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Cablegate: Sri Lanka: Delivering the "War Crimes" Report

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UNCLAS STATE 109032

SIPDIS

E.O. 12958: N/A
TAGS: PREL PGOV PTER PHUM KAWC CE
SUBJECT: SRI LANKA: DELIVERING THE "WAR CRIMES" REPORT
TO THE GSL

1. (U) This is an action request; see paragraph 5.

2. (U) Background: The Department of State will deliver
to Congress on the afternoon of October 21 a report
prepared pursuant to the Joint Explanatory Statement
accompanying the Supplemental Appropriations Act, 2009
(P.L. 111-32), which directed the Secretary of State to
submit a report "detailing incidents during the recent
humanitarian conflict in Sri Lanka that may constitute
violations of international humanitarian law or crimes
against humanity, and, to the extent practicable,
identifying the parties responsible."

3. (U) The alleged incidents set forth in the report
occurred in the context of the final months -- January-
May 2009 -- of an armed conflict between the Government
of Sri Lanka and the Liberation Tigers of Tamil Eelam
(LTTE), which has been listed as a terrorist
organization by the United States since 1997. The
report does not provide, nor is it intended to be, a
comprehensive portrayal of the conflict. While the
report's background section includes an overview of the
relevant international law that could be a useful
framework for reviewing the conduct alleged in the
report, the report does not reach legal conclusions as
to whether the incidents described in the report
actually constitute violations of international
humanitarian law, crimes against humanity or other
violations of international law. Nor does it reach
conclusions concerning whether the alleged incidents
actually occurred. An executive summary, additional
background on the context of the conflict, the legal
framework, the methodology, and limitations to
collecting and corroborating information are included in
the report.

4. (U) Hard copies of this report will be delivered to
Congress on the afternoon of Wednesday, October 21, and
the report will be posted on the State Department
S/WCI website on the morning (EDT)of October 22. SCA
A/S Blake and S/WCI Ambassador Rapp will hand a copy of
the report to the Sri Lankan Ambassador to the United
States on October 21, following its delivery to
Congress.

ACTION REQUEST
--------------

5. (U) Ambassador is instructed to deliver to the
Foreign Ministry, and to other GSL officials as
appropriate, a copy of the report, drawing on the
talking points below. These points may also be used
publicly. Additional press guidance is included in
paragraph 6. Info addressees are authorized to preview
the report's release and/or to deliver a copy of the
report, following its public release in Washington, to
host-country officials. Info addresses may utilize the
same talking points below, as well as the additional
points provided, and the cleared press guidance as
appropriate with media and host-country interlocutors.

- The Department of State delivered on October 21 to the
U.S. Congress a report prepared by the Department of
State at the direction of Congress "detailing incidents
during the recent conflict in Sri Lanka that may
constitute violations of international humanitarian law
or crimes against humanity, and, to the extent
practicable, identifying the parties responsible."
-Congress cares very deeply about this issue. It is
also important to the Obama Administration.

- The report does not provide, nor is it intended to be,
a comprehensive portrayal of the conflict.

- The report compiles incidents alleged to have
transpired in the final stages -- from January to May
2009 -- of the conflict against the terrorist group
LTTE, which may constitute violations of international
humanitarian law or crimes against humanity and related
harms. The incidents identified in the report include
those alleged to have been carried out by the LTTE, as
well as by Sri Lankan government forces.

- The report also provides an overview of relevant
international law that may be a useful foundation for
reviewing the conduct alleged in the report, but the
report does not reach any legal conclusions as to
whether the incidents described in the report actually
constitute violations of international humanitarian law,
crimes against humanity or violations of international
law.

- The United States recognizes Sri Lanka's inherent
right to defend itself from armed attacks, including
those by non-state actors such as terrorist groups. The
United States also expects states and non-state actors
to comply with their international legal obligations
concerning, among other things, the treatment of
civilians not taking part in hostilities, and the
principles of distinction and proportionality.

- The State Department consulted a wide range of primary
and secondary sources in gathering information for this
report. Information concerning the majority of
incidents cited in the report originated in first-hand
accounts communicated by persons from within the
government-declared No Fire Zones and locations close to
the fighting.

- The report explains that there were a number of
limitations on the State Department's ability to collect
and corroborate information, including limited access to
the conflict zone and to potential eyewitnesses to
alleged incidents. These limitations are discussed in
the report's background section.

- We continue to urge the Government of Sri Lanka to
grant the international community full access to the
northern region, as the UN High Commissioner of Human
Rights has requested, to better understand the facts on
the ground in Sri Lanka, and to ensure that human rights
are fully protected and that ongoing humanitarian needs
are being fully met.

- At the same time, we continue to urge you to release
without delay the over 250,000 internally displaced
persons (IDPs) who remain in IDP camps and facilitate
their return and reintegration.

- Accountability is an essential component of national
reconciliation. There is as well the urgent need to
release and facilitate the return of internally
displaced persons, and to take meaningful steps on
political reconciliation, such as implementing
constitutional provisions on political power-sharing and
devolution and curtailing human rights abuses.

- We look to the Government to identify a mechanism and
initiate an impartial and effective process for
establishing accountability, including, where
appropriate, investigating allegations of violations
that may have occurred during the final stages of the
conflict and holding accountable any individuals
responsible for such violations.

- There are a number of domestic and international
models of accountability mechanisms that the government
could draw from in creating its own process that would
promote reconciliation and healing. We hope the
government will pursue a dialogue with a broad range of
representatives of Sri Lanka's Tamil community to
determine the appropriate mechanism.

- Pursuing accountability will not be easy. It is
understandable that, after 26 years of violent struggle
against the LTTE, many in Sri Lanka will want to simply
move on. But if we hope to achieve the peaceful and
prosperous future that we all want for Sri Lanka, the
government must do what it can to help account for the
suffering of the past. Genuine national reconciliation
demands it.

ADDITIONAL POINTS FOR INFO ADDRESSEES:

- Accountability is a critical component of national
reconciliation. It is important that the international
community speak with one voice on the importance of
accountability.

- We recognize that it would be a challenge for any
sitting government to pursue an accountability process
for alleged large-scale violations of international
humanitarian law or other violations that may have been
committed during its tenure.

- In pushing for accountability, we do not intend to
lose our focus on urging the Government of Sri Lanka to
release and facilitate the return of the nearly 250,000
internally displaced persons (IDPs) who remain in IDP
camps and the pressing need for the government to take
meaningful steps on political reconciliation, including
implementing constitutional provisions on devolution and
political power sharing, and ending human rights abuses.

ADDITIONAL PRESS GUIDANCE
-------------------------

6. (U) The following guidance has also been cleared for
use with Sri Lankan media and may be used with
government interlocutors:

Q: How could you write/prepare this report without
consulting the Government of Sri Lanka?

- State Department officials discussed the parameters
of the report with senior Government of Sri Lanka
officials, including the Foreign Minister and the
Ambassador to the United States. We have also
encouraged the Sri Lankan government to investigate
allegations of possible violations of international
humanitarian law and other violations and hold
accountable those responsible.

Q: How can you verify the claims in the document?

- The report does not attempt to verify claims of
violations. A number of factors limited the ability of
the Department of State to provide conclusive
information as to incidents that may constitute
violations of international humanitarian law and crimes
against humanity, including restricted access to the
conflict zone and screening points.

- Due to these limitations, the report does not reach
any legal conclusions as to whether the incidents
described in the report actually constitute violations
of international humanitarian law, crimes against
humanity or other violations of international law. The
report also does not reach conclusions regarding factual
claims.

- While we cannot independently verify many of the
incidents covered in the report, we did not include
reports that did not come from credible sources.

Q: What right does the United States have to do such a
report on an internal matter?

- Congress specifically tasked the State Department with
compiling the available information so that it could
learn more about what occurred during the last few
months of the conflict and that is what we have done.

- The United States believes that it is important to
have more information available about the recent
conflict in Sri Lanka.

- Potential violations of international law are not
solely an internal matter, although international law
recognizes that governments have primary responsibility
for ensuring that human rights are respected in their
own territory and for addressing violations that may
have occurred.

Q: What do you want the Sri Lankan Government to do with
this information?

- The United States takes seriously allegations of
violations of international humanitarian law and human
rights law. Moreover, accountability is an essential
component of national reconciliation.

- We expect the Government of Sri Lanka to consult with
a broad range of representatives of Sri Lankla's Tamil
community to identify a mechanism and initiate an
impartial and effective process for establishing
accountability for such incidents, including, as
appropriate, investigating allegations of violations of
international law that may have occurred during the
final stages of the conflict with the LTTE and holding
accountable any individuals responsible for such
violations.

- There are a number of domestic and international
models of accountability mechanisms that the government
could draw from in creating its own process that would
promote reconciliation and healing. We hope the
government will pursue a dialogue with a broad range of
representatives of Sri Lanka's Tamil community to
determine the appropriate mechanism.

Q: Would the US support an international inquiry on war
crimes?

- International law places primary responsibility on the
state to ensure that those responsible for violations of
international humanitarian law and human rights law in
its territory are held accountable, but recognizes the
appropriateness of international mechanisms where a
state is unable or unwilling to act. We are looking to
the Sri Lankan government to identify a credible and
appropriate mechanism for initiating such a process, and
we stand ready to assist it.

- In the meantime, we will support continued information
gathering and fact-finding concerning alleged incidents
that occurred during the last stages of the recent
conflict.

- The U.S. Government continues to urge the Government
of Sri Lanka to grant the international community full
access to the Northern region, as the UN High
Commissioner of Human Rights has requested, to better
understand the facts on the ground in Sri Lanka, and to
help ensure that human rights are being protected and
that ongoing humanitarian needs are being met.

Q: Why won't you make your sources public?

- Some organizations are identified by name if they have
publicly released specific allegations while others are
identified in more general terms to preserve
confidentiality.

Q: How can the Government respond to the accusations if
it does not know who its accusers are?

- The report does not consist of accusations. It is a
compilation of information regarding alleged conduct of
both parties to the conflict that adds to our
understanding of what occurred during the final stages
of the conflict.

Q: Did the Sri Lankan diaspora, especially the Tamil
diaspora, contribute to or otherwise influence this
report?

- No.

- Outside the context of this report, State Department
officials have discussed regularly the current
humanitarian situation and prospects for political
reconciliation in Sri Lanka with representatives of
U.S.-based organizations representing members of the
Tamil, Sinhalese, and Muslim diaspora, and other Sri
Lankan-American groups.

Q: Was anyone from Sri Lanka sent to the United States
to give testimony for this report?

- No. This report is not the result of a legal
investigation nor does it reach factual or legal
conclusions.

Q: How was the information in the report gathered?

- The State Department consulted a wide range of primary
and secondary sources in gathering information for this
report. These sources include internal USG reporting
and subject matter experts, primarily from the State
Department and the United States Agency for
International Development (USAID); foreign governments;
international organizations; media reports; non-
governmental organizations; and eyewitnesses.

- Information concerning the majority of incidents cited
in this report originated in first-hand accounts
communicated by persons from within the government-
declared No Fire Zones (NFZs) and other locations close
to the fighting.

- A number of factors limited the ability of the
Department of State to provide conclusive information as
to incidents that may constitute violations of IHL and
crimes against humanity, including restricted access to
the conflict zone, screening points, and eyewitnesses.

Q: Was the Embassy in Colombo involved in this process?

- Yes.

Q: Who wrote the report?

- In the explanatory statement accompanying the
Supplemental Appropriation Act, 2009 (P.L. 111-32)
enacted in June, Congress requested that the Secretary
of State submit this report. The report is a State
Department product.

Q: What action is the USG prepared to take if the
Government refuses to act on the report?

- Accountability is an essential component of national
reconciliation. We expect the Government of Sri Lanka
to identify a mechanism and initiate an impartial and
effective process for establishing accountability,
including investigating allegations of violations of
international law that may have occurred during the
final stages of the conflict with the LTTE and holding
accountable any individuals responsible for such
violations.

- The U.S. Government continues to urge the Government
of Sri Lanka to grant the international community full
access to the Northern region, as the UN High
Commissioner of Human Rights has requested, to
understand better the facts on the ground in Sri Lanka,
and to help ensure that human rights are being protected
and that on-going humanitarian needs are being met. At
the same time, we continue to strongly urge the GSL to
allow full freedom of movement for all its citizens
including the over 250,000 detained in IDP camps.

- We will support continued information gathering and
fact-finding concerning the last stages of the recent
conflict.

7. (U) Please convey GSL and other responses to Sri
Lanka/Maldives desk officer, Anthony Renzulli,
RenzulliAF@state.sgov.gov, (202)647-1078.
CLINTON

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