War Crimes in Sri Lanka: Stain or slander?

War Crimes in Sri Lanka: Stain or slander?

Editor’s Note: This piece responds to ‘In Defence of the Armed Forces of Sri Lanka’, a report published by the the Global Sri Lanka Forum that appraises a report released by the Office of the United Nations High Commissioner for Human Rights Investigation on Sri Lanka.

“The international community] wants Sri Lanka’s armed forces to face up to the stain on their reputation, so that they can once again play a constructive role in international peace-keeping operations, and command the full respect that so many of their members deserve.

– Zeid Ra’ad al Hussein, United Nations High Commissioner for Human Rights[1]

“….. the UN High Commissioner for Human Rights…has said there is a stain on the honour of the armed forces of Sri Lanka. If he said such a thing in my view it is an insult hurled not just at the armed forces but at the country itself. The armed forces are the guardians of the nation, and a stain acquired as a result of guarding the nation is necessarily a stain of the motherland itself.” 

-Darshan Weerasekera[2]

Whether or not the actions of the government and the guardians of the nation during the last stage of the civil war (2006-2009) were a stain on the country’s national fabric is what this paper will discuss. This debate has been in progress since Lanka was granted independence by the British in 1948. It involves the disfranchisement of plantation Tamils in 1948, the passing of the Official Language Bill (better known as the Sinhala Only Bill) in 1956, the 1958 riots against the Tamil community and those in 1977, the two insurrections by the Janatha Vimukthi Peramuna (Peoples Liberation Front – JVP) which were brutally suppressed, and the 1972 and 1977 constitutions, both of which stated that Sri Lanka is a Sinhala Buddhist country. These are matters which the country’s elite have consistently downplayed.

1983 was a pivotal year in the history of post-independence Sri Lanka. It was in July of that year a pogrom against Tamils in the south and east of Sri Lanka was instigated. Their possessions and business were looted, their houses burnt, many women were raped and probably 2,000 people were killed. This resulted in an exodus of around 100,000 Tamils from the south. It is not surprising that the civil war began in earnest in its bloody aftermath. It ended only with the complete victory of the Lankan state and the annihilation of the Liberation Tigers of Tamil Eelam (LTTE) twenty-six years later. During the conduct of the long civil war there were countless human rights violations by both sides, with the civilian population being caught in the middle. The conduct of the last phase of the war, known as Eelam War IV,[3] came under particular scrutiny by the international community. It is this scrutiny that has angered that section of the Sinhala community that refuses to admit any fault on their own side.

Setting the scene

WAR-CRIME2A United Nations report was commissioned by the then Secretary of the United Nations (UN), Ban Ki Moon, just after the conflict ended in 2009. The Panel found that both sides of the conflict were guilty of war crimes, especially in their treatment of civilians in the war zone. They estimated that at least 40,000 people died in the last stage of the civil war.

The UN panel stated that there were credible allegations that the LTTE was using civilians as human shields, killing civilians attempting to flee LTTE control, using military equipment in the proximity of civilians, forcibly recruiting children, using forced labour and killing civilians through suicide attacks.

The Panel goes on to state that there are also credible allegations that the Government of Sri Lanka (GOSL) and its armed forces killed civilians through widespread shelling, shelled hospitals and humanitarian targets, denied humanitarian assistance and violated the human rights of journalists and government critics.[4]

The most vociferous opponents to the UN report were not only the Sri Lankan government, headed at the time by President Mahinda Rajapaksa, but also other Sinhalese ultra-nationalists, an example being the Global Sri Lankan Forum.

The Forum’s lengthy rebuttal of the UN findings contends that the Sri Lankan armed forces behaved at all times in a humane fashion and acted with due restraint, whilst their nemesis the LTTE had no such compunction and that they were the real human rights offenders during the war. They vigorously rebut the UN figure that at least 40,000 died in the last phase of the war and empathically state the figure of civilian deaths is around 3,000, most of whom they claim were killed by their ‘terrorist’ opponents in the conflict. They take especial exception to the ‘stain’ on the armed forces resulting from the revelation of human right abuses, and are vigorously opposed to any foreign interference, including any investigation of war crimes, as their judicial system – they argue – is robust enough to deal with any war crimes, if there are any.[5]

It is this rebuttal that I will deal with.

On the other hand, the Tamil community is largely mute about the crimes of the LTTE, with a few notable exceptions like Doctor Rajan Hoole and University Teachers for Human Rights (Jaffna).[6] Yet at the same time the Tamil community wants international help and intervention to investigate the crimes committed by GOSL and its armed forces during the civil war and to help account for the many thousands of their kith and kin who are missing. They want to hold the state and its armed forces accountable for its conduct, and want an end to their impunity. Most Sinhalese, however, are either loathe to contemplate this or are simply indifferent.

What follows is an evaluation of competing claims and an attempt to see the conflict and the resultant debate within the historical and cultural context of the country’s turbulent post-war history.

A tentative summary of the rebuttal

Darshan Weerasekera, attorney at law and the principal collator-author of the rebuttal, unequivocally and eloquently states that the UN report is seriously flawed, characterised among other things by contradictions, omissions, lies, obfuscations and half-truths, and also lacking in any consideration of exculpatory evidence, the cumulative effect of which is that the report fails to establish its primary claim namely, that the state (i.e. the military as well as civilian leaders who oversaw the conduct of the war, and thereby the armed forces collectively as contra-distinguished from individual soldiers) is responsible for war crimes and other serious crimes allegedly committed during the relevant period.[7]

Weerasekera states that the UN evidential basis of its claims of culpability, ‘reasonable grounds to believe,’ is the lowest possible legal standard of proof, and that the standard should be higher, given that this would form the basis of criminal trials. As it stands, the findings would be invalidated.  To support his contention, he cites a number of Queen’s Counsels with expertise in international law.

He goes on to say that no evidence is provided in the UN Report regarding the allegations therein. He questions the veracity of the witnesses, asserting that most of the Tamils seeking sanctuary in Western countries like Canada are doing so for economic reasons, not because they are fearful of their lives. He says that many in fact regularly visit Sri Lanka and that many of the so-called disappeared have suddenly reappeared, thus reducing the number of those allegedly killed.

Weerasekera contends that Lanka has a strong and independent judiciary. The laws of Sri Lanka are based on the Charter of Justice of 1833 which gave legality to Roman-Dutch Law but more importantly to pre-colonial ‘customary laws of the Sinhala, whose presence on the isle goes back over 2,500 years’.[8] This Charter is the bulwark of a robust justice system in which courts would “not hesitate to rule against the State, including against the armed forces, where the interests of justice demand it.[9]

Attached to the report are a number of supplementary reports from lawyers, an academic, a Sinhala nationalist commentator and a military expert. These reports were commissioned by the GOSL and nationalist organisations in the Sinhalese community. Weerasekera admits that if the UN figure of 40,000 dead is correct, it is possible war crimes were committed by GOSL and the armed forces. He then sets out to refute that figure.

Weerasekera refers to a census of the Northern Province carried out in November 2011 by the Department of Census and Statistics. They estimated that 3,000 civilians died, most of whom were killed by the LTTE. This figure may be compared favourably to the UN Country Report figures completed just before the end of the civil war which stated there were around 7,721 deaths. [10]

Weerasekera  refers also to evidence furnished by Muralidhar Reddy from Front Line and David Gray, a photojournalist from Reuters, who were embedded with Lankan armed forces; they, like the doctors working in hospitals in the war zone state (he says) that the Lankan armed forces behaved with restraint, and support the contention that civilian deaths were minimal. He refers also to a report commissioned from military expert Sir John Holmes. He contends that an analysis of the aerial photographs shows, the armed force of Lanka were not engaged in a deliberate policy of indiscriminate attacks on civilians. The armed forces always acted with restraint and their actions were proportionate to the situation the armed forces faced. The evidence, he concludes, clearly shows that any deaths caused by the armed forces were ‘collateral damage’.

Evidence is presented from the most senior UN representative in Lanka at the time, attesting to the fact that the armed forces did not withhold food and medical supplies from civilians and that internationally displaced people were also treated humanely. Weersekera maintains, in the light of such evidence, that the extra-judicial killing of senior LTTE personnel and cadres did not take place and that there is no truth in reports of systematic torture, deprivation of liberty, rapes and other atrocities committed by the armed forces.

The report rebuts reports of unlawful executions by the armed forces. In particular it denies culpability with regard to four notorious incidents of alleged extra-judicial murder. These were the killing of senior LTTE personnel like Nasedan and Pulidevan, known as the “white flag incident”; the murder of Colonel Ramesh, a senior LTTE tactician; the murder of Balachandran Prabhakaran, son of LTTE leader Velupillai Prabhakaran; and the killing of Shobana Dharmaraja, better known as Isaipriya, a well-known LTTE media personality.[11]

An evaluation

“I will recall what I said in the past that our troops went to the battlefront carrying a gun in one hand, the Human Rights Charter in the other, food for the innocent displaced on their shoulders, and love of their children in their hearts. They did not target any communities or religions, and did not march ahead with hatred towards anyone.”

-Mahinda Rajapaksa[12]

A difference in priorities and political sensibilities

The disparity between the conclusions of the UN report and the Global Sri Lankan Forum stem largely from the difference in their approaches and political sensibilities.

The genesis of the UN report was the disturbing accounts coming from the war zone during the last phase of the civil war regarding human rights violations. In the words of the UN Panel, what was needed was a ‘genuine, victim-centered accountability focused on truth, justice and reparations’.[13] The UN investigation placed Tamil civilians, the principal victims of the civil war, at the centre and used their testimony. They then assessed the veracity of the claims and came to the conclusion that there were “credible allegations” of war crimes committed by both parties to the conflict.

The contra report is characterised by a completely different political sensibility. It was written from an a priori assumption that it was inconceivable that the armed forces of Sri Lanka could commit such crimes. Their opponents the LTTE –  a prescribed ‘terrorist’ organization – had a brutal track record. It is taken as a given that the Lankan armed forces, in contrast, were engaged in a humanitarian patriotic mission to liberate the civilian population from the LTTE and return them to the bosom of the Lankan unitary state. No wonder then that Weeresekera states that ‘I consider it a moral duty of every citizen to stand up and counter such slurs and set the record straight and contribute whatever they can of their labour and skill’.[14] With such an attitude, it would be virtually impossible to impartially investigate the claims of human rights violations and war crimes.

No mention is made of the aspirations of the Tamils or what they endured because of the civil war and the discrimination of the unitary Sinhala Buddhist State. Tamils are portrayed variously as civilians who needed to be rescued, terrorists, LTTE cannon fodder, and as a community rife with sexual violence, promiscuity and crime.

This paradoxical view is reinforced by the picture on the cover of their report, which shows a war ravaged landscape, with a frail elderly woman, presumably a Tamil, being carried to safety by a Sinhalese soldier. In this Manichean universe, all right is on the side of the state, all evil the result of the actions of the LTTE. The unsatisfactory nature of this view becomes obvious when looking at the failure to deal with well-known incidents like the murder of Prabhakaran’s 12 year old son. A more balanced report would have interrogated the parties involved in the conflict, sifted the evidence and presented findings accordingly.

The UN report only gives a cursory outline of Sri Lankan history. A more substantial account would have given the reader some context of the conflict and its bloody aftermath. The Global Sri Lankan Forum’s report gives no background at all.[15]  Giving the difference in approaches, the disparate conclusions are not surprising.

The number of casualties in the last phase of the civil war

The Global Sri Lankan Forum’s contra report states that in November 2011 the Department of Census and Statistics did a census of the Northern Province. The result of their investigations found that during the last phase of the civil war (2006-2009) there was “ a total of 22,329 deaths,” half of which occurred in 2009”. 2,253 died of natural causes; 7,934 died because of accidents, homicides, suicide and other causes. This leaves 8,000 deaths, including the cadres of the LTTE, and out of these they estimate 3,000 civilians died, most of whom were killed by the LTTE.

This figure, so the Forum’s report claims, is very close to the UN Country Report figures completed at the end of the war and which stated there were around 7,721 deaths.[16]

The Global Sri Lankan Forum in May 2018 was honored by a reception in the House of Lords by one of its members, Lord Naseby. He dramatically presented new evidence to support the above claims. These were 39 pages of dispatches (‘the Gash Dispatches’) sent by the UK Defense Attaché to the UK Foreign Office for the period January to May 2009.  Gash puts the number of civilians killed as 6,432,[17] a figure in complete contradiction to the UN Panel’s claim of 40,000 deaths.

Unlike the Forum, the UN Panel admits that ‘there is no authoritative figure for civilian deaths or injuries in the Vanni’.  There is inadequate information on the number of LTTE combatants, the number of persons in the combat zone is ‘uncertain, and there is no ‘accurate count’ of the number of persons who emerged from the Vanni because of a lack of transparency in the screening process.

Acknowledging these limitations, the UN Panel looked at several sources of information of civilian deaths, including the UN Country Team report cited by the Forum. It used the UN Country report as one of the sources of information, but felt it had limitations, which I will discuss later in this section.

One of the assessments was an estimate by doctors based on the injured and the dead collected by the hospitals and the District Management Unit:

….there were approximately 40,000 surgical procedures and 5,000 amputations performed during the final phase. Depending on the ratio of injuries to deaths, estimated at various times to be: 1:2 or 1:3, this could point to a much higher casualty figure.[18]

Other estimated the number of deaths to be around 75,000. This figure was gained by subtracting the civilians who emerged from the conflict zone (290,000) and estimated number of people who entered the conflict zone (330,000), plus the 35,000 who emerged from LTTE controlled areas before that time.

The UN Panel, when looking at the surveys carried out after the conflict had ended, noted that the percentage of civilian deaths was relatively high. The UN Panel goes on to state:

A number of credible sources have estimated that there could have been as many as 40,000 civilian deaths. Two years after the end of the war, there is no reliable figure for civilian deaths but multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out.

In the end, said the UN Panel, only a proper investigation could lead to the identification of all the victims and the formulation of an accurate figure for the total number of civilian deaths.[19]

One of the planks of the Forum’s report is the initial UN Country Team Report, which was never released to the public. The report estimated a total figure of 7,721 killed and 18,479 injured from August 2008 to 13 May 2009 after which it became too difficult to obtain figures.  As a base the UN Panel used figures from the Regional Directors of Health Services (RDHS); they also collected figures from the UN staff and NGOs from the Vanni, from the Red Cross, from religious authorities and other sources. They then cross-checked this information to verify the base-line figures. The method was overly conservative. If an incident could not be verified by three sources or could have been double counted it was rejected. In addition, biased figures from GOSL and Tamil Net were rejected.

The UN Panel accepted these figures as a starting point but argued the figure was probably too low. Accounts of causalities were only observed in LTTE controlled areas, and as a result many of those wounded and killed may have escaped observation; and when the UN stopped reporting on the 13th of May, the number of casualties had risen considerably, given the intensity of the shelling and fighting and the small area where Tamil civilians were huddling, with little or no shelter from the carnage reigning down on them. During the latter stage of the  conflict, many civilians were left where they were killed and were not registered, brought to a hospital or buried, and thus were not counted.

It is ironic that when the casualty figures from the UN Country Report were presented to senior figures like the Defence Secretary, they were robustly rejected. The Defence Secretary lost his temper, arguing that the policy of the armed forces was zero civilian casualties. [20] The report with all its limitations is now presented as a central plank in the rebuttal of the UN report.

These tensions were never made public. The UN and the Red Cross brought up the ‘heavy death toll’ of civilians in private communications with GOSL. These figures were not made public until much later.[21]

None of the above is mentioned in the Forum’s report, which argues (controversially, in the light of what has been said) that the UN never raised objections to the military operations. The UN Country Team’s figures were presented in the report as fact, not as the provisional findings they actually were.  The UN Panel used the figures merely as a base line for further investigation.

Gash’s figure of around 6,500 deaths, as opposed to the UN figure of 40,000 deaths, does not stack up on closer scrutiny. A critical look at the heavily redacted dispatches paints a different picture. It is not based on first-hand observations by Gash himself, but on sources he spoke to, and the dispatches do not provide any precise or independent verification of civilian casualties. The Gash figures do not cover the whole period of the last phase of the civil war. No new evidence is offered that would be a counter to the UN figures. In summary, the Gash dispatches are based on information  that is second-hand, partial and not verifiable, and, like the UN Country Team report, is nine years old. A large amount of information is now available which was not available then, nine years earlier at the height of the siege.[22]

The survey conducted by the Census department in 2011 is flawed and partial. For a proper account of the number of killed, the base needs to be the last proper census, which was conducted in 1981. Population figures before the civil war need to be collated, then compared to the 2011 survey; they then need to be cross referenced and checked with the Tamil civilians who had lost relatives. Only then can we maybe get a figure acceptable to all parties in the conflict.

The difficulties of arriving at the true figure are illuminated by Doctor Rajan Hoole’s analysis. He is a mathematician by profession and is skeptical of the figures gleaned in the 2011 census. Hoole argues strongly that the most reliable estimate is that of 2008 by the Government Agent (the highest ranking bureaucrat in a province). Those figures must then be compared to the Internal Displaced Persons (IDPs) figures. Hoole looks at a sample of students who had lost both parents, estimating that if they lost both parents then they must have also lost a sibling. His statistical samplings bring him to the conclusion that probably 90,000 are missing, and the great majority must be presumed dead.[23]

I present Hoole’s conclusion not as the definite one, though it is based on a detailed statistical analysis of the available data, but as an example of how most analyses and estimates have come up with a considerably higher number of civilian deaths than GOSL. Until GOSL allows independent investigators who are acceptable to both communities to investigate, the UN Panel’s conservative estimate of 40,000 civilian deaths will remain the more credible figure.

There is also a plethora of ancillary evidence that contradicts the claims made by the Forum’s report. We live in the era of universal surveillance (mobile phones, tracking devices, satellites), and it clearly show the carnage wrought by heavy artillery on tightly packed civilians caught between the severely depleted and exhausted LTTE fighters and the military might of the Lankan state. The evidence of continual artillery fire from the Lankan side can be seen in graphic detail – bodies strewn on the roadside, huts and tents rent asunder and shredded vegetation. The evidence of the carnage was clear when Ban Ki Moon, the then head of the UN, flew over by helicopter with a group of reporters over the area soon after the hostilities ceased. Gordon Weiss describes the landscape:

Empty of people and corpses, the landscape below revealed a confetti of shredded plastic sheeting across a vast sandy expanse of bomb craters, fire blackened smudges, lines of earthen bunds, knots of hasty graves, smashed houses, burnt out vehicles, broken coconut trees, gun emplacement positions, trenches and the detritus of human habitation.[24]

It was photographed for posterity. Buttressing the photographic record are the tens of thousands of Tamil civilians, bearing witness, who survived the inferno.

Indirect evidence also comes in the form of 90,000 widows in the north, most of whom are under 40 and whose lives are precarious and fraught under the occupation.[25] Many of their spouses would have been killed during the last phase of the war.

The defenders of GOSL and the Lankan armed forces action during the last phase of the civil war have used the Israeli bombing of Gaza and the invasion of Iraq as examples of military restraint. In both those cases the number of civilian deaths was unacceptably high, compared to the casualties suffered by the invading power. Why would the situation be any different in the north of Lanka?    If we accept as accurate the figure given by the then Defense Secretary Gotabaya Rajapaksa of 6,000 Lankan armed personnel killed in the last phase of the war, the civilian casualties would have to be considerably higher than those of the Lankan armed forces.[26]

Underestimating the number of those killed by the guardians of the nation is not a new phenomenon in post-independence Sri Lanka. The official estimate for casualties during the 1971 JVP insurrection ranged from a few hundred to 1,500 deaths; a more credible estimate is about 10,000 dead, most of whom were murdered in a most brutal way.[27] The 1983 pogrom against the Tamils resulted officially in the deaths of between 300 to 600 people by the state’s security forces; more credible estimates put it much higher, between 2,000 and 3,000.[28]

Then there are the incidents where the government has simply ignored the casualty figures: the 1958 and 1977 riots against the Tamil population, with credible estimates of hundreds dead. Those killed in the second JVP insurrection (1986-1990) numbered, it is estimated, between 40,000 and 60,000. Most of the deaths occurred in the last 18 months when the security forces rounded up suspected JVP cadres, tortured them and left their mutilated and in many cases charred bodies in public places for all to see. The majority were not tortured to gain any intelligence information, something which indicates a pathological sadism in certain members of the armed forces.[29]

Even a sympathetic writer like Paul Moorcraft, who was given unlimited access to the Rajapaksa brothers[30] and senior commanders like Sarath Fonskea, is hesitant to endorse the government figures regarding deaths and war crimes. Such figures include the number of armed personnel charged with such crimes, the deaths that occurred during the 1983 pogrom against the Tamils and the casualty figures for the last phase of the civil war. The official figures are, as he diplomatically puts it, largely an ‘open question’.[31] In other words, they require further investigation.

The armed strength of the respective parties to the conflict

The Forum’s report claims that the two sides were evenly matched.[32] The facts are otherwise. The armed forces of Sri Lanka were vastly larger and better equipped than those of the LTTE. GOSL’s air force dominated the air; their navy had mastery of the sea.  As a result, the LTTE supply lines were cut off, they were surrounded; and they fought a conventional war which suited their better armed and numerically superior opponents. It is therefore important, given the controversy over the number of deaths, to see how both sides built up their respective armed forces.

In 1984 the LTTE was estimated to have a strength of 2,000 fighters, with the Government having around 17,000. Five years later, in 1990, LTTE strength was estimated to be around 3,000, with the Government having between: 22,000 to 65,000. At the time of the peace deal in 2001 the LTTE’s strength was probably around 7,000, whereas the Government’s had risen to over 100,000. During the last phase of the war LTTE forces were estimated to be no more than 11,000, and ranged against them were probably 160,000 men.[33] Professor Paul Moorcraft, a prolific military historian, has written about the military tactics used by the victorious Lankan armed forces with the cooperation of the Rajapaksa brothers, who held key political and administrative positions during the last phase of the war. He states the ‘immediate post war strength was around 230,000’ – higher than when the country was at war.[34]  Weiss states it is the 17th largest army in the world and more than 30 times its strength at the start of the civil war in 1983.[35]

It should also be noted that at least 60,000 soldiers (some estimates give double the figure) are still deployed in Tamil majority areas, occupying large swaths of land and engaged in lucrative business activities like tourism.

The increase in the military strength of the Lankan state even in times of peace and the military occupation of the north and the east both illustrate the fact that the Government never veered from its idea that Sri Lanka is a unitary Sinhala State. The LTTE, likewise, no matter how many peace conferences they attended with the representatives of the Lankan State, did not veer from their demand for a separate state: Eelam.  On both sides, compromise and dialogue were subordinated to armed conflict.

The Eastern Command of the LTTE, led by Vinayagamoorthy Muralitharan (Colonel Karuna) and consisting of 6,000 battle hardened cadres, broke away and supported the Lankan armed forces. They were indispensable in routing the LTTE in the east, in pointing out LTTE supporters and cadres in the Tamil-dominated north and east and in exposing LTTE safe houses in the south. The Lankan armed forces were provided with logistical and material support and tactical expertise by Pakistan, India, Israel, China, the USA and other countries.

The LTTE was and is a proscribed (‘terrorist’) organization. As a result they found their funding and logistics being increasingly hindered. In addition, the LTTE directly helped Mahinda Rajapaksa to a narrow victory in his campaign for the Presidency in 2005. Rajapaksa was committed to prosecuting the war, but the LTTE discouraged Tamils from voting as they saw the election as a Sinhala only affair and hence of no interest to the Tamil community. If they had voted, Ranil Wickremesinghe, who supported the peace deal, would have won. The LTTE also hardened the heart of the only power which could effectively intervene in the war – the Indian state – by being implicated in the assassination of Rajiv Gandhi, whose widow was the powerbroker of the party that was in power at the time.

Both sides fought bravely and ruthlessly. A number of times the LTTE broke the Lankan defenses, but the state’s armed forces had sufficient resources to quickly plug the gaps. In the end probably a quarter of million Tamil civilians were trapped in a narrow isthmus (the Cage) between two implacable forces. The wounded and dead of the combatants and especially the civilians mounted in number, until the LTTE was eliminated.[36]

Regardless of how we view the LTTE’s tactics, the Rajapaksa’s brothers and the Lankan armed forces conduct of the war; the military prosecution of the war was to eliminate the LTTE in an increasing narrow terrain with hundreds of thousands of civilians trapped between the two opposing forces. Given the overwhelming superiority of the Lankan armed forces in terms of armed personnel, firepower and their mastery of the sky and sea, civilian casualties would had to be at an unacceptably high level.

A humanitarian operation and proportionate response

A recurring theme of the Forum’s report is that the Lankan forces were engaged in a humanitarian operation which involved the liberation of tens of thousands of the civilian Tamil population from the LTTE. Any actions that were taken were proportionate to the situation, and resulting civilian casualties were an unfortunate by-product of this. Any unlawful killing is attributed to the LTTE. The following is taken from an opinion solicited by GOSL from the Right Honorable Desmond de Silva, Queen’s Counsel:

The clear and immediate duty of the Government forces was to free the hostages by defeating their captors and in order to do so they were entitled to use as much force as was absolutely necessary to completely overwhelm their enemy, subject to the principle of Proportionality. This was done and 296,000 civilian hostages whose future was uncertain in the hands of the LTTE were now saved… When military necessity is understood to require non-combatant deaths, such killing is permissible and legal, if it is proportionate to the expected military advantage of the operation.[37]

Desmond de Silva gives international examples of military action he deems to be humanitarian and proportionate, though attended by unavoidable civilian casualties. They include the nuclear bombing of Hiroshima and Nagasaki by the United States in the closing stages of World War 2, the NATO bombing of Serbia in 1999, the bombing of Gaza by the Israeli Defense Force, the overthrow of the Gadhafi regime in Libya, the invasion of Iraq in 2003 and drone strikes.[38]

All these actions, however, resulted in a very high level of civilian deaths. I will look at two of the more recent military incursions that illustrate the consequences. One is the invasion of Iraq in 2003 and the other the bombing of Gaza in 2008.

The invasion of Iraq by the United States and its allies was carried out without the consent of the United Nations. The invasion initially involved mass bombing of cities like Baghdad. Such bombing could not be ‘surgical,’ as was contended at the time: Baghdad is a densely populated city with  millions of inhabitants, who were being carpet bombed. It was later revealed that the invasion was largely based on faulty intelligence and the bad faith of the instigators. No weapons of mass destruction were found nor any links between the regime and Al Qaeda. The invasion frayed the social fabric of Iraqi society, leaving the country split between three warring groups, Kurds, Arab Sunni and Arab Shia, with religious fundamentalists gaining traction in the resulting chaos.[39] It is likely that the invasion resulted in around 5,000 American soldiers killed and the deaths of around 151,000 Iraqis in the early phase of the conflict. The current number of Iraqi dead would probably exceed 500,000.[40]

The Gaza Strip is a narrow piece of land hemmed in by Egypt, Israel and the Mediterranean and has one of the densest populations on earth. Food and other materials are rationed and employment opportunities are limited. In December 2008 the Israeli Defense force launched an assault on this strip named ‘Operation Cast Lead’. It dropped 600 tons of bombs and reduced large swathes of the strip to rubble. Even localities like the UN compound, deemed safe areas by the Israeli Defense Forces, were bombed, with many casualties. Around 4,000 civilians were killed and 5,000 wounded. Israeli deaths were 13 (three of which were the result of friendly fire).

The Israeli government said that the assault was justified as a response to rocket attacks by Hamas. But Hamas had kept its side of the bargain during the four month ceasefire preceding the bombardment. No rockets had been fired from Gaza, and the Israeli government later acknowledged this.  The rationale for the bombing was the prevention of tunnel-building. Hostilities escalated and Gazan civilians paid the price.[41]

What is clear from most of the examples cited by the legal experts,[42] military specialists[43]and commentators[44] consulted by GOSL is that one side of the conflict had overwhelming firepower and that the use of this in areas with high concentrations of civilians resulted in a high number of civilian deaths.

Burden of Proof

The Forum’s report argues that one of the main flaws in the UN report is the standard of proof used to ascertain war crimes. Weerasekera states that ‘reasonable grounds to believe’ is the lowest threshold of proof. He goes on to argue that if the claims made by the UN Panel are to be the basis of a criminal persecution, then a higher standard of proof is needed. Failing this, the Panel’s conclusion are ‘null and void ab initio’. [45]

Weerasekera is either distorting what the UN Report actually argues or has failed to understand what the UN Panel set out to do and what they meant by ‘credible allegations’. The UN Panel determined an allegation to be credible ‘if there is a reasonable basis to believe that the underlying act or event occurred,’ giving rise to a responsibility under domestic and international law for the state and other actors to respond.  The Panel goes on to state that allegations are only included as credible when based on primary sources deemed relevant and trustworthy.[46]

This sadly is just another failed opportunity of GOSL not to investigate further the findings of the UN Panel and to prosecute individuals on both sides of the conflict who had committed war crimes – instead they hide behind a miasma of outrage, nationalism and legalese.

Impunity or lack of verifiable evidence

The United Nations in defining impunity describes it thus:

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and ensure that they receive reparation for injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of  violations.[47]

The Lankan state for at least sixty years has denied that it has committed human rights violations, claiming that the victims of state violence are lying and unpatriotic. This is reflected in the Forum’s argument that the evidence for the claims has not been provided. The Forum claims that international courts view as ‘problematic’ reports from NGOs and other similar bodies who rely heavily on ‘anonymous hearsay’ and ‘second hand accounts’ and are ‘reluctant’ to use them in criminal proceedings. The Forum’s report claims that there are only two paragraphs where there is mention of what a particular witnesses had said. One of the victim’s statements quoted in the UN Report ‘does not contain a single detail that can be ‘independently verified or corroborated,’ nor are there any medical reports to corroborate his statement. It follows that there were no widespread human rights abuses and that a reasonable inference can be drawn that ‘Sri Lankans have not infrequently lied about being abused by security forces in order to gain asylum and various other benefits especially in Western Countries’.[48] The UN Panel (it is claimed) was remiss in not considering this possibility and questioning the witnesses’ bona fides.[49]

(It may be mentioned as an aside that refugees – including Lankan refugees – who have arrived in boats since 2012 have been kept in prison-like conditions in offshore detention centers. Those who made it as far as Australia are not allowed to work and subsist on charity, and many are traumatised by their experiences in their countries of origin.[50])

The reluctance of witnesses to give detailed public testimony must be seen in the context of the Lankan state’s treatment of dissent. The country has been periodically convulsed with violence, accompanied by extra judical: torture, murder and disappearances. No political personage or senior or middling member of the armed forces has been brought to justice for their actions. This history includes periodic riots against the Tamils, recent riots against the Muslim community, nearly three decades of civil war, the two bloody JVP insurrections of Sinhalese youth in 1971 and 1986-1989, and attacks on journalists, human rights activists and trade union officials. As a result a culture of official impunity has developed. It follows that the UN Panel was right in making secrecy and protection of witnesses paramount. The Panel was correct in arguing that international human rights law requires the State to protect both the physical security and privacy of any individual from any reasonable, foreseeable risk from third parties.[51]

This lack of empathy for the plight of the victims of the civil war permeates the attitude of the Lessons Learnt and Reconciliation Commission (LLRC). Their treatment of witnesses in the Tamil-dominated areas in the north and east was often curt and sometimes dismissive. No attempt was made to protect the witnesses or hide their identity. Rarely did the Commission go into the details of the violations and usually displayed scant interest in pursuing the details. On more than one occasion uniformed military officers were seen seated in the hearing room, photographing witnesses and the audience. The pressure on the witnesses must have been intense and one can applaud their bravery.[52] There have also been incidents where after giving testimony witnesses have not only been intimidated but have been brought in for questioning with its attendant horrors.

The arguments set out in the contra report denying that human rights abuses took place during and after the last phase of the civil war is pure legal cant, misdirecting our attention from the fact that there have been, for a period of at least sixty years, persistent and innumerable credible accounts of human rights abuses by the Lankan State and its security apparatus. This pattern of abuse adds to the credibility of the allegations of state violence made by witnesses, the majority being Tamils, including refugees. The denials by the GOSL and armed forces should be treated with the skepticism they deserve.

Transitional Justice – The Rule of Law

Transitional Justice should occur in a post-conflict situation to heal and rectify past abuses. It is a system characterised by an emphasis on accountability, justice and reconciliation. In the words of the UN Panel, the rationale for transitional justice is not to dwell on the past or to seek retribution.

Instead transitional justice seeks to break cycles of violence, combat impunity and denial, and acknowledge the suffering of victims by ensuring accountability for past crimes. It also seeks to address, more broadly, systematic or structural factors and injustices that predate or exist outside the conflict, but which influenced the nature of violations and experiences of conflict, including discrimination against women. It seeks to rebuild trust between citizens and the state and strengthen the rule of law, thereby contributing to the prevention of conflict in future.[53]

The writers of the Forum’s report claim that the judicial system in Lanka is robust and independent and that its judiciary are not afraid to pass decisions that are inimical to the interests of the parties in power. They insist that hardly any human violations were committed by the guardians of the state. They contend that many in the international community who take the opposite view are dupes of the critics of the government (i.e. the LTTE and its erstwhile supporters) and that transitional justice is yet another unwarranted and unwelcome foreign intervention in Lanka.

The facts on the ground represent a more troubling and complex picture – political interference and attempts to ensure that judges conform to the dictates of political power is not an uncommon phenomenon. A recent infamous example of political interference in the judiciary comes from the tenure of the Rajapaksa clan, when the President Mahinda Rajapaksa sacked the Chief Justice and put a more pliant judicial officer in her place. In fact the President has the right to appoint judges without any vetting procedures. It is not surprising to discover that the new Chief Justice takes a more assertive and favourable approach to the power of the state, overriding Lanka’s international obligations.[54]

The UN Panel is not aware of any cases of military personnel involved in the last phase of the civil war being brought to trial. In addition the Army Act has no set provisions for ‘liability for war crimes or war against humanity, or address command responsibility for military personnel subject to the Act’.[55]

The draconian Prevention of Terrorism Act (PTA) has been in existence for almost 40 years. The Act allows the security forces to hold a person incommunicado for up to 18 months. The detained person is subject to conditions deemed by the Minister of Defence, not the Minister of Justice. Harassment and torture of detainees to obtain confessions is commonplace. People arrested under the Act have to prove their innocence and can be arrested on suspicion of being a terrorist. If such acts are carried out in ‘good faith’ under the PTA, then those responsible can have immunity against a judicial review.[56]

In most cases people detained under the Act have to face a period of up to ten years in penal servitude before their case comes to trial. In many courts confessions obtained under torture are deemed admissible. Those bearing the brunt of this law have been mainly the Tamil community and human rights activists, lawyers and trade unionists. Dissent is seen by too many of the country’s political, administrative and security elite as as unpatriotic. It is not so long  ago that  civil society actors were abducted by the guardians of the state in ‘white vans,’ but there has been no prosecution of the offenders.

In the north and east of the country, a huge armed presence is accompanied by the abduction of young Tamil men and women, followed by torture and sexual molestation. The perpetrators act with impunity. Over time, with the emergency regulations overriding due process, the will to prosecute cases of human rights violations has failed.

The criminal justice system in Lanka is poorly funded by the government and barely functions. So it is not surprising when Rosy Senanayake reported in parliament that only 600 of those suspected of sexual violence had been remanded out of 30,000 cases – a 2% strike rate.[57]

In summary, it takes around three years for a criminal case to be brought to the courts, and between seven and ten years for a terrorism case. Beatings and other means of torture are rife not only in political cases but also in the criminal justice system.

Transitional justice with its key precepts of justice, accountability, transparency and reconciliation is what the country solely needs, not the legal cant in the contra report, which bears no resemblance on how ordinary Lankans encounter the judicial system.

Enforced Disappearances or just multiple complaints on disappearances

The Forum’s report claims that those seeking refuge in the West are doing so for economic reasons. The report cites two pieces of evidence, the first by a former Canadian High Commissioner to Lanka and second from a respected Canadian journalist, Barry O’Regan. The contra report alleges that 8,600 Lankans with pending refugee claims applied for travel documents to visit Sri Lanka, and quotes a newspaper report from 2010 to the effect that 70% of Tamils who claimed refugee status continue to take holidays in Lanka.[58] The report quotes copiously from a dissenting judgement in a ‘landmark case’ in Canada [Kandasamy vs Canada (2015)] and a Swiss Immigration Appeals Tribunal hearing. These, so the report states, attest to the fact that it is safe for people to return, which (according to the contra report) should have led the UN Panel to be doubly cautious about basing its allegations ‘on the testimony that the Panel knew that members of the public were never going to examine’.[59]

No evidence is provided on how the above figures were obtained regarding the refugees who have allegedly returned for holidays. On the court case and the tribunal hearing, I cannot comment on except to state that the governments in the West like Switzerland and Australia are under pressure from its more nationalist and xenophobic elements not to take in refugees because their habits, colour, culture or religion are deemed incompatible with a white predominantly Judeo-Christian liberal democracy. In fact countries like Australia are leading the way on how harsh they can be to deter those seeking asylum. Lastly there are sections of the media who are hostile to any attempt by refugees to seek asylum regardless of the veracity of their individual cases.

The Forum’s report observes that the large number of enforced disappearances are in fact complaints of disappearance – in fact ‘a significant number of the disappeared were found to be living abroad or in Sri Lanka under different names’ and a fair number are ‘repeat complaints’.

In support of these assertions they cite extracts from the Paranagama Commission which set out to investigate disappearances in the north and east during the last phase of the civil war. The Commission noted that ‘the number 12,536 refers to complaints of disappearances and not to actual or verified disappearances’. How could there be any official verifiable disappearances as there was no official body to deal with this matter at the time, the contra report was written. The Office of Missing Persons (OMP) has only been just set after much proscrastination by the current government. It is underfunded, has a lack of skilled personnel and lacks judicial bite to do its task properly.

One of the heads of these judicial Commissions, a ‘highly respected judge,’ found, after evaluating the evidence, that the majority of the disappearances were for personal reasons such as love affairs, family squabbles and criminal activity and thus cannot be attributed to the security forces. One can only conclude that the north and the east were and are a hotbed of crime, sexual intrigue and filial melodrama. The judge’s conclusion seems curiously detached from a history of war, political and cultural oppression and economic neglect that the north and the east endured for decades.

The Forum’s report goes on to chide the UN Panel for repeating the conclusions of other agencies and groups. It asserts the UN Panel did not conduct a ‘comprehensive investigation’ into the data and reports it relied on. Hence its inferences are unreliable.

The report, like the judge’s opinion quoted above, seems detached from reality. We now have a mass of reports, books and recorded testimony from thousands of witnesses and many indigenous and international human rights activists who have, for around 60 years, been reporting on human rights abuses by the government in power. A few instances will illustrate this.

Neville Jayaweera, in a recent memoir of his time as a Government Agent in Vavuniya, a mostly Tamil area, reported the torture and murder of young Sinhala men by the military in his district during the 1971 insurrection. He collated the report and sent it to his political masters and the military. For his efforts he was hounded out of the service. How many other Sinhalese men and boys in villages across the Island in 1971 endured torture and murder, with nothing done to bring the torturers to justice?[60]

1977 saw the election of the United National Party (UNP). The President of Lanka sent the military in to deal with a small group of Tamil insurrectionists involved in assassinations and bank robberies. The army promiscuously targeted the whole Tamil community. They arrested, shot, and tortured anybody who was critical of the government, including student activists, teachers, academics artists, priests and social workers (and bear in mind that the majority of the population had elected a party that supported separation). It came as no surprise that the violence escalated, and it was during this period that the repository of Tamil culture, the Jaffna Library, was burnt by the police. Prisoners were subjected to cigarette burnings; chilli and red ants were placed on ‘sensitive parts’ of their bodies; they were hung upside down by their feet; pins were driven into their toes and fingers; and (in the traditional way) they were beaten. The torture techniques of torture are similar to those currently described by Tamil refugees.[61]

These events were reported in detail by University Teachers for Human Rights (Jaffna), Amnesty International, the Council for Communal Harmony through Media, the International Commission of Jurists, the Movement for Inter-Racial Justice and Equality and others, all to no avail.[62]

1989 saw the second JVP insurrection. A peace deal was brokered by the Indian government, stipulating that Indian peace-keeping forces would be placed in the North. The JVP saw this as an opportunity to whip up anti-Tamil and anti-Indian feelings and seize political power. They initiated a number of hartals (strikes) in the south; they were also responsible for the assassination of countless individuals of other political tendencies, trade unionists, student leaders, security personnel and human rights activists.

The army was brought in to quell the insurrection and restore order. They killed human rights activists, left-wing figures, ordinary citizens and JVP politburo members, cadres and sympathisers, in large numbers and with impunity. Suspects were usually tortured in the most brutal manner and then killed. The authorities recorded these extra-judicial executions as KIA (killed in action).

Bodies were dumped in rivers or buried in the jungle; sometimes the charred remains of a body burnt in a tyre were found. Some of the bodies were left hacked, often decapitated or with their faces mutilated. Professor Rohan Gunaratna, in A Lost Revolution, alleges that this was done to prevent identification. This may be true, but it also reflects pathological sadism and shows how far the state and the guardians of law and order had descended into barbarity. The executions seem eerily similar to the credible allegations made against the Lankan army in the last phrase of the civil war. Around 40,000 to 60,000 were killed.[63]  Nothing was done to curb the excesses of the security forces. If this sort of treatment was given to ‘sons of the soil’ (Sinhalese youth), then what would be in store for Tamils?

Two of the military officers involved were Sarath Fonseka and Gotabaya Rajapaksa.[64] Several questions spring to mind. Did they partake in the torture and the murder? Did they organise the tortures or participate in the disposal of the bodies? If so, why were their actions rewarded with high posts in the government bureaucracy and the army? Most pertinently, did they bring these tactics to bear in the last stage of the civil war? The Forum’s report does not ask these questions and therefore cannot answer them.

Under the regime of the Rajapaksa clan, white van abductions were ubiquitous. One of the bastions of a healthy democracy is a press which has the ability to tell uncomfortable truths to those in power. Lasantha Wickrematunge, the well-known editor of the Sunday Leader and a critic of the Rajapaksa regime, was murdered in 2009. He is one of many journalists who have been imprisoned, made to disappear or killed for their criticisms of the government’s handling of the civil war. As a result of these abductions and deaths Reporters Sans Frontier in 2009 rated Sri Lanka just above the countries like the Democratic Republic of Congo (162 out of 175) in terms of the safety of the press.[65] Again hardly anyone was brought to book: denial and obfuscation became the norm. None of this can be found in the contra report.

Sexual and gender-based violence

A persistent refrain of the Forum’s report is that the witness statements regarding sexual assault and torture are not open to scrutiny by the public. There is a failure to critically examine the documentary evidence provided by the Lankan State. Most irritating to the writer of the contra report is the UN Panel’s dismissal of GOSL’s written rebuttals.

The contra report is particularly scathing with regard to the assertion of Human Rights Watch (HRW) that there is a ‘pervasive pattern of sexual violence by security forces against persons in state custody’.[66]  75 cases are cited by HRW. The report goes on to assert that there is no indication that the UN engaged with the data, which was ‘annexed from the HRW report’. In response to allegations of mistreatment the GOSL requested factual evidence of sexual violence and asked that the UN Panel to refrain from making general comments on this issue without referring to specific allegations. No response was forthcoming from the UN Panel.

One can only infer that the members of the UN Panel were being diplomatic in refusing to respond, if the following quotation in the rebuttal is anything to go by:

[GoSL] highlighted a survey  covering the period 2007-2012 had revealed that of the repeated incidents of sexual violence in the North a large majority were carried out by close relatives/neighbours and only a very few could be attributed to the Security Forces.

GOSL goes on to assert that in the few cases attributed to the security forces of sexual violence ‘disciplinary and legal action has been taken’. Lastly, in response to continuing allegations, GOSL made the ambiguous comment that ‘that such violence was a relic of the conflict’.[67]

The Forum’s report does not provide us with any information about the government survey – who conducted it, who they spoke to, the sample size, etc.. This makes it difficult to comment on its veracity.

It is clear (though the Forum refuses to admit this) that the fabric of Tamil society has been terribly affected by three decades of war and its consequences. Daya Somasundaram, a professor of psychiatry, gives us a glimpse of this in his account of the collective trauma suffered by people from the Vanni region. He reveals a society under strain in which violence, drinking and a breakdown of families are persistent factors. There is nothing in his extensive study to show that this is the natural condition of that society. [68]

It is well documented that Tamil society in Sri Lanka is culturally conservative, with particular importance being attached to language, caste status, religious observance and ritual.[69] Many of the conservative patriarchal members of the community do not want to discuss the issue of rape and sexual molestation of women as it brings shame on the family. Many of the women likewise are intimidated and ashamed of reporting their abusers.  There has however never been a history of mass rape, rampant adultery and sexual promiscuity; not even from those who live in the ‘decadent’ West. That is not to deny that there has been instances of domestic violence and sexual assault within the community, but there is no epidemic of it.

Villification by victors of their defeated enemy is not new; history is replete with examples of these scurrilous insinuations. These insinuations should not blind us to the fact that the position of Tamil women in the north and east is acute. I have dealt elsewhere with the reasons why human rights reports do not provide documentary evidence of abuses, such as the names of witnesses. Their identification can lead to harassment, abduction and torture. But there is credible evidence that sexual violence was systematically used against the Tamil community. Among the victims were LTTE members who surrendered and detainees and civilians who were raped. Rape was a tool used to intimidate the Tamil population, especially in the immediate aftermath of the war.  HRW states that sexualised violence and torture were used as a means to gather information about the LTTE, to force others to confess and as a method of ethnic cleansing.[70]

As a result of the war there are now approximately 90,000 households headed by women,[71]of whom many are widows. They face many difficulties in obtaining permanent housing and getting jobs to support them and their families. Many single women have been forced to resort to prostitution, and suffer from a lack of physical security. They are also the object of suspicion and discrimination on the part of the more conservative members of their community.

Human Rights Watch describes the way government security forces continue their regime of sexual violence against Tamil women in the north and the east: young women are abducted, raped and returned to their communities blindfolded, too terrified to report their rape to the authorities. Widows are regularly harassed or raped. Many of the victims of rape, harassment and sexual violence are then forced to endure it all again. Even if women want to complain, they face indifference and threats of more sexual violence by the police.  There is also a communication problem, as the police speak only Sinhalese and the women only Tamil. [72]This is daily life for women in the north and the east of the Island.

This violent sexual behavior by the armed forces is not just limited to the shores of Lanka. 134 Sri Lankan peacekeepers were unceremoniously sent home because of allegations of systematic child sexual abuse in Haiti.[73]

Indiscriminate shelling of civilians in No Fire Zone (NFZ) and Hospitals

The Forum’s report strenuously denies any suggestion that the Lankan armed forces shelled civilians indiscriminately. It quotes extensively from Sir Desmond Silva QC, one of the ‘experts’ hired by the Paranagama Commission. He asserts that any civilian deaths attributed to the armed forces of Lanka ‘were regrettable but permissible collateral damage’. It was the LTTE who had held hostage such a large number of civilians and were killing those trying to escape. The armed forces of Lanka liberated around 290,000 hostages from the clutches of the LTTE and its defeat was the correct military tactic and was humanitarian in its nature.[74] The low level of civilian deaths, which the authorities estimate to be around 3,000, shows how restrained the Lankan armed forces were. It is claimed that the testimony of outside observers, such as journalists and doctors, attests to this fact.

Military expert Sir John Holmes, who was employed to look into this matter, argues that it is wrong to claim that that NFZ and hospitals were deliberately shelled. The rebuttal goes on to assert that the UN Panel fails to distinguish between firing close to the hospital from firing from the hospital. For the LTTE was either firing from designated civilian areas like the hospitals or in the near vicinity and the armed forces were responding to their fire. Aerial photographs, he says, show this to be case.[75]

Let me first deal with the thorny question of outside observers. GOSL has always a fractious relationship with NGOs, reporters, the UN and local and international human rights organisations. GOSL feels that they are dupes of Eelam and were overly critical of the activities of the government and its security forces. So it comes as no surprise that there were very few foreign observers to the last phase of the civil war. Many of the international UN observers to the war withdrew before the last stage of war. On leaving, their convoy was surrounded by hundreds of terrified civilians who begged them to remain. The latter hoped that the presence of the UN would help rein in the barrage of artillery shells, bring their plight to attention of the international community and persuade the army to show restraint. The departure of the UN meant that there were hardly any international observers to report to the wider world what was happening.  The Forum’s report is silent on this and gives us a misleading impression of the presence of foreign observers: the two reporters they cite were embedded in the army. They were not embedded among the Tamil civilians who bore the brunt of the carnage. What the contra  report does not mention is that the Lankan government has a long history of intimidating journalists, expelling them from the country, abducting , torturing and killing them.  During the last phase of the civil war, Lanka was one of the most dangerous places on the globe for a journalist. For their own safety, many of them left the country or toed the nationalist line of the government.

The Forum’s report includes an account of the doctors of the hospital in the NFZ denying what they had previously said about the armed forces deliberately shelling their hospital. One of the reporters at their press conference, Ravi Nessman from Associated Press (AP), noted:

They looked scared, nervous, and rehearsed. They were taking directions from two guys in white shirts who sat off stage.

Allegations later emerged that the doctors were coached by journalists for a full month. For his efforts Nessman was expelled from the country.[76]

Even Muralidhar Reddy, one of the reporters whom the Forum cites to buttress their case, is not so fulsome in his praise of the conduct of the Lankan military. He acknowledges that his ‘glimpses from the battle zone was under the jurisdiction and control of the military.’ Yes he is more critical of the LTTE tactics than the tactics of Lankan armed forces; nevertheless, Reddy recounts scenes of utter devastation for the Tamil civilian population in the Vanni and the fact that the military did shell civilians. Reddy goes on to report the credible claims of HRW that the makeshift hospitals were shelled by government forces. He concludes his account by chiding the majority community and reminding them: ‘that the LTTE is the failure of successive regimes in Colombo to respond to the genuine grievances of the minorities in general and the Tamils in particular.’  In other words, his report is more nuanced and critical than what the contra report depicts it to be.[77]

The UN report describes the intense bombing of the NFZ, despite the fact that government itself had designated such areas as safe zones. Hospitals were also targeted. The UN report meticulously records incident after incident. One of the incidents was witnessed by UN personnel who were shepherding a medical and food convoy.

On 23 January 2009 UN staff relocated to the NFZ as a large offensive by the Lankan army seemed imminent. They set up a hub and related the coordinates to the relevant commander of the Lankan forces. A large number of civilians located to the NFZ around the UN hub. Occasional shells were fired from the Lankan side. During the night this shelling intensified, hitting the hub and causing many civilian deaths. This is what greeted the UN staff when they emerged from their hub:

Mangled bodies and body parts were strewn all around them, including those of many women and children. Remains of babies had been blasted upwards into the trees…[78]

The allegation that the LTTE were in the hub was not true. The LTTE did fire at the Lankan lines but they were 500 metres away. No explanation was given by GOSL and none is forthcoming in the Forum’s report. The hospital in the NFZ, which was clearly marked, was also hit by several shells.

The road along the NFZ was also a charnel house, where even the vegetation was shredded. Dead or severely injured civilians lay along the roadsides, amidst shattered shelters, strewn belongings and dead animals. Hundreds of damaged vehicles also lay along the road; ambulances parked by Vallipunam Hospital were seriously damaged.[79]

This is one instance in a catalogue of instances of indiscriminate shelling as listed in the UN report.[80]

Also damning is the US Department of State’s 2009 report to the members of the US Congress on the conflict.[81] The report does not question the right of GOSL to defend itself from armed attack by ‘non-state actors such as terrorist groups’.[82]  The report, whilst acknowledging the paucity of information and the lack of verification of how many civilians were killed and by which side, nevertheless diplomatically questions GOSL denials that it targeted civilians in the NFZ and hospitals. The sting comes in the last section of its report where it collates instances where the LTTE forcibly recruited children in the armed conflict. It makes sobering reading for those who are silent on the crimes of the LTTE.[83] The report then goes on to list the allegations that all parties to the conflict were involved in what they term ‘harms to Civilian and Civilian Objects’ in the period of January to May 2009. The report provides undeniable evidence that the LTTE shot at civilians who were trying to flee. What also emerges clearly is a disturbing and in many instances a deliberate pattern of shelling of civilians in designated NFZ and hospitals by the armed forces of Lanka. Aerial and satellite photos gives graphic corroboration of the havoc caused.[84]

Regardless of the alleged cultural and political prejudices of the prosecutors of the last phase of the civil war, what clearly emerges is that the armed forces of Lanka were implacable in the aim of annihilating their nemesis the LTTE, regardless of the lives of the hundreds of thousands of Tamil civilians caught in the maelstrom. Given this military imperative, there was never any chance that their actions were going to be restrained, or humanitarian or proportional.

Torture

The Forum’s report asserts that the UN Report’s finding on torture is deeply flawed, because the principal evidence used is witness statements that the public cannot scrutinise. The report goes on to say that if a state which supposedly has such a long tradition of torture, then why is there is no corroborating evidence? This would include testimony from the security forces, photos and videos of torture, and documentary evidence such as memos, emails and manuals.[85]

Before I can discuss whether the armed forces of Lanka did or did not engage in torture during the last phase of the civil war and after, it is necessary to point out, yet again, that such behaviour has a long history in the operations of the state authorities.

Torture, as already described, was commonly used by the security forces during the second JVP insurrection (1986-1989), the evidence being tens of thousands of mutilated dead bodies, mostly of young Sinhalese, found on a regular basis in towns and villages across the south. The abduction in white vans and torture in secret sites was amply documented by the ‘counter-terrorist expert’ Professor Rohan Gunaratna, who was one the consultants for the Forum’s report, in his book on the insurrection – a book whose contents have never been refuted.[86]

For around 60 years there have been countless human rights abuses that have been amply documented by international and local human rights organisations and actors and by reports commissioned by the government. Yet nothing has been done to reform the institutions of the state.

The International Truth and Justice Project (ITJP) has investigated in depth the claims of 20 people who were tortured and detained by the armed forces in the north and east of the country since the change of government in 2015. It makes disturbing reading. The ITJP has verified their individual stories in a variety of ways, including court-verified medical reports. Some of these asylum seekers were granted refugee status.

The abductors operate in the open, never hiding their faces, thus emphasising their confidence that they will never be held accountable. They work in packs: the first group abducts, a second interrogates with the aid of torture and sometimes rape; the third releases the detainees. The abductors comprise police from CID and military intelligence, including senior officers. Torture is is conducted in well-equipped rooms with all the tools needed: cables, wooden sticks, batons, plastic pipes filled with sand, water barrels and other instruments, including in some cases a pulley system to hang the victims upside down. These are conducted in various locations which include army camps, TID headquarters in Colombo and secret camps around the country.

The detained are tortured in a variety of ways: whipped, burnt with cigarettes, branded with hot metal rods, water torture, suffocated in a plastic bag filled with petrol or chillies, hung upside down, beaten on the soles of their feet, and with electricity.[87]

In 2018 ITJP released another report listing 56 individuals in the Special Task Force (STF), a paramilitary force who engaged in extra-judicial activity and hence should not be sent on overseas as UN peacemakers. It names names, torture sites and incidents. It has verified the information through a variety of sources, including ex STF officers. In doing so it shows that torture was routinely used by the STF, in collaboration with its Tamil allies, during the last phase of the civil war and after.[88]

Unlawful Killings

The Forum’s report dwells on a number of notorious incidents of alleged unlawful execution by the armed forces during the last phase of the civil war.

Such incidents include the execution of senior LTTE personnel like Nadesan, Pulidevan and others: this is known as the ‘white flag incident’. The report attributes their deaths to a miscommunication between the parties and the lack of visibility (it took place in the obscurity of predawn). It dismisses the possibility that the killings were (as the UN Panel states) murder by the armed forces.[89]

Images show that they surrendered as agreed to in communications with the upper echelons of the army and the political elite. In the following images we see them dead. The authenticity of these images was verified by experts.[90]  The Forum’s report does not deal with this, and there is no evidence that the writers of the report spoke to the army unit commander or any of the soldiers present.

According to the report, the murder of ‘Colonel Ramesh,’ a senior LTTE tactician, was the work of LTTE cadres who had become informers.[91] Photographic evidence shows him being vigorously interrogated by people unknown. He is tied up and is barely disguising his fear; then  we see him dead with a bullet wound and his body burnt. There is no evidence that the writers of the report talked to the interrogating officers or made any serious attempt to discover the truth.

The report also argues that the Lankan armed forces cannot be held responsible for the death of Balachandran Prabhakaran, twelve year old son of Velupillai Prabhakaran, leader of the LTTE. The boy was captured alive. Weerasekera argues that it is not clear who killed him because the bunker might have been stormed by LTTE cadres, resulting in his death by crossfire, or he might have been killed by LTTE soldiers dressed in Lankan army uniforms.[92]

Why would LTTE cadres execute the son of their ‘revered’ and ‘supreme’ leader? The more likely explanation is that Balachandran was executed by the Lankan army.  Photographs show him sitting shirtless in a Lankan army camp. The next photographs, taken two hours later, show him dead, with  five bullet holes fired at close range (around a metre).

The report also addresses the ‘purported’ rape and killing of Shobana Dharmaraja, better known as Isaipriya, a well-known LTTE media personality. It is admitted that she could have been killed by individuals in the army; but in no way can this be construed as ‘a general pattern or style of the conduct of the army as a whole’ and ‘no responsibility can possibly be attributed to the GOSL (Government of Sri Lanka) in response to such incident.[93]

Photographs show Isaipriya captured alive and uninjured; she is next seen in a sea of corpses. Isaipriya had been raped and tortured, the fate of many LTTE women soldiers and Tamil civilians.[94]

There are many other incidents, including the unexplained deaths of  Velupillai Prabakharan’s’s eldest son Charles Anthony, LTTE cadres and the circumstances of Prabakharan’s own death. Gruesome photographs of Prabakharan were circulated (the top of his head was missing), but there was no forensic investigation. His body was unceremoniously burnt and buried, the fate also of many others. None of these deaths were investigated.[95] This is not new, the extra judicial murders of Rohana Wijeweera and other JVP leaders during the second JVP insurrection that occurred 28 years ago are yet to be investigated. [96]  The defence of GOSL and its armed forces, as offered by the Forum, does not bear close scrutiny. They were not engaged in a humanitarian action and their aim was not to ‘rescue’ the trapped civilians but to annihilate the LTTE, whatever the cost.

The assumption of the Global Sri Lankan Forum and its sympathisers that Lanka is essentially a Sinhala country has been destructive to the social fabric and should be firmly contested. It chokes the seeds of goodwill and dialogue and does not allow a richer and more nuanced Lanka to emerge. In the spirit of that forgotten Lanka, I will in the conclusion attempt a larger narrative of the last phase of the civil war and the implications of that conflict.

“Human groupings have one main purpose: to assert everyone’s right to be different, to be special, to think, feel and live in his or her own way. People join together in order to win or defend this right. But this is where a terrible, fatal error is born; the belief that these groupings in the name of a race, a God, a party or state are the very purpose of life and not simply a means to an end. No!”

– Vasily Grossman[98]

As the redoubts and the central towns of LTTE territory at Elephant Pass, Kilinochchi and Mullaitivu fell against the sustained assault of the Lankan state, the LTTE leadership knew that defeat loomed. Their forces were depleted and the remaining cadres were exhausted. Yet the tactics they used,  which suited their enemy, did not change. We may never know the reasons for this disastrous decision as most of the leadership was subsequently wiped out, but the LTTE and its supporters cannot shirk their responsibility for the ensuing carnage.

The Lankan forces, once they had their enemy boxed in (i.e. caged), could have sent their small mobile units to destroy the LTTE or starved them out, as they had no means of escape. The Lankan forces did not choose either option. Instead they used their artillery, in an area that was at most 8 kilometres at the start of the siege and around one kilometre at the end. The area contained probably a quarter of a million Tamil civilians, and it is they who bore the brunt. The initial UN figure of 40,000 dead is now seen as conservative, with figures of 80,000 to 100,000 being more likely.

Those of the wounded who were not left to die, because it was too dangerous to rescue them, faced treatment that was at best rudimentary. Hardly any drugs and anesthetics were available, and in the end hospital staff asked the UN and the Red Cross not to give out their coordinates for fear it would attract more shellfire.

The survivors had their own Calvary to endure; they were hungry, thirsty, sleep deprived, terrified and grieving, with no respite in store, many were so exhausted that there will to live deserted them; how many died because of hunger and lack of water, we can only guess at.

The LTTE, being desperate and with many of its cadres killed, replenished them with inexperienced troops, many of them forcibly recruited and underage. Many of them ended being cannon fodder, when thrown against battle hardened Lankan troops. In time, many of the Tamil civilians realised that there was going to be no counter-attack to turn back the Lankan troops and international intervention also seemed unlikely.  By then most wanted to escape, the charnel house they were caged in. Some who tried to do so were shot by the LTTE, others were dragooned into the LTTE to fight in an increasingly doomed and desperate struggle.

Many who wanted to escape were aware that going into the clutches of the armed forces of Lanka might be worse. Many had had bad experiences or had loved ones who had been tortured or made to disappear. Even if they managed to escape, the area was littered with landmines. If they overcame these obstacles, they were at risk of being shot by the Lankan forces, and if taken they would face a fraught future in an internment camp. No wonder many of the civilians were paralysed with fear and indecision and remained.

When the guns fell silent, hundreds of thousands of Tamil civilians became IDPs and were made to endure more deprivations. Rations and appropriate accommodation were inadequate, many people were arrested and sent to secret interrogation centers, where torture was common.

At present at least 60,000 soldiers and 15,000 police, who do not speak Tamil, are still stationed in Tamil-dominated areas.  On release many of those who had been detained found that their ancestral lands had been taken by the armed forces, with no form of redress. Others on return found their lands riddled with landmines and with no infrastructure of houses, water tanks, schools, etc.. This had been destroyed by the war and not rebuilt. Economic opportunities are stymied, with many of them the preserve of the armed forces.

At the time of writing this paper, surveillance and abductions are still taking place. Even with a huge military presence, women are sexually harassed, assaulted, raped and abducted. On the issue of reconciliation, justice and rights there has been little or no progress. None of this is discussed in the Forum’s report. If Tamils are mentioned, it is to vilify them into unpalatable caricatures: sexual predators, terrorists, etc. This vilification leeches their humanity and suffering out of the nation’s historical, cultural and political narrative. The only narrative entertained by the contra report is a Sinhala Buddhist one with the Tamils serving as the perennial ‘other’.

Even a writer as sympathetic as Gordon Weiss, who looks in detail at the history, culture and the politics of Lanka to explain how the country drifted into civil war, maintains that he accepts the sovereign right of the Lankan state to defend itself. Yet his narrative shows that the Lankan elite were too morally compromised and unfit to carry out this role.

The LTTE was a ruthless organization and, together with GOSL and its armed forces, morally and materially to blame for the carnage that ensued; but what Weiss does not emphasise and what the Global Sri Lankan Forum and other Sinhala nationalists air brush out of their narrative is the unarguable right of the Tamil people to self-determination. In the many reports, books and articles on the war this issue is barely mentioned, yet it should be central. A nation state, no matter how well intentioned (and the Lankan state was manifestly not), cannot arbitrarily rule a minority population in a way that takes no account of their history, language and culture, and actively discriminates against them. When the Tamils did express their views through the ballot box and by peaceful protest, they were brutally suppressed and their political views were ignored. It is an incontrovertible fact that the Lankan State armed forces were Sinhalese who were fighting on Tamil ancestral land. Those hundreds of thousands of civilians were on their own lands; the Sinhalese troops were not, did not speak Tamil and had little understanding of Tamil rights. Nobody asked the Tamil people in the north if they wanted to be ‘liberated’. Is it not time they were asked?

The international community for a variety of reasons, strategic, commercial and political, has been too lax and gullible in their treatment of the Lankan state and its stubborn refusal to reform its political culture and institutions, especially its judiciary and armed forces so as to make them more inclusive, transparent and accountable. The Lankan state and its apologists, for all their claims of of being: victimised, harassed and isolated, have never been forced or even cajoled to change their behavior.

How many times are we going to accept their insincere assurances (extending over decades) that the rule of law and due process are embedded in the state? They have initiated countless Commissions  and then ignored their findings,[99] ruled by emergency decree for decades; reduced the judiciary to puppets of the party in power. Torture is commonplace in criminal cases and de rigeur in political ones; and constitutions and a plethora of amendments are enacted to preserve the rights of the Sinhalese – the majority community.

The state and its shadowy actors are involved in the deaths (often gruesome deaths) and disappearance of tens of thousands of civilians. This is known, yet no change is evident in the behaviour of the armed forces or the judiciary. When a minor functionary of the security services is brought before courts, vital information goes missing and witnesses are threatened or made to disappear, resulting in cases being withdrawn. There are periodic riots against Tamils, anti-Tamil legislation is passed and journalists, lawyers and human rights activists are harassed or killed. No one is prosecuted and the depressing cycle continues. The evidence is sadly unconvertable – the country’s democratic culture, the security forces and the judiciary have withered on the vine of: bigotry, impunity and greed. The victims: minorities, civil society actors and the poor pay the price and that is unacceptable.

The Global Sri Lankan Forum and organisations of its ilk, with their mono-cultural prejudices, obscure the fact that there are many Lankans of goodwill from every communitiy. Let us remember the many citizens in the south who went to the aid of their stricken fellow citizens in the north and the east during the 2004 boxing day tsunami; the many Sinhalese soldiers who risked life and limb to rescue terrified Tamil civilians in the cage and who allowed many IDPs to escape their confinement; the many Lankans who over the decades have courageously agitated for a more inclusive society. I am in awe of these people. They deserve encouragement and support, and should not be demonised.

That is why describing what happened during the last phase of the civil war as a ‘stain’ is patently inadequate:  it is a cancer that the people of Lanka have been forced to endure. If the cancer of state violence is not cut from the body of the nation, it may once again give rise to violent resistance, whether in the form of a new version of the LTTE, or a new version of the JVP. And that is for Lankans of good will a spectre too horrible to contemplate.

Such is life.

Editors Note: Also read ‘War Crimes Investigations in Sri Lanka: An Unpopular View’ and Truth and accountability: Corruption, human rights abuses and war crimes

[1] Statement by the High Commissioner for Human Rights Zeid Al Hussein, at the end of his mission to Sri Lanka, 9 February 2016. Quoted in ‘In Defence of the Armed Forces of Sri Lanka’. Retrieved: http://globalsrilankanforum.org/.

[2] Weeraskera, Darshan (2017). ‘A Factual Appraisal of the OISL Report: A Rebuttal to the Allegations Against the Armed Forces’ in Defence of the Armed Forces of Sri Lanka. Retrieved: http://globalsrilankanforum.org/.

 [3] There were four periods of the civil war, punctuated by periods of uneasy peace. Eelam War I, 1983-1987; Eelam War II, 1990-95; Eelam War III, 1999-2002; and Eelam War IV, 2006-2009.

[4] Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, in particular p. iii.

 [5] See ‘In Defence of the Armed Forces of Sri Lanka,’ Volumes 1 and 2.  Retrieved: http://globalsrilankanforum.org/.

[6]  Hoole, Dr Rajan (2015). Palmyra Fallen: From Rajani to War’s End. University Teachers for Human Rights (Jaffna).

[7] Weeraskera (2017). ‘A Factual Appraisal of the OISL Report: A Rebuttal to the Allegations Against the Armed Forces’, in  In Defence of the Armed Forces of Sri Lanka Vol1, p. 3.

[8] Weeraskera (2017). ‘A Factual Appraisal of the OISL Report: A Rebuttal to the Allegations Against the Armed Forces’, p. 7.

[9] Weeraskera (2017), p. 8.

[10] These were the provisional figures complied between August 2008 – 13 May 2009. A more detailed analysis of this report will be given later in this paper. – see the section entitled: The number of casualties in the last phase of the civil war.

 [11] In Defence of the Armed Forces of Sri Lanka,’ Volumes 1 and 2.

 [12] Second National Victory Day Anniversary Celebrations Honour Invaluable Ranaviru Sacrifices. Retrieved: https://www.army.lk/news/second-national-victory-day-anniversary-celebrations-honour-invaluable-rainaviru-sacrifices

[13] Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, p. iv.

[14] ‘In Defence of the Armed Forces of Sri Lanka,’ p. iv.

[15] For the background to the unfolding tragedy, see Weiss, Gordon (2011) The Cage: The Fight for Sri Lanka and the Last Days of the Tamil Tigers, Vintage.

[16] ‘In Defence of the Armed Forces of Sri Lanka,’ p. 14-15.

[17] ‘Lord Naseby meets Sri Lankan Diaspora at House of Lords’ in Lanka Business Online. Author LBO. Posted on May 21, 2018.  Retrieved: http://www.lankabusinessonline.com/lord-naseby-meets-sri-lankan-diaspora-at-house-of-lords/

[18] Report of the Secretary General’s Panel of Experts, p. 40.

[19] Report of the Secretary General’s Panel of Experts p. 41

[20] Weiss, Gordon (2011) The Cage: The Fight for Sri Lanka and the Last Days of the Tamil Tigers, pp.140-141

[21] Report of the Secretary General’s Panel of Experts p. 41

[22] ‘Claims About “The Gash Dispatches” Exposed,’ Colombo Telegraph, June 14 2018.

[23] Dr Rajan Hoole, Palmyra Fallen , From Rajani to War’s End. pp. 209-278.

[24] Weiss, Gordon (2011). The Cage: The Fight for Sri Lanka and the Last Days of the Tamil Tigers. p. 227

[25] The Australian Department of Foreign Trade: Country Information Report, Sri Lanka, 24 January 2017, p.23

[26] ‘Victory’s price: 6,200 Sri Lankan troops,’ 22 May 2009. Sydney Morning Herald 22 May 2009. Retrieved: www.smh.com.au/world/victorys-price-6,200-sri-lankan-troops-20090522.

[27] Halliday, F. (1975). The Ceylonese Insurrection. In Blackburn, R. (ed.). Explosion in a Subcontinent, Penguin Books, Middlesex, UK, pp. 151-220

[28] Hoole, R. (2001). The Arrogance of Power: Myths, Decadence and Murder. University Teachers for Human Rights (Jaffna), Sri Lanka, pp. 144-180

[29]  Gunaratna , Professor Rohan (1990).  Sri Lanka: A Lost Revolution? – The Inside Story of the JVP. Institute of Fundamental Studies

[30] More a paean to the brothers, who were ‘steadfast in their resolution to prosecute the war’. The LTTE side was absent except for one key figure, K. P. (Kumaran Pathmanathan). To be fair, it would be almost impossible for him to talk to any senior LTTE tacticians as most of them did not survive the last phase of the war. Moorcraft, Paul (2012), Total Destruction of the Tamil Tigers: The Rare Victory of Sri Lanka’s Long War. p.159

[31] Moorcraft, Paul (2012), his text is peppered with these qualifications: see for example p. 159.

[32] Major General John Holmes in ‘In Defence of Sri Lanka’, Volume 2.

[33]  Uppsala Conflict Data Program, Sri Lanka Conflict Summary. Retrieved: http://www.ucdp.uu.se/gpdatabase/gpcountry.php id=144&regionSelect=6-Central_and_Southern_Asia

[34] Moorcraft (2012), p. 49.

[35] Weiss(2011), p. 234.

[36] Moorcraft, Paul (2012), in particular pp. 109-149.

[37] De Silva, Sir Desmond de Silva QC (2014), ‘Opinion for the Government of Sri Lanka,’ 23rdFebruary 2014 in In Defence of the Armed Forces of Sri Lanka, Volume 2, p. 8.

[38] De Silva, Sir Desmond de Silva QC (2014), ‘Opinion for the Government of Sri Lanka,’ in particular pp. 27-49.

[39] Chilcot Inquiry, commissioned by the British government in 2009 and released in 2016. Retrieved:  
www.iraqinquiry.org.uk
.

[40] See, for example, ‘The war in Iraq 10 years and Counting’ (2014). Retrieved: iraqbodycount.org.

[41] The Occupation of the American Mind (2016). Documentary produced by Media Education Foundation. Available as a DVD.

[42] Sir Geoffrey Nice QC and Rodney Dixon QC, ‘Review of the Report of the Secretary General Panel of Experts on Accountability in Sri Lanka’ in Volume 2 of In Defence of the Armed Forces of Sri Lanka

[43] Major General John Holmes in Volume 2 of: In Defence of the Armed Forces of Sri Lanka

[44] ‘Report submitted by Mr Shamindra Fernando to the Federation of National Organisations on War Crime Allegations against the Armed Forces of Sri Lanka.’ In Volume 2 of In Defence of the Armed Forces of Sri Lanka

[45] Ab initio is a Latin term which translates as ‘from the beginning’. In law it means that if, for example, a contract is proven to have been entered into under duress, it can be declared void ab initio. In the above case it means that the standard of proof is so low that that allegation made should be thrown out without further investigation. In Defence of the Armed Forces of Sri Lanka, p. 7.

[46] ‘In Defence of the Armed Forces of Sri Lanka,’ p. 14.

[47] An Unfinished war: Torture and Sexual Violence in Sri Lanka 2009-2014. ITJP, March 2014, p. 65.

[48] ‘In Defence of the Armed Forces of Sri Lanka,’ p. 56.

[49] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 52-56.

[50] All this and so much more can be found in Gleeson, Madeline (2016), Offshore: Behind the wire on Manus and Nauru, New South Publications.

[51]  Report of the Secretary-General’s Panel of Experts, p. 87.

[52] Report of the Secretary-General’s Panel of Experts, pp. 87-93

[53] Report of the Secretary-General’s Panel of Experts, pp. 75-76

[54] Report of the Secretary-General’s Panel of Experts, p. 103

[55] Report of the Secretary-General’s Panel of Experts, p. 102

[56] Report of the Secretary-General’s Panel of Experts, p. 98

[57] Rush, David (2013), UN survey of violence against women in Sri Lanka, p. 97 onwards (rapists face no legal consequences). The Public Square: September 11 2013. Retrieved: www.thepublicsquare.com/briefs/2013/09/un-survey-on-violence-against women-insri-lanka-97-ofrapist-face-no-legal-consqueuences

[58] ‘In Defence of the Armed Forces of Sri Lanka,’ p. 59

[59] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 56-61.

[60] Jayaweera, Neville (2017). The Vavuniya Diaries: Recollecting the first JVP uprising 1971. Ravaya Publishers.

[61] Nancy Murray, ‘The War Against the Tamils,’ in Race and Class, Vol XXVI, Summer 1984, No. 1, Institute of Race Relations.

[62] Institute of Race Relations (1984). ‘Notes and Documents: Human rights violation in Sri Lanka in Race and Class,’ Summer 1984 – No: 1, UK.

[63] Gunaratna , Professor Rohan (1990).  Sri Lanka: A Lost Revolution? – The Inside Story of the JVP.

[64] At the same time his brother, the future President Mahinda Rajapaksa, was bravely gathering witness statements describing the illegal activity of the security forces, and went to Geneva to put their plight to the international community. It was ironically those same unreformed armed forces that he unleashed on the Tamil majority areas. It was during his tenure at the helm of the Lankan government, that instances of torture, abduction and killing of human rights activists and journalists in the south were reaching plague proportions.

[65]  Press Freedom Index 2009Reporters Without Borders. Archived on 2012-01-28.

[66] We will Teach you a Lesson. Human Rights Watch 2013.

[67] ‘In Defence of the Armed Forces of Sri Lanka,’ p. 77.

[68] Somasundaram, Daya (2010). ‘Collective trauma in the Vanni – a qualitative inquiry into the mental health of the internally displace due to the civil war in Sri Lanka’. International Journal of Mental Health. Retrieved: http://ijmshs.biomedicentral.com/articles/10.1186/1752-4458-4-22.

[69] See, for example, Rajanayagam, Dagmar Hellman (1990), ‘The Politics of the Tamil Past’ in Spencer, Jonathan (editor), Sri Lanka: History and the roots of Conflict. Routledge, pp. 107-124.

[70] Women under Siege Project. Retrieved: www.womenundersiegeproject.org/conflicts/profile/sri-lanka

[71] The Australian Department of Foreign and Trade: Country Information Report, Sri Lanka, 24 January 2017, p. 23.

[72] Women under Siege Project. Retrieved: www.womenundersiegeproject.org/conflicts/profile/sri-lanka

[73] Sri Lanka’s Special Task Force (April 2018), International Truth and Justice Project, p. 12.

[74] ‘In Defence of the Armed Forces of Sri Lanka,’ p. 77.

[75] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 12-31.

[76] Weiss, Gordon (2011), p. 231.

[77] Reddy, Muralidhar (2009) Final assault – Front Line Volume 26 No:11 – May 23 – Jun 05, 2009. Retrieved: https://www.frontline.in/magazine/archive/

[78] Report of the Secretary General’s Panel of Experts, p. 24

[79] Report of the Secretary General’s Panel of Experts,  p. 25

[80] Report of the Secretary General’s Panel of Experts,  pp. 20-32

[81] U.S. Department of State (2009). Report to Congress on Incidents During the Recent Conflict in Sri Lanka,.

[82] U.S. Department of State (2009). Report to Congress on Incidents During the Recent Conflict in Sri Lanka, p. 3.

[83] U.S. Department of State (2009). Report to Congress on Incidents During the Recent Conflict in Sri Lanka, pp. 11-14.

[84] U.S. Department of State (2009). Report to Congress on Incidents During the Recent Conflict in Sri Lanka, pp. 15-69.

[85] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 82-84.

[86] Gunaratna, Professor Rohan (1990),  Sri Lanka: A Lost Revolution? – The Inside Story of the JVP.

[87] Silenced: survivors of torture and sexual violence in 2015. International Truth & Justice Project Sri Lanka. January 2016.

[88] ‘Sri Lanka’s Special Task Force’ (April 2018)

[89] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 40-43.

[90] The images discussed were from a Channel 4 documentary, the result of a three year investigation which focused on the last 138 days of the war, entitled ‘No Fire Zone: The Killing Fields of Sri Lanka’ (2014).

[91] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 44-46.

[92] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 46-48.

[93] ‘In Defence of the Armed Forces of Sri Lanka,’ pp. 48-49

[94] ‘No Fire Zone: The Killing Fields of Sri Lanka’ (2014).

[95] See:  http://www.jdslanka.org/index.php/news-features/human-rights/800-embedded-journalist-reveals-how-sri-lanka-army-chief-ordered-a-war-crime

[96]  Rohana Wijeweera’s wife files petition after 28 years, says he is missing. Retrieved:  https://english.gossiplankanews.com/2018/06/rohana-wijeweeras-wife-files-petition.html?m=1#more

[97] The above narrative in this section, was gleaned from: Gordon Weiss, The Cage, Dr Lionel Bopage, Michael Cooke, Fr Pan Jordan OPA,  A. Ratnakanthan, Chris Slee, Nalliah Suriyakumaran: Information Report:  Sri Lanka, 2018, and Cooke, Michael (2011), Rebellion, Repression and The Struggle for Justice in Sri Lanka: The Lionel Bopage Story. Agahas Publishers.

[98] quoted in: Cannadine, David (2013) The Undivided Past: Humanity Beyond Our Differences, Knopf

[99] See, for example, Amnesty International, ‘Twenty Years of Make-Believe: Sri Lanka’s Commissions of Inquiries,’ June 2009.