The Nature of the Crimes to be Investigated
The war that had such a terrible human cost was declared as over by the Sri Lankan government on the 18th of May 2009. The war had started in July 2006. By April 2009, according to United Nations internal documents, air raids and use of heavy weapons were resulting in the death of 116 people a day. British and French mainstream media reported that during final few weeks, 20,000 Tamil people had been killed. There were numerous accusations that the Sri Lankan security forces were guilty of violating the Geneva Conventions on warfare and of having committed gross war crimes and crimes against humanity, particularly during the last 5 months of the war between January to May 2009 and generally in the previous 2 ½ years of the Governments declared its war to exterminate the LTTE.
The charges ranged from the security forces bombing civilian habitations, hospitals and other sites and also the government proclaimed ‘safety zones’ or ‘no fire zones’ – causing innumerable deaths of civilians, doctors and aid workers, depriving essential services like food, water, and health facilities in war zones and other grave crimes against humanity. Even before the war ended, UN agencies had been warning the Sri Lankan government about the impunity, the continued attacks on civilians by its armed forces and of denying aid to the local population, that was living in areas which were up-till then administered by the LTTE. However the Sri Lankan security forces completely ignored these warnings and continued their deadly assault. The immediate months after the war attention shifted to the plight of over 280,000 Sri Lankan Tamils forced to live in internment camps in the Vanni region. Densely packed in camps, with poor and inadequate infrastructure to provide safe food, water, sanitation and health facilities, the Government announced that they would be kept there until the IDPs were ‘screened’ for possible LTTE sympathisers. In the subsequent weeks, reports poured in of scores of Tamil youths disappearing from the camps taken away by security forces and government sponsored paramilitary groups. Hundreds are feared to have died. When there was an international outcry because the Tamil people were kept forcibly in these camps for more than 5 months the government announced that a significant number of them will be resettled. However it has been reported in the BBC and other news media that a considerable number of those released were simply moved into new satellite camps in little known areas. Even if released, the possibility that, at any time any one of them could be abducted and thereby join the 11,000 who are being held incommunicado is a threat that is constantly hanging over them. The Sri Lankan Government has always vehemently denied all wrongdoings on the part of its forces and have dismissed accusations as an attack on Sri Lanka’s sovereignty. It steadfastly refused to permit the media and other organisations, both national and international, including UN bodies from entering the areas and ascertaining facts by interacting with local people. In the Sri Lankan south, any call to critically examine the conduct of the war and the action of the Sri Lankan security forces against internationally accepted war conventions and human rights standards, is treated as treason.
The discrimination against the Tamil people and racial pogroms that they have had to suffer in the island, since Sri Lanka gained independence over 60 years ago has been well documented and available to all in the international community. But despite this, the powerful countries and the apex bodies of the international community has allowed the cry of the Tamil people, which started as a Gandhian non-violent protest for equal rights, to end in a blood-bath earlier this year. Geo-Strategic calculations guided by self-interest may explain why the powerful countries decided to ally themselves with the government of Sri Lanka and why organisations like the United Nations had to confined itself to routine warnings and was unable to take any concrete actions to prevent this massacre. And why, afterwards, when Tamils and human rights organisations demanded justice, the same bodies tried to cover their shame by recommending that the Sri Lankan government itself to carry out their own investigations! But how can a racially based massacre of this scale be ignored by civilised humanity?
It is the failure of the apex bodies of the International community to stop the massacre from taking place and its failure to investigate this serious injustice that necessitates an international opinions tribunal such as this. If, it is in fact the case, that tens of thousands of people were killed, just during the last days of the war – then how can the 280,000 Tamils who survived this experience deal with their trauma and recover if the truth is not investigated by any part of the humanity? Are they to think that they made a fatal mistake to live in the Vanni during the period of the Internationally backed peace process? Are they to think that they are themselves to blame for the death of their brothers and sisters because of their decision to live in the area administered by the LTTE?
If the reality of what happened is not seriously examined by any part of humanity – will it not mean that humanity itself is excluding Tamils from being part of it? At least by proclaiming the injustice there is a chance that the ‘defeat of the victims is not definitive’ and that ‘injustice is reversible, and that the past is redeemable’ (Giraldo). Without this how can there be any hope of progress for the Tamils – and for the Sinhalese.
The Tribunal is to examine the following:
1) Attacks on the civilian population:
‘Widespread or systematic attack directed against any civilian population’ is described by the ‘Rome Statute’ of the International Criminal Court as a ‘crime against humanity’. There is overwhelming evidence that the Sri Lankan armed forces have taken such actions. Use of heavy weapons and Air Raids: By April 2009, according to United Nations internal documents, air raids and use of heavy weapons were resulting in the death of 116 people a day. British and French mainstream media reported that during final few weeks, 20,000 Tamil people had been killed. Assertions that heavy artillery was not used against the people in the densely populated, government designated ‘no fire zones’, was contradicted by satellite evidence. Several video clips are available that show air raids and artillery fire and the terror it causes on the civilian population. According to Human Rights Watch, between 08th of December 2008 and 02 of May 2009, hospitals were attacked 30 times by the government forces. On the 2nd of February, when asked by the Sky News television, the defence Secretary stated that anything located outside the government designated ‘safe zone’ will be considered as a legitimate target.
Following the relevant provisions of the Rome Statute on direct attacks against civilians:
Article 7 – Crimes against humanity
1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
Article 8 – War Crimes
2.(e) (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
2) Using food and medicine as a weapon of war:
Rome statute on ‘crimes against humanity’ states: “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring
about the destruction of part of a population.
During the final stages of the war, the entry into the area that the Tamils were enclosed in,whether by sea or by land were controlled completely by the Sri Lankan armed forces. Therefore the obstruction free access to these routes for the purpose of providing food, water and medicine is the government’s responsibility. The International Committee of the Red Cross (ICRC) and other such international organisations were willing to provide these necessities. However, the Government of Sri Lanka used various ways to justify not sending food and medicine to the Tamil people in the Vanni. Firstly it proclaimed that the LTTE will take these supplies forcibly. Secondly the INGO’s that were engaged in attempting to supply humanitarian aid to the people were accused of smuggling arms and sustenance for the LTTE. For example, high protein biscuits for undernourished children by the ‘World Food Program’ was blocked in January 2008 by the Sri Lankan security forces. The Defence Ministry had blamed the WFP for supplying dry rations for LTTE. Tamils and Sinhalese who worked for the INGO’s were faced with continuous harassment and arrest.
Several Foreign Embassies have confirmed the international media reports that the Sri Lankan Ministry of Defence repeatedly blocked medical supplies arguing that these medicines could be used by LTTE to treat their wounded cadres. The deadly confusion created by the government’s dramatically deflated numbers is expressed by the report made by the ‘Centre for policy alternatives’ during the intense period of war in March 2009. “The total number of Internally Displaced Persons (IDPs) in the Vanni is also challenged by the Government which insists that there are only 60,000 IDPs. United Nations (UN) Agencies on the other hand initially calculated 200,000-250,000 and are currently in the process of examining if the figure is between 130,000 – 150,000. The District Secretaries of Killinochchi and Mullaitivu put the figure at around 400,000.”
It was not only the UN agencies that were obliged to ‘recalculate’ because of the Government’s brazen lies. Pranab Mukherjee, Indian Home Minister informed the Indian Parliament that there were only 70,000 civilians caught in the conflict zone.
If you take the governments figure of 280,000 people (some reports estimated the figure at over 300,000) who ended up in the camps at the end of the war, add to it the 10,000 people that the government admits to holding in ‘unspecified locations’ and the 20,000 that were killed only during the last few weeks (according to the British newspaper the Times) and the thousands who escaped
the island altogether – the Tamil Rehabilitation Organisation (TRO), and the District Secretariat for Mullaitivu and Killinochi figures seems to be the most accurate.
There is strong evidence to show that the Sri Lankan armed forces went to great lengths to stop the INGO’s from taking food and medicine to the Tamil people. Further, the evidence from the reporting shows that the INGO workers accompanying the supplies in many cases did not believe the common reason given by the SL armed forces that the route was too dangerous. Analysis of the news items from the Sri Lankan internet sites and newspapers show that the INGO personnel were not being overly brave or careless – but that they had believed that the Sri Lankan armed forces were just trying to prevent essential supplies from reaching the Tamil civilians for military purposes. Further, the evidence points to the fact that the Sri Lankan armed forces, did, as a rule, use delaying tactics to obstruct supplies reaching those who needed it with desperate urgency.
When several hundreds of thousand of people were trapped in the government declared ‘no-fire zones’ of a few square Kilometres, the people were solely dependant on outside help for all the basic necessities of life. Even the water had to be brought in from outside. Because of this, the systematic restrictions of food, water and medicine to the people had terrible consequences. Local sources revealed that drugs had not been sent to Mullaitivu and Killinochi district for four months. Hospital sources reported that there was a severe shortage of food and that injured civilians were not receiving proper treatment and surgery – due to attacks on the hospital and non-availability of essential medicines. There was a severe shortage of medicines, particularly anaesthetic drugs, surgical items, intravenous (IV) fluids, IV antibiotics, oral antibiotics, paediatric syrups, Jeevani, ARV, toxoid, and vaccines. Immunization programs had been disrupted for the preceding two months. Sources in the conflict area reported undue deaths due to non-availability of essential drugs at Mullaittivu in a letter to the Ministry of Healthcare and Nutrition. Sources also reported being unable to provide even lifesaving emergency surgery. Amputations were commonly performed without anaesthetics. Tetanus vaccine, critical for combat related wounds were not available. Generally non-fatal injuries and illnesses became deadly. Because of the knowledge that there were virtually no medicines in the hospitals and that hospitals themselves were under attack many injured were unwilling to be taken to hospitals and lay sometimes on the street enduring unbearable pain. A witness released from an IDP camp in September reported that in the final weeks of the conflict, doctors in the Mullivaikkal hospital had to operate with butchers’ knives and watered-down anaesthetics, with replacement blood running out, staff filtered what they could from the patients’ own blood through a cloth before feeding it back into their veins. Because of lack of space in the hospitals, seriously injured people lay on the ground outside the hospitals with just tarpaulin and polythene sheets for cover. Thousands of people simply died on the streets.
Children, elderly, and the seriously ill were particularly at risk for starvation. Water available from open wells and provided by bowsers (water delivery trucks) was insufficient to meet the population’s needs. People waited in long lines for an extended duration even to collect a few pots of water provided at 10 operational sites. 69% of children were severely malnourished. An organization’s source in Valayanmadam reported that six people were in a coma from eating poisonous plants, and people dying of starvation was a normality.
Several hundred thousand Tamil people who had, during the period of the peace process just a few years before, lived in their homes, in an area of over 10,000 square Kilometres, were now trapped in an area of a few sq. meters. They were continuously bombarded from all sides with artillery fire and air raids, blocked from receiving food, water, medicine had to face physical and psychological torment. A whole population was subjected to seemingly endless suffering. Clearly this comes in the ambit of ‘crimes against humanity’ as described in the Rome Statute Article 7, paragraph 1 (b), (h) and (k).
3) The execution, torture and mistreatment of captured or surrendered LTTE combatants, officials and supporters:
Between May 14th and May 18th there was wide publicity given all over the world to an internationally mediated attempt by a team of leading political and administrative officials of the LTTE to come out of the war zone unarmed and with white flags. A series of satellite phone calls were made between the LTTE officials, prominent individuals who facilitated the peace process and Sri Lankan government political leaders and the Army top brass. It was widely reported (and not contradicted by the persons involved) that LTTE political head B. Nadesan and Former head of the LTTE peace secretariat S. Puleedevan spoke to International and domestic actors who acted as intermediaries to negotiate a surrender with Secretary of the Foreign Ministry Palitha Kohona. It is known that B. Nadesan had requested the presence of the envoy of the UN Secretary General, Vijay Nambiar to witness the surrender – but was told that he had President Rajapakse’s assurance that the safety of those coming out unarmed with white flags will be assured. Approximately a dozen men and women came out waving white flags. They were promptly executed with machine gun fire. Sri Lankan media reported that Army Chief General Sarath Fonseka, on July 18 speaking at a celebratory rally in Ambalangoda had stated that the military had to overlook the traditional rules of war and even kill LTTE rebels who came to surrender carrying white flags during the war against the LTTE. A shocking video clip obtained by Sri Lankan journalists and brought to international attention by Channel 4 news, shows the Sri Lankan soldiers casually executing Tamil men, who had been stripped naked and had their hands tied behind their backs.
Several sources reported that young men who managed to reach the government controlled area with their families were being picked up by the military; their bodies were found several days later. As the government did not allow international presence in the camps, the military was able to act with impunity, which was one of the main reasons why Tamil civilians were afraid to move to government-controlled areas.
In the Government controlled areas, whether it is Sri Lankan army’s official camps and prisons, or the police anti-terrorist detention centres or whether it is secret camps being operated jointly with paramilitary forces, evidence of torture is overwhelming. When bodies of people were found, whether in the North and East of the island or in the Colombo district, in many cases there were indications that torture had taken place. Many who are tortured in custody to extract information are not allowed to live to tell the tale. A considerable number of people, who have been arrested for interrogation, had been said to have committed suicide – this is generally the case when the arrest has been registered, so the body cannot be disposed of without any accountability. But although it is true most of those tortured are killed – there are some who survived. After the massacre during the beginning of this year there were many who survived the torture, but they are generally unwilling to speak about their trauma as they fear for their own security and/or for that of their relatives. Certainly they are unwilling to take any action against these assaults in Sri Lanka. But because the victims also have an interest to expose the perpetrators that caused them this injustice it is possible to get people to talk about their trauma at a tribunal such as this if their confidentiality is respected. The history of torture by the armed forces in Sri Lanka is well documented *.
Outrages upon personal dignity, humiliating and degrading treatment
11,000 Tamil people are held as LTTE suspects. The places where they are held is not clear nor is there a list of names of the people in custody. The vast majority of them have no right access to lawyers or to the ‘International Committee of the Red Cross’. Follows are excerpts of an account of what goes on in these detention camps.
“A military source disgusted with the behaviour of the army officials involved in the rehabilitation of surrendered LTTE cadres in a rehabilitation camp located in Mudaliyar Kulam in Vanni, confirmed to the Sri Lanka Guardian requesting anonymity that the suspected LTTE detainees are being put through harrowing and humiliating experience in the camp.
The source said the army officials have implemented strict routines in the camp. Each day starts with the hoisting of the national flag of Sri Lanka in the open space. All the detainees are made to assemble in rows in front of the flag and are ordered to give military salutes when the pre-recorded national anthem is played on the audio and then made to force march for half an hour. Army officers with batons and canes are present to ensure strict adherence to the ceremony. Those who failed to give the salutes are beaten after the ceremony in front of other inmates. The very same routine is said to be practised in the evening when the flag is brought down. The source confirmed torture is a routine practice in the camp. He said there were occasions when young LTTE female cadres were taken away in the night and returned the next day morning. He further said some of them were not brought back and their fate is unknown.” (November 14, Colombo, Sri Lanka Guardian)
The above texts under the headings Executions, Torture, and Outrages upon personal dignity, humiliating and degrading treatment, are clearly in breach of the International Humanitarian Law, in the Geneva Convention – see the relevant sections below:
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
Measures of reprisal against prisoners of war are prohibited.
Art 14. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires.
Art 16. Taking into consideration the provisions of the present Convention relating to rank and sex, and subject to any privileged treatment which may be accorded to them by reason of their state of health, age or professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.
4) Rape and sexual crimes against women
Rape and sexual crimes crimes against women during this last phase of the war are thought to be more than that of any other period. However the evidence, to a large degree is masked by the fact that women and girls who are raped are killed and their bodies disposed of – so direct evidence is difficult to find. There is evidence that the thousands of women cadres of the LTTE that have been captured are regularly raped and that the armed forces see this as normal. Here below is a list of individual cases in the past that have broken through the silence on this issue:
Krishanti Kumaraswamy, 19-year-old student (Jaffna district), raped and murdered in 7 August 1996 by 6 Sri Lankan Army soldiers.
Arumaithurai Tharmaletchumi, 17-year-old (Trincomalee district), raped and murdered in February 11, 1996 by Sri Lankan army soldiers.
Farheen Ida Carmelitta Laila Figerardo, 19-year-old (Mannar district), gang raped and killed 12 July 1999 by Sri Lankan army soldiers
Tharsini Ilayathamby, 20-year-old (Jaffna district), raped and Killed December 16, 2005 – by Sri Lankan navy sailors.
Mary Madeleine, 27-year-old (Mannar district), raped and killed in June 8, 2006, by Sri Lankan soldiers. Her husband, daughter and son were also tortured and killed in the same incident.
Koneswary Murugesapillai, (Kalmunai district), raped and killed on 17 May 1997 by policemen in Central Camp police in the Kalmunai.
Premini Thanuskodi, 25 years old (Batticaloa district), Chief Accountant for TRO and University Student, kidnapped near Welikanda army check point with her other TRO co-workers on June 30, 2006 and was later raped and murdered by Army soldiers and Karuna Amman’s paramilitary group.
Sarathambal Saravanbavananthatkurukal, 29 years old (Jaffna district), was gang raped and killed on 28 December 1999 by Sri Lankan navy sailors.
Thambipillai Thanalakshmi, 43 years old (Jaffna district), raped on July 7, 2001. Amnesty International claimed that Sri Lankan army soldiers were responsible.
Wijikala Nanthan, 24 years old, Sivamani Sinnathamby Weerakon, 22 years old, arrested with Sivamani’s husband and son by Sri Lankan navy sailors in Mannar on 19 March 2001, all of them were stripped and tortured. Both women were raped by the sailors.
Following the relevant provisions of the Rome Statute on rape and sexual abuse:
Article 7 – Crimes against humanity
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Article 8 – War Crimes
2.(c) (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
2.(e) (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
5) Murder and Disappearances:
There is a long history of assassination of Tamil MP’s, Journalists, Human Rights Activists and intellectuals who spoke out against the violence and discrimination against their people carried out by consecutive governments. But as the political pressure built up during the peace talks – to restart the war – the frequency of the killings increased. The assassinations in Colombo took place in highly populated areas of the city. In Colombo there were check points nearly every 100 metres. The possibility for the abductors to pass through these checkpoints without problems point to the connivance of the officers who manned the checkpoints as well as the complicity of the state.
1. Aiyathurai Nadesan, a prominent and veteran Tamil journalist was shot dead on May 31, 2004 on his way to work in eastern Sri Lankan town of Batticaloa.
2. Dharmeratnam Sivaram or ‘Taraki’, Internationally acclaimed journalist and strategic analyst, abducted in front of a main Colombo police station on the 28 April 2005 – his body was found the next morning 500 meters away from the Parliament in a ‘high security zone’.
3. Ariyanayagam Chandra Nehru Member of Parliament for the Tamil National Alliance elected from Amparai in Eastern Sri Lanka. It was alleged that the pro-government Karuna group carried out the killing on February 7, 2005.
4. Joseph Pararajasingham, Tamil representatives elected to the parliament for the Tamil National Alliance (TNA). Assassinated on December 25, 2005, while attending the Christmas service in the East of the island.
5. Rev. Fr. Thiruchelvam Nihal Jim Brown, Parish Priest Allaippiddy, Jaffna is reported missing since 20 August 2006, according to a news release issued by the ‘North East Secretariat of Human Rights’.
6. Sivasubramanium Raveendranath, the Vice-Chancellor of Eastern University of Sri Lanka (EUOSL), was abducted while attending a conference of the ‘Sri Lankan Association for the Advancement of Science’ on 15 December 2006. The Professor, was in Sri Lanka’s Capital City Colombo, attending the conference and was in an area tightly controlled by the military.
7. Nadarasa Raviraj, A Tamil Human Rights lawyer, elected to the parliament as an MP for the TNA, was shot in Colombo, Sri Lanka, by 2 assailants riding a motorbike on November 10, 2006 when he was leaving his home.
8. T. Maheswaran, Colombo district Tamil parliamentarian of the opposition United National Party 01 January 2008, was shot at Ponnambala Va’neasvarar temple at Kochchikkadai.
9. T. Sivanesan, Tamil politician elected to the parliament for TNA, was killed by a Sri Lankan armed forces ‘deep penetration unit’ using a claymore mine in March 2008 in the Vanni.
10. Rev. Father M. X. Karunaratnam, the chairperson of the ‘North East Secretariat on Human Rights’ (NESoHR), was killed in a Claymore attack carried out by a Deep Penetration Unit (DPU) of the Sri Lanka Army on 20 April 2008 the attack took place on Mallaavi – Vavunikku’lam Road in Vanni.
The killings of these prominent individuals are just the tip of the iceberg. There is copious evidence about Tamil people who have been murdered (Amnesty International and Human Rights Watch reports contain much information on this).
In 2006 and 2007, the United Nations Working Group on Enforced and Involuntary Disappearances recorded more new “disappearance” cases from Sri Lanka than from any other country in the world.
Under international law, a state commits an enforced disappearance when it takes a person into custody and denies holding them or disclosing their whereabouts. “Disappeared” persons are commonly subjected to torture or extra-judicial execution, and cause family members continued suffering. An enforced disappearance is a continuing rights violation – it is ongoing until the fate or whereabouts of the person becomes known.
The vast majority of cases documented by Human Rights Watch indicate the involvement of government security forces – the army, the navy, or the police. In some cases, relatives of the “disappeared” identified specific military units that had detained their relatives and army camps where they had been taken. In other cases, they described uniformed policemen, especially members of the Criminal Investigation Department (CID), taking their relatives into custody before they “disappeared.”
“Enforced disappearances have again become a salient feature of the conflict. Figures released by various governmental and non-governmental sources suggest that more than 1,500 people were reported missing from December 2005 through December 2007. Some are known to have been killed, and others have surfaced in detention or otherwise have been found, but the majority remain unaccounted for. Evidence suggests that most have been “disappeared” or abducted. The national Human Rights Commission (HRC) of Sri Lanka does not publicize its data on “disappearances,” but Human Rights Watch learned that about 1,000 cases were reported to the HRC in 2006, and over 300 cases in the first four months of 2007 alone.” (Recurring Nightmare: State Responsibility for ‘Disappearances’ and Abductions in Sri Lanka,” Human Right Watch – Volume 20, No. 2(C), March 2008)
Sri Lanka’s Emergency Regulations (ER) are of particular concern – as they lay the basis for impunity and give confidence for those in the armed forces that they are literally able to get away with murder.
“In its July 2000 report, Amnesty International made a startling and puzzling discovery regarding the provisions of ER55FF. Although, ER55FF is not listed in the Gazette Extraordinary of 3 May 2000, according to Amnesty, ‘On 6 May, three days after the new emergency regulations were promulgated, the government announced that ER55FF had been rescinded with immediate effect.’ ER55FF allegedly empowered police officers of certain rank to dispose of bodies without postmortem examination or inquest, thereby eliminating evidence of wrongful torture and extra-judicial killing.
Whereas suspected terrorists’ constitutional rights are completely denied during prosecutions under the ERs, security officers are given complete indemnity and protection from criminal prosecution. ER71 states that no legal action may be taken with respect to ‘any matter or thing done or purported to be done in good faith, under any provisions of any emergency regulation.’”(Abizer Zanzi, http://www.india-seminar.com/2002/512/512%20abizer%20zanzi.htm)
Murder and Disappearances of the Tamil people as described above are in contravention of the Rome Statute Article 7, 1 (a) Murder, (h) Persecution, (I) Enforces disappearances of persons.
6) Deportations and forcible transfer of population:
On June 7, 2007, 376 ethnic Tamils staying in Colombo ‘who could not explain their reasons for being in the city’ to the satisfaction of the Sri Lankan authorities were sent ‘back’ to their homes by the Sri Lankan Police. The evicted were sent back to Jaffna, Vavuniya, Trincomalee and Batticaloa, where they are originally from, in several buses with a police escort. However the buses only went as far as the town of Vavuniya and the evicted Tamils were forced to stay in a detention camp. The government had to backtrack because this case caused a big controversy for several reasons. One being that, internationally and locally, the act of deporting Tamil people to the north would give ammunition to justify the case for an Independent State for the Tamils – as the Government was effectively accepting the argument for a homeland for the Tamils in the north and east by deporting them there.
The Sri Lankan Armed Force’s operation to capture the Vanni, which started in January 2008 can be regarded as a massive case of forced transfer of the population.
1. From the beginning of Government of Sri Lanka’s (GoSL) Vanni operation, air raids and food and medicine restrictions were used to push the Vanni civilian population to move to the GoSL
controlled area (effectively to surrender to the Sri Lanka Army, considered as their tormentor in the
context of this enthic based military onslaught).
2. As the advancing Sri Lankan forces managed to get the civilian population in their artillery range, they started to use – apart from air raids – artillery shelling, multi barrel rocket launcher attacks against the civilian population, to increase the pressure.
3. GoSL has declared its first ‘No Fire Zone’ (NFZ) on January 21. The Safe Zone borders a four kilometre stretch of the A-35 Puthukkudyiruppu (PTK)– Paranthan main road from Udayarkattu
junction to the Yellow Bridge on the south and extends northwards to Iruthumadu and Thevipuram. The demarcated area touches the A-35. By declaring the NFZ (which itself was considered as one of the most dangerous place in the world by international human right organisations and media at the time) GoSL also declared that everything out of the NFZ was a legitimate target – including hospitals (this was explicitly stated on international media by the Defence Secretary Gotabaya Rajapakse)
4.This no fire zone game gave a chance to GoSL to justify their tactic to destroy all civil objects outside the no fire zone and to forcefully (using air raids, multi barrel, shell, artillery, and food and medicine restrictions) transfer the whole population by extracting them from their traditional habitations. There are many reports from international media and human rights organisations on civilian killings (see for example Amnesty International and Human Rights Watch reports).
5. After herding the whole population into the NFZ in PTK, GoSL announced their new eight square mile NFZ in a coastal strip stretched to Vaduvakal on Feb 12. And GoSL also announced the annulling of first NFZ and gave 48 hours to leave that area. The civilians were forced to pack and leave again without any transport facility within 48 hours. There are reports that the Sri Lankan Army started attacking even before the deadline allocated by them had elapsed, causing extra deaths and and casualties.
6.The declared area of 8 Square miles was squeezed by the advancing army till it become tiny patch.
7. After May 19 the survivors of population of the Vanni were herded to Vauniya detention camps.
Effectively the whole process of the war which started in the the Vanni in January 2008 has been a forced transfer of the Tamil population that lived, in their own houses in an area of over 10,000 Square km, into an internment camp of the size of a large football stadium.
The above is in contravention of ‘Customary International Humanitarian Law’ (March 2005), relating to ‘Displacement and Displaced Persons’. The relevant parts are given below.
Rule 129. B. Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand. [IAC (A)/NIAC (B)]
Rule 130. States may not deport or transfer parts of their own civilian population into a territory they occupy. [IAC]
Rule 131. In case of displacement, all possible measures must be taken in order that the civilians concerned are received under satisfactory conditions of shelter, hygiene, health, safety and nutrition and that members of the same family are not separated. [IAC/NIAC]
Rule 132. Displaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist. [IAC/NIAC]
Rule 133. The property rights of displaced persons must be respected. [IAC/NIAC]
7) Using Banned Weapons:
The French medical team who treated wounded Tamil civilians in a field hospital established in war torn area had observed number of burn injuries.
‘Another one of the wounded, 36-year-old Susenthiran Thiressamma, was nursing horrific burns to her chest and shoulders. She said she was “burned by a chemical bomb” two weeks ago. Doctors at the French field hospital said they had seen a number of similar injuries, including “some with white hands, possibly caused by burns from phosphorus” — an incendiary weapon which is banned from use in civilian areas under an international convention.’
Peter Herby, head of the ICRC’s Arms Unit was asked in January 2009: Does the use of weapons containing white phosphorous, in particular incendiary weapons, in a populated area give rise to any specific humanitarian concerns?
He answered: Yes. White phosphorous weapons spread burning phosphorous, which burns at over 800 degrees centigrade (about 1,500 degrees fahrenheit), over a wide area, up to several hundred square metres. The burning will continue until the phosphorous has been completely depleted or until it no longer is exposed to oxygen. The weapon has a potential to cause particularly horrific and
painful injuries or slow painful death. Medical personnel must be specially trained to treat such injuries and may themselves be exposed to phosphorous burns. If used against military targets in or near populated areas, weapons containing this substance must be used with extreme caution to prevent civilian casualties.
He also says that, the use of such white phosphorous weapons against any military objective within concentrations of civilians is prohibited unless the military objective is clearly separated from the civilians. The use of air-dropped incendiary weapons against military objectives within a concentration of civilians is simply prohibited. These prohibitions are contained in Protocol III of the Convention on Certain Conventional Weapons.
8) Maltreating the Dead
1. It has been reported by several news agencies (such as PTI, REUTERS, AFP and PT) that the Sri Lankan military stripped the clothes off the bodies of Tamil Tiger guerrillas killed in an attack on
22 October 2007 and paraded the naked bodies on 23rd October 2007 in Anuradhapura city. Army personnel, transported the bodies in Tractor trailers (that are normally used to collect garbage), with the Sinhala Police escorting, local residents said. Sri Lankan Authorities had refused to hand over the corpses to the hostile party through the ICRC.
2. Huge posters with the image of dead body of LTTE leader (nearly naked) were also exhibited
in a Sri Lankan Government’s Official ceremony organized by the defence ministry to celebrate war victory and the 60th anniversary of Sri Lanka armed forces. It was opened by the President Mahinda Rajapakse.
3. The body of the LTTE leader V. Prabhakaran was clothed in LTTE uniform on the first photographic images that was issued by Defence Ministry in State media. A few days later they issued
another set of images of the body of Prabhakaran, nearly naked. He had been clothed with a tiny strip of cloth, an ‘Amudaya’. This way of clothing of the LTTE leader is a calculated insult as
understood by all Sinhalese. The body was covered with muddy patches – which appeared to have been applied after he was stripped naked.
4. It has been widely reported that the dead body of the LTTE leader had either been cremated or buried un-marked in a secret location. Sri Lanka Army sources had stated that the government is planning to bury LTTE chief V. Prabhakaran in an unmarked mass grave. It was said that Mr. V. Prabhakaran will be buried along with all the other LTTE fighters who were killed in the final assault. If it is the case that there was a mass grave its location is likely to be around the same lagoon where Mr. Prabhakaran’s body was found. Sri Lankan army sources said that the mass burial is being undertaken to prevent a memorial being built in the honour of Prabhakaran.
Alternatively there are reports that his body was in fact cremated:
“We cremated the body in the same area and threw the ashes into the Indian ocean. Even before Prabhakaran was killed, I knew we had won the war, but I was overjoyed when I had confirmation of his death,” General Fonseka told the Sunday Rivira newspaper in an interview.
5. According to the Sri Lankan government’s report LTTE leader V Prabhakaran was killed when he was fired on by Sri Lankan soldiers. If this is the case, the injury on his head consistent with a cut with a sword or an axe must have occurred after he was killed. The degrading treatment of the body of V. Prabhakaran, held as a saviour by many Tamil people can only be seen as a calculated attempt to insult and denigrate these people.
6. Rivira newspaper also revealed that other 170 identified bodies of LTTE leaders and cadres also cremated and the ashes were thrown in the sea.
There is no evidence for the existence of even a single individually marked grave for all the dead who were slaughtered in recent massacre – whether they were civilians or combatants!
7. There are a number of video clips in the public domain showing degrading treatment of dead bodies of LTTE female cadres by Sri Lankan forces. Most of the bodies were stripped naked. These video clips have been recorded by Sri Lankan soldiers by using their mobile phone cameras for their own sadistic enjoyment.
The treatment of the battlefield dead can be divided into two aspects. First, there is a prohibition on deliberate mistreatment of the body, either through failure to treat it with appropriate respect or through mutilation. Second, there is a prohibition on pillaging the dead. These mandates concerning the dead are as much derived from the customary laws of war as from the Geneva Conventions.
The Geneva Conventions takes the customary rules further. In Article 16 of the First Geneva Convention, we find an obligation for the party that has the body to send to the other party (usually through a neutral power or the ICRC) written evidence of death. Where the body is identified with the required double identity disk, one half of the disk, along with any personal effects found on the body, is to be sent to the other side.
Treatment of the Dead- International Humanitarian Law:
Rule 112. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the
dead without adverse distinction. [IAC/NIAC]
Rule 113. Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited. [IAC/NIAC]
Rule 114. Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin.
They must return their personal effects to them. [IAC]
Rule 115. The dead must be disposed of in a respectful manner and their graves respected and properly maintained. [IAC/NIAC]
Rule 116. With a view to the identification of the dead, each party to the conflict must record all available information prior to disposal and mark the location of the graves. [IAC/NIAC]
* In May 2008, 68 Tamil detainees, hurriedly transferred from New Magazine prison in Colombo by the Terrorist Investigation Department (TID) interrogators, were verbally abused, tortured and subjected to sexual abuse at the notorious Boosa Prison in Galle, according to complaints made by their parents to a Tamil parliamentarian Chandrakanth Chandranehru. In October 2007, 86 detainees in Welikade prison (Colombo District) had launched a fast-unto-death and demanded the authorities to let them meet UN High Commissioner for Human Rights, Louise Arbour, who visited Sri Lanka on a fact finding mission last October. The detainees called off the fast as Ms. Louise Arbour met five representatives of the detainees and promised to look into their plight. There are many reports of Torture and Abuse by Sri Lanka’s security forces on Tamils. For example, according to a research conducted by the London based Medical Foundation for the Care of Victims of Torture (published in the British Medical Weekly of 10 June 2000) sexual abuse of Tamil male detainees was a common problem in the Sri Lankan prisons. “Of the 184 men, 38 (21%) said they had been sexually abused during their detention. Three (7%) of the 38 said they had been given electric shocks to their genitals, 26 (68%) had been assaulted on their genitals, and four (9%) had sticks pushed through the anus, usually with chillies rubbed on the stick first,” the study further said that Medicolegal reports written by 17 doctors supported the allegations of torture in Sri Lanka made by the 184 Tamil men. The study had defined sexual abuse as comprising assaults to the genitals, non-consensual sexual acts, and objects pushed through the anus.’