War crimes probe: Relevance of leaked US cables and UK court case

Foreign experts highlight previous government’s failure

By Shamindra Ferdinando

The report on the Second Mandate of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances, aka the Paranagama Commission, highlighted the relevance of Wikileaks cables in assessing the accountability issues in Sri Lanka.

The Norwegian government underlined the relevance of Wikileaks revelations, pertaining to Sri Lanka, in Sept. 2011. A comprehensive report, titled Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka, stressed the importance of Wikileaks. In fact, the authors of the report deeply regretted their failure to examine the entire set of Wikileaks cables on the wartime situation (2006-2010). The authors said: “As the report was being published, new material of relevance for assessing Norwegian peace efforts in Sri Lanka was released by Wikileaks. Unfortunately, it came too late for a evaluation.”

The previous government never made an effort to examine Wikileaks. In fact, the government ignored the urgent need to explore the possibility of using them for Sri Lanka’s defence, even after Norway underscored the importance of classified US diplomatic cables, released by Wikileaks. Those who had been responsible, during the previous administration, for Sri Lanka’s defence in the face of growing war crimes accusations, failed pathetically in their duty. The External Affairs Ministry never bothered even to study Wikileaks, in spite of Norway revealing the importance of the US cables. The Norwegian report revealed that in addition to about 120 persons, interviewed in aid of the evaluation process, relevant Wikileaks cables, released at that time, proved useful.

If not for the former President Mahinda Rajapaksa’s much delayed decision to expand the scope of the Paranagama Commission, on July 15, 2014, to accommodate a team of international legal and military experts, to assist the domestic mechanism, Sri Lanka would never have received the benefit of Wikileaks revelations. The international team comprised Sir Desmond de Silva, QC, Chairman of the legal advisory council (UK), Professor Sir Geoffrey Nice QC. (UK), and Professor David M. Crane (USA), They were backed by Rodney Dixon, QC. (UK/ South Africa), Professor Michael Newton (USA), Commander William Fenrick (Canada), Professor Nina Jorgensen and Major General John Holmes, DSO, OBE, MC (UK) former Commanding Officer of the Special Air Service (SAS) Regiment, Paul Mylvaganam (UK) and Victoria de Silva and Delarney Uyangodage, for their research.

Former President Rajapaksa established the Paranagama Commission, on Aug. 15, 2013. However, the Paranagama Commission ignored a statement made, in Colombo, on June 1, 2011, by the then US Advisor, in Sri Lanka, Lt. Col. Lawrence Smith, who earned the wrath of the US State Department by denying claims of a bid to arrange surrender of LTTE cadres going awry. Most probably the previous government had failed to bring it to the notice of the international experts.

While clearing the government, and the Army, of seeking to annihilate the Vanni population, the Commission called for a domestic judicial investigation, backed by international technical assistance, under foreign observers.

The Island, on several occasions, highlighted the relevance of Wikileaks to Sri Lanka’s defence. The previous government, for some strange reason, refrained from even referring to Wikileaks. Instead, the previous government squandered millions of US dollars on expensive US public relations firms, in a foolish bid to influence US decision makers. Thanks to international experts, the Paranagama Commission took up the issue of Wikileaks. The following points, contained in the Paranagama Commission, in no uncertain terms, highlighted the importance of Wikileaks cables, pertaining to Sri Lanka. Point No 11: In addition, the Commission had available to it via WikiLeaks, contemporaneous and classified cables from the US embassy in Colombo. The Commission is aware that in the judgement in the case of The Queen (on the application of Louis Oliver Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs, the English Court of Appeal held that the evidence of these cables was admissible as it did not violate the archive and documents of the diplomatic mission which sent the cables, since they had already been disclosed to the world by a third party. The Commission has relied on the reasoning in that judgement. Point No 65: This Commission seeks to document chronologically some of the salient events that occurred during the final phase of the war in Sri Lanka and to analyse the thinking and conduct of both individuals and states whose interaction helped shape the outcome of the events both before and after the end of Asia’s longest running civil war. The Commission makes no apology for having delved into diplomatic cables that have come to be disclosed by WikiLeaks to shed light on matters hitherto unknown or only guessed at. On 23 May, 2014, the Court of Appeal, in the UK, upheld the principle that the contents of WikiLeaks cables could be admissible as evidence in court.

The previous government never sought to use Wikileaks revelations to establish battlefield situation or ascertain the stand taken by the US, Norway, UN, ICRC, as well as India. The Paranagama Commission pointed out a US diplomatic cable, dated July 15, 2009, authored by US Ambassador in Geneva, Clint Williamson, cleared the Army of crimes against humanity during the Vanni offensive. In addition to clearing the Army of crimes against humanity, according to Ambassador Williamson, during the Vanni offensive, Jacques de Maio, head of ICRC operations, in South Asia, stated that any serious violations of the international humanitarian law that may have been committed by the military did not amount to genocide. On the basis of available information, including Wikileaks revelations, the Commission asserted that the Army couldn’t have received any military advantage by deliberately targeting the Vanni civilian population. US diplomatic cable quoted Jacques de Maio, head of ICRC operations, in South Asia as having said that while the Army regarded its military objectives as paramount, the Army was, ‘open to adapting its actions to reducing casualties’.

Contrary to unsubstantiated allegations, directed at the Army as regards indiscriminate military action, on the Vanni front, leaked US diplomatic cables revealed the true position on the ground. The Maithripala Sirisena-Wickremesinghe government should ensure that those responsible for Sri Lanka’ defence, at the proposed war crimes court, use US diplomatic cables to counter baseless accusations. It would be pertinent to mention that US cables can counter allegations pertaining to the massacre of over 40,000 Tamil civilians on the Vanni front. Contrary to claims, the Army earned praise from the then US Ambassador, in Colombo, in January, 2009. The cable, dated January 27, 2009, referred to US Ambassador stressing the need to minimise loss of civilian lives.

‘The Government has gained considerable credit until this point for conducting a disciplined military campaign, over the past two years, that minimized civilian casualties. We are concerned by statements from several Government Ministers that the “[GoSL] will fully occupy the Vanni by your independence day, on February 4. Given the recent high civilian casualties, we urge that you not tarnish your reputation for minimizing civilian casualties in your haste to end hostilities by February 4.”

The US position was subsequently endorsed by the UN Resident Coordinator, in Sri Lanka. The Colombo-based UN chief told the Foreign Minister, on 7 February, 2009: ‘We [the UN] recognise that throughout the military, campaign during 2008, the level of civilian casualties was minimal especially considering the scale of the military operation. This was in large part due to the actions and caution of the Sri Lankan forces. However, since the first week of January, despite the best efforts, there has been a rapid increase in civilian casualties as the areas within which they are concentrated shrinks, and we have raised our concerns to the Government of Sri Lanka, both publicly and privately, in this regard. We have also highlighted publicly a number of times the grave responsibility the LTTE has for this terrible situation…’.

On the basis of information, obtained from the ICRC, the US established the LTTE use of civilians to enhance its battlefield strategy. A US diplomatic cable relayed information obtained from the Head of ICRC Operations for South Asia, Jacques de Maio, where: ‘De Maio said that the LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred. They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter.’

Wikileaks cables, which dealt with Sri Lanka, exposed some of those who had been shedding crocodile tears for the Vanni civilian population. Among those exposed were high ranking British politicians, as high as the then Foreign Secretary, David Miliband, who worked overtime to throw a lifeline to the sinking Tigers, for political reasons. Wikileaks also dealt with the assassination of the then Foreign Minister, Lakshman Kadirgamar, in Aug 2005, in the run-up to the eelam war IV. Wikileaks also revealed India seeking US assistance to ascertain Chinese projects in Sri Lanka. But, unfortunately, the previous government turned a blind eye to this trove of information. Cables, pertaining to Sri Lanka, dealt with the then government obtaining weapons from North Korea and even the Eelam People’s Democratic Party (EPDP) supplying prostitutes to the Sri Lankan military. Sri Lanka cables included many on the political situation. One of the most interesting was the one which dealt with SLMC Chairman, Basheer Segu Dawaood, discussing a political strategy to defeat Mahinda Rajapaksa.

The US cables, in early 2009, revealed the US awareness of the LTTE holding the Vanni population hostage. The Paranagama Commission pointed out the US reaction to the LTTE’s move. When the LTTE ignored the then President Rajapaksa’s January 29, 2009 call ‘to allow free movement of civilians. to ensure their safety and security’, the US Ambassador, stated in a secret cable to Washington: ‘The LTTE had refused to allow civilians to leave because the LTTE needs the civilians as human shields, as a pool for forced conscription, and as a means to try to persuade the international community to force a ceasefire upon the government, since that is the LTTE’s only hope’. The then Norwegian Ambassador, Tore Hattrem, too, asserted, in February, 2009, that the LTTE was unlikely to release civilians. Hattrem expressed his concerns, in a letter dated, February 16, 2009, addressed to presidential advisor, Basil Rajapaksa. The Island recently revealed the existence of the hitherto unknown Norwegian note, headlined ‘Offer/Proposal to the LTTE’, personally signed by Ambassador Hattrem. The Norwegian envoy was writing to Basil Rajapaksa, on behalf of those countries, trying to negotiate a ceasefire between the government and the LTTE, to facilitate the release of civilians, held hostage by the latter.

The following is the text of Ambassador Hattrem’s letter, addressed to Basil Rajapaksa: “I refer to our telephone conversation today. The proposal to the LTTE on how to release the civilian population, now trapped in the LTTE controlled area, has been transmitted to the LTTE through several channels. So far, there has been, regrettably, no response from the LTTE and it doesn’t seem to be likely that the LTTE will agree with this in the near future.”

Co chairs to Sri Lanka’s peace process, namely the US, EU, Norway and Japan can help the proposed war crimes court to establish the efforts made by them to arrange a ceasefire to pave the way for the LTTE to surrender.

The Paranagama Commission explained the situation, on the basis of a US diplomatic cable, dated April 17, 2009, originating from Colombo. The cable dealt with information provided by a priest who had managed to escape from the LTTE. The Commission said: “. The priest asserted that all the civilians in the LTTE controlled area would leave if they could but with only three villages left, under LTTE control, it was now much more difficult for civilians to evade detection by the LTTE when attempting to escape. The same diplomatic cable made reference to the Tamil National Alliance (‘TNA’) sending four TNA Members of Parliament, to Delhi, to explain that India had to tell the GoSL that if it could not protect civilians then India would have a responsibility to do so. In the view of this Commission, this must have appeared to the GoSL as a possible repeat of the events, of 1987, when India intervened and halted the advance of the SLA.”

Just five weeks before the war ended, the US embassy, according to a leaked diplomatic cable, placed the number of casualties, from January 20, 2009 to April 20, at 6,432 killed and 13,946 wounded. The figures, quoted by the US, were provided by a UN information gathering network active in the Vanni. The UN network halted its project on May 13, 2009, six days before the conclusion of the war. The UN estimated the number of dead at 7,721 and 18,461 wounded though the UNSG Panel of Experts (PoE) declined to accept the figures provided by the wartime UH mission in Sri Lanka.

On 24 April, 2009, a cable from the US Embassy, in Colombo, records UN casualty estimates between 20 January and 20 April as being 6,432 killed and another 13,946 wounded. ‘Embassy considers these to be the most reliable figures available’.

Let me end this piece with the Paranagama Commission’s assertion of Wikileaks cables on the Vanni war: “By the last stages of the war, in 2009, US diplomatic cables acknowledged that the LTTE was pursuing a monstrous campaign of cannibalising its own people, particularly children. Even apparent opponents of the GoSL corroborate the fact that the dragooning of Tamil civilians into the front line by the LTTE was to increase the scale of Tamil civilian deaths so as to force some form of international intervention in response to a humanitarian disaster. It is significant that Prabhakaran continued to sacrifice his own people, right up to 16th May 2009, when the ruling party of Tamil Nadu – Dravida Munnetra Kazhagam – which he believed might have intervened, and ensured his survival, lost out in the Indian general election. Prabhakaran’s hopes for the election, in Tamil Nadu, of a party supportive of the LTTE, were dashed when the Congress Party of India secured a majority without the need to accommodate pro-LTTE parties in the central Government.

To be continued on Nov. 4