THE “PARANAGAMA REPORT” Part 2
By Kamalika Pieris
The Commission examined the many allegations made against the Sri Lanka army (SLA) during its final Eelam campaign. Some of these allegations have been of executions and deliberate or indiscriminate shellfire, acts which are totally inconsistent with what is expected of a responsible army discharging its duties in accordance with the laws and customs of war. The implication is that this was due to either a deliberate policy to target civilians or recklessness in artillery firing. The Commission has not shied away from examining those allegations and accepts that they must be dealt with seriously.
The Commission particularly looked at the adherence to or neglect of the principles of distinction, military necessity and proportionality under the laws of armed conflict and international humanitarian law, by the Sri Lankan armed forces. The Commission obtained a military report on the subject from Major General John Holmes, a former British Army officer with extensive international experience, including hostage operations.8
The issue for this Commission, the Commission said, is whether the evidence available gives reasonable grounds to believe that there was a government policy of indiscriminate or deliberate shelling in violation of the IHL principles of distinction and proportionality and the special protections afforded to civilians and hospitals; and/or that any serious violations of the relevant principles of IHL were committed by members of the SLA that may amount to war crimes and/or crimes against humanity.
The Commission said that individual criminal responsibility for specific shelling incidents can only properly be examined through an independent judicial inquiry, which this Commission has undertaken to do, by appointing a retired High Court Judge to head an investigative team.
The Commission is of the view that there was no military advantage to the SLA in targeting civilians. Indeed, there are reported instances of SLA soldiers rescuing civilians. The fact that 290,000 Tamil civilians survived to be rescued by the SLA shows that there was no deliberate targeting of civilians. The army high command has not encouraged indiscriminate shelling, said Holmes .
The Commission observed that in the years preceding the final stages of the war, the army was praised for the manner in which its forces discharged their duties. A confidential diplomatic cable dated 27 January 2009 from the US Embassy in Colombo to Washington, said ‘the Government has gained considerable credit until this point for conducting a disciplined military campaign over the past two years that minimized civilian casualties.
Maxwell Paranagama had seen the documents provided to the LLRC by the army. They indicated that Sri Lanka army had operated under Rules of Engagement (ROE). He had not however, seen any ROE that went beyond the first week of February 2009 which meant that there appeared to be no ROE guiding the final stages of the conflict. Holmes however thought Issuing ROE for the final four months of the war would have been impractical. Instructions would have come down the command chain.
The Commission observed that not all civilian deaths in war are unlawful and a violation of 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 the core IHL principles of distinction and proportionality are met. Commanders need to make an honest assessment on a case-by-case basis during military operations, whether civilians can be attacked as legitimate military targets.
Mistakes that resulted in unnecessary civilian deaths were most definitely made by the SLA, but all armies in all conflicts make such mistakes. The law does not require perfect accuracy in targeting. The law recognizes the fluidity of the operational environment, including the location and movement of enemy personnel and civilians, the weaponry involved the conduct and tactics of the fighting parties, and any deliberate exposure of civilians to harm. These are all factors that needed to be taken into account in the evaluation as to whether collateral damage was excessive in comparison to the anticipated military advantage.
The main allegation against the SLA is that of indiscriminate shelling into protected areas such as No Fire Zones and hospitals. Satellite imagery shows that shelling took place in the conflict areas and there is little doubt that it led to a significant number of civilian deaths. The Commission dismissed as nonsense the government claim of ‘zero civilian casualties.’ Without a doubt, there were casualties, said the Commission. Indeed on 3 August 2011, Gotabhaya Rajapaksa, then Secretary of State for defense, admitted that civilian deaths could not be avoided.
The Commission considered carefully the law and the problem of evidence in shelling cases. The Commission obtained the assistance of William Fenrick, a military lawyer, who worked as a senior legal advisor for The Office of the Prosecutor at the International criminal tribunal for Yugoslavia (ICTY).
At the request of the Paranagama Commission Advisory Council, Fenrick provided a checklist he had prepared to assist colleagues at the ICTY in identifying incidents of unlawful shelling for the purpose of prosecutions. . With this checklist before it, this Commission finds that surmise or guess work is no substitute for hard evidence as to where shelling was coming from and whose shells were causing unlawful damage.
Fenrick’s invaluable checklist” was listed fully in the Paranagama Commission Report. Here is the Fenrick list.
‘A. INVESTIGATION WHERE THE PROJECTILE LANDED:
- Where did the projectile land?
- What damage did the projectile cause? Death or injury (identify victims and provide proof of death or injury)? Damage or destruction of property (how much damage or destruction was caused and to what kinds of structures, e.g., generic civilian objects, objects under additional special protection such as hospitals, institutions dedicated to religion, charity, education, Articles and sciences, historic monuments and works of Article and science)? Precisely where, when and how was death, injury, damage or destruction caused? What prior investigations, if any, have been conducted in relation to the incident? Obtain copies of relevant prior reports.
- Was this damage or injury done to military objectives (including combatants or civilians taking a direct part in hostilities), to civilians or to civilian objects? If the damage was done to military objectives only then it is not unlawful. If damage was done to military objectives and civilians or civilian objects then an assessment must be made whether or not the damage to civilians or civilian objects was ‘excessive/disproportionate’ in relation to the military advantage gained by the attack. If the damage was not excessive or disproportionate then, once again, it is not unlawful.
- If military objectives and civilians and/or civilian objects were hit, in what order were they hit?
- What other military objectives were located relatively close to the area of impact (50 metres, 100 metres, 200 metres, 500 metres) at the time of impact or shortly beforehand (shoot and scoot mortars for example)?
- What other projectiles landed relatively close to the area of impact (50 metres, 100 metres, 200 metres, 500 metres) at or about the time of the incident?
- What kinds of projectiles were used?
- Where were projectiles landed from (using crater analysis and other techniques if available)?
- When (time and day) did the incident occur and what was the weather like.
In general terms, what else was occurring in the battle (particularly fairly close by) on the day and particularly about the time when the incident occurred?
- INVESTIGATION WHERE THE PROJECTILE WAS LAUNCHED FROM:
- Where is the launch site located and how far was the weapon from the point of impact of the projectile? It is important to establish that the weapon had a range which would enable a projectile fired from it to reach the point of impact.
- Was the point of impact of the projectile visible to those firing or directing the firing of the weapon? Vision may be obscured by, among other things, weather, foliage, buildings and smoke.
- What were those firing the projectile or their superiors actually aiming at?
- What was the firing protocol process? Who or what aimed the weapon? Who gave the order to fire and who implemented it? What kind of spotting process was there?
- What measures were taken to eliminate or minimize civilian casualties, such as intelligence gathering and assessment?
- What were the applicable rules of engagement and/or firing orders?
- What was the applicable doctrine of artillery generally and for use of this type of weapon? What are the characteristics of this type of weapon, in particular those concerning range and accuracy?
- Who controlled use of the weapon and allocation of projectiles to it?
- What (other) weapons systems were available to the attacking commander?
- What unit actually conducted the firing and what was its chain of command to the potential accused?’ (End of check list)
Major General Holmes also discussed the issue of crater analysis. Most craters make a clearly defined pattern on the ground and differ according to the type of projectile fired and the type of fuze used, said Holmes. It is therefore necessary to show that a specific crater was caused by a shell from a particular type of weapon which was fired on a particular bearing, he explained.
The important issue is the direction from which the shells were fired. This can only be retrospectively determined from analysis of the shell craters either on the ground as soon as possible after the event or from available imagery or, to a lesser extent, from credible witnesses at the receiving end.’
Holmes reported that McKenzie Intelligence Services (MIS), a specialist imagery company based in London was asked to look at a crater imagery study from the war area (believed to be dated 8 Oct 2009) by the American Association for the Advancement of Science (AAAS). The study was commissioned by Human Rights Watch and Amnesty International.
MIS reported that there are a number of craters above 3m in diameter, which may indicate that large caliber artillery systems or air delivered munitions, might have been used. However, it was not possible to say with confidence which weapon system was used, and when. Nor was it possible to identify the direction of the shot using the available imagery.
Since the MIS analysis of the shell craters is inconclusive, the only other source of reliable information are eye-witness accounts, said Holmes. The direction of shot is best determined visually by observing a gun flash or audibly by hearing the discharge of a gun or mortar. This needs a practiced ear and the absence of surrounding noise.
Most accounts that describe events within the NFZs over those last few months tell of chaos, confusion and terror. This will affect any attempt to determine the direction of incoming indirect fire. Holmes said he did not think it possible at this point in time, on the evidence available, to accurately state which side’s artillery and mortars caused identified shell craters and civilian casualties.’
Holmes also added that it is incorrect to say, as one report does, that because the barrels of SLA artillery faced the NFZ, they would have fired into those NFZs. It is normal artillery practice for guns to be laid in the direction of the threat, but that does not mean they actually fired.
It would appear, said that Commission , that the following hospitals were damaged by shell fire between January and May 2009, Tharmapuram Hospital, Puthukkudiyiruppu (PTK) Hospital, Vallipunam Hospital, Uddayarkattu (UDK) Hospital, Ponnampalam Memorial Hospital, Putumattalan (make-shift hospital for PTK) Hospital, Valayanmadam make- shift hospital, Mullivaikkal Hospital, Mullivaikkal Primary Health Centre and Vellamullivaikkal Hospital.
There is strong evidence that many hospitals were hit by Sri Lanka army shellfire, said the Commission. However there was nothing to prove the deliberate targeting of hospitals as alleged by NGOs. Not a single Government doctor was killed in a hospital in the final phase of the war.
On the other hand, said the Commission, that there is evidence to show that LTTE were deliberately attracting SLA fire towards protected targets such as hospitals. Gordon Weiss recorded a UN official saying ‘Tamil Tigers were intentionally drawing fire towards the hospital’. If hospitals were hit, or damaged the media would report it extensively and get a lot of publicity. Also, the Commission observed, LTTE used the environs of hospitals from which to fire upon the SLA and the SLA returned the fire. LTTE stationed weaponry in hospitals. LTTE deliberately used ‘shoot and scoot’ tactics, to endanger the hospitals and patients.
After the fall of Kilinochchi on 2 January 2009, the Puthukuddiyiruppu (PTK) hospital was the only permanent hospital left in the Wanni and its neutrality was recognized by the Government and the LTTE. That hospital comprised at least ten buildings clearly marked with the Red Cross emblem with approximately another twenty buildings which were likely to be associated with the hospital. This Commission draws the reasonable inference that due to its spread and its size this hospital would have been more vulnerable to misguided shells or damage from exploding shells in and around the PTK area if the Sri Lanka army had attacked it.
Instead there is there is evidence that the LTTE use this hospital for military purposes. Within the hospital safe zone was an LTTE tank, formerly captured from the SLA. A UN official sheltering in a compound opposite the PTK Hospital ‘could see the barrel flashes from a Tiger heavy artillery piece just 300 meters from the hospital ‘ . LTTE were undoubtedly using the environs of hospitals from which to fire upon the SLA, said the Commission. LTTE took over hospital ambulances. They were used by the LTTE leadership to move around.
The Commission said evidence has come in from many quarters, some of it unsubstantiated, that civilians were hit by cluster munitions or had phosphorus burns. In 2012, a leaked email from a member of the UNDP mine clearance team seemed to indicate that it had discovered evidence of retrieved cluster munitions. UTHR(J) maintains that many of those evacuated by the ICRC had burn injuries. A Tamil doctor, who has been granted asylum abroad, believed that a phosphorus shell had exploded above his tent in the final phase of the war, causing it to catch fire and burn him on his back and hands.
The Commission is of the view that this is an area requiring further investigation. The Commission believes that there should be a comprehensive medical review of recorded injuries to ascertain whether these weapons were being used. The type of injuries caused should also be recorded so that a forensic analysis can be made. Should the UN be in a position to disclose further material on this issue such as photographs, this would no doubts assist local or other investigation teams to examine this matter further, said the Commission.
However, the Commission wished to make clear that the use of such weapons were not illegal at the time and that the Cluster Munitions Convention banning their use was not in force. Some countries, such as the US, India and Sri Lanka, were amongst those countries that did not sign the convention.
The final stage of the campaign was obstructed by the presence of thousands of civilian hostages acting as a human shield in the area, said the Commission. The ICRC Head of Operations for South Asia, Jacques de Maio, informed US officials that the LTTE were trying to keep civilians in the middle of the conflict area. A US diplomatic cable said the LTTE kept its fighters embedded amongst the civilian population..’ In 2011, Amnesty International published a report based on information independently gathered from sources such as eyewitness testimony and information from aid workers which confirmed that ‘the LTTE used civilians as human shields.
The LTTE used human shields in the final months of the war to attract international attention. The Commission notes the statement made to a BBC journalist by Pulidevan, that the aim of keeping hundreds of thousands of women and children trapped was that if enough of them were killed the world would intervene. This Commission is familiar with the well-known terrorist tactic of creating ‘media martyrs’.
The Commission also found that LTTE deliberately placed the civilian population in danger by bringing them into the war zone. They prevented the hostages from escaping and moved them around to protect LTTE military targets..The Commission concluded that the crime of human shielding was clearly established.
The Commission is satisfied that the LTTE used human shields in violation of IHL and that their use of such human shields is a war crime. The active use of civilians as shields in non-international armed conflicts is prohibited in the international law such as Additional Protocol II, Common Article 3 and Rule 97 of the ICRC . San Remo Manual on the Law of Non-International Armed Conflict also prohibits the use of civilians as shields.
The ICRC permits attacks on military targets that are shielded by civilian, but must apply the provisions relating to the protection of civilians before proceeding with such an attack. The attacking commander must try to avoid harming the civilians by changing the weapon or the time of attack, or by vigorous advance warning.
The Commission observed that this is a complex area of law. There is little case law that assists on the specific subject of proportionality in the context of the extensive use of human shields. However, there is recent jurisprudence from the International Criminal Court for the former Yugoslavia Appeals Chamber which has not so far been considered in the context of the final phase of the war in Sri Lanka.
The use of human shields presents military decision-makers with one of the most potent challenges to the implementation of IHL in modern conflicts. On the one hand, civilians, including. Involuntary human shields, retain their civilian status and protection under IHL at all times.
But, observed the Commission, civilians taking direct part in hostilities lose their immunity. Some of the civilian hostages used by LTTE were helping to build fortifications and dig trenches , either voluntarily or under compulsion. The whole group was acting as a buffer. Acting as a ‘buffer’ comes within the definition of performing hostile acts stated the Commission.
Our conclusion, said the Commission, is that when the full set of factual circumstances are considered, the applicable legal standards did allow the Sri Lankan forces to attack the LTTE and its military locations despite the presence of civilian hostages. LTTE had continued to shell the Sri Lanka army from its embedded position among a civilian hostage population. Failure to respond to these deliberate attacks, would, in the view of this Commission, have been a signal to the LTTE and the world that the LTTE had won by illegal means.
The LTTE should not be rewarded for having committed the crime of taking human hostages and taking advantage of them as human shields to support their military campaign. The responsibility for the harmful consequences to civilians used as shields has been unfairly shifted to the government, added the Commission.
The Government unilaterally declared a series of No-fire Zones within the conflict area, and told civilians to move into them. The first No Fire Zone was created on 20 January 2009. However, the LTTE refused to acknowledge the NFZs as protected zones. Instead, when the Sri Lanka army declared a No Fire Zone, and the civilian population went there, the LTTE also went , taking their heavy weapons with them.. The civilians were again trapped.
The LTTE had ‘willfully’ moved their heavy artillery into the first NFZ and began to shell the SLA from there observed the Commission. Also, witnesses who were present on the morning of 18 May 2009 state that the majority of those killed in the NFZ during the last twelve hours of the war were killed by LTTE shelling. The witnesses said they were certain that they were being fired upon by the LTTE. The UTHR(J) also stated ‘Some reliable witnesses and other IDPs who were present when the Army entered are certain that a large number, perhaps the majority, of those killed in the NFZ during the last 12 hours were killed by LTTE shelling’.
According to Article 15 of the Fourth Geneva Convention, there has to be mutual agreement for an NFZ to come into effect and such agreement must be clearly expressed. Since there was no mutual agreement between the Government and LTTE regarding the establishment of the NFZs, there were no legally protected No Fire Zones. The Sri Lanka army was entitled to attack lawful targets within such areas using lawful weapons in a lawful manner as permitted under the laws and customs of war. The Commission takes the view that one of the most significant factors leading to civilian deaths was the refusal by the LTTE to agree to the NFZs.
It is the Commission’s view that there was neither an intention to kill civilians through starvation, nor by deprivation of medicines so as to cause deliberate civilian suffering. There is no evidence that any form of blockade warfare was employed by the SLA in the final months of the war. Nor, in the view of this Commission is there evidence of a deliberate campaign to starve the civilian population. On the contrary, there is general agreement that humanitarian foodstuffs and aid were permitted to enter LTTE held areas.
The Geneva Convention and the Protocols stipulate conditions for the delivery of humanitarian aid, including supervision of its distribution. The government could lawfully stop the aid if these conditions are not met. There may well have been a limiting of food and medicine so as to deprive the LTTE from exploiting those items for its own purposes, The Petrie Report says that LTTE may have taken up to 20% of all the assistance that had been sent into the Wanni.
The delivery of humanitarian aid was severely complicated. LTTE fighters were mixed with the civilian population making it very difficult to determine whether humanitarian aid went to the civilians and not the LTTE. It is the Commission’s view that the Government of Sri Lanka was entitled to limit aid if it was going to be used by the LTTE for its military efforts and to sustain its forces.
The conflict in Sri Lanka has been dubbed a ‘war without witnesses’.. It was alleged that the government was not letting the media into the war area, in order to hide the crimes the army was committing. The Commission points out that TV footage showed that journalists were present in the war area. There were at least two embedded foreign journalists who were given access to the warzone, except for the last two days of the conflict.
Frances Harrison, resident BBC Correspondent, had said that dubbing the Eelam war as war without witness” is simply not true’. There were 60 catholic priests and nuns, 240 local NGO workers and Tamil civil servants working for the Central Government including five doctors.
The measures to exclude journalists from conflict zones by the SLA in the final months of the armed conflict need to be assessed in the light of international practice. The US restricted the access of journalists to the battlefield in Iraq. The US military ordered a complete black-out of media reporting when ground operations began in Iraq.
The Commission observed that there were conflicting accounts of the highly publicized ‘white flag issue’. On the one hand , Frances Harrison, had kept up regular contact with Pulidevan. She said what happened in the final hours of the war, when the alleged white flag killings took places was as ‘unclear’
On the other hand, US Department of State Report to Congress in 2009 said that Nadesan and Puleedevan led a group of approximately one dozen men and women out to the SLA troops, on May 18, waving a white flag. According to a Tamil witness who escaped, the SLA started firing machine guns at them. Everyone in the group reportedly was killed.
Two other alleged eye-witnesses said that Nadesan, his wife and Pulidevan were met by a group of Sri Lankan Army personnel and were required to remove their shirts. The Commission finds that this would be consistent with an Endeavour to ensure that no suicide vests were being worn.
Another two other witnesses, had said that the Sri Lankan Army executed LTTE leaders after they surrendered with white flags. A sixth witness had said that he had been informed that they had been given tea after which they were beaten and shot.
Shashirekha Thamilselvan, the wife of the deceased LTTE political wing leader S. P Thamilselvan, however, stated in an interview in 2011 that when she surrendered no one carried white flags and that the story that some LTTE leaders came out carrying white flags is not true.
The Commission observed that in the view of contradictory evidence cited above, the circumstances of the ‘white flag killings’ are by no means clear. Due to the seriousness of these allegations, the Commission thought that that an independent judicial inquiry is necessary to establish the facts, determine responsibility and arrive at the truth.
The Commission blames the LTTE for the loss of life during the period under survey. It gives many reasons. The Commission notes, inter alia, that in April 2009, the government declared a 48 hours ceasefire to enable civilians wishing to leave the conflict zone to do so. The LTTE refused to release any of the civilian hostages. The LTTE continued offensive operations against the SLA until the ceasefire expired . Had the LTTE freed the civilian hostages when repeatedly asked to do so, the number of civilian deaths is likely to have been significantly reduced.
LTTE had shelled civilian areas in order to blame the SLA. Indeed, there is positive evidence that such shelling of Tamil civilians by the LTTE did take place. The IDPs are uniformly emphatic that the Army shelled only in reply to the LTTE gun fire from among the civilians, during the hostage period. Many LTTE cadres did not wear uniforms, often making it almost impossible for the SLA to draw clear distinctions between civilians and LTTE personnel.
The LTTE’s use of homemade multi barreled rocket launchers (MBRLs), which according to the Commission’s military expert lacked a solid platform and would thus have been extremely unstable when fired, resulting in a loss of range, inaccuracy and a much greater spread of rounds which would inevitably have added to the civilian casualty figures.
this Commission can say with confidence that the principal causes for the loss of civilian life was the taking by the LTTE of some 300,000- 330,000 hostages, many of whom were either forced into acting as human shields or voluntarily acted as human shields, and from whose number even children were conscripted to fight, despite minimal training. The LTTE systematically refusing all calls by the international community to free the civilian hostages, which escalated the number of civilian deaths.
This Commission is satisfied that the LTTE, both directly and indirectly, bears the primary responsibility for the loss of innocent civilian life during the final phase of the conflict that formally ended on 19 May 2009.
The Paranagama Commission is firmly supportive of the Sri Lanka armed forces. The Commission observed that due to the Eelam wars, the Sri Lanka military, which was initially small and insignificant, had developed by 2009, into a very powerful and skilled one. It has had more than two decades of experience in Eelam warfare. ‘Any military involved in high intensity war for so long is bound to learn how to fight’.
The Commission observed that the Sri Lanka army won the Eelam war because it developed a capability for conducting operations on multiple fronts and across different axes continuously. It went in for small unit operations, instead of operating at company and platoon level, There were Special Infantry Operations Team (‘SIOT’) consisting of 8 and 4 man teams. These could move efficiently, whatever the terrain.
A directorate of human rights and humanitarian law was established in the army in 1997 and the army was given training in humanitarian law. According to the SLA’s statistics some 140,971 members of the army were trained or refreshed on various courses between 1997 and 2008. Similar directorates had been established for the Sri Lankan Navy and Air Force in 2002.
The Sri Lankan Navy, reinvented itself, said the Commission. The Navy expanded in size and upgraded their sea craft. They built their own small boats. The Navy destroyed 11 LTTE warehouse ships in one year and destroy a further 3 ships in 2007. The commission also observed that there was extensive use of air support for land and sea operations utilizing in particular Squadron 10 but using also the other planes it possessed.
The Commission looked at the command structure. There was a clear, well functioning command structure, starting with National Security Council and Joint Operations Headquarters. Orders went down the line to the service commanders. In the case of the SLA, command then passed from the Army Commander to regional headquarters and from there to Divisional and Task Force Headquarters for implementation.
Operations in the Wanni were conducted by five divisions and four task forces. A division was sub-divided into three brigades of three infantry battalions each. A brigade consisted of between 2,500 and 3,000 personnel. A task force consisted of only two brigades of three battalions each. There were also specialist brigades such as Special Forces, Commando, Air Mobile and, significantly, an Artillery Brigade. There would have been around eighty thousand troops in the Wanni at the end of the Eelam War.
The last phase of the war in Sri Lanka was distinctive and possibly unique, observed the Commission. At the last stage of the war, the army had to decide whether to accept the ceasefire, which the international community and UN were promoting, or continue with the offensive. The government had no intention of accepting a ceasefire, as experience had shown that the LTTE merely used ceasefires to regroup and rearm. It decided to continue the war. It had to conduct operations in an area where civilians and LTTE were mixed up together.
It had to carry out careful strikes, directed against military objectives, while keeping civilian casualties to the minimum. This would have been a challenge for the most professional , best informed and best equipped armies in the world, said Major General Holmes. There was no military precedent that the SLA could have turned to for guidance.
In my military opinion, the decision was justifiable and proportionate given the unique situation SLA faced in the last phase, said Holmes . On the evidence available to me and taking into account my own military experience, I do not find that the artillery campaign was conducted indiscriminately, but was proportionate to the military objective sought. In my experience of hostage rescue, the fact that so many escaped, is remarkable, concluded Holmes .
It is the view of this Commission that the SLA made the right decision to act in order to achieve victory and save as many civilians as possible. SLA had to act decisively and quickly if civilian lives were ultimately to be saved. The decision to end the conflict, is likely to have saved many more civilian lives and those of the armed forces by bringing the war to a close, observed the Commission.
The Commission is satisfied that the SLA acted in the main in accordance with the principles of distinction, military necessity and proportionality in attacking the LTTE, its leadership and its weaponry despite the presence of civilians in the area of combat. The May 2009 victory of the Sri Lanka army over the LTTE was no ordinary victory, said the Commission. It was a unique victory. (Concluded)