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LTTE principally responsible for civilian deaths in final phase of war
The Paranagama Commission appointed by former President Mahinda Rajapaksa to inquire into complaints of abductions and disappearances, found the “LTTE principally responsible for the loss of civilian life during the final phase of the armed conflict”, but accepted that, “shelling by the Sri Lanka Army (SLA), undoubtedly, led to a significant number of civilian deaths.”
The 179-page report of the Commission was tabled in Parliament on Tuesday by Prime Minister Ranil Wickremesinghe, along with the Udalagama Commission report which also looked into a few select cases of Human Rights (HR) violations.
Among these were the taking of 300,000-330,000 civilian hostages, implementing a strategy of killing Tamil civilians to suit their military aims, using civilians as a strategic human buffer leading to considerable loss of civilian life, using hostages to dig trenches and build fortifications, thereby exposing them to harm, sacrificing countless civilian hostages to keep the LTTE leadership in power, and forcing them into the front line leading to the deaths of large numbers, forcing a great number of children to man the frontlines, deliberately preventing civilians, under their effective control from fleeing to areas away from the fighting, and executing civilian hostages for attempting to escape from captivity.
The Commission also accused the LTTE of shelling civilian hostages in order that the LTTE could assign those deaths to the SLA for media purposes, to provoke international humanitarian intervention, placing their heavy weaponry amid civilians, making it inevitable that there would be civilian casualties, killing civilians through the use of suicide bombers, placing mines and other explosive devices causing civilian deaths, also causing the deaths of civilians who drowned in their attempts to flee their LTTE captors, and adopting a practice whereby a significant number of its cadres fought in civilian clothes, thus blurring the distinction between combatants and civilians, inevitably leading to civilian deaths.
”Indeed, in the absence of these actions, there may have been a much reduced number of civilian casualties,” the Commission said.
However, the Commission accepted that shelling by the SLA undoubtedly led to a significant number of civilian deaths, but stressed this was an inevitable consequence of the LTTE’s refusal to permit civilians to leave their control, in order to use them both as a shield and a pool for recruitment, even when the Government permitted a ceasefire on April 12, 2009.
The Commission rejected the suggestion that civilians were either targeted directly or indiscriminately by the SLA as a part of an alleged genocidal plan.
It also rejected the Darusman Report’s finding that ‘a number of credible sources’ have estimated that there could have been as many as 40,000 civilian deaths.
“None of these sources are named and this figure is at substantial variance with other estimates of casualty numbers which vary from 7,721 (UN Country Team), to 6,710 (US State Department), to nearly 7,000 (International Crisis Group), to 10,000 (Amnesty International).
This Commission is satisfied that such is the spread of figures given for the loss of civilian life during the final phase of the conflict, that crude calculations and guesswork in assigning civilian deaths to the SLA should not take the place of meticulous research,” the Report said.
The Darusman Report, named after Indonesian politician Marzuki Darusman who chaired the three-member panel appointed by the Secretary General of the United Nations (UNSG) Ban Ki-moon, to advise him on the issue of accountability with regard to any alleged violations of international HR and humanitarian law during the final stages of the Sri Lanka Civil War, estimated there could have been as many as 40,000 civilian deaths.
“Not all civilian deaths in war are unlawful and a violation of International Humanitarian Law (IHL) does not occur every time a civilian dies, or even when casualties reach a record high.
Civilian casualties may constitute lawful collateral damage as long as a military force carrying out an attack complies with the core IHL principles of distinction and proportionality.
In the view of the Commission, the use of human shields by the LTTE and its impact on the principles of distinction and proportionality needs to be factored into any evaluation as to whether civilian loss of life, however regrettable, was excessive in comparison to the anticipated military advantage and, therefore, unlawful..” it said.
The Paranagama Report noted that the Darusman Report, despite finding credible allegations that the LTTE took thousands of civilians as hostages and executed those attempting to flee, concluded that the LTTE’s action did not in law amount to the use of human shields due to the absence of credible evidence that civilians were deliberately moved towards military targets to protect the latter from attacks.
In the view of the Paranagama Commission, this conclusion is based on an unduly narrow interpretation of the law and factual situation.
The Commission took the view that the extrajudicial executions of May 18, 2009, dubbed ‘White Flag Killings’, must be the subject of an independent judicial inquiry.
If proven, such conduct undoubtedly qualifies as a war crime under the Hague Regulations 573 and Common Article 3 of the Geneva Conventions.
“The LLRC makes reference to evidence (although not to the surrendering leadership of the LTTE) of combatants and civilians who employed the use of white flags in surrendering and came to no harm at the hands of the SLA.
However, in the view of this Commission, this evidence makes the allegation relating to the surrendering LTTE leadership even more sinister, as it would seem to suggest that the leadership was being singled out for execution,” the Commission said.
The Commission emphasized, however, that individual and isolated incidents which are capable of amounting to war crimes, or even crimes against humanity in the report, should be the subject of a judge-led investigation.
“Commander of the Sri Lankan Armed Forces, now Field Marshal Sarath Fonseka, as recently as May 2015, has himself, welcomed the need for a war crimes investigation into a number of incidents.
In an interview recorded in the London Guardian newspaper on May 27, 2015, Field Marshal Fonseka maintained his innocence, while being cited as ‘accepting that some crimes occurred during the war,’ albeit maintaining that such actions were done by individuals, rather than as part of any widespread policy by the SLA,” it said.
The Presidential Commission to Investigate Complaints regarding Missing Persons known as the ‘Paranagama Commission’, was established by former Sri Lanka President, Mahinda Rajapaksa, on August 15, 2013.
The Paranagama Commission’s original mandate was to receive complaints and investigate abductions and disappearances in the North and East of Sri Lanka during the period June 10, 1990 – May 19, 2009, in order to identify the persons responsible and initiate legal proceedings against them.
By June 2015, the Commission had received more than 21,000 complaints, and its work under the mandate is ongoing. On July 15, 2014, the scope of the Paranagama Commission’s mandate was expanded to address the facts and circumstances surrounding civilian loss of life, and the question of responsibility for violations of international law during the conflict that ended in May 2009.