Army Inquiry on ‘War Crimes’ No Longer Credible

| by Laksiri Fernando 

( November 06, 2012, Sydney, Sri Lanka Guardian) Army spokesman Ruwan Wanigasooriya yesterday (5 November) told Xinhua newspaper that the army investigations into some incidents or alleged ‘war crimes’ still continuing. This is the first time for a long period that we heard about it after its so-called appointment in January this year. There must be a particular reason why the statement was made to the official press agency of the People’s Republic of China instead of local newspapers or any other. It appears that even China is watching what is happening in Sri Lanka, as it has to unfortunately defend Sri Lanka and that means the present government in the Security Council and other forums.  

I was one who initially questioned the need for an ‘international inquiry’ on alleged war crimes in Sri Lanka in view of the army appointed court of investigation, but at present it is abundantly clear that the army inquiry is no longer credible given the above explained reasons.

I browsed through the Ministry of Defence website seeking some information. It is full of political propaganda for the Defence Secretary and the President, two of the three brothers who apparently govern the country, apart from some items still glorifying the war and news about the three armed forces. The latter might be quite permissible for a defence website compared to the atrocious political propaganda.  

Of course there was one portal titled “War Crimes” just above a bigger window on “LTTE Atrocities.” I was trying to find any news about the so-called army inquiry there, but none. It largely consisted of reports like “Humanitarian Operation: Factual Analysis,” “Sri Lanka’s Humanitarian Effort” or counter propaganda for the international accusations such as “Appalling Journalism – Jon Snow and Channel 4,” and “Lies Agreed Upon.” At last, there was an item called “Let’s Take Accountability Seriously,” and then I thought that might be the place to find some information. No, it consists of an article by The Nation newspaper dated 12 March 2012.  

The situation is the same in the Army website, although it is more professional than the Defence Ministry one. The question is why the inquiries are so secretive given the public importance of the matter, nationally and internationally. There is no question that the army did the right thing by defeating the LTTE militarily. But it should have been done respecting the international humanitarian and human rights law and laws of the country. Torture or killing of the unarmed or any such thing is not permissible even under the domestic law. There are so many other norms that the armies should follow under the international law. The protection of civilians is of paramount importance. Deviations or atrocities in other countries, including the US, or the atrocities by the LTTE are not an excuse. That is why the government declared a ‘zero civilian casualty’ policy in the first place. Now it should inquire with credibility whether that policy was adhered to and whether other violations of the international law have occurred. 

When the army inquiry was appointed in January, it was stated that the matters referred to in the LLRC report and accusations of the Channel 4 videos would be investigated. The UNHRC recommendations in March were much broader to investigate all accusations including what were highlighted in the UN Darusman report. But no new investigation mechanism has been set up outside the army inquiry. The government also has not shown any remorse on what happened or might have happened during the last stages of the war, as those are the direct responsibility of the present government. 

Some of the revelations or alleged revelations as to what happened during the last stages of the war are extremely shocking to say the least. The naked body of Isaipriya among others with audio voices of army personnel, bullet ridden body of a child who is alleged to be Prabhakaran’s 12 years old son and the video footage of the questioning of the LTTE leader Ramesh after capture and then the pictures of his battered body are some clear examples. These cannot be condoned just because they were linked to the LTTE. In ordinary parlance these are called sahagahana aparada or ‘unforgivable crimes.’ Even if one may argue cynically that the videos are completely doctored; these are matters to be investigated. Anybody who supported the government in good faith in defeating the LTTE, like me, cannot condone these crimes. More profound matter is the credible allegations as to the shelling of the civilian areas (including hospitals) even when the demise of the LTTE was abundantly clear. The quoted numbers may be controversial (between 10,000 and 40,000) but the matters need to be impartially and transparently investigated.

The deeds of ‘Good Samaritan’ during the war perhaps by some of the soldiers are not excuses to hide the crimes committed even by a few. There is no reason to delay or not to investigate these allegations credibly unless the high command or the government is clearly responsible for these alleged crimes. The government’s credibility is becoming more and more suspicious because of the way the government is handing human rights and justice issues since the end of the war in the country. Development or even resettlement/rehabilitation is not enough fig leaves to hide them.  

According to what the former Attorney-General Mohan Peiris told Xinhua newsagency on the same day (5 November), the Army Court of Inquiry has had only 50 sittings for the whole of last ten months. That is little more than one sitting per week. It has only recorded statements from only 20 witnesses. These statistics speak very poorly of the so-called investigations now going on or claimed to be going on. It is not clear how many cases or incidents that they have been investigating. All these are kept as guarded secrets. That is why these investigations are considered like ‘asking evidence from robber’s mother’ (horage ammagen sakki aheema). It should be kept in mind that these are only preliminary inquiries. For any military prosecution, the cases have to be filed before the General Court Martial. 

It is possible that some cases may be filed before the General Court Martial in view of the next UNHRC sessions in March 2013 as a show case. But this is not what the UNHRC Resolution expected from Sri Lanka on the issues of accountability. By the time of the resolution, the UNHRC knew about the army inquiries and what they wanted was not selective inquiries. The resolution ‘called upon’ the government “to take all necessary additional steps to fulfil its relevant legal obligations” including accountability and ‘requested’ the government to “address alleged violations of international law.” The diplomatic language in the resolution would not be an excuse for Sri Lanka to take the recommendations leniently.   

The UN itself is ‘soul-searching’ on what happened in Sri Lanka and its own mistakes during the crucial days and a report on the subject by Charles Petrie will be submitted to the Secretary General next month. Marzuki Darusman is still heading an expert panel on Sri Lanka advising the SG and has recently said that accountability in the case of Sri Lanka primarily means “what happened to the 40,000 civilians” (Daily Mirror, 5 November 2012). 

I was one who initially questioned the need for an ‘international inquiry’ on alleged war crimes in Sri Lanka in view of the army appointed court of investigation (Asian Tribune, 20 February 2012), but at present it is abundantly clear that the army inquiry is no longer credible given the above explained reasons. While it is primarily the responsibility of a credible government to investigate what happens within its jurisdiction in respect of war crimes and/or violations of human rights, if that government fails to do so within a reasonable period of time with credibility and impartiality, it rests upon the international system (UN, ICC and other bodies) to do so or otherwise justice would not be done to the victims, the perpetrators would go scot-free and the necessary lessons would not be learnt.