Encountering ‘Death Counts’ in  the Final Phase of the Eelam War

by G. H. Peiris

Continued from yesterday

"Confusion among LTTE ranks was also confirmed by Komathy. The LTTE also for the first time, on 14thMay, announced that civilians who wanted to leave could leave. However, there were some instances after that where they had ordered would be escapees not to do so. We reported in Special Report No.32 that a large group of civilians, who went to a Palmyra nursery near Nanthikadal Lagoon before dawn on the 14th to cross to the other side or to Vattuvakkal to the south, were shot at by the LTTE killing about 500 of them. We (i.e. UTHR-J) have had further confirmation of this".

"(At Puthumathalan), according to Dr. V. Shanmugarajah, (on 10-12 May) … ‘a total of 430 ethnic Tamil civilians, including 106 children, were either brought to the hospital for burial or died at the facility after (the artillery) attacks’. (He added): ‘But the death toll was likely closer to 1,000 because many of those killed would have been buried in the bunkers where they were slain, and many of the gravely wounded never made it to the hospital for treatment’.

"Dr. Shanmugarajah had told the Associated Press on Sunday (10th May) that artillery fire killed at least 378 civilians and wounded more than 1,100. .. Civilians who came out gave figure around 2000 as the number of people killed as did TamilNet. Having accounted for 430 dead, Shanmugarajah’s estimate that the total is closer to 1000 was a cautious projection he was entitled to make as one with first-hand knowledge of the ground situation".

"‘Kiruban’, not real name, (said) heavy shelling began again around sunset. In a group of about 1000 they began moving towards Irattaivaykkal along the shore on Nanthikadal. The shelling caused several deaths in the crowd of people. Kiruban too saw hundreds of corpses on the way. He estimated that about 150 of those in the crowd got killed".

"Thavamani (pseudonym) … said that the shelling had been very intense until 19h May. From messages passed between bunkers in her area, she estimates that about 150 persons were killed by shelling in her vicinity. All those who were in Mullivaykkal at the latter end that we have spoken to, are agreed that countless deaths occurred during these days while the Army and LTTE were slinging it out at one another with no concern for the people. Odd testimonies coming from the security forces confirm that the area was awash with dead bodies".

"Kannan, a family man from Visuamadu, escaping along the Nanthikadal shore (on 17 May), saw about 500 corpses".

"After the final bash it (i.e. the government of Sri Lanka) announced on 18th May: ‘Despite the speculations of a bloodbath and a humanitarian catastrophe at the final military push Sri Lankan soldiers were able rescue about 70,000 people within the last 72 hours without causing any harm to the innocent’. In fact 29 000 civilians were transported from the battlefield to Chettikulam Zone 4 from 18th May and 1400 injured civilians to Padaviya Hospital. Civilians were coming out of the war zone until at least 20th May 2009. This means there must have been nearly 35 000 civilians left when the Government said on the 17th afternoon there were none".

There are many other sets of similar "credible evidence" (space limitations prevent more being cited) claimed to have been elicited by the UTHR-J from persons given pseudonyms such as ‘Kailash’, ‘Gunam’, ‘Nick’, ‘Revathy’, ‘Rani’, ‘Maniam’, etc. or referred to as "a survivor", "a senior community leader", "a church worker" etc. all of which converge on the theme of Vanni civilians in large numbers being annihilated in indiscriminate attacks by the armed forces of the government or, in a few instances, by the LTTE cadres. (Note that in regard to the anonymity of the IDP informants in the war zone maintained by the UTHR-J, Drs. Vartharaja and Shanmugarajah are among the rare exceptions).

A comment on the content  of these extracts

Although it is distasteful to make critical comments on the harrowing tales of human suffering, whoever relates the tales, it would be rank stupidity to discount the possibility that at least some of the stories recounted by the UTHR-J could have been fabricated. Indeed, the sworn affidavit of Dr. Shanmugarajah (dated 10 May 2012) which has received wide publicity, contains, among other things, a damning exposure of certain UTHR-J distortions, and throws doubt on the credibility of the entirety of its sanctimonious writings. In addition, what he has said about Ms. Gnanakumr Thamilvani - (nom de guerre, ‘Vani Kumar’) the pet witness of ‘Channel 4’ - sheds light on the realities concerning narratives on which such writings have been based.

One should also be conscious of the ease with which evidence could be manufactured retrospectively and with impunity in the prevailing peaceful ethos of the ‘North’ (former lackeys of the LTTE having regained their political respectability) for the purpose of authenticating such tales, so as to convince the gullible or strengthen those pursuing programmes of ‘regime change’ and ‘destabilisation of recalcitrant states’.

Further, it is precisely the harshness of UTHR-J exposures and criticisms of the crimes committed by the LTTE that provides a façade of impartiality to almost whatever it says about the government of Sri Lanka and others who refute its views. Since it is common knowledge the world over that the LTTE never hesitated to commit any heinous crime or any violation of civilized ethical norms, publicizing even its most outrageous brutalities could make hardly any impact on the status co of its ‘external relations’. To the governments of Sri Lanka, in contrast, the outcomes of UTHR-J’s "exposures" are, as recent experiences demonstrate, entirely different.

This is probably why Prabhakaran, who persisted to the very end with ruthless suppression of any dissent or any challenge to his hegemony, administering capital punishment even on certain persons of his own community for the display of inconsequential deviations from the prescribed path, permitted the UTHR-J (since the murder of Rajini Thiranagama, a founder member of the UTHR-J, back in the ‘80s when the LTTE had formidable rivals in Jaffna) to persist with its ‘good work’, totally unhindered. What should also be emphasised is that in both UTHR-J reports I have referred to there are strident calls for an "independent inquiry" into what happened at this stage of the war, just like what Marzuki Darusman, Navi Pillay, David Cameron or Ban Ki-moon demand. Needless to say, any inquiry that finds the government of Sri Lanka not guilty of war crimes and crimes against humanity would ipso facto be biased or misconstrued!

What is of more direct relevance to the present study is not so much the general fact that the UTHR-J "exposures" were not confined to the alleged crimes committed by the SL Army, but the way the ‘Sporadic Information Method’ has been applied in its attempt to enumerate the Vanni civilian deaths.

The ‘Special Report No. 34, Sections 5.1 & 5.2 which is titled ‘The Population Game: Disappeared on Paper and Killed with Cannon’, contain the UTHR-J analysis of information pertaining to how many Vanni civilians were killed from early January to 19 May.

The analysis is prefaced by a vituperative criticism of the "government’s cavalier attitude to the lives of the trapped people" allegedly reflected in the official underestimations of the Vanni population throughout this period with the sinister intention of denying the inhabitants of the war zone an adequate supply of food. Here, we find no mention of the fact that several the UN agencies, the ICRC and the US embassy also underestimated the size of the Vanni population.

The UTHR then states that the surest way to find out how many died is to compare (a) the number of those who arrived in IDP camps with (b) an authoritative estimate of the original Vanni population ("original" refer to early January 2009).

There are, as shown earlier, no estimates of the size of the ‘Vanni population’ in the immediate aftermath of the eviction of the LTTE from its base at Kilinochchi on 1-2 January 2009 - certainly not any that are free of serious blemish. Yet, in what purports to be seen as a serious search for such as ‘base estimate’, the UTHR-J refers to the following computations that were available at the time of compilation of its reports:

(1) The estimate by the UN High Commissioner for Refugees that in November 2008 there were 230,000 IDPs in the Vanni.

(2) The estimates by the Government Agent Imelda Sukumar of a Vanni IDP population of 360,000 in November 2008, and by Assistant Government Agent Parthipan of a war zone IDP population of 360,000 in early March 2009.

(3) The estimate by the Consortium of Humanitarian Agencies that "currently (date not specified) Vanni civilians number about 300 000."

(4) That in January 2009, "the UN spoke of 230 000 IDPs on the move" in the war zone.

(5) The ICRC estimate of a Vanni civilian population of 250,000 in January 2009.

(6) A statement attributed by the ‘International Crisis Group’ by the ICRC that there were 150000 people in the NFZ2 in early March.

(7) An ‘opinion’ that there were at least 330,000 civilians in the NFZ2 in March 2009 which a "senior government administrator" had expressed in conversation with a "senior community leader" who, in turn, had conveyed in to the UTHR-J.

Thereafter the UTHR-J which in one of its earlier writings had cast doubt on the authenticity of the estimates by the two government agents (items 2, above), takes the stand that the ‘Sukumar-Parthipan estimates’ are, after all, the best available, and proceeds to conclude (entirely on the basis of a comparison of the estimate for early March attributed to Parthipan with the aggregate of civilian survivors of the war) that the Vanni civilian death-toll would be in the range of 20,000 to 40,000. It was though the same type of contrived procedure, but with vague references to "credible evidence", that the UNSG-PoE also arrived at an identical conclusion of the Vanni death-toll about two years later.


3.3.2. UN Secretary General’s Panel of Experts (UNSG-PoE)

Since the UNSG-Panel of Experts’ Report has already been placed under intense critical scrutiny in The Numbers Game authored by the ‘Independent Diaspora Analysis Group’ at a level of thoroughness and force of logical reason- ing which could hardly be matched, it is sufficient to state here that the three "experts" handpicked by Dr. Ban Ki-moon should bear the brunt of responsibility for perpetrating a fraud that has brought into light the disreputable manner in which the United Nations bureaucracy functions at its highest levels. The Secretary General, when questioned about the pro- cedural propriety of appointing that ‘Panel’ responded with a statement which implied that he has the discretion to seek advice from any source - a legitimate claim, no doubt. After the submission of the report to his office, however, it was not only leaked to the media in an obvious attempt to denigrate the government of Sri Lanka, but has also continued to be used at ‘Sri Lanka Periodic Reviews’ con- ducted by the Human Rights Council, not as a personal communication addressed to the UNSG containing a collection of unsubstantiated accusations replete with misinformation and contradictions, but as an well founded indictment that some- how carries the weight of formal sanction by the world body.

A glimpse of how the ‘Sporadic Information Method’ could be misused in

‘kangaroo court’ fashion is illustrated by the ‘UNSG-PoE’ in the following extract (Paragraph 137) with which the trio con- cludes their probe into the civilian death toll:

"In the limited surveys that have been carried out in the aftermath of the con- flict, the percentage of people reporting dead relatives is high. A number of credi- ble sources have estimated that there could have been as many as 40,000 civilian deaths. Two years after the end of the war, there is still no reliable figure for civilian deaths, but multiple sources of informa- tion indicate that a range of up to 40,000 civilian deaths cannot be ruled out".

The ‘bold’ font (mine) is intended to highlight the sophistry and perversion which the three ‘experts’ had brought to bear upon their task. Let’s ignore the tediously repetitive references to unnamed "credible" sources on which their report almost in its entirety is based and accept the explanation that the secre- cy regarding sources is intended to pro- tect informants. But, confining ourselves

to this small passage, what is the need for secrecy about the "limited surveys"? Who conducted the surveys? Where and on what samples were they based? Where in Sri Lanka can one find people who do not have "dead relatives"? What were the "multiple sources of information"? Surely, this is not the type of bluff that could sustain a prima facie charge of "war crimes"?



3.3.3. Commission of Inquiry onLessons Learnt and Reconciliation /‘LLRC ‘

The task entrusted on the LLRC could be summarised as one that entailed the conduct of an inquiry into "facts and cir- cumstances" of the Sri Lankan conflict over the period from 21 February 2002 up to 19 May 2009. It was required to gather information on crimes committed (includ- ing violation of human rights) in the course of the conflict, identify those responsible for such crimes, and to draw from the conflict experiences lessons of relevance to preventing similar conflicts and promoting peace and harmony in the country.

What could be considered a synthesis of the Commission’s findings that relate to the subject of crimes committed in the final phase of the war is encapsulated in the following passage (Paragraph 9.42) of its report.

"During the public sittings and field visits to conflict affected areas, a large num- ber of representations were made before the Commission alleging the violation of fun- damental rights and freedoms of people affected by the conflict. These include abductions, enforced or involuntary disap- pearances, arbitrary detention, conscrip- tion of underage children, extrajudicial, summary or arbitrary executions, viola- tion of the freedom of expression, move- ment, association, freedom of religion, and the independence of the media etc. Representations were also made on issues pertaining to the rights of IDPs, and other vulnerable groups such as women, children and disabled. The Commission considers that its recommendations on these human rights issues are critically relevant to the process of reconciliation".

Placing the LLRC Report under com-prehensive critical scrutiny would extend beyond the scope of the present study. But since it has often been considered as Sri Lanka’s official response to the allega- tions of ‘war crimes’ and ‘crimes against humanity’, and since one of the cardinal objectives of the present study is that of reviewing a key aspect of such allega- tions, I find it appropriate to refer (as

briefly as possible) to certain negative fea-tures of the LLRC investigations and the contents of its report.

Chapters 4 and 5 of the Commission report consist almost entirely of the evi- dence pertaining to the war zone gath- ered by the LLRC and presented in the form of hundreds of testimonies by per- sons from a wide range of social back- grounds such as civilian victims of the conflict; incarcerated LTTE suspects; mil- itary personnel including policy-makers; professionals in civil administration, social welfare services, journalism and law; activists in mainstream politics; reli- gious leaders, and others who could be referred to as cognoscenti of Sri Lankan affairs. The deficiency in this component of the report is that, when considered in its entirety, one could find hardly any addition to the generality of the existing mass of information presented in various public statements and reports such as those published by the UTHR-J, TamilNet, UNOCHA, ICRC, Sri Lanka Ministry of Defence, except that the LLRC has, by accommodating informa- tion furnished by neutral and pro-govern- ment sources in its report, compiled a more balanced list of things that hap- pened in the Vanni war zone. Another caveat that must be added to this criti- cism is that the LLRC post-war investiga- tions within Sri Lanka have been of much wider scope than those claimed to have been conducted by any other person or institution. However, since it has all along been known that homicide, torture, plun- der, enslavement, forced conscription, denial of fundamental rights etc. etc. were committed before, during, and after the war, both within and outside the war zone, any worthwhile addition to that knowledge by a Commission of Inquiry should have been in the form of conclu- sions relating to the overall scale of such crimes and the related culpabilities. The only synthesis of the empirical evidence so laboriously gathered and incorporated into the report with a measure of certain- ty is that the security forces of Sri Lanka did not deliberately bombard or shell civilian targets in the war zone. Even this falls short of what one could legitimately expect because, apart from a brief sug- gestion of doubt on the authenticity of the ‘Channel 4’ cinematography on extra- judicial execution of prisoners, and an even more superficial foray into the inter- pretation of ‘satellite imagery’ by the UNSG-PoE, the commission has refrained from probing at depth many other allega- tions against the Sri Lanka army that have received worldwide publicity.

To digress briefly from the subject of civilian war casualties, it is common knowledge that the ‘Commissions of Inquiry Act’ confers on Presidential Commissions a wide range of statutory powers. These include the powers to sum- mon witnesses and, where appropriate, compel witnesses (regardless of their sta- tion on life) to submit documents in their possession that might contain relevant evidence. The concealment of the sources of information (which journalists some- times claim as an inalienable right) is evi- dently disputable in law that applies to witnesses of Presidential Commissions. The LLRC procedures and its Report, however, convey the impression that the Commission preferred to depend on vol- untary sources of information, leaving the decision of what to reveal and what to conceal at the discretion of the witness, a few instances of desultory cross-exami- nation excepted. It is this approach - pos- sibly impelled by a mindset that the Commission should attempt some recon- ciliation on its own (laudable?) - that probably accounts for the most glaring deficiency of the LLRC Report. To be spe- cific, most of the allegations being made against the government of Sri Lanka at an international plane have their origin in Sri Lanka in the form of local inform- ants almost entirely of the NGO sector and among for mer LTTE loyalists (including some presently in the national legislature). Especially since this phe- nomenon is of utmost salience to post- war ‘reconciliation’, the Commission could have exercised its statutory powers to unravel not only the mysteries of how these organisations function, why they flourish, what are their sources of exter- nal patronage, who constituted their claimed networks of information in the war zone, and what type of evidence they used to make some of the damning accu- sations against Sri Lanka.

Returning to the main concern of the present study, what should certainly be highlighted as a deficiency of the LLRC Report is the fact that it has refrained from a critical evaluation of the Vanni death counts that were available prior to the completion of its task. These include the UTHR-J ‘Special Reports’ Nos. 32 and

34, the ‘Darusman Report’ and the vari- ous estimates by UN-OCHA and the ICRC. That such an evaluation, impartial but incisive in approach, could have been made with the resources and statutory powers placed at the disposal of the Commission is amply demonstrated by the far more useful study conducted by the IDAG a section of which I have

already placed under scrutiny. This omis-sion on the part of the LLRC conveys the impression that there is no evidence from the war zone which contradicts the absurdly high death-toll estimates, including the speculative upper limit of the count referred to in the Darusman Report and its upward revision by the ‘UN-SG Internal Review Panel.

3.3.4. Michael Roberts

Unlike the reports compiled by the ‘UNSG PoE’ and the UTHR-J, the writings by Professor Roberts demonstrate both the possibilities and the limitations of the

‘Sporadic Infor mation Method’ in its application to situations such as that of the Vanni war zone, and how a commit- ted scholar with no axe to grind and no political cause to promote, could weigh a mass of information gathered from a miscellany of sources, and arrive at rea- sonably plausible findings (not that I agree with all of them) without being judgemental and obdurate. Having placed several estimates by others under critical scrutiny, Roberts has opted to base his own estimate mainly on infor- mation conveyed to him by three persons on whose judgement and impartiality he has implicit trust. He also finds some corroboration of that information from the estimate derived by the IDAG through the ‘Injury-to-Death Ratio Method’. In placing his own estimate within such as wide range of numerical values - 10,000 and 18,000, i.e. with a deviation of

±28.25% from the median value - he has correctly implied that, in any quantifica- tion of this type, the margin of error is necessarily hazy. In using this method, Roberts has not ignored or concealed evi- dence that does not conform to precon- ceived conclusions (as the UNSG Panel has so often done), he is conscious of the

‘Rashomon Effect’ on cognition of events and incidents by eyewitnesses; and, in contrast to ‘fly-by-night’ experts who never hesitate to pontificate on Sri Lanka, he has an incisive understanding of the country’s grass-roots realities, acquired through long years of personal experience and research. My only reser- vation about his estimate stems from the fact that although he (more than other writers on this subject) has stressed the impossibility of separating the combat- ants from non-combatants especially in the chaotic finale of the war, his tally seems to somehow gloss over that diffi-culty.

To be continued tomorrow

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