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Can HRW's interpretation holding Syrian civilians a war crime be applied to Sri Lanka?

2014 Aug 13

by Shamindra Fedinando

New York based Human Rights Watch (HRW) recently warned that holding of civilians could amount to a war crime.

The AFP in a Beirut datelined story quoted HRW’s Middle East and North Africa Director Sarah Leah Whitson as having said that individuals and countries that backed groups involved in hostage taking could be complicit in war crimes. Whitson was commenting on Syrian armed groups holding 54 persons, including 34 children hostages for an entire year to win concessions from the Syrian government, including exchange of hostages for detainees in state custody.

"Civilian lives are not pawns for fighters to trade. The hostages should be let go immediately," the AFP quoted Whitson as having said, while citing the Syrian government giving armed groups safe passage out of the besieged Old City of Homs in May this year in return for the release of 40 hostages as an example of the Opposition’s despicable strategy.

Whitson claimed that the HRW had identified several individuals, mostly from Gulf countries responsible for funding those fighting the Syrian government.

The UN, now investigating accountability issues in Sri Lanka cannot ignore HRW’s statement which dealt especially with the issue of hostages in conflict. In fact, other international human rights organizations backing UN war crimes targeting Sri Lanka cannot take a position different to that of HRW as regards the hostages crisis in Northern Sri Lanka during the last phase of the conflict.

The HRW statement was issued as fighting continues in Syria. The Sri Lankan government should ask HRW whether its position on the Syria hostage taking situation applies to war-time Sri Lanka too. Had HRW been genuine in its concern for those trapped between the Syrian army and armed groups funded by Western powers, how could it ignore the situation here five years ago?

However, HRW as well as other well funded international bodies dealing with accountability issues remained silent, though the LTTE had held the entire Vanni population hostage to discourage the Sri Lankan Army (SLA) from advancing on multiple fronts. There hadn’t been a previous instance of a terrorist group holding such a large group of civilians captive amidst a bloody high intensity battle. But Western powers chose to ignore the LTTE strategy as long as they believed the group had the wherewithal to halt the SLA advance on the Vanni east front.

Did the Western powers, the UN, foreign funded local peace merchants, the Tamil National Alliance (TNA) as well as all those demanding accountability on the part of Sri Lankan government for civilians on the Vanni front at least issue public statements urging the LTTE to release civilian captives? If they actually issued statements, when did that happen? Did Tamil media carry their statements? Did the Bishop of Mannar Rev. Father Rayappu Joseph request the LTTE to release the hostages? Did he at least urge LTTE leader Velupillai Prabhakaran to release children? Did anyone bother to ask EPRLF leader Suresh Premachandran, MP, whether he requested Prabhakaran to allow the ICRC to evacuate wounded LTTE cadres? Did one of the largest recipients of Norwegian funding, Jehan Perera on behalf of the National Peace Council (NPC) demand from Prabhakaran not to use children as cannon fodder, at least after the SLA evicted the LTTE from Kilinochchi and the entire stretch of the A9 road north right upto Elephant Pass in January 2009, hence making an LTTE fightback impossible.

None of those Diaspora spokesman dared to utter word, let alone request Prabhakaran to release civilians. Instead of urging the LTTE to either surrender or give up its civilian shield, human rights champions secretly urged Western powers to compel President Mahinda Rajapaksa to halt the final assault. In fact, even the last attempt made by the US and Norway to stop fighting was meant to save the top LTTE leadership trapped in the one-time LTTE stronghold, Mullaitivu, widely believed to be impregnable. The US-Norway project involved the Sri Lankan Air Force (SLAF) airlifting ICRC and perhaps top UN representative/representatives to the rapidly shrinking area under LTTE control possibly on May 17, 2009. The operation was intended to pave the way for the LTTE leadership to surrender to a ‘neutral third party.’

The SLA shot dead Prabhakaran on the morning of May 19 on the banks of the Nanthikadal lagoon.

A person who had even access to Prabhakaran, now backing an international war crimes investigation on July 30, 2014 told the writer: "Although the LTTE realized the pathetic ground situation it was facing, a section of the diplomatic community obviously believed in the theory propagated by a section of the media. Had they realized the gravity of the situation, they would have made an earlier bid to arrange a ceasefire between the warring parties. Both the SLA and the LTTE could have avoided thousands of deaths if Western powers managed to arrange a ceasefire to pave the way for the LTTE to surrender. But as long as they felt that the LTTE could somehow turn around the situation, they choose to ignore the carnage. Kumaran Pathmanathan’s move to arrange a ceasefire made in the late hours of May 16, 2009 apart of being too late, lacked the support of Prabhakaran."

His recent assertion is very much similar to that of one-time US defence advisor in Colombo, Lt. Col. Lawrence Smith who declared in June 2011 that there had never been a formal attempt to arrange a ceasefire between the SLA and the LTTE. The writer had dealt with this factor on numerous occasions over the past few years, though officialdom seemed to unaware of the significance of the US statement made at the inaugural defence seminar. Undoubtedly, it was the most important statement made at a defence seminar held in Colombo. The fourth edition of the defence seminar series will be held over a period of three days beginning August 18. Perhaps the SLA will exploit this opportunity to justify Sri Lanka’s actions before an international audience. May be the question and answer sessions can generate much more interest than actual presentations. The US defence advisor made his irrefutable statement during a question and answer session, much to the disappointment of the US State Department.

One-time head of Sri Lanka Peace Secretariat Jayantha Dhanapala in his lengthy submissions before the Lessons Learnt and Reconciliation Commission (LLRC) in late August 2010 explained the battlefield challenges during the final phase. Dhanapala, a retired diplomat of international repute declared: "We were very fortunate that in the end game of our conflict in May of 2009 we were able through the bravery of our own Army to save ourselves the possible holocaust of 300,000 civilians dying in the final stage. The earth bund behind which they were held as human shields was breached at great sacrifice by our Army and we were able therefore to minimize civilian losses. I do not think we have an accurate estimate as to what the civilian losses were in the cross fire but there were civilian losses. The tragedy would have been much greater if not for the bravery of our soldiers. But what if there was a tragedy greater than what happened. We would have been then denigrated in the eyes of the international community for no other reason but the fact that these civilians were being held as human shields."

The government didn’t realise the importance of this statement either. No government politician or an official had so far referred to  Dhanapala’s comment on the rescue operation carried out by the SLA. Strangely, the SLA had never used the veteran diplomat’s great comment to dispel accusations that it engaged in genocide. Could there have been a better rebuttal than Dhanapala’s, whose association with ‘Friday Forum’ as well as his criticism of government actions earned him respect from those wanting to undermine the Rajapaksa administration.

In spite of having undeniable evidence that the UN diplomatic mission in Colombo as well as the ICRC had been aware of the LTTE’s intentions to hold the Vanni civilian population in the midst of the war zone regardless of consequences, Western powers did absolutely nothing to thwart Prabhakaran’s plan. The LTTE went to the extent of preventing Tamils employed by the UN and other INGOs from leaving the area under its control as the SLA gradually pushed the LTTE on multiple fronts. The war wouldn’t have lasted nearly three years if the LTTE lost its civilian cover at an early stage of the Vanni battle. The writer revealed the LTTE’s efforts to keep the civilian population under its control at the onset of the SLA’s 57 Division launching operations on the ‘central front.’ None of those who had been demanding accountability for atrocities committed during the last phase of the conflict bothered about what was going on (LTTE detains UN workers-The Island -April 20, 2007). That exclusive report was followed by (‘UN had talks with Tigers on the sly-The Island-April 23, 2007, Lanka urges UN not to shield Tigers-The Island-April 25, 2007, UN HQ admits Colombo office kept it in the dark-The Island-April 28, 2007).

General Officer Commanding (GoC) of the SLA’s famous 58 Division Maj. Gen. Shavendra Silva asserted that the LTTE at a very early stage of Vanni battle realized that its very survival largely depended on the civilian population. Having realized that it couldn’t match the growing firepower of the SLA backed by tremendous SLAF capabilities, the LTTE forced civilians to accompany them as it retreated across the Vanni. The LTTE quite rightly believed that the heavy presence of civilians could greatly hinder deployment of heavy guns as well as air power (After the conclusion of the conflict, the ICRC too, acknowledged severe difficulties experienced by the SLA due the ‘civilian factor.’ This too, was revealed by Wiki Leaks). The fleeing numbers swelled as they retreated across the A9 road towards the Mullaitivu coast with thousands of families living in areas east of A9 joining them, Maj. Gen. Silva, Sri Lanka’s Deputy Permanent Representative in New York maintained. All available information, including US diplomatic cables originating from Colombo point to the fact that there hadn’t been a genuine effort on the part of Western powers to arrange a ceasefire until May 16, 2009. But that effort too, was meant to save the top LTTE leadership as revealed by a US embassy cable, the Gajaba Regiment veteran told The Island, adding that those concerned about the well being of civilians should have forced the LTTE to surrender soon after the SLA annihilated over 400 LTTE cadres, including many of its top commanders in early April 2009. Widely believed to be the worst debacle suffered by the LTTE during the entire conflict, the confrontation in the Puthukudirippu area should have compelled the LTTE to bring the war to end, said Maj. Gen. Silva. But the LTTE continued to resist for about seven more weeks believing help was coming from overseas, the soldier said. The diplomat said that he had never heard those shedding crocodile tears for civilians today urging the LTTE to release people, particularly children at least, when it was obvious Prabhakaran couldn’t turn around the ground situation.

The use of human shields here should be reexamined in the backdrop of HRW’s declaration that holding of civilians against their will is a war crime, Maj. Gen. Silva said. Unlike in some other parts of the world, the international community knew what was exactly happening in the Vanni as foreign representatives were given the opportunity to visit areas under LTTE control.

Thanks to Wiki Leaks we now know that the ICRC had CONFIRMED the LTTE’s strategic use/deployment of civilians in no fire zone/zones. Having met the ICRC’s Head of Operations for South Asia Jacque de Maio, on July 9, 2009, the then Geneva based US ambassador Clint Williamson revealed the unpalatable truth. Williamson quoted de Maio as having told him that the LTTE had tried to keep civilians in the middle of a permanent state of violence. The LTTE had considered the civilian population as a `protective asset` and kept its personnel embedded among them, De Maio was quoted as having said. "...the LTTE commanders’, objective was to keep the distinction between civilian and military assets blurred. They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter."

De Maio was quoted as having claimed that it would be hard to state that there was a systematic order to LTTE personnel to stick with civilians in order to draw fire. Civilians were indeed under `physical coercion not to go here or there,` he said. Thus, the dynamics of the conflict were that civilians were present all the time. This makes it very difficult to determine though at what point such a situation becomes a case of ‘human shields.’

To be continued on August 20

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