Ban Ki Moon’s Expert Panel Report


UN Secretary General Ban Ki Moon’s Expert Panel finalized its report on the 31st of March 2009, but it was publicly handed over to Moon and by him to the Sri Lankan government only on the 12th April, just as the country was gearing to celebrate the Sinhala and Tamil New Year. This is a voluminous report of nearly 200 pages, lengthier than the previous reports put out by the EU, the US State Department and international NGOs like the International Crisis Group.  About 80 pages are various appendices and the actual body of the report is around 120 pages. Of this, the most important section which contains the findings of the panel on the allegations of war crimes and human rights violations are on pages 20 to 51 of the report and it is on this section that we will focus our attention today.

The present columnist has always held that the Ban Ki-moon panel was improperly constituted and that in terms of the regulations of the UN, the UN Secretary General can appoint a panel of experts to advice him  about a situation in a given country only if the UN Security Council, the General Assembly or some other UN body like the Human Rights Council gives him a mandate to do so. The previous UN Secretary General appointed such panels to go into the cases of East Timor and Yugoslavia only on the express instructions of the UN Security Council.  In this instance, Ban Ki Moon appointed this expert panel without such authorization.

When it was appointed, Moon invoked the right that any head of an institution has to seek legal or other advice on any matter he deems fit.  The terms of reference dated 10 October 2010, given to the expert panel in fact stated very clearly, that the panel was only to advise the secretary general and that it was not an investigative or even a fact finding body. However the whole manner in which this ‘consultation’ was conducted, with the panel receiving representations from interested parties, the very public discussion of what the panel  was doing etc. left no doubt that this was an investigation in all but name. This panel was flawed from the beginning because it was in fact an investigation appointed by Ban outside all established procedures of the UN.  This is in every sense, Ban’s Expert Panel Report (BKM/EPR for the sake of convenience) and not really the UN’s expert panel report.

Pages 120 to 122 of the report contains the recommendations of the panelists.  The recommendations are divided into four categories as; what has to be done in terms of an investigation, the immediate measures to be taken to ‘advance accountability’, what the Sri Lankan government should do and what the UN should do. Among the many recommendations made are the following salient ones:

* That Sri Lanka should initiate a ‘genuine’ investigation into violations of humanitarian and human rights law committed by both sides to the conflict.

* That the UN Secretary General should set up an independent international mechanism to monitor and assess the accountability process of the SL government.

* That this independent mechanism should concurrently conduct investigations independently into the alleged violations.

* That this independent mechanism should collect and safeguard ‘for appropriate future use’ the information provided to it including information gathered by the panel and other bodies of the United Nations System.

* The Human Rights Council should be invited to reconsider its May 2009 Special Session resolution regarding Sri Lanka in the light of this report. (The decision of the Human Rights Council was that no investigation was necessary into allegations of war crimes in Sri Lanka.)

The final conclusions arrived at by the report are on pages 49-51. Stated briefly, the allegations against the government are as follows.

1) Killing of civilians through widespread shelling.  The government shelled three consecutive ‘no-fire zones’  where it had encouraged the civilian population to concentrate and after it had indicated that it would stop using heavy weapons.

2) Shelling of hospitals and other civilian objects.  The government systematically shelled hospitals on the frontlines, some of them repeatedly.

3) Denial of humanitarian assistance – the government deliberately underestimated the number of civilians so as to restrict the quantity of food and medicine going to the LTTE controlled area.

4) After the conflict IDPs were confined to closed camps and were not allowed to speak privately with humanitarian organizations. Some suspected LTTE cadres were executed and others disappeared and female cadres ‘may have been’ raped or sexually assaulted.  There was massive overcrowding in the camps. Screening for LTTE cadres took place without any transparency, etc.

5) Human rights violations outside the conflict zone – the government sought to intimidate and silence the media using a variety of threats including the use of white vans to abduct and make people disappear.

The panel report is a voluminous document, and we cannot go into all its aspects in just one article. For the time being however, we would like to scrutinize allegations 1 and 3 above leaving the others for a later date. Basically, the trajectory of the report was predictable. There was no possibility of this being any different to the reports by the European Commission and international NGOs like the International Crisis Group that preceded it.

Fascinating comparison

For those who have the time, or for those like the present writer who are compelled to wade through these reports for professional reasons, some of the assertions made make fascinating study.  For example, the main accusation against Sri Lanka in this report as well as the reports that preceded it, is the number of civilian deaths during the last stages of the war.  The first report to take up the issue of civilian deaths was the European Commission’s Interim Report on Sri Lanka published on the 19th August 2009 just three months after the end of the war.  At that early stage, the European Commission said in all honesty in their Interim Report (page 49) that "The casualty figures for those killed and injured are not known. Owing to the refusal to grant access to journalists, it is not possible to obtain accurate figures. Without knowing what was targeted and why, it is difficult to establish whether the security forces breached their obligations under human rights law as interpreted in the light of (law of armed conflict and international humanitarian law) LOAC/IHL."

The European Commission (EC) published their Final Report on Sri Lanka two months after the Interim Report on the 19th October 2009. By this time, they seem to have come to the conclusion that not knowing the number of civilian casualties was not good enough and some figures had to be mentioned. Hence the EC’s Final Report hazarded the guess that the number of civilian casualties may be as high as 20,000. Their source was a single article in The Times (London) published on the 29th May 2009. This prompted us to take a look at this article in The Times to see how they arrived at this figure of 20,000.

This London Times report was written by Catherine Phillip and Michael Evans and the number of those killed was based wholly on undisclosed ‘UN sources’ and ‘leaked’ UN documents. The UN documents leaked had given a figure of 7,000 deaths during the first four months (from the beginning of January to the end of April) of 2009. Then an unnamed UN source is supposed to have told The Times that from the 1st of May to the 18th there had been a  further 13,000 deaths at the rate of around 1,000 deaths per day.  So 7,000+13,000 makes up the figure of  20,000 civilian  dead. The Times spoke only of the dead, and never mentioned figures of those injured. But when the European Commission took these figures into their report, the 20,000 dead became 20,000 ‘casualties’ ie; some would be injured but not dead. Tamils who were dead in the London Times news story appear injured but alive in the European Commission report.

When a panel of experts appointed by the UN Secretary General himself was due to release a report on war crimes in Sri Lanka, the present columnist was waiting with bated breath to see whether the ‘leaked’ UN documents and the estimates of the unnamed ‘UN sources’ quoted in the London Times on May 29 2009 would finally be released.  The Ban panel deals with the issue of the number of civilians killed on pages 39 to 41.  They have started off by stating candidly that "There is no authoritative figure for civilian deaths or injuries in the Vanni in the final phases of the war".

They do however, refer to a document compiled by the UN Country Team which they say ‘was never released publicly’. (We assume that this was the ‘leaked’ UN document referred to in the London Times news story) According to the UN Country Team figures, the total number of casualties from August 2008 right up to the 13th May 2009, was 7,721 killed and 18,479 injured.  After the 13th May, they were unable to count the number of casualties.  This is the only actual collection of data referred to in the Ban panel report.  They have not referred to any other data collected by any other agency. In the absence of any actual data, they have then launched into speculation.

"The number calculated by the United National Country Team provides a starting point but is likely to be too low, for  several reasons. First, many casualties may not have been observed at all.  Second after the United Nations stopped counting on 13 May, the number of civilian casualties likely grew rapidly."

And further that "A number of credible sources, have estimated that there could have been as many as 40,000 deaths". Who or what these ‘credible sources’ are has not been revealed to us despite the punitive length of the report. This was the same approach taken by the International Crisis Group (ICG) in their report on War Crimes in Sri Lanka of the 17th May 2010. The ICG tried to get the UN to confirm the figures mentioned in the London Times news story, and when the UN turned down their request, they resorted to wild speculation, mentioning figures like 30,000 to 40,000, then going up to 75,000 and even writing off 30,000 civilians as LTTE auxiliaries who may have been killed legitimately! 

The language used in the panel report in relation to the number of civilian casualties is that of speculation, with terms like ‘could have been’ ‘may not’ ‘likely’ being used liberally. The question is, are may be’s and likely’s good enough to recommend a war crimes probe against a country? Everybody is either lying or speculating. The London Times lied about a  leaked UN document and ‘UN sources’ giving a figure of 7,000 deaths for the first four months of 2009 and 1,000 deaths per day in May until the 18th. No such figures have been mentioned in the panel report – they would have known if the UN had such figures.  The UN has not confirmed the speculation and the lies published by other agencies, but they have done some speculating of their own in giving a civilian death toll of 40,000 without telling us on what basis they arrived at such a calculation.

The UN as squatters

There is one episode relating to the shelling of civilians in the no fire zone, which finds mention in the panel report, which is not based on speculation but on direct observation by UN overseas staff. According to the account in this report (page 24), on the 23rd January 2009, the UN established a hub near the first no fire zone declared in Suthantirapuram half way towards Mullaitivu on the A35 road.  The AGA Mullaitivu had also established a food distribution point and on the evening of the same day,  a shell had fallen on the food distribution point.  Killing and wounding a large number of civilians. The UN personnel present on the spot had not counted the dead and the wounded even though they were right there.  The report continues: 

"In the early morning hours of 24 January, hundreds of shells rained down on the NFZ. Those with access to the United Nations bunker dove into it for protection. But most IDPs did not have bunkers and nowhere to take cover. People were screaming and crying out for help. The United Nations security officer, a highly experienced military officer,  and others present discerned that the shelling was coming from the south from SLA positions…Heavy shelling continued overnight and shells continued to hit the United Nations hub and the distribution center killing numerous civilians…When United Nations Staff, emerged from the bunker at first morning light at the first opportunity, mangled bodies and body parts were strewn all around them, including those of many women and children.  Remains of babies had been blasted upwards into the trees. Among the dead were people who had helped dig the bunker the previous day…"

The UN does not give the number of those killed by these hundreds of shells. The impression one is left with after reading this account about ‘hundreds of shells’ ‘raining down’ is of hundreds if not thousands of dead. Since the number of casualties is not given in the report, we checked the US State Department report of October 2009 to see whether they had reported on this incident.  The Americans quoting Human Rights Watch (HRW) said that 11 people were killed and 88 injured in the safe zone on the 24th January. The Americans said nothing about this having taken place anywhere near a ‘UN hub’. The American report did however report an attack near a UN camp on the 25th January. About 75 IDPs, 35 inmates of an elder’s home, 15 other people and their dependents had been present with the first shell had struck at 8.30 pm and the shelling had gone on till 3.30 in the morning.  HRW had told the Americans that 19 people had died and 52 injured in this incident.

In the first place, the UN was not supposed to be in Suthanthirapuram.  According to the panel report itself, the UN had moved their international staff out of the Vanni at the end of September 2008.  But the UN continued to run weekly food convoys into the Vanni. One such convoy had gone to Puthukudirippu with 50 lorries and seven international UN staff on the 16th January 2009. They had offloaded their cargo but had been able to move back due to fighting further up the road they had taken. On the 21st January, all the international staff had gone back to Vavuniya except for two who had decided to stay back with the Tamil UN staff who were not allowed to leave with the convoy.  These two remaining UN staffers had then set up a ‘UN hub’ arbitrarily near Suthantirapuram and relayed their coordinates to the army! If it was possible to make decisions like that, the UN itself would not have left Kilinochchi about four months earlier.  This was a UN hub that was not supposed to be there at all, and the two international staffers responsible should be charged for causing civilian deaths by arbitrarily setting up a UN hub in what was clearly a conflict zone because the LTTE ignored the government’s declaration of a no fire zone near Suthantirapuram and fired at the army from within the newly declared no fire zone.

No absolute immunity

The panel report itself admits on page 24, that even though LTTE cadres were not present in the (irregularly set up) UN hub, they were present in the no-fire zone and were firing artillery at the army from 500 meters away as well as further back. The LTTE always used highly mobile artillery units which would change positions rapidly. 

In actual fact, there is no such thing as a No-Fire-Zone (NFZ) in the law of armed conflict.  The term no-fire zone is just a convenient term used by the government to denote areas reserved for civilians to congregate in. During the 1987 Vadamarachchi Operation as well as the 1995 Jaffna operation, leaflets were air dropped giving civilians a certain number of hours to move into designated schools and Kovils before the army came out to fight the LTTE. The LTTE was not supposed to fire on the army from the no-fire-zone. The moment they did so, according to Articles 11, 13(2) and 13(3) of Protocol II of the Geneva Conventions, which deals with conflicts not of an international character, any civilian installation, even a hospital becomes a legitimate target of attack if used for an offensive purpose.  There is no such thing as a no-fire zone that gives absolute immunity from retaliatory fire.

That the LTTE deliberately fired from among civilians is clear from an admission in the present report  on page 27, that when the government declared a second no fire zone along the coast from Puthumathalan to Vellamullivaikkal, the LTTE moved into that as well.  It continues: "Increasingly, LTTE forces, mounting their last defence, moved onto the coastal strip in the second NFZ particularly in the Mullivaikkal area,  where the LTTE leadership had a complex network of bunkers and fortifications and where it made its final stand.  The LTTE was no longer mobile and established a series of defensive earth bunds throughout the no fire zone. Its positioning of mortars and other artillery among IDPs often led to retaliatory fire by the government often resulting in civilian casualties.  LTTE cadres were not always in uniform at this stage. ..In spite of the futility of their military situation, the LTTE not only refused to surrender, but also continued to prevent civilians from leaving the area, ensuring their continued presence as a human buffer…"

There is no law that can penalize any army for retaliating when fired upon, even if that retaliatory fire kills civilians in the process.  In fact the US State Department specifically mentions this fact on page 16 of their own report on Sri Lanka.    

Buhne in the dark

The third major crime which the UN panel deems the Sri Lankan government guilty of is deliberately underestimating the number of civilians under LTTE control and restricting food supplies to starve and deprive them of medical supplies. For over a quarter of a century, the government’s writ never really ran in many parts of the north and east.  The Tamil people of those areas were never really subjects of the government but of the LTTE. Some were born fought and died without ever really being counted as Sri Lankan citizens. Only the LTTE knew how many people were in their control. The Indian government knows as much about the north and east as the Sri Lankan government. They have fought wars in that part of the country and they have always had their own independent sources of information in that part of the country. Yet in January 2009, even the Indians underestimated the number of civilians held by the LTTE. On the 28th of January 2009, Indian external Affairs minister  Pranabh Mukherjee issued a press statement in New Delhi giving the number of civilians held by the LTTE as ‘150,000 plus’.

This was higher than the estimate of the Sri Lankan government which was 100,000 plus, but was still lower than the whopping 290,000 who ultimately ended up in the IDP camps.

On the 18th of February Mukherjee reported to the Indian parliament that over 35,000 had escaped from LTTE captivity. And at this stage the Indians were preparing food packs for the IDPs. Again on February 28, 2009, the Indian External Affairs Minister in a statement on the humanitarian crisis in Sri Lanka said "There are reports that over 70,000 civilians are trapped in the conflict zone in Sri Lanka and there is an acute shortage of food, water and medicines…"

All humanitarian assistance to the Vanni was sent by a body called the Consultative Committee on Humanitarian Assistance (CCHA) which was made up of high government officials like the defence secretary,  ambassadors like Robert Blake, and all INGO and humanitarian organization representatives, like the UN  and ICRC et al. On the 20th  March 2009, the estimate of civilians under LTTE control was given to the CCHA by Niel Buhne, the UN Resident and Humanitarian Coordinator as 120,000 to 180,000.  (Note that at the lower estimate, Buhne was closer to the Sri Lankan figures than to the Indian figures.) As it turned out, the UN figures were the closest to the actual figure but still was short by 110,000 to 170,000.

Does this mean that the Indian External Affairs Minister and the UN Resident in Colombo were in cahoots with the government in depriving civilians under LTTE control of food and medicine? The fact is, nobody was deliberately underestimating numbers. Nobody knew what the actual number was.  Buhne’s margin of error of 60,000 in itself shows that everyone was just guessing. It was the UN that took weekly convoys of food deep into LTTE territory as mentioned above, but even the UN Resident Representative did not know the actual number of people they were feeding.

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