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

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US Congress

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


Declaring that the government of Sri Lanka, while combating ‘Tamil Organizations’ which were fighting for a Tamil Homeland in the North-East, committed genocide against the Tamil people, a resolution was tabled in the US House of Representatives, on May 15, 2024, to coincide with the 15th anniversary of the conclusion of the LTTE’s terrorist war; it states, “Recognizing the hundreds of thousands of lives lost during Sri Lanka’s almost 30-year armed conflict, which ended 15 years ago on May 18, 2009, and ensuring nonrecurrence of past violence, including the Tamil Genocide, by supporting the right to self-determination of Eelam Tamil people and their call for an independence referendum for a lasting peaceful resolution”.

The Resolution also quotes the then State Department Assistant Secretary Richard Boucher, during a visit to wartime Sri Lanka on June 1, 2006 as having said, “There are legitimate issues that are raised by the Tamil community, and they have a very legitimate desire, as anybody would, to be able to control their own lives, to rule their own destinies and to govern themselves in their homeland; in the areas they’ve traditionally inhabited.”

Ill-conceived use of Boucher’s pronouncement

It is ill-conceived to use Boucher’s 2006 pronouncement in the year 2024 when Government of Sri Lanka’s ‘Census of Population and Housing’ even in the Year 2012 – well acknowledged by official reports of the World Bank – that of the 11.14 percent of Sri Lankan Tamils (excluding the near 5 percent Tamils of Indian Origin living in the plantation areas in the centre of the country) only 7.81 percent is living in the North-East (Tamil Homeland) and 3.34 percent domiciled in the rest of the country in the Sinhalese-majority districts with gainful employment, access to housing, education and economic opportunities away from the so-called Tamil Homeland in the North-East. In 2012, the percentage of Sri Lanka Tamils living outside the North and the East is 42.76 percent, and in the Year 2024 it is closer to 50 percent.

If someone explained these demographic data to Members of the U.S. House of Representatives wouldn’t they entertain a second thought as to in what manner 50 percent of Tamils could claim a ‘Tamil Homeland’ when another (close to) 50 percent is left out? Let’s bring to the attention of American lawmakers and policymakers cogent facts related to ‘genocide’ and ‘civilian casualties’ and also ‘encourage’ ‘others’ that have ‘legitimate and moral authority’ to use their ‘diplomatic overtures’ to educate Washington. Since the military battle between the Government of Sri Lanka (GSL) and the Tamil Tigers ended in May 2009, the issue of civilian casualties during the final months of the battle and the human shield associated with it emerged when Sri Lanka’s accountability and transparency were focused on the Office of Secretary-General of the United Nations, the US Department of State, the US Congress, global human rights organisations and in many Western administrations.

Human shields

Following the deaths of the Tamil Tigers, the issue of human shield – to which the non-state actor was solely responsible and well known to the international community – became a secondary issue while the civilian casualties were given much prominence. Insinuating that civilian casualties were largely due to GSL’s military offensive, accountability and transparency figured prominently in Resolutions adopted by the UN Human Rights Council (UNHRC) in Geneva since 2012 and subsequently in 2015, 2016 and 2017; they called for a hybrid investigative mechanism to probe as to whether Sri Lanka violated international humanitarian law (IHL).

The prominence given to civilian casualty issue – leading to the allegation of genocide – eclipsed the issue of the use of human shields by the Tamil Tigers. The interconnection of both issues was ignored as they were not simultaneously discussed. It should be critically noted why those who demand accountability and transparency from Sri Lanka failed to include human shields used by the LTTE as a factor in the alleged excessive force analysis.

In a non-international armed conflict, it is appropriate to unearth the legal framework and mechanisms which are associated with the presence of civilians in a battlefield. Since the Eelam War IV (2006-2009) ended, Sri Lanka has been subjected to serious scrutiny of the manner in which it conducted the offensive during the final months. It is vital to note here in what form these allegations of international observers reached the UN and policy-framers/policy-makers of Western nations – in most cases Washington – leading to the accusation that Sri Lanka the IHL and committed war crimes leaving aside larger issues.

International observers rushing to judgment

In the case of Sri Lanka, the tendency of international observers to rush to judgment – and censure –is evident from the exaggerated civilian fatality figures cited extensively in their reports. The number of unarmed Tamils killed during the final stage of the war (January – May 2009) has been arbitrarily placed at 40,000. These deaths are blamed largely on the Sri Lankan military personnel who were accused of using excessive and indiscriminate force, and thereby committing war crimes.

The figure of 40,000 was arrived at by subtracting the number of internally displaced civilians from the UN’s estimate of the number of civilians caught up in the final offensive. According to a diplomatic cable from the US Embassy in April 2009 to the State Department, the UN had estimated that from January 20 to April 6, civilian fatalities numbered 4, 164 and 10,002 others were wounded.

An unpublished report by the United Nations country team in Sri Lanka stated that from August 2008 to May 13, 2009 (six days before the war ended), the number of civilians killed was 7,721. The International Committee of the Red Cross, the only outside agency, which was present in the war zone during the final phase, used various statistical indicators to conclude that the total number of noncombatants killed was around 7,000. On 09 March, the UN Country Team, for the first and only time, briefed diplomats in Colombo on the civilian casualty figures it had collected from the Humanitarian Convoy 11 (they were allowed in the battle zone).

According to this briefing, 2,683 civilians died between 20 January and 7 March, and 7,241 persons were injured. But the UN Country Team did not indicate to the diplomats that the vast majority of the civilian casualties were due to government shelling. (United Nations, “Report of the Secretary-General’s Internal Review Panel on UN Actions in Sri Lanka” 2012 Page 11). The British military attaché in Colombo reported that about a quarter of those killed were possibly Tamil Tigers who had discarded their uniforms. Despite all these contradictory fatality figures, a commission appointed by the UN Secretary General deemed the figure of 40,000 definitive, and all western governments have since accepted it unquestioningly.

Battlefield reality

Quite apart from the numbers killed and wounded is the question of Sri Lankan behaviour in prosecuting the offensive and how it is to be judged in terms of the law of war. Critics claim that the Sri Lankan forces used excessive force, and especially artillery, indiscriminately; some even claim that civilians were targeted intentionally. In fact, the reason that so many Tamil civilians were interspersed with Tiger combatants in the battle zone is that the latter forced large numbers of civilians to accompany them as they retreated towards the coast, and used them as human shields as government forces closed in.

There are well documented reports of Tigers shooting civilians who tried to save themselves by swimming away across the lagoon. Given the Tigers’ ruthless treatment of civilians throughout the war, there is even a prima facie case to be made that the LTTE leadership welcomed civilian fatalities as a way of galvanising foreign powers to bring Colombo under international pressure to declare a ceasefire.

The LTTE political commissar Puleedevan told some friends in Europe, “just as in Kosovo if enough civilians died the world would be forced to step in”, (Quoted in Frances Harrison’s Still Counting the Dead: Survivors of Sri Lanka’s Hidden War – London: Portobello, 2012)

International Humanitarian Law

International humanitarian law (IHL) provides the legal framework for those who are fighting for one of the parties to an armed conflict, and for those affected by the effects of hostilities. IHL aims to protect those who are not taking part in the hostilities. However, IHL acknowledges that civilians and civilian objects may legitimately be affected by warfare and the existence of collateral damage. Even though civilians and civilian objects may not be directly targeted, the IHL principle of proportionality allows civilian casualties and damage to civilian objects, under the restriction that these are not excessive to the military advantage anticipated.

The IHL principle of proportionality is commonly understood to be stipulated in article 51 (5) (b) of Additional Protocol I (1977) to the Geneva Conventions: “[Prohibited are attacks] … which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”

During the final phases of the Eelam War IV – February through May 2009 – the GSL military had gained the upper hand, and the retreating Tigers in a desperate bid to prevent the Army from advancing, stepped up the forcible conscription and used civilians as human shields. The American lawmakers who tabled the Resolution this month either turned a blind eye to these facts or the pro-LTTE groups pulled the wool over their eyes.

The LTTE political commissar Puleedevan outlined his outfit’s strategy when he stated “just as in Kosovo if enough civilians died the world would be forced to step in”. The LTTE wanted a pause in fighting for its top leadership to flee to the North African state of Eritrea. According to the 15 December 2006 US Senate Foreign Relations Committee investigative report the African nation was providing military assistance to the LTTE.

The GSL was under severe pressure during this final state from the International Community (IC) to agree to a ceasefire to protect the civilians shield as harm to civilians could be interpreted as proof of the use of force excessive relative to the anticipated military advantage and thus disproportionate and prohibited under IHL.

Parity of status for LTTE

It may be recalled that IC, through the Norwegian facilitators, gave parity of status to the LTTE by bringing it to the negotiating table (2002-2004) with the GSL in 2002-2004 although the LTTE had been designated a terrorist organisation in many EU countries and the US. As Ambassador Robert Blake noted in a diplomatic cable “(the) Army has a generally good track record of taking care to minimize civilian casualties during its advances…”, if the GSL military forces, which were under legal constraints, had not refrained from attacking there would have been many more thousands of civilian casualties at the time of the conclusion of the war, as remarked by the ICRC Asia Head to a State Department official. These legal and moral constraints exercised by the GSL military were highlighted by Jacques de Maio, the ICRC’ Head of Operation for South Asia when he met US Ambassador-at-Large for War Crimes Issue – John Clint Williamson for a classified briefing – on July 9, 2009 along with several INGO heads in Geneva, Switzerland. The ICRC was the only international organization the GSL allowed in the northern battle field for humanitarian work.

The diplomatic cable sent by Ambassador Williamson to Washington – https://wikileaks.org/plusd/cables/09GENEVA584_a.html on the issue of potential violations of IHL, quoted Maio as saying that “the Sri Lankan military was somewhat responsive to accusations of violations of International Humanitarian Law (IHL) and was open to adapting its actions to reduce casualties […] He could cite examples of where the Army had stopped shelling when ICRC informed them it was killing civilians. In fact, the Army could have won the military battle faster with higher civilian casualties, yet chose a slower approach which led to a greater number of Sri Lankan military deaths ….”

Continued tomorrow



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Trump’s tariffs, AKD’s gazette and Sri Lanka’s diplomatic slumber

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“We are rather respectable in Colombo. We go to bed fairly early, and we remain there till morning. “

According to Sri Lanka’s diplomatic folklore, the late S.W. R. D. Bandaranaike uttered these words while explaining the reasons for Sri Lanka’s abstention on the UN resolution condemning the Soviet invasion of Hungary. Apparently, SWRD’s foreign ministry officials were asleep at home when the diplomatic cable seeking instructions was received from New York. In those days, there were no cell phones, Internet, or even fax or telex machines. The diplomatic cables were sent through post offices. Decoding them was a slow and time-consuming process. Thus, the government could not provide appropriate instructions to our mission in New York in time, and the Sri Lankan delegation abstained on that sensitive UN vote.

Sri Lanka’s Absence from Section 301 Consultations

But then, how does one explain Sri Lanka’s absence from the crucial bilateral consultation held in Washington by the Office of the United States Trade Representative (USTR) during March-April on “Forced Labour” under the Section 301 of the US Trade Act of 1974? Didn’t our foreign and trade ministries send appropriate instructions to Washington in time? Even if the instructions from the foreign ministry were transmitted to our embassy in Washington by pigeon carriers, there was enough time for Sri Lanka to participate in those meetings.

In March, the USTR initiated these 301 investigations on 60 trading partners, and invited all of them for confidential consultations. Out of the 60, 46 participated in these consultations. Sri Lanka was not one of them. Other countries that didn’t participate in these consultations included China, Russia, and Venezuela! In addition to that, the Section 301 Committee conducted a public hearing with interested parties on April 28 and 29. Washington-based diplomats, representatives from few trade ministries as well as representatives from many foreign trade associations and chambers participated in these hearings. Sri Lanka was once again conspicuously absent.

As a result, when the USTR published the proposed forced labour tariffs on June 2nd, Sri Lanka ended up with a 12.5% duty. Pakistani and Indonesian diplomats participated in these consultations and took appropriate follow-up measures, and managed to enter the 10% duty category. As even a threat of a modest tariff hike could disrupt supply chains and reduce competitiveness, particularly in an industry such as garments, I discussed this issue on 15 June and underscored the importance of Sri Lanka’s participation at the next hearing, which was scheduled to be held from July 7th .

Awakening from Diplomatic Slumber and AKD’s Gazette

Fortunately, Sri Lanka finally awoke from weeks of diplomatic slumber, and Ambassador Mahinda Samarasinghe participated in the public hearing on 9 July, and promised, “…. · We have agreed to the text in our negotiations with the USTR on forced labour, …. The gazette as we speak is being printed and I’m getting the gazette tomorrow morning, and the gazette will be shared with USTR as I get it“.

As promised, President Anura Kumara Dissanayake issued a gazette on 10 July banning the imports of goods produced by forced labour. These new regulations are very similar to what Pakistan and Indonesia enacted in April, after their consultations with USTR in March. Why couldn’t we do it in April? Why did we wait till the very last minute?

Challenges ahead

“War is too important to be left to generals alone,” is a famous saying attributed to former French Premier Georges Clemenceau. Similarly, monitoring our main markets is too important to be left to diplomats alone. The United States is the largest single-country market for Sri Lanka. Therefore, Sri Lankan trade chambers and associations should become more proactive in these markets and participate in these events. For example, the chairman of the Pakistani apparel exporters association participated in the April hearings. Similarly, representatives from the Indian Agricultural and Processed Food Products Export Development Authority, the Federation of Indian Chambers of Commerce and Industry, the Confederation of Indian Industry, and Reliance Industries also participated in July hearings. At an event where each speaker is given only five minutes (strictly enforced), having a number of speakers from a country is an advantage. The presence of industry representatives in these kinds of events also help them understand the market dynamics and the future challenges. This is important, particularly because there will be many more challenges with Trump’s tariffs.

With the gazette issued on 10 July, Sri Lanka has imposed a prohibition on the importation of goods produced with forced labour. Now, the challenge will be to effectively enforce the prohibition. And what are the goods produced with forced labour? The USTR list only focuses on aluminum, cotton, electronics, lithium-ion batteries, rice, and tobacco. However, according to the U.S. Department of Labour, the list is much longer. Hence, this list may change continuously during the next two years and tariffs may fluctuate once again.

So, this is definitely not the time to slumber.

(The writer, a retired public servant, can be reached at senadhiragomi@gmail.com)

by Gomi Senadhira ✍️

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Tales of Mystery and Suspense 10 Casino for Sale

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After the overwhelming grotesquerie of J K Rowling’s latest Cormoran Strike novel (written, I should have noted, as the others were, under the pseudonym Robert Galbraith), I thought I should return to the world of fun, and also a much shorter description since this thriller moves quickly without the layers of detail that Rowling engages in.

I then move to the second comic thriller by Caryl Brahms and S J Simon. This, their second story to feature Vladimir Stroganoff and Adam Quill, was Casino for Sale, as lunatic a romp as the first, though without the emphasis on the ballet that characterized A Bullet in the Ballet.

This one begins with the impresario Stroganoff buying a casino cheap from Baron Sam de Rabinovich, only to find that it was a rundown place, not the grand casino of La Bazouche, a resort on the Frenc+h Riviera, as he had initially thought. The grand one belonged to Lord Buttonhooke, and Stroganoff could  not compete, until he thought of bringing the Ballet Stroganoff to the casino – which of course leads to Buttonhooke deciding to have ballet performances in his Casino too.

Stroganoff invites Quill to visit him, which Quill decides to do since he has left Scotland Yard, having come into a legacy. No one believes this, and he has to face questions as to what he did to have been sacked, with sympathy for having been found out.

Caryl and Simon

The day he arrives in La Bazouche there is a murder, of a vitriolic critic called Citrolo, in Stroganoff’s office. He had been going to write a damning review of the opening night of the ballet and Stroganoff, when he realizes Citrolo cannot be swayed, drugs him and dictates the review himself to the papers. He leaves Citrolo sleeping and finds him shot the next morning, whereupon he decides to muddy the waters and leave a suicide note and lots of other murder weapons. So much overkill, as it were, of course ensures that he is arrested.

But the excitable French detective who makes the arrest follows up his suggestion that Buttonhooke was also involved, and so the two casino owners find themselves in cells next door to each other, with the detective Gustave quite happy to provide creature comforts for a fee.

Quill decides he must investigate, and finds Gustave most cooperative, since he has a laid back attitude to work. So it is Quill that finds a notebook which makes it clear Citrolo is an accomplished blackmailer, and that there are lots of possible murderers, including Stroganoff’s croupier, who was crooked, Rabinovich, who was now working for Buttonhooke, a confidence trickster called Kurt Kukumber, whose prospectus for a dud gold mine was found in the office and Prince Alexis Artishok who was engaged in a deal to buy diamonds from the ballerina Dyra Dyrakova.

Stroganoff had been trying to get Dyrakova to dance for him, but having done so previously she had refused. But then to Stroganoff’s chagrin she agreed to dance for Buttonhooke. The clearly crooked Artishok had told Buttonhooke’s mistress Sadie Souse, who was not very bright, that Dyrakova possessed diamonds she was willing to sell cheap, and Sadie was determined to have them.

Quill meanwhile finds out that there was a secret passage to Stroganoff’s office, the obvious solution to what had begun as a locked room mystery, and that this was known by almost everyone apart from Stroganoff himself. And then Rabinovich is murdered, just after Gustave had released his two original suspects, leading him to blame Quill for having insisted on that and thus allowing them to kill again.

Soon afterwards Dyrakova arrives, and the town is full of posters announcing that she will appear in the casinos, elaborate posters for either one, since Stroganoff is determined that she will dance for him, and if she does not come willingly, he has devised a scheme to make her do so unwillingly. So, though Buttonhooke has her taken off to his yacht immediately she arrives at the station, Quill along with Arenskaya gets her into a launch and to Stroganoff’s casino, where she performs to tumultuous applause, not knowing for whom she is dancing.

When Quill asked her about the diamonds, she said she had sold them long ago, and that gave Quill the solution to the mystery. Rabinovich had known about this, and Artishok had killed him to prevent Sadie learning it from him, he had killed Citrolo who had recognized him for an accomplished card sharper, not a Russian prince at all. But before he is arrested, he gets away in a boat, and the police launch that pursues him is on the point of catching him up when it runs out of petrol.

Again, lots of excitement, and entertaining references  – Gustave grows marrows – and if not quite as brilliant as its predecessor, Casino was certainly a delightful read.

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The challenge of being positive about SAARC

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The RCSS forum addressed by SAARC Secretary General Ambassador Md. Golam Sarwar in progress. (Pic courtesy RCSS)

It was a few years back that a former President of Sri Lanka took it on himself to pronounce SAARC ‘dead’. Since then there have been other sections of Sri Lankan opinion that have joined the critics of SAARC and taken the solemn stance that SAARC has indeed died what may be called a natural death.

Their fatalism is understandable. SAARC has failed to meet at heads of government or state level for the past several years to take the SAARC process notably forward. Regional cooperation has more or less been only an appealing idea. No substantive concrete projects have taken off to make the idea a hard reality. ‘Inner paralysis’ seems to be SAARC’s lot. Hence the fatalism in these circles.

However, being one of the worst cash-strapped regions of the world and a teemingly populated one with people virtually left to their devices, what choices do the ‘SAARC Eight’ have other than to try their best to band together and continue with their cooperation efforts, however small they may be?

There is no escaping the mounting debt trap for many of these countries and bankrupt Sri Lanka is a glaring example, but ‘throwing in the towel’ and abandoning themselves entirely to the diktats of the strongest economies and their agencies will prove a ‘living death’ for many countries in the SAARC fold.

The gains may be meagre but giving-up on SAARC cooperation in full would prove self-defeating for the organization and South Asia. Right now, the collective intention ought to be to salvage what the region could from the tenuous cooperative efforts. Moreover, such initiatives could go some distance to generate a degree of goodwill among the Eight and help in sustaining a dialogue process.

Given this backdrop it proved ‘a stich in time’ for the Regional Centre for Strategic Studies (RCSS), Colombo, to recently host the SAARC Secretary General Ambassador Md. Golam Sarwar to a round table discussion on the unifying potential of SAARC and its future possibilities, besides other related issue areas.

Held on June 24th and moderated by RCSS Executive Director and former ambassador Ravinatha Aryasinha, the forum brought together a vibrant, wide ranging audience comprising academicians, diplomats, senior public servants, civil society activists and many others. Following the presentation by Ambassador Golam Sarwar titled, ‘Reigniting SAARC: Achievements, Challenges and the Way Ahead’, a lively Q&A followed.

The above forum could be described as an act of lighting the proverbial ‘candle’ rather than ‘cursing the darkness.’ It surely is a ‘darkness’ that could be seen as daunting considering that the region’s pivotal powers, India and Pakistan, are failing to act in a spirit of accord but are engaged in bitter finger-pointing on a number of questions of vital importance to SAARC.

On the other hand, what is the rest of the region doing to bring the above sides together? It is disappointing that to date the rest of SAARC has failed to launch a major diplomatic drive to bring peace between the feuding regional heavyweights. It needs to act without delay and establish its earnestness and this effort would need to prove SAARC’s staying power in the unfolding months and even years.

In assessing SAARC’s seeming failure local opinion in particular has failed to factor in what could be described as weak leadership. Since Sheikh Mujibur Rahman of Bangladesh, the founding father of SAARC, the region has failed to produce a visionary leader who could advance the SAARC cause with charisma and drive.

Among other reasons, weak leadership accounts considerably for the faltering and stuttering status, as it were, of SAARC. Badly needed are leaders who could go the extra mile, think less of narrow national interests and work diligently towards the collective well being of the region but SAARC’s millions of ordinary people have been made to wait in vain for leaders of such stature. Instead, they have been burdened with politicians who seem to be relishing the apparently moribund state of SAARC.

Looking back, it could be said that it was the dynamic leadership factor that led to the launching of the Non-Aligned Movement and for its sustenance for a few decades. True, it could be seen in some quarters that NAM is no more, but as in the case of SAARC, the former too has been unfortunate to be burdened over the years with politicians who lack the vision and drive to unflaggingly advance the fortunes of the South. NAM and SAARC lack the dynamism and vision of leaders of the stature of Jawaharlal Nehru, for example, to give them the required guidance and intellectual depth.

The reasons are complex for there not being among us currently political leaders with the vision and the steadfast commitment to advance the legitimate interests of the South. However, it could be stated with conviction that the majority of Southern leaders have too easily caved in to the demands of the global North and its financial agencies.

These leaders have failed to see, for instance, that the largely market economy oriented Northern governments would not view with favour a centrist economic model that attaches priority to the interests of the dis-empowered publics of the South. This realization ought to have dawned on the current government in Sri Lanka, for instance, some while ago but it has no choice but to abide by IMF dictates since economic survival at present is unthinkable without the latter’s succour.

Accordingly for SAARC this should be the time for some soul-searching. Priority needs to be attached to ending the feuding between India and Pakistan since at present the material fortunes of the region hinge largely on these regional giants giving peaceful relations among them a try. This is no easy challenge to meet but some daring, visionary diplomacy needs to take hold among the rest of SAARC.

There is some sense in SAARC bringing the peoples of the region together through programs that address their best collective interests. A meeting of minds among SAARC nations could enable SAARC and its agencies to build a region-wide people’s movement for progressive political and economic change that could in turn lead to the region’s political leaders sensitizing themselves more to the neglected needs of their publics.

However, the time is ‘now’ for the initiation of these progressive changes and the voice of SAARC well wishers would need to drown out those of their critics.

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