by Paranagama Commission, August 2015
Acknowledgements
In presenting this Report of our Commission to His Excellency the President I, as Chairman,
wish to place on record my grateful thanks to all those who played a part in making this Report
possible. Of course, my thanks go out to my hard working staff whose efforts to meet their
deadlines were faced cheerfully and with diligence.
I owe a deep debt of gratitude to Mrs. Mano Ramanathan, Mrs. Priyanthi Suranjana Vidyaratne,
my fellow Commissioners who found time to deal with the enlarged mandate of the
Commission whilst also endeavouring to meet our commitments to dealing with the subject
matter of the original mandate.
Given the enlargement of the mandate by President Rajapaksa on the 15 July 2014 which dealt
in large part with the facts and circumstances attending the internal armed conflict that ended
on 19 May 2009 and in particular called for all examination of the possible violations of
international humanitarian law and international human rights law, we the Commission are
greatly indebted to the expert assistance we had touching upon complex issues of international
law which we the Commission found threw a great flood of new light upon the matters that
fell to us for consideration…
Table of Contents
Abbreviations and Acronyms …………………………………………………………………………………….. i
Acknowledgements …………………………………………………………………………………………………… v
Mandate …………………………………………………………………………………………………………………. xii
Methodology …………………………………………………………………………………………………………… xv
Executive Summary …………………………………………………………………………………………….. xviii
The Darusman Report …………………………………………………………………………………….. xviii
Number of civilian deaths …………………………………………………………………………………… xix
Application of the Principles of Distinction and Proportionality ……………………………… xx
Deliberate attacks against civilians …………………………………………………………………….. xxi
The LTTE’s Use of Human Shields …………………………………………………………………….. xxii
Overall Conduct of the LTTE …………………………………………………………………………… xxiii
Overall Conduct of Government Forces …………………………………………………………….. xxiv
Command Responsibility …………………………………………………………………………………… xxv
Accountability ………………………………………………………………………………………………… xxvii
CHAPTER 1 – INTRODUCTION ……………………………………………………………………………… 1
CHAPTER 2 – THE 2011 REPORT OF THE SECRETARY-GENERAL’S PANEL OF
EXPERTS ………………………………………………………………………………………………………………. 11
A. The Standard of Proof Adopted in the Darusman Report ……………………………. 12
B. The Accepted Facts in the Darusman Report ………………………………………………. 13
C. The Darusman Report’s Failure to Identify Primary Source Material …………. 17
D. The Disputed Facts and Law in the Darusman Report ………………………………… 19
The Myth of 40,000 Civilians Killed in the Final Phase of the War ………………………….. 19
The Use of Human Shields ………………………………………………………………………………….. 24
The Application of the Principles of Distinction and Proportionality ……………………….. 26
Individual Shelling Incidents ……………………………………………………………………………….. 28
Accountability and the Obligation to Prosecute …………………………………………………….. 29
CHAPTER 3: THE SRI LANKAN ARMY ………………………………………………………………. 30
Training ……………………………………………………………………………………………………………. 33
Policy Change …………………………………………………………………………………………………… 34
Military Capability …………………………………………………………………………………………….. 34
Air Force ………………………………………………………………………………………………………….. 35
Navy …………………………………………………………………………………………………………………. 35
CHAPTER 4 – THE LTTE ………………………………………………………………………………………. 37
Structure …………………………………………………………………………………………………………… 38
Training ……………………………………………………………………………………………………………. 39
Policy ……………………………………………………………………………………………………………….. 40
LTTE Military Capability ……………………………………………………………………………………. 41
Propaganda, Glorification & Martyrdom ……………………………………………………………… 44
Internet …………………………………………………………………………………………………………….. 45
CHAPTER 5 – THE PLIGHT OF CIVILIANS IN THE CONFLICT AREA ………………. 47
A. Background to the Last Phase of the War in Sri Lanka ………………………………. 47
B. The No-Fire Zones and other Measures to Reduce Civilian Casualties…………. 48
C. The Deteriorating Civilian Situation …………………………………………………………… 50
D. The Final Weeks of the War……………………………………………………………………….. 52
E. The Role of the Tamil Diaspora ………………………………………………………………….. 54
F. The Influence and Approach of the International Community………………………… 55
G. Appraisal of the Military Outcome and the Impact on Civilians ………………….. 57
The Saipan-Okinawa/Masada Prospect ………………………………………………………………… 58
Factors Impacting on the Plight of Civilians …………………………………………………………. 59
The Post-War Situation ………………………………………………………………………………………. 61
CHAPTER 6 – THE LEGAL FRAMEWORK ………………………………………………………….. 62
A. The Applicability of IHL to Non-International Armed Conflicts………………….. 62
Common Article 3 ………………………………………………………………………………………………. 62
Additional Protocol II ………………………………………………………………………………………… 63
B. The Applicability of Customary International Law …………………………………….. 64
C. The Applicability of International Human Rights Law ……………………………….. 65
D. The Applicability of IHL to Non-State Actors……………………………………………… 65
E. The Core IHL Principles of Distinction, Military Necessity and Proportionality
66
The Principle of Distinction ……………………………………………………………………………………. 66
Military Necessity ………………………………………………………………………………………………….. 68
The Principle of Proportionality ……………………………………………………………………………… 69
The Application of the Proportionality Principle ………………………………………………………. 71
The Shift in State Practice on Incidental Civilian Harm …………………………………………….. 72
War in the Balkans: Operation Allied Force …………………………………………………………. 72
U.S. Policy and Practice …………………………………………………………………………………….. 73
F. The Impact of Hostage taking and Use of Human Shields on Proportionality ….. 76
The Prohibition on the Taking of Hostages ………………………………………………………………. 76
The Prohibition on the Use of Human Shields …………………………………………………………… 77
‘Direct’ involvement of civilians in hostilities ……………………………………………………….. 80
Involuntary and Voluntary Human Shields ……………………………………………………………….. 82
Human Shields and Proportionality …………………………………………………………………………. 83
G. The Law as to the Status of Hospitals …………………………………………………………. 86
H. The Law as to the Status of Journalists ………………………………………………………. 88
I. The Law Relating to the Denial of Humanitarian Assistance…………………………… 88
J. The Law as to the Recruitment and/or Use of Child Soldiers ………………………….. 92
Definition of conscription ……………………………………………………………………………………. 93
Definition of Use in Hostilities …………………………………………………………………………….. 93
K. The Law on Perfidy ……………………………………………………………………………………. 94
L. Prohibited Weapons …………………………………………………………………………………… 94
M. The Law Relating to Genocide ……………………………………………………………………. 95
Definition ……………………………………………………………………………………………………………… 95
Genocidal Intent ……………………………………………………………………………………………………. 95
Recent European Domestic Decision on ‘Racist State’ ………………………………………………. 97
N. The Law on Enforced Disappearances ………………………………………………………… 97
O. The Law as to Command Responsibility……………………………………………………… 98
P. Forms of Responsibility under International Law ………………………………………….. 98
CHAPTER 7 – THE PRINCIPAL ALLEGATIONS AGAINST THE GOVERNMENT
OF SRI LANKA AND THE SRI LANKAN ARMY …………………………………………………. 100
Introduction ……………………………………………………………………………………………………………. 100
A. The Channel 4 Video Footage …………………………………………………………………… 101
Authenticity of Channel 4 footage ………………………………………………………………………. 102
B. Disappearances of Detainees in the Final Phase of the War ……………………….. 105
C. The ‘White Flag Killings’ …………………………………………………………………………. 108
Individual allegations of executions ……………………………………………………………………….. 110
D. Shelling of Civilians and Hospitals ……………………………………………………………. 111
Source of the shelling …………………………………………………………………………………………… 111
Shelling in the NFZs …………………………………………………………………………………………….. 113
The proportionality assessment ……………………………………………………………………………… 113
Investigations into shelling incidents as war crimes …………………………………………………. 117
Shelling of hospitals …………………………………………………………………………………………….. 119
Area Weapons, Phosphorous and Cluster Bombs …………………………………………………….. 120
E. Denial of Humanitarian Assistance …………………………………………………………… 122
F. Genocide……………………………………………………………………………………………………… 128
G. War Without Witnesses ……………………………………………………………………………. 129
H. Conclusion ……………………………………………………………………………………………….. 132
CHAPTER 8 – ACCOUNTABILITY MECHANISMS …………………………………………… 134
A. The Darusman Report’s Position …………………………………………………………………… 135
B. Mechanisms for Accountability ……………………………………………………………………… 137
The Extent of the Obligation to Prosecute …………………………………………………………… 138
Truth Commissions as an Accountability Mechanism …………………………………………… 143
Amnesties under International Law ……………………………………………………………………. 145
Reparations and Reconstruction ………………………………………………………………………… 148
C. The Mechanisms Adopted in Sri Lanka …………………………………………………………. 149
D. Establishing a War Crimes Division within The Sri Lankan Court System ……… 151
Amnesty ……………………………………………………………………………………………………………… 153
E. The Commission’s Recommendation ……………………………………………………………… 153
A Proposed Mechanism …………………………………………………………………………………….. 156
CHAPTER 9 – ANSWERS TO GAZETTED QUESTIONS ……………………………………. 158
A i. The principal facts and circumstances that led to the loss of civilian life during the
internal armed conflict that ended on the 19th May 2009, and whether any person,
group or institution directly or indirectly bears responsibility in this regard by reason of
a violation or violations of international humanitarian law or international human
rights law………………………………………………………………………………………………………………. 158
A ii. Whether such loss of civilian life is capable of constituting collateral damage of a
kind that occurs in the prosecution of proportionate attacks against targeted military
objectives in armed conflicts and is expressly recognised under the laws of armed
conflict and international humanitarian law, and whether such civilian casualties were
either the deliberate or unintended consequence of the rules of engagement during the
said armed conflict in Sri Lanka. …………………………………………………………………………… 161
A iii. The adherence to or neglect of the principles of distinction, military necessity and
proportionality under the laws of armed conflict and international humanitarian law,
by the Sri Lankan armed forces. ……………………………………………………………………………. 163
A iv. Whether the LTTE as a non-state actor was subject to international humanitarian
law in the conduct of its military operations. ………………………………………………………….. 164
A v. The use by the LTTE of civilians as human shields and the extent to which such
action constitutes a violation of international humanitarian law or international human
rights law, and did or may have significantly contributed to the loss of civilian life. … 164
B. The recruitment of child soldiers by the LTTE or illegal armed groups-affiliated
with the LTTE or any political party in violation of international humanitarian law or
international human rights law. …………………………………………………………………………….. 164
C. International criminal activities of the LTTE and the application of financial and
other resources obtained through such illegal activities in the prosecution of the
conventional and guerrilla war in Sri Lanka by the LTTE. …………………………………….. 167
First Generation Funding Methods………………………………………………………………………… 169
Drug Dealing …………………………………………………………………………………………………… 169
Second Generation Funding………………………………………………………………………………….. 171
LTTE Shipping Fleet ………………………………………………………………………………………… 171
Human Smuggling ……………………………………………………………………………………………….. 171
LTTE Proscribed ……………………………………………………………………………………………… 173
Credit Card Frauds ………………………………………………………………………………………….. 173
Other Criminal Activities ……………………………………………………………………………………… 173
Aiding and Abetting ………………………………………………………………………………………….. 173
D. The suicide attacks by LTTE using child soldiers and other combatants under the
direct orders of the leader of the LTTE, Velupillai Prabhakaran or any persons acting
on his behalf, and the culpability for such actions under international humanitarian law
or international human rights law………………………………………………………………………….. 175
LTTE expertise in Suicide Terrorism ……………………………………………………………………… 176
Conclusion as regards suicide bombing …………………………………………………………………. 177
Additional Acknowledgements …………………………………………………………………………… 179
ANNEX 1 – MILITARY EXPERT OPINION BY MAJOR GENERAL JOHN
HOLMES DSO OBE MC ………………………………………………………………………………………….. 1
INTRODUCTION…………………………………………………………………………………………………….. 1
Summary ………………………………………………………………………………………………………………. 1
Accusations …………………………………………………………………………………………………………… 2
Aim……………………………………………………………………………………………………………………….. 2
GoSL POLICY …………………………………………………………………………………………………………. 3
Background …………………………………………………………………………………………………………… 3
Policy ……………………………………………………………………………………………………………………. 3
Training ………………………………………………………………………………………………………………… 3
LTTE POLICY ………………………………………………………………………………………………………… 5
Background …………………………………………………………………………………………………………… 5
Policy ……………………………………………………………………………………………………………………. 5
Training ………………………………………………………………………………………………………………… 6
THE FINAL PHASE- THE EASTERN WANNI ……………………………………………………….. 8
9 January 2009 ………………………………………………………………………………………………………. 8
Dilemma ……………………………………………………………………………………………………………….. 8
Challenges Posed …………………………………………………………………………………………………… 9
Ground and Weather …………………………………………………………………………………………… 11
SLA Military Capability ………………………………………………………………………………………. 12
LTTE Military Capability ……………………………………………………………………………………. 14
NFZs …………………………………………………………………………………………………………………… 17
SLA: Rules of Engagement (ROE) ……………………………………………………………………….. 18
Proportionality ……………………………………………………………………………………………………. 21
CRATER ANALYSIS …………………………………………………………………………………………….. 22
IMAGERY ANALYSIS ………………………………………………………………………………………….. 24
Report No. 1 ………………………………………………………………………………………………………… 24
Report No 2 …………………………………………………………………………………………………………. 24
Imagery Summary……………………………………………………………………………………………….. 26
CONCLUSIONS …………………………………………………………………………………………………….. 27
ANNEXES: …………………………………………………………………………………………………………….. 32
ANNEX A – BIBLIOGRAPHY ………………………………………………………………………………….. i
…
Executive Summary
16. The Presidential Commission to Investigate Complaints regarding Missing Persons
(hereinafter known as the ‘Paranagama Commission’) was established by the former
President of Sri Lanka, Mahinda Rajapaksa, on 15 August 2013. The Paranagama
Commission’s original mandate was to receive complaints and investigate abductions
and disappearances in the North and East of Sri Lanka during the period 10 June 1990
– 19 May 2009 in order to identify the persons responsible and initiate legal proceedings
against them (‘First Mandate’). By June 2015, the Commission had received more
than 21,000 complaints and its work under the First Mandate is ongoing. In order to
expedite the work of the Commission as regards the First Mandate, two additional
Commissioners were appointed together with more investigators.
17. On 15 July 2014, the scope of the Paranagama Commission’s mandate was expanded
to address the facts and circumstances surrounding civilian loss of life and the question
of responsibility for violations of international law during the conflict that ended in
May 2009, in particular, certain matters referred to in paragraph 4.359 of the 2011
report of the Lessons Learnt and Reconciliation Commission (‘LLRC’). A legal
Advisory Council to the Paranagama Commission, set up at the behest of the
Commission, compromising international legal experts was also appointed. This aspect
of the Commission’s work, which has been carried out with the assistance of the
Advisory Council and with the benefit of an Expert Military Report prepared by Major
General John Holmes, is referred to as the Second Mandate.
18. Following the election of Maithripala Sirisena as the new Sri Lankan President on 8
January 2015, the time frame for both the First and Second Mandates of the Paranagama
Commission were extended until 15 August 2015. So too was the life of the Advisory
Council.
19. This section of the Paranagama Commission’s report is exclusively focused on the
questions raised in the Second Mandate. The Commission has limited its inquiry under
the Second Mandate to the final phase of the war, namely the period between the fall
of the administrative capital of the Liberation Tigers of Tamil Eelam (‘LTTE’),
Kilinochchi, on 2 January 2009, and the conclusion of the war on 19 May 2009. The
Sri Lankan conflict is considered by this Commission to have been a non-international
armed conflict during the final phase of which many of the most serious allegations of
violations of international law have come to be levelled at the LTTE and the Sri Lankan
Army (SLA).
The Darusman Report
20. On 31 March 2011, the Secretary-General’s Panel of Experts on Accountability in Sri
Lanka published its report (‘Darusman Report’) in which it examined possible
violations of international humanitarian law and international human rights law during
the conflict in Sri Lanka and made recommendations for an accountability process.
xviii
21. The Panel of Experts found credible allegations comprising six categories of crimes
allegedly committed by members of the LTTE. These credible allegations included the
fact that approximately 300,000 to 330,000 civilians were kept hostage by the LTTE in
the Wanni and prevented from leaving the area, constituting a ‘strategic human buffer’
to the advancing Sri Lankan Army. The Darusman Report further 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’. Civilians who attempted to escape were shot by the LTTE and the Darusman
Report notes that the LTTE fired artillery ‘in proximity’ to large groups of civilians and
in addition fired from or in in proximity to civilian ‘installations’ including hospitals.
The Report found that ‘many civilians were sacrificed on the altar of the LTTE cause
and its efforts to preserve its senior leadership’.
22. The Darusman Report also found credible allegations comprising five core categories
of potential serious violations of international humanitarian law and international
human rights law committed by the SLA, including large-scale and widespread shelling
causing civilian deaths, and attacks on hospitals.
23. While this Commission accepts some of the findings of the Darusman Panel of Experts,
it considers that its conclusions are either legally and/or factually incorrect or
unsubstantiated in a number of different areas. The major points of contention are
identified as follows:
The estimate of up to 40,000 civilian deaths in the final phase of the conflict
(paragraph 137 of the Darusman Report).
The exemption of the LTTE from the international crime of using human shields
(paragraph 237 of the Darusman Report).
The failure to take into account the true impact of a massive hostage taking,
coupled with forced recruitment and the use of human shields, on the IHL
principles of distinction and proportionality.
The emphasis on prosecutions as an essential aspect of any transitional justice
process (paragraph 425 of the Darusman Report).
Number of civilian deaths
24. The Paranagama Commission is in little doubt that the Darusman Report has played an
important part in moulding international perceptions with regard to the war in Sri
Lanka. The most significant conclusion is in relation to the figure of up to 40,000
civilian deaths in the final phase of the war. The Commission rejects the Darusman
Report’s finding that ‘a number of credible sources’ have estimated that there could
have been as many as 40,000 civilian deaths. None of these sources are named and this
figure is at substantial variance with other estimates of casualty numbers which vary
from 7,721 (UN Country Team), to 6,710 (US State Department), to nearly 7,000
(International Crisis Group), to 10,000 (Amnesty International). This Commission is
satisfied that such is the spread of figures given for the loss of civilian life during the
final phase of the conflict that crude calculations and guesswork in assigning civilian
deaths to the SLA should not take the place of meticulous research. The Commission
agrees with the independent Military Expert who asserts that the figure of 40,000
civilians killed is extremely difficult to sustain on the available evidence.
Application of the Principles of Distinction and Proportionality
25. Not all civilian deaths in war are unlawful and a violation of IHL does not occur every
time a civilian dies or even when casualties reach a record high. Civilian casualties
may constitute lawful collateral damage as long as a military force carrying out an
attack complies with the core IHL principles of distinction and proportionality. In the
view of the Commission, the use of human shields by the LTTE and its impact on the
principles of distinction and proportionality needs to be factored into any evaluation as
to whether civilian loss of life, however regrettable, was excessive in comparison to
the anticipated military advantage and, therefore, unlawful.
26. The Commission recognises that this is a complex area of law where there is recent
jurisprudence from the International Criminal Court for the former Yugoslavia (ICTY)
Appeals Chamber which has not so far been considered in the context of the final phase
of the war in Sri Lanka. In the Gotovina case neither the ICTY Trial Chamber nor the
Appeals Chamber asserted that the use of artillery fire directed against purported
military objectives, located in civilian areas, is in itself dispositive of illegality. The
Commission finds that the law does not require perfect accuracy in targeting and
recognises the fluidity of the operational environment, including the location and
movement of both enemy personnel and civilians, the weaponry involved, the conduct
and tactics of the fighting parties, and any deliberate exposure of civilians to harm.
These are all factors that needed to be taken into account in the evaluation as to whether
collateral damage was excessive in comparison to the anticipated military advantage.
27. As this Commission has already noted, the precise civilian casualty figures are
unknown. In addition, it is not known what percentage of any estimated figure
represented LTTE combatants and what percentage represented civilian hostages.
Furthermore, it is not known how many civilians were present voluntarily in the area
of the Wanni or how many, either voluntarily or through force, took an active part in
hostilities. Civilians killed by the LTTE, whether deliberately or recklessly, including
those civilians who were killed attempting to escape the conflict zone, should not figure
in the estimate of collateral damage attributable to the SLA. The Commission notes
the view expressed by the Military Expert regarding civilian casualties and the
difficulties associated with determining what proportion of those killed were civilians.
28. Therefore, in alleging that the SLA caused an excessive number of civilian deaths, this
Commission finds that the Darusman Report failed either to grasp or deal with the
impact of the following on calculations as to proportionality:
a. The taking of 300,000 – 330,000 civilian hostages by the LTTE;
b. The use by the LTTE of some of those hostages as human shields;
c. The deliberate blurring by the LTTE of the distinction between their own
fighters and non-combatants, thereby undermining the bedrock principle of
distinction; and
d. The forcing of civilians, including children, into the front line.
29. Taking these factors into account, the Commission is satisfied that in terms of the
military objective sought, the elimination of Prabhakaran was clearly a crucial factor in
freeing Tamil civilians from LTTE captivity and in the main, the methods deployed
were not disproportionate.
30. However, the Commission emphasises that there may be individual instances of
violations of IHL which could amount to war crimes and must be the subject of a judge
led investigation. In addition, this Commission is of the view that the alleged attacks
on hospitals and make-shift hospitals are widespread enough to potentially reach the
crimes against humanity threshold. However, in Chapters 6 and 7 we have outlined the
evidential difficulties that arise in shelling cases. Of course, each allegation will have
to be measured against the Darusman finding, ‘that the LTTE fired artillery in proximity
to large groups of IDPs and fired from, or stored military equipment near IDPs or
civilian installations such as hospitals.’ Nevertheless, there is strong support that many
hospitals were hit by SLA shellfire and in the view of the Commission, this calls for a
judge-led investigation so that if blame is to be assigned the matter can be properly
determined.
Deliberate attacks against civilians
31. The Darusman Report alleges the employment of artillery by the SLA without
distinction and within No Fire Zones (‘NFZ’). The GoSL created the first No Fire Zone
on 20 January 2009 in order to provide civilians with a safe haven from the conflict.
However, the LTTE refused to accept or acknowledge such zones. According to Article
15 of the Fourth Geneva Convention, there has to be mutual agreement for an NFZ to
come into effect. Such agreement must be clearly expressed. This rule is recognised as
a customary principle of IHL. The rules applicable to demilitarized or safe zones are
regarded as applicable in both international and non-international armed conflicts and
have been observed in many such conflicts including in the former Yugoslavia, Iraq
and Syria by express agreement. Since there was no mutual agreement between the
GoSL and the SLA regarding the establishment of the NFZs, in reality they never
existed in law.
32. The Commission is satisfied that where the SLA issued warnings to the civilian
population to protect themselves by entering an NFZ, the effect of those warnings was
nullified by the movement of the LTTE into such areas, preventing the flow of civilians
to a safe environment. This had the effect of making the anticipated civilian casualties
essentially unknowable by the SLA whilst the LTTE was properly positioned to
accurately assess the precise number of deaths or injury to civilians under their control.
33. The Commission takes the view that one of the most significant factors leading to
civilian deaths was the refusal by the LTTE to agree to the NFZs. Not only did the
LTTE refuse to agree to such zones, they also entered them to hold and keep civilian
hostages and embed their heavy weaponry amidst the civilian population so as to gain
a military advantage by attempting to prevent the SLA from returning fire or by
deliberately incurring civilian casualties for propaganda purposes. The Commission
notes the statement made to a BBC journalist by Seevaratnam Pulidevan, the head of
the LTTE’s peace secretariat, that the aim of keeping hundreds of thousands of women
and children trapped was that if enough of them were killed the world would intervene.
This Commission is familiar with the well-known terrorist tactic of creating ‘media
martyrs’.
34. The Commission finds that artillery fire into civilian areas, for example NFZs, cannot
be deemed per se unlawful but must be subject to an analysis in accordance with the
principles of distinction and proportionality. The Commission is of the view that there
was sufficient legal justification for SLA’s decision to return artillery fire under the
‘counterterrorism’ IHL paradigm, namely that terrorist forces should not be allowed to
profit from their crime of hostage-taking, particularly when forcibly recruiting children
as young as 12 into the front lines and executing Tamil civilians who were seeking to
escape from the LTTE.
35. The Commission, however, goes further in taking the view that IHL permitted SLA
forces to target LTTE combatants within NFZs in order to free civilians from the grip
of LTTE predations.
36. The Commission finds that it was part of the LTTE tactics to so situate weaponry as to
draw SLA fire towards such places as hospitals or UN positions, with the goal being to
achieve a propaganda advantage if these installations were hit or damaged. This tactic
makes it difficult to determine whether a shell was lawfully fired at a legitimate LTTE
target or from which side a shell was fired on a particular day. The Commission finds
that at this stage, although there is evidence of hospitals having been hit on a number
of occasions, given the LTTE strategy of deliberately seeking to endanger the civilian
population, there is insufficient evidence that all shelling incidents were part of a
government sanctioned SLA campaign of deliberate targeting of hospitals.
37. The accusations made against the GoSL and the SLA imply either a deliberate policy
to target civilians or recklessness as to the scale of civilian casualties in achieving its
strategic objectives. It is the view of this Commission that there was no military
advantage to the SLA in targeting civilians. Indeed, there are reported instances of SLA
soldiers rescuing civilians. Furthermore, in a US diplomatic cable of July 15 the
International Committee of the Red Cross (ICRC) head of operations for South East
Asia is quoted as saying that while the SLA regarded their military objectives as
paramount, the SLA were, ‘open to adapting its actions to reducing casualties’.
Moreover, as the Military Expert has noted, excessive human casualties would have led
to international intervention to avoid a humanitarian disaster, thereby preventing the
SLA from achieving its key military objective of killing or capturing the LTTE
leadership. Further, the fact that 290,000 Tamil civilians survived to be rescued by the
SLA is inconsistent with the concept of a policy to accomplish the deliberate targeting
of civilians.
The LTTE’s Use of Human Shields
38. The Darusman Report, despite finding credible allegations that the LTTE took
thousands of civilians as hostages and executed those attempting to flee, concluded
that the LTTE’s action did not in law amount to the use of human shields due to the
absence of credible evidence that civilians were deliberately moved towards military
targets to protect the latter from attacks. In the view of the Commission, this
conclusion is based on an unduly narrow interpretation of the law and factual situation.
39. The International Criminal Court’s Elements of Crimes adopted on 30 June 2000 make
it plain that the crime of using civilians as shields is made out when a perpetrator
‘moved or otherwise took advantage of the location of one or more civilians’ intending
to ‘shield a military objective from attack or shield, favour or impede military
operations’. While this definition refers to Article 8(2)(b)(xxiii) of the ICC Statute,
applicable to international armed conflicts, the use of human shields is also prohibited
in non-international armed conflicts and the same basic elements may be deemed
applicable. The view of this Commission is that the LTTE took advantage of the
presence and location of thousands of civilian hostages to shield the LTTE leadership
from attack and capture. The LTTE thus exploited the civilian status of the hostages
to protect their most important military assets, namely, their commanders and their
leader, Prabhakaran. This situation was exacerbated by the LTTE’s act of forcibly
preventing civilians who wished to leave the conflict zone from doing so and relying
on their presence to obtain a military advantage. Indeed, this Commission finds that
the crime of human shielding is clearly established.
40. The Commission is satisfied that there was a signal failure in the Darusman Report to
deal with the paramount military advantage anticipated by the SLA in the capturing or
killing of the LTTE leader, whose absence from the field would not only have led to an
immediate freeing of civilian hostages, but would also have ended the multigenerational
armed conflict that pivoted upon Prabhakaran’s very existence.
Overall Conduct of the LTTE
41. In coming to its findings about the LTTE, the Commission was cognisant of the fact
that every major NGO and many international organisations recognised the parasitic
conduct of the LTTE in its treatment of the Tamil civilian population, including the
forcible recruitment of children as soldiers, particularly in the last stages of the war. It
has been estimated by a respected Jaffna based NGO that in the final twelve hours of
the conflict the majority of the Tamil civilian casualties were caused by the LTTE.
42. This Commission is satisfied that the LTTE was principally responsible for the loss of
civilian life during the final phase of the armed conflict through their actions which
included:
Taking 300,000-330,000 civilian hostages.
Implementing a strategy of killing Tamil civilians to suit their military aims.
Using civilians as a strategic human buffer leading to considerable loss of
civilian life.
Using hostages to dig trenches and build fortifications thereby exposing them
to harm.
Sacrificing countless civilian hostages to keep the LTTE leadership in power.
Arming hostages and forcing them into the front line leading to the deaths of
large numbers.
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Forcing a great number of children to man the frontlines.
Deliberately preventing civilians, under their effective control, from fleeing to
areas away from the fighting and executing civilian hostages for attempting to
escape their captivity.
Shelling civilian hostages in order that the LTTE might assign those deaths to
the SLA for media purposes to provoke international humanitarian intervention.
Placing their heavy weaponry amid civilians making it inevitable that there
would be civilian casualties.
Killing civilians through the use of suicide bombers.
Placing mines and other explosive devices that resulted in civilian deaths.
Causing the deaths of civilians who drowned in an attempt to flee their LTTE
captors.
Adopting a practice whereby a significant number of its cadres fought in civilian
clothes, thus blurring the distinction between combatants and civilians
inevitably leading to civilian deaths.
For the above reasons this Commission is of the view that the principal reason for the
loss of civilian life during the final phase of the war was the hostage taking and use of
human shields by the LTTE. Indeed, in the absence of these actions, there may have
been a much reduced number of civilian casualties.
Overall Conduct of Government Forces
43. However, the Commission must accept that shelling by the SLA undoubtedly led to a
significant number of civilian deaths, but the Commission stresses this was an
inevitable consequence of the LTTE’s refusal to permit civilians to leave their control
in order to use them both as a shield and a pool for recruitment, even when the GoSL
permitted a ceasefire on April 12th. No government could be expected to permit young
children to be forced into the front line without taking all available measures to put an
end to such ruthless exploitation of a civilian population. The Commission has set out
in its report the independent evidence bestowing praise on the SLA for the manner in
which it discharged its duties in the years preceding the final stages of the war. In
particular, the SLA was commended for conducting a military campaign that minimized
civilian casualties. In early 2009, the Ambassador of the United States to Sri Lanka
and the United Nations Resident Co-ordinator recognised the caution exercised by the
Sri Lankan armed forces in keeping civilian casualties to a minimum and urged the
GoSL not to tarnish this reputation in the final stages of the conflict.
44. As regards the allegation that the GoSL wanted to conduct a ‘war without witnesses’,
the Commission notes that the US State Department has commented that both the GoSL
and the LTTE placed tight restrictions on the press. It is a well-recognised principle
that journalists can be excluded from conflict zones to protect military and national
security. Indeed, reasonable restrictions can be placed on their access to conflict areas
and they can also be excluded for their own safety. The Commission also finds that
while the Darusman Report concluded that government medical supplies and food were
grossly inadequate, as late as 7th April 2009, the UN were inaccurately estimating the
civilian population at only 100,000 persons. Furthermore, the Darusman Report failed
to analyse the manner in which the LTTE sought to sustain their own forced by gaining
access to food and medicines that were destined for civilians thereby increasing their
control over the civilian population and prolonging civilian suffering. The Report of
the Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka
(Petrie Report), by way of example does make mention of an allegation that the LTTE
may have sequestered 20% of all aid entering the Wanni. Indeed, the GoSL was
permitted to limit the passage of aid, if that aid was destined to be diverted to sustain
the LTTE. Therefore, it is the Commission’s view that there was neither an intention to
kill civilians through starvation, nor by deprivation of medicines so as to cause
deliberate civilian suffering. There may well have been a limiting of food and medicine
so as to deprive the LTTE from exploiting those items for its own purposes, thereby
hastening their defeat.
45. The Commission notes that the GoSL undertook the final stage of the military campaign
against the LTTE against the backcloth of many previous governments having failed to
bring the LTTE to a negotiated political settlement. The Commission is satisfied that
over the years, the LTTE used every ceasefire to resupply, rearm and upgrade their
fighting capabilities.
Command Responsibility
46. Under the international law doctrine of command or superior responsibility, military
and civilian superiors can be held responsible for the crimes committed by their
subordinates if they knew or had reason to know that the subordinates were about to
commit or had committed war crimes, and the superior failed to prevent or punish such
crimes.
47. It is clear to the Commission that this doctrine may be engaged as it concerns the
allegations relating to the ‘white flag killings’ of LTTE leaders and the images of
executions that have formed the subject matter of a series of Channel 4 television
broadcasts. The Commission is of the view, as found by the LLRC, that there are
matters to be investigated in terms of specific instances of deliberate attacks on
civilians. These matters must be the subject of an independent judicial inquiry. There
are credible allegations, which if proved to the required standard, may show that some
members of the armed forces committed acts during the final phase of the war that
amounted to war crimes giving rise to individual criminal responsibility. These include
such incidents as:
The allegations of ‘white flag killings’ which led to the deaths of Balasingham
Nadesan, the head of the political wing of the LTTE, and Seevaratnam
Pulidevan, the LTTE’s head of the peace secretariat and others who surrendered,
having allegedly been given assurances at a high level. The Commission is of
the view that despite some conflicting evidence, the underlying matrix is such
that these alleged illegal killings, together with other such killings of those who
surrendered, must be the subject of an independent judge-led investigation. To
that list for investigation, must be added the cases of all those who were hors de
combat and allegedly perished while in the custody of the SLA.
The alleged executions of individuals named in the various Channel 4
documentaries.
The disappearance of busloads of persons who surrendered in the last days of
the conflict. One such busload was accompanied by a Catholic Priest, Father
Francis.
The credible evidence that hospitals, both makeshift and otherwise, were
damaged by shellfire with civilian casualties to the point that this Commission
is of the view that, bearing in mind the special protected status accorded to
hospitals, there must be a judge-led inquiry into the circumstances attaching to
each individual case. However, the Commission has to balance these allegations
against the strong supporting evidence of the propensity of the LTTE to place
weaponry and indeed even a tank in close proximity to hospitals as confirmed
by the Darusman Report.
The Commission notes and believes it should underline the fact that the former
Commander of the Sri Lankan Armed Forces, now Field Marshall Sarath Fonseka as
recently as May 2015, has himself, welcomed the need for a war crimes investigation
into a number of incidents. In an interview recorded in the London Guardian newspaper
on 27th May 2015, Fonseka maintained his innocence while being cited as ‘accepting
that some crimes occurred during the war,’ albeit maintaining that such actions were
done by individuals rather than as part of any widespread policy by the SLA.
Genocide
48. The Commission rejects the suggestion that civilians were either targeted directly or
indiscriminately by the SLA as a part of an alleged genocidal plan. The term ‘genocide’
is often used in a political context but it is a legal concept with a very precise and
definite meaning and scope of application. Genocide involves a specific intent on the
part of the perpetrator to destroy in whole or in part a national, ethnic, racial or religious
group as such. In a recent judgment, the International Court of Justice rejected claims
of genocide by both Croatia and Serbia making it plain that the crime is only made out
if it is proved that the perpetrators acted with specific intent to destroy physically the
group concerned – ‘specific intent to destroy in whole or in part’. The evidential bar has
been set deliberately high for this most serious of international crimes.
49. This Commission refers in its report to a US diplomatic cable dated 15 July 2009, by
Ambassador Clint Williamson that cleared the SLA of crimes against humanity during
the Wanni offensive. Not only was the SLA cleared of crimes against humanity
according to Ambassador Williamson during the Wanni offensive, Jacques de Maio,
head of ICRC operations in South Asia, stated that any serious violations of IHL that
may have been committed by Sri Lankan forces did not amount to genocide. The
University Teachers for Human Rights (Jaffna) have similarly found that there is no
evidence of genocide in the final stage of the war by the SLA.
50. While there may have been long-standing practices of religious, ethnic and racial
discrimination carried out by various governments towards minorities, targeting that
group, even if for discriminatory reasons, is not sufficient to constitute genocide. On all
the evidence available, this Commission rejects the suggestion that the crime of
genocide was or may have been committed during the final phase of the war.
Accountability
51. This Commission finds that the Darusman Report, as well as other reports, have taken
a particularly narrow and restricted view of the obligation upon the GoSL to prosecute
international crimes. This Commission is satisfied that States and international
organisations have adopted a wide range of measures to deal with post conflict recovery
and that transitional justice admits of many mechanisms. The obligation to prosecute in
all circumstances has not yet become a part of customary international law. This
Commission notes that there is a general inconsistency among human right treaties as
to whether the duty to prosecute exists in all circumstances. Those conventions that
include an explicit duty to prosecute are limited in their application while those with a
wider application contain ambiguous language which could be taken to imply a duty,
but this is certainly not clear. While noting that the UN Charter places peace and
security at a higher level than justice, this Commission is of the view that in order to
achieve peace and reconciliation the issue of accountability on all sides of the conflict
must be addressed. It is for the political authorities to determine whether a South
African-style Peace and Reconciliation Commission without prosecution is the most
appropriate mechanism or if the Sierra Leonean model of combining the prosecution of
those ‘who bear the greatest responsibility’ coupled with a Truth and Reconciliation
Commission will better meet Sri Lanka’s post conflict needs….