Serious flaws in Ban Ki-moon panel report

(April 24, Colombo, Sri Lanka Guardian) The key allegation in the Ban Ki-moon panel report on Sri Lanka is the shelling of civilian targets and hospitals during the last phases of the war. Of paramount importance is the methodology used by the panel in collating their information. An account given on pages 20 and 25 of this report states very clearly that the UN and other INGOs had left the LTTE held areas by the end of September 2008 and from that moment on there were no continuously present international observers in the Vanni. The last UN officials who transported food into the Vanni left on January 29, 2009, and the Last ICRC international staff were evacuated from the Vanni by ship from Puthumathalan on February 10, 2009. Thereafter, until the end of the war, only the ICRC would have access to the Vanni and that too took the form of a few ICRC officials disembarking on the Puthumathalan beach to bring food and take away civilian patients by ship.

If there were no international observers in the LTTE held area after February 10, 2009, who were the sources of information the panel has relied on to frame their allegations? The panelists say on Page 21 that "there were reports emerging via text messages, emails, phone calls and other sources originated from national staff of international organizations, religious leaders, local government employees, doctors or Tamil Net, a pro-LTTE website. But all these sources were Tamil and regularly contested or dismissed by the government." Speaking of the methodology by which they arrived at their conclusions, on page 40, they say that: "If an incident could not be verified by three sources, or could have been double counted, it was dismissed. Figures emanating from sources that could be perceived as biased, such as Tamil Net, were dismissed as were government sources outside the Vanni."

Thus the panelists would have us believe that Tamil Net was the only pro-LTTE source of information and that all other sources in the Vanni who sent them information especially Tamil government servants, were pristinely impartial. This is a major methodological error which calls into question the entire report. Reports by Tamil government servants were deemed to be reliable when they were under LTTE control and unreliable when the same individuals came under government control again. On page 39, the panelists assert that the doctors who had been in Puthumathalan were speaking the truth when they were under LTTE control and were lying ‘under pressure’ after they came under government control again. Their assumption is that people under the LTTE had the freedom of speech and expression while those in the government held areas did not.

Faulty methodology

Thus the LTTE which was designated in 2008 by the FBI as the world’s deadliest terrorist organization outranking even Al Qaeda, becomes an upholder of the freedom of expression as against a UN member state which is also Asia’s oldest democracy, and has seen ten peaceful changes of government since independence and has enjoyed universal franchise for eighty years!

We in Sri Lanka know that very little unbiased information came out of areas under LTTE control. This is not a point that needs to be laboured. The UN should know this too, because even the UN’s Tamil staff were completely under LTTE control and were not allowed to leave the Vanni when the UN pulled out as the Moon panel itself states on page 21. In late 2005, Phillip Alston, the UN Special Rapporteur on Extrajudicial Executions was in Sri Lanka and in his report he has spoken of the way the LTTE uses killings as a way of enforcing their writ over the Tamil people. One of Alston’s key recommendations was that Western countries should persuade the Tamil diaspora to exert pressure on the LTTE to change this practice of killing and intimidating the Tamil population under their control.

One of the few Tamil organizations over the years to challenge this culture of fear (They were able to do so because its key members lived in exile outside the north) - the University Teacher’s for Human Rights - Jaffna (UTHR-J) has written of the control the LTTE has always exerted not only over the Tamil people but over government servants in areas under their control in the following terms –

"In Jaffna, it (the LTTE) virtually controls the Sri Lanka police, administrators, local councils and educational officers. It controls schools and through the education department Batticaloa, has distributed portraits of Prabhakaran to be hung in schools in lieu of the head of state." (UTHR-J Information Bulletin No: 30 December 3, 2002)

"Controlling village headmen (Grama Sevakas) is also to control the people. The government’s social welfare measures, ration cards, identity cards, and voters lists are all routed through the headman. From the 1990s the LTTE has used the headmen under its control to police the people, force them to attend demonstrations, perform compulsory military service as auxiliaries, impose punitive cuts of rations, diddle government aid and report on those coming in and going out." (UTHR-J Information Bulletin No: 39 Nov. 1, 2005)

That Tamils under LTTE control had no choice but to toe the LTTE line is a well known fact, and to expect an unbiased flow of information in such circumstances is a major methodological error by the panel. The narrative in the panel report on ‘credible’ allegations against the government begins with the first hand experiences of two UN international staff who illegally set up a ‘UN hub’ in Suthantirapuram, which we discussed last week. From first hand experiences, the narrative moves on to information provided by unnamed sources. Even the foot notes give no indication where or from whom this information was received. Even though the panel report tries to establish the legitimacy of this information by repeatedly using the word ‘credible’ all material coming out of LTTE held territory was ipso facto tainted.

High handed action

Even this ‘UN hub’ referred to in the report’s narrative, should never have existed. The UN left the Vanni at the end of September. Thereafter, they sent food convoys deep into LTTE held territory and came back to base in Vavuniya after each trip. On January 16, 2009, however, a food convoy had gone to Puthukudirippu and unloaded the cargo but the seven UN international staff had been stuck there for four days because of fighting further up the road. On January 21 however the convoy was able to return to Vavuniya and five of the seven international staff went back while two stayed back.

These two international UN staffers then proceeded to set up a ‘UN hub’ in Suthantirapuram which was not authorized by the government. UN General Assembly resolution A/RES/46/182 of 1991 which governs the issue of humanitarian assistance, states the following very clearly:

"Article 3: The sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the United Nations. In this context humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country."

"Article 4: Each State has the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory. Hence the affected state has the primary role in the initiation, organization, coordination, and implementation of humanitarian assistance within its territory."

What this means is that UN personnel can’t just set up ‘UN hubs’ as and when they feel like it. Despite the fact that the LTTE ignored the declaration of a no fire zone on January 20, 2009, the two UN staffers proceeded to set up an unauthorized ‘UN hub’ right in the path of the army when the panel report itself says, ‘a large offensive on Puthukudirippu seemed imminent’. According to the panel report, the first no fire zone was only 800 meters away from the advancing army. To make matters worse, the LTTE was also firing upon the army from the no fire zone and the vicinity of the unauthorized UN hub. If not for that UN hub which attracted civilians with handouts, they would have been dispersed and out of harms way.

Apart from the fact that the UN hub itself was unauthorized and located deliberately between two hostile military forces, the two UN personnel responsible did not follow the basic rules laid down by the UN for humanitarian workers in coordinating with military forces in conflict areas. The UN has issued a ‘Civil-Military Coordination Officer Field Handbook’ to those involved in humanitarian operations in conflict situations. This document stresses the need for "structured and formal interaction with the military forces" and stipulates among other things that before a mission, the official concerned should confirm that country security clearance has been granted. Then immediately upon arrival they should make a courtesy call on the local military commander and find out among other things, the military unit’s ability to support humanitarian activities. Then the UN workers have to "carefully manage expectations on both the civilian and military sides and find opportunities to present the humanitarian view point and advocate for humanitarian principles and humanitarian space". This UN handbook also advices UN officers to be prepared to explain to the local military commander, their mission, key terms of reference, and who they represent and report to etc.

None of these procedures had been adhered to in establishing that arbitrary UN hub in Suthantirapuram. All they had done was to set up shop and relay their coordinates to the army! The first thing that has to be done by the UN, is to charge the two UN officials responsible for putting Tamil civilians in harms way by setting up an unauthorized hub between two warring forces and attracting civilians into the no man’s land. On Page 24 of the panel report, it is said that the UN personnel tried to get the army to stop their shelling. Interestingly, they do not say that they even attempted to get the LTTE to stop shelling the army from near the ‘UN hub’.

The hospital routine

Apart from this first hand account from UN officials about what happened at the unauthorized UN hub, the rest of the narrative in the Moon panel report is based on unspecified sources under LTTE control. There are several reports of hospitals being attacked. It begins with the Udayarkaddu hospital on January 24, 2009, and then continues on to the Puthukudiirippu, Puthumathalan and finally the Mullivaikkal hospital. The panel in fact says that: "Throughout the final stages of the war, virtually every hospital in the Vanni, whether permanent or makeshift, was hit by artillery. Particularly those which contained wounded LTTE were hit repeatedly." (Pages 23-24)

Hospitals have always figured prominently, in LTTE propaganda. There were two ways of doing it. One was to provoke actual attacks on hospitals and the other was to falsely claim that an attack had taken place. They even used it to turn Tamil Nadu opinion against the Indian Peace Keeping Force in the late 1980s. For example, an official statement of the Indian External Affairs Ministry issued on August 17, 1989, read as follows:

"A group of LTTE militants under cover of darkness sneaked into a civilian hospital in a heavily populated area of Mannar, broke open the windows of the main hospital building and in utter disregard for the patients opened fire on an IPKF picket which was in the vicinity of the hospital for security and policing duties. The LTTE used rocket propelled grenades, rocket launchers and machine guns against the IPKF. But the IPKF soldiers in deference to the inmates of the hospital, did not use heavy weapons to retaliate. As a result, 24 IPKF soldiers were killed and a portion of the hospital along with a temple in the vicinity were damaged. The hospital was one of the biggest in the northern province and had 200 beds. It had 89 patients and a large number of staff at the time of the incident."

"The hospital was used with total disregard of the 89 patients within. Since the IPKF could not retaliate, they suffered heavy casualties. There is a clear political motive to disrupt the IPKF and to bring it into disrepute, to demoralize the civilian population and to jeopardize ongoing Indo-Sri Lankan talks."

This is just one example; there were many such incidents involving the IPKF. Since this was a tried and tested trick in the LTTE repertoire, they applied it to the final war as well. They started with the falsehood approach first. The saga of the Puthukudiirippu (PTK) hospital is a case in point. According to the US State Department report of October 2009, the Americans first began getting reports of the PTK hospital being shelled when the army was barely out of Killinochchi over 30 kilometers away. The US State Department report begins its section on "Harms to civilians and civilian objects" with a report of "heavy shelling" of the PTK hospital on January 2, 2009 which killed an unspecified number of civilians. On January 12, the PTK hospital was allegedly shelled again, injuring two patients. The next day, January 13 it was hit again killing one patient and injuring six others. Patients fled to take shelter from the shelling. On January 28, there had been heavy shelling within one kilometer of the PTK hospital where at least 21 people had been killed.

The Puthukudiirippu hospital was not a major hospital with huge buildings like the Kandy or Jaffna base hospitals and these reported attacks alone should have been enough to completely flatten it and to make the staff and patients all flee into the jungles and refuse to come back. Because of these reported attacks, the Americans had taken satellite images of the PTK hospital on January 28, 2009, and to their surprise, the hospital "did not show visible signs of damage and appeared to be functioning"! What was remarkable is that despite repeated attacks of a magnitude that would have sent even the police or army scuttling into the jungles, the PTK hospital continued to function.

The American report continues: On February 1 the PTK hospital was shelled again just before midnight, and nine patients were killed and 15 seriously injured. Multi-barrel rocket attacks had been observed within 100 meters of the PTK hospital. On February 2 the PTK hospital was shelled again and the shelling continued for 14-16 hours. The hospital had sustained three direct hits in less than eight hours. Around nine people had been killed and 20 injured. The next day, the hospital was hit yet again destroying the operating theatre. The panel report says accusingly on page 26 that two international ICRC staff were on the scene when the PTK hospital was shelled on February 4.

Two paragraphs down on the same page, they admit that "the LTTE had fired mobile artillery from the vicinity of the hospital but did not use the hospital for military purposes until after it was evacuated". What happened is clear to anyone who knows the LTTE. Firing at the army brings retaliatory fire and when that is done in the presence of the ICRC officials there is authenticity given to their propaganda. According to Protocol II of the Geneva Conventions, even a hospital loses immunity from attack if used for an offensive purpose and it is hardly surprising if the LTTE fire was returned.

What the UN heard

Both elements of the LTTE’s standard operating procedure are visible in this instance. Up to January 28 there were four reports of attacks on the hospital, but the Americans could see no damage or disruption and neither the patients nor the staff had fled, obviously because the reported attacks were nothing but LTTE propaganda. According to both the US State Department report and the panel report, on January 29, the ICRC and UN evacuated the PTK hospital bringing 226 civilian patients with their family members to Vavuniya in a convoy of ambulances and buses. By this time, the Army had been on the verge of taking PTK town. After this evacuation, the hospital should have been closed.

But as the panel itself admits on page 26 of their report, LTTE cadres too were treated at the PTK hospital and these cadres were not allowed to go to Vavuniya with the civilian patients. After the civilian patients were evacuated, this became an LTTE hospital from January 29 onwards. The US State Department report says that on February 1 the LTTE had fired at the army from near the hospital. It was only on February 4 that the hospital was finally evacuated and the remaining (obviously LTTE patients) and captive staff taken to Puthumathalan on the coast.

After the evacuation of the PTK hospital, the panel says that a hospital had been functioning in Puthumathalan, a small clinic at Valayanmadam and another hospital at Mullivaikkal all within the second no fire zone along the coast. (Page 30) If these three were civilian hospitals, the report is completely silent on where injured LTTE cadres were treated. Civilian patients under LTTE control were regularly evacuated by the ICRC. According to the report itself, between February 10 and May 18, 2009, the ICRC removed over 14,000 civilian patients by ship from Puthumatalan and Vellamullivaikkal. Once again, LTTE casualties were not allowed to leave. The report does not say anywhere that there was a backlog of civilian patients that they could not remove. It says that the last three hospitals in the no fire zone were shelled, but without any independent information source which can vouch for the authenticity of the claim.

The report says on page 27 that the LTTE positioned their artillery among IDPs without specifying whether they located any near the hospitals as well. If they did, retaliatory fire has to be expected under Protocol II of the Generva Conventions. A curious fact that one notices in all the Western reports that have come out so far, the European Commission’s Interim Report of August 19, 2009, their Final Report of October 19, 2009, the US State Department report of October 2009, the International Crisis Group Report of May 2010, and now the Ban Ki-moon panel report, is that you never come across any report of an LTTE target being attacked by the army. No observer reporting on the war to the outside world, has ever seen any LTTE injured or any LTTE dead bodies. Reading these accounts, gives one the impression that the Sri Lankan government was fighting Tamil civilians and not the LTTE.

The US State Department report of October 2009, has 217 reports of "Harms to civilians and civilian objects" by both the government and the LTTE. Of this, 45 are violations ascribed to the LTTE. The remaining 172, fall into the government’s account. Of this, no less than 40 are direct attacks on hospitals (23% of the total). The LTTE’s control over information going out of the areas under their control was almost water-tight. The US State Department report has around 45 incidents of causing harm to civilians ascribed to the LTTE. However this does not mean that there was a free flow of information from LTTE areas and that people were free to complain about the LTTE to outsiders. Most of those negative reports about the LTTE had gone to the Americans through civilians who had just escaped from LTTE control. On close examination of the US State Department report, only one adverse report on the LTTE seems to have actually originated from within their territory. In contrast, almost all the reports of attacks on hospitals and other civilian targets by the army, had originated from LTTE areas.

In 2002, the US Defence Department prepared a top secret assessment of both parties to the war in Sri Lanka at the invitation of the Ranil Wickremesinghe government. Excerpts from this report which was issued by Peter Rodman of the US Defence Dept, was published in The Island in 2007. This is what the US Defence Dept said in that report, about the LTTE’s propagandizing:

"Prabhakaran uses deception as an intergral part of his modus operandi… Deceptive guidelines are given to LTTE cadres on how best to answer questions posed by the public and the media. Carefully worded guidelines are even provided to the Tamil diaspora over the internet on how best to respond to questions on the conflict posed by non-Sri Lankans. These guidelines are designed to portray LTTE cadres as freedom fighters pitted against a hostile and ruthless government."

This is why Western governments and international bodies like the UN have been hearing only about civilians and hospitals from their informants and almost nothing about the war between the SL armed forces and the LTTE. Except for the ‘UN hub’ incident discussed above and one ICRC report on shells falling into the Puthukudiirippu hospital following LTTE fire from the vicinity, all other information regarding attacks on civilians and hospitals in the Ban Ki-moon report has been obtained from LTTE controlled sources. This seriously compromises the integrity of the report.

Courtesy: The Sunday Island

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