War Crimes and White Flags

Tassie Seneviratne

 June 18, 2011,

There is so much energy generated in allegations of Human Rights violations and War Crimes, against Sri Lanka in the international arena, that the heat could be utilized to throw some light on reality. The hottest salvo against Sri Lanka is the allegation of "War Crimes and White Flags" aimed by none clean enough to point an untainted finger at us.

The United Nations Organization (UNO) was conceived for the sacred purpose of ensuring peace and goodwill among nations and for the well being of people within each nation. The appointment of office bearers to the UNO depends on elections by member nations – a democratic procedure no doubt, but democracy has its inherent weaknesses too. Elections involve canvassing and the whole process ends up in dirty politics taking precedence over the sacred purpose for which the organization was formed.

President Rajapaksa and the Government of Sri Lanka do not have to take lessons on governance from the UNO, unless the people of Sri Lanka complain to the UNO. Diasporas living outside Sri Lanka should not be heard as Sri Lankan voices, because most of them have agendas contrary to the interests of Sri Lanka. Bias on the part of some UNO members is again due to politics - It is votes of the Diasporas living in the respective countries that do the talking. In Sri Lanka we still have a ballot to change governments. It is up to those of us who oppose authoritarian governance and the "White Van" culture, to educate the people on their rights.

Without worrying too much about what "Moons" and "Stars" foretell, let us discuss the prosecution of the war against LTTE terrorists who waged war against the Sri Lanka Government in a bid to establish a separate state of Eelam. I will leave aside for now the authoritarian governance that we are experiencing since 1978, and confine to the allegations of "War Crimes and White Flags" during the final stages of the Eelam war.

I propose to discuss this subject with reference to basic laws of our country and not get embroiled with international conventions etc. In fact international conventions have to be consonant with our basic laws. The law applicable in this context is the "Right of Private Defence" as defined in sections 89 – 99 of the Penal Code of Sri Lanka. Suffice to quote the relevant sections :

Section 89 - Nothing is an offence which is done in the exercise of the right of private defence Section 90 -

Every person has a right, subject to the restrictions contained in section 92, to defend Firstly – his own body, and the body of any other person, against any offence affecting the human body,

Secondly – the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Sections 91 – 98 Describe the extents and limitations of the right.

Section 99 - If the exercise of the right of private defence against an assault which reasonably causes apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

As much as the right of private defence is a right given to every person by law, it is a duty cast on the state to exercise that right through the police or the security forces as deemed necessary.

The war waged by the LTTE to establish a separate state of Eelam was in furtherance of the unanimously adopted Vaddukoddai Resolution of May 14, 1976.

This resolution articulated inter alia, the view that the minority Sri Lankan Tamils needed separation from the rest of Sri Lanka to resolve their political problems, and towards that end resolved to, "restore and reconstitute the State of Eelam in order to safeguard the very existence of the Tamil Nation in this country." The Resolution also went on to state : "This convention directs the Action Committee of the Tamil United Liberation Front (TULF) to formulate a plan of action and launch without undue delay the struggle for winning the sovereignty and freedom of the Tamil Nation" and "this convention calls upon the Tamil Nation in general and the Tamil Youth in particular to come forward and throw themselves fully into the sacred fight for freedom and to flinch not till the goal of a sovereign state of Eelam is reached"

With that the hitherto moderate leadership that was campaigning for the Tamil cause lost control and militant youth who took over the leadership resorted to terrorism as a means to obtain their goal. Velupillai Prabhakaran eliminated rival militants and moderates who did not toe his line, and appointed himself as the sole representative of the Tamil people and started the Eelam war.

In this so called ‘sacred fight for freedom’, apart from attacking security personnel and security establishments, the terrorists under Prabhakaran’s command, indiscriminately massacred hundreds upon hundreds of innocent, unarmed and unguarded Sinhala and Muslim civilians, including women and children who were not in any way involved in any security operation, nor had been in the vicinity of security establishments. It is obvious that the terrorists had selected these victims exploiting their helplessness. The purpose of these barbarous killings is manifold and deep seated as shown below :

1. To incite security forces and Sinhala goons to attack Tamil civilians in retaliation.

2. To make out a case of human rights violations before the international community with a view to obtain international support for the ‘liberators.’

3. To impel Tamil folks to turn to the ‘liberators’ for their survival.

It is unfortunate that a good many Sinhalese political leaders including senior cabinet ministers, senior police and security forces personnel, and sections of influential Sinhalese people, with a misguided notion of "teaching the Tamils a lesson" played into the hands of the terrorists and unleashed violence against innocent Tamil people and their properties. What has to be borne in mind is that Prabhakaran and his band of followers were self proclaimed terrorists, terrorizing all and sundry including the Tamil community. The targeting of Tamil civilians who were already victims of Prabhakaran’s terrorism, in this manner, was a most heinous crime ever to have been committed in Sri Lanka. The 1983 pogrom against the Tamils and the burning of the Jaffna library are glaring testimonies to the inhuman side of misguided Sinhalese people who belong to the majority community. The call by President Rajapaksa for genuine reconciliation is timely and urgent.

Having said that, let me point out that the LTTE terrorists were fully responsible though indirectly, for the attacks on Tamil civilians as enumerated above, because those attacks were just what the terrorists very much desired and manipulated.

Notwithstanding all this, the State had a responsibility to defend all the people of this country from terrorism. By 1993 it had become very clear that negotiating peace with Prabhakaran was only giving the terrorists who had time and again only proved their intransigence, yet more opportunities to prepare for the Eelam war by building up their army with conscripted Tamil people including women and children, collecting logistical needs for war, building bunkers in close proximity to police stations and so on. But successive governments even after 1993, under international pressure, naively kept trying for a negotiated settlement that only resulted in boosting terrorism. It is to the credit of President Mahinda Rajapaksa that, in keeping with the provisions under sections 89 to 99 of the Penal Code of Sri Lanka, he let the security forces wipe out Prabhakaran’s terrorist outfit, ending the killing sprees once and for all.

A strategy adopted by the terrorists, especially during the final stages of the Eelam war, was to form human shields with the civilian population. There is ample evidence that the terrorists even resorted to shoot down civilians who tried to escape from terrorist controlled areas. The thousands of civilians and even LTTE cadres rescued by the security forces, is evidence enough of the bona fides of the security forces to protect civilians and rehabilitate terrorist conscripts, and also to minimize civilian casualties in keeping with section 99 read with section 92 of the penal code.

I do not know the truth behind the allegations regarding White Flags. In the circumstances that prevailed, it would have been as stupid as President Premadasa’s surrender order to the police, to treat White Flags per se as a genuine intention to surrender. If we are to learn from recent history of Prabhakaran, and from ancient history of the Greek Trojan Horse, a show of white flags without prior arrangement, is never to have been accepted as a genuine desire to surrender. If there was to have been a genuine intention to surrender, and it is not, yet another ploy, the terrorists had enough international connections and concerns and all the means to make prior arrangements to surrender on conditions acceptable to both sides. To the troops that had closed in on the terrorists, it had come to a do or die situation when the White Flags are said to have been shown. Under the circumstances that prevailed, the troops are never to have accepted a show of White Flags, without prior arrangement, as a genuine intention to surrender.

I am not sure about the pros and cons of permitting an `expert panel’ appointed by the UNSG to look into the allegations of war crimes and white flags against Sri Lanka. My thinking is that it will be a good opportunity, to use the prevailing heat and enlighten the international community of the correct picture, through the UNSG’s committee. However biased some members of the committee may be, surely we could insist on transparency in the procedure.

Now that terrorism has been done away with, RECONCILIATION is a MUST. Hopes are now on the Lessons Learnt and Reconciliation Commission to deliver soon.

Senior Superintendent of Police (Rtd.)