I have in this paper argued that the Secretary General does not have a prima facie case for war crimes against Sri Lanka.  I have also argued that the Secretary General’s reasons as to a legal basis for pursuing “accountability” don’t stand up to scrutiny, and that, technically, he is in violation of Article 99 of the Charter.  I have argued further that his accountability quest, in certain ways, may also violate Articles 100 and 2(7) of the Charter.

The Secretary General, like any human being, is free to entertain whatever opinion or sentiment he wants about Sri Lanka or Sri Lankans, but if he wants to accuse Sri Lanka of “war crimes,” one of the most serious and odious of charges that can be made against anyone, he needs to bring his evidence forward, and make his accusations in a forum and a venue where Sri Lanka can respond.  More than anything, he ought not to be allowed to compel international action against Sri Lanka by working behind the scenes, and on the basis of accusations alone.


[1] Report of the Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka, November 2012, para 76

[2] Indirect submissions include “leaking,” unofficial e-mail submissions to members, posting on the UN website, and so on.

[3] Richard Falk, “Why international law matters,”, 2005

[4]Report of the Secretary General’s Panel of Experts report on Accountability in Sri Lanka, March 2011, p. ii-iii  (Executive Summary)

[5]Ibid, p. 40, para 137

[6] It goes without saying that if a smaller number of civilians were killed, that doesn’t mean indiscriminate attacks did not take place.  Clearly, that would depend on the specific evidence available as to such attacks, if any.  My point here, however, is that from a general point of view, if large numbers of civilians were in fact not killed, it is less probable that there were indiscriminate attacks.  Equally important, a lesser number of civilian casualties is consistent with alternative scenarios, for instance, where an army is fighting combatants operating from within a civilian population, and where civilians killed, if any, are the possible result of “collateral damage,” or damage incidental to the conduct of  military operations.

[7] Department of Census and Statistics, Sri Lanka,  Enumeration of Vital Events 2011, (Northern Province), p.19

[8]Ibid. p. 20

[9] Ibid p. 20

[10] See, for instance, Michael Roberts, “The civilian death toll in early 2009:  a flawed estimate,” The Island, November 23, 2011

[11] Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, March 2011, p. 40, para. 134

[12] High Resolution Satellite Imagery and the Conflict in Sri Lanka, American Association for the Advancement of Science, August 2009,

[13] The study found evidence of three gravesites with 1,346 individual graves between them, as of May 10, 2009, and that was at the height of the fighting.  If “tens of thousands” were being killed, why just 1,346 individual graves?

[14] Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, p.ii

[15] Ibid, p.19

[16] Ibid, p.iii

[17] Ibid, p.iii

[18] These three categories pertain to events that allegedly occurred during the fighting itself, particularly the last phases, which is the focus in this paper.  The other two categories deal with post-conflict issues, and fall more within the purview of human rights law, a vast subject which it would take an entirely separate paper to address properly.

[19] Ibid, p. ii

[20] Ibid, p. ii

[21] Ibid, p. ii-iii

[22] At any rate, as I indicated earlier, it is a picture less consistent with indiscriminate attacks, but consistent with alternative scenarios, for instance where the civilian casualties are incidental to military operations.

[23] B. Muralidar Reddy, “An eye-witness account of the last 70 hours of Eelam War IV,” Frontline, Volume 26-Issue 12:  June 6-19, 2009

[24] Ibid

[25] Ibid

[26] A critic might suggest that the question is not whether the government was “massacring” civilians, but whether civilians were being killed in indiscriminate attacks.  Indiscriminate killing is not the same as intentional targeting of civilians under international law.  I am aware of the technical definition of “indiscriminate” attacks, but I’m talking here about matters as seen from the perspective of the civilians.  I’m using the term “massacre” to mean systematic indiscriminate attacks, and not deliberate targeting of civilians in massacres such as, say, Mai Lai in Vietnam, and other such incidents.  For the purposes of the analysis here, I consider that from the standpoint of civilians, an “indiscriminate” attack is a “massacre.”  The relevant question is whether, going on the statements of the civilians, as recorded by persons closest to the battlefield, it is possible to conclude or infer that “massacres”—or anything resembling “indiscriminate” attacks—were taking place, which in turn would be helpful in evaluating the picture painted by the numbers.

[27] B. Muralidar Reddy, “A first-hand account of the war and the civilians’ plight as Eelam War almost comes to a close,” Frontline, Volume 26, Issue 11, May 23-June 5, 2009

[28] David Gray, “A Day at the Front Line in Sri Lanka (Photographer’s Blog)”,, April 27, 2009

[29] “Distribution of food and essential items to Jaffna and Vanni districts from August 2006 to September 2009 (Including food items sent to Mullaitivu district by sea from February 2009 to May 2009)”, Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC), November 2011, Vol. 2 (Annexes), Annex 4.12 (p. 101)

[30] Ibid, p. 100

[31] World Food Program

[32] Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, March 2011, p. 22, para 78

[33] Report of the Secretary General’s Panel of Experts in Accountability in Sri Lanka, March 2011, p. 2

[34] Report of the Secretary General’s Internal Review Panel on United Nations Action in Sri Lanka, November 2012, p. 36

[35] Joint Statement by UN Secretary General, Government of Sri Lanka, 26 May 2009,

[36] Recall that the terms of reference of the first report said explicitly, “The Secretary General underlined the importance of an accountability process to address violations of international humanitarian and human rights law committed during military operations between the Government of Sri Lanka and the LTTE.”

[37] UN Charter, Article 99

[38] Ibid, Article 97

[39] Ibid, Article 98

[40] The classic case on this is, Associated Provincial Picture Houses v. Wednesbury Corporotation (1948), where Lord Green opined, “It is true that discretion must be exercised reasonably.  Now what does that mean?  Lawyers familiar with the phraseology used in relation to statutory discretion often use the word “unreasonable” in a rather comprehensive sense.  It has frequently been used as a general description of the things that must be done.  For instance, a person entrusted with a discretion must, so to speak, direct himself properly in the law.  He must call his attention to the matters which he is bound to consider.  He must exclude from his consideration matters which are irrelevant to the matters he has to consider.  If he does not obey these rules, he may truly be said, and often is said, to be acting “unreasonably.”  (at p. 229)

[41] Laura Carlson, “Honduras and the Obama Administration,” Counterpunch, March 20, 2012

[42] Thomas C. Mountain, “Carnage in the Congo,” Counterpunch, December 24, 2012

[43] Ibid, p. 15, para 38

[44] UN Charter, Article 100

[45] The focus of this paper is obviously international law, not criminal law, but I don’t see why one cannot use principles of law from other fields to elucidate discussions of international law, or any other field of intellectual endeavor, as long as the principles in question recommend themselves generally, on account of their intrinsic reasonableness and probity.

[46] “No person accused of a crime in bound to offer any explanation of his conduct or of circumstances of suspicion which attaches to him; nevertheless, if he refuses to do so where a strong prima facie case has been made out, where it is in his power to offer evidence, if such exists, in explanation of such suspicious circumstances, which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrains from doing so, only from the conviction that the evidence so suppressed or not adduced, would operate adversely to his interest.”  Rex v. Cochrain, (1814, Gurney’s Report, at 479.)

[47] UN Charter, Article 2(7)

[48] Statute of the International Court of Justice, Article 65(1)

[49] Shamindra Ferdinando, “How Moon panel gathered “war crimes” info revealed,” The Island, April 20, 2012