The comparatively positive nature of the 2009 US State Department Report

Late in 2009 the US Department of State produced a ‘Report to Congress on Incidents during the Recent Conflicts in Sri Lanka’. The Report was shared in a very positive manner with the Sri Lankan government, and I regret very much that we did not immediately look into the matters it mentioned and produce a response to the US.

This was planned, and a Committee for the purpose was in fact appointed. I have no idea whether the general lack of urgency delayed things, but soon enough there were good reasons to feel suspicions about at least some Americans. The shenanigans with regard to General Fonseka were worrying, though I suspect we should realize that individual Americans may have exceeded their briefs in this regard. As with Sri Lankans, we cannot assume concerted policy in all cases where individuals go out on a limb, though again, as with Sri Lankans, the tendency to stand together leads to misunderstanding.

Still, we should understand that, at least in the American Defence establishment, there is a positive attitude to what we achieved. Indeed there is also awareness that excessive hypocrisy can be self-defeating, if ever international instruments subject America to the same relentless criticism some individuals apply to us, whether through self-righteousness or other more sinister motives.

Joanna van Gerpen meeting with S. P. Tamilselvan, the political leader of the LTTE, in Kilinochchi.

Joanna van Gerpen meeting with S. P. Tamilselvan, the political leader of the LTTE, in Kilinochchi.

What was interesting about the State Department Report was that it was balanced and indeed made clear the contribution of the LTTE to any abuses that might have occurred. Whereas some of those working for the UN took pains to suggest that government also bore some culpability with regard to child soldiers, the Report records 18 allegations about this appalling practice of the LTTE. Indeed if any blame should attach to the UN for its activities in Sri Lanka, it is with regard to the condoning of this practice by the UN in the years after the Ceasefire Agreement. The conduct of Joanna van Gerpen, who connived at the continuing recruitment of children over 17, with her failure to ensure proper use of the 1 million dollars that were given to the LTTE for rehabilitation, seems to me deplorable, and she should be deemed guilty by association at least of War Crimes, with appropriate recompense paid to those who suffered.

LTTE responsibility for civilian casualties

More telling, because unusual for a State Department Report, is the record of LTTE responsibility for civilian casualties during the last months of the conflict. There are 36 reports (or 35, since one may be a duplicate) of the LTTE forcibly holding onto civilians and moving them into more and more constricted areas. Several of these involve firing, with injuries and even deaths resulting. Nearly 200 deaths were reported as arising direct from deliberate LTTE targeting of the civilians it had kept hostage. These included children, beginning with a 7 year old girl in February. Astonishingly, this was not highlighted at the time, though it seems the UN had the information, and produced it much later, ‘in a July 1 report by the UN Security Council Working Group on Children and Armed Conflict’, when it could serve no purpose in terms of restraining the LTTE.

It should also be noted that, though the State Department Report does not mention this, the Jaffna University Teachers for Human Rights recorded a much larger number of civilians killed when they tried to get away – ‘The LTTE also for the first time, on 14th May, announced that civilians who wanted to leave could leave. However, there were some instances after that where they had ordered would be escapees not to do so. We reported in Special Report No.32 that a large group of civilians, who went to a palmyra nursery near Nanthikadal Lagoon before dawn on the 14th to cross to the other side or to Vattuvakkal to the south, were shot at by the LTTE killing about 500 of them. We have had further confirmation of this’.

This is appalling, but there were even more insidious incidents of murder. The US Report records eleven incidents (or perhaps thirteen, since there were a couple of reports of shelling from less than 500 metres, from directions that could have meant the LTTE was responsible) in which it was reported that the LTTE fired from near civilians and hospitals, or actually fired direct on the civilians they were holding. These were obviously designed to provoke the Sri Lankan forces into reacting. The first instance of this is reported as having occurred on January 27th, for which an article in the New York Times cites witnesses as saying – ‘Our team on the ground was certain that the shell came from the Sri Lanka military, but apparently in response to an LTTE shell…The team on the ground had suspected that the rebels were firing at government forces from close to where civilians were taking shelter.

Not entirely surprisingly, the Darusman report and Gordon Weiss, both of which make free with the New York Times to misrepresent something I wrote, omit this detail. The wording suggests that the witnesses were part of the UN team that had stayed on in the Wanni, and which Weiss cites as his chief source for horrors attributed to the Sri Lankan forces. Clearly the citations have been selective, though he does mention in passing that ‘the Tigers appeared to have ignored the brokered agreement meant to safeguard the wounded and medical staff’’.

Twice in February there were reports of LTTE fire coming from the Puthukkudiyirippu Hospital area, while in March, when the civilians had been herded into a strip on the coast, the LTTE was reported as having fired shells near the Puttumattalan Hospital. Meanwhile on February 18th the sources reporting on civilian casualties to the US embassy noted that ‘it could not be ruled out that the LTTE shelled civilian areas to assign blame to the SLA’. This suggests that the earlier technique, of provoking fire, had merged into actually doing the firing and then blaming the Sri Lankan army. This indeed is what the UN had suggested way back in January, on the first day on which there were reports of large numbers of civilian casualties. The UN Resident Coordinator informed us, having earlier thought that the Sri Lankan forces were responsible, that he believed most of the firing came from the LTTE.

The blind eyes of Weiss and Darusman

On April 22nd, it was reported that ‘a shell hit the roof of a small church packed with people…The witness sustained shrapnel wounds in his back. He believed the attack was committed by the LTTE’. This incident takes on added significance because the reference is probably to the Valaignamardam Church, which was used as a refuge for those escaping from LTTE conscription. UTHR recorded that in March the LTTE stormed the church to reclaim there victims but ‘ the victims evidently did not want to give up without a fight. The LTTE opened fire and killed four persons inside the church. As panic and terror spread the church emptied. One observer described the scene of wailing and mourning as one, whose profound imprint the shore and landscape would long remember. The LTTE brought a stream of buses, packed the young and moved them away in quick succession to Mullivaykkal’.

Gordon Weiss seems to ignore this incident completely, while the Darusman panel presents it in their usual anodyne fashion as far as the LTTE is concerned, with their usual lack of precision as to dates (unless indeed the incident occurred twice) – ‘On one occasion in mid-April, LTTE cadre, led by the former Trincomalee Political Wing leader known as Ezhilan, forcibly recruited hundreds of young people from Valayanmadam Church and put them on buses to Mullivaikkal’. The fact that the young people had initially gathered there for refuge under the protection of the clergy, and that some had been shot, is conveniently omitted.

Darusman also omits shelling of the church, which Tamilnet had alleged, claiming that ‘Rev Father James Pathinathar, a prominent Catholic priest was injured in SLA shelling that hit the Church in Valaignarmadam’. UTHR had a different take on what happenedSince the Army was expected to move south, many who wanted to get out of LTTE control remained in the church. Ilamparithy and Elilan once more came to the church and wanted the fathers to move to Mullivaykkal. The fathers refused. There was at this juncture nothing but mutual aversion between them and the LTTE. On an earlier occasion the fathers had wanted the LTTE to surrender in order to spare the civilians the enormous suffering imposed on them. The LTTE had become very angry’.

Tiger appropriation of nationalists until they offered resistance

It was in that context that UTHR reports that ‘On 22nd April a single shell fell in the church and Fr. James Pathinathar was injured’. About his they state that ‘Although wary of its totalitarian aims, nationalists generally avoided confrontation with the LTTE and were frequently cornered and appropriated by it’. Weiss evidently subscribed to this tactic of the LTTE, since he only mentions Pathinathan once, to say that despite problems with the LTTE he claimed that ‘”people here know they have more to gain from supporting the Tigers”’. The quotation is not dated, and nothing is said about the priest’s trials in March and April.

UTHR goes on to say that ‘After the last incident of shelling, a senior educationist who was a few hundred yards south of the church, told us that based on what the people gathered of the shell’s origin and trajectory, the general consensus was that the LTTE fired it. Another shell which fell the next day, led to the amputation of one of Fr. Vasanthaseelan’s legs. He and Fr. Pathinathar were subsequently removed by ICRC ship. Fr. Pathi is credited by several persons who were in the NFZ of having tried to protect would-be-conscripts.

The more than 3000 people remaining around the church and environs, including some Christian clergy and religious workers, were sent across once the Army moving south reached Valaignarmadam about 25th April. A person who stayed about 300 yards south of the church told us that on looking out of his bunker about 26th April, he saw a soldier near the church signalling him to come forward. Thus began his journey to an IDP camp and the end of the role played by Our Lady of the Rosary during those times’.

That narrative is perhaps the best comment on the relentless claims of TamilNet and Darusman and Weiss about government shelling of civilians. Given all this we should be thankful for the small mercies offered by the US State Department in bothering to record another side of the story.

LTTE shelling in the final days responsible for the majority of those killed

That Report goes on to say that, on May 9th, ‘Witnesses stated that the LTTE shelled from civilian areas. The SLA shelled, but once inside they helped to evacuate the civilians they had access to, including the injured. A local source confirmed that the casualties were mainly from SLA shelling, but the LTTE had also been firing at the SLA’.  This is certainly not a war crime, and is a far cry from the tactics used in other areas where the struggle against terror is conducted. And with regard to the final days of the battle, the Report records the adherence to humanitarian and legal norms when it states that ‘An organization reported that, at the beginning of the final operation, the SLA used shelling that resulted in some civilian casualties. However, the IDPs to whom the organization spoke were uniformly emphatic that the SLA shelled only in reply to the LTTE’s mortar and gun fire from amont the civilians. Civilians also said that on May 15 the SLA stopped shelling when the LTTE began destroying its own equipment. The organization also reported that some LTTE cadres were going to bunkers where civilians were sheltered, asking “So you want to run away to the army do you?” and then opening fire against them’.

This is bad enough, but the Report has an even more damning account for May 17-18 – ‘An organization reported accounts from IDPs of heavy fighting from the night of May 17 into the morning of May 18. The IDPs were certain, based on the direction from which the shells were coming, that a large number, perhaps the majority, of those killed in the NFZ during the previous 12 hours of fighting were killed by LTTE forces’.

Now we have to remember that all these are reports. There are other reports which are critical of the forces. How much credit we give to each report will depend to some extent on our personal perspectives. But there seems to be no doubt about certain basic facts –

  1. The LTTE kept civilians back forcibly

  2. It was prepared to kill those who resisted or tried to escape

  3. It conscripted civilians ruthlessly, including children

  4. It was prepared to kill those who resisted

  5. It fired from the midst of civilians and areas which should have been kept free of fighting

  6. It did this to provoke the forces into firing back

  7. It was prepared to have the civilians from amongst whom it fired killed

  8. It was prepared to risk damage to hospitals with concomitant loss of civilian life

  9. It fired into the midst of the civilians it was holding hostage

  10. Killing of the hostages increased over the last few months

Army efforts to minimize civilian casualties

This has to be taken in conjunction with the following facts –

  1. During the initial military operations, even taking TamilNet figures into account, there were hardly any civilian casualties

  2. On the first day that many civilian casualties were reported, the UN thought most of the firing had come from the LTTE

  3. There are several instances of the army refraining from firing on civilians even when provoked

  4. The army in many instances facilitated the escape of civilians

It is possible that individual acts of abuse occurred and, if evidence about this is proferred, alleged incidents should be investigated. But the list proferred by the US State Department suggests that much of what is reported  would come within the sphere of possible collateral damage resulting from the ruthless techniques adopted by the Tigers. I have looked elsewhere at allegations with regard to hospitals, and shown how repeated claims make it clear that hospitals themselves were not targeted, and indeed continued to operate after what were claimed to be several assaults. I believe comparison of the other incidents recorded with the pronouncements of TamilNet at the time of conflict will make it clear that in those instances too there is little evidence of culpability on the part of the forces. Taken as a whole the US State Department Report suggests that deliberate targeting of civilians did not take place, and the slow progress of our forces despite superior fire power makes it clear that we did our best to abide by basic norms.

Daily News 21 July 2011