Did Sri Lanka commit ‘war crimes’? International Legal luminary Prof. Michael Newton says NO.
Posted on July 1st, 2016

Shenali D Waduge

 Luckily the previous government had sought the legal opinion of international legal experts whose opinions should now be used to compare the OISL and UNHRC Heads reports and demands that contravene Article 2.7 of the UN Charter by interfering in the internal affairs of a sovereign nation. Reading Prof. Newton’s legal opinion alongside that of the OISL and the PoE any would laugh at the childishness of the report produced, the premises and insinuations made. Any would have to wonder for whose interest the report has been written and for whose benefit the recommendations have been made.

 

Who is Prof. Michael Newton?

He is an expert in terrorism, accountability, transnational justice, conduct of hostilities and has published more than 80 books, articles, op-eds. He has been an expert witness in terrorism related trials. He has also been the senior advisor to the Ambassador-at-large for War Crimes issues in the US State Dept.

 

Prof. Newton’s resume – http://law.vanderbilt.edu/files/cvs/2016_Newton_CV.pdf

 

Prof. Michael Newton on civilians being used by LTTE

§  LTTE refused to permit some 330,000 fellow Tamils to flee away from zone of conflict

§  LTTE used them as human shields

§  GOSL declared area as safe civilian (no fire zone) to protect innocent civilians but LTTE refused to agree to its creation. This he says constitutes prima facie evidence of LTTE’s intent to use civilians/civilian objects for its military campaign.

§  LTTE embedded its heavy artillery within the NFZ and intentionally shelled Sri Lankan positions from amidst civilian population

§  Using civilians Prof. Newton says is ‘roughly comparable to the war crime of perfidy’ because the LTTE sought to use the government’s compliance with the laws & customs of warfare to gain unwarranted military advantage.’ (this nullifies OISL allegation against SL Army)

§  LTTE intentionally used the civilians to shield military operations – this Prof. Newton says constitutes a war crime

§  Prof. Newton says that the obligation to protect civilians within the zone of conflict (as given in Article 57(1) of Protocol 1 to the Geneva Convention of 1949)

§  Prof. Newton says ‘there is no evidence to suggest that Sri Lankan commanders ignored this fundamental obligation. As reported by the US Embassy the Sri Lankan military expressly took the utmost care” to avoid civilian casualties, despite the intentional warping of its operational environment by the LTTE”. (this completely demolishes OISL’s claims)

 

Prof Newton – Distinguishing civilians from combatants

§  Question is how to distinguish civilian population from combatants and civilian objectives from military objectives to direct military operations only against military objectives as required by Article 48 of the Protocol 1

§  Assessment of US ambassador at the time gives clearly that the operational goal of the LTTE was to effect military advantage against the Sri Lankan forces and so LTTE forcibly prevented evacuations of civilians who wanted to leave (again OISL premise is demolished)

§  Prof. Newton states that the ‘Elements of Crimes for the Rome Statute’ adopted in June 2000 was clear that action by a perpetrator with the intent to ‘shield a military object from attack’ or to take advantage of one or more civilians to ‘shield, favour or impede military operations’ constitutes a war crime (OISL – it is LTTE who has committed the war crime not SL Army)

§  Prof. Newton also demolishes Ban Ki Moon’s Panel of Experts who claimed that ‘credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks”. (PoE argument legally thrown to the dustbin)

§  Prof. Newton also says that the ‘crime of using human shields is committed by any perpetrator that intentionally moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict” (LTTE becomes a clear war criminal)

§  Prof. Newton authoritatively says LTTE committed the war crime of using human shields on any occasion that it took advantage of the presence of innocent civilians with the intent of protecting its military assets from any attack or to “shield, favour or impede military operations.” (LTTE by attempting to gain inappropriate military advantage from the presence of civilians/civilian objects commits the war crime of using human shields with or without deliberate moving of civilians) – there goes another unfounded premise of the OISL and PoE to the dustbin.

§  Prof Newton says that ‘there is no per se prohibition against attacking targets protected by human shields’ so long as government artillery strikes comply with the principle of proportionality and after taking ‘all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.

§  Prof. Newton says that both Hamas and LTTE used human shields unlawfully to favour military operations.

 

Prof. Newton on military attacks

§  Evidence clear that targets were ‘specifically attacked in response to LTTE fire emanating from within the civilian areas”

§  To elucidate this Prof. Newton brings out other examples

o   ‘no government has declared the illegality of Israeli strikes simple because they were directed into civilian areas (law is that artillery fire into civilian areas cannot be deemed per se unlawful but must be subjected to the traditional analysis drawn from principles of distinction, military necessity, and proportionality.

§  Response of the German government following the 2009 Israeli incursion into Gaza was that it supported the assertion that there is no per se prohibition on the use of artillery shells in urban areas: The Federal Government has no reliable information on the use of such ammunition. The use of means of warfare which cannot be directed against a specific military objective, so called indiscriminate attacks, would be prohibited …This would depend not only on the type of ammunition, but also on the circumstances of their use”

§  Gotovina case – neither ICTY Trial Cambers nor Appeals Chambers asserted that use of artillery fire directed against purported military objectives located in civilian urban areas is in itself dispositive of illegality.

 

Prof. Newton on principle of distinction

§  Principle of distinction requires parties to distinguish at all times “between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives.”

§  It is prohibited to target civilians in customary international law

§  Galic Appeal Judgement, “Article 51(2) of Additional Protocol I “states in a clear language that civilians and the civilian population as such should not be the object of attack”, that this principle “does not mention any exceptions”, and in particular that it “does not contemplate derogating from this rule by invoking military necessity.”

§  Article 51(2) “explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities” and “stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objective.”

§  Prof. Newton says that There is no requirement that particular areas or zones be designated as civilian or military in nature” because a distinction is to be made between the civilian population and combatants, or between civilian and military objectives – on a case-by-case basis.

§  Sri Lankan government did not require labelling area as safe or protected so long as attacks were on lawful targets using lawful weapons in a lawful manner as permitted under the laws & customs of warfare.

§  Prof. Newton on rethinking Proportionality with modern human shielding

§  The problem – human shields present military decision-makers a challenge to ensure civilians are protected from hostilities (unless they take part in hostilities) and the violation by one side who locates military objectives within or near densely populated areas and fails to take the necessary precautions to protect civilian populations.

§  Prof. Newton says that the commander in the field has to either cede an unlawfully obtained military advantage to the enemy and suffer casualties or undertake careful strikes in response. He goes on to say that ‘if the law is warped to permit the enemy to unlawfully exploit human shields with no possibility of recourse, then it becomes irrelevant and essentially obsolete”. He says the only to way to balance is to apply good faith application of the law of proportionality. (another OISL premise against SL Army demolished)

§  Prof. Newton adds a very important answer no military commander in the world, and by extension no political official that authorizes the use of military force, should accept a legal premise that military forces must suffer the lethal force of the enemy while under a legal obligation not to respond using lawful force in self-defence” (this is exactly what the UN/UNSG, PoE and the OISL demands of the SL Army – to become guinea pigs for LTTE fire)

§  Prof. Newton confirms that ‘LTTE enemy deliberately misused civilians to protect military targets, and ignored governmental efforts to establish safe areas for civilians while hindering their ability to seek safety”

§  He says that the right of the Sri Lankan government to respond using lawful weapons against identifiable military targets must be respected.

§  Prof Newton says that LTTE deliberately ignores its own legal duties, disconnects between aspirational legal rules”  

§  Prof. Newton says that the warning of the U.S. Ambassador that strikes should not be undertaken against clearly identified military objectives when the LTTE used the presence of civilians in the so-called NFZ to launch military strikes is both naive and unfounded in modern international law.

§  What the essential argument is that the Sri Lankan forces cannot be shown the red card and charged when the other side is violating all rules of law and laws of proportionality.

 

Prof. Newton on voluntary human shields

§  Voluntary human shields, even though they do not wear uniforms, carry guns openly, or follow a chain of command, seem to have chosen directly to participate in the war effort and even place themselves in the line of fire. Once they are on the battlefield they are passive rather than active, but they intend to affect the war by their passivity, and the passivity is often even more efficacious than those soldiers who are carrying weapons and are actively ready to fire them.

§  To be a voluntary human shield, a person must intentionally seek to put herself or himself between a likely attack and a military target. This volitional conduct epitomizes the essence of the principle from Article 51(3) of Protocol I that civilians enjoy express protections “unless and for such time as they take a direct part in hostilities.”

§  Voluntary human shields risk their own lives for a particular military or political objective. They are therefore intellectually identical to unlawful belligerents or other insurgents in the sense that they participate in hostilities but do not enjoy combatant immunity or benefit from the full range of rights that accrue to lawful combatants.”

§  Prof. Newton says Neither the principle of discrimination nor the principle of proportionality applies to persons no longer legally categorized as civilians.” (OISL has still to answer how many of the people they term ‘civilians’ were truly civilian as LTTE did have a civilian trained army)

§  express right to protection derived from civilian status is forfeited by voluntary participation in the conflict”

§  Prof Newton quotes the theory of Emer de Vattel that the law should not be fashioned or applied in order to favour oppressors – which means LTTE should not use human shields to gain asymmetric advantage. Prof. Newton says that LTTE exploited the presence of civilians to favour military operations tilting the application of proportionality to disfavour the lawful and limited responses of the government.

 

Prof Newton concludes that the military responses to illegal LTTE actions is proportionate

§  In psychological terms – SL Army strikes were directed at military objectives despite presence of human shields. Prof. Newton says that more lives were saved than lost.

§  Even when Sri Lanka forces issued effective warnings to the civilian population (which negates the accusation by OISL that SL Forces did not) these warnings came to nought as LTTE prevented civilians from leaving to safety. Prof. Newton says that LTTE rejected the area declared safe for civilians and nullified the warnings and thus LTTE bears ‘responsibility for civilian deaths because their own conduct was the causal factor in such deaths’.  

§  ‘no evidence in the record to suggest that the government used inherently indiscriminate weapons such as barrel bombs or Grad rockets 15, that are typically used for their capacity to affect a wide area at great range (this again demolishes OISL specific claims about SL military using such weapons – this is a key factor that absolves the military and shames the OISL for lying)

§  The SLA can almost certainly produce evidence that it undertook artillery strikes in compliance with the best practices designed to minimize or to eliminate civilian casualties.” For example, artillery experts will attest that frequent adjustments to equipment are needed to account for wind changes, humidity changes and temperature changes that affect the predictability of artillery round trajectories. These practices in turn served to decrease the foreseeable civilian casualties by ensuring that rounds were directed specifically to the lawful LTTE targets (what does the OISL have to say now… an apology to the SL Army is fine for starters)

§  Similarly, commanders are experts at using the artillery batteries that are best positioned to respond to a given attack. Use of on-scene observers whenever possible and stringent rules of engagement to require higher level approval under specific operational conditions for the return of artillery fire into the safe zone served to minimize civilian casualties.” (don’t you just wonder what the OISL is upto when reading Prof. Newton’s legal opinion?)

§  Prof. Newton says proof that the SL Army did their best to anticipate causal factors that could have made worse civilian casualties and so fired at military objectives from a greater distance which indicates the SL army compliance with proportionality principle. He concludes that ‘the Sri Lanka military cannot be responsible for a higher margin of error than anticipated’.

 

Prof. Newton on Civilians, Combatants and Loss of Civilian status

 

§  Prof. Newton says ‘civilians that intentionally shielded LTTE targets forfeited their otherwise protected status by virtue of having directly participated in hostilities’ (we now want to know how many civilians intentionally shielded LTTE targets)

§  ‘the reported inflation of estimated civilian casualties sought to aggrandize the wrongfulness of the military responses, and to obscure the prior war crimes committed by the LTTE precisely to achieve a propaganda victory that might translate into strategic success’ (how will the OISL respond to this)

§  In my opinion, the Sri Lanka military had every right to respond to those provocations with artillery fires targeting the LTTE positions, provided that the estimate of civilian casualties was not “clearly excessive” in relation to the anticipated military value.

§  commanders have every right to consider the safety of their own forces in making proportionality determinations because, the perspective of the commander (or other warfighting decision maker) is entitled to deference based on the subjective perspective prevailing at the time.”

§  it is my unqualified opinion that the overarching necessity of ending the multi-generational struggle against the LTTE permitted Sri Lanka commanders to consider means of attack that accomplished the vital goal of “final victory”, even as they sought to protect their own forces. It would be ludicrous to suggest that there is some precept of international law that required them to send ground forces into the NFZ to respond to the LTTE artillery fire. I cannot imagine a knowledgeable expert in my field that would suggest otherwise.”

 

 

Full opinion – http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653

 

Reading Prof. Newtons opinion one can realize the level of lies that the UNHRC has stooped to in trying to twist and turn the law to favour the illegal combatants the LTTE and the audacity of the UNHRC head to demand that the present government ‘rein in Sri Lanka’s military’ shows he is going well over his limits.

 

 

Shenali D Waduge

7 Responses to “Did Sri Lanka commit ‘war crimes’? International Legal luminary Prof. Michael Newton says NO.”

  1. Susantha Wijesinghe Says:

    SHENALI !! BLESS YOU FOR BRINGING OUT THIS WHOLE THING. YES, THE AUDACITY OF THAT UNHRC, IS REPREHENSIBLE. HE IS SINGING FOR HIS SUPPER. OUR LEGAL FRATERNITY SHOULD TAKE THESE FELLOWS TO INTERNATIONAL COURTS.

  2. helaya Says:

    Senali, Thanks for this eyeopening article. Must send this idiot foreign minister. I went to a Chanel 4 film Killing Field of Sri Lanka. After the showing during Q&A time I got up and pointed pout all these points. Audience was so hostile to me. Convener ordered to take my mike and McBre starting mumbling. They took my mike and try to escort me out. Event was at American University. No bod wants to know the truth. Dumb American are so foolish.

  3. stanley perera Says:

    With the mountain of reports favourable to GoSL why not that traitor Samaraweera acting like a bum succker? This fellow is the anti Sinhala tailor man from Matara must be got ridden of. Must take up the position of chairman of the ponna club. Shenali is the GoSL’s good ambassador. Can those 225 Battaramullos understan the languge we patiots use? They are only good to eat taxpayers and taxpayers hard earned money. Eat and eat anything and everything you can. That blinking Bill dutt dostaraya wants a luxury four wheelers. Ranja you are good. Gota you are the best.

  4. Dilrook Says:

    Very good assessment by Prof. Michael Newton. Civilians accruing a military advantage is a valid target. The only catch is proportionality. We didn’t use MBRLs or heavy bombing and stayed well within proportionality. Excessive casualty numbers are suggested to dispute our proportional response.

    However, this bigger problems are not these. I pointed these out since 2009. Our leaders were fooled by idiotic advisors who came up with absurd theories of US-EU sanctions, Indian invasion, international isolation and got the leaders to give into UNHRC, US and Indian demands of 13A, demilitarisation, excessive spending in the north and east and tolerance of TNA racism. This is where the biggest problem is. UNHRC dishonesty paid off the achieve US and Indian strategic goals. It is like robbing millions of dollars with a toy gun.

    The next problem is the government’s reluctance to go for a judicial war crimes investigation. Without doing that it thought by giving various appeasements to Tamils (including LLRC), the war crimes issue will go away. Tamils, UNHRC, EY, USA and India played it well to receive everything the government gave to separatists but at the end of it continue to demand war crimes accountability.

    Government reluctance has a political reason. When these matters are discussed (as Prof. Newton says ‘civilians that intentionally shielded LTTE targets forfeited their otherwise protected status by virtue of having directly participated in hostilities”), Tamils will be hurt beyond consolation.

  5. Dilrook Says:

    Continued.

    Tamils for generations will not vote for the then government top leaders as a result.

    Hopeful of Tamil votes, the then leaders avoided the war crimes investigation. Why reopen old wounds was their argument. This costed the country very badly.

    Then there is the alleged happenings of May 18 including the white flag incident. If true, Sri Lanka no way of escaping war crimes liability on these. The political leadership of the day must take full responsibility without blaming the army or a few rotten apples in the army. Our disciplined army will never do such things (if true) against instructions. They never act on their own accord and always keep the chain of command intact. Therefore I find fault with the Sir Desmond report and the Paranagama second report that blame these possible events on a few unruly elements in the army. That is simply not true.

    If we assume it was a few individuals in the army that did the alleged killing of alleged surrendered terrorists, that means the army goes against instructions on crucial matters. That will castigate the entire army forever and the international community will invade in the guise of R2P, etc. over petty matters as they are convinced the army goes beyond instructions. There is no evidence to say the army acted on its own accord. If politicians assert that, they (not the army) must prove it. If politicians try to do that, they (and their political generations) will lose the Sinhala vote good.

    Killing LTTE leaders even if done intentionally after they surrendered was a good thing. That ended the war. Otherwise there would be war again. However, if true, it is a war crime and someone must take responsibility for it.

    This is a very rare event when the national interest goes against Sri Lankan morals of gratefulness and righteousness. They stand no chance in international law. We must do what saves the nation, not politicians.

  6. Ananda-USA Says:

    Right on CUE, the Yamapalanaya GOSL’s PALS in NORWAY chime in demanding international jurists!

    These Norwegian SOBS aided and abetted the Tamil Tigers to carve a Tamil EELAM out of Sri Lanka by warfare.

    Having FAILED in that, they are now CONTINUING that QUEST to carve an EELAM out of Sri Lanka for their portege’s through War Crimes Trials!

    These are the same HYPOCRITES who saw nothing wrong in defending their country Norway against the Nazis and after the war ended executing, torturing, imprisoning and ostracizing tens of thousands of their own citizens who had collaborated with the Nazis during World War II.

    They found NOTHING WRONG with defending their own country, and punishing their own TRAITORS, but now they come wailing on behalf of the murderous Tamil terrorists and TRAITORS who unleashed murder and mayhem in Sri Lanka killing, maiming and impoverishing hundreds oif thousands of innocents.

    Bloody HYPOCRITES waving DOUBLE STANDARDS! Go away NORWAY and MIND YOUR OWN BUSINESS, we DON’T NEED YOUR HOMILIES!

    ……………………..
    Norway calls on Sri Lanka to include international jurists in judicial mechanism
    Thu, Jun 30, 2016, 10:33 pm SL Time, ColomboPage News Desk, Sri Lanka.

    June 30, Geneva: While acknowledging Sri Lanka’s progress that has taken place in implementing the resolution since its adoption in October last year, Norway called on the government of Sri Lanka to adhere to the resolution and include international judges and lawyers in the recommended judicial mechanism to investigate the allegations of war crimes.

    “We acknowledge the progress that has taken place in implementing the resolution since its adoption in October last year,” Norway said in its statement to the 32nd session of the United Nations Human Right Council in Geneva on Wednesday.

    Norway noted that since the adoption of the UNHRC resolution in October last year, the two countries have had “good and frank exchanges of views” on these issues on a number of occasions, including during visits by our Foreign Minister Brende to Sri Lanka and last week by Sri Lanka’s Foreign Minister Samaraweera to Norway.

    Norway said its understanding is that progress is happening steadily, despite the fine political balance that needs to be kept in making these achievements. The latest concrete result being the cabinet’s approval of the Office of missing Persons.

    “We are aware that there is political opposition to the government’s initiatives to implement the resolution and that concessions need to be made in order to achieve progress. Nevertheless, we see the need to keep the momentum from the government’s side.”

    Norway expressed hope that the ongoing process on the new constitution will result in the crucial basis for a nation that acknowledges its ethnic and cultural diversity and for achieving reconciliation.

    Norway also appreciated Foreign Affairs Minister Mangala Samaraweera’s announcement in Oslo during the World Congress on the Death Penalty last week to seriously consider abolishing the death penalty in the new constitution.

    “We encourage Sri Lanka to work hard to keep the tight time schedule for the process on the new constitution,” it said.

    “It is further our expectation that Sri Lanka adheres to OP 6 in the resolution, regarding the planned judicial mechanism to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, and of the importance of participation in the judicial mechanism of Commonwealth and other foreign judges, defense lawyers and authorized prosecutors and investigators.”

    All initiatives for reconciliation, accountability and human rights in Sri Lanka should continue to be based on inclusive consultations with victims, civil society and the general population, the statement said.

    “Norway has been able to assist Sri Lanka recently in amongst others the return of internally displaced persons and reconstruction in the conflict affected areas of the Northern and Eastern provinces of Sri Lanka. We will continue to assist the Government of Sri Lanka in promoting a peaceful, inclusive and democratic nation.”

  7. RohanJay Says:

    I already knew this. But is was great to hear Prof Newton demolish the case by the LTTE, UN and the Globalists. When the Globalists and their agenda don’t get their way. Such as they expected the LTTE to win in Sri Lanka, they created strawman arguments, house of cards cases built on a sandcastle of lies, to frame any country which dares to resist them. In this case Sri Lanka. The UN a globalist organisation, does not serve individual nation states. But seeks to push the agenda of the Globalists. Right now, Sri Lankans unfortunately voted in on Jan 8th 2015 a globalist Sri Lankan govt led by Sirisena. The previous govt whilst being very corrupt and far from perfect, was in essence an anti-globalist sri lankan government. Unfortunately that anti-globalist Sri Lankan govt was ousted at the ballot box on Jan 8th 2015. Thanks to the globalist and their agents machinations, I’m talking specifically the work of Barack Obama and Sec of State Hillary Clinton and the George Soros, who managed to be successful in soft power coup in Sri Lanka in ousting the Mahinda Rajapaksha govt on January 8th, 2015 in being successful in convincing large numbers of Sri Lankan voters to back Maithripala Sirisena, the candidate who was fully supported by American Pres Barack Obama, Sec of State Hillary Clinton and sitting British PM David Cameron. The globalists got their way on January 8th, 2015. Hopefully thanks to people like Prof Newton. The Globalists won’t get their way with the UNHRC allegations.

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