U.S. clears Sri Lanka of civilian deaths: Faults Tiger human shield
Posted on August 15th, 2015

By Daya Gamage – Asian Tribune Media Note

 Washington, 14 August (Asiantribune.com):

U.S. Department of Defense – just released June 2015 – Law of War Manual, the authoritative position the Government of the United States takes in war situations in both international and non-international warfare, gives the USG official positions on may situation one of which is connected to ‘Human Shield’ and ‘Civilian Deaths’.

The interpretation of the ‘Proportionality Law’ in non-international war and the definition the Government of the United States declared on ‘Human Shield’ and ‘Civilian Deaths’ – in fact the language in the Manual – clears Sri Lanka’s culpability of civilian deaths during the final month (April-May 2009) of the intense battle between the GSL military and the Tamil Tiger fighting cadre in the battle of Puthukkudiriyirippu in the banks of the Lagoon Nathikadal in the Sri Lanka District of Mullaitivu.

Since the Eelam War IV was concluded, the US Department of State – in two reports released by its Office of Global Crimes – alleged the Sri Lanka military of discriminately using heavy military artillery which cause the deaths of unarmed civilians. Lobbied and forced by the professional activists within the Tamil Diaspora who were once providing ‘material support’ to the LTTE in its secessionist war against the legitimate government of Sri Lanka, the USG went far as the UN Human Rights Commission in Geneva to bring resolutions against the GSL from 2010 through 2014. The theme of those resolutions was ‘accountability for what occurred during the final months of the war which produced civilian deaths’.

The interpretations and definition provided by the US Department of Defense (DOD) in its latest Law of War Manual in fact absolves the Sri Lanka military of the ‘war crime and genocide charges’ blaming the non-state actor – the LTTE – in declaring [i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields.”

It is in the context that we in the Asian Tribune used the caption’ U.S. clears Sri Lanka of civilian deaths: Faults Tiger human shield’.

During final months of the Eelam War IV, the state department and foreign offices of EU nations continually appealed to the LTTE not to use unarmed civilians as human shield and urged to allow the civilians to move toward the GSL declared No-Fire Zones to prevent mass casualty. It was quite apparent to everyone at that time that the LTTE was in fact using the unarmed civilians as human shield to prevent the GSL military from using its offensive to capture its rightful territory held by the secessionist movement. The Tigers were using heavy artillery to attack GSL military using the human shield and prevented them from leaving toward the No-Fire Zone. In fact there were reports that the Tigers brutally killed civilian who chose escape toward the NFZ.

It is to this scenario during the final months of the war that the Asian Tribune endeavors to connect the determinations, interpretations and declared official US positions found in the DOD-released Law of War Manual.

The commonly called Proportionality Rule ‘ is combatants must refrain from attacks in which the expected loss of life or injury to civilians, and damage to civilian objects incidental to the attack, would be excessive in relation to the concrete and direct military advantage expected to be gained.

Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable does not constitute a war crime…. even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).

The DOD Manual, among others, gives the USG interpretation and determination to this principle of proportionality. And this interpretation and the determination in the Manual which is now the official position of the Government of the United States that the Asian Tribune endeavors to connect to the scenario that prevailed during the final months of the intense battle between the non-state actor Tamil Tigers and the military of the legitimate Sri Lanka government which gave rise to issues of human shield and civilian deaths.

The Manual states that [t]he party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury.”

The Manual further states that [i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields.”

One of the most significant policy positions the USG has taken is when the DOD Manual states that [i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would … allow violations by the defending force to increase the legal obligations on the attacking force.”

When interpreting the scenario that prevailed during the final months of the Eelam War IV battle, the LTTE (defending force) ‘allowed violations’ using the human shield knowing full well that the attacking forces’ (GSL Military) ‘legal obligations could increase’.

This is how the Manual gives the USG ‘official position’ on ‘Human Shields’ and ‘Civilian Deaths’. The DOD declares the USG policy plank that it is unfair for defending forces to intentionally trigger the legal obligations of the attacking force, through unlawful conduct, as a means of obtaining tactical advantage. The state department and EU nations have gone on record that the LTTE use of human shield was wrong urging the secessionist movement to allow the unarmed civilians to move toward the NFZ for safety.

It is internationally accepted in covenants that parties to a conflict must: (1)take certain measures to help ensure that military forces and civilians can be visually distinguished from one another; (2) physically separate, as feasible, their military objectives from the civilian population and other protected persons and objects; and (3) refrain from the misuse of protected persons and objects to shield military objectives.

The LTTE totally disregarded this, and the International Community was well aware of it.

Under Protected Persons and Objects, the US Defense Department Law of War Manual says:

(Quote) In particular, the civilian population, protected persons under the GC, POWs,
fixed medical establishments and medical units, parlementaires and other persons protected by a flag of truce, and cultural property are protected persons and objects that may not be used.

“Although persons and objects that are protected by the law of war may not be used in
these ways, this rule does not prohibit a party from using what would otherwise be a civilian object for military purposes and thereby converting it to a military objective that is not protected by the law of war.

“For example, a building that previously was a civilian object could be used for military purposes (including as cover) and would not implicate this rule because it would no longer be a protected object. (End Quote)

It was widely known to the International Community that the LTTE converted hospitals and make-shift medical units as military objectives to attack the GSL military forces during the final month of the battle.

The U.S. position is that the LTTE was not prohibited “from using what would otherwise be a civilian object for military purposes and thereby converting it to a military objective”, and then the Manual declares once such a civilian facility was converted to a military objective that facility “is not protected by the law of war”.

Which is why the Manual determines “For example, a building that previously was a civilian object could be used for military purposes (including as cover) and would not implicate this rule because it would no longer be a protected object”.

The DOD Manual further interprets the law of war under Protected Persons or Objects to Deter Enemy Military Operations in this manner:

(Quote) The essence of this rule is to refrain from deliberately endangering protected
persons or objects for the purpose of deterring enemy military operations. This absolute duty to refrain from purposeful misconduct may be contrasted with the affirmative obligation that parties have to take feasible precautions to separate the civilian population, civilian internees, POWs, fixed medical establishments and medical units, and cultural property, from the dangers of military operations.

An adversary’s intention to violate this rule is likely to be clear because that adversary
normally would make it apparent to the opposing party that attacks against the military objective being shielded would risk harming protected persons or objects. (End Quote)

The US Department of State throughout knew that the LTTE was using unarmed civilians as human shield, converted medical facilities as military objectives. Going by the language of the Manual, If the United States Government position of the use of unarmed civilians as human shield, it can be interpreted that the LTTE“violations increased the legal obligations on the attacking force”, attacking forces in this instance the GSL military forces; and converting civilian facilities such as make-shift hospitals and existing hospitals into military objectives, such facilities are “not protected by the law of war”.

The Government of Sri Lanka needs to give serious note of the interpretations, determinations and policy declarations of the Government of the United States on the law of war in the Department of Defense’ Law of War Manual to frustrate the efforts of the United States aimed at making Sri Lanka responsible for the deaths of unarmed innocent Tamil civilians killed during the final months of the battle. The State Department’s Office of Global Crimes in two reports made Sri Lanka mainly responsible for those killings while accusing the LTTE of using unarmed civilians as human shield.

Why Sri Lanka needs to bring up this issue a fresh because of the official position adopted by the United States through the DOD Manual. The interpretations, determinations and policy declarations in the Manual clearly absolves Sri Lanka of incidents that occurred during the final months of the battle.

The Government of Sri Lanka should immediately use its diplomatic channels to clear its name with the US Department of State based on the deliberations found in the 1204-page DOD Manual which can be found athttp://www.defense.gov/pubs/Law-of-War-Manual-June-2015.pdf.

This is not a Sirisena, Wickremasinghe or Rajapaksa issue: This is about the global image of Sri Lanka, and to frustrate the global efforts of former Tamil Tiger activists who were giving legal counsel, political strategy, lobbying services, raised funds and even advocated the procurement of arms to sustain the secessionist LTTE – now taken over the global diplomatic offensive against Sri Lanka – in their quest to de-legitimize the Sri Lanka state as a first move to facilitate the entry of the United Nations as a supervisory body to the North-East Provinces of Sri Lanka, go for a referendum to bifurcate the nation: what the LTTE leader Prabhakaran failed to achieve through his 26-year terror.

The Asian Tribune urges the authorities in the Sirisena administration and others who are associated with the administration along with the leading political activists of other major political parties to study the DOD Manual to come out – jointly – with a diplomatic discourse to frustrate the global strategy of the LTTE rump in the Tamil Diaspora from fulfilling that first objective – De-legitimize the Sri Lanka state.

Using the language of the DOD Manual when in discourse with state department officials is the first move: after all, it is their policy document on Law of War which can be easily interpreted into the scenario which existed during the final months of the Eelam War IV.

– Asian Tribune –

6 Responses to “U.S. clears Sri Lanka of civilian deaths: Faults Tiger human shield”

  1. S de Silva Says:

    Thank you Daya Gamage for pointing out these vital facts from the most recent US Law of War Manual. I am hoping that the present yahapalana outfit will take up the points you have outlined to defend SL and devote enough effort to defend the country instead of simply going after their political opponents. In this context remember we have even failed to use the word collateral damage where relevant in our defence – S de Silva – London

  2. Ratanapala Says:

    This is work for the New Foreign / External Affairs Ministry under a new Administration under UPFA. No time must be lost in drawing parallels and bring to book exactly what happened.

  3. wantdetails Says:

    Thank you Daya Gamage for this eye opening article. As you rightly state, this is not a political partisan matter, it is a matter concerning the integrity of our country. The mudslinging and the dirty politics of deceit reduced our reputation to very low levels and even affected diplomatic relations that led to a push for unscrupulous intrusions into the country.

    Hope our Government will have the sense to follow through on this immediately striking while the rod is hot because the damage control must begin now!!! Yahapalanaya may be reluctant because their actions proved that they played into the hands of the deceit dished out by the pro LTTE Diaspora. The US must begin to realize that these elements create problems to keep their inflow of economic migrants to western nations for selfish reasons. They have no loyalty to Sri Lanka where they have rights that they use and yet deny they don’t have rights. Similarly, they have no loyalty to the US or any other immigrant country except to make demands and squeeze as much as they can from the systems in their adopted countries. Ultimately they infiltrate jobs in the Government and other sectors and carry out their racist campaign against fellow Sri Lankans based on race — they however claim otherwise in Sri Lanka. Despicable practices like this should be dealt with immediately. Power to the new administration. Don’t drop this ball.

  4. NAK Says:

    Don’t rejoice prematuraley folks. They will say this only applies to their soldies and the others will have to face the music as is happening now. They are such low scum bags capable of anything.

  5. Lorenzo Says:

    NOTHING good is in USA!

    Down with USA!

  6. Fran Diaz Says:

    Our thanks to Daya Gamage for this article. Now, what about the UNHRC accusations of War Crimes ??

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