(Justice Maxell Paranagama )
ECONOMYNEXT – The war crimes investigation set up by former president Mahinda Rajapaksa has made startling revelations that senior military commanders should be hauled up for criminal prosecutions.
The Maxell Paranagama commission appointed in 2013 in what many at the time feared was an attempt to white wash the security forces has surprisingly produced a shockingly frank report amounting to an indictment of the former regime.
The Paranagama commission was asked to investigate the credibility of the major war crimes allegations that were levelled against government forces after crushing the Tamil Tiger rebels and declaring an end to 37 years of ethnic war in May 2009.
The report dated August 2015, eight months after the defeat of Rajapaksa, noted that the allegations of war crimes were not only credible, but there were specific instances where criminal prosecutions of military commanders was warranted.
Turning the military’s own investigations on its head, Paranagama found that the controversial Channel 4 documentary, “No Fire Zone – Sri Lanka Killing Fields” was genuine and its allegations merited a judicial investigation.
The report, however, says that the military cannot be expected to probe any of the allegations with any degree of credibility and that there should be an independent judicial investigation under international supervision.
The 178 – report, with even more pages of annexures, goes far beyond the UN human Rights Council resolution which only suggested that there could be foreign involvement in a domestic war crimes mechanism.
Justice Paranagama suggests that there should be a separate war crimes division within the Sri Lankan legal system and insists that Sri Lanka is obliged to fall in line with international humanitarian law in line with Sri Lanka’s own constitution.
-Channel 4 allegations credible-
His recommendations are diametrically opposed to the line of the government that appointed him. Rajapaksa and his administration had always maintained that not a single civilian was killed by troops and the Channel 4 documentary was a fabrication.
“The Commission is of the view that the material shown in Channel 4 – shorn of its theatrical and dramatic presentation and of the occasionally extravagant language used – does show, however, that there was material enough to justify a judge-led investigation,” the Paranagama commission said.
It said another high profile case involving the execution of the top Tamil Tiger political leadership on or about May 18, 2009 should also be investigated by an independent judicial inquiry despite the then government denying the killings.
The allegations of ‘white flag killings’ which led to the deaths of Balasingham Nadesan, the head of the political wing of the LTTE, and S. Pulidevan, the LTTE’s head of the peace secretariat allegedly took place after they were given assurances of safety “at a high level.”
“The Commission is of the view that despite some conflicting evidence, the underlying matrix is such that these alleged illegal killings, together with other such killings of those who surrendered, must be the subject of an independent judge-led investigation.”
“To that list for investigation, must be added the cases of all those who were hors de combat and allegedly perished while in the custody of the Sri Lanka Army.”
Bus loads of civilians disappeared after being taken away by the military in the final days of the war, the commission found and recommended separate judicial investigations.
However, the commission cautioned that it would not be prudent to get the military to investigate itself and instead called for an independent judicial investigation led by neutral judges.
The Paranagama commission, set up in August 2013 in the face of international censure of Sri Lanka over its failure to address accountability, said a military court of inquiry could not be expected to impartially investigate the allegations.
The commission was initially asked to probe cases of people missing during the conflict and received complaints of 21,000 people missing after the end of the war in 2009.
-Call for foreign judges -
Judge Paranagama recommended that international judges should have a role to ensure the credibility of any investigation into war crimes.
“In the event that Sri Lanka were to set up a purely domestic tribunal it is the view of this commission that foreign observers should be encouraged,” the report said.
Sri Lanka’s new government too has resisted calls to have foreign judges investigating its war time past, but has shown willingness to draw on international forensic and legal support.
Members of Sri Lanka’s Tamil minority say they do not trust a local inquiry to reach the truth about the conflict, in which more than 100,000 people died between 1972 and 2009 when the war ended with the crushing of Tamil rebels.
President Sirisena’s administration has vowed to punish war criminals, in contrast to his hawkish predecessor Rajapakse.
Sri Lanka became an international pariah after repeatedly resisting calls for a credible probe into the horrendous crimes, including the killing of at least 40,000 Tamil civilians in the final months of the war.
When Sirisena came to power in January he promised to restore human rights and the rule of law.
The new government has agreed to set up a South African-style truth commission, a war reparations office and a commission on missing people.
However, the panel appointed by Rajapakse recommended that the state should openly acknowledge that serious human rights violations had taken place and ensure a truth seeking mechanism with or without amnesty to perpetrators.