The controversy over the alleged use of cluster bombs during the war took a different turn last week as a result of a comment made by the Chairman of the Missing Persons Commission, Maxwell Paranagama.
His comment drew outrage from human rights groups, civil society and even Foreign Minister Mangala Samaraweera who accused him of making ‘panditha katha’ or trying to be too smart.
Paranagama had said that if the army used cluster bombs before 2010 it was not illegal.
He noted that the Cluster Munitions Convention (CMC) banning the use of such weapons was not in force at the time of the conflict and only became operational on 1st August 2010.
“Therefore, if there had been a need for the Sri Lankan Army to use cluster munitions because of military necessity, it was not illegal at the time,” he said.
Brad Adams, the Asia Director of Human Rights Watch told The Sunday Leader that while the weapons were not outlawed their use would almost invariably have been indiscriminate, and thus unlawful, under the laws of war.
The International Crisis Group’s Sri Lanka Senior Analyst Alan Keenan toldThe Sunday Leader that justice Paranagama’s claims about the legality of cluster munitions are both surprising and disturbing.
“Disturbing because Justice Paranagama appears to be making a partisan political intervention directly at odds with the impartiality essential to the credibility of the independent commission of inquiry he chaired. His claims are surprising because they seem based on a serious legal misunderstanding. While the international treaty banning cluster munitions as an entire category of weapons did not come into force until after the end of Sri Lanka’s civil war, the conditions in the final stages of the war makes it highly unlikely that cluster bombs could have been used without violating the fundamental humanitarian law principle of distinction: i.e., that attacks must distinguish between military and civilian targets. The very nature of cluster bombs would make it difficult if not impossible to use them lawfully in a battlefield – also known as the ‘no fire zone’ – packed with hundreds of thousands of civilians,” Keenan said.
He added that with respect to his claims about the lack of evidence of their use, it is surprising that Justice Paranagama makes no reference to the new evidence – including eyewitness statements by both demining experts and civilian survivors – made public in last month’s Guardian newspaper article.
“While this evidence has yet to be presented to or tested in a court of law, choosing simply to ignore it, as Justice Paranagama does, only further calls into question his independence and impartiality,” he added.
Paranagama had noted that there has been a very great deal of publicity preceding the Geneva session touching upon the use of cluster bombs.
The UN High Commissioner for Human Rights had recently called for an independent and impartial investigation to be carried out into claims that cluster bombs were used during the war.
“The Paranagama Commission in dealing with its Second Mandate Report fully examined the available evidence and came to the conclusion that there was no credible evidence to suggest that the Sri Lankan Army used weapons of this kind. These, in military terms, are known as area weapons,” Paranagama said.
Paranagama noted that three years after the end of the conflict, a leaked email from a member of the United Nations Development Programme mine clearance section, alleged that, ‘some evidence’ had been discovered of cluster munitions in the conflict zone.
“The Sri Lankan Army denied use of such munitions and this denial was accepted by the UN at the time. In other words, it would appear there was no evidence that contradicted this denial,” he said.
Paranagama says anyone who reads the Report made to the Human Rights Council could be forgiven for thinking that the use cluster munitions at the time in some way constituted a war crime.
When asked by The Sunday Leader about the comments made by Paranagama, Foreign Minister Mangala Samaraweera said he was disappointed that a person in the calibre of Maxwell Paranagama made such a statement and added that such a statement will not help the reconciliation process.
The Foreign Minister said the government, on its part, is prepared to investigate if cluster bombs were used and without investigating nothing can be said.The Guardian newspaper reported last month that images that appear to confirm the use of cluster bombs in the end stages of the war have been uncovered as new testimony emerged suggesting the country’s armed forces may have deployed the munition against civilians.The photographic evidence provided to the Guardian depicts cluster bombs uncovered by de-mining teams in parts of the country close to sites where fighting took place in late 2008 and early 2009.
The material is accompanied by the testimony of former de-miners, some of whom claim they identified munitions within government-declared ‘no fire zones’ in which about 300,000 people were told to gather for their safety during the war’s denouement.
The photographs of cluster bombs were leaked to the Guardian by a former employee of the Halo Trust, the world’s largest mine clearance organisation. The images appear to show members of the Trust digging out a large delivery missile as well as cluster submunitions, or ‘bomblets’ in different locations.
Independent corroboration of the nature of the weapons has been provided by a senior weapons researcher at Human Rights Watch who identified the material pictured as the remnants of Russian-made cluster bombs and unexploded cluster submunitions.
Samaraweera said the former government flatly rejected any concerns that were raised on the war but the current government is adopting a different policy.
He said the proposed truth seeking commission will inquire into allegations raised against the army.
The Foreign Minister said that the truth seeking commission is expected to be established later this year following wide consultations with all stake holders.
He said that the commission will investigate if the army chain of command issued orders during the war which led to human rights violations.
He also said the architecture of most mechanisms in the domestic process should be ready by early next year.
The Minister also said the government is open to international assistance and will look at all options before taking a final decision.
Samaraweera said that while the war was won in 2009 little was done to win the peace but the current government is taking measures to ensure the reconciliation process goes forward.
He said now Sri Lanka has won the confidence of the international community and this was clear from the support Sri Lanka received at the recently concluded UN Human Rights Council session in Geneva. (Courtesy The Sunday Leader)