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US continues to highlight civilian deaths in Sri Lanka: advocates global probe as devise for accountability.

Washington, April 8 -- The Office of Global Criminal Justice of the U.S. State Department, in its 04 April 2012 report on 'measures taken by the Government of Sri Lanka to investigate and hold accountable violators of international humanitarian and human rights law', dealing extensively on civilian casualties during final months (Jan-May 2009) of the battle does not fully believe the interpretation given by the LLRC report that the GSL took efforts to safeguard civilians.

Throughout the report the State Department's emphasis was the civilian casualties mostly caused by Sri Lanka's military while combating the separatist LTTE and whether the GSL took adequate measures for accountability and transparency of the final stages of the battle.

The report declares "The LLRC's recommendations fall short of fully acknowledging all credible allegations of intentional attacks on civilians by the GSL and LTTE. The LLRC report does not call for investigations into allegations of deliberate attacks on civilians in the Vanni other than the three instances briefly discussed in the report."

Continuing on the issue of civilian deaths the State Department refers to the LLRC report detailing the technological capabilities of the GSL to detect and distinguish civilians from the LTTE, including GPS and special reconnaissance missions into the Vanni, and its conclusion that the "the military strategy that was adopted to secure the LTTE-held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority."

Using this section of the LLRC report, the State Department determines "This conclusion, however, does not consider whether the government security forces properly used the capabilities examined in the report, whether attacks were directed at LTTE forces rather than civilians, or whether those attacks were proportional."

The State Department in its endeavor to address the unarmed civilian casualties in northern Sri Lanka battle field highlights a contradiction in the LLRC report itself about civilian deaths in this manner:

"The LLRC report concludes that the Sri Lankan security forces did not deliberately target hospitals and other humanitarian objects in the NFZs. For instance, the report examined an attack against the Vallipunam Hospital and IDP camp nearby on January 21, 2009, which killed over 40 civilians. The LLRC concluded that the origin of the shells could not be accurately determined, but did note that the LTTE were positioned 500 meters away from the hospital. The Commission also believed GSL statements that all patients had been moved from the Anandapuram Hospital before being fired upon by SLA forces, even though reports from aid workers and doctors indicated otherwise. Finally, the LLRC found no definitive evidence that the GSL was responsible for the shelling of Puthukkudiyiruppu Hospital (PTK). The report relies on the testimony of two doctors from PTK stating that no shells hit the hospital and that they did not know from where the shells came. On the other hand, the report also mentions the testimony of a government official being treated at PTK who testified that he and his father-in-law were injured in a direct hit to the hospital and the shell likely came from government forces."

Shelling of the No Fire Zones (NFZs)

The report compiled by the Office of Global Criminal Justice by its head Stephen Rapp who was in Sri Lanka in March this year as part of his investigative work questions the wisdom of the GSL in setting up or declaring the 'second' and 'third' NFZ when it was fully aware that the LTTE was using the 'first' NFZ to trap the unarmed civilian population as human fodder to attack the GSL military.

The report observes:

"At the end of the conflict with the LTTE, the GSL created a series of "No Fire Zones" (NFZs) aimed at providing civilians trapped in LTTE territory a safe haven into which government forces would not fire. On January 20, 2009, the GSL unilaterally declared the first NFZ (NFZ-1) located about 800 meters from the frontline. Even though the LTTE did not recognize any of the NFZs, the government claimed that it would continue to recognize the humanitarian spaces.

Within days of establishing NFZ-1, however, government forces began shelling within the safe area, reportedly because they had taken fire from LTTE forces within NFZ-1. A pattern soon developed in which the LTTE would use NFZ-1 to fire on GSL forces, and then GSL forces would respond with heavy shelling into NFZ-1.

Once it realized that NFZ-1 was not protecting civilians and was being used by the LTTE for cover, the GSL created a second NFZ (NFZ-2) on February 12, 2009. The same pattern of violence emerged in NFZ-2, however, and the government established a significantly smaller third NFZ (NFZ-3) on May 8."

An important question the LLRC raises but leaves unanswered is why the GSL created a second and third NFZ after becoming cognizant that the LTTE would exploit such zones to launch attacks, to which the GSL would respond, putting civilians in harm's way is what the State Department raises in its report.

The LLRC report recognizes a pattern in which the LTTE exploited the NFZs and civilians there to attack GSL forces and then force civilians to follow them to the next NFZ. This tactic of using human shields was expressly recognized in both the LLRC and (UN Secretary General's) POE reports. Despite its knowledge that the LTTE used NFZ-1 and the civilians therein as part of its military strategy and that the GSL would respond to attacks from the NFZ thereby harming civilians, the GSL unilaterally declared NFZ-2 on February 12, 2009 and NFZ-3 on May 8, 2009 the State Department concludes.

While noting that the LLRC concluded that security forces did not deliberately targeted civilians in the NFZ and that it also concluded the LTTE was responsible for the majority of the civilian deaths, the State Department however determined that "The LLRC did not make any recommendations to investigate who was responsible for the shelling of civilians in the NFZs."

The State Department depending heavily on the wisdom of the UN Secretary General's Panel of Experts (POE) used the panel's conclusions saying "Reports from the POE and the UN directly contradict the conclusions of the LLRC with respect to civilian casualties in the NFZs. The POE report concludes that credible allegations suggest that the GSL deliberately or negligently targeted civilians within the NFZs. For instance, in one incident on January 24, 2009, civilians and medical workers reported that hundreds of civilians died at a UN hub amidst intense shelling coming from government positions. LTTE cadres reportedly never fired within 500 meters of the UN hub, and because of GPS and reports to the GSL by the UN and ICRC, the government security forces were aware of the hub's location. The report also states that the civilians were capable of being identified by Unmanned Aerial Vehicles (UAVs) often used by the GSL."

What the State Department is saying is despite the GSL military forces had advanced technical knowhow to separate the civilians and the LTTE fighting cadre it deliberately attacked the civilians.

Having used this information and analysis, the report charges: "The evidence gathered by the POE and UNOSAT indicates that the LLRC report does not adequately address the responsibility for shelling in the three NFZs. While the LLRC report concludes that it is difficult to ascertain the origin of artillery attacks, the government nonetheless has a duty to investigate the alleged abuses committed by Sri Lankan armed forces in the NFZs."

The report further notes: "The LLRC did investigate several instances of such shelling, but its conclusion that attacks against hospitals simply represented a "confused picture" neglects the fundamental need to fully investigate potential violations of IHL. As these allegations implicate grave breaches of IHL, they merit full investigation and, if appropriate, prosecution of the responsible individuals."

Credibility & effectiveness of domestic investigative process

The Office of Global Criminal Justice of the State Department in its 04 April 2012 report to the US Congress has now questions the impartiality, credibility and effectiveness of Sri Lanka's presidential commission - Lessons Learnt and reconciliation Commission - and its findings that were released last November.

In introducing the panel of the LLRC it declares that "the LLRC members had an interest tied to that of the government in a particular outcome of the commission's work."

The report declares that the members of the commission were former Sri Lanka state employees giving their former titles. Even an incumbent US criminal justice professor on the tutorial staff of the University of Nevada Las Vegas (UNLV) who is a member of the LLRC is not introduced in the State department report using his current academic title instead his former GSL title in the 70's - assistant secretary of the Ministry of Justice - to insinuate his interest tied to that of the government which appointed him as a panel member.

In an endeavor to devalue the LLRC and then questioning its findings the State Department report strongly notes "There was no information that indicated that the GSL consulted with affected communities in selecting the commission members. Despite the high percentage of women and Tamils among those giving testimony, only one of the eight commission members was female (also the sole Tamil commissioner), and only one was from the Muslim community."

At the outset of the report in questioning the credibility and effectiveness of the LLRC, the US report systematically scrutinized its findings bringing discrepancies of the commission's deliberations and analyses, and highlighting contradictions in its own findings comparing with the information and data the state department possessed while using the wisdom of the UN secretary general's panel.

The most vital observation the state department report made, possibly clearing path for an international investigation, is when it declared:

"There are a variety of ways in which a government may undertake effective investigations and other accountability processes. While some international law conventions call for criminalization of certain human rights violations and serious violations of IHL, other routine administrative and special investigative processes, such as commissions of inquiry (COI), can play an important role in establishing a factual record of events. Although COIs and other investigative bodies are often implemented at the national level, in some instances governments seek international participation to bring specialized expertise into, and help foster public confidence in, so-called "hybrid" investigations."

They thus warns:

"Fully internationalized processes undertaken without the relevant government's consent have generally been pursued by the international community only when the State concerned lacks the capacity, political will, or both, to undertake an independent, credible, and effective inquiry. In the case of serious violations of IHL and human rights, including the type of atrocities alleged to have occurred in the final months of the conflict in Sri Lanka, however, such commissions do not obviate the need for criminal investigation and, if appropriate, prosecutions."

The United States expresses its skepticism whether a (domestic) commission of inquiry (COI) is capable of undertaking such a task in expressing "Whether domestic, international, or hybrid, investigative processes should operate consistent with best practices derived from extensive experience in order to be both credible and effective. There are several key criteria for evaluating the adequacy of a COI, including: independence and competence; adequate mandate and authority; witness and COI protection; adequate resources; a public report; and a timely and transparent government response."

Thus it justifies an international investigation if the GSL fails to undertake effective investigations and accountability process clearing a path for the international community to intervene whether Sri Lanka violated international humanitarian law (IHL), international human rights law (IHRL), committed war crimes or possible genocide.

Referring to the August 11, 2011 GSL report produced by the Sri Lankan Ministry of Defense entitled 'The Humanitarian Operation Factual Analysis: July 2006-May2009' report the State Department comments it" does not, however, address any of the alleged violation of IHL or IHRL identified by the POE or available in the public domain. Moreover, while the report contains a table summarizing major offenses committed by Sri Lankan security personnel between 2005 and 2010, the table identifies no recorded offenses for the year 2009, the period during which most of the allegations in the POE report fall."

In challenging the credibility of the LLRC report, the US says: "Sri Lanka has no witness protection laws, and there is no information that indicates that the LLRC developed a discrete program for witness protection. According to the recorded testimonies on the LLRC's website, the commission did allow and take in camera testimony at the discretion of the witness. Meanwhile, experience in other countries has shown that, absent such a program, witnesses, especially those victimized by recent conflict, are unlikely to come forward due to fears of arrest, personal harm, or harm to their families. A number of Sri Lankans informed Department of State officers that they, or people they knew, had declined to appear before the LLRC out of fear of retribution. Additionally, those that come forward publicly in Sri Lanka also run the risk of being branded LTTE sympathizers, heightening the likelihood of reprisal. Reporting by the International Crisis Group (ICG) and other international organizations appears to confirm that some individuals who testified before the LLRC have since received threats by the military."

In declaring that the LLRC did not address the violation of IHL and IHRL, and stating that the "Department of State is not aware of any form of action plan to implement the LLRC's final recommendations from November 2011 or its interim recommendations from September 2010", and determining that "There are several key criteria for evaluating the adequacy of a COI, including: independence and competence; adequate mandate and authority; witness and COI protection; adequate resources; a public report; and a timely and transparent government response," the U.S. Department of State seems to be clearing the path to effect an international mechanism - in the words of the US Office of Global Criminal Justice - "Accountability for violations of IHL and IHRL by both sides of the conflict is important to ensure justice for victims, to prevent a resurgence of violence, and for rebuilding Sri Lanka."

- Asian Tribune -

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Publication:Asian Tribune (India)
Geographic Code:9SRIL
Date:Apr 8, 2012
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