That elusive ‘internal inquiry’ into war crimes

February 22, 2014,

(Courtesy of The Sunday Island)

There seems to be a school of thought in the country that the government should heed the calls made by the Western powers for an internal inquiry into allegations of human rights violations during the last few months of the war. The UNP put out a special statement the week before last, blaming the government for not heeding the call of the ‘international community’ for an internal inquiry. They drew attention to the fact that President Rajapaksa himself pledged to the UN Secretary General Ban Ki-moon in May 2009 that he will undertake an internal investigation to look into the alleged incidents in the last phase of the war and that the non-fulfilment of this pledge has resulted in the international community now seeking to institute an international investigation into the same. The UNP called on the government to at least at this late stage, to address the serious allegations levelled against them.

Some weeks ago at a speech made at the OPA auditorium, Dayan Jayatilleke, the Rajapaksa government’s former envoy to Geneva also suggested that the government should head off pressure coming from the West for an international war crimes inquiry by holding an internal inquiry into certain specific instances that the Lessons Learnt and Reconciliation Commission had recommended. On an earlier occasion Jayatilleke had even suggested the name of Justice C.G.Weeramantry (among others) as a possible candidate to head such an inquiry.

Between a rock and a hard place

With regard to an internal inquiry into war crimes allegations of the kind that the UNP has in mind, the first requirement would be instances of violations that can be investigated. The only international report on Sri Lanka that set out all the instances of violations that the Sri Lankan armed forces were accused of during the last few months of the war, is the US State Department Report to Congress on “Incidents During the Recent Conflict in Sri Lanka” which was put out in October 2009. This had an exhaustive list of all the reports on ‘Harm to civilian and civilian objects’ received by the American Embassy in Colombo from all possible sources including other Western embassies, the UN and the ICRC. There were 172 incidents attributed to the armed forces and 45 incidents attributed to the LTTE. The information provided was very sketchy. There would for example, be entries that read as follows:

“April 23: An eyewitness reported to HRW (Human Rights Watch) an attack in Valayanmadam in which many shells were fired with one shell hitting a church serving as living quarters for civilians. Ten people died and 30 were injured.”

There is no information on who this witness is and whether he can be contacted. Nobody knows the names of the 10 people who are supposed to have died or the 30 who are supposed to have been injured. Other details like the relative positions of the Army and the LTTE and where the shells came from are not available. Last year, at a meeting with the press in the American embassy in Colombo, this writer asked the American Ambassador whether any further details are available with them about the incidents mentioned in this report. They answered in the negative. Without further details, no investigation can even be initiated into the incidents mentioned in that US State Dept. report. When the Advisory Panel appointed by UN Secretary General Ban Ki-moon compiled their report on Sri Lanka, they held hearings and witnesses gave evidence about incidents but this data has not been made public on the excuse that the witnesses must be protected.

In any case, since no details of incidents reported to Ban’s panel have been given to the SL govt., no internal inquiry can be initiated on those witness statements either. In contrast, Dayan J’s suggestion that the govt. initiate an inquiry into certain specific incidents flagged by the LLRC is more practical because the LLRC at least has a real witness who can be contacted and asked to give evidence.

The LLRC had recommended that five incidents mentioned in paragraphs 106, 107, 109, 110 and 111 of Chapter 4 of the report warrant further investigation.  The LLRC had got many more reports of incidents than just these five, but the reason why these were singled out was obviously because it was only in these few instances that the armed forces were specifically mentioned by the witnesses as the perpetrator of the attack.  In most other instances, witnesses who appeared before the LLRC had described incidents where civilians were killed or injured but they could not say where the fire had originated from. For example in paragraph 90 of Chapter 4, a senior public official who had been in Puthukudirippu as the army advanced described an incident where the civilians were caught between the Army and the LTTE and about 30 shells had fallen in the area injuring 13 people but she was not able to identify where the shells could have originated from.

Then in paragraph 91 of Chapter 4, a mother of seven children who had lost two children in the shelling had told the LLRC that she cannot say definitely who was shelling because both sides were firing shells. Obviously, the LLRC could not recommend that an internal investigation should be conducted into such reports of incidents. So they focused on the few instances where witnesses pointed directly at the armed forces. For example in paragraph 106 of Chapter 4, a witness had said that his son in law went missing on the 10th of May 2009. They were coming from Mullaivaikkal by boat trying to escape to Jaffna and on the way, the Navy attacked them at Chundikulam and four people died on the spot. The time was around 2 a.m.  Thereafter the Navy had rescued them and given medical treatment to his son who had later gone missing. He had admitted that his son in law was a member of the LTTE.

In paragraph 107 of Chapter 4, another civilian reported that on the 10th of May 2009, when they were trying to escape by boat from Mullivaikkal, they had been shelled by the navy killing eight. They claimed that later the navy had apologized and said it was a case of mistaken identity. She had added that there were 40 to 50 more boats moving at that time and though she is not certain, some of them may have been LTTE boats.  In paragraph 111 of Chapter 4,  another civilian who appeared before the Commission referred to an incident in April 2009 during which his daughter had also been injured. When some mothers and children went to a spot where ‘thriposha’ was supposed to be distributed, the LTTE were using their walkie talkies and the Army had shelled that particular point and 40 – 45 expectant mothers and children were the casualties.

One sees that in this last instance, the shell can be deemed to have been almost certainly from the army as there were LTTE cadres in the vicinity. In the several instances that the LLRC had flagged as meriting further investigation, there are identifiable witnesses, identifiable places, sometimes there are specific dates and all that. But there is no specific perpetrator. All one hears is a generic mention of ‘army’ or ‘navy’ without the slightest inkling of who or what unit of the army or what unit of the navy could have been involved. It would be virtually impossible to trace the individuals involved. Herein we come up against the obstacle faced by all war crimes investigations or trials. If an ordinary criminal investigation is akin to sniper fire taking down the criminal with pin point accuracy, a war crimes inquiry is like a MBRL salvo, taking out a whole area.  Almost all war crimes investigations lean heavily on the doctrine of command responsibility and those who are prosecuted more often than not are not those who are deemed to have committed the offence but those deemed to hold command responsibility. A look at the people who have been prosecuted by the international criminal tribunals for Yugoslavia and Rwanda (ICTY & ICTR) will bare this out.

Command Responsibility

The principle behind the doctrine of command responsibility is that commanders are responsible for the actions of their subordinates. Since it is impossible to pinpoint any particular perpetrator of the several incidents mentioned in the LLRC report, the government will have to rely on the doctrine of command responsibility and prosecute the army and navy commanders in the vicinity where these incidents are said to have taken place. Even to do that, it will have to be proved that this incident reported by these witness actually took place, and that itself is no easy task. The near impossibility of proving that an incident even took place is what has turned all existing international war crimes tribunals into kangaroo courts. This is why the International Criminal Tribunal for Yugoslavia (ICTY) declared that the rules of evidence applicable under national criminal laws will not be applicable to the international tribunals and that the testimony of a single witness without any corroboration will be sufficient to declare an accused guilty. If the same rigorous rules of evidence applicable in national criminal trials are applied to war crimes trials as well, there would not be a single case to hear!

But no government will ever take the liberties that the international criminal tribunals have been taking with the rules of evidence. Indeed they can’t because tampering with the rules of evidence itself will be the subject of separate litigation and the courts in this country will simply not countenance it. Furthermore, this government is most certainly not going to arrest and prosecute all the military commanders in a particular vicinity simply because they are unable to identify individual perpetrators of alleged crimes. Nor will any government be inclined to declare that one testimony about an incident proves that it occurred. It is unlikely that the Kangaroo court environment in the international arena would be transplanted in Sri Lanka.

Besides, even the international criminal tribunals have due to persistent criticism, begun to modify the application of the doctrine of command responsibility. Over the past 18 months, the International Criminal Tribunal for Yugoslavia has acquitted about half a dozen accused by jettisoning the application of the doctrine of command responsibility. The release of Momcilo Perisic the former chief of staff of the Serbian army is a case in point. The Appellate Chamber of the ICTY released Perisic last year after declaring that for the doctrine of command responsibility to apply, the commander has to specifically direct his subordinates to commit the violation in question. Until about 18 months ago, the ICTY handed down convictions based simply on the assumption that the commander was responsible for the actions of his subordinates. The revolutionary about turn made in international practice with regard to the doctrine of command responsibility now makes it impossible to prosecute a commander unless it can be proved that he had specifically ordered his subordinates to commit the violation in question.

So where does that leave Sri Lanka? The LLRC has mentioned a few incidents as meriting further investigation. Assuming that it can be proved that those incidents actually took place, no perpetrators can be identified except institutionally as army or navy. This makes it impossible to prosecute anybody except on the doctrine of command responsibility. But the latest international practice is for the doctrine of command responsibility to apply only if specific direction can be proved. If the government decides to hold an internal inquiry, the resulting court battles will be very interesting to watch. Up to this moment, we have not even considered under what law a possible ‘internal inquiry’ in Sri Lanka will take place. Obviously, war crimes investigations or trials cannot be done under the ordinary criminal law. Such investigations will have to be done only under the international law of armed conflict. What does the international law of armed conflict say?

The law of armed conflict

Ban Ki-moon’s Advisory Panel on Sri Lanka had laid down in page 52 of their report, what they had decided was the international law of armed conflict applicable to Sri Lanka. They had rightly pointed out that while Sri Lanka has signed the Geneva Conventions that govern international armed conflicts, SL had not signed Additional Protocol II of the Geneva Conventions which governed internal armed conflicts. Therefore the only law of armed conflict that could be applied to Sri Lanka’s civil war is the customary law of armed conflict. The source for the ‘customary law of armed conflict’ that Ban’s advisory panel used is that excellent study of International Customary Humanitarian Law compiled by the ICRC. This study had two levels. At the first level were the 161 ideal rules that the ICRC had put forward. At the second level were the comments and reactions to these ideal rules received from various countries including the Western powers. The Western powers had been remarkably uniform in the comments and reactions they had made.

The customary law of armed conflict is made up not just of the 161 rules put forward by the ICRC but also the comments made about those rules by various parties including the Western powers.  However, when the UN secretary general’s Advisory Panel compiled their report on Sri Lanka, they applied only the ideal rules put forward by the ICRC and chose to ignore the comments made by the Western powers about those very rules. Such an approach has the effect of judging SL by one law and the Western powers by another using the same text book! For example, page 56 of the UN Secretary General’s advisory panel report on SL had the following passage on the law applicable to attacks on civilians.

“International humanitarian law prohibits attacks on civilians and civilian objects. Attacks may be directed only against military objectives and combatants. (Rule 7, ICRC Study) There is an absolute and unconditional prohibition on targeting of non-combatants in customary international humanitarian law. This norm is the most fundamental of those flowing from the principle of distinction. In addition parties may not direct an attack against a zone established to shelter the sick the wounded and civilians from the effects of hostilities (Rule 35 ICRC Study). In regard to the presence of the LTTE in proximity to the civilians in the NFZs, international tribunals including the ICTY have clarified that the ban on attacks against civilians protects a population that is ‘predominantly’ civilian and the presence within the civilian population of individuals who do not come within the definition of civilians (ie; combatants) does not deprive the population of its civilian character.”

One can see that what this passage basically says is that the SL government cannot attack the LTTE if the terrorists are among civilians because their presence among civilians does not deprive the population of its civilian character. Thus the argument is that when the LTTE and the civilians were together in the so called no fire zone, the government was in effect attacking a civilian population. Even though such a law has been applied to Sri Lanka, that is not the law that applies to the Western powers. According to the very same ICRC Study on the Customary Law of Armed Conflict, the laws applicable to the western powers can be summarized as follows.

A different set of rules

  1. Civilian objects are protected against attack, only if they are not military objectives. (Rule 10). When a civilian object is used in such a way that it loses its civilian character and qualifies as a military objective, it is liable to attack. The ICRC suggested the rule that “in case of doubt whether a civilian object is being used for military action, it shall be presumed not to be so used”.  However, the US Department of Defence flatly refused to give the benefit of the doubt to the other side by arguing that it is contrary to the traditional law of war to shift the burden of determining the precise use of an object from the party controlling that object to the party lacking such control. That would also encourage the defender to ignore its obligations to separate civilians and civilian objects from military objectives.
  2. Military objectives are those objects whose destruction or capture offers a definite military advantage. (Rule 8) The military manuals of all Western nations state that the presence of civilians within or near military objectives does not render such objects immune from attack but such attacks will be subject to the principle of proportionality. Buildings and positions where enemy combatants and armaments are located, (including hospitals) are examples of military objectives. Even economic targets can become military objectives, if their destruction offers a definite military advantage.
  3. The parties to the conflict must at all times distinguish between civilian and military objects. Attacks may only be directed against military objectives. (Rule 7) Attacks on civilian objects which have become military objectives is not a war crime so long as such destruction be ‘imperatively demanded by the necessities of the conflict’ and the incidental damage to civilian objects is not excessive.
  4. The ICRC suggested that in combat situations,  that if there is doubt whether a person is a civilian, that person should be given the benefit of the doubt and considered to be a civilian. However France and the United Kingdom stated that this presumption should not override the commanders’ duty to ensure the safety of the troops under their command or to safeguard their military position. The US Naval Handbook states that judgments must be made on a case-by-case basis as to whether a particular civilian should or should not be subject to attack based on the person’s behaviour, location and attire, and other information available at the time.

Most people would be very surprised that there can be such a divergence in the laws applicable to SL on the one hand and the Western powers on the other when it comes to war crimes. They should not be. All international war crimes tribunals (which by the way are always funded, and therefore virtually owned by the Western powers) are Kangaroo courts and given the cavalier manner in which they have simply thrown overboard the rules of evidence that apply in national level criminal trials, quoting selectively from the ICRC study on the customary law of armed conflict is only a minor offence. Last year, at a press conference at the American Embassy, this writer told the Ambassador to bring down a military expert from the US Defence Department to educate Sri Lankan journalists on the international law of armed conflict. They pretended to make a note of the request, but they will never get a US military expert to lecture on the law of armed conflict in Sri Lanka because they know that everything said by such an expert will work in the SL govt’s favour!

Despite the calls being made for an internal inquiry into war crimes, the forgoing would indicate some of the difficulties that the government would have in complying with such a request. The opposition never tires of reminding the government that president Rajapaksa himself had promised Ban Ki-moon that an internal inquiry will be held. To be sure, the joint statement at the conclusion of UN Secretary-General Ban Ki-moon’s visit to Sri Lanka on 23 May 2009 had the following two sentences at the very end.

“The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law.  The Government will take measures to address those grievances.”

One can see from the wording here that the UN Secretary General had left it to the government of Sri Lanka to do the needful. The government has done what they said they would do, with the internal inquiry within the army and later with the Lessons Learnt and Reconciliation Commission which had a broader mandate.  Nowhere was it said that the SL govt. had to address those ‘grievances’ in a manner that would satisfy the Western powers or the UN secretariat. SL would have never have agreed to such conditions. We all know that the whole point is for the West never to be satisfied with anything that the Rajapaksa government does! Since the SL govt. has done what they said they would do in that joint statement, you can’t now have some people saying that they are not satisfied with the show and want something more

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