“My son-in-law managed to buy a tin of Lactogen for a price of Sri Lanka Rs. 3,000 as my two-year-old grandchild had to go without milk for nearly two months.  We have been living in the bunkers for weeks with shells and gunfire exploding all around us.  Late last night we decided to crawl our way out without being detected by the Tigers,” a man who was successful in coming out with his entire family said.[27]

I wish to highlight only two points from the above passages.  First, as with the previous passages, it is clear that Mr. Reddy had an opportunity to speak and interact with the civilians.  And again, there is not the slightest indication that he heard any of these civilians ever saying anything like, “They (government soldiers) are murdering us in there!”  There is also not the slightest indication that Mr. Reddy felt the need to ask them whether such murders were going on—all of which lead to the natural inferences mentioned earlier.

There is, however, an additional point which emerges from these passages.  Mr. Reddy’s impression appears to have been that the civilians were glad to cross over to government lines.  He says, for instance, that he saw mothers “clutching their babies and running towards military check-points.”  He also cites the statement of the man who says, “Last night we decided to crawl our way out without being detected by the Tigers.”  So, clearly these people were running towards the Sri Lanka army—presumably, expecting to find safety there.  Would they have been running towards the army if they felt—either from what they had heard from other civilians, or from personal experience—that the army had been massacring civilians over the past days if not weeks?  It doesn’t make sense.

Once again, I could go on, but I’ll turn to the final set of quotes, which are from a Western reporter, one David Gray, of Reuters.  These quotes, meanwhile, are from a “Photographer’s Blog,” and therefore of a more personal and informal nature than Mr. Reddy’s submissions.  But such informal submissions are also important because sometimes they offer surprising insights into situations.  Here, then, is part of Mr. Gray’s narrative of what he saw when he was taken on a tour of the battle-zone in April 2009.

After what seemed like hours, but was actually only one, we arrived at the destroyed town of Putumatalan.  Here, we got into jeeps.  The troops that were escorting us got noticeably nervous.  They held their guns at the ready now, looking more alert and more intently into the coconut groves as we passed.  We must be close now, I thought.

After about 20 minutes driving down a dirt road, we turned a bend.  Suddenly, there were thousands of exhausted and weary looking civilians.  They were being given small amounts of food and drink by the soldiers, but only enough to last them a day or so.  This was when our escorts really started to hurry us.  It seemed they didn’t want us to talk or view the civilians for too long, and after just 5 minutes, we were told to get back in the jeeps.  Frantic calls were made on radios, and we were told we were now headed to the front.

In just 10 minutes, we arrived at a place where just days earlier the Sri Lanka government soldiers had pushed their way through the LTTE defenses, leading to a mass exodus of civilians.  Smoke billowed less than a mile away, where, we were told, troops were continuing to fight.[28]

What can one learn from the above observations?  I want to focus on only one point, related to what Mr. Gray says about his encounter with the civilians.  He says that he was being driven along a dirt road when the jeep rounded a bend and suddenly in front of him he saw thousands of civilians.  From the context, it is clear that this was an area where his escort suspected there were Tiger fighters hiding in the surrounding coconut groves.  So, the encounter with the civilians was clearly not a “set up” or a pre-planned “photo-op”:  the escort simply did not know the civilians were around the bend.  In any event, what is the first thing that Mr. Gray noticed when he saw the civilians?  He says that he saw the civilians “being given small amounts of food and drink by the soldiers.”  In other words, he saw the soldiers feeding the civilians.

Now, a critic or a cynic might point out that according to Mr. Gray’s narrative the soldiers were giving only “small amounts” of food and drink.  But obviously, soldiers on the battlefield cannot be expected to carry the massive amounts of food necessary to feed thousands of civilians (most probably they were sharing their own rations with those civilians).  But the inescapable fact, if we go by Mr. Gray’s observation, is that he saw the soldiers feeding the civilians.

Recall that the general accusation being made against the Government is that it had ordered indiscriminate attacks.  If these soldiers that Mr. Gray saw were either intending on or in the habit of attacking civilians indiscriminately, or were part of an army that had been tasked or allowed to carry out such attacks, which entails a certain callousness and utter disregard for the wellbeing of civilians generally on the part of that army, as well as the Government that was ultimately in control of that army, why would these soldiers be feeding civilians?  Is that the sort of behavior one would expect from soldiers tasked with mistreating—i.e. leveling indiscriminate attacks—against civilians?  So, these are some of the questions that emerge when one considers eye-witness testimony coming from the battle-field.

I have considered here only three sets of quotes:  as I indicated earlier, there are innumerable others.  The point I want to make is simply this:  the overall impression one gets from these quotes (and others), and especially the closer the testimony is in time and space to the battle-zone, is that the army was taking as much care as was reasonably possible to protect the civilians, that the civilians themselves were aware of this, and took every opportunity they could to escape to government lines.  This impression is entirely consistent with the picture painted by the numbers, and in fact corroborates the inference that the army was not targeting civilians deliberately or indiscriminately, as claimed by the critics.

Summary

In this section I have considered numbers, plus testimony of outsiders, to see whether a prima facie case for war crimes can be made against the Government.  I have tried to show, at least as far as the Secretary General’s allegations are concerned, that it is difficult to make such a case under either of these categories, and harder when they are taken in combination.  Recall that the POE report sets out three main “charges” against the Government:  indiscriminate shelling of civilians, shelling of hospitals, and depriving the civilians of food and medicine.  Let’s just go through these quickly.  On the first charge, indiscriminate shelling of civilians, I think the numbers, plus the eye-witness testimony coming from the battle-zone, are sufficient to counter it.

On the second charge, shelling of hospitals, if the Government did in fact target hospitals, there is no doubt the Government committed a war crime. The Government, however, denies that it ever targeted hospitals deliberately.  Even if one dismissed the Government’s denials out of hand (saying such denials are self-serving), it seems to me that to really evaluate the second charge one has to consider a number of matters.  First, the hospitals that were allegedly attacked were in the battle-zone, an area from which civilians had been generally evacuated by the Government, or reciprocally, if civilians were present, they were being forcibly kept there by the LTTE.  So, the buildings may at one time have been hospitals, but it is unclear, going on the POE’s allegations, if they were functioning as hospitals at the time of the alleged attacks.  It is important to note that the POE itself explicitly admits that the LTTE was known to store military equipment and also to fire from hospitals.

In light of the above, one has to also consider whether the army knew there were civilians still in the hospitals that were allegedly attacked, roughly how many, and what measures if any were taken to protect those civilians while neutralizing combatants, if any, holed up in those hospitals.  One would also have to keep in mind the exceptions mentioned in the ICRC study with respect to “civilian casualties incidental to the conduct of military operations,” and other such matters.  The POE does none of these things.  Finally, as a general matter, one has to keep in mind the overall picture painted by the numbers, plus the testimony coming from the battlefield.  I think the overall impression one gets from the numbers as well as the outside testimony is that the Government was taking as much care as possible to spare the civilians, and that the latter knew this.  But in that case, why would the Government go out of its way to deliberately attack functioning hospitals, the most vulnerable of civilian targets?  It doesn’t make sense.  Due to these reasons, I feel that the POE does not establish a prima facie case with respect to the second charge either.

That leaves charge number three:  the denial of food and medicine to the civilians, which I haven’t addressed so far.  The Secretary General’s experts say that the Government denied food and medicine to the civilians, or rather, that the Government “deprived” the civilians of food and medicine.  The ICRC, however, which was present in the conflict-zone throughout the final phase of the war, and in fact participated in and helped coordinate the Government’s food and medicine convoys to the battle-zone, did not complain at the time.  Government records, meanwhile, show that it transported 534,227 metric tons of food and medicine to the conflict-zone[29]:  the ICRC has never disputed those quantities.

It should be further noted that the Government continued its food-and-medicine convoys right up to the very end of the war, and this in face of the fact—apparently well-known to the ICRC and others—that the LTTE was pilfering much of the food and medicine once it got to the distribution points.[30]  It seems to me, therefore, that one can perhaps argue over whether the quantities of food and medicine sent were adequate or inadequate, but it is very difficult to say that there was a systematic attempt to “deprive” the civilians of food and medicine.  Hence, on this charge also it is very difficult to come to a clear-cut determination that a “war crime” was committed.