Tuesday, 12 August 2014

Reply to Ryan Goodman 2 of 4 - What does Goodman leave out?

What does Goodman leave out?

Ryan Goodman states "there is also prima facie evidence in the public record that he [Gotabaya] ordered the execution of political leaders and their families upon their surrender, that he directed the systematic bombing of civilian hospitals, and that he repeatedly suggested that he could target and deliberately kill innocent civilians in order to win the war against the LTTE".

Goodman makes those accusations offering only one side of the account of the final phase. Goodman, then, invites the reader to be the judge.

In a way it is ironic, that this is how the all critics accuse the administration of Sri Lanka and Gotabaya for those crimes.

In this second article, I reply to Goodman's accusations of Gotabaya. You could access the first article here, Reply to Ryan Goodman 1 of 4 - What is this all about?. There are four articles in total. You could access the the third article here, Reply to Ryan Goodman 3 of 4 - Politics behind

In the above, Goodman refers to few incidences in the final phase. So-called the execution of political leaders is now referred to as the White Flag Incidence (WFI). This incidence happened in the early morning of 18 of May 2009. Later that day, the President of Sri Lanka declared the military victory against the LTTE. Goodman writes it is the 16 of May that the military victory was declared. This mistake hinders the real sequence of the WFI.

The incidences around shelling hospitals were direct result of the fact that LTTE used wounded carders and civilians (WCC) for their military purpose. This had caused operational delays to Sri Lankan Army. And had put greater number of civilians at harm too. The LTTE did that despite the fact that Army had facilitated safe passages to Red Cross to access those WCC in the No-Fire-Zones (NFZs). Furthermore, the LTTE was found firing their arms within those areas allocated to hospitals too.

Gotabaya did not ever suggest that he has given order to ‘kill innocent civilians’. That is Goodman’s words. Gotabaya had made it clear that everything existed outside of those NFZs are legitimate targets, including hospitals.    

Goodman plays with lot of facts. He has not provided balanced account of what has really happened in the final phase.

Goodman forgets that the LTTE was/is a terrorist organization. Goodman does not come up with the real casualty figures of the final phase either. He sticks to an speculated number of 40,000 to 70,000.

Goodman does not distinguish the difference between ‘civilians’ and ‘incidental loses’.

He does not pay even the slightest bit of attention to the terrain in which Sri Lankan Army had to rescue those 350,000 civilians from the human shields of LTTE.

He does not pay attention to the fact that the Sri Lankan Army had to slow down the military operations intentionally to limit the number of unnecessary civilian casualties in the final phase. And, as a result Sri Lankan Army was inflicted with heavy casualties.

The Final Phase - Military Operations

The final phase spans from January 2009 to the end of operations on 18 May 2009. At the beginning of 2009, the Army had liberated most of the North and East from the LTTE. The LTTE was cornered in Wanni.

Some of the civilians were moving along with retreating LTTE cadres. Some of the civilians were living in those areas where the LTTE moving in. However, it was not a coincidence that the LTTE retreated to Mullavikkal, where the final battle took place. In Mullavikkal, the LTTE had built extensive military installments, including a complex of underground bunkers.

Respecting one of the fundamental principles of International Humanitarian Law, the principle of distinction, the Sri Lankan authority had demarcated a No-Fire-Zone (NFZ) on 20 January 2009. It was the first one, among other two NFZs declared by the authority. The NFZ I was consisted of 35 sqkm of an area. (Read further, here)

The Sri Lankan administration had demarcated these NFZs anticipating zero military activates within those zones. The Sri Lankan authorizes had informed the civilians about these safe zones dropping leaflets and using loudspeakers. (Read further, here)

The LTTE infiltrated those NFZs. The LTTE stated using the civilians within as human shields.

At the time of the demarcation of the NFZ I, about 350,000 civilians were within that zone. (Read further, here)

Apart from using the civilians as human shields, the LTTE used civilians to move military equipments and had stored their weapons within these zones. The LTTE fired their weapons at Sri Lankan Army within these zones. These weapons included MBRLs (Multi Barrel Rocket Launchers). (Read further, here)

The LTTE force recruited from civilians, including children, to fight for them. (Read on the above link)  

The civilians, who tried to flee those human shields, were shot dead by the LTTE. The LTTE, in fact, practiced a policy of ‘shoot to kill’, shooting at those civilians whom tied to flee the human shield. (Read further, here)

Those who were caught trying to flee were hung in public, and left the bodies hanging for days for public display, spreading fear among the civilians.  (Read further, here)


At the beginning of February 2009, the LTTE was taking about 300,000 civilians by force with them. About 50,000 had managed to flee to Government's hand using those human corridors opened by the Army, and risking their lives. The LTTE was moving the rest of civilians to Mullavikkal. (Read further, here)

This area is a small stretch of land, which was surrounded by Nanthi Kadal Lagoon to the west and Indian Ocean to the east. The landmass of this area was about 14 sqkm in total. On 12 February, the Sri Lankan Army declared this area the NFZ II.

This strip of land, like a bottle-neck type from the North and South, had given the LTTE full control over the civilians within. The civilians put their lives at great risk to escape this area. In the western frontier, along the western borders of the Lagoon, and in the northern and in the southern frontiers, the LTTE had erected earth bunds to restrict the visibility of military targets within for the Army. (Read further, here)

The LTTE, meanwhile, was waiting for an international intervention. (Read further, here)

This is the terrain that the Army had to rescue those civilians from. In order to do that, now, the Army had to cross the Lagoon, which is about 1 km of water stretch at the narrowest place, and then climb up those earth bunds.

The Sri Lankan Army took more than two more months to break this earth bunds. The Army had re-evaluated their code-of-conduct for the second time in this period. These precautionary measures were took even if the Army had the upper hand of using extensive Air power to break the bunds and finish the war quicker.

The Army had intentionally slowed the military operations to reduce civilian casualties.

In this period along, the Army lost about 2,000 army personals to the incoming fires of LTTE, and injured about 7,000. (Read further, here & here)

Finally, on 19 April, the 58th division managed to break this NFZ II into two, liberating about 100,000 civilians with it. 

The humanitarian law stipulates that nothing should impair the civilians’ lives in the war. The fact that civilian were used as constantly moving human shields or they were kept forcibly within those NFZs does not permit discriminatory fires at them. The fact that the LTTE had blurred the principle of distinction does not permit discriminatory fires either. The fact that the LTTE constantly fired their MBRLs at the Army within these NFZs, camouflaging within the crowd, and then fleeing the immediate area, leaving the civilians vulnerable to immediate retaliatory fires, does not permit discriminatory fires either.

This terrain brought challenges to the operations. To overcome those the Sri Lankan Army had to prove themselves exceptional.

The White Flag Incidence - WFI

A day before the conclusion of war, 17th May, Nadesan, the head of Political wing of LTTE, and Pulidevan, the head of the Tiger Peace Secretariat, had started to mediate their surrender with the government officers. Gotabaya was among those officials whom knew those developments on behalf of the Sri Lankan administration. (Read Goodman's writing on this, here)

Nadesan and Pulidevan had made contact with international community as well. They had informed Norway and Washington and had requested a presence of third party at the surrender.

Instead, President Rajapaksha had guaranteed their safety.

About 6:30 in morning, on 18 May, Nadesan and Pulidevan with their family members were crossing the Wadduvakal Bridge, waving white flags, to the government forces.

Later, they were all found dead. This is the incidence now referred as the White Flag Incidence.

The LTTE is a terrorist organization

By the time the Army of Sri Lanka declared full scale military operations in 2008, the LTTE had been banned by 32 countries including the U.S and the European Union members. Even the UK had banned it. (Read further, here).

Its decades of gruesome terrorist activities had earned the LTTE the title of world’s most ruthless terrorist outfit. (Read further, here) In fact, the LTTE was the one invented modern day suicide bombing, which later adopted by al-Qa’ida and Taliban and  other terrorist groups. The LTTE was the only terrorist outfit in the world to have a fleet of its own Air Wing. The LTTE had a Navy Wing too.  

The thirty years of LTTE’s terrorist activities had cost almost 60,000 lives of innocent civilians.

The LTTE's political assassinations had paralysed the country too. Among the high profile political assassinations of the LTTE, the assassination of Indian Prime Minister, Rajiv Gandhi; the assassination of a Sri Lankan Defence Ministers, Ranjan Wijeratna; the assassination the Sri Lankan President, Ranashighe Premedasa; a suicide attempt on another Sri Lankan President, Chandrika Kumaratunga; the assassination of a Foreign Minister, Hon. Lakshman Kadiragamar are significant.

Both Gotabaya Rajapaksha and Sarath Fonseka also had escaped suicide attempts in 2006. (Read further, here)

Getting the casualty figures right

Goodman is not bringing up the real casualty figures to the readers. He sticks to the articulated number, going along with rest of his compatriots, as about 40,000 to 70,000.

Real incidental losses are as follows. This data is available to public since 2011.

Total Number of War Victims – Jan to 18 May - (read further, here)

  • 7,934 had died in 2009 during the final phase along. This number includes civilians who died due to various reasons, including LTTE shootings and crossfire.
  •     2,635 persons were reported as untraceable in the Northern Province.
            a). Further investigations have already been carried out with regard to 2,360 of these cases.

            b). 1,625 of them were confirmed to be forcibly recruitment by the LTTE.

            c). There are signs that some individuals escaped to foreign countries through illegal means.

Total Number of LTTE Cadres Killed - (read further, here)

  •     The LTTE lost 22,247 cadres of which 11,812 have been identified by names.
  •     11,872 LTTE cadres were surrendered to the Sri Lankan Army.
  • That places the total number of cadres LTTE had at 34,139.

Total Number of Sri Lankan Army casualties - (read further, here)

  •     From July 2006 to May 2009 the Security Forces had lost 5,556 personnel in action, 28,414 were wounded and 169 went missing in action.
  •     In the final phase along, from January to the May 18th the SLA had lost 3,000 soldiers and sustained more than 20,000 injuries.

The Conflict Encyclopedia of the University of Uppsala in Sweden has recorded 59,676 fatalities in total for three decade of war. (My emphasis added)

The incidental losses of about 6,000 have occurred in the final phase.

These facts are missing in Goodman's writings.


Ryan Goodman’s take of the final phase of the war, which the Sri Lankan Army had waged aginst the LTTE, is gravelly partial.

He does not clarify the difference between ‘civilian casualties’ and ‘incidental losses’.  He exaggerates the casualty figure. The real incidental losses occurred in the final phase is about 6,000.

The incidental losses has occurred when the Army had targeted their military targets. The incidental losses could occur as collateral damage when targeting a legitimate military target.

The evidence suggests that the Sri Lankan Army had never fired at civilians intentionally with a criminal purpose. The available facts prove that. The LTTE violated the laws of war gravelly, including using their own wounded carders for military purpose.

The humanitarian nature of the Army’s operation was evidence in the casualty figures of Army personals. Three thousand Army personal were killed in the final phase along.

This is also one reason why the operations conducted by the Army of Sri Lanka could not be categories under the fashionable category of New Wars. The Sri Lanka Counterterrorism Strategy begs a new definition. (Read the next article)

While the Army took those heavy casualties about 350,000 civilians were rescued from human shields of the LTTE.

About the White Flag Incidence the following has to be said.

No one knows what exactly had happened or from where those first shots came from.

In few reports, which are claiming to have compiled records of eye witnesses of the real event, also contradict what they say has happened in that morning. Read the following two reports. One is from White Flag Org (Read further, here), and the other report is from the US State Department (Read further, here).

Even these witnesses contradict the events and the immediate surroundings of the event.

In the report compiled by the White Flag Org, the incidence was recorded as that ‘the LTTE leaders surrendered, accepted tea and were then beaten. And then they were all shot by the commandos.’ Who is this commando that is claimed to be saw this and handed over the information is unknown.

In the report compiled by the US State Department, meanwhile, reports that ‘the Sri Lankan Army started firing machine guns at them’ while they were walking towards to the Sri Lankan Army ‘waving a white flag.’

Gotabaya has hinted that a single bullet fired by either a LTTE carder or a nervous Army soldier could have created this mess.

On the top of that, I have argued that tedious and horrific details of that event hinders the well-being of whole country and speedy post-war recovery.

By knowing those details neither going to help the development of Sri Lanka nor uplifts the lives of the Sri Lankan people. This is a classic utilitarian argument. I would argue for the greater good of Sri Lankan public rather than few individuals on any side.  

This is the reason why an investigation into a high profile political killing usually do not go that extra mile seeking to establish those tedious details. Look for the evidences available on the assassinations of Osama bin Laden. It does not mean that Hilary Clinton and Obama enjoyed watching the assassination live. It is a political necessity that has to be done with.

In another scenario, imagine that these high profile individuals, Nadesan and Pulidevan, have been granted asylum in the west. There is no guarantee from anyone that they would not capitalize on their political power against the administration of Sri Lanka. A handful of former LTTE carders do exactly that today in western capitals. This could have had detrimental effects on the post-war national building efforts.

And then again, if I ever want to find the truth about the WFI, the twisted words of Fonseka would be the last place I would find reassurance. (Read the first article) Sitting down with the US Ambassador, Patricia Butenis, next day after his public announcement of his defection from the Sri Lankan government and the intention of competing for the upcoming Presidency, infers a lot to me about his intentions. (Read here)

Now, coming back to the Goodman's writings again, it seems, it is very impartial of him to pay no attention at all to the context of the final phase. Goodman leaves out those points for some reason.

For this reason, the reader is unable to make well-informed decision regarding Gotabaya.


Acknowledgement - initially edited and proofread by Roisin Ni Caoimh. But, since then, the writing went through some changers.

Note - to verify sources visit those links next to each paragraph. Some of the sources, which were linked on the first article, Reply to Ryan Goodman 1 of 4 - What is this all about?, are not repeated here. I am aware there are some grammar and spelling mistakes are visible on those linked articles. But the credibility of sources is guaranteed.  

Last updated - 19 Aug 2014, on 14:53. 

Friday, 8 August 2014

Reply to Ryan Goodman 1 of 4 - What is this all about?

What is this all about? 

Ryan Goodman, a professor of Law of Anne and Joel Ehrenkranz at New York University, points out that the Sri Lankan Model of counterinsurgency and counterterrorism strategy (CC Strategy) is a real threat to the US counterinsurgency and counterterrorism strategy and US' interests. 

He advices the relevant US authorities to release the details of interception of Gotabaya's phone record to US Justice Department in order to facilitate the indictment of Gotabaya in the US as a US citizen. If there has been interceptions of Gotabaya's communications there are  indeed has been illegal intersections. Goodman does not care about the fact that they are illegal. 

In this series of article I will discuss the following questions: How come the Sri Lankan (Gota') Model pose a real threat to US' model of CC Strategy/Operations? What compromise has Goodman made to the real accounts which unfolded on the ground of Wanni in the final phase of guerrilla war against the LTTE, in order to write an eloquent article? What damages could the US authorities inflict on their national interests if those interceptions were compromised? 

Four articles, including this one, explore those points. 

The followings are Goodman's articles;
  1. Sri Lanka’s Greatest War Criminal (Gotabaya) is a US Citizen: It’s Time to Hold Him Accountable  (May 19, 2014) 
  2. Road Map I: What More Congress (and the Administration) Can Do to Promote Accountability in Sri Lanka (July 15, 2014) 
  3. Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes—The Case of Gotabaya Rajapaksa (July 30, 2014)

I outline some crucial context in this article and the next one reveal the compromising nature of Goodman's articles. This will help an neutral reader to have an objective view of the final phase. The second article is titled 'What does he leave-out'. The third article, 'Politics behind', analyses the subtle and hidden political agenda behind his articles. The third article offers a great insight into how the international law and international politics mingled with each other and how political realism, liberalism and humanitarianism go in hand-in-hand helping each other in Sri Lankan case. Final article, 'the U.S position on Sri Lanka', makes an analysis outlining how damaging it would be to US national interests, if the US administration were to follow up on the Goodman's advice to release details of the interception.

Ryan Goodman

Beside being a law professor, Ryan Goodman is also a Co-Editor-in-Chief of Just Security, an online forum which analyses US national security and policy perspectives. His views were expressed at 'the US Congressional Caucus on Ethnic and Religious Freedom in Sri Lanka on accountability on Sri Lanka' on 9 July in Washington, D.C.

On 30 of July, just a few days ago, a refined and very eloquent analysis came online, in which Goodman outlined all the legal avenues available to the US Justice Department in order to indict Gotabaya. This is possible, because Gotabaya happens to hold a US citizenship.  

For the legal avenues Goodman outlines the following; US War Crime Act of 1996 - this statute allows for the prosecution of war crimes committed abroad, but only if the perpetrator or victim is a U.S. citizen or member of the U.S. Armed Forces (Read further, here); Civil/criminal  liability act, Civil RICO; as well as other options available, such as charging Gotabaya for tax evasion and immigration fraud.

In order to go down with the first avenue of charging Gotabay for war crimes, Goodman believes intercepts of Gotabaya's phone records (which I maintain may have been recorded illegally), and satellite images of Wanni, where the final battle took place, will help. 

Is it wise to produce evidence of illegal interception - if it does exist - to the Justice Department? (Read the fourth article, 'Reply to Ryan Goodman 4 of 4 - the U.S position on Sri Lanka') 

Moreover, Goodman believes that "Sri Lanka’s historic defeat of an insurgency is emerging as a competing model to US counterinsurgency and counterterrorism strategy." He is very concerned regarding this. Furthermore, he points out "... if adopted [the Sri Lankan Model] by other militaries, risks counterproductive and blowback effects to the detriment of US interests."

How come? Is he not politicizing humanitarian law with US interests in effect undermining his own credibility as professor in law? (Read the third article, 'Reply to Ryan Goodman 3 of 4 - Politics behind')
Goodman has gone markedly very far away from the main intention of the Caucus and his discipline. For the clarity of Goodman's argument, a lot of compromises have made to the truth of the final phase. (Read the second article, 'Reply to Ryan Goodman 3 of 4 - What does he leave-out')

Some Context

The war in Sri Lanka finished on 18th of May 2009. Five years after its conclusion, on the ground in Sri Lanka especially where the final battles took place, a lot has changed progressively. Demining of about 5,000 sqkm has almost complete, resettlement of about 500,000 IDPs has been completed, child soldiers received speedy education programs and have been given jobs and reintegrated into their respective communities and micro livelihood programs were made available to those who affected.

This is not to say there are no post-war issues in Sri Lanka. According to the established doctrine of transitional justice, there are some classic post-war issues still  in Sri Lanka; political impunity of victors, an increasingly authoritarian attitude at constitutional level, the absence of an transparent inquiry into the truth of the final phase, a lack of witness protection laws, a handful of cadres are still in detained, there are polarizing figures on all sides, especially among majority Buddhists and hate speeches. Issues which are uniquely Sri Lankan are also there, such as land issues and demarcation of land for High Security Zones. This has resulted in the delay of some resettlement as well.

However, in general the country is buzzing with foreign investments and infrastructure developments. These have resulted in the country being lifted to a lower middle income country. Some academics, including the western academics, Dr. Kruglanski and Dr. Gelfland, have also recognized these unparalleled developments, being made by the post-war administration in Sri Lanka. 

Meanwhile, internationally, annual attempts by powerful nations and advocates of blind-transitional justice  bring the country before the General Assembly making the wound raw again every year. Some individuals have been accused of war crimes and crimes against humanity since 2009. This approach is also being favored by most of the prominent NGOs.

The US, the initial and main helper of Sri Lankan authorities of getting rid of the terrorism in the country, has also started showing some sign of resentment recently. Since China and Russia stand solidly with the government of Sri Lanka any international investigation seems a highly unlikely outcome. The Sri Lankan administration is asking why it needs the approval of a third party when it knows it does not need that.

Gotabaya has become the victim of all this as he is regarded as the mastermind behind the successful CC operation in Sri Lanka. 

The former Army Chief of Sri Lanka, General Sarath Fonseka, who led the CC Operations for the administration under the guidance of Gotabaya, has become bitter with him and has said publicly he is willing to testify against him in any international court on 13 December 2009.

Interestingly, Fonseka announced this after encountering some US personal from the Department of Homeland Security in October 2009, while he was visiting his family members in US.

Fonseka's statements, the immediate after the conclusion of war, supporting Gotabaya and every aspect of the operations, long delay to come clear if he had known any misconduct by the Sri Lankan Army, and how the sequence of events unfolded after the meeting of US personals from Department of Homeland Security, have make his stance very 'sinister'.

Furthermore, the very next day after his public announcement -this is on 14 December - he was sitting down with the US Ambassador to Sri Lanka, Patricia Butenis, having a lunch. These details were revealed on a leaked classified cable on Wikileaks. (Read further, here)

Among many words, which were dictated to the US State Department by Patricia later on that day, 'Regime Change' was also included.

For me, this is the most intriguing US move in this whole saga.

For those who interested in back-door diplomacy and bulling of small guys by the big one, and for those who think this whole account is about the victims of war and humanitarian effort of the US and international communities, finding out who met with Sarath Fonseka and what was discussed would be a treat! Probably, we will never know.

After all those mentioned positive and negative, national and international developments in post-war Sri Lanka, Ryan Goodman comes with all legal avenues available to indict Gotabaya back to US. 

In the next article I analyse what he leaves out from his writings, thus compromising the truth of the final phase.

Acknowledgment: edited and proofread by Roisin Ni Caoimh