Marga/CHA meet Foes, Friends and Neutrals in Geneva, September 2014: Asoka’s Memorandum

The three-person delegation from Marga and the Consortium of Humanitarian Agencies which went to Geneva in late September 2014 to present their critical review of the UN reports on Sri Lanka met a number of people unofficially, while also conducting official presentations. Asoka Gunawardene compiled a detailed account of these meetings which has now been made available (he was ill and not in reach earlier). While these accounts overlap with previous memoranda that have been inserted in Thuppahi, I now place them here for the historical record. The sections covering the visits to Washington and a subsequent visit to Geneva in October are inserted elsewhere in this series.

The most significant and illuminating segments of the reportage below, are where (A) Gunatilleke, Gunawardene and Thiagarajah met selected embassy personnel; (B) Sandra Beidas, the head of the OCHR investigation and (C) the side-event with INGO and ambassadorial delegates, where they faced hostile questioning from such individuals as Messrs Kirubaharan and David Whaley. Michael Roberts.

Asoka Gunawardene: Memorandum on the Visit to Geneva, September 2014

Meetings with Missions:

Canada: Demonstrated interest and keenly followed the alternate perspective on the last stages of the war, but did not make any definitive comment. Clarifications sought during the discussion may indicate understanding of the issues raised by the third narrative though did not indicate any ideas on next steps on both sides.

South Africa: Was sympathetic and seemed to recognize relevance of the third narrative to the discourse on accountability during the last stages of the war. Clearly indicated their inability to actively partner and influence the course of OP 10 process, due to their role and responsibility in the current engagement with Sri Lanka in the post-war reconciliation/political solution process. The Ambassador pointed out that they are talking with both Government and TNA and hence seemed to consider any active support to Sri Lanka’s cause in coming out of the OP 10 stand-off not proper, though this need not be so, if viewed in the perspective of a pro-active stance. His advice was to keep the politics of accountability internal, which he held out as the lesson of South Africa’s experience in the truth and reconciliation process. He seemed doubtful if the OP 10 process could be influenced.

Russia: Was clear regarding his country’s stand in support of Sri Lanka. Welcomed the third narrative as an important contribution to the discourse on accountability that can garner support for Sri Lanka. However indicated the importance of a domestic programme that would support Sri Lanka’s external stance of non-interference in internal affairs. This would back-up the stance of friendly countries in taking a position in support of domestic process of accountability.

India:  Seemed to agree with the strategic relevance of the analysis of the last stages of the war in correcting the current perspective of the international discourse. However appeared to be pessimistic as to the opportunities to break through the OP 10 process. The suggestions offered in moving forward included, clarity and strict adherence to the stance of engagement/non-engagement in the OP 10 process; study modes of engagement of other countries that have been in similar position, reference being made to Myanmar; examine opportunities for engaging with special procedure mandates in creating an accountability environment supportive of Sri Lanka.

Meeting with UNHRC/COI:

The meeting with the focal point for the OP 10 process evoked mixed feelings. The lady keenly followed the analysis placed before her. She seemed interested, recognizing that it presented an alternate perspective that would be useful for the information gathering process. She was aware of, if not familiar with the UTHR report, from which the Third Narrative drew substantially. In the discussion that followed the following matters were clarified.

• Welcomed further submissions and open to submissions
• Information gathering and verification process around events and the threshold of evidence for assessment of violations
• Relationship of special mandate holders to the inquiry process. Review their reports for information gathering
• Total independence in information gathering and report preparation
• Advisors not directly engaged in information gathering, but will review the writing and the report

It is not clear if the approach to assessment of violations and information gathering in this regard would take cognizance of the views/data presented in the Third Narrative.

Side Event:

Overall the response of the participation at the side event seemed to be benign. Two critical comments raised the following issues.

• David Whaley
• UTHR report a travesty of what it seeks to explain
• That the argument of the Third Narrative rests on the credibility of the SLA, however the army had put down the JVP insurrections twice, misbehaved in the East, Mis-behaviour of the peace keepers in Haiti, How zero civilian casualties with the technology that was available, Weliveriya incident etc.
• Blessings of the Government
• Amnesty International
• Underestimation of numbers of civilians for food and medicine
• Does not deal with extra-judicial killings
• Whether violations of distinction by LTTE allows indiscriminate killing of civilians.
• Whether willing to recommend to government a single analysis
• Whether any financial assistance for the work

Issues and implications:

For Countering the International Inquiry Process:

• Two-part strategy, international and domestic to counter the case for an international inquiry

For Marga/CHA:

Clarifying the role of Marga/CHA in carrying forward the message of the Third Narrative.

• Advocate the case for a shift in the approach to accountability during the last stages of the war, both internationally and domestically

A Note on the discussions the representatives of the Marga Institute and the Consortium of Humanitarian Agencies had with the Chief Coordinator of the OCHR investigations into alleged war crimes committed in the last stages the war in Sri Lanka

The Chairman Emeritus of the Marga Institute Godfrey Gunatilleke , the Chairman of the Marga Institute, Asoka Gunawardene and the Executive Director of the Consortium of Humanitarian Agencies Sri Lanka, (CHA). Jeevan Thigarajah 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 discussions were held in UN Palais Wilson on the 8^th 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 Co-ordinator 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 (UNPoE) , 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 UNPoE 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 UNPoE 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 UNPoE and the LRRC, did not have access to the evidence available to the other [body]. The UNPoE 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 the 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 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 fronts south of Mullaitivu up to the fall of Kilinochchi on 1^st 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 UNPoE 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 UNPoE 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.

• 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.

The Chief Coordinator [Sandra Beidas] 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.

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.

Meeting NGO and other interested personnel under the auspices of the International Buddhist Foundation, 8 September 2014

Panellists: Mr Godfrey Gunatilleke, Dr Asoka Gunawardene and Mr JeevanThiagarajah. The event was attended by about 75 participants, including delegates from a few Western Missions who however made no interventions

Dr. Pinnagoda, the moderator of the side event welcomed the audience and introduced the panelists. He said that the Third Narrative, as denoted by its title presents an alternative narrative of the events of the last stages of the war, in the wake of the purported conflicting and often contradictory accounts of the last stages of the war in Sri Lanka by many stakeholders, including the Government of Sri Lanka, the LLRC, the United Nations, others including expert panels, diaspora activists and individual writers. He said the panellists will explain the rationale for the third Narrative as a new path in achieving sustainable peace and reconciliation for the benefit of our nation and people.

In his opening statement Dr. Godfrey Gunatilleke gave a brief introduction on the Third Narrative and spoke about the joint work of the Marga Institute and CHA. He stated that these organisations, namely, the Marga Institute and CHA, have been studying the ethnic conflict for many years, and he himself has studied the ethnic conflict for twenty years along with the government, international agencies and Civil Society Organisations.

Mr. Gunatilleke stated that this narrative was the outcome of a series of discussions, following an intensive analysis of the Darusman Report [i.e. UNPoE], and the LLRC and after March 2014, many were disturbed about the deadlock that this whole process had come to. He said that “on one hand in the UNHRC, the US was proposing a Resolution to conduct an inquiry into the war crimes committed by the LLTE and the Sri Lankan Army. On the other hand, the GoSL took a firm stand stating they would not participate in the process. Therefore, as citizens, the panelists felt that this was devising an impact on the whole society, the international image of the country and its relationships with the outside world. We asked ourselves whether we can think of a possibility of a third way.” As a third approach, Mr. Godfrey stated that an engagement in a truth seeking process would enable a better understanding on what went on in the war.

Further, he stated that all ethnicities need to understand this tragedy together to move towards the reconciliation process. He said “UN has also got mixed up in a controversial process where the major objectives of the UN, the core human values, have not produced anything positive…. in the healing of society.” Also, he claimed that there is the need to re-examine the narrative going around the international community and readdress what went on in the war.

According to Mr. Gunatilleke, there were three reasons for this outcome of a narrative to be clearly stated. Firstly, he said “it is believed that the present narratives are divergent….” He referred to the Darusman Report, the LLRC, the humanitarian operation produced by the Army and the UTHR and with specific reference to the LLRC and Darusman reports said they “one party did not have access to the evidence of the other”. He stated that the Darusman Report did not have access to the the main actors of the war, ” the Army, the government, civilians, and Sri Lanka did not participate in this process. So the Darusman report relied on one body of evidence and is considered to be slanted….”

In his view, “the LLRC did not have access to the evidence that the Darusman report had. The UN, the INGOs, the expatriates, witnesses …they refused to come before the LLRC, therefore the full body of evidence was not available.” He said after these reports were written, there were a large volume of writings produced by scholars, basic agencies and referred to an Independent Diaspora Advisory group that produced a report called A Number’s Game estimating civilian causalities in the last stages of war. Mr. Godfrey stated that the basis that these numbers were constructed were unknown. Thus, he said it was important and essential to have a third narrative in providing a comprehensive account on how the war was fought, to define and frame issues of accountability. Furthermore, he commented that this narrative was important in looking at the context of the war and why the battle was fought.

He said the report by ICEP (Australian Group) and the Darusman report were examined and it was concluded that the methodology was flawed seriously. In his view these reports “extracted incidents from the whole process of the war and enumerated the crimes of the LTTE…failing to examine the atrocious actions that the LTTE had committed.” However, he said “they had listed the crimes of the SLA, such as artillery shootings into hospitals, driving in the civilians and pushing them into the NFZs.”He stated that the panelists analysed reports of both parties very independently. ” He said the reports do not ask the questions on sequences of events nor does it question the primary responsibility holders for what happened. He said “what we have done is to reconstruct the war for ourselves and the others in a way where we could put these actions in to the context of the fighting and the battlefield.”

Mr. Godfrey commented that the narrative reconstructs the war by dividing it into several parts. Firstly, it looks at the Eastern Province war fought in 2007, prior to the Wanni war. He stated that “the war did not have any major outcry on civilian causalities and that the artillery fighting was between combatants, while the safe corridors allowed citizens to move out and into the battle free zones… further, no Tamil party, including the TNA, raised any questions regarding discriminate artillery firing…” “However, there had been one report of the UTHR where it was claimed that there was indiscriminate artillery fighting. What conditions made this part of the war different, was not clear, “he stated.

The narrative examined the Wanni war in 3 phases. The first phase was from Madhu to Kilinochchi, the second phase was from Kilinochchi to the NFZ in the coast, and thirdly, the last battle was faced in the NFZ. In analysing the first phase of the war, it is believed that there were heavy causalities by both parties, the SLA and the LTTE. However, no civilian causalities from Madhu to Kilinochchi were found. On the other hand, two incidents were reported by the UTHR and the Tamil Net where artillery firing had taken place into small camps of citizens in the North and South of Kilinochchi, when the war was progressing and the civilian causalities were claimed to be two persons by the Tamil net and the UTHR produced a figure of seven, while the second incident had given a figure of about seventeen. Mr. Godfrey stated that these are accepted as a part of the collateral damage that occurs in an exchange of fire. Further, he emphasised that the international community, the UN and the media did not raise any questions, at this given period. Again, Mr. Godfrey reiterated as to the question of how the character of the war may have changed and as to why was unknown.

Mr. Godfrey also stated that during the phase between Madhu and Kilinochchi, there was an opportunity for the UN, the international community and the government, to separate civilians from the LTTE, but it did not occur. Moreover, there had been an incident in Madhu where the citizens pleaded with the religious leaders and the UN to be taken out and brought to Mannar, but because there was a tendency to regard the population in the controlled areas as being a population that was under the power and control of the LTTE, no action was taken. During the ceasefire, an unacceptable condition denied freedom of movement to the Tamil civilians in their area. Entry points were placed and people needed to acquire passes to travel from one point to the other. Further in Madhu, children were taken in and parents were resisting it. However, it was stated that the SLA and the government, all failed to take any action and the LTTE took along the civilians.

From Kilinochchi, onwards to the NFZ, LTTE and the civilians together were moving along. Mr. Godfrey stated that the SLA had attempted to get the civilians to come to the safe corridors, but the civilians were prevented. At this instance, the LTTE had fired at their own civilians, where the UTHR report speaks of their actions in stages: intimidation, beating and firing to injure, and lastly, more lethal and fatal.

Further, in the NFZ, mothers and children were killed while crossing the lagoon. On the 16^th of May, the UTHR claimed that 400 were killed and it has been confirmed with further evidence. However, according to what the IHL describes as the principles of distinction and proportionality, it is of great importance to distinguish between citizens and combatants and non-combatants. Mr. Godfrey commented that in trying to achieve a military objective, it is permitted to cause collateral damage that is proportional, but not excessive. The IHL allows lawful killings to achieve a military objective and this law is applied in the Darusman report and ICEP report. But how do you examine proportionality in the context of how the war was fought, is a question that must be considered in this context, he claimed. Moreover, in the NFZ, it was unable to distinguish LTTE and civilians, because of no uniforms. Further, he claimed that the artillery the LTTE acquired, was immense. Mr. Godfrey stated that the UTHR report says the LTTE fired to attract civilians, and to retaliate the army. Additionally, the artillery by the LTTE was mounted on moving vehicles towards the civilians and these shelling may have fallen on the civilians and indiscriminate firing on civilians’ occurred, which were spoken of in the Darusman report. The Darusman report does not take into account the circumstances that occurred for such outcomes. He stated that the citizens were used, conscripted and put onto the fortification of bunkers. Also, these were built during the war and the civilians built these formidable weapons. Here Mr. Godfrey questioned the issues of distinction and proportionality.

Moreover, he spoke of an NGO boy who went to interview mothers who have lost their children, wives that have lost their husbands, children who have lost their parents. He stated that this boy travelled to Batticaloa, Mannar, Vavuniya and Jaffna, interviewing civilians who lost their loved ones. Mr. Godfrey stated that their responses were the fact that they lost their children to the war, or how they lost their wives or husbands to the war. In examining the responses provided by the civilians it is clear to understand that no party was accused but only the fact of their loved ones being lost to the war was claimed.

Mr.Gunatilleke believed that all that contributed to the war are accountable. He mentioned that this is not only about the last stages of the war, but it stemmed from the political failures of the country leaders, the arms struggle from the young Tamil persons and their recourse to terrorist methods all along. In concluding his time allocated, he asked the audience to read the document critically. Further, he stated that if the audience had any available evidence to communicate it across to them, especially if the evidence is in contrary to what has been stated in the narrative, it would be important as the narrative is subjected to public scrutiny, so that all can come to agree on what happened in the war across communities and international communities.

The floor was opened to short questions or comments.

Mr. Kirubaharan (a Human Rights activist who has a long standing relationship with the LTTE)

“You are representing an NGO and you are talking about the Darusman report and you don’t want to mention that it is an UN Expert report that is one of my points. Secondly, not only me, the audience here, maybe other than your friends, can see that you’re completely justifying the war on the governments side. You’re not talking anything about the atrocities made by the government. You’re completely going into the violation and talking about the LTTE, Darusman report. These we have all heard for a long time here and not only you. I can see that some of you have already come and briefed us on the government point of view in this building. I can see the point of view and it’s nice work you all have done. I don’t have time, matter of 5 to 10 minutes; I can see what you all are writing. People have suffered and people have gone, and in an international investigation you are talking and justifying on the governments side today. And you said government and army did a humanitarian war. You see if you had lived in Wanni or in the North, you would have known the suffering”.

Mr. Gunatilleke commented that he raised two good points and he responded stating that “I use the term Darusman report not to deny its own role in the process, but the UNHRC did not adopt it as a UN document. Whatever name it gives, it is important to analyse it impartially.

In response to the charge of us justifying the war, I find it difficult to answer that question. The war was a legitimate war. The war on the part of the government was a legitimate war. Under the IHL, the government was entitled to defeat and crush the LTTE. On justifying what happened, we are much more careful. The charge that the war was fought with the intention of killing large numbers of Tamil civilians does not stand the test of careful impartial scrutiny. The fact that individual crimes were committed on both sides, one has to face. The series of questions [by Mr K] that assert that the war was fought and the civilians were driven to the NFZ and massacred, is completely untenable. That is what we are trying to say.”

Dr. Asoka Gunawardene stated that his presentation is based on the accountability of the government of Sri Lanka. He stated that the methodology in the UNPoE and International Crimes Evidence Project is flawed. Also, the analysis of accountability that allures in the course of the war, in respect of specific events of the war is questionable. However, he stated that question on accountability is asking if the GoSL went beyond justifiable military actions to defeat the LTTE and deliberately targeted the civilians. Also, if the combat action used methods and means that were deliberate and indiscriminate. Both the PoE and the ICEP reports are built on the basis of the investigation on events and move on to allegations of genocide and war crimes.

Dr. Gunawardene reminded the audience that the PoE was brought about in November 2011, and the ICEP investigated into international crimes on the finals stages of the war. He also mentioned the GoSL’s position on the LLRC, and the Ministry of Defense Humanitarian report factual analysis. Further, the narratives of the UNPoE, the ICEP, and the LLRC are diverged very sharply. Additionally he mentioned that a report by the US State Department to the Congress, points out the discrepancies between the LLRC and the UNPoE. The ICEP reports that attacks were on civilian population primarily, the attacks were widespread and systematic, the total figures on people in the arena were understated in order to reduce the food and medicine supplies. However, Gunawardene claimed that the ICEP does not take into account the hostile conditions in which the targeting takes place and that the combats and non-combats should have been distinguished. Further, mentions the facts produced in the narrative, where LTTE vehicles were asked not to park near hospitals and that they used suicide attacks in the NFZs. Dr. Asoka also commented that the figures produced vary in terms of civilian causalities and displaced persons. He also argued that the PoE and ICEP do not take into consideration the LTTE conscripts in the NFZs, violations of the IHL and the large amounts of shelling they resorted to.. In concluding his presentation, he also stated that the reports by the UN are flawed and do not take into account the level of conduct in combat, which changes the rules of procedure.

Mr. Thiagarajah mentioned the different phases of the war and the importance of analysing all the stages, to incorporate a greater understanding of the background of the war that led to 3 of the 4 earlier phases. He also commented that the war has caused the country physical loss, economical loss and material loss, greater and better models of political solutions, sharper, intense and more brutal methods of fighting, greater involvement of the UN and the international community with each successive phase and larger forms of displacement and flight with bitter voices of dissent. The sum of this inheritance is what the Narrative sought to bring to peace. Further, he stated that OP2 and OP10 would not help the country, but emphasised the greater importance of OP2, if insisted upon. In early January 2009 the Norwegian Ambassador conveyed a Government offer of Amnesty to all cadres bar the leader and head of intelligence which was rejected; in early February 2009, the UN had was aware fighting would last weeks, appealed for a NFZ, when trying to look for locations in dropping food and medicines in the coast off the North. The Co-Chairs and UN had understood ‘distinction’ had ceased which meant civilians were hostage and surrender by LTTE was essential. On 19^th February another Government sought the LTTE to lay down arms and release the civilians. He asked the audience to refer pages 87, 91, 95 and 96, which gives the background on the food mechanism process applied by the GoSL. Further, he spoke of how the GoSL had to find other means of finding landing points providing food and medicine from the sea as shown in the book…

The Delegate from Cuba thanked the panelists for providing an alternative narrative on the last stages of war in SL and mentioned that while the GOSL always provides an update on the progress since the end of the conflict in the HRC, it is good to see civil society also coming to provide their views on the reconciliation process. He asked what are the gaps of the international accountability mechanisms in addressing accountability of the non-state actor, the LTTE.

Mr. David Whaley (a former UN resident Coordinator who worked in South Africa and other countries) raised concerns on the LLRC being selective in its work (factual) about the behaviour of the SL Army (SLA) on sexual violence against civilians. He mentioned that there were reputations on the behaviour of the “mono- ethnic” Army of the Govt. and referred to the incidents when the SLA has “brutally put down” Sinhalese youth (JVP) in the two decades. He mentioned that while he was working in Sri Lanka he predicted that there will be a “tragedy in the North” after the end of the war in the Eastern Province. He said that the UTHR mentioned that Tamil populations were “scared “to got to the SLA controlled areas due to their fears. He mentioned that some of the SLA officers sent as peacekeepers were returned (110) with charges against them for sexual violence against the people they were supposed to protect. He said “no prosecution took place.” He also mentioned an incident, where the SLA was ordered to shoot a riot in Negombo recently. He referred to a June 2009 UN report says the Defence Ministry instructions were “no prisoners, no negotiations, no observations, regulate the media…This is a recipe for disaster.” He said in MOD website 2006, 2007 and 2008 they published “remorselessly” the killings of large numbers….He questioned the neutrality of the panel. He said that he is “saddened to know that this panellists seem to have the blessings of the political side at the highest level, as stated by Sunday Times article yesterday..”

Further, he stressed that according to the panel that there were a large amount of civilian causalities, even though the LLRC produced by the GoSL states that there were no civilian causalities or zero causalities. He commented that a public debate for all organisations is necessary to provide collective information and also stressed the importance of publishing the reports of the independent commissions and military tribunals of the government and the need for them be available in the public domain for access. He thanked the panellists for showing the necessity of an independent international investigation in cooperation with domestic process. He asked the panelists whether they will “take the challenge to allow Sri Lanka cooperate with the UN investigation.”

Mr. Thiagarajah questioned him back and asked his opinion on who should be in control in the North, and if it is acceptable to allow 15 or 16 year olds in combat to be held and people are kept trapped at borders.

David Whaley stated that the panelists had skipped the period of 2002–2005 deliberately, when peace talks had taken place between the parties. To the question of Mr. Thiagarajah, he said that if the war had not ended in 2009, he believed that there would be a peace negotiation between the LTTE and GOSL on an autonomous government in the Northern part of SL.

In response to this question, Mr. Gunatilleke mentioned that it is important to understand the transformation that the SLA went through at the latter stages. He referred to UTHR report which describes an incident when the SLA takes civilians across a mine field and the civilians say that the Army behaved better than the LTTE. He said “you have to accept the different sides to a story.”He referred to Lord Nasby’s statement. He reiterated that there are many sides to every story and questions produced by UTHR gives the impression that the civilians and LTTE were not distinct of one another. He agreed that horrible outcomes took place during the war and stated that the conclusions regarding the war [in the UNPoe Report and other statements in the media] are not supported by the factual information. Godfrey also indicated that they are an independent entity and have moved away from the GoSL to entail a different perspective.

The delegate from Venezuela asked the panelists what is the effect of the OHCHR finding and this was answered by Mr. Gunatilleke who claimed that no one knew the findings as yet. He said that the question was whether there will be a “right outcome” from this process. He said “it will be constraint…they would not get the evidence they need.” Mr. Thiagarajah added that “ I don’t think that OP 10 can do what OP 2 can do. The outcome of this process would happen only if you try to heal and bring people back together…”

The delegate from China next questioned the panelists and asked them what is the prospect of Sri Lanka’s diaspora on reconciliation, which was responded to by Mr. Thiagarajah who stated “We drove our people out of the country… many people of SL origin … we need to find a middle ground, this is not going to be easy…. we need the support of the people to agree on the narrative of the history and their voice needed to be added in reconciliation”. He also mentioned that not all Sri Lankans overseas supported the war. Mr. Gunatilleke responded at this point and reiterated the importance of accountability and spoke of the developments of the LLRC.

Mr. Peter Splinter, Amnesty International Representative to the UN asked the following questions:

• to denial of food and medicine to civilians in the last stages of war, why GOSL underestimated the number of civilians who were under control of the LTTE?
• We heard different statistics by the GOSL which is a sign of deliberate indirect denial of the numbers of casualty figures
• The report produced by the GoSL does not address serious credible allegations of extrajudicial execution of surrendered combatants, which amount to war crimes. The panel seemed to be indicating that targeting civilians is acceptable by IHL. That it is legitimate to target civilians which should be proportionate to the military objectives.
• Welcomed answer given to David Whaley and asked the panelists whether they are going to request the GOSL to cooperate with the UN investigation, which is not coming from an organization which is believed to be coming with a particular bias, like other reports did.
• “Since 2008 we have witnessed the continuing campaigns of misinformation by the GOSL…we like to ask if the panelists received financial support for your report.”

Mr. Thiagarajah responded to this comment and denied that the numbers of civilians have been underestimated or overestimated. He also emphasized that the WFP provided bulks of rations to all civilians and there was a process of cooperation between the UN and GOSL based on the number provided to the GoSL and also mentioned that Amnesty asked the same questions in 2012. He also mentioned that the panelists were not sponsored by the GOSL for their work.

Mr. Gunatilleke responded that “if you are talking about discriminatory targeting of civilians, how do you distinguish a civilian and a combatant as your target? How do you calculate how many died?” He specified at this given time that a number of 330,000 IDPs were estimated and all the figures were directed from the LTTE. He further mentioned that the number of casualties range from 7000 – 330,000 and that it is a difficult task to produce exact numbers, in the context of a war. Mr. Godfrey also stated that according to the UTHR report on the 5^th and 6^th of May, 14,000 disappearances were indicated, but no definite answer had been produced. He said “if you add up all the casualties mentioned in the UTHR, it would add up to about 500, including those killed by LTTE.”

Mr. Gunawardene emphasised that the proportionality was discussed in terms of how it should be taken into consideration in the context of principles of distinction, rules of prohibition and that discriminatory attacks are prohibited by the IHL. In his view, at this point that all these need to be assessed based on the conditions in which the targeting took place.

Mr. Gunatilleke said that GOSL has taken a position that under OP 10 the OHCHR has gone beyond its mandate, which is not in the interest of the HR regime in the country, and it does not help the domestic process. He said “we are dealing with the substance…we have submitted our report to the chief coordinator of the OHCHR Investigation Team. We are also building up evidence at ground level…evidence from NGO should be taken out.”

Mr. Surein Peiris, President of the Sri Lanka Association in Geneva (SLAG) stated that as citizens of Sri Lanka, they appreciated the construction of the narrative. He mentioned that the war was perplexing and that numerous factors needed to be taken into account. He further commended this narrative and stated that they look forward to a fruitful constructive dialog to that would lead to an united Sri Lanka.