Sir Geoffrey Nice and Rodney Dixon on Ban Ki Moon’s report on SL
Sir Geoffrey Nice QC worked at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and led the prosecution of Slobodan Milošević. He has also worked for the International Criminal Court in the Hague.
Rodney Dixon QC has prosecuted and defended cases before the International Criminal Tribunal for the former Yugoslavia (ICTY), the Rwanda Tribunal (ICTR), the Special Court for Cambodia, the War Crimes Chamber for Bosnia and Herzegovina and the Special Court for Sierra Leone.
(This is an edited and abbreviated version of a legal opinion. The language and the title has been modified to suit a general readership. Reducing a detailed legal opinion to a newspaper article does not do justice to the experts concerned. We do so only in order to keep the Sri Lankan public informed of the thinking of eminent international experts which may differ in significant ways from the propaganda that the public often hears from interested parties. The complete legal opinion is available athttp://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121959)
This is a Review of the Report of the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka. The Panel found that there were credible allegations which indicated that both the Government of Sri Lanka and the LTTE had committed violations of international humanitarian and human rights law. In relation to the government, the Panel found ‘credible allegations’ of shelling in the Vanni during the final stages of the war between September 2008 and May 2009 which it is alleged caused civilian deaths. The figure for civilian deaths that the Panel relies on is a range of up to 40,000 which it stated cannot be ruled out, but which requires further investigation.
Sources for this up to 40,000 figure are not identified in the Report. The figure is widely disputed. There is no clear breakdown given in the Report of where and how these alleged deaths occurred and of how it might be verified that they were civilian deaths in each particular case or of who was responsible for each of these deaths.
The Panel concluded in relation to the LTTE that there are credible allegations that approximately 300,000-330,000 civilians were kept hostage by the LTTE in the Vanni and prevented from leaving the area. They were used as human shields by the LTTE and as a strategic human buffer to the advancing Sri Lanka Army. The Report states that these civilians were forced to join the ranks of the LTTE to dig trenches and prepare other defences, thereby contributing to blurring the distinction between combatants and civilians. The Report notes that the LTTE fired artillery in proximity to large groups of civilians and fired from civilian installations including hospitals. The Report concludes that many civilians were sacrificed on the altar of the LTTE cause and its efforts to preserve its senior leadership. The Report fails, however, to offer any figures for the number of civilians allegedly killed or injured by the LTTE and provides no analysis of any kind of the precise circumstances in which these deaths and incidents allegedly occurred.
The Panel’s findings in respect of the alleged criminal violations fall well short of the legal standards usually associated with a rigorous and impartial inquiry into evidence in order to make such findings. The evidence and information on which the Report’s findings are based are virtually all un-sourced, whether in the main body of the Report or in the footnotes and annexes. As the full body of evidence that was taken into account is unknown, it is impossible to know what has been taken into account and whether any particular piece of evidence which may be important to counter an allegation has been overlooked. This makes the task of conducting any further investigation – as recommended by the Report – much more difficult. Without a ‘starting point’ of existing evidence where should the new investigator begin a search?
The repeated assertion that civilians were shelled by the Sri Lanka Army in various locations and were unlawfully killed as a matter of international law is not deconstructed in order to allow the reader to form a reasoned opinion as to the factual or mental state requirements of the alleged crimes. In particular, there is no analysis offered in the Report of (i) the evidence of the circumstances of each of these alleged attacks, (ii) the presence of any legitimate military targets and objects, (iii) how it can be determined on the evidence from where the attacks emanated, and (iv) whether any of those attacked were civilians, and if so in what proportion.
The Panel acknowledges that the civilians in the Vanni were hostages of the LTTE and used by them as human shield and as combatants to fight the Sri Lanka Army and were also targeted by the LTTE including in the very areas and hospitals that the Government is accused of shelling. In these circumstances how is the Panel able to find that the Government was nevertheless responsible for killing these same civilians unlawfully? The Panel’s approach also assumes that the persons killed, whatever the number, were in fact civilians as opposed to persons who had taken up arms voluntarily or under compulsion on the side of the LTTE.
The Report does not confine itself to saying, as it should, given its approach to the evidence that there are many disputed allegations which require further investigation. On the contrary, it positively claims that the allegations are credible and reliable. Indeed, as a result of publication of the Report there have been many subsequent statements, reports and recommendations which have regarded the Report’s findings as conclusive. Herein lies the danger – whether intended or not – of the claims that are made in the Report about the criminal responsibility of the Government and its forces. Without a robust and disciplined investigation with legal analysis of the evidence, properly sourced and carefully scrutinised, tested and weighed according to the highest legal standards, it can be very risky to publish findings of the sort set out in this Report, even if the Report states formally that any allegations made are not proven.
Panels of experts established by the UN should be on guard against the risk that unsourced assertions or allegations appearing in a sequence of reports allow the development of ‘false collateral’ of one report by another that may have been constructed on the same un-sourced allegations. Narratives develop in opinion-formers and decision-makers, none of whom may have the time to read, let alone rigorously to analyse, reports that, like the instant Report, are often hundreds of pages long.
Such reports can be relied on within the international community to draw conclusions which are in fact unproven but which are repeated and reproduced over time. The reports become the accepted narrative of a conflict and of those responsible for criminal behaviour without independent investigation and verification of the ‘facts’, let alone any judicial findings following a proper legal inquiry. A cornucopia made of insubstantial elements is itself insubstantial. International courts and tribunals have not placed reliance on reports of this nature as being probative evidence to prove allegations in trials for war crimes and crimes against humanity. As set out in the jurisprudence of these courts, the present Report would be of virtually no value to a court seeking to establish the truth, and it should not be given any more weight outside of the courtroom.
The Panel consulted several sources, but the raw evidence from these sources is not made available in the Report. In particular, the statements and other evidence (for example documents, videos etc if any were produced by witnesses) of those who were interviewed and consulted were not submitted with the Report. Indeed, witness statements — assuming there were any — are not even quoted anonymously. The Panel stressed that the only allegations included in the Report as credible are those based on primary sources that the Panel deemed relevant and trustworthy. However, it is impossible to discern from the Report which primary sources were decisive for its findings.
This central weakness in the Report is exacerbated by the standard of proof that it professed to adopt. A non-legal analysis – as by a journalist or academic, can use any standard he likes: ‘A felt sure’, ‘A felt reasonably confident’, ‘A was absolutely convinced’, ‘A had my suspicions’ etc. In a document dealing with alleged criminality on a major scale – that names those who may be responsible – it might be thought better to apply the standards of proof recognised by international criminal courts. This is something the Report failed properly and consistently to do.
The Panel’s findings could have very serious consequences for Sri Lanka and its leaders but are based on the very lowest threshold of proof while using the language and discourse of international courts to introduce these findings without adopting or seeming to pay any regard to the practices of these courts that would reveal and explain the evidence on which the Panel has proceeded to its conclusions. The neutral observer might find it hard to overlook the fact that this has all been done in a time when — right or wrong — there has been substantial publicity adverse to the Sri Lankan government. It would be naive not to recognise that in such times it is easier to advance conclusions in line with publicity without proper evidential support but in the hope, and with the reasonable expectation, of a busy world accepting what is asserted.
The Panel notes that a number of credible sources have estimated there to have been as many as 40,000 civilian deaths. None of these sources is named in the Report, yet the figure is used in the Report and has been relied on repeatedly after publication of the Report as the correct figure with which to accuse the Government. It is well-known that there are other sources which estimate the figure to be much lower, but these are not mentioned in the Report. At the very least it would be expected that a UN report of this type should set out the various competing accounts. The UN Country Team figure of 7,721 (up until 13 May 2009) is mentioned in the Report but then disputed by the Panel without it explaining how it is that over 30,000 people could have been killed in the final days of the war up until 18 May 2009 if the figure of 40,000 is ever to be correct and accurate. The Report provides no concrete evidence to support the considerable leap from the UN Country Team’s figure of less than 10,000 to the substantial number of 40,000 adopted by the Report.
This Review has thus focused on the Report’s analysis or rather its lack of rigorous analysis of the underlying alleged violations by the parties to the conflict. The Report claims that the government of Sri Lanka has failed to pursue effective accountability measures, but this is to put the cart before the horse as any assessment of the Government’s post-conflict inquiries and initiatives depends entirely on what the available evidence shows about the nature and extent of any transgressions.