Untitled - International Commission of Jurists

use the Palampiddi-Iranai road which route was, at that point, near an ongoing
military operation with a curfew having been declared in Vavuniya. 238 The
Commission concluded that though JOC had approved a particular route on the main
Mannar-Vavuniya road, MSF had not taken that route but had followed the
Palampiddi-Iranai road. This conclusion was reached through sole reliance on the
statements of the JOC officer with whom the MSF officer had conducted a telephone
conversation regarding the route that should be taken. 239 It also concluded that the
firing was accidental, that the shooting or attack was not conducted without due care
and precautions for the safety of persons, but was due to a mistake made in good
faith. 240
The Commission’s finding, however, was contrary to evidence from the injured MSF
personnel that after the first shot was fired at their vehicle (which was clearly marked
from all sides with the MSF emblem) from the army helicopter, the four personnel
had commenced to wave the MSF flags in order to establish identity. However,
despite their doing so, the shooting continued, followed by the dropping of bombs on
the vehicle. It was at that point that the MSF personnel were injured. 241
The testimony that the shooting was deliberate and intentional was refuted by the
evidence of the air force and army officers who stated that they had been informed
that the MSF vehicle had been taking the main Mannar-Vavuniya road and not the
Palampiddi-Iranai road, which was about two kilometres from an ongoing military
operation and that they had been unable to see the markings on the vehicle or the
flashing blue light on the hood as it was daylight and they were flying above an
altitude of 2,500 feet. No movements around the vehicle were seen by them. Previous
incidents in which the LTTE had used vehicles with red-cross markings were cited.
It is worth providing some detail to illustrate the kind evidence before the
Commission and how its handling of it could generate controversy. In the evaluation
of contested testimony, this Commission report appears uncritically to favour
government over MSF testimony. This apparent lack of impartiality appears, for
example, in the Commission’s consideration of the question as to why, even assuming
that the MSF vehicle was travelling along an unauthorized route and was therefore
mistakenly attacked by government forces, the attack was not called off when the
military authorities were contacted on the phone and informed of the firing. 242 The
shooting had started at 1.00 pm on 3 May, and the fact that an MSF vehicle was being
fired on was almost immediately notified to the Anuradhapura air force base as well
as the army camp by the Colombo based administrative officer of MSF who was in
radio contact with the MSF personnel being fired upon. Thereafter, the Air Marshall’s
office in Colombo had been contacted at around 1.20-1.25 pm and informed of the
incident with the repeated pleas that the shooting be stopped. However, the testimony
of the MSF personnel under attack was that the shooting and attacks had continued till
3.00 pm. 243
238 ibid, at pp.7-9.
239 ibid, at pp.7-9.
240 ibid, at pp. 13 and 14. No further action was taken against any army/airforce personnel consequent to
the Commission’s finding.
241 ibid, at p. 10.
242 ibid, at pp. 14 and 16.
243 ibid, at p. 16.
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