In October, a member of the House of Lords took to their feet in Parliament to argue that the UK Government, and other members of the international community, should abandon their long-standing and hard-fought push for accountability in Sri Lanka. Over half a decade of work for the creation of a mechanism that would bring to justice the perpetrators of war crimes and mass atrocities had, the member suggested, been based on a misapprehension. Not only, on his count, had Sri Lanka’s recent spectacular progress in dealing with the past obviated the need for action; the Peer also claimed to have unearthed ground-breaking new information, from a reliable source, that ought to demolish the very foundations of the call for justice – specifically, figures from a UK military official placing the total number of estimated civilian casualties during the final stages of the war at a mere fraction of the most widely accepted range of 40,000-70,000, as well as statements suggesting that members of the Sri Lankan armed forces be exonerated of criminal wrong-doing.
If only it were so. Unfortunately, however, the rationale for the establishment of a credible justice process in Sri Lanka remains as pressing as ever. As we demonstrate below, these latest ‘revelations’ fail to counter prevailing UN estimates of civilian casualties, or to challenge existing UN accounts of the manner in which civilians died.
The international community, and those within the Sri Lankan government concerned with building a genuine and lasting peace, ought to act swiftly and decisively to contain those now determined to use the latest intervention to undermine the call for justice from war-affected Sri Lankans.
Where did the information come from and what does(n’t) it tell us?
The information cited by the Peer, Michael Morris (or ‘Lord Naseby’), derives from what we are informed are 39 heavily redacted pages of war-time diplomatic despatches between the former British Defence Attache in Sri Lanka, Lieutenant Colonel Anton Gash, and the UK Foreign Office, as obtained through a Freedom of Information request. Unfortunately, an email invitation to Lord Naseby to share the full despatches with us was not taken up, so we are left only with those quotes from the despatches selected by him during his speech. We address them in turn below.
New civilian casualty figures?
Most significantly, the Defence Attache is quoted by Lord Naseby as stating, on 26th April 2009, that the total number of civilians killed between 1st February and 26th April stood at 6,432. Based on this, Lord Naseby argues that the “UK must now get the UN and the [UN Human Rights Council] in Geneva to accept a civilian casualty level of 7,000 to 8,000, not 40,000”.
The Defence Attache’s figure is presented by Naseby as new and distinct from other estimates of civilian casualties to date. However, it is not. In fact, as evidenced by this Guardian report from 2009, it is merely a snapshot of figures compiled over a much broader time-frame by the UN Country Team in Sri Lanka, which placed the total number of civilians killed between August 2008 and 13th May 2009 at 7,721. This estimate has been in the public domain at least since 2011, when it was cited by a Panel of Experts appointed by the UN Secretary-General to look into the final stages of war. Their report found 7,721 “likely to be too low” an estimate of civilian casualties – highlighting the “quite conservative” methodology deployed by the UN Country Team in arriving at the figure, and pointing out that the counting of the dead by UN Country Team staff had stopped several days before the war actually came to an end, “when the number of civilian casualties grew rapidly”.
The Panel of Experts, with both the benefit of hindsight, and access to a far broader range of information and witness testimony not available to the UN Country Team during the final stages of the war, went on to state that “multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out at this stage”. A further internal UN report in 2012 highlighted credible information “indicating that over 70,000 people are unaccounted for”.
These later UN estimates, which together indicate that the range of civilian deaths probably lies somewhere in the range of 40,000-70,000, remain the most credible to date. The suggestion by Naseby that – having highlighted a mere portion of the evidence base which informed them – they be revised downwards, is simply incoherent.
“A much cleaner war”
In addition to the numbers he cites, Naseby highlights three specific statements from the Defence Attache in support of the view that allegations of serious human rights violations by the Sri Lankan security forces be dropped. They include the following:
- “No cluster munitions were used” (20 January 2009)
- “IDPs [internally displaced persons] being cared for in Trincomalee. Welfare appears to be overriding security considerations” (16 February 2009)
- “It is not possible to distinguish civilians from LTTE cadres as few are in uniform” (28 January 2009)
Setting aside the fact that we lack the totality of the despatches needed to properly contextualise and evaluate the statements, it again remains unclear why the observations of a single official – several months prior to the end of the war, and at a time when information flowing from the war-zone was tightly controlled by the Sri Lankan government – would refute the conclusions of several later comprehensive UN investigations. These investigations, drawing on a much broader pool of evidence, found that allegations concerning the conduct of the Sri Lankan armed forces (and indeed the LTTE) would likely amount to war crimes and crimes against humanity if established in a court of law.
Nor is it clear why Lord Naseby choses to ignore the way in which those UN investigations, and indeed many other reports since, directly challenge the substance of the three particular statements he cites and his interpretation of them. For example, on cluster bombs, the October 2015 report of the UN High Commissioner for Human Rights (‘OISL’) cited multiple witnesses, including medical professionals, as testifying to their use, and on that basis stated that “further investigation needs to be carried out.” That call gained renewed intensity in 2016 after images of cluster munitions unearthed in the so-called ‘No Fire Zones’ were leaked by a former employee of the Halo Trust, a de-mining organisation whose work Naseby has regularly commended.
Similarly, on internally displaced persons, the contrary evidence presented by subsequent UN investigations with regards to their mistreatment, and indeed targeting, is overwhelming. To take but one of many examples, the OISL report describes the repeated shelling between 21-22 April 2009 of a church compound and medical facility packed with over 1,000 sheltering IDPs. A humanitarian worker described the aftermath of the attacks: “it was a terrible sight: There were body parts blown everywhere. I even saw hands hanging on the trees. I saw human body parts all over the vehicles.” The report goes on to describe in detail the government’s systematic denial of life-saving food and medical supplies from those fleeing the conflict zone, in clear breach of international humanitarian law.
Finally, the Defence Attache’s observation about the difficulties faced by the Sri Lankan armed forces in differentiating between LTTE combatants and civilians is certainly one that is well founded, with several other accounts (including the various UN reports) clearly corroborating the way in which many LTTE fighters failed to wear uniform. Yet Naseby’s apparent interpretation of what this means – that the Sri Lankan armed forces were therefore exempt from having to make the distinction when directing their fire – is not. As both those UN reports, as well as a number of excellent independent legal analyses, have made clear, this view is based on a basic misunderstanding of International Humanitarian Law: even in circumstances where it is very difficult to distinguish between civilians and combatants, the parties to a conflict are not relieved of the obligation to do so.
The response – and how to respond
As indicated above, the sheer flimsiness of Naseby’s ‘revelations’ would ordinarily dictate that his latest intervention, like so many of his earlier ones in Parliament, be disregarded. Yet, the fact his statement has so energised those opposed to a meaningful accountability process cannot be overlooked – and requires a firm response. Despite the initial publication of an obliquely worded letter from the Ministry of Foreign Affairs stating, quite rightly, that the government of Sri Lanka would not use Naseby’s statement to lobby to reverse its international commitments on accountability, last month saw both the Minister of State for Foreign Affairs, as well as the President, pay their personal thanks to him for his intervention. Perhaps most worryingly of all, last week, the Foreign Minister suggested that the government could use the latest information disclosed by Naseby “as an ace” with which to counter international pressure on accountability.
The response of the international community has, so far, been muted – perhaps itself a reflection of the hollowness of what Naseby claims to have revealed. Yet all concerned with building a sustainable peace in Sri Lanka, inside and out, must be careful to avoid being bystanders whilst such baseless revisionism emboldens those who would deny justice to tens of thousands of Sri Lanka’s war victims. As we look ahead to an important session for Sri Lanka at the UN Human Rights Council in March 2018, member states ought to make absolutely clear – both in public and private – that they affirm the findings of the UN’s major independent analyses of the final stages of the war, and that further attempts to distort history as a strategy for rejecting an accountability process will not succeed. The denial of the past cannot, and must not, be a substitute for dealing with it.
 Lord Naseby did initially respond to our request by indicating that the despatches were now available in the public domain online – however, they do not appear on the FOI responses directory (on which they are not published as a matter of course by government departments). A further request to furnish us with a weblink was not taken up by Lord Naseby, who also stated that he was not in possession of an electronic version of the documents. Our latest email to Lord Naseby suggesting he try using a scanner or photocopier had not, at time of publication, been met with a response.
 Other highlights include a defence of the 2013 impeachment of Chief Justice Bandaranayake by President Rajapaksa, which was ruled unconstitutional by the Supreme Court: (“As to the Chief Justice, all I can say to my noble friend is that I am not a lawyer. However, I have now checked the constitution and there is provision in it for the Chief Justice to be removed, and that provision has been followed”); as well as the suggestion, in October 2013 – a year which saw multiple physical attacks on Jaffna based newspaper Uthayan – that “there is no censorship [in Sri Lanka]”.
 To many observers, such statements will be reminiscent of the government of Sri Lanka’s earlier tactic of ‘road-testing’ the dilution of its international commitments on accountability. As was seen following the adoption of Resolution 30/1 at the Human Rights Council in October 2015, which mandated the creation of a Special Judicial Mechanism with significant international involvement, early statements from the President suggesting that international participation in such a mechanism was not required quickly gave way to wholesale pledges that no Sri Lankan soldier would ever testify before any kind of tribunal.