Sunday, December 13, 2009

Sri Lanka's ex-Army chief cites evidence of war crimes of the rulers

(December 13, Colombo - Lanka Polity) Sri Lanka's opposition presidential candidate ex-Army Commander retired General Sarath Fonseka made a highly controversial statement today to The Sunday Leader newspaper unsettling the whole establishment including himself.

Immediately after the Sri Lankan rulers invigorated two selected investigations pertaining to intimidating and killing of media persons, for which the accusation finger was pointed at Fonseka by opposition and media, the latter said to the same newspaper the editor Lasantha Wickramathunga was brutally murdered on a busy highway in January that Defense Secretary Gothabaya Rajapaksa instructed a key ground commander in the north that all Liberation Tigers of Tamil Ealam (LTTE) leaders must be killed and not allowed to surrender.

This is the first ever concrete evidence of war crimes suspected took place in the final phase of the war against the LTTE and UN Human Rights Council, the UN Security Council and other international bodies cannot overlook the former Army Commander's statement.

In an explosive interview with The Sunday Leader General Fonseka the then Army Commander  said he had no information communicated to him in the final days of the war that three key LTTE leaders had opted to surrender to Sri Lanka’s armed forces as the battle drew to a bloody finish.

Fonseka charged that communications were instead confined  between the LTTE leaders, Norway, various foreign parties, Basil Rajapaksa, Member of Parliament and the powerful senior adviser to the President and such information was never conveyed to him as he supervised the final stages of the war. “Later, I learnt that Basil had conveyed this information to the Defense Secretary Gothabaya Rajapaksa – who in turn spoke with Brigadier Shavendra Silva, Commander of the Army’s 58th Division, giving orders not to accommodate any LTTE leaders attempting surrender and that “they must all be killed.”

General Fonseka explained how on the night of May 17th this year desperate efforts of three senior LTTE leaders trapped in the war zone to save their lives failed as they were instead shot dead as they prepared to surrender to government forces.

The government later claimed that troops found bodies of three key LTTE leaders identified as Nadesan, Pulidevan and Ramesh during the mop- up operations in the last LTTE stronghold on the morning of May 18.

General Fonseka said the incident took place as the remaining LTTE cadres were boxed into a 100m x 100m area, North of Vellamullivaikkal.

Balasingham Nadeshan  a former police constable of Sri Lanka police was the political head of the LTTE. Seevaratnam Pulidevan was the head of “LTTE peace secretariat” while Ramesh a senior special commander of the military wing.

Hours before they surrendered, in a flurry of emails, text messages and telephone calls between NGOs, a foreign government and Sri Lankan officials in Colombo, the two LTTE political leaders had frantically inquired as to how they could give themselves up.

They were told: “Get a piece of white cloth, put up your hands and walk towards the other side in a non-threatening manner.”

But the attempt to surrender by the three LTTE leader and their families failed. Sometime between midnight on 17 May and the early hours of the next morning, the three men and their family members were shot dead.

General Fonseka said it was Basil Rajapaksa together with the Defence Secretary Gothabaya Rajapaksa who through foreign intermediaries conveyed a message back to the LTTE leaders who wished to surrender to walk out carrying a piece of white cloth.  “It was their idea,” he said.


When we contacted  Shavendra Silva, now promoted to Major General he sounded very shocked when told of the allegation but insisted he could not respond to this charge until he had clearance from the military spokesman.

Brigadier Udaya Nanayakkara told us he had to get clearance from the Army Commander Jagath Jayasuriya.

Later in the day the military spokesman said that he had contacted both the Army Commander and General Shavindra Silva and both had said that they would not comment on the matter.

The chief intermediary for the three LTTE men was the Norwegian government’s then Environment and Development Minister Erik Solheim. (Solheim is now the overseas development minister) On Sunday 17 May, Mr Solheim apparently received calls from LTTE figures who said they wanted to surrender.

The ICRC in Colombo later confirmed that it had received word from the Norwegians that the two leaders were looking to give themselves up. “The ICRC was approached on this matter by the representatives of the LTTE as well as the Norwegian authorities,”  spokeswoman Sarasi Wijeratne was quoted saying  at the time of the incident. “The information was referred to the Sri Lankan authorities. We have no idea what happened [then]. We lost contact with everyone in the last conflict.”

The government’s point man in the negotiations appears to have been former foreign secretary Palitha Kohona who is now Sri Lanka’s ambassador to the United nations  He was quoted by news agencies saying that in the days leading up to Sunday evening, he had received a number of messages indicating from Mr. Nadesan and Mr Pulidevan – whom he has met at various peace talks – wanting a way out.

In one interview with ‘SiberNews’ Mr. Kohona said that his response had been that “there was only one way to surrender that is recognised by military practice”. He said they should obtain a white flag and give themselves up. “I kept saying this for three days,” he added.

But General Fonseka maintains that Nadesan, Ramesh and Pulidevan had been shot dead by government troops as they advanced towards them carrying a white flag, as they had been instructed to do.

Fonseka said he later learnt about what exactly had taken place as a result of journalists who had been entrenched at the time with General Shavendra Silva’s brigade command.  These reporter’s according to Fonseka  were privy to the telephone call received by the Army’s 58th Brigade Commander from the Defence Secretary –“telling him to not accommodate any LTTE surrenders but to simply go ahead and kill them.” – “These journalists later told me what exactly took place,” Fonseka said.
“Norway never got in touch” – Basil
Presidential Advisor Basil Rajapaksa refuted this damning charge.  He told The Sunday Leader, “The Norwegians never got in touch with me over this particular incident.  I have been in touch with the Norwegians over various issues pertaining to the conflict but never once on this particular issue.”

When asked if he had been unaware then that three LTTE leaders were seeking surrender during the last stages of the war – Rajapaksa replied, “No. I won’t say that. But Norway never got in touch with me.”

Asked nevertheless if he did convey something to this effect to his brother and Defence Secretary Gotabaya Rajapaksa, Mr. Rajapaksa said “If I had not been informed by Norway in the first instance then obviously the second did not happen.”

Our attempts to contact Defence Secretary Gotabaya Rajapaksa failed.  When we telephoned the Defence Ministry Friday we were told Mr. Rajapaksa had not been in office the entire day.  His staff refused to release any other telephone number.
A reader of The Sunday Leader commented as follows:

The War Crimes Tribunal and the international community should take note of the disclosures of Gen Sarath Fonseka, under whose watch the decades-long war was won. Perhaps, in the run-up to the Presidential election, we will learn more of the final phase of the war, and the innocent civilian blood that was shed to achieve that victory, hitherto censored from public knowledge. If this is not war crimes and crimes against humanity, what is?
Following is an excerpt from an encyclopedia on surrender:

Surrender is when soldiers, nations or other combatants stop fighting and eventually become prisoners of war, either as individuals or when ordered to by their officers. A White flag is a common symbol of surrender, as is the gesture of raising one's hands empty and open above one's head.

When the parties agree to terms the surrender may be conditional, i.e. if the surrendering party promises to submit only after the victor makes certain promises. Otherwise it is a surrender at discretion (unconditional surrender); the victor makes no promises of treatment other than those provided by the laws and customs of war  — most of which are laid out in the Hague Conventions (1907) and the Geneva Conventions . Normally a belligerent will only agree to surrender unconditionally if completely incapable of continuing hostilities.

The Third Geneva Convention  states that prisoners of war should not be mistreated or abused. United States Army  policy states that surrendered persons should be treated according to the "5 S's" until turned over to higher authority.
  • Silence: so that they cannot plan an escape attempt.
  • Search: for weapons or items of intelligence value.
  • Secure: tie up and/or guard carefully at all times, particularly at first.
  • Safeguard: do not allow the dangers of the battlefield to hurt them
  • Separate: soldiers from officers, men from women, combatant

    s from civilians, to make them easier to control.


(NWP1-14M, Section 11.7)

Combatants cease to be subject to attack when they have individually laid down their arms to surrender, when they are no longer capable of resistance, or when the unit in which they are serving or embarked has surrendered or been captured.  However, the law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms.  Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent.  The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon - an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received.  The issue is one of reasonableness.

Combatants who have surrendered or otherwise fallen into enemy hands are entitled to prisoner-of-war status and, as such, must be treated humanely and protected against violence, intimidation, insult, and public curiosity.  When prisoners of war are given medical treatment, no distinction among them will be based on any grounds other than medical ones.  Prisoners of war may be interrogated upon capture but are required to disclose only their name, rank, date of birth, and military serial number.  Torture, threats, or other coercive acts are prohibited.

Persons entitled to prisoner-of-war status upon capture include members of the regular armed forces, the militia and volunteer units fighting with the regular armed forces, and civilians accompanying the armed forces.  Militia, volunteers, guerrillas, and other partisans not fighting in association with the regular armed forces qualify for prisoner-of-war status upon capture, provided they are commanded by a person responsible for their conduct, are uniformed or bear a fixed distinctive sign recognizable at a distance, carry their arms openly, and conduct their operations in accordance with the law of armed conflict.

Should a question arise regarding a captive's entitlement to prisoner-of-war status, that individual should be accorded prisoner-of-war treatment until a competent tribunal convened by the captor determines the status to which that individual is properly entitled.  Individuals captured as spies or as illegal combatants have the right to assert their claim of entitlement to prisoner-of-war status before a judicial tribunal and to have the question adjudicated.  Such persons have a right to be fairly tried for violations of the law of armed conflict and may not be summarily executed.

According to Wikipedia, clloquial definitions of war crime include violations of established protections of the laws of war, but also include failures to adhere to norms of procedure and rules of battle, such as attacking those displaying a flag of truce, or using that same flag as a ruse of war to mount an attack. Attacking enemy troops while they are being deployed by way of a parachute is not a war crime. However, Protocol I, Article 42 of the Geneva Conventions explicitly forbids attacking parachutists who eject from damaged airplanes, and surrendering parachutists once landed.War crimes include such acts as mistreatment of prisoners of war or civilians. War crimes are sometimes part of instances of mass murder and genocide though these crimes are more broadly covered under international humanitarian law described as crimes against humanity.

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