REPORT On the Second Mandate Of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances August 2015 Abbreviations and Acronyms 9/11 11th September 2001 Twin Tower attacks in New York AGA Additional Government Agent ATM Automated Teller Machine CARE Cooperative for Assistance and Relief Everywhere CAT Convention against torture and Other Cruel, Inhuman or Degrading Treatment of Punishment CCHA Consultative Committee on Humanitarian Assistance CDS Chief of Defence Staff CEDAW Convention on the Elimination of All Forms of Discrimination against Women CFA Ceasefire Agreement CGES Commissioner General of Essential Services CID Criminal Investigation Department CRC Convention on the Rights the Child DMI Director Military Intelligence DS Divisional Secretariat ENDLF Eelam National Democratic Liberation Front EPDP Eelam People’s Democratic Party EPRLF Eelam People's Revolutionary Liberation Front FBI Federal Bureau of Investigations FCO Foreign Commonwealth Office FDL Forward Defence Line FTR Family Tracing and Reunification Unit GA Government Agent GN Grama Niladhari GOSL Government of Sri Lanka GPS Global Positioning System GSL Government of Sri Lanka HR Human Rights HRCSL Human Rights Commission of Sri Lanka i HRW Human Rights Watch HSZ High Security Zone IAAC Inter-Agency Advisory Committee ICC International Criminal Court ICC-NHRI International Coordinating Committee of National Human Rights Institutions ICCPR International Covenant on Civil and Political Rights ICG International Crisis Group ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia ICJ International Court of Justice IDP Internally Displaced Person IHL International Humanitarian Law IIGEP International Independent Group of Eminent Persons IMF International Monetary Fund INGO International Non-Governmental Organization IOM International Organization for Migration IS Islamic State JOC Joint Operations Command JVP Janatha Vimukthi Peramuna or People’s Liberation Front KKS Kankesanthurai LRRP Long Range Reconnaissance Patrols LLRC Lessons Learnt and Reconciliation Commission LST Law & Society Trust LTTE Liberation Tigers of Tamil Eelam (also known as the ―Tamil Tigers‖) MBRL Multi-Barrel Rocket Launchers MOD Ministry of Defence MPCS Multi-Purpose Cooperative Societies MSF Medecins Sans Frontieres NCO Non-Commissioned Officer ii NGO Non-governmental Organization NFZ No Fire Zone NSC National Security Council NHRI National Human Rights Institution OHCHR Office of the United Nations High Commissioner for Human Rights OLA Office of Legal Affairs PHI Public Health Inspector PLOTE People's Liberation Organisation of Tamil Eelam PSO Public Security Ordinance, No. 25 of 1947 PTA Prevention of Terrorism (Temporary Provisions) Act. No.48 of 1979 PTF Presidential Task Force for Resettlement, Development and Security in the Northern Province PTK Puthukkudiyiruppu RDS Rural Development Society REPPIA Rehabilitation of Persons, Properties and Industries Authority RPG Rocket propelled grenade RUF Revolutionary United Front SBS Special Boat Squadron SCOPP Secretariat for Coordinating the Peace Process SCSL Special Court for Sierra Leone SEZ Special Economic Zone SFHQ Security Forces Headquarters SIHRN Sub Committee for Immediate Humanitarian Needs SIOT Special Infantry Operations Team SLA Sri Lankan Army SLAF Sri Lankan Air Force SLMM Sri Lanka Monitoring Mission SLN Sri Lankan Navy SOCA Serious Organised Crime Agency STF Special Task Force TELO Tamil Eelam Liberation Organisation iii TID Terrorist Investigation Department TMVP Tamil Makkal Viduthalai Pulikal TRC Truth and Reconciliation Commission TRO Organization Tamale de Rehabilitation TYP Tamil Youth Organisation UAV Unmanned aerial vehicle UN United Nations UNHCR United Nations High Commissioner for Refugees UNOCHA UN Office of the Coordinator for Humanitarian Affairs UN RC/HC UN Resident and Humanitarian Coordinator UPFA United People’s Freedom Alliance USG United States Government Wanni Term for the four northern districts of Sri Lanka including Vavuniya, Mannar, Jaffna and Trincomalee. WFP World Food Program iv Acknowledgements In presenting this Report of our Commission to His Excellency the President I, as Chairman, wish to place on record my grateful thanks to all those who played a part in making this Report possible. Of course, my thanks go out to my hard working staff whose efforts to meet their deadlines were faced cheerfully and with diligence. I owe a deep debt of gratitude to Mrs. Mano Ramanathan, Mrs. Priyanthi Suranjana Vidyaratne, my fellow Commissioners who found time to deal with the enlarged mandate of the Commission whilst also endeavouring to meet our commitments to dealing with the subject matter of the original mandate. Given the enlargement of the mandate by President Rajapaksa on the 15 July 2014 which dealt in large part with the facts and circumstances attending the internal armed conflict that ended on 19 May 2009 and in particular called for all examination of the possible violations of international humanitarian law and international human rights law, we the Commission are greatly indebted to the expert assistance we had touching upon complex issues of international law which we the Commission found threw a great flood of new light upon the matters that fell to us for consideration. My colleagues and I owe a particular debt of gratitude to the Right Honourable Sir Desmond de Silva, QC. (UK) who was Chairman of the legal Advisory Council together with Professor Sir Geoffrey Nice QC. (UK), Professor David M. Crane (USA), all of whom contributed specific legal opinions that collectively became a legal bedrock of this Report. The final distillation of the law was that of the Chairman of the Advisory Council working together with the members of the Commission. The Advisory Council was ably supported by Mr. Rodney Dixon, QC. (UK/ South Africa), Professor Michael Newton (USA) Vanderbilt University who formerly served as the Senior Advisor to the United States Ambassador-at-Large for War Crimes, Commander William Fenrick (Canada), Professor Nina Jorgensen of Harvard and The Chinese University of Hong Kong, and Major General John Holmes, DSO, OBE, MC (UK) former Commanding Officer of the Special Air Service (SAS), for whose independent Military Report we are greatly indebted. We include Mr. Paul Mylvaganam (UK), who acted as a liaison Counsel and his help with regard to truth and reconciliation matters. Our grateful thanks go to Victoria de Silva and Delarney Uyangodage for their research and help in preparing this Report. No acknowledgement would be complete without the most grateful thanks being extended to the Secretary of the Commission, Mr H W Gunadasa who together with senior staff members and the entire secretarial staff performed their duties with great efficiency and dedication. Their names are appended at the back of this Report. Maxwell Paranagama Chairman v Table of Contents Abbreviations and Acronyms .................................................................................................. i Acknowledgements .................................................................................................................. v Mandate .................................................................................................................................. xii Methodology ........................................................................................................................... xv Executive Summary ........................................................................................................... xviii The Darusman Report .................................................................................................. xviii Number of civilian deaths ................................................................................................ xix Application of the Principles of Distinction and Proportionality .................................... xx Deliberate attacks against civilians ................................................................................ xxi The LTTE’s Use of Human Shields ................................................................................ xxii Overall Conduct of the LTTE ....................................................................................... xxiii Overall Conduct of Government Forces ....................................................................... xxiv Command Responsibility ................................................................................................ xxv Accountability ............................................................................................................... xxvii CHAPTER 1 – INTRODUCTION .......................................................................................... 1 CHAPTER 2 - THE 2011 REPORT OF THE SECRETARY-GENERAL’S PANEL OF EXPERTS ............................................................................................................................... 11 A. The Standard of Proof Adopted in the Darusman Report .................................. 12 B. The Accepted Facts in the Darusman Report ....................................................... 13 C. The Darusman Report’s Failure to Identify Primary Source Material ............. 17 D. The Disputed Facts and Law in the Darusman Report ....................................... 19 The Myth of 40,000 Civilians Killed in the Final Phase of the War