Army’s response to LLRC observations

29 January 2013 09:48 pm - 0 - {{hitsCtrl.values.hits}}

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This is an extract from the first Chapter of the Report of the Army Board on ‘Implementation of the Recommendations of the Lessons Learnt and Reconciliation Commission’ (LLRC) delivered by Army Commander Lieutenant General Jagath Jayasuriya to Gotabaya Rajapaksa, Secretary Defence and Urban Development.

HUMANITARIAN LAW ISSUE

Observations, recommendations, and action plan for measures to safeguard civilians and avoid civilian casualties.
The Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one carefully conceived, in which the protection of the civilian population was given the highest priority. The Commission also notes in this regard that the movement of the Security Forces in conducting their operations was deliberately slow during the final stages of the conflict.

These factors are consistent with the position that protection of civilian life was a key factor in the formulation of a policy for carrying out military operations. They militate against any proposition that deliberate targeting of civilians was part and parcel of a policy.
NO FIRE ZONES (NFZs)
The Commission concludes that the Security Forces had not deliberately targeted the civilians in the NFZs, although civilian casualties had in fact occurred in the course of crossfire. Further, the LTTE targeting and killing of civilians who attempted to flee the conflict into safe areas, the LTTE threat posed by land mines and resultant death and injuries to civilians, and the perils inherent in crossing the Nanthi Kadal Lagoon, had all collectively contributed to civilian casualties.

The Commission considers whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality. Given the complexity of the situation that presented itself as described above, the Commission is of the view that the Security Forces were confronted with an unprecedented situation when no other choice was possible.

It would also be pertinent in this context to recall that, in determining questions of State responsibility in respect of death, injury or property damage in the course of military operations, international tribunals referring to doctrinal authorities, have described them as “next to impossible”, the obtaining of a re-construction in front of a tribunal, conditions under which the “combat action” took place with an adequate reporting of all accompanying circumstances.

The Commission is faced with similar difficulties in attempting a re-construction of certain incidents involving the loss of civilian lives which have been brought to the attention of the Commission.

The Commission stresses that there is a duty on the part of the State to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrongdoers.

The consideration should also be given to providing appropriate redress to the next of kin of those killed and those injured as a humanitarian gesture that would help the victims to come to terms with personal tragedy, both in relation to the incidents referred to above and any other incidents which further investigations may reveal.

The Commission is satisfied, on careful consideration of all the circumstances that shells had in fact fallen on hospitals causing damage and resulting in casualties. However, the material placed before the Commission points to a somewhat confused picture as to the precise nature of events, from the perspective of time, exact location and direction of fire.

The challenge faced by the Commission is the determination of responsibility for the acts in question, on the basis of concrete evidence.

No immediate investigation in the nature of a crater analysis had been undertaken, presumably given the intensity of the conflict, in the areas in question.
None of the persons making representations was able to state with certainty they were in a position to definitely confirm that the shells which fell on the hospitals originated exclusively from the side of the Sri Lanka Army or from the LTTE.

One civilian stated that when a shell lands, the general anticipation was that it was the Army.

Puthumatthalan hospital was in fact accidentally shelled by the LTTE for which they had subsequently apologised.

Thus the Commission’s task of reaching a definite conclusion as to who was responsible for the shelling of hospitals and loss of lives / damage to property is made extremely difficult by the non - availability of primary evidence of a technical nature and also the fact that supportive civilian evidence is equivocal in nature and does not warrant a definitive conclusion that one party or the other was responsible for the shelling.

Although the Commission is not in a position to come to a definitive conclusion in determining responsibility that one party or the other was responsible for the shelling, nevertheless given the number of representations made by civilians that shells had in fact fallen on hospitals causing damage to the hospitals and in some instances loss or injury to civilian lives, consideration should be given to the expeditious grant of appropriate redress to those affected after due inquiry as a humanitarian gesture which would instill confidence in the reconciliation process.

A number of people stated that they had directly witnessed certain persons surrendering to the custody of the Army.

It is the clear duty of the State to cause necessary investigations into such specific allegations and where such investigations produce evidence of any unlawful act on the part of individual members of the Army, to prosecute and punish the wrongdoers.

The Commission must also stress in this regard that if a case is established, of a disappearance after surrender to official custody, this would constitute an offence entailing penal consequences.

Thus, the launching of a full investigation into these incidents and where necessary, instituting prosecutions are an imperative, also to clear the good name of the Army.

Safety Zones
Integration of ‘Safety Zones’ into combat strategy and the use of civilians as human shields, leave grey areas in the existing legal framework applicable to internal conflicts involving State and non-State armed groups.

The resulting position is that the civilian is placed in jeopardy when the State is compelled to resort to counter measures to deal with the combat strategy of the non-State armed groups, situations which require neutralising military positions established within civilian ‘Safety Zones’.

The non-State armed group has no intention whatsoever of agreeing to a negotiated declaration of such zones providing for civilian protection and once unilaterally declared by the State; to utilize them to advance its combat strategy and operations (for example, using civilians within the zone as human shields).

The State and Field Commanders are faced with the dilemma of protecting civilians on the one hand and neutralising the enemy fire power emanating from within the NFZ, on the other.

The Sri Lankan experience has in fact given rise to a debate as to whether, by unilateral declaration of a ‘No Fire Zone’. The government unwittingly provided the LTTE an opportunity to consolidate itself amongst the civilian enclave for strategic purposes. The development of appropriate standards and procedures to deal with such situations becomes an imperative need in addressing contemporary challenges to the existing IHL regime in internal conflict situations.

These complex issues of contemporary relevance to the application of IHL must engage the immediate attention of the international community of States and relevant international organisations such as the UN and the ICRC, so that appropriate legal instruments are put in place to fill the existing lacunae in IHL in its application to internal conflicts.

Formulating an effective legal framework drawing from these experiences is a clear obligation that the International Community owes to all victims of conflict.
Despite the efforts by the Security Forces to avoid harm to people, there have been instances of exchanges of fire over the civilian areas including NFZs causing death and injury to civilians.

It also appreciates that the priority and indeed the natural instinct of the security forces and other authorities was to ‘Save lives rather than count bodies’. However it is noted with regret that there is no official record or a post-conflict estimate of civilian casualties either by the civilian administrative authorities in the area or by the defence authorities. Whilst the Security Forces had their own casualty figures and an estimate of the LTTE casualties, the absence of authoritative civilian casualty records, with the exception of the limited data from the Ministry of Health, has led to varying figures of civilian casualty estimates by different entities, media organisations and authorities.

There was no proper verification process; either by civilian administration or by the Military and this has contributed to the unverified sweeping generalisations of a highly speculative nature as regards casualty figures. Considerable civilian casualties had in fact occurred during the final phase of the conflict.

Conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain firsthand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of the conflict.

The images contained in the video footage are truly gruesome and shocking, irrespective of whether the incidents are ‘real’ or ‘staged’ ones.

To Emphasise that the video provides prima facie material on possible summary executions and sexual assault involving people who appear to be - in captivity.
Both the Government as well as the Reporter’s experts, however point to several technical ambiguities in the video which remain un-clarified. Prof. E. A. Yfantis cast significant doubts about the authenticity of the video, especially the probability of electronic tampering and the artificial construction of the ‘blood effect’ in the video. The non-availability of a copy of the broadcast footage has not helped in finding conclusive clarification of such technical ambiguities.

The Commission finds that there are troubling technical and forensic questions of a serious nature that cast significant doubts about the authenticity of this video and the credibility of its contents.

It is also observed that trauma evident on the bodies of victims does not appear to be consistent with the type of weapon used and the close range at which the firing is seen to have taken place.

The Commission wishes also to note however that someone had recorded otherwise produced these images and the video and made it available to the broadcaster concerned. One expert enlisted by the Commission observes that “The segments of the footage appear to have been recorded in a natural environment” and that some of the bodies of alleged victims show no artifacts of manipulation either physically or by digital means.

The broadcaster did not respond positively to the request made by the Commission to provide more comprehensive information. The Government should initiate an independent investigation into this matter to establish the truth or otherwise of the allegations arising from the video footage.

The Commission shares some of the significant doubts expressed on the integrity

of the video and feels strongly that if that were to be the case, whoever constructed the video and the organisation that broadcast it should be held responsible for a serious instance of gross disinformation.

The Commission is also concerned that such acts would seriously prejudice and lace major obstacles in the way of the ongoing efforts, both national and international to promote and consolidate a viable process of reconciliation, healing and reconstruction in Sri Lanka.

The government of Sri Lanka should institute an independent investigation into this issue with a view to establishing the truth or otherwise of these allegations and take action in accordance with the laws of the land.

Equally, the Commission feels that arrangements should be made to ensure and facilitate the confidentiality and protection of information and informants.
The Commission strongly urges all those concerned, especially the organisations that provided the original images and the broadcasting organisation, to extend their fullest cooperation by providing the necessary information to facilitate this work.

ACTION PLAN PROPOSED BY THE ARMY BOARD

LLRC has conceded (at Paragraph 4.262) that the military strategy that was adopted by the Army to secure the LTTE held areas to be one that was carefully conceived, in which the protection of the civilian population has given the highest priority. In reaching this conclusion the LLRC has taken account of the various steps taken by the Army to identify precise targets such as deployment of Long Range Reconnaissance Patrols, procedures followed in carrying out air strikes, utilization of UAVs etc. The LLRC has also conceded that the movement of the Army was deliberately slow during the final stage of the conflict, thereby evidencing a carefully worked out strategy of avoiding civilian casualties or minimising them. In this backdrop, the questions whether civilian casualties in fact occurred or whether such incidents were collateral or incidental damages that are inherent with the vagaries of war have not been answered affirmatively by the LLRC.

The LLRC has noted the fact that certain technical experts have taken the view that the Channel 4 video footages have extensive technical and forensic ambiguities suggesting that the video tapes are fakes. LLRC has found as a matter of fact that there are strongly argued points opposing the integrity of the video and the authenticity of the events recorded (paragraphs 4.369 and 4.370). The LLRC had taken steps to obtain an independent opinion from Professor EA Yfantis, professor of computer science at the University of Nevada, USA and based on the extensive video graphic and mathematical analysis of the videos, Professor Yfantis has concluded that the video footage in questions were orchestrated. In the premises, this Board recommends to appoint a Board of Inquiry to investigate the matter fully in order to clear the good name of the Sri Lanka Army and also to bring any offenders, to justice.

The Board concludes that the Armed Forces had taken every precaution to minimise civilian casualties. However, in order to eliminate/minimise civilian casualties and co-lateral damage in future operations, the Board recommends that:

To appoint Army Boards on all disciplines such as infantry tactics, special
operations, arty fire, armour employment, joint operations etc in MOUT /
FIBUA and environments to formulate new doctrines on these aspects.

To appoint a Tri-Service Board to design military doctrines incorporating new tactical and technical methodologies and the utilisation of high tech equipment. At present IHL principles applicable in internal war situations have not adequately addressed the various complex issues. The existing rules are seemingly applied to state actors only. Further there are no specific guidelines with regard to the role of International Humanitarian Agencies in internal war situations. Therefore it is recommended that Tri Service Board consisting of legal officers to research and formulate new principles / ROEs for internal war situations incorporating aspects such as unilateral designation of NFZs, imposing mandatory legal obligations on non-state actors to observe Rules of War, the role of International Humanitarian Agencies (ICRC, MSF etc) in internal war situations etc.

To enhance the present IHL/HR Law dissemination programmes to reach all members of the armed forces and to re-design the courses to cover basic,middle level and advanced training on IHL / HR with the help of International Organizations. The Board notes that so called civilian casualties are mainly consisted of LTTE cadres killed in combat, civilians killed by LTTE for political and other reasons and civilians killed by LTTE whilst attempting to flee LTTE held areas. However in the spirit of reconciliation, the board recommends that the Government should implement a system to compensate the next of kin of all those killed and injured in the entire Island irrespective of their ethnicities or political affiliations.

As outlined in the previous paragraph, the death toll has been highly exaggerated

by LTTE and western powers in order to bring discredit to the GOSL. Therefore it is recommended to conduct a professionally designed household survey covering the North & East to ascertain first-hand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of conflict. At present a census is in progress to cover all households in the North and East.

To be Continued...

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Army’s response to LLRC observations

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