US lawmakers’ ignorance of civilian casualties in Lanka’s war on terrorism

by Daya Gamage

Foreign Service National Political Specialist (ret) US Department of State

(Continued from yesterday)

Williamson cable on ICRC statement

Williamson cable further noted what Jacques de Maio said about the LTTE and its strategies: “On the LTTE, de Maio said that it had tried to keep civilians in the middle of a permanent state of violence. It saw the civilian population as a “protective asset” and kept its fighters embedded amongst them. De Maio said that the LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred …”

Ambassador Williamson met the ICRS South Asia Head to collect information in relation to US Congressional reporting requirements as the latter was the only person who could provide a clear picture of the ground situation. How come these reports never reached American Congressmen? Was it due to a lapse on the part of Sri Lanka?

One party to the conflict in Sri Lanka is considered non-existent and holding that party accountable for its actions is not possible. Therefore, only Sri Lanka’s actions have come under scrutiny. This writer and his co-author of a manuscript now being developed on US-Sri Lanka relations, Dr. Robert K. Boggs, a retired Senior Foreign Service – Intelligence Officer of the State Department, have been told by many senior (now retired) Foreign Service officers of the US. Department of State that Sri Lanka should be held to a higher level of accountability as it is the legitimate (state actor) administration bound to adhere to international laws insinuating that the separatist-terrorist group – the LTTE – is an illegal organisation that did not abide by international laws anyway.

The International Community, as well as the Office of the UN Secretary General along with the UN High Commissioner of Human Rights (UNHCHR) and the UN Human Rights Commission (UNHRC), after the conclusion of the Eelam War IV, commenced their investigation solely to ascertain whether the Government of Sri Lanka had adopted appropriate precautions for the protection of civilians instead of finding whether the Tigers had taken adequate measures to keep the civilians away from the battlefield.

The circumstances under which the unarmed civilians were present in the battlefield were never factored in by the global investigators. Even now by the ‘presenters’ of ‘resolutions’ to the US Congress. Had the global investigators looked into what motivated and under what circumstances the LTTE kept the civilians in or around military objectives they would have connected such exercises to the IHL norms. The United States, it is well known, in its overseas Global War on Terror (GWoT) operations in Iraq, Afghanistan and other places, has not always been transparent about the civilian casualties caused on its watch. The Executive Order – United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force – signed by President Obama in July 2016, among other matters, to assess, report and make public civilian casualty figure was drafted at a time when there was no other systematic reporting of civilian casualties. Section 3 of the Executive Order directs: (Quote) Report on Strikes Undertaken by the U.S. Government Against Terrorist Targets Outside Areas of Active Hostilities. (a) The Director of National Intelligence (DNI), or such other official as the President may designate, shall obtain from relevant agencies information about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities from January 1, 2016, through December 31, 2016, as well as assessments of combatant and non-combatant deaths resulting from those strikes, and publicly release an unclassified summary of such information no later than May 1, 2017. By May 1 of each subsequent year, as consistent with the need to protect sources and methods, the DNI shall publicly release a report with the same information for the preceding calendar year. (End Quote) President Donald Trump in an Executive signed March 2019 revoked Section 3 of Obama Executive Order. The decision to revoke Section 3 in fact reduced transparency regarding a portion of the most sensitive and secretive of U.S. actions.

The Obama Executive Order was issued at a time when there was no other systematic reporting of civilian casualties. Noting here is that since the conclusion of the Eelam War IV until Washington used UNHRC to reiterate transparency and accountability of Sri Lanka’s actions during the final stage of the war and emphasising the importance of setting-up a hybrid judicial body to probe alleged IHL violation in the 2017 Resolution in Geneva is vital amid the revocation of Section 3, and what Section 3 itself did not bring forth. The US Congress however mandated that the Pentagon provide annual reporting of civilian casualties from its operations in the War Theater under Section 1057 of the National Defense Authorization Act (NDAA).

It should be mentioned here that Section 1057 reporting includes only the Defense Department’s portion of Section 3 reporting. However, the information required by Congress is much higher – it includes civilians wounded as well as killed. Even Obama’s Section 3 of the Executive Order did not give a mandate to provide such data by geographic areas. On the other hand, Section 1057 does not include a toll of estimated combatant deaths to compare against the number of civilian casualties.

The elimination of Section 3 reporting requirement creates a transparency gap regarding civilian toll from any non-Defense Department lethal actions in Iraq, Afghanistan and elsewhere in the war theater. Since the conclusion of the war, the UN and the international community placed more emphasis on the conduct of the military of the GSL ignoring the behaviour of the fighting cadre of the LTTE. The conduct of both parties was not simultaneously assessed to get the larger scenario of the final stage of the battle.

The expert opinion is IHL does not specify how exactly two dissimilar values, human life and military advantage, should be weighed against each other for the purposes of proportionality. It is further complicated by disagreement over who counts as a civilian with immunity from attack and over what exactly constitutes a military advantage. The investigators and accuses of Sri Lanka did not attempt to give a broader focus on these complicated issues. The seven US House Members who tabled the Resolution this month were never apprised of the above scenario: The pro-Tamil Homeland Diaspora Tamil activists who were behind the Resolution concealed all that; and Sri Lanka, all these years, even now, has failed to use its diplomacy to place these ‘revealing facts’ before the policymakers and lawmakers in Washington and elsewhere.

This lacuna compelled this writer and Robert Boggs to develop a manuscript using both our understanding, experience and intense knowledge gained during a thirty-year engagement in the area of foreign affairs, how Washington used its diplomatic maneuvers toward Sri Lanka and the manner in which how lethargic Sri Lanka all these decades (and even now) failing to provide cogent evidence about Sri Lanka’s demographic formation, intra-ethnic and inter-ethnic divisions, cultural patters shared by all ethnic groups, the discrepancies between urban and rural division that have affected all ethnic communities to those who formulate policies in Western democracies. The May 15, 2024 Resolution tabled in the US House of Representatives manifests their lack of research ability and basic thinking. Sri Lanka is equally responsible of its lack of diplomacy. (Concluded)