Sunday Times 2
Sanctions and Sri Lanka’s failure to address human rights allegations: A self-inflicted crisis: A response
View(s):- Right of reply
By Rear Admiral (Dr) Sarath Weeraekera
Javid Yusuf In his Sunday Times March 30th article headlined “Sanctions and Sri Lanka’s failure to address human rights allegations: A self-inflicted crisis,” says the UK sanctions on the four individuals were for alleged human rights violations during the civil war. I being an ex-military officer (with 39 years of active service) thought of responding to his article.
A civil war is a war between opposing factions or regions in the same country (for example, the American Civil War). Ours was a war waged against a terrorist outfit by a legitimate government. As per the UNHRC (OISL report) and the Panel of Experts (Darusman report), what we had in our country was not a civil war but a Non-International Armed Conflict (NIAC). The LTTE even killed members of his own community. Does that qualify to be called civil?
The then government launched a humanitarian operation to rescue the people whom the LTTE used as a human shield
As per the Additional Protocol II of the Common Article 3 of the Geneva Convention, the applicable law in a NIAC is International Humanitarian Law (IHL) and not the International Human Rights Law (IHRL). In an armed conflict human rights are derogated to the point that only the “hardcore human rights” prevail. Such provisions are included in Protocol II.
Chapter 6 of the Additional Protocol II clearly mentions the penal procedure, the manner in which an accused is to be tried for an allegation. The accused should be informed of the charges, and he should be given an opportunity to defend himself.
In UK sanctions, what are the charges against them? Who were the people who gave evidence, and in what courts were the cases heard? Javid sarcastically says that “hardline factions decry the move as an attack on the sovereignty of the country”. It is certainly not only an attack on sovereignty but also a blatant violation of the Geneva Convention. What right or authority does the UK have to try military officers in another sovereign country for war crimes/human rights and render punishment arbitrarily? Can any country impose sanctions on the British military officers who were found guilty by the Saville commission for shooting at 26 unarmed Northern Islanders and killing 14 of them?
Javid, in justifying the UK sanctions, says that it’s because of the past governments’ failure to address the allegations of war crimes such as indiscriminate shelling, killing civilians unnecessarily, etc. Under the laws of NIAC and IHL, civilian deaths from an attack are considered legal or not on the grounds that such an attack has met the requirements of three principles, namely distinction, military necessity and proportionality. These principles are also viewed thoroughly when investigating any war crime allegations.
The principle of distinction is that the parties to the conflict should be clearly identified from their uniforms. The LTTE had a trained civilian armed force, and their men fought in civilian clothes. Also, the LTTE kept civilians as a human shield and fired from amongst them.
ICRC Head of Operations for South Asia Jacques De Maio, who was in the conflict zone, has stated, “LTTE commanders objective was to keep the distinction between civilians and military assets blurred. The LTTE did not fire wearing uniforms, and it further confounded distinction. The SL Army did its part by creating safe zones and asking civilians to move into them.” If the civilians and combatants cannot be identified, how can one say this many civilians have died?
Those who justify UK sanctions, implying that the SL Army has committed war crimes/caused unnecessary civilian deaths, must read Mr. Maio’s statement made on July 9, 2009. “LTTE commanders kept the distinction between civilians and combatants blurred. In fact, the Army actually could have easily won the military battle faster with higher civilian casualties yet chose a slower approach, which led to a greater number of military deaths.”
The UK government, which was found guilty by the Chilcot Committee for unnecessarily massacring scores of innocents, including children in Iraq, must hide in shame for imposing sanctions on senior officers whose military sacrificed their own lives to rescue 297,853 innocent Tamil civilians from the conflict zone. When the Allied forces either killed or starved to death millions of those who surrendered, the SL government rehabilitated 11,600 hardcore LTTE cadres who were arrested/surrendered and released to society.
Under IHL, civilian casualties are allowed, but they should be commensurate with the aim of defeating the LTTE only and not excessive. Such an assessment could be done only by an independent international expert on the subject.
The following world-renowned experts were attached to the second mandate of the Presidential Commission of Inquiry into complaints of abductions, disappearances, war crimes, etc., publicly known as the ‘’Paranagama Commission’: Sir Desmond De Silva QC (UK), the chairman of the Legal Advisory Committee; Professor Sir Jeoffrey Nice QC (UK) and Prof. Michael Crane (USA). The Advisory Council was chaired by Mr. Rodney Dixon QC (UK), Professor Michael Newton (USA) (senior adviser to the US Ambassador for war crimes), and Major General John Holms DSO, OBE, MC (UK) (who was the former commanding officer of the Special Air Services).
A few of their recommendations/conclusions were as follows:
i. The POE report (the infamous Darusman report), which says 40,000 Tamils were killed during the latter stages of war, does not provide any concrete evidence to prove that casualty figure. As per the UN country report, the figure was 7721. The absence of identified and verified primary sources (this writer personally handed over the seven reports of the above six experts to UNHRC in Geneva).
Javid quotes from the UK government and says the sanctions aim to hold individuals accountable for serious human rights violations. In NIAC , it is the “hardcore human rights” mentioned in Art. 4(2) of the ICCPR that matters, as other human rights are derogated in an armed conflict. Such hardcore human rights are included in Protocol II. The penal prosecution procedure of Protocol II mentions how an accused should be dealt with. Arbitrarily imposing sanctions, rejecting visas, etc., by outside countries demonstrates the scant respect they have for the Geneva Convention and hence should be condemned.
Javid also says that since 2009, there has been no effective investigative mechanism established to examine the conduct of the military. This is far from the truth. The government had two domestic mechanisms, namely the Lessons Learnt and Reconciliation Commission (LLRC) and the Paranagama Commission. The LLRC concluded that the military did not deliberately target civilians, but the LTTE repeatedly violated IHL. Also, it mentioned that they received witness evidence alleging abuse by the military, which warranted further investigation and, if necessary, prosecution of perpetrators. As a result some soldiers were court-martialled and punished, and some military/police men were sentenced to death/imprisoned by the SL judiciary. Some cases may be before the courts even now. So how can one say that there were no investigative mechanisms?
We remember how David Miliband, the then Foreign Minister of the UK, came with his French counterpart, Bernard Kouchner, and met with President Mahinda Rajapaksa, asking to halt the offensive and allow Prabhakaran to leave the country. It was a slap in their face as MR ignored them and continued to end the war. Since that day onwards, the UK has been all out to ”punish” the military and political leaders. It even went to the extent of fiddling with and hiding data of its own defence attaché in Colombo when Lord Nasby tried to get the correct figure of dead in the war!
When talking about human rights, the UK must explain why it does not take any action against Adel Balasingham, who has violated the fundamental rights of thousands of LTTE child and female cadres! She was the key trainer of LTTE child and female suicide cadre. She stands guilty of training children to commit suicide by biting the cyanide capsule and killing themselves without surrendering to the SL army. The UK, whilst harbouring Adel B, a notoriously proven human rights violator, imposes sanctions against Sri Lankan military officers without any proof!. It is unfortunate that even reputed columnists such as Javid Yusuf try to justify the same.
(Rear Admiral (Dr) Sarath Weeraekera VSV RWP USP Ndc Psc, is a former Public Security Minister)