The LLRC’s blindness at high noon

Faith unfaithful has kept them falsely true


by Kumar David

The LLRC has produced a report which is good in sections, but then at the very heart of the matter, mucked up its endeavours; or has it? I will speculate anon. It is 400 pages long, lucidly written in workmanlike prose and bears witness to diligence. Despite my support for the 2002 ceasefire, I concede that Chapter 3 makes a fair case that it was fatally flawed at three points; it had no vision beyond a ceasefire to an eventual political settlement, a bipartisan consensus between president and prime minister was absent, and in the Commission’s view the LTTE was not interested in a political settlement and saw the ceasefire as a step to secession. The point is also well made that the dual role of the Norwegians, as ceasefire monitors and go-betweens in political negotiations, situated them in a conflict of interests position from which they could handle neither function properly.

There is however an odd dislocation in the logical prowess of the commissioners when it comes to war crimes and charges of violation of human rights by the state and the LTTE. Odd because the Commission sees one side with blinding clarity, as in the noonday sun, but when it looks the other way, it is as blind as a bat. I have a thesis up my sleeve but will reserve it for the last; first the straightforward myopia.

The odd dislocation

The world has been asking about human rights abuses and the learned commissioners have most firmly and unambiguously confirmed that such was the case. But yes, you guessed right, only by the LTTE! The findings pertaining to LTTE atrocities are credible and known; conscription of child soldiers, cowardly use of civilians as human shields and shooting their Tamil brothers like dogs when attempting to flee, placement of artillery in the thick of civilians, and other monstrosities that psychopaths like Prabaharan and his commanders are known for. At least half the truth has been discovered, but what about the other half? For the LLRC to have followed up this exposé of the LTTE with an unabashed whitewash of the parallel and interwoven crimes, equally well known, of the regime and the military, fatally divests the report of respectability and credibility.

Chapter 4 discusses the conduct of the war and the determinations in relation to the culpability of the military read like plain vanilla whitewash, naivety and acquiescence in swallowing the military’s version lock stock and barrel. Some passages are incredible. For example, the learned commissioners are perplexed about who shelled makeshift hospitals and the now internationally notorious Pudukudiriuppu hospital. Was it the military, perhaps it was LTTE cadres themselves; no maybe it was little green men from Mars! The Commission has handled the military and the regime with kid gloves. What independent forensic evidence did it collect from the ‘crime scene’ to confront the military? Since it has not confronted field commanders with the massive deaths, of what value is the Report?

Nevertheless it is true that the military did not deliberately direct gunfire at civilians (except the controversial white-flag incidents) while the LTTE did. Most civilian casualties of military activity were from shelling. It is also true that once Tamil civilians crossed over to government lines they were treated with kindness by soldiers. One must penetrate the ethnic psyche of our country rather deeply to better comprehend the complex psychology at work in a soldier’s mind in this brutal but in-house war.

Another example of tendentious reporting in the Report is in respect of casualties (dead and injured). The evidence of several parties is recorded but the commission ducks conclusions other intelligent humans would have drawn. Furthermore, in my first reading I have seen no criticism of President Rajapaksas’s much vaunted assertion of zero civilian casualties or an explanation of how deaths could have run up to the tens of thousands unless most of them were from heavy military fire. The LTTE shooting fleeing Tamils should be condemned as morally heinous, but the numbers of dead could not have reached the tens of thousands except from military shelling from afar

The Commission does not question the government about its claim of 60,000 people in the conflict zone subsequently shown to be false when more than 300,000 came out. Does the Commission say that this was a horrendous but bona fide error, or was the government motivated by ulterior political considerations? The Commission skirts around this and similar inconvenient questions.

Another example of noontime blindness pertains to the scores of abductions, formal arrests and white-van encounters of persons who then disappeared into a hellhole. Copiously documented? Yes. Are the conclusions meaningful? No, just noncommittal and lukewarm escape clauses! No condemnation of the state’s repressive forces (no such reticence when it comes to LTTE atrocities), no assignment of accountability, and the usual platitudes about the authorities needing to attend to these matters; of course the authorities were the culprits in the first place.

Therefore I am unable to agree that the violation of human rights was a one-sided matter as the LLRC makes out. Yes there were asymmetries in how the LTTE and the military massacred civilians, as the aforementioned gunfire versus shellfire example shows. However once the Commission conceded, as it does, that deaths ran into the tens of thousands it could not have avoid the corollary that the military responses were excessive and responsible for by far the larger number. In bending over to look away from the irrefutable the LLRC has made itself tendentious.

Tendentious language

A few examples selected from portions of the report of the tendentious choice of words are given below. Words that camouflage or soft pedal the iniquity of the military actions are italicised. For example the LTTE "fires at civilians", the military is involved in "cross fire"; the LTTE "targets" civilians, the military is engaged in "dynamics". In the Commissioners felicitous imagination the welfare of the civilians trapped in the Vani was the "key factor" and "highest priority" of the army brass. Phew!

"Representations were made both with regard to the dangers that the civilians were exposed to due to LTTE firing at civilians who were attempting to cross to Government held areas, as well as the dangers that the civilians were exposed to due to cross fire".

"It is the considered view of the Commission however, that eye witness accounts and other material available to it indicate that considerable civilian casualties had in fact occurred during the final phase of the conflict. This appears to be due to cross fire, the LTTE’s targeted and deliberate firing at civilians, as well as due to the dynamics of the conflict situation, the perils of the geographical terrain, the LTTE using civilians as human shields and the LTTEs refusal to let the hostages get out of harm’s way".

"The Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority. In reaching this conclusion the Commission has taken due account of all the material placed before it".

"These factors are consistent with the position that protection of civilian life was a key factor in the formulation of a policy for carrying out military operations. They militate against any proposition that deliberate targeting of civilians was part and parcel of a policy".

"… refraining from returning fire would have defeated the very purpose of the entire objective of the operations, leaving the Security Forces no option but to virtually surrender. As already explained, much would depend on the precise circumstances prevailing at a given time and Field Commanders would be presented with difficult choices between protecting civilians and also protecting their own troops. In this regard it would also be pertinent to recall that several States have interpreted the term ‘military advantage’ in relation to the Principle of Proportionality in attack, as including the security of the attacking forces". (Note: This refers to the state’s armed forces)

"The Commission also notes in this regard a State’s obligation to select an objective, the attack on which may be expected to cause the least danger to civilian lives, and to civilian objects, is not an absolute obligation as it only applies when a ‘choice is possible’. Given the complexity of the situation that presented itself as described above, the Commission after most careful consideration of all aspects, is of the view that the Security Forces were confronted with an unprecedented situation when no other choice was possible and all "feasible precautions" that were practicable in the circumstances had been taken".

US Ambassador Butenis, according to a Wikileaks cable, warned that no government would conduct an investigation that would allocate a portion of the blame to the excesses of its armed forces or concede the crimes of its side. The last three quotes bear this out and could have been, not from the report of a commission of inquiry, but from a submission made by the armed forces to a commission of inquiry.

There is nothing in the report to show that the Commissioners probed the Executive branch regarding orders given to field commanders. This is a most serious defect if the Report is to contribute to judgements about war crimes of the political leadership.

Read the evidence; ignore the conclusions

The report does contain many statements made by witnesses contradicting what the Commissioners would have us believe. If you read the evidence and ignore the Commissions subtext you can reach conclusions contrary to those of the learned commissioners. So I would like to offer a theory about why they reported so much of this damaging evidence but refused to draw obvious and self-evident conclusions.

I speculate that the contradictions pertain to the functioning of the subliminal portions of the human mind. In circumstances of gross repression, as in Sri Lanka, it is a brave man who will draw self-evident inferences from evidence that incriminates the armed forces or the political leadership. The way out the commission has chosen is a clever one; record and reproduce the evidence in full, say you don’t think the charges of human rights violation are convincing, and then leave it to the public and the international community to draw obvious inferences. I am reminded of Tennyson musing about Lancelot: "Faith unfaithful kept him falsely true". In like vein it is best to read the evidence, ponder the discourse, some of it quite good, then ignore the conclusions and decide for yourself.

Correction: Last week, referring to Malinda Seneviratne, I intended to say: "Killing Fields, in his view, was unbalanced because not enough had been shown of LTTE human rights violations, murders and terrorist attacks". The not was omitted, sorry.

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