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FEBRUARY 24, 2009

Chairman Casey and members of the Subcommittee:
I am pleased that you are concerned about the situation in Sri Lanka and have given me this opportunity to provide the Subcommittee with information regarding this situation and my
views on what United States might usefully do. By way of introduction I am an attorney specializing in international humanitarian (armed conflict) law and human rights. I have
participated in United Nations human rights forums since 1982, and have addressed the situation in Sri Lanka since 1983 on behalf of a number of non-governmental organizations, most recently
with the Association of Humanitarian Lawyers (AHL) and International Educational Development (IED). In 1987 I presented a statement to the House of Representatives on the
situation in Sri Lanka.1 The views expressed in this statement are my own and do not necessarily reflect the views of IED or AHL.

The twenty-six year old armed conflict between the armed forces of the government of Sri Lanka and the Liberation Tigers of Tamil Eelam has reached a phase that can only be called
genocide-like and catastrophic for the Tamil people in the north and east of the island.2 As there are many incidents on a daily basis and the situation is extremely volatile, it is not possible to be
either timely or even accurate as far as facts and figures. Accordingly, this overview should be accepted as snapshots indicating the urgency of the situation. Even so, they clearly indicate genocidal acts.3
A. Civilian casualties.
While numbers vary substantially about the number of Tamil civilians killed, the most reliable estimates indicate at least more than two thousand in the past several weeks alone. There are many thousands with life-threatening injuries and the casualty figures can be expected to rise dramatically in the next few weeks due to lack of medical care. Casualty figures released in June,
2008 for the war indicated more than 100,000 persons had died, the vast majority of them Tamil civilians.4 Recently, the health officer for Mullaitivu district indicated at least 40 Tamil civilians
killed and 100 injured per day.5

B. Illegal military operations.
It is clear that hospitals, safety zones and civilian locales have been targeted and the number of casualties indicate blatant disregard for humanitarian law standards.6 In defending
military actions against hospitals, Defense Secretary Gotabaya Rajapakse was filmed stating: “No hospitals should operate outside the safety zone . . . everything beyond the safety zone is a
legitimate target.”7 This is an egregious misstatement of the humanitarian law rules. In addition to targeting hospitals outside the safety zone, there is also reliable evidence that the government’s forces continue to targeting hospitals, schools and civilian dwellings inside the safety zones and in other undefended civilian areas that under humanitarian law rules may not be

C. Status of relief providers.
Because of fears of attacks as well as because of express orders to leave, most relief agencies have left the LTTE-controlled areas and much of the area newly under government control as well. It appears that Tamils Rehabilitation Organization is the sole-remaining international NGO in the LTTE-controlled area. The International Committee of the Red Cross (ICRC) was ordered out of the LTTE-controlled areas by the government and its capacity to attend to the needs of Tamil civilians not in the LTTE-controlled areas has been dramatically reduced. Its last act was to transport several hundred severely wounded out of the area by ship.

D. Shortages of food, water and medical supplies.
Tamil civilians both inside and outside of the LTTE-controlled areas suffer severe shortages of food, water, and basic medical care. The primary supplier of food has been the World Food Programme. WFP’s access to the Tamil-controlled was curtailed some weeks ago, but after much international pressure on the government, a food caravan was allowed into the LTTE-controlled area (the Vanni) on February 19 containing 30 tons or an estimated 100 grams per person/ per day, which is grossly
inadequate. At the same time, the available food and water at the government’s IDP camps is also grossly inadequate. UNICEF has had emergency feeding centers for children who are grossly underweight and facing death by starvation, but it is uncertain if they also have been cut back by government edict. Tamils
in the whole of the north and east have had their subsistence farming and fishing severely curtailed for some time due to the government’s establishment of high security zones (HSZ) which effectively remove prime farming and fishing areas from use. In this manner, the Tamils in the North especially have already
faced serious food shortages – many Tamil children are developmentally delayed due to lack of food. In any case, all evidence shows that the government is denying food, water and medicine to the Tamil civilian population, prohibited by humanitarian law norms and an element of the crime of extermination under the Statute and Elements of the International Criminal Court.8

E. Status of Tamil civilians.
There has been considerable controversy about the status of Tamil civilians both in the LTTEcontrolled areas and in the government controlled areas. Estimates about the numbers of Tamils in the LTTE area vary from 150,000 to over 300,000. At this point, with no monitoring of the situation, it is impossible to tell, but given the fact that fewer than 60,000 or so have crossed to the government side according to the government’s figures, the higher number is the more likely one. Another controversy is
that there are accusations that the LTTE is not letting civilians flee and that the government is preventing people from entering into its area. Again, with no witnesses, it is not possible to verify this accusation. However, is highly likely that many of Tamil civilians in the LTTE- controlled areas would be hesitant to turn themselves over to what they consider an enemy government.9 Many of those in the Vanni had come there the past few years after abuses in the government-controlled areas such as Jaffna and Trincomalee. Prior to the recent upheaval, monitors who surveyed check points both ways found that many entering the Vanni had lost relatives to the “white vans, ” the vehicles that roam the street and seize people who are rarely seen again.10 Others had been arrested and tortured at government police stations. The war began, of course, after the Tamil people lost faith in the national government to protect their rights, and has been fueled by continued human rights and humanitarian law violations against them. Indeed, more than onethird of the Tamil civilian population on the island now forms the more than 1.3 million persons in the
burgeoning Tamil Diaspora.11Those in the LTTE-controlled area also are aware of the IDP camps, and know that when they cross the line, that they will be sent to a camp. What is apparent is that those crossing into the government-controlled area are in severe need of both food and water.

There is also controversy over the government’s plans for Tamils leaving the Tamil-controlled areas. The government originally announced that they would be kept in detention camps for 3 years, but after a rather strong reaction from the international community, especially from certain UN officials and the UK, the government is now claiming that Tamil civilians would be in camps for a shorter, unspecified time. Obviously, those crossing the line would be very nervous to express their opinion freely while in camps, and are likely to say whatever will keep them the safest under the circumstances, as commonly occurs in this type of situation.

F. Weaponry.
There is strong evidence that the government forces may be using either illegal weapons or legal weapons in an illegal manner. A recent charge was made that thirty families in a safety zone were killed by “bunker buster” bombs. Without proper investigation, it is not possible to verify this or to know, if used, the bunker busters are B61-11s or the older B61-7s from the United States arsenals, or whether they are of different origin. The photographic evidence of
cluster bomb casings against civilians is inconclusive – it is obvious that the markings on the cases is in Russian, but less clear whether the photographed casings were from cluster bombs or
some other munitions. It is unknown if the Russian Federation supplied these munitions or if another county did. There appears to be reliable evidence of the use of white phosphorus as
weapons rather than tracers, or that white phosphorus was used with disregard for possible civilian casualties. There is also photographic evidence of the use of fire bombs against Tamils in
camps for internally displaced persons (IDPs). The government of Sri Lanka has received Dvora patrol/attack boats from Israel, MIG-27s from Ukraine, military assistance and arms from Pakistan and military assistance (and possibly weaponry) from Iran and possibly the Russian Federation.

G. Monitoring.
The government has refused any monitoring of the conflict by international actors and organizations and has prevented the media from going to the war area. Note that former President Clinton and former UN Secretary-General Annan were not allowed to the Tamilcontrolled areas following the Tsunami, and, except for the ICRC, now forced out, and one or two UN officials, no other UN mandate holders have been allowed to that area. Former UN High
Commissioner for Human Rights Louise Arbour was allowed to travel to the North in 2007, but not to Tamil-controlled areas. Her visit to Jaffna was heavily controlled by Sri Lanka authorities,
and she apparently was not able to meet with Tamil civilians in private. There is a clear intent to prevent anyone is a position to act from meeting with the LTTE leaders or the people who live in
the LTTE areas. The head of the UN Office for the Coordination of Humanitarian Affairs (OCHA) John Holes was allowed to visit several of the IDP camps in Vavuniya during his justfinished
trip, but he was not allowed to circulate freely and was accompanied by the President’s brother. In the best of circumstances, this would not be conducive to a fair evaluation of the situation. Further, he was called a “terrorist” by Sinhala politicians following his previous visit in (August 2007) when he commented on the high number of killings of humanitarian workers aiding the Tamil population, so he is apt to be cautious. A significant concern is that the interpreter from Tamil to English during Mr. Holmes visit to persons in IDP camps was a senior
minister in the Rajapakse Administration, and there is no way to verify what interviewees actually said.12

H. Attacks on media.
In the past few years there have been assassinations of many of the major Tamil journalists, or journalists that are considered “friendly” to Tamils by the government. The most recent victim of this was Lasantha Wickrematunge, killed on January 8, 2009. Mr.
Wickrematunge, a Time Magazine freelancer and the editor of The Sunday Leader, was an outspoken critic of the government of Sri Lanka. In an interview with the BBC’s Chris Morris about Mr. Wickrematunge’s death, Defense Secretary Gotabaya Rajapakse stated that dissent or criticism in time of war is treason. Chris Morris fled Sri Lanka on February 2, 2009 after being called an LTTE supporter by the Defense Secretary. Dozens more have fled since then, many receiving aid from international media NGOs. In 2008, 12 journalists were killed in Sri Lanka. Sri Lanka was identified by Time Magazine as number 3 on the list of underreported stories in
2008 and claimed the war was deadlier than Afghanistan.

There have been a number of actions by both governments and international officials since the crisis began in January, although since the Rajapakse Administration began, there has been increased scrutiny of the long war, especially since January 2008 when President Rajapakse announced that he was suspending the then 5 year old cease fire agreement. For example, there
was a special debate on the Tamil genocide in the House of Commons UK in October, followed by an adjournment debate in the House of Commons on Dec. 18, 2008.13 On January 23, 2009
Germany called for a cease fire. Australia has indicated that it will provide an additional 4 million Australian dollars. The EU issued a call for a cease fire on February 23, 2009. A number of international personages have also called for a cease fire and a settlement of the conflict through negotiations. Recently Nobel Laureate Jose Ramos Horta offered to mediate. Nobel Laureates Desmond Tutu and Martti Ahtisaari have recently spoken out about the need for a negotiated political settlement.

Within the UN system, Walter Kalin, the UN Independent Expert on Internally Displaced Persons issued a statement of concern on December 23, 2008. Radhika Coomaraswamy, the Special Advisor to the Secretary-General on Children and Armed Conflict issued a statement on January 21, 2009 and another on February 20, 2009. Navi Pillay, the High Commissioner for Human Rights issued a statement on January 29, 2009. On February 9, 2009, ten mandate
holders under the UN Human Rights Council issued a statement.14 OCHA posted a special report on February 10, 2009, in which it indicated that the Office of the UN High Commissioner
for Human Rights was preparing to address the needs of up to 100,000 IDP and others. UNICEF and the World Food Programme are actively involved with providing relief in Sri Lanka, although the two specialized agencies cannot operate freely in the Tamil areas and the Tamilcontrolled areas.

A recent request by Mexico to address Sri Lanka in the Security Council was rebuffed by the Russian Federation. Secretary-General Ban Ki-moon claimed that he could not ask the
Security Council to address the issue because it was not on the agenda, although Article 99 of the UN Charter clearly gives him the authority to do so and he has acted under Article 99 authority
in the past.

The Tamil Diaspora has responded to the crisis with many demonstrations. For example, there have been recent demonstrations in South Africa, Australia, New Zealand, Washington, DC, New York, San Francisco, London, Paris and Geneva. In Canada there have been several massive demonstrations, including a “human chain” that surrounded a large part of downtown Toronto.

United States had little interest and involvement in post-colonial Sri Lanka until the Reagan Administration, even though there were many disturbances between Sinhalas and Tamils from the beginning of that period, including four or five widespread massacres of Tamils by Sinhala mobs. Regretfully, United States policies that began under the Reagan Administration
have been unhelpful in resolving this situation. In 1987 India found out about President Reason’s interest in developing Trincomalee Harbor to accommodate the United States Navy: a deal had
been nearly worked out with President Jeyewardene. Wanting to prevent this, India entered into the Indo-Sri Lanka Accord (1987) and attached a letter of annexure indicating that nothing would
transpire with Trincomalee that was against the wishes of India.

There was perhaps a tactical pause under the Clinton Administration. After the events of September 11, the Bush
Administration looked again at Trincolamee and there are suggestions that Palaly airfield was also under consideration. Both of these are in the Tamil areas, so in order for possible bases to be
secure, the Tamil question would have to be resolved.15 However, instead of taking a leadership role in resolving the conflict with cooperation of the Co-Chairs and the Sri Lankan Monitoring
Mission, the Bush administration converted the armed conflict in “terrorism/counter-terrorism.” Thus the conflict was no longer reviewed under prevailing humanitarian law, the result of which
has substantially prolonged the conflict and has done considerable damage to humanitarian law
itself. Of course, false labeling of armed conflicts as “terrorism/counter-terrorism” does not make
the world any safer from actual terrorists and, with the demise of humanitarian law protections usually results in many more victims of armed conflicts than there would otherwise be. Sadly,
this is the case in Sri Lanka.

It is clear that since 1982 the LTTE has met all criteria for combatant status according to humanitarian law norms: they have an identifiable chain of command; they are in uniform and
use the weapons and the matériel of war; they have ground, sea and air forces; they have exercised sufficient control over territory to be able to engage in sustained and concerted military
operations; and in all ways meet combatant status criteria. This does not mean that to recognize the existence of the armed conflict necessarily means a political approval of their aims, which, as the LTTE states, is to ensure sufficient autonomy if not separation from Sinhala control so as to enable the Tamil people to live in peace and security.16 Recognizing a war as a war also does not extinguish the terrorism question: there is a rule in the Geneva Conventions that prohibits “measures of intimidation or terrorism” against the civilian population.17 However, if such
measures occur, this does not convert combatant forces to terrorists: combatants remain under the protection and obligations of humanitarian law as long as the conflict is occurring, and in certain cases, for some time after the conclusion of hostilities. Both the LTTE and the government forces may carry out any military operation that is not prohibited in humanitarian
law. Many of the military operations in this war are legal, but those occurring now that target the Tamil civilian population are not.

The conversion of the war into “terrorism/counter-terrorism” has had a number of other serious consequences, one of which is the distressful erosion in basic human rights and far too many “shades of gray” in situations that are actually quite black and white.18 But an even more serious consequence is that the Tamil people worldwide have been so demonized by the constant
inferences that “Tamil = Tiger = terrorist,” mostly by the constant references to this by Sri Lanka’s President and other authorities, that Tamils have been intimidated and have lost the key
support of institutions and groups who ordinarily would be sympathetic.19 Any public show of sympathy for Tamils is fiercely and publicly countered by the government, targeting, inter alia,
more than a few members of Congress in the US and members of Parliaments in numerous other countries. Sri Lanka representatives try to intimidate NGOs at United Nations human rights sessions.20 They also pursue Tamils in the Diaspora, and even try to prevent local authorities from issuing permits for Tamil demonstrations. In the United States there is a mood that
somehow the Tamil people as a whole are an enemy of the United States. In my 27 years working on humanitarian law issues, I have never encountered a situation where an ethnic group that has been the victim of the most serious of human rights and humanitarian law violations becomes the culprit – and in ways that are overtly racist. Indeed, it is not possible for people to
discuss any other group in this fashion without receiving instant disapproval.

There are some hopeful signs that the new United States Administration will play an affirmative role in the situation rather than a grossly negative one. Both President Obama and
Secretary of State Clinton have made statements that indicate more careful reflection on this and similar situations.

1. The first thing that the United States should do is call for an immediate cease fire, and then should most forcefully present this to the Rajapakse Administration. While the Rajapakse Administration has stated as recently as a few days ago it would not do so, it is difficult to imagine that with the combined force of the US, the rest of the co-chairs and the rest of the “Western and Other” bloc at the UN, Sri Lanka’s main “donor” States, that Sri Lanka would be defiant. While Sri Lanka may have received assurances from Iran and the Russian Federation, for example, that they would cover Sri Lanka’s needs, it does not seem likely that they can substitute for the level of aid from the Western bloc and Japan.

2. The United States should ensure that no State that receives United States military assistance provides arms to the government forces. The United States should also seek to stop
arms delivery to the government of Sri Lanka by any other countries.

3. The United States should take a leadership role in ensuring that the humanitarian needs of the Tamil civilians are met, that Tamil civilians are not relocated to detention camps but are allowed freely to resettle in their own locales, and that the human rights abuses against them cease immediately. In particular, the United States should ensure that its contribution to the rehabilitation of the Tamil areas reflect a genuine desire to assist. The United States should ensure that any funds donated by Tamil people to assist Sri Lanka Tamils that have been “frozen” be made available for the purpose of assisting these Tamils.

4. The United States should most forcefully insist that on-site visits to any and all areas of Sri Lanka by UN officials or other impartial persons take place, and that interpreters for such visits are trained and impartial. The United States should also insist that Sri Lanka allow the
United Nations High Commissioner for Human Rights to expand her office in Sri Lanka.
5. The United States should ask the government of Sri Lanka what proposals they have
for the resolution of the Tamil issue. The United States should consult regularly with the
leadership of the Tamil Diaspora, both in the United States and in other countries, to invite
comments and suggestions on proposals. The United States should encourage the government of
Sri Lanka to accept the good offices of mediators such as those mentioned above.
6. The United States should ensure that the government of Sri Lanka ceases all anti-Tamil rhetoric at home and abroad and that it finds a way to prevent Sinhala political parties (such as
the JHU) from also engaging in anti-Tamil rhetoric that has so often incited Sinhala mob attacks on Tamils and those perceived as “pro-Tamil.” The United States should ensure that the
government of Sri Lanka ceases all acts against Tamil American citizens or residents or anyone else perceived as being “pro-Tamil.”

7. The United States should reexamine its foreign policy objectives in Sri Lanka and the area, and take steps to ensure that United States policies do not contribute to human rights and humanitarian law violations of any kind, and especially not of the scale and scope of those against the Tamil people in Sri Lanka.



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