Fonseka zero in on ‘white flag’ killings, clears Army of war crimes up to second week of May, 2009

by Shamindra Ferdinando

Parliament was told last Thursday that the proposed war crimes investigation should focus on fighting on the Vanni east front during the third week of May, 2009.

The declaration was made by no less a person than Field Marshal Fonseka, leader of the Democratic Party (DP). Sri Lanka’s most successful Army Chief was delivering his inaugural speech in parliament after having been accommodated on the UNP National List last month.

The tough talking strategist also called for foreign participation in the proposed judicial inquiry. The Field Marshal declared his readiness to face the forthcoming investigation.

Having strongly denied accusations against his army in respect of operations conducted in the Eastern and Northern theaters of war (August 2006-May second week 2009), Field Marshal Fonseka alleged that the ongoing controversy surrounds certain incidents, including ‘white flag’ killings which allegedly took place while he was overseas during the third week of May 2009. The Sinha Regiment veteran called for a fresh investigation into the ‘white flag’ killings, a reference to alleged execution of surrendering LTTE cadres as well as their families by troops of the celebrated 58 Division.

Field Marshal Fonseka castigated the Rajapaksas for causing mayhem during his absence. In addition to accusations in respect of alleged atrocities committed during the third week of May, 2009, the war hero accused Basil Rajapaksa of facilitating Mahinda Rajapaksa’s victory at the Nov. 2005 presidential polls by influencing an LTTE instigated polls boycott. The war hero alleged that Basil Rajapaksa had paid $ 2 mn to the LTTE to secure its support. The LTTE deprived UNP candidate Ranil Wickremesinghe of an anticipated northern Tamil block vote, thereby paving the way for Rajapaksa’s victory. Former Minister Basil Rajapaksa told The Island that there was absolutely no basis for Field Marshal Fonseka’s allegation that he transferred $ 2 mn to the LTTE in the run-up to the presidential polls.


However, none of those who had accused Mahinda Rajapaksa of winning the presidential poll, with LTTE’s help, dared to explain why Prabhakaran resumed landmine attacks, less than two weeks after Rajapaksa took oaths. They had been also silent on the role played by the Tamil National Alliance (TNA) in the alleged conspiracy to ensure Mahinda Rajapaksa’s victory at the expense of Ranil Wickremesinghe. A case in point is former BBC correspondent Mark Salter’s “To end a civil war: Norway’s peace engagement in Sri Lanka”, recently launched in Colombo. Salter never bothered to verify the TNA’s role in sordid operations of the LTTE though he interviewed scores of people in various parts of the world. A shocking omission, indeed.


T017he LTTE made an abortive bid to assassinate Fonseka, on the afternoon of April 25, 2006, at army headquarters. An attempt on the life of the then Defence Secretary Gotabhaya Rajapaksa was made on the morning of Dec 1, 2006.


The combined security forces offensive, launched in September, 2006, continued until the war was brought to a successful conclusion on the morning of May 19, 2009. Now that Field Marshal Fonseka, in his former capacity as the Commander of the Army, had taken responsibility for all ground operations, except the events during the last week of the offensive, the focus of the proposed investigation should be on that period. Field Marshal Fonseka cleared the army of human rights violations during the nearly three-year campaign, except the final week. Interestingly, the then President Mahinda Rajapaksa, too, had been away in Jordan during the last week of the offensive though he returned on May 17, 2007, two days before the Army finished off the LTTE, on the banks of the Nanthikadal lagoon. The then SLFP General Secretary Maithripala Sirisena had functioned as the Acting Defence Minister during Mahinda Rajapaksa’s brief absence.


Field Marshal Fonseka also called for thorough investigations into several assassinations, including that of The Sunday Leader Editor Lasantha Wickrematunga on January 8, 2009.


Field Marshal Fonseka’s assertion that battlefield atrocities could have taken place, only during his absence, should be examined against the backdrop of accusation as regards systematic annihilation of the Tamil community in the Vanni during the eelam war IV. Field Marshal Fonseka had dealt a devastating blow to ongoing efforts to portray Sri Lanka’s war against the LTTE as a campaign against the Tamil community.


Field Marshal Fonseka’s onslaught certainly undermined those hell-bent on hauling Sri Lanka’s previous political and military leadership before a hybrid war crimes investigation mechanism over charges of systematic crimes against Tamil speaking people over a period of three years. The Maxwell Paranagama Commission, too, strongly recommended international technical expertise as well as observers in case the government of Sri Lanka decided against having foreign judges. The Paranagama Commission, appointed by former President Mahinda Rajapaksa, received the blessings of President Maithripala Sirisena. The writer, too, is of the firm belief that international participation in the proposed process should be acceptable to the leaders of the previous administration. It would be pertinent to keep in mind that the report on the Second Mandate of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances received the backing of an international expert team, led by Sir Desmond de Silva, QC. Therefore, no one should find fault with Field Marshal Fonseka for throwing his weight behind the move.


Those who cannot stomach Sri Lanka’s triumph over terrorism will definitely find the former Chief of Defence Staff’s stand an obstacle to their efforts on the human rights front. Although, no final decision has been reached on the proposed judicial mechanism, Field Marshal Fonseka will be among those certainly to be summoned before the court. The Sinha Regiment veteran will defend the army during the entire eelam war, except the third week of May, 2009.


Field Marshal Fonseka contradicted the REPORT OF THE SECRETARY GENERAL’S PANEL OF EXPERTS (POE) ON ACCOUNTABILITY IN SRI LANKA in respect of all three allegations, namely indiscriminate use of artillery fire directed at civilians, artillery assaults on hospitals and other humanitarian locations and, finally, denial of humanitarian assistance to the Vanni population.


The POE estimated the number of civilian deaths caused by the then Lt. Gen. Fonseka’s Army at over 40,000. The report, dated March 31, 2011, accused the Army of indiscriminate, as well as, deliberate targeting of civilians on the Vanni east front and then subjecting them to untold hardships following the end of the offensive. Let me reproduce the relevant section from the report verbatim: “In the limited surveys that have been carried out in the aftermath of the conflict, the percentage of people reporting dead relatives is high. 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 still 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 at this stage. Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths (POE Report 137 paragraph)


Having accused the Army of massacring over 40,000 civilians on the basis of information provided by 2,300 persons (POE Report 17 paragraph), the three-member inquiry team declared that accusations cannot be verified for a period of 20 years (until March 31, 2031) and even then a declassification review is required.


Six months later the release of the POE report, the Amnesty International in a special report titled ‘WHEN WILL THEY GET JUSTICE? FAILURES OF SRI LANKA’S LEARNT AND RECONCILIATION COMMISSION’ estimated the number of civilians killed, due to military action, at 10,000. London headquartered Amnesty International based its much touted report on eyewitnesses, as well as, local and international aid workers.


The previous government never bothered to examine the vast discrepancy in figures quoted by the POE and Amnesty International in respect of civilian deaths though The Island repeatedly highlighted the matter. The External Affairs Ministry struggled in the wake of the international onslaught. Both POE and Amnesty International conveniently refrained from asserting the period the killings took place. They propagated that killings took place during the final phase of the offensive.


There cannot be a better person than Field Marshal Fonseka to respond to the POE as well as Amnesty International. In fact, international participation in the proposed judicial process should pave the way for members of the POE comprising, Marduk Darusman (Chairman), Stevan R. Ratner and Yasmin Sooka, and the author of Amnesty International, to be cross examined as regards allegations made by them.


Field Marshal Fonseka will find a still classified UN document mentioned in the POE report extremely useful in his defence of the Army though he’ll not intervene on behalf of those who had been allegedly involved in atrocities, if any, during the third week of May, 2009. The UN report, which dealt with the period from August 2008 to May 13, 2009, placed the number of deaths in the Vanni at 7,721. The UN didn’t differentiate between civilians and those perished while fighting for the LTTE. The report placed the number of wounded at 18,479. The project carried out on the instructions from the UN in New York, is widely believed to be the most accurate, due it being prepared with information obtained from local and foreign NGOs, International Committee of the Red Cross (ICRC), clergy as well as health authorities, based in the Vanni, during the war. Perhaps, the Yahapalana government should request the UN to release the report without further delay. In fact, the UN report prepared, without the previous government’s knowledge, proves that the Army never engaged in mass scale slaughter as alleged by various interested parties. The UN report dealt with the situation, in both the Vanni west and east, for a period of ten months, whereas the POE and Amnesty International placed the number of civilian deaths at over 40,000 and 10,000, respectively. The two organizations didn’t estimate the number of deaths among LTTE cadres. Interestingly, none of those who propagate the number of civilian deaths during eelam war IV are silent on losses suffered by the LTTE. But of the 7,721 deaths estimated by the UN at least over a half are believed to be members of the LTTE. The Army lost over 5,000 officers and men during operations on the Vanni front (March 2007-May 19, 2009).


Now that Field Marshal Fonseka has, in no uncertain terms, denied systematic battle-field atrocities committed by his troops up to second week of May 2009, he cannot ignore unsubstantiated accusation made by British Labour Party MP Siobhain McDonagh (Mitcham and Morden) during a debate on ‘Human Rights in the Indian Sub-continent’ in the House of Commons, on Sept. 2011.


Alleging that Sri Lanka’s civil war had been one of the regions most dreadful conflicts of recent times, MP McDonagh alleged that in its last five months alone (January 1-May 19, 2009) 100,000 people were killed, 40,000 of them civilians. The MP reiterated that war crimes took place.


Members representing the two largest parties at Westminster – Labour and the Conservatives – called for justice for all people in Sri Lanka and the establishment of an independent, credible and thorough investigation into the allegations of war crimes committed by the Government and the LTTE during the final phase of the fighting.


The previous government didn’t even take up the issue with the British. When The Island inquired from the British High Commission in Colombo regarding the claim, the writer was asked to contact MP McDonagh. She didn’t respond to the writer’s emails. An attempt to reach her through the UK headquartered Global Tamil Forum (GTF), too, failed.


The British is the only one so far to specify the final phase of the Sri Lankan offensive as the period between January 1-May 19, 2009.


The British should be requested to provide evidence before the proposed war crimes inquiry. Field Marshal Fonseka’s declaration, in parliament, strongly countered the findings of a high profile inquiry conducted by Ms Sandra Beidas. The Beidas report presented to Geneva, last September, alleged that “there are reasonable grounds to believe that gross violations of international human rights law, serious violations of international humanitarian law and international crimes were committed by all parties during the period under investigation. Indeed, if established before a court of law, many of these allegations would amount, depending on the circumstances, to war crimes and/or crimes against humanity”.


There couldn’t be any ambiguity as regards the killing of LTTE leader Velupillai Prabhakaran on the morning of May 19, 2009 by then the then Army Chief Lt. Gen. Fonseka was back in the country following less than a week long visit to Beijing. During last Thursday’s speech, in Parliament, Field Marshal Fonseka ridiculed the then President Rajapaksa for declaring victory over the LTTE on May 19 soon after returning from Jordan. Fonseka resumed operational command immediately after returning from Beijing.


Field Marshal Fonseka has thrown his weight behind the call to thoroughly investigate the ‘white flag’ killings, as fighting on the Vanni east front drew to a close. The POE, as well as the Maxwell Paranagama Commission, and many other organizations, commented on white flag killings, therefore Sri Lanka cannot side-step the issue. However, a statement made by a US embassy staffer in June 2011, regarding ‘white flag’ killings, should also be inquired into. US Defence Attache in Colombo, Lt. Colonel Lawrence Smith, is on record as having denied surrender of LTTE personnel and their families as alleged in the ‘white flags’ killings case. The State Department responded to the writer’s exclusive report that dealt with the US embassy staffer’s statement on the front-page of The Island. Instead of denying he report, the State Department asserted that the officer was not speaking on behalf of the US. The Defence Attache was at the inaugural defence seminar organized by the Army in Colombo. Lt. Colonel Smith was responding to questions retired IPKF officer Maj. General Ashok Mehtha posed to Maj. Gen. Shavendra Silva whose troops were accused of ‘white flag’ killings.


Lt. Colonel Smith: “Hello, may I say something to a couple of questions raised. I’ve been the defence attache here at the US Embassy, since June, 2008. Regarding the various versions of events that came out in the final hours and days of the conflict – from what I was privileged to hear and to see, the offers to surrender that I am aware of, seemed to come from the mouthpieces of the LTTE – Nadesan, KP – people who weren’t and never had really demonstrated any control over the leadership or the combat power of the LTTE. So their offers were a bit suspect anyway, and they tended to vary in content hour by hour, day by day. I think we need to examine the credibility of those offers before we leap to conclusions that such offers were in fact real.


“And I think the same is true for the version of events. It’s not so uncommon in combat operations, in the fog of war, as we all get our reports second, third and fourth hand from various commanders at various levels that the stories don’t seem to all quite match up.


But I can say that the version presented here so far in this is what I heard as I was here during that time. And I think I better leave it at that before I get into trouble.”


Lt. Colonel Smith can shed light on the actual situation. The proposed judicial inquiry can call for his evidence. As the US Defence Attache, the former officer must have had access to entire gamut of intelligence obtained from various sources. Most importantly, he was making the statement over two years after the conclusion of the war.


To be continued on March 23

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