The General (Retired) and the UN (Geneva)

"The defence could protest and the judge could ask the jury to ignore the question, but damage had been done, poisoning the minds of the jurors."
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By Nalin Swaris

(December 27, Colombo, Sri Lanka Guardian) Reports of the alleged killing of LTTE leaders Nadesan, Pulidevan their families and about 300 LTTE cadres as they attempted to surrender to the army have been in the public domain for over six months. The allegation was given world wide publicity by Andrew Buncombe in a brief report from Colombo to the British newspaper The Independent (19th May 2009) and by Marie Colvin in Timesonline (24th May 2009). Colvin’s report was repeated by University Teachers for Human Rights, Jaffna, together with, they say, their own additional investigations (Special Report No. 32, 10th June 2009).

Marie Colvin, it is well known, has been an ardent supporter of the LTTE for several years. By her own admission in her report (24/05/09), she arrived in Sri Lanka as a bona fide journalist eight years ago and was smuggled by Tiger agents into LTTE territory. She had met Pulidevan for the first time on that occasion. She previously recalled that when attempting to cross back into Government territory after night fall she was shot and wounded by the SL Army. She had managed to save her life by shouting, “ Stop! I am a journalist!”. She was arrested and deported. From her 24 May 2009 report it is clear that Colvin had maintained close contacts not only with the LTTE leaders in Sri Lanka but also LTTE leaders abroad, some as far away as South Africa and the Far East

The story of the surrendees was more or less in hibernation, until the 11th of December 2009. On that date, The Sunday Leader published on its front page in a screaming headline Gota Ordered Them To Be Shot with the byline EXCLUSIVE. What followed was purportedly a report of what the retired Army Chief Sarath Fonseka had told the editor of the newspaper Frederica Jansz, during a one on one interview. the General’s story with additional material giving plausibility to the allegation. There had been an arrangement for a group of surrendees led by LTTE leaders Nadesan and Pulidevan to surrender to the soldiers of the 58th Division. The editor gives a direct quote from opposition candidate, retired General Sarath Fonseka, “Later, I learnt that Basil [Rajapakse] had conveyed this information [about the agreement] to the Defense Secretary Gothabaya Rajapakse – who in turn spoke with Brigadier Shavendra Silva, Commander of the Army’s 58th Division, giving orders not to accommodate any LTTE leaders attempting to surrender and that “they must all be killed.”

The editor adds that Fonseka told her, “he later learnt about what exactly had taken place as a result of (sic) journalists who had been entrenched at the time with General Shavendra Silva’s brigade command. These reporters according to Fonseka were privy to the telephone call received by the Army’s 58th Brigade Commander from the Defence Secretary.”
This was apparently grist to the mill of UN Human Rights Commissioner Navanethem Pillay’s colleague, Philip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. He lost no time in writing to the Permanent Representative of Sri Lanka to the United Nations Office at Geneva seeking a clarification from the Sri Lankan government about “a recent statement made to the Sunday Leader by retired Chief of Defence Staff and former Chief of the Sri Lanka army General Sarath Fonseka.” Alston list three specific issues about which he seeks explanation. Alston notes that he awaits the government response since he is expected to report to the Human Rights Council about the allegation made by the General. The dice is rolling.

One might have expected Alston to check Fonseka’s allegation with his UN colleague Vijay Nambiar in New York who was involved in arranging the surrender, before dashing off his missive. He obviously thought that the General’s allegation was a grand opportunity to reopen a UN investigation about possible war crimes committed by the Sri Lankan Army and government. The letter was politely worded but it has a snooty undertone, ‘After all, Your Excellency, it’s the former top man of your army who is making this allegation.’

Besides, the Defence Secretary, the former Army Chief was indicting a heroic field commander of the war who led the longest ever march of the Sri Lanka Army in lashing rain across rice fields and jungles strewn with mines and booby traps over two hundred kilometers, winning battle after battle till the final defeat of the LTTE. Both were fingered as war criminals. The opposition friendly Sunday Leader splashed the story on its front page as if it was the scoop of the century.

The General and the Sunday Leader were no doubt taken aback by the near universal outrage the story provoked. The General had targeted the Defence Secretary with an IED (‘Improvised’ - sic - Explosive Device) but it had blown up in his face and the shrapnel hit his UNP and JVP champions as well. On Monday the General called a press conference and denied having made the damning allegation. He said what was published was an arthakathanayak – interpretation - of what he had actually said.

He demanded a rectification and threatened to take legal action if it did not. This put the Sunday Leader Frederica Jansz in a tricky situation. On being asked about Fonseka’s denial she told a television station that she stood by her story and said he had published exactly what the General told her. But it soon became obvious that the General the JVP, UNP and the Sunday Leader were engaged in a damage control exercise. People were waiting to see what the next Sunday’s Leader (20/12/09) would have to say about the controversy. It however ducked the issue even in its editorial. What appeared was a short ‘clarification’ by the General at the bottom of the front page.

A Clarification ?

The General’s follow-up statement appeared in the Sunday Leader of the 20th, under a subdued headline: “Clarification By General Sarath Fonseka On Our Lead Story On December 13.” This was a strange heading for what the General actually had to say. A clarification, as one understands its usage, is sent in by a concerned person to rectify a misleading statement attributed to him by a journalist, which is detrimental to his good name. Journalistic ethics requires the clarification be published and given equal prominence as the offending article or story. However, instead of a ‘clarification’ what was published was an entirely new statement in which the General carefully avoids any reference to his earlier damning allegation.

In his new statement the General then makes an astounding assertion: “I can speak conclusively and authoritatively on this particular issue and say categorically that nobody carrying white flags attempted surrender in those final days of the war. Therefore (sic) all of the LTTE leaders were killed …” And that was that!

The general continues, “Two days after the war ended I learnt through some journalists who were entrenched at the time with then Brigadier Shavendra Silva that an illegal order had been conveyed to General Shavendra Silva by Defence Secretary Gotabaya Rajapaksa. This illegal order was however not carried out at ground level. I take full responsibility for what happened on the ground.” Jolly good, Sir!

This is a remarkable 180 degrees about turn when compared to the December 13th allegation.

The so called ‘clarification’ is as clear as the muddy waters of the Nandikadal lagoon. Instead of clarity, the General’s new statement makes confusion doubly confounded. The Defence Secretary, the General asserts, had issued “an illegal order” but does not say what this order was. Is he suggesting that this refers to the earlier allegation that Defense Secretary Gotabaya Rajapaksa ordered Brigadier Shavendra Silva, Commander of the Army’s 58th Division that any LTTE leaders attempting surrender “must all be killed?”

But then, what must one then make of Fonseka’s categorical and authoritative assertion that nobody carrying white flags attempted to surrender? And that “therefore all of the LTTE leaders were killed …” for which he now takes full responsibility? If no one had come carrying white flags how could there have been “an illegal order” “to kill them?” Since the Sunday Leader published this so-called ’clarification’ where does it leave the editor and publisher of the newspaper? Considering his denial must one conclude that Frederica Jansz either made up the whole story or put a spin on what the General said, to incriminate the Defence Secretary and the Major General?

A Ludicruous Claim.

The General was asked to hand over duties as Army Chief around the 17th of July. He was promoted to the office of Chief of Defence Staff. He was not required to sever all ties with the Army, sent into some limbo and kept incommunicado from his officers. Now nearly seven months after the war ended he makes public something he had heard from unnamed “entrenched journalists”. The General did not fight on the front lines, but during the entire course of the war television news reports showed him meeting with his field commanders to review the progress of the war and to evaluate battle strategies. He says that he heard about the killing of the surrendees, two after days after the war ended, not from one of his officers but from journalists. This story is so ludicruous that it would have been greeted with a belly laugh if not for the gravity of what he alleges. Here is someone who by his own claims had been following the progress of the war, blow by blow, day and night. What had he done all these months about this rumour? Surely he must have sat down with his field commanders to get reports about the final battles that ended in total victory? At such debriefings why did he not check the veracity of journalist’s story with the relevant officers? Now he tells us “authoritatively” that no one came with white flags to surrender! The General was not on the spot, so how does the General know this, except from his field commanders? What must one believe? This or the hear say of embedded journalists? This is what any court of law would ask him. If one statement is true, the other must be false. The general cannot have it both ways. In the case of the first statement one is expected to believe that he accepted as true what he heard in a chit chat with journalists who are civilians. It is difficult to believe that journalists could have been privy to any conversation between the Defence Secretary and the field commander, as the General states. If this story is true, someone must have told the journalists after the event. What the General went public with, was based on unverified hear say. If the General did not check the veracity of the story he has been guilty of a serious dereliction of duty as Army Chief, since the journalist’s tale was extremely damaging to the Army. It is as if the General had smuggled a grenade out of the Army and was waiting to hurl it at an opportune moment!

Journalistic Ethics

The Sunday Leader editor, an experienced and seniour journalist, must surely have realized that the General’s claim was based on hear say, which in turn was hear say. Instead of being cautious she publicized it in screaming headlines - Gota Ordered Them To Be Shot - as if she was reporting a factual episode based on eye witness testimony. This is sensational yellow journalism. Even though the General’s second statement 20th December 2009 was a flagrant contradiction of his 13 December 2009, the editor made no attempt to explain this contradiction. It is she, more than the General, who should have published a clarification as her journalistic integrity and that of her paper have been seriously impugned by the General’s volte face. The paper owes it to its readers to explain which of the two items it published has to be believed. But there was no “We stand by our story” from the editor.

No Need for Panic or Frenzy

Philip Alston must be politely but firmly told that the General’s statement was based on hear say and would have no locus standi in a court of law; that he is on a fishing expedition when he demands or requests the government to initiate an inquiry about what the General has alleged. No credence can be given to it. Moreover, the General’s motive for saying what he said is suspect as he is now the very common candidate of the opposition. He is obviously playing politics. He is seeking to oust the President from power and become the Commander in Chief of the armed forces, in other words attempting a coup d’etat and regime change by electoral means. The General has recanted his allegation. Alston’s star witness has changed his story. But the General has done irreparable damage to his country and to the Army he once led. His allegation and the recantation is like the question put to a defendant by a prosecutor: “Have you stopped beating your wife?” The defence could protest and the judge could ask the jury to ignore the question, but damage had been done, poisoning the minds of the jurors.