“It is absolutely right to take decisive action against terrorists when they threaten the lives of innocent citizens.”
The speaker of these words was not former president Mahinda Rajapaksa or anyone in his government, but British Prime Minister David Cameron, expressing solidarity with French President Francois Hollande in the wake of the recent terror attacks in Paris. But it appears that what’s sauce for the goose is not sauce for the gander, as Western powers push for implementation of a US-led resolution crafted to make the Sri Lankan armed forces suffer ‘consequences’ for their role in defeating terrorism, in a part of the world far away from theirs.
The eruption of IS terror in Paris came at a time when in Sri Lanka, the Paranagama Second Mandate Report had become a subject of discussion, bringing into sharp focus the monumental hypocrisy of the Western political project in Sri Lanka. What is more surprising however is that the Government of Sri Lanka (GoSL) seems to be collaborating in it (having co-sponsored the resolution, for example). There was some irony too in the fact that even while GoSL was (quite rightly) sending condolences to Paris, it was reportedly hauling up its own former service chiefs who led the fight against terrorism, before one of its numerous ‘Commissions of Inquiry.’
The peculiar trajectory of the debate over the Paranagama Report, both in and outside Parliament, dogged by various attempts to discredit it, have left many people perplexed, and many questions unanswered.
The most significant contribution of the ‘Report on the Second Mandate of the Presidential Commission of Inquiry into Complaints of Abductions and Disappearances’ (or the ‘Paranagama Report’) to the war crimes debate is that it convincingly up-ends the main allegations contained in the Darusman Report (Report of the UN Secretary General’s Advisory Panel). The Darusman Report’s assertion that ‘a range of up to 40,000’ civilian deaths during the last phase of the war ‘cannot be ruled out,’ was reported in the media as if it was a factual statement that 40,000 civilians died. Some reports went further citing this ‘UN Report’ as having found that ‘over 40,000’ had been killed. Before long “the world became prisoner of the Darusman narrative,” as the Paranagama Report put it. The Darusman Report was also a key source for the OISL (OHCHR Investigation on Sri Lanka). So the Paranagama Report, in demolishing the erroneous claims of the Darusman Report, to a large extent debunks the OISL’s allegations as well. It’s worth asking if the potentially double-barrelled assault contained in the Paranagama Report would explain why it seems to represent such a threat to certain interests.
The Commission headed by retired High Court Judge Maxwell Paranagama was appointed by former President Mahinda Rajapaksa. But by no means is its Report a ’whitewash’ of the political or military leadership of that regime, any more than the LLRC report could be described as a whitewash. Its mandate is on a continuum with that of the LLRC. Aspects of it may not be to the liking of nationalists on either side of the ethnic divide. The Commission’s objective it says is “to present a balanced narrative by conducting a proper analysis of the final phase of the conflict - the period between January and May 2009 - taking into account expert military and legal advice.”
ISIL and LTTE strategies similar
The Report goes beyond much of the other literature on the war by comprehensively setting out the legal framework governing conflict situations (Chapter 6), and then proceeding to analyse the ‘complex legal standards’ applicable to military operations such as those that took place in the final phase.
The Commission had the benefit of input from a foreign Advisory Panel comprising Sir Desmond de Silva QC (UK), Sir Geoffrey Nice QC (UK) and Prof David M Crane (USA), whose legal opinions became the ‘legal bedrock’ of the Report. The Advisory Council had a supporting team of experts as well. It included Major General John Holmes DSO, OBE, MC (UK), former Commanding Officer of Britain’s Special Air Services, who provided an Independent Military Report. This invaluable Annex to the Report gives an assessment of the Sri Lanka Army’s operations in the specific circumstances of the last phase of the war from a military analyst’s point of view. Holmes tests the SLA’s conduct against the applicable principles of distinction, military necessity and proportionality.
“Without a doubt there were civilian casualties” says the Paranagama Report “The key question is whether in the main those civilians were killed unlawfully or as a tragic and unfortunate consequence of a campaign which was proportionate to the military objective sought. ” Independent military analyst Holmes expresses the opinion that it was “a wholly unique and unusual hostage taking situation.” He adds that “ISIL in Syria has adopted some of these strategies, forcing the allied coalition in Iraq to make hard choices in the overall protection of the civilian population and the stability of the region.” The former SAS Commander describes the final phase of the war in Sri Lanka as a ‘unique event.’ “In fact, I do not believe that the strategic difficulties of resolving the last phase of the war have been fully appreciated by military strategists until relatively recently” he says.
In his opinion, the situation faced by the SLA “would have posed a dilemma for the very best trained and equipped armies in the world.” He says “it is extremely difficult to sustain an accusation of the deliberate killing of civilians by the SLA by shelling, which had the artillery potential over a very short time to devastate the temporary civilian encampments …” (para 81). Holmes concludes, on the evidence, that “the SLA’s operations, in broad terms, were proportionate in the circumstances” (para 83).
No ‘system crimes’ by SLA
This Expert Military Report shows that there is no case to be made for ‘system crimes’ by the SLA in the crucial final months of the war. “All the evidence discounts any form of deliberate policy or systematically reckless or disproportionate conduct …” (para 77)
the Paranagama Report however addresses the principal allegations made against the GoSL and the SLA and says there may be individual instances of IHL violations which could amount to war crimes and must be the subject of a ‘judge-led investigation.’
The Paranagama Report adds new dimensions to the war crimes debate through 1) a detailed discussion on the laws of war and 2) providing an independent military expert’s opinion. It differs from previous reports in other ways as well:
It is meticulously referenced and footnoted, showing that the authors have done a thorough survey of the existing literature
Its sources are named, not anonymous
It uses information from Wikileaks cables. For instance it is able to say “US diplomatic cables acknowledged that the LTTE was pursuing a monstrous campaign of cannibalizing its own people , particularly children” (para 259).
It has the benefit of insights gained through its First Mandate, which involved hearings held across the North and East of the country, during which it heard first hand witness testimony from relatives of the disappeared.
Given the above factors, and given the stellar credentials of its foreign expert team - some of whose members have experience on the UN’s own international tribunals - the attempts to vilify the Paranagama Report seem all the more strange.
Attempts to discredit
Coincidentally, both the UN Rights Chief Zeid Al Hussain (in his statement to the Human Rights Council in Sept.) and the UN Working Group on enforced or involuntary Disappearances (at the end of its visit in Nov) made the identical recommendation with regard to the Paranagama Commission. Both called for its disbanding, and for transferring its cases to a ‘credible and independent institution.’ No proper rationale was offered by either of them for this call, apart from indications that ‘stakeholders’ had conveyed their dissatisfaction. The question that naturally arises is whether both the UN Rights Chief and the UN-WGEID had been lobbied by the same interest group, with a view to discrediting the Paranagama Commission and its Report.
In Parliament during the debate on the US-led resolution, TNA member M A Sumanthiran said he had complained to the UK Bar Standards Committee regarding Sir Desmond de Silva QC, who headed the Commission’s Advisory Council, claiming that he had given a legal opinion on aspects of the war to former president Rajapaksa for which he had been paid. Some government ministers, also during that parliamentary debate, disparaged the Paranagama Report saying it was ‘worse than the OISL Report.’ Following these remarks Justice Paranagama issued statements to the media protesting misrepresentations made to the public.
Blows the LTTE’s cover
It’s not surprising that those influenced by Tamil diaspora organisations would oppose the Paranagama Report. The GTF for instance has insisted on an international investigation of alleged war crimes, whereas the Paranagama Report recommends a domestic mechanism that met international concerns. Pro-LTTE sections would be particularly alarmed because the Report blows the LTTE’s cover by showing that the LTTE was principally responsible for the loss of civilian life in the last phase of the war (para 42). Western-based LTTE activists and fundraisers would have reason to fear this Report because it is backed by a team of Western experts including a military analyst of international repute. As a result this Report may have greater credibility in the eyes of a Western readership than, say, the LLRC Report.
The reasons for the GoSL seeking to undermine this Report remain inexplicable, seeing that it offers the best defence, so far, of the conduct of its armed forces. Despite calls from Opposition ranks to submit the Report to the Human Rights Council in Geneva the GoSL did not do so.
It would be a sad commentary on the GoSL if its only reason for seeking to discredit the Paranagama Commission is that it was appointed by political rivals of the previous regime. If the government’s goal is reconciliation and if, as it says, it hopes to achieve this through a process that involves truth-seeking and wide consultation, shouldn’t the Report be made part of the national and international discourse – whether or not some people disagree with its content?