Individuals could have violated International Humanitarian and Human Rights laws

MissingThe Maxwell Paranagama Commission on involuntary disappearances and war crimes, whose report was tabled in Sri Lankan parliament on Tuesday, has said that while the Lankan armed forces, as such, could not be accused of committing war crimes or genocide, individual soldiers could have violated International Humanitarian and Human Rights laws, and allegations against these should be subjected to judicial investigations.

“There may be individual instances of violation of International Humanitarian Law, which could amount to war crimes, and these must be subjected to judge-led investigations,” the panel said.

Describing these as “individual criminal responsibility,” it quoted the then Army Commander, Sarath Fonseka, as saying: “Some crimes occurred during the war and these were done by individuals and not as part of state policy.”

The cases recommended for judge-led investigations are: the alleged killing of surrendering LTTE leaders like Pulithevan and Nadesan; the murder of Balachandran, the 12-year-old son of LTTE chief Velupillai Prabhakaran, which is described as a “clear breach of the laws of war”; the “arbitrary execution” of LTTE’s Batticaloa commander, Col Ramesh; the inhuman treatment of those who were taken into custody; the disappearance of more than a hundred LTTE cadre after they had surrendered to the forces; the damage inflicted on hospitals by shelling; and of course, cases of indiscriminate civilian killing and the taking of hostages by the LTTE.

Channel 4 footage

The panel said that the gruesome scenes depicted in the British Channel 4 video on the final phase of the war, were “genuine” and constituted a “strong circumstantial evidence of war crimes.” A former High Court judge is examining the evidence, it added.

The panel dismissed the charge that the Lankan armed forces had committed “genocide”. In support of this, it quoted the 2009 report of the US diplomat and prosecutor Clint Williamson, and the reports of the University Teachers for Human Rights Jaffna (UTHR-J). It pointed out that if 290,000 of the 300,000 civilians in the war zone had come out of it safely, it could not have been “genocide”.

The panel points out that existing accounts of the war have not taken into account the fact that the LTTE had committed a war crime by using 300,000 civilians as a human shield. It had not recognized the “No Fire Zones” designated by the government forces, and had used these to launch attacks on the latter.

The panel also argued that while commenting on “proportionality” in the use of fire power, the imperatives of a hostage rescue operation should have been taken into account.

Based on the authority of Maj Gen (Retd) John Holmes of the British Special Air Services, the panel said that it could not be conclusively proved as to which side’s artillery caused a particular damage.

The panel quoted highly placed US State Department and UN sources to maintain that only a little over 7,000 were killed in the last phase, and not 40,000.

According to the International Committee of Red Cross (ICRC), if there was any shortage of food or medicines, it was because the LTTE sequestered for its use, 20 percent of the stuff sent by the government. It was also not a “War Without Witnesses” as there were 60 members of the Catholic clergy; 240 government servants and NGO workers; and five government doctors functioning in the war zone.

Need For Amnesty

The panel is silent on the setting up of a “hybrid court” comprising Lankan and foreign judges to try war crimes cases. Paranagama told Express that it is up to the government to take a decision on this.

But the panel suggested the enactment of suitable laws to try war crimes cases with retrospective effect and the setting up of a Special High Court.

It also recommended the setting up of a Truth and Reconciliation Commission with a provision for granting amnesty in the interest of reconciliation. (New Indian Express)

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