Give a dog a bad name and hang him

A review of the UN Secretary General’s Advisory Panel Report recently conducted by the Marga Institute, a think-tank on human development issues, has raised some critical questions regarding that report’s adequacy, its motives and its interpretations of government strategy during the last stages of the war.

Ban Ki-moon set up the Panel ‘to advise him on accountability issues in Sri Lanka.’ But this Review suggests that the Panel’s idea from the outset was to prepare the ground for a war crimes investigation, and its report was skewed to that end. Excerpts from the draft are given below.

The panelists in the main session on the military operation were David Blacker and Arjuna Gunawardena. Their discussions, in question and answer format were based on a position paper by Marga’s Chairman Emeritus Godfrey Gunatilleke.

UNSG Panel of Experts

Gunatilleke says while the UNSG experts evidently had reliable and adequate information relating to the LTTE’s actions, it did not have access to an account of events by the Government of Sri Lanka (GOSL). However the experts do not admit to this lacuna and its implications.

“In the absence of a full account from the GOSL it falls back on a few statements of the government which claimed that the war was a humanitarian operation directed at rescuing the Wanni population from the control of the LTTE with zero civilian casualties. It treats these public statements as the full account which the GOSL has to give of all its actions and dismisses these claims.”

Gunatilleke asks why the UNSG panel ignores its own evidence of the LTTE’s actions in integrating the civilians into the battlefield and its consequences for the options available to the Sri Lankan army. “If it took account of the information they already have it would have had to reconsider its interpretation of the GOSL’s strategy in regard to intentionality and proportionality.”

Other major flaws found in the Panel’s account were as follows:

• The dubious manner in which the Panel exceeds its mandate which does not include fact finding and investigation. What it actually does belies its statement that its work does not include fact finding and investigation leading to conclusions about culpability.
• The tendentious nature of presenting allegations as the true account of what happened.
• The lack of transparency in not disclosing the sources of information and assessing their reliability
• Excluding government actions which are not consistent with the Panel’s interpretation,
• The untenable basis on which the charge of extermination is based.
• The refusal to examine other credible explanations relating to civilian casualties and the confusing speculation leading to the high estimate of civilian deaths and the significant omissions in the report that could provide a different explanation of the government’s strategy and actions.

“In its account of the IDPs the Panel shows little appreciation of (a) the magnitude of the problem and government’s efforts to deal with it (b) the need to balance security considerations with humanitarian concern.

The Panel makes no reference to favourable assessments and accounts given by UN agencies and other organisations and observers of the IDP situation. Apparently it also had no information or knowledge of the outpouring of sympathy and the generous flow of essential goods to IDP centres from all parts of the country. It leaves out all facts which may contradict its own account of the inhuman treatment of the IDPs by an oppressive government.”

The Marga panelists did not see the UNSG Panel’s narrative as meant to be an objective narration of events, but rather as a document comparable to a policeman’s request for a search warrant, which sets out to show sufficient suspicion of guilt. However they noted that since the report has been released to the public and is being treated and used as a historical account, its biases and subjectivity must be brought into account.

They note the Panel says that visiting Sri Lanka “was not essential to its work”, thereby confirming that an actual investigation was never its intention. In spite of this statement, the Marga panelist noted that the laying out of the events takes the form of a narrative or historical account, suggesting that it is fact rather than allegation.

“Thus, footnotes are given to previously documented statements or reports, but there is no indication of where the other information came from. It is, of course, understandable that witnesses cannot be named at this stage, though it is still necessary to indicate the capacity of eyewitnesses, whether he or she is a civilian IDP, an NGO worker, or a journalist. Often, allegations of the use of artillery, cluster munitions, white phosphorous, etc are made without any indication of the source, or what expertise that source may or may not have in determining whether these were indeed the weapons and munitions used.”

The Marga panelists “found this to be further compounded in the Executive Summary of the report which, for example says in the section Allegations Found Credible by the Panel, “Some of those who were separated were summarily executed, and some of the women may have been raped. Others disappeared, as recounted by their wives and relatives during the LLRC hearings.” Thus by lumping together the unattributed allegations of rape and execution with those made by identified witnesses before the LLRC, the Panel report gives the rape and execution allegations a higher credence which they may not deserve.

In response to the question as to whether the Panel had “examined all possible explanations and interpretations of the events and actions before coming to its conclusions” the Marga panelists found that the report analyzes certain events and draws conclusions which often do not take into account factors that the report itself acknowledges elsewhere.

“In a report which must examine motive, the refusal to examine the impact of Tiger actions on those of the GoSL and the SL Army is indicative of an unwillingness to acknowledge the possibility that there might be motives other than those alleged by the report.”

An example they cite in this regard is that “there is no attempt to acknowledge the fact that allegations against the Tiger such as “(i) using civilians as a human buffer” and “(iii) using military equipment in the proximity of civilians” would contribute hugely to “(i) killing of civilians through widespread shelling” and “(ii) shelling of hospitals and humanitarian objects”, as the SL Army is alleged to have done.” While the strategies and actions of the LTTE were covered in the Panel’s account, they were not treated in a manner that indicates cause and effect.

The Marga panelists were of the view that the specific dismissal of Tiger military action in close proximity to hospitals and civilians must be treated in the same way as the entire report. “Its purpose is to point out to the UNSG that the GoSL and the SL military look guilty enough for further in-depth investigation. Hence pointing to Tiger violations as a probable cause that might have directly contributed to the civilian casualties would be counterproductive.”

“It is for that reason that the report refers to the SL Army’s attempts to help civilians escape as actions by “individuals”, rather than as part of a plan, suggesting that these “individuals” were acting alone and in contravention of the actual policy, which was to kill as many civilians as possible. Similarly, using phrases like “human buffers” instead of “human shields” reduces the perceived severity of the Tiger violations, thereby keeping the focus on allegations against the SL Army.”

Regarding the UNSG Panel’s treatment of the government’s statements that claimed the war was a humanitarian operation to rescue the Wanni population with zero civilian casualties, the Marga panelists noted:

“The few statements from the GoSL that the Report quotes (none of which are addressed to the Panel, and most of which were made during the war and in its immediate aftermath) have also been taken as statements of fact, and not looked at in the context of political rhetoric and propaganda.”

“The ‘humanitarian operation’ and ‘hostage rescue operation’ claims of GOSL, which the report tries to use to invalidate the actions taken by the SL military have as much credence as the United States calling the invasion of Iraq “Operation Iraqi Freedom.” Indeed to take these literally would be to display incredible naiveté at best, or an intent to use things out of context to prove a point.”

On the subject of deliberate shelling of civilians and hospitals, Marga says its panelists found it difficult to ascertain how this conclusion of intent was arrived at by the Panel. “They noted that as stated earlier the movement of Tiger units and artillery within the NFZs and in close proximity to the civilians would indicate that even with the civilians’ best interests in mind, it would be very hard to avoid casualties among them, simply because of the restricted battle space.”

“The Report focuses only on civilian casualties and gives no information of Tiger units coming under fire in close proximity to the civilians, something which many eyewitnesses have admitted to seeing themselves. Leaving this out of the Panel’s narrative suggests that there was very little or no military activity in the areas around the civilians, and that therefore there was no reason for any shelling by the SL Army.”

“The facts however are different, and a lot of UAV footage as well as SL military statements point to the fact that the Tiger units were actively fortifying and defending terrain even in the NFZs, often relocating high value weapons and ordnance within the NFZs and in close proximity to the civilians, and that far from the civilians and hospitals being easily recognizable islands in a sea of calm, they were right in the middle of an intensely contested battlefield.”

Making detailed reference to UAV footage and satellite imagery of some of the damaged hospitals (Udaiyaarkaddu, Vallipunam, PTK, Ponnampalam, and Puttumatalan hospitals) the Marga panelists showed how the UNSG experts had been selective in their presentation of this data, and that what they alleged to be deliberate targeting was more likely to have been unfortunate collateral damage.

“The purpose of the Report is to give the UNSG enough information to take whatever fresh action as is possible. It is not supposed to be the results of an investigation, nor is it supposed to be an indictment that can stand up in a court of law. It is simply put together to show enough credible allegations that serious war crimes and crimes against humanity have been committed by the GoSL, and to overcome the resistance of the latter and its international allies to an independent investigation.”

Note: David Blacker is described in Wikipedia as a Sri Lankan author who in the early 1990s served in the Sri Lankan army at Elephant Pass. Blacker in his blog The Blacklight Arrow describes Arjuna Gunawardena as a defence analyst, writer, and expert in suicide terrorism.

The writer is a senior freelance journalist