and shield became apparent. Opportunities that were available at critical turning points such as Madhu and Kilinochchi to separate civilians from the LTTE were missed . The team also argued that the Sri Lankan case presents the international community with an opportunity to address critical issues regarding the protection of civilians in extraordinary situations that arise in conflicts between a state and non state actor, with a view to strengthening the international regime of humanitarian law and human rights.In response to the queries of the Marga/CHA team the Chief Coordinator explained the procedures governing the OCHR investigations. She stated that the OCHR investigations do not take the form of a Commission of Inquiry. She stated that the confidentiality of witnesses would be maintained . In response to the query as to how the investigators would establish the credibility of witnesses in the absence of full transparency and public inquiry she stated that corroborative testimony would be sought in all cases and due care taken to determine credibility of the evidence. In reply to an inquiry regarding the role of the Special Rapporteurs she stated that the nature of the relationship between the investigating team and the Special Rapporteurs was being worked out but added that the Sri Lankan Government’s engagement with the mandatory processes would have a constructive impact on the OCHR investigations. The Marga /CHA team suggested that that the two teams of international advisors – the team engaged by the Sri Lankan Government and the team engaged by OCHR – might at some stage engage in a constructive dialogue in the overall exercise of defining the issues of truth and accountability- the Chief Coordinator responded that she considered the idea was worth exploring.

The Chief Coordinator informed the Marga/CHA team that their submission would receive due consideration by the OCHR investigating team and stated that the OCHR was already engaged in reviewing and analyzing a large body of relevant writings and documentation pertaining to the last stages of the war in Sri Lanka. She inquired whether Marga CHA would continue to engage with the OCHR and provide aNy clarification if needed. Marga\ CHA representatives responded positively and stated that they would do so and if necessary would on their own seek opportunities to engage further with the OCHR. The team also informed the Chief Coordinator that they would be making a separate submission on the legal issues.

** What is referred to here as the OCHR investigation is also termed the OISL” — meaning the Office Investigating Sri Lanka.” The person in charge was/is SANDRA BEIDAS, who was appointed by Ms Navanetham Pillai just before she vacated her position as head of the Office of the High Commissioner for Human Rights on 31st August  2014 (being succeeded by Prince Zeid Al Hussein).