A proportionate response? At its heart the disagreement between the Paranagama and OISL reports is a disagreement over whether the shelling of civilian areas was justified.

Since the extension of its mandate by President Rajapaksa in August 2014, the Presidential Commission on Missing Persons – the ‘Paranagama Commission’ – has been the principal mechanism through which the Sri Lankan government has sought to investigate (if only in appearance) allegations of war crimes during the final stages of the civil war. This time around their tactic has been to admit that some individual crimes may have taken place, but to wholly refute the idea that more serious “system crimes” took place. This line of argument is not just wrong – it could prove calamitous to Sri Lanka’s reconciliation process and have a dangerous influence on the global debate about the extent to which civilians ought to be protected in conflict.

As the Sri Lanka Campaign has argued previously, the fact that this commission was itself appointed by one of the accused parties, the Sri Lankan government, should raise serious doubts about its ability to address these issues credibly and independently. That scepticism has since been reinforced by revelations that, prior to his appointment, the Commission’s “Chairman”, Desmond de Silva, provided a legal opinion to the Sri Lankan government in which he appeared to exonerate them of war crimes – a development which prompted the Sri Lanka Campaign to lodge an ongoing formal complaint process with the UK Bar Standards Board (BSB).

In this context, the nature of the findings and conclusions of the Commission’s report, released in mid-October, will have come as little surprise. Whilst its admission that some individual war crimes may have taken place represents  a significant improvement on the blatantly fraudulent attempts by the previous government to re-write the history of the final stages of the civil war (as embodied by the LLRC report and various Rajapaksa led PR ploys), true to type, it provides a broadly pro-government factual and legal interpretation of those events – dismissing independent estimates of total civilian casualty figures in the ‘No Fire Zones’; rejecting allegations of indiscriminate and disproportionate targeting of civilians by the Sri Lankan armed forces; and finding the LTTE ‘principally responsible’ for the loss of civilian life.

Such findings stand in stark contrast to many other independent accounts and analyses of the end of the civil war including those of, eyewitnesses, civil society organisations, and a UN appointed panel of experts. They also contradict those of the most meticulous and comprehensive analysis of the period to date, the report of the UN High Commissioner for Human Rights’ Investigation on Sri Lanka (OISL), which – released only a month prior to the Paranagama report – was clear in its view that many of those allegations under its consideration “would amount … to war crimes and/or crimes against humanity” if established before a court of law. Crucially the “OISL” report made it very clear that these crimes were of a systemic nature – that is, part of a broader enterprise planned and coordinated by the political and military leadership. The Paranagama report appears to be an attempt on behalf of the Sri Lankan Government to negate this conclusion.

In light of the recent Human Rights Council resolution in which the Sri Lankan government committed to a programme of measures to begin to deal with the past, this rejection by the Paranagama report of such ‘system crimes’ provides a strong indication of the path they may now take – both in terms of the parameters of the accountability mechanism which the government might seek to establish, and as a flavour of the line of defence that those who come before it might use.

The narrative it seeks to construct – that war crimes may have been committed by a few ‘bad apples’ in what was otherwise a proportionate and justified military campaign – is very clearly designed to absolve the military and political leadership of responsibility for the mass killing of thousands of civilians in early 2009. However, it is an interpretation of events that is deeply flawed – both factually and legally – and which, if accepted, would set a dangerous precedent in Sri Lanka and beyond.

In terms of its factual construction the final stages of the war, the report relies heavily on official documents and reports that remain unpublished and therefore closed to further scrutiny. Where the commission does rely on 3rd party evidence, beyond those of its own government-appointed ‘international experts’, the report frequently misquotes and misrepresents sources – whose own critical conclusions about the conduct of the Sri Lankan security forces are generally silenced. The absence of substantial victim and witness testimony from the report, and of course that of independent investigators who have been systematically excluded from the conflict zone over the past 6 years, raise many further doubts about the report’s claim to establish the truth.

This factual analysis is coupled by an equally flawed legal interpretation which, as argued by two powerful critiques written by separate international law specialists (one available here and one forthcoming[1]), misunderstands and misapplies the law governing armed conflict and distorts many of its key concepts and principles. Among the many criticisms which make up these detailed and thorough rebuttals, three specific points stand out.

First, the Paranagama report grossly misapplies the proportionality test for military action by incorrectly invoking the overall necessity for the military campaign – rather than that for specific individual attacks – as a justification for the proportionality of its bombardment of the ‘No Fire Zones’. Second, it ignores the fundamental principle of non-reciprocity, which leads it to wrongly imply that the LTTE, through its action, ‘forced’ the choices of the Sri Lankan military in ways which made the number of civilian deaths ‘an inevitable consequence’. And finally, the report it attempts to recalibrate, unjustifiably, the law on involuntary ‘human shields’ – that is, persons held against their will by the LTTE to help shield military objectives – in order to justify a permissive approach to civilian harm in areas in which they are present.

With conversations about the establishment of a special court in Sri Lanka now beginning in earnest, the deep flaws within this latest report should strike a resounding note of caution among those who expect to see a serious and meaningful accountability process – one which can address, root and branch, the deep culture of impunity within Sri Lanka, and that can satisfy the call from war survivors that the real perpetrators of crimes committed during the civil war be held to account.

Ongoing airstrikes in Syria make the debate over the legitimacy of targeting civilian areas more relevant than ever. Source: aanis via Creative Commons.

The factual and legal analysis presented within the Paranagama report suggests that there is still an enormous gulf between the political willingness for change and these very urgent demands. In particular it suggests that the Government of Sri Lanka might be willing to sacrifice a few individuals to the demands of accountability, but is not willing to own up to the systemic nature of the violations that were committed. But unless they do so, then this attempt at reconciliation will join Sri Lanka’s long list of failures on accountability, and the chances of Sri Lanka’s peace becoming sustainable will recede.

And while exposing this report’s inadequacy will of course be vital for the future of Sri Lanka, should its legal analysis take root and provide a justification for similar military campaigns around the world, it will have been a very dangerous whitewashing exercise indeed. Recently a senior Russian politician became the latest champion of the ‘Sri Lankan model’ of fighting wars. As we have previously argued, this is a model which, if emulated, will have catastrophic consequences far beyond Sri Lanka.

[1] Daboné, Z. (forthcoming 2016), ‘Applicability of international humanitarian law and international human rights law – Sri Lanka’.