Key Divisional Commander at final stages of war gives evidence

High Court Trial-at-Bar of former Army Chief
By Manopriya Gunasekara

Major General Shavindra Silva who played a key role in last year’s military operations against Tiger guerrillas in the North, gave evidence this week in the High Court Trial-at-Bar.

In this case former Army Commander Sarath Fonseka is charged with making a statement to the effect that Defence Secretary Gotabaya Rajapaksa ordered that LTTE cadres surrendering in the final stages of the war be shot.

Shavindra Silva

Maj. Gen. Silva who is currently attached to Sri Lanka’s Permanent Mission to the UN in New York explained the events of the final stages of military operations. Earlier, Deputy Solicitor General Wasantha Navaratna Bandara concluded the re-examination of The Sunday Leader Editor Frederica Jansz, the first witness in the trial.

The case is being heard by High Court Judges Deepali Wijesundara (President), W.T. M. P.B. Warawewa and M.S Razeen.

Proceedings of November 15

At the commencement of this week's proceedings, Mr. Nalin Ladduwahetti, Senior Counsel for former Army Commander Sarath Fonseka informed Court that the Sri Lanka Press Institute (SLPI) Chairman Kumar Nadesan had issued a letter denying that he had given a copy of an application sent by the Sunday Leader Editor Frederica Jansz for consideration for an Editors’ Guild Award to him (Mr. Laduwahetti) and that there was any inquiry on this matter at the SLPI.

Last week, Ms. Jansz during re-examination told Court that she had made inquiries from the SLPI and they had confirmed that Mr. Ladduwahetti had been given a copy of her application and they were taking disciplinary action against the person who released the copy.

Mr. Ladduwahetti produced a letter from Mr. Nadesan denying what Ms. Jansz had told in her evidence and that he had responded to a letter sent by the Accused's instructing attorneys, Paul Ratnayake Associates seeking clarification on Ms. Jansz's evidence to Court.

Deputy Solicitor General Wasantha Navaratna Bandra Ranasinghe objected to the document being included as a Court document.

Mr. Ladduwahetti pointed out that since the statement made by the witness was damaging to his own professional career he wanted this document filed as of record.

The Court granted permission to include the letter in the case records. Mr. Bandara (DSG): The Defence Counsel asked you whether the facts mentioned by Mr. Sarath Fonseka (in his interview with her) were confirmed by four persons.

Ms. Jansz (FJ): Yes.
DSG: He asked who the four persons were.
FJ: Yes.
DSG: Were there others who could confirm (the story)?

FJ: Palitha Kohona (former Foreign Secretary), Sarasi Wijeratna (of the ICRC) and news agencies.
DSG: Did you find out the name of the journalist who gave the information to Mr. Fonseka?
FJ: Yes.
DSG: Did you try to confirm it from him?

FJ: No, because Mr. Fonseka asked that his identity be protected. Also, this information was given by a former Army Commander and an ex-Chief of Defence Staff who had seven months time to confirm it.
DSG: Mr. Lal Wickrematunge (Chairman of Leader Publications) and you went to discuss about obtaining funds from the UNP.

FJ: No. This did not figure during the discussions.
DSG: Mr. Fonseka had heard this (about the surrendees being shot) from a third party. Who is that person?
FJ: He is a journalist.
DSG: Did you ask Mr. Fonseka something which had already been published in newspapers and news agencies?
FJ: Some papers had published it.
DSG: Was it posted in a website?
FJ: Yes it was in the Cyber news (website).
DSG: Had you mentioned that?
FJ: No, but I had mentioned the sources.
(Evidence of Ms. Jansz concluded).
Next witness Major General Lokugalhewage Shavindra Chandana Silva.
DSG: Are you currently doing a job relating to defence?

Maj. Gen: No, I am attached to the Permanent Mission of Sri Lanka to the UN. I assist the Ambassador. I am involved in work relating to Peace Keepers and promoting peace in Sri Lanka. Work related to the Sri Lanka security force members sent as UN peace keepers is handled by me.

I joined the Sri Lanka Army on March 4, 1984 as a Cadet Officer and was commissioned as 2nd Lieutenant on November 16, 1985. I was attached to the Gajaba Regiment. Under Major General Wijaya Wimalaratna I was put in charge of a unit of the Special Forces. I was injured in the Vadamarachchi Operation to liberate Jaffna, but rejoined and served as an officer of the intelligence unit as well. I have been involved in all the special operations at that time. I was involved in the Balavegaya Operation when the troops were under siege at Elephant Pass. Thereafter, I was an Officer Instructor at the Military Academy.

I was also involved in operations in Pooneryn, the Riviresa Operation to liberate Jaffna, the operation to liberate Kilinochchi, Operation Jayasikuru, etc.
DSG: Have you held positions in the Army?

Maj. Gen: I have held all positions in an infantry regiment.
I also headed the Brigade that broke through the forward defence lines at Muhamalai. We recaptured the FDL which was held by the LTTE for six years.
On October 1, 2007 I was appointed as the Divisional Commander of the 58th Division and also the head of the Commando Unit.
DSG: During the final stages of the humanitarian operation did you serve as the Director General (Operations)?
Maj. Gen: Yes.
DSG: Your Division played an important role in defeating the LTTE.
Maj. Gen: Definitely.
DSG: During the last one and half months of the humanitarian operation you served as the General Officer commanding the 58th Division.

Maj. Gen: Yes.
DSG: What was the humanitarian operation in Putumattalan?
Maj. Gen: The humanitarian operation started from Mannar. Thereafter, Pooneryn was overrun and then the strategic location of the LTTE at Paranthan too was taken over. With the support of the 54th Division, Kilinochchi, Elephant Pass and Puthukkudiyirippu were seized. Thereafter, the land locations in which the Tigers (LTTE) were forcibly holding on to civilians in an area of one and half kilometres in Putumattalan beyond the lagoon, east of Puthukkudiyirippu, were captured. Over 100,000 civilians were held as hostages by the Tigers. We had to carry out an operation to rescue them. It was the world’s biggest humanitarian operation. Several Brigades were involved in it. It was carried out by the 58th Brigade which was under my command.

If civilians were harmed there could have been international pressure to halt the operations.
DSG: Was there international pressure on the grounds that human rights had been violated?
Maj. Gen: Nobody has accused us of human rights violations. The Tigers were taken by surprise and the civilians were rescued.

DSG: It was carried out by the 58th Division.
Maj. Gen. Yes, we were assisted by the commandos and Special Forces units. We were able to liberate over 100,000 civilians in the operation which started around 1 a.m.
DSG: When the 58th Division was carrying out the operation who was the Army Commander?
Maj. Gen. General Sarath Fonseka
DSG: He is the accused in this case.

Maj. Gen: Yes.
DSG: Did the 58th Division pay a special role in the humanitarian operation?
Maj. Gen.Yes.
DSG: Was the accused in this case the Army Commander then?
Maj. Gen: Yes.
DSG: When the humanitarian operations were in progress how were your relations with the accused. Were they cordial?
Maj. Gen: During the humanitarian operations cordial relations were maintained with all the Brigade Commanders. I had very good relations with him (the accused).
DSG: Was there any dispute?
Maj. Gen: No, there was no dispute,

DSG: When was the last date of the humanitarian operation?
Maj. Gen: It was on May 18, 2009.
DSG: Was it your Brigade that captured the area?
Maj.Gen: The other Brigades had approached the area. The Tigers were confined to an area of 350 to 500 metres. I informed the Army Commander General Sarath Fonseka by telephone about this. Gen Fonseka congratulated me at that point. He also congratulated other Brigade Commanders, Maj. Gen. Jagath Dias, Maj. Gen. Kamal Gunaratna, and Maj. Gen. Chani Gallage.
DSG: Was the Army Commander in Sri Lanka during the final stages of the humanitarian operation?
Maj. Gen: According to what I remember he had left the country on May 11 or 12 to China and returned at around midnight on May 17. As soon as he arrived he telephoned me.

DSG: During the humanitarian operation were there journalists present?
Maj. Gen: There were some who were there right throughout while some others came for short periods. There were others who came in the morning and left by evening. They came with the approval of the Defence Ministry.

DSG: If they were sent to your Brigade were they sent by the Defence Ministry or the Army Commander .
Maj. Gen: During the operations it was those who came with Defence Ministry approval who were taken in. If any other name was approved by the Army Commander or a senior officer, the list of names would come from the Defence Ministry.
DSG: Was there a record of the names?

Maj. Gen: No. Only persons approved by the Army Headquarters were taken.
The journalists from the Rupavahini and the ITN were there continuously while more of them joined towards the latter stages.
DSG: Did persons surrender at the last stages of the operation?
Maj. Gen: Not only at the last stages but throughout the operation there were persons surrendering.
DSG: My question is did persons surrender?

Maj. Gen: Yes, I remember that the first to surrender was a LTTE female cadre who was injured. There was another female LTTE cadre who surrendered. She was sent by air to Colombo. Few others surrendered thereafter and one of them was a teacher. There was media publicity given to this incident.
DSG: Were there LTTE members who surrendered?
Maj. Gen: Yes, definitely.

DSG: During the last few days of the operation did LTTE members surrender?
Maj. Gen: If they surrendered at the initial stages the operations would have been over sooner. But when they knew that they could not win large numbers surrendered.
DSG: Did all those who surrendered come with white flags.
Maj. Gen: No, not only white flags, some came with pieces of cloth. Some came with their hands raised.
DSG: Did you receive all of them?
Maj. Gen: Yes, people who came with white flags, black flags or without any flags were received, all of them.

DSG: Even Tigers?
Maj. Gen: Yes.
DSG: Were those surrendering shot?
Maj. Gen: No. Even our junior officers were told that Tamils are Sri Lankans and that the operations were against the Tigers and not against the innocent Tamil people. The war was to rescue the civilians. The aim was to liberate the civilians. Defence Secretary Gotabaya Rajapaksa had given orders to rescue the civilians.

DSG: Who was the Defence Secretary?
Maj. Gen: The current Defence Secretary Mr. Gotabaya Rajapaksa.
DSG: When LTTE cadres surrendered were they cordially received?
Maj. Gen: Though we had a problem with the Tigers, all Tigers who came to surrender were accepted cordially.

DSG: What did you do to those surrendering?
Maj. Gen: Are you asking about the civilians?
DSG: No, about the Tigers
Maj. Gen: We gave them water and food. We accepted them as civilians initially.
DSG: Did you treat the 100,000 who surrendered in the same manner?
Maj. Gen: Yes, we treated them in the way we were instructed.

Proceedings of November 16

DSG: How did you take those persons who surrendered to the Government-controlled side?
Maj. Gen: They were received according to a method. We marked a route through which they could come and they were body searched. They were given food and later transported to Kilinochchi and Vavuniya.
DSG: Where did the last stages of the war take place?
Maj. Gen: In Vellamullivaikkal and Karaiyamullivaikkal.
DSG: Were you aware that Tiger leaders were wanting to surrender?
Maj. Gen : Yes
DSG: Were those three leaders Ramesh, Nadesan and Pulidevan ?
Maj. Gen: Yes.

DSG: Did you come to know they had died?
Maj. Gen: Yes.
DSG: Where?
Maj. Gen: At Vellamullivaikkal the Tigers were cornered within an area of 350 by 500 metres. They died there.
DSG: How did they die?
Maj. Gen: They died in the war in the battle zone under my Division’s command.
DSG: But did you know whether they came close to surrendering?
Maj. Gen: No.

DSG: If they had tried to surrender would you have been aware of it?
Maj. Gen: If Tiger leaders or cadres came to surrender we would have been happy to receive them.
DSG: You did not make any difference between Tiger leaders and cadres.
Maj. Gen: They are terrorists. If they gave up their militancy and surrendered we would have been happy to receive them. It was a humanitarian operation. We rehabilitated those who surrendered.
DSG shows The Sunday Leader newspaper which carried the interview given by Mr. Fonseka on the white flag issue
DSG: This has been written by Frederica Jansz
Maj. Gen: Yes.

DSG: Did you see this?
Maj. Gen: Yes.
DSG: When?

Maj. Gen. On December 13.
DSG: When you saw it what did you recall?
Maj. Gen: I recalled that The Sunday Leader Editor Frederica Jansz called me a few days before the article appeared.
DSG: Where were you at that time?
Maj. Gen: At the office of the Director Operations at Army Headquarters.
DSG: Prior to that did you know anything about this?
Maj. Gen: When I was away at a meeting with the Army Commander Lt. Gen. Jagath Jayasuriya my telephone operator had answered a call from Ms. Jansz and she had said she will call later.
DSG: Did she speak to you?

Maj. Gen: She spoke to me an hour later. She told me that Mr. Fonseka had said that the Defence Secretary had ordered me to kill those LTTE members coming to surrender during the final stages of the war. She wanted to get my reaction to it.
DSG: What was your reaction?
Maj. Gen: I was shocked.
DSG: Did you give an answer?
Maj. Gen: I told her that I cannot comment and told her to contact the Director Media in the military.
DSG: In which language did she speak to you?
Maj. Gen: She spoke in English and I answered in the same language.
DSG: Can you repeat what you said.
Maj. Gen: “I cannot comment on this. There is a Director Media in the Sri Lanka Army who deals with media personnel and also I have no authority to comment to media personnel. Therefore contact him”.
DSG: Did you use the words ‘no comment’.
Maj. Gen: Yes, as the summary of what was said.
DSG: Why did you say you cannot comment without saying whether it happened or not?
Maj. Gen: Because I cannot comment.

DSG: As she said, did such incident take place?
Maj. Gen: Not at all.
DSG: In that case why did you give such an answer?
Maj. Gen: When an Army officer responds there is a proper procedure. The Media Director should respond.
DSG: Did she speak to other officers?
Maj. Gen: She had spoken to the Director Media.
DSG: Did you meet the accused within two weeks of the conclusion of the war?
Maj. Gen: Yes.

DSG: Did you ask him whether the Defence Secretary had ordered you to shoot those LTTE leaders who were coming to surrender.
Judge Warawewa: That question cannot be asked from this witness.
DSG: That part of the evidence is important. We hope to call Defence Secretary Gotabaya Rajapaksa to give evidence.

Judge Deepali Wijesundara (President): It is a misleading question. Do not ask such questions.
The Bench refused to allow that question
DSG reads from The Sunday Leader news item
DSG: Did Mr. Gotabaya Rajapaksa give such an order?
Maj. Gen: No, he did not give such an order.
DSG: The article also says that LTTE leaders Pulidevan, Ramesh and Nadesan who came to surrender were shot. Is that correct?
Maj. Gen: No, that’s a complete falsehood.
DSG: Did Mr. Gotabaya Rajapaksa give orders to kill those LTTE leaders who are surrendering.
Maj. Gen: No, he said to take them with minimal damage.
DSG: Did you tell a journalist that Mr. Gotabaya Rajapaksa had ordered to kill the Tiger leaders who are coming to surrender?

Maj. Gen : No
DSG: What was your reaction when you saw The Sunday Leader newspaper?
Maj. Gen: I thought it was a false allegation. I thought it an insult to the war heroes. As a person who led the war I also thought it was a disgrace to me and my family members. Until it is proved in a court that such an incident did not take place, I think it is an insult.
DSG: When the Army Commander or the Defence Secretary calls you on the telephone do you speak in a manner that journalists could hear you?
Maj. Gen: No. Whenever the Commander or a senior officer calls I tell the officers around me to move away or I move away with the CDMA phone.

DSG: Did you have a cordial relationship with the accused Mr. Fonseka when he was the Army Commander?
Maj. Gen: Yes, definitely. After the end of the war there were parades and events for which I was invited. There were discussions at the Army Hq. Therefore I had a good opportunity to meet the Army Commander.
DSG: When he was the Commander has he called for your explanation on giving wrong orders.
Maj. Gen: No.
DSG: After this was published in The Sunday Leader what is the situation you faced?
Maj. Gen. This is not only an achievement of mine. A large number of soldiers took part in the operations. Soldiers died in the operations. We were also able to kill or capture a large number of Tigers. Therefore I was frustrated after reading this.
DSG: You have children.
Maj. Gen: Yes, two daughters.
DSG: Did they face problems.

Maj. Gen: Yes their teachers and friends had asked them.
DSG: Did you face problems travelling overseas?
Maj. Gen: There could be a problem in the future for the children or when travelling overseas, until the Court gives an order about the correct position.
DSG: After publication of this internationally was some inconvenience caused?
Maj. Gen: Until we are able to prove that this victory was not achieved in this manner the disgrace could remain.
DSG: Do you know that the UN has paid its attention to this aspect?
Maj. Gen : Yes.
DSG ends leading evidence of Maj. Gen. Silva
Cross examination by Mr. Nalin Ladduwahetti (NL), Senior Counsel for Mr. Fonseka.
NL: You read out some parts from the paper.
Maj. Gen: Yes.

NL: Could you tell us whether the things published by Ms. Jansz were told by Mr. Fonseka.
Maj. Gen: I am aware of what Ms. Jansz told me quoting Mr. Fonseka.
NL: You were appointed as the Divisional Commander and the Head of the Commando Regiment to achieve victory in the war.
Maj. Gen: Yes.

NL: That appointment was made by the then Army Commander, Mr. Fonseka.
Maj. Gen: The appointment is made by the Board. It is sent for the approval of the Army Commander. Some positions are sent to the Defence Secretary as well for approval.
NL: Appointments are made with the knowledge of the Army Commander.
Maj. Gen: No one can be appointed without the knowledege of the Army Commander.
NL: Did we get military equipment from China?
DSG objected to the question saying it would harm national security
NL: Did we get military equipment from China?

Maj. Gen: Not only from China, but from other countries as well.
NL: The war ended on May 18, 2009 ?
Maj. Gen: Yes.
NL: Three years and four months prior to that who was the Army Commander?
Maj. Gen: I cannot remember dates, but he (Mr. Fonseka) was the Commander for a considerable time.
End of proceedings
The Court could not sit on Thursday.

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