Did Sri Lanka commit ‘war crimes’? International Legal luminary Sir Desmond de Silva says NO.
Posted on July 5th, 2016

Shenali D Waduge

The legal opinion of Sir Desmond de Silva covers all areas of allegation against the Sri Lankan Army and takes every leaf of relevant international law relevant to war crimes and clearly establishes why Sri Lanka cannot be accused of committing war crimes. Even individual soldier misbehaviour he says can be dealt with within existing framework of internal laws which clearly reveals we not only do not require war crimes tribunals and we certainly do not require international judges whatsoever. With these clear and precise legal arguments in place why is the Government of Sri Lanka betraying its national army and accepting bogus propaganda to be the basis for trials promoted by nations who have blood on their hands for which no UN war crimes trials have commenced. What the citizens of Sri Lanka must realize is that there are NO legal case for war crimes against Sri Lanka and so there should be no war crimes trials at all.

Sir Desmond de Silva takes on the task of providing the legal opinion related to collateral damage in the context of Sri Lanka’s non-international armed conflict.

Legal Opinion of Desmond de Silva

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122971

Legal pronouncements by former Prosecutor of the ICC Luis Moreno-Ocampo that justified collateral damage in the US led invasion of Iraq.

  • During this final phase of the conflict it is undoubted that there was considerable loss of civilian life; the figures, however, vary considerably. Sadly, this is what is called ‘collateral damage’ in military parlance…”
  • Following the military defeat of the LTTE a host of allegations had been made against the Sri Lank an Army (SLA) in having committed war crimes” (a very one-sided propaganda to which the powerful nations of the West were also party)

The legal opinion of Sir Desmond de Silva is subject to the following questions

  1. The law related to collateral damage. The pronouncement of Luis Moreno-Ocampo, state practices & official positions taken by US, UK, Israel before Courts & Tribunals & UN agencies/bodies including Security Council & Human Rights Council and its predecessor bodies on COLLATERAL DAMAGE.
  2. Facts relating to prosecution of war against LTTE, civilian casualties in closing stages of the War against LTTE as not constituting a war crime
  3. a) sole intention of SL Army was to gain a decisive military advantage over LTTE and bring to an end 30 years of terror by LTTE against all ethnic and religious groups in Sri Lanka
  4. b) SL Army pursued objecting respecting principles of distinction and proportionality which SL Army strove to follow
  5. c) Following the end of 30 year war against LTTE the peace, freedom, democracy and development was seen in the whole of the North and East post-conflict phase validating the intent and purpose of the military action.

Materials provided to Sir Desmond by the GOSL

  1. Humanitarian Operation Factual Analysis – Ministry of Defence, Sri Lanka July 2006-May 2009
  2. Opinion by Luis Moreno-Ocampo – 9 February 2006
  3. 31 page document entitled ‘Instructions to Queens Counsel’

Summary by Sir Desmond

  • By 2009 the Government of Sri Lanka had been in an ongoing internal armed conflict with the Liberation Tigers for Tamil Eelam (LTTE) for some thirty years. The LTTE waged a ruthless secessionist campaign to create an independent state in the North and East of Sri Lanka.”
  • After many failed attempts at peace the GOSL launched an operation to finally end the conflict and bring to a close the war that had claimed tens of thousands of lives,, both civilian and military. The Government created No Fire Zones (NFZs) with view to saving civilian lives. Indeed, the creation of these zones is only realistically consistent with that intention. The first NFZ was created in January 2009. Upon realizing that the Army refrain from firing into NFZs the LTTE promptly moved it’s CADRES and Artillery into the midst of these innocent civilians.” (Note: LTTE moved its cadres and artillery amidst civilians inside the NFZ)
  • This is…a war crime committed by the LTTE. In the final phase of the conflict when the LTTE was facing inevitable defeat it resorted to holding hostages as a human shield and shelling the Sri Lankan Army (SLA) from No Fire Zones so as to force the Army to run the risk of causing civilian casualties in responding. No doubt, this was done for the purpose of assigning allegations of civilian killings to the Army. In addition, there was evidence from many sources that the LTTE fired artillery into their own people. This strategy, is not unknown in hostilities of this kind where there is a need on the part of the losing side to provoke a propaganda storm so as to invite international intervention to prevent impending defeat.” (so now we know why NGOs and certain parties inside the UN were making a ruckus about civilians dying from army shelling – it was to pin blame on the SLArmy while trying to give time to the LTTE to re-group)
  • It was the duty of the GOSL to free the civilian hostages from their LTTE captors. Attempts by the civilian hostages to escape from their unlawful captivity were met with their being shot. The operation to free those hostages and defeat their LTTE captors resulted in significant civilian casualties with a range of figures from 8,000 to 40,000. Whatever be the true figure of the civilian casualties, the overwhelming number of innocent civilians taken hostages were saved. This was a humanitarian triumph achieved by the military defeat of the LTTE by the SLA, thereby ending the LTTE practice of forced recruitment in which “the LTTE took one child per family for its forces”. As the war progressed the policy intensified and was enforced with brutality, often recruiting several children from the same family, including boys and girls as young as 14”
  • Upon the defeat of the LTTE a host of allegations were launched against the SLA which included the unlawful targeting of civilians and causing illegal collateral damage.. References to the use of the atom bomb on Hiroshima and Nagasaki at the end of WWII for the purpose of determining the degree of acceptable collateral damage in a given set of circumstances is not helpful. The threshold as to what constitutes acceptable collateral damage under International Humanitarian Law (IHL) has changed significantly since WWII. Whereas, during WWII, it was generally held that widespread civilian death was acceptable so long as it furthered a legitimate military target, this broad view has changed markedly since WWII. Increasingly, the international community, and by extension IHL, requires a higher threshold in determining that civilian casualties are allowable under the laws of armed conflict.”
  • Currently, whether or not an attack that results in civilian deaths is legal under IHL depends on whether the attack meets the requirements of three principles which guide the legality of actions under the laws of armed conflict and IHL:

o   (1) Distinction,

o   (2) Military Necessity, and

o   (3) Proportionality.

  • In evaluating the legality of civilian casualties in the final stages of the war, in order to determine if they are permissible collateral damage, a violation of IHL only occurs if there is an intentional attack directed against civilians (violation of principle of distinction), or if an attack is launched on a military objective with the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (violation principle of proportionality).”
  • In the final stages of the war, according to the Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka around 330,000 civilians were trapped in an ever decreasing area, fleeing the shelling but kept hostage by the LTTE and being used as a strategic human buffer between themselves and the advancing SLA.”
  • From February 2009 onwards, the LTTE started the point blank shooting of civilians who attempted to escape the conflict zone whilst continuing a policy of suicide attacks outside the conflict zone.”
  • On Friday (April 3) the UN Secretary General Ban Ki-Moon called on the LTE to allow civilians to leave the conflict area of theirs own free will. He expressed his deep distress by continuing reports of civilians being kept at extreme risk, against their will and with heavy casualties in a very small area by the LTTE. The UN Secretary-General (UNSG) deplored the forced recruitment of civilians, particularly children, stating the severe restrictions of the LTTE on their freedom of movement violated international law.”
  • The and immediate duty of the Government forces was to free the hostages by defeating their captors and in order to do so they were entitled to use as much force as was absolutely necessary to completely overwhelm their enemy, subject to the principle of Proportionality. This was done, and 296,000 civilian hostages whose future was uncertain in the hands of the LTTE, were now saved. In my view, this was a military and humanitarian necessity. When military necessity is understood to require non-combatant death, such killing is permissible and legal if it is proportionate to the expected military advantage of the operation.
  • By doing their due diligence to ensure that the number of casualties was as low as possible and that only military targets were fired upon, the Government satisfied the principles of Necessity, Distinction and Proportionality.”
  • I bear in mind that there was an urgent need to bring the war to a swift conclusion, save as many hostages as possible and to prevent the escape of the LTTE leadership by sea. Their escape would have enabled them to position themselves elsewhere in the World and continue directing murderous terrorist activities against the people of Sri Lanka. The phenomenon of a group from outside waging war against a state was exemplified by the Al-Qaeda attack on the Twin Towers in New York in 2001 and indeed by the murder of Rajiv Gandhi, the Prime Minister of India by the LTTE.”
  • Thus, the damage and loss of life, regrettable as it was, was merely collateral damage. It is my opinion that a war crime cannot be ascribed to the Government on the basis of the facts set out above.
  • I set out my reasoning and conclusion in Sections 9 and 10 of this Opinion.
    This is not to say that there were not, in the heat of battle, cases of war crimes committed by individual members of the SLA. However, the evidence does not suggest that the commission of a war crime by reason of the collateral damage referred to was Government policy. In other words, there is no evidence of state sponsored war crimes in this regard.

Factual Assertions by Sir Desmond de Silva

  • For thirty years, the Liberation Tigers of Tamil Eelam (LTTE) were responsible for conducting numerous attacks against the Sri Lankan government and its citizens as part of its effort to create a separate Tamil state.” (No UN came forward calling for accountability for these deaths)
  • After repeatedly failing to reach a peaceful settlement with the LTTE leadership through peace talks, the government decided to conduct a large-scale “Humanitarian Operation” in 2006 to finally rid the country of the organisation.” (the LTTE were even given a change of weather by taking them overseas on foreign trips to stop killing people – even that didn’t work!)
  • By around January 2009, the SLA had pushed the LTTE fighters into a small area of the country. However, due to the significant number of civilians that were in that particular location, the government established “No Fire Zones” (NFZS) where the greatest concentration of civilians was located. The LTTE fighters decided to take advantage of the NFZs and began firing at the military forces from within the zones.” (key points is that the LTTE positioned themselves INSIDE the NFZ and fired at the SL Army from INSIDE the NFZ)
  • Additionally, the LTTE held tens of thousands of civilian hostages in the NFZs as human shields in order to deter the military from firing upon them while they conducted their attacks.’ (key point is that the civilian hostages were kept as human shields by LTTE)
  • Throughout the operation, the military followed a “zero civilian casualty policy.” However, in order to properly counter the LTTE attacks coming out of the NFZs, the military needed to launch counter-attacks against them. The military enacted several protective measures in order to limit the number of civilian casualties during the operations including specialised training for the troops, selectively using artillery fire, the use of snipers, the use of smaller fire teams, and the change in weaponry from rapid fire to deliberate fire.
  • In addition to what has been said, the care exercised by the security forces included several institutional mechanisms in place to safeguard human rights.

o   The Directorate of Human Rights and Humanitarian Law of the Sri Lanka Army (SLA) was established in January 1997. Its role was to further improve the appreciation and knowledge of SLA personnel of International Humanitarian Law (IHL) and Human Rights (HR) through training, monitoring the compliance of its personnel to these norms, and inquiring into and reporting alleged transgressions.

o   The Sub Directorate on Human Rights and International Humanitarian Law in the Sri Lanka Navy (SLN) was established in June 2002 as a means of providing advice, conducting training programmes for naval personnel, disseminating information and coordinating work with various agencies on all matters related to HR & IHL.

o   The International Humanitarian Law and Human Rights cell of the Sri Lanka Air Force (SLAF) was established in 2002 along similar lines. Training on Human Rights and International Humanitarian Law. Security Forces personnel receive in-depth training on HR and IHL through the directorates described above. In particular, officers and soldiers actively engaging in operations were trained to be of their responsibilities with regards to the safety of civilians and the protection of human rights, and to make appropriate and informed decisions in the heat of battle.

o   Training comprised three distinct programmes:

  • a. Training of instructors to conduct seminars and awareness programmes on HR and IHL for other personnel on a continuous, full time basis,
  • Regular field level training for other personnel conducted by these trained instructors in the operational areas
  • Formal training for officers and other ranks at established training centres
  • These training programmes are supported by the dissemination of written materials including leaflets, instruction booklets, placards etc., dealing with human rights, codes of conduct, offenses in armed conflict and other relevant material.
  • Assistance for these training programmes has been obtained from Governmental, non-Governmental and international organisations such as the Ministry of Disaster Management, the ICRC, the UNDP, the British Council, the National Commission on Human Rights, the National Institute of Education, the Centre for the Study of Human Rights at the University of Colombo and the Sri Lanka Foundation Institute.
  • Overall, more than 175,000 personnel of the SLA have undergone training in this subject area since the year 2001. Education on IHL and HR has been a compulsory subject for all SLN personnel in induction training courses, On the job training and all mandatory courses pertaining to promotion. More than 24,000 personnel of the SLAF have also received training in this subject area.

Applicability of International Humanitarian Law (IHL) to Internal Armed Conflicts

  • GOSL is a party to the four main Geneva Conventions of 1949, and thus has an obligation to comply with International Humanitarian Law (IHL).” (pl note LTTE is not signatory to any international treaty and is not bound by any law except customary laws)
  • war crimes could only be committed during an international conflict, but after the ICTY’s 1999 decision in Prosecutor v. Tadic, it is now well settled that violations of IHL can occur during internal conflicts as well.” (developments in law)
  • Internal conflict is defined as “protracted armed violence between governmental authorities and organized armed group or between such groups within a state.” (also known as non-international armed conflict)
  • If such a conflict exists, the relevant IHL provisions will govern the parties’ actions throughout the entire territory until a peaceful settlement has been reached.” (parties” imply that LTTE is also bound by ILH)
  • Both Common Article 3 (CA3) and Additional Protocol II (APII) to the Geneva Conventions apply to internal armed conflict. Because Sri Lanka is not a party to APII, the provisions of CA3 and customary international law govern the conflict in question. CA3 includes the following important provisions that parties to an internal conflict must abide by

o   Persons not taking part in the hostilities, including combatants who have laid down their arms shall be treated humanely, including the prohibition on discrimination on the basis of race, color, religion, sex, birth or wealth; murder or torture; hostage-taking; cruel or degrading treatment; and the use of executions as a sentence without due process are prohibited. The wounded and sick are to be cared for.” Any serious violation of these provisions could constitute a war crime.

Applicability of International Human Rights Law

  • International Human Rights Law (IHRL) is made up of a set of treaties and conventions that member states have drafted in order to cooperate in the protection of rights that the international community recognizes as fundamental”
  • The most relevant agreements to this conflict that Sri Lanka is a party to include the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (CAT), and the International Covenant Economic, Social and Cultural Rights. These instruments contain non-derogable rights that states are required to uphold for their citizens at all times.
  • IHRL is applicable both in armed conflicts and in times of peace. As a result, IHRL and IHL usually overlap with regards to crimes committed during armed conflict because a state is bound to respect both bodies of law. If the two bodies of law converge the most during internal conflicts because IHRL governs, how a state treats its citizens and is therefore less applicable in cases of international conflict.”
  • internal armed conflicts, it is most heavily relied on when the state refuses to recognize the applicability of CA3 to the conflict because certain human rights conventions, such as the ICCPR, contain non-derogable rights that cannot be ignored.”

Applicability of Customary International Law (CIL)

  • Article 38 of the statute for the International Court of Justice (ICJ), customary international law is defined as evidence of a general practice that is accepted as law.”
  • To reach this level, the practice must be considered both extensive and uniform so that states essentially believe that the custom is actually required by law. These practices may include treaties and other international agreements.”
  • There are certain bodies of customary international law that do apply to internal armed conflicts such as the Sri Lanka conflict. In Nicaragua v U.S., the ICJ determined that CA3 has become so widely accepted that its provisions should be considered to be customary international law. Additionally, although APII is not considered customary international law as a whole, there are core provisions within it that reaffirm and supplement CA3 and are, therefore, considered to be binding as customary law. These provisions include articles 4-6, 9 and 13, which cover the protection of civilians, medical and religious personnel, and the fundamental rights guaranteed to all those involved in the conflict.”
  • Finally, the ICRC has drafted a list of rules that it considers be a part customary international law in both internal and international conflicts based on its recognition of state practice because these provisions are customary law, they are considered binding on all parties of an internal conflict”

Liability of Non-State Actors – the LTTE

  • The LTTE, as non-state actors engaging in armed conflict, still have liability under IHL, and thus are liable for any transgressions of the laws contained therein.”
  • Two theories support this conclusion. The majority view holds that non-State actors, like the LTTE here, are bound by IHL “by reason of their being active on the territory of a Contracting Party (a State Party to the Geneva Conventions and/or its Additional Protocols).”
  • This theory is also referred to as the `principle of legislative jurisdiction’. Put simply, this theory posits that any agreements that a State may enter into (here, Sri Lanka) are subsequently binding on anyone it its jurisdictional territory. The advantage of this theory is that it may subject all armed groups active on a State territory to IHL, whether or not these groups have consented to be bound by IHL. Applied here, this theory would hold that the LTTE-by virtue of their physical presence in the sovereign, land of Sri Lanka, are subsequently subject to jurisdiction for any obligations or treaties it is a party to, including IHL and the Geneva Conventions.” (in other words every law Sri Lanka signs becomes automatically applicable to LTTE)
  • An alternative rationale has it that, because some armed groups exercise de facto control over territory, they behave like States, and therefore the international obligations – including obligations under IHL – incurred by States should also be incurred by non-state actors engaging in armed conflict.”
  • Such a theory, however, requires that a non-state group exercise de facto control of an area, and so this does not apply universally.”
  • Irrespective of its limited scope, however, it is worth looking at this explanation in respect of those groups that do exercise territorial control. Additional)
  • this theory would also apply to the LTTE as they did exercise de facto control over large portions of the North and East of Sri Lanka at the relevant time.”
  • Finally, it should be noted that IHL, to the extent that it’s embodied in customary international law, would also be binding on non-state actors like the LTTE.”

Right of a State in International Law to ensure national security and defend itself from insurgents and terrorists

  • Article 51 of the U.N. Charter recognizes a State’s right to use force to defend itself, and under this provision Sri Lanka is justified in using necessary and proportional force to defend itself from insurgents and terrorists. This interpretation gives Sri Lanka a military right to defend itself under the clear mandates of the Charter. This conflict was an internal armed conflict and, therefore, IHL applies.”

History of IHL in Non-International Conflicts and the Law of Collateral Damage

Principles of International Humanitarian Law (“IHL’) – The rules of international humanitarian law govern armed conflict.

  • Although the concept of ‘armed conflict’ is not defined in the Geneva Conventions or its subsequent Protocols, it has elsewhere been described a conflict “arising between states and leading to the intervention of members of the armed forces” and that it exists “whenever there is   resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups within a state”.
  • Armed conflicts have traditionally been classified as either international or non-international, with each governed by separate rules.”
  • As there is no debate that the present conflict in Sri Lanka is non-international in nature, this Opinion will only address IHL as it relates to non-international armed conflict;

Non-International Armed Conflict – Sources of Law

  • Whereas the regulation of international armed conflict is “comprehensive and elaborate,” comprising the majority of the provisions in the 1949 Geneva Conventions, the law governing non-international conflict is sparse. Specifically, only one provision of the 1949 Geneva Convention, Common Article 3, and the later-added Additional Protocol II govern non-international armed conflict. Additionally, it has been argued that customary international law also governs non-international armed conflict, although the extent to which this is true has been debated.

Common Article 3 & Additional Protocol II

  • Article 3, common to all four Geneva Conventions, is the only article in the Conventions that applies to non-international armed conflict. It provides minimum guarantees for protecting those not taking an active part in hostilities.
  • Sri Lanka both signed and ratified all four Geneva Conventions, and thus is bound by the provisions of common article 3. Additionally, common article 3 has gained customary international law status, and so is binding on all state parties now, not just signatories.
  • Additional Protocol IICommon article 3 was developed and expanded upon by Protocol II (1977), which applies to all non-international armed conflicts that take place in the territory of a state party between its armed forces and dissident armed forces. The stated aim of Protocol II was to extend the essential rules of the law of armed conflicts to internal wars. Thus, Additional Protocol II provides additional protections to those engaged in internal armed conflict. In particular, Protocol II lists a series of fundamental guarantees and other provisions calling for the protection of non-combatants. In particular, Additional Protocol II requires that, so long as they do not take part in hostilities, the civilian population and individual civilians “shall enjoy general protection against the dangers arising from military operations” and “shall not be the object of attack. Protocol II does not apply to situations of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence. Sri Lanka neither signed nor ratified Additional Protocol II. However, the Protocol which acceded to or not by individual nations have assumed the weight of customary international law because they have broadly accepted by a majority of nations as good law. See Appeal Chamber judgment in Tadic in the Defence Motion for Interlocutory Appeal on Jurisdiction rendered on October 2, 1995 in the Prosecutor v Dusco Tadic.

Customary International Law

  • Customary international law is generally binding on all states regardless of agreement or objection because custom emanates from universal norms of behavior among states.”
  • Applicable customary law here includes Articles 4-6, 9, 13. of AP II and all of common article 3.

Sources of IHL Governing Collateral Damage

  • Defining Collateral Damage : Providing civilian protection while simultaneously allowing for military objectives to be fulfilled is a central goal of IHL.
  • Accordingly, IHL seeks to protect civilians from the causalities of war to the greatest degree possible, while still allowing belligerents to engage in armed conflict.
  • If is well established that, “under international humanitarian law… the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime.” (extremely crucial argument so long as SL Army has following Distinction / Military Necessity and Proportionality)
  • International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.
  • In particular the three principles already referred to namely—

o   (I) distinction,

o   (2) military necessity, and

o   (3) proportionality—guide the legality of actions under the laws of armed conflict and IHL.

  • During the reporting period, senior Sri Lankan officials made repeated public statements denying that the GSL was shelling the NFZ or targeting hospitals and was not responsible for any civilian casualties. However, sources alleged that the majority of shelling in the NFZ was from GSL forces. The GSL announced that it would observe a 48-hour ceasefire on two occasions. The stated aim of these was to allow civilians to move into areas in which they would not be subject to shelling. Incident reports suggest, however, that the GSL may have begun shelling before the end of the second 48-hour ceasefire. Reports also indicated that the LTTE forcibly prevented the escape of IDPs and used hem as “human shields.”
  • Distinction requires that combatants distinguish between civilian and military personnel and targets in planning and executing military action.”
  • The principle of military necessity stipulates that the use of force must be used only to “compel the complete submission of the enemy … [T]he destruction of property to be lawful must be imperatively demanded by the necessities of war… There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. Thus, the doctrine of military necessity requires that legitimate targets are, “limited to those that make an effective contribution to military action and whose destruction or neutralization offers a definite military advantage in circumstances ruling at the time.”
  • The final principle of lawful engagement, proportionality, offers the strongest protection to civilians. Proportionality holds that the anticipated military advantage of any use of force must be balanced against the probable or expected civilian losses. In order to meet the requirements of proportionality, such losses cannot be “excessive” when compared to the military advantage gained by the use of force. The civilian casualties from otherwise permissible attacks on valid necessary military targets are called collateral damage.”
  • In evaluating the legality of civilian casualties in order. to determine if they are permissible collateral damage, a violation of IHL only :occurs if there is an intentional attack directed against civilians (violation of principle of distinction), or if an attack is launched on a military objective with the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (violation principle of proportionality). Thus, there may very well exist a valid military target that is unlawful to attack because the civilian loss expected greatly exceeds any military advantage conferred.”

Proportionality Explained

  • As stated above, the death of civilians in non-international armed conflict is only lawful when the attack that precipitated it was in furtherance of a necessary military target (encompassing “military necessity” and “distinction”) and when the attack was in accordance with the principle of proportionality.
  • where civilians were killed by intentional military action engaging a valid military target, the critical issue in determining whether the act was lawful was whether it comported with the principles of proportionality. Proportionality’s fundamental premise is that the “means and methods of attacking the enemy are not unlimited.”
  • The function of the principle of proportionality is to relate means to endsdid the military result justify the means required to accomplish it, the death of innocents. It is not easy to assess what attacks are disproportionate; to a large degree the answer depends on an interpretation of the circumstances prevailing at the time, the expected military advantage gained by striking a certain military target, and other context-specific considerations.”
  • It should also be noted that the principle of proportionality is often misapplied. For instance, in some cases the mere quantum of collateral damage and incidental injury causes critics to condemn a strike as disproportionate. However, the extent of harm and damage is relevant only as it relates to the military advantage that was reasonably expected at the time the attack was launched. Importantly, the standard is “excessive” (a comparative concept), not “extensive” (an absolute concept)
  • Damage to civilians or their property can be extensive without being excessive. Assuming the military advantage anticipated itself is high extensive damage will not be excessive. Thus, where the military object is of paramount importance the right of civilians to be free from the effects of hostility diminishes.”
  • When assessing the legality of “collateral damage” under lHL, disproportionate attacks are prohibited in two ways.
  • First, military commanders must evaluate the potential civilian losses anticipated, and not pursue the attack if they are excessive in relation to the, military advantage gained”
  • International courts and national military tribunals use a “reasonable commander” standard based on the circumstances at the time to determine whether a particular military act was proportional. For example, in Prosecutor v. Stanislav Galic, the defendant was charged with illegal deliberate and indiscriminate attacks on civilians. Explaining the ‘reasonable commander’ standard, the court in Stanislav Galic opined that “[in] determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”
  • Second, once a decision has been made to target a necessary military objective that will likely result in the loss of civilian life, every reasonable effort must be made to minimize civilian losses. For example, in Isayeva Russia, the European Court of Human Rights held that a Russian aerial attack on a village violated the principles of proportionality because the attack continued even when civilians tried to escape the village. Even though the Russians were attacking a valid military target—insurgents in the village—they were found to violate the mandates of proportionality because they failed to show that the attack was carried out with the “requisite care for the lives of the civilian population” that is required ‘by the laws of armed conflict.” Thus, commanders must exercise great caution in avoiding targeting even necessary military targets.

Human Shields

  • No specific textual prohibition of human shielding exists in the law of non-international armed conflict.”
  • Additional Protocol 11, however, does contain a more general proscription against endangering civilians, holding that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”
  • Thus, because human shields clearly place civilians in unnecessary danger from military operations, their use would violate AP II would thus is prohibited in non-international armed conflict too.

Historical shift in prevailing views on acceptable collateral damage: WW3 to Present

  • The international view on what constitutes acceptable civilian casualties in armed conflicts has changed significantly since the end of the Second World War. In particular, the twentieth century following the end of World War 11 has, with each conflict, seen a decreasing tolerance for what is viewed as acceptable collateral damage. What follows is a treatment of the change in views throughout history relating to collateral damage”
  • WWII saw a bombing strategy all actors—first the Germans, then followed by the British and Americans—that for the first time was focused heavily on civilian population centers, and defeating civilian morale. The Germans executed large-scale bombing runs on London early in the war, and the British and Americans followed suit in Germany and along the Axis lines.”
  • The American’s finished the war with what stands today as arguably the greatest accepted act of “lawful” collateral damage—the use of the atomic bomb on Hiroshima and Nagasaki.”
  • Although at the time the act was considered lawful because the targets were a military necessity” required to end the war, this expansive view would not be shared in later conflicts.
  • War in the Balkans: Operation Allied Force : From March to June 1999, the U.S. and NATO allies engaged in military operations to end Serbian atrocities in Kosovo, and force Slobodan Milosevic to withdraw forces from the area. During this operation, Milosevic’s Serbian forces employed a wide variety of concealment warfare tactics to deceive NATO forces, including dispersing troops and equipment throughout and within civilian population centers and hidden in civilian homes, barns, schools, factories, and monasteries. Serbian forces even dispersed among Civilian traffic during their movements used human shields to protect military equipment. These tactics contributed to several incidents of collateral damage resulting in civilian casualties, the most notable of. which included: inadvertent attacks on refugees over a twelve-mile stretch of a major road in Kosovo, resulting in seventy-three civilian casualties; ballistic attacks near a small town where 87 civilians were killed; and two incidents involving attacks on civilian buses that each involved heavy civilian causalities. In spite of these incidents, an investigation conducted by a committee of the International Criminal Tribunal for the Former Yugoslavia (ICTY) concluded that none of the foregoing collateral damage incidents presented sufficient evidence to warrant additional review or prosecution for violations of LOAC. The circumstances of the collateral damage in the form of civilian casualties referred to in the Kosovo Operation and in relation to which the investigation by a committee of the ICTY is highly relevant to the circumstances that appertained to the situation in the final phase of the conflict in Sri Lanka.

State Practice on Collateral Damage

  • The North Atlantic Treaty Organization (NATO) NATO has been an integral part to many military operations (especially those that are stability/peacekeeping in nature) around the world. This section will address NATO’s policies regarding collateral damage during armed conflict and present some examples from Operation Unified Protector and Operation Allied Force for consideration.

    NATO Collateral Damage Policy: As an organisation made up entirely of states that are party to the Geneva Conventions, NATO considers the laws of war to be extremely important to the planning of military operations. For example, in Secretary General Anders Fog Rasmussen’s annual report for 2011, he stated that in the preparations for Operation Protector in Lebanon, it was understood that there was an “absolute requirement to minimize collateral damage and civilian casualties.” Additionally, NATO’s Military Committee has drafted a number of military doctrines that outline its policies regarding the use of military force during certain circumstances. For example, in its Peace Support Operations doctrine, there is an entire doctrine devoted to exercising restraint in the use of force. It stresses that, at all times, LOAC should be complied with and that force should be “precise, appropriate, proportionate, and designed to resolve and defuse a crisis.” All options other than force should be considered first, and when necessary, only the minimum force necessary should be used. However, this does not exclude the use of force that might be sufficient to overwhelm the entire enemy force, so long as it is proportional.

    Additionally, its Counter-insurgency (COIN) doctrine advises military commanders to consider the extent to which collateral damage might occur as a result of the proposed operation. In many locations throughout the document, it recognizes that collateral damage, especially the loss of civilian lives, can be used against NATO as propaganda and undermine its efforts as a result. In fact, the doctrine states that counter-insurgency operations will inevitably be counterproductive if the level of collateral damage is significant. Accordingly, the manual recommends that the smallest and most precise amount of force should be applied in order to yield the greatest effectiveness out of an operation. For these reasons, the document also advises commanders to be extremely cautious in the planning of operations to be conducted in urban environment because they possess the greatest risk of causing collateral damage.

  • Overall, both doctrinal documents consistently recommend the use of the least amount of and the most precise use of force in conducting military operations. In most cases, the doctrine recommends using precision air strikes and small arms. At the same time, military forces are permitted to use as much force as absolutely necessary to completely overwhelm the enemy. The bottom line is that NATO commanders shall use as much force as necessary until the predicted level of collateral damage makes it counterproductive, which is identical to proportionality.
  • Examples of Collateral Damage in NATO Military Operations: Two of the most prominent examples of collateral damage issues in NATO military operations include Operation Allied Force in Kosovo and Operation Unified Protector in Libya. This section will examine the type of collateral damage that occurred and response made by NATO and the international community.

    Operation Allied Force: Operation Allied Force was a NATO response to the horrific human rights abuses that were occurring throughout Kosovo and the Former Yugoslavia in the late 1990’s under President Milosevic. The objectives of the operation included a stop to all military action and violence; agreement to establish station an international military presence in Kosovo, and ensure the withdrawal of President Milosevic’s military and police forces from Kosovo.

    In order to best minimize collateral damage, NATO forces relied heavily on strategic air power to strike key military targets in the region. While many of the legitimate military targets were successfully hit during the operation, it was reported that a significant number of civilians were killed as well as a great degree of damage to civilian infrastructure as a result of the air strikes. Some of these incidents included:

    1. civilian passenger train at the Grdelica Gorge on 12 Apr 1999 in which 10 civilians were killed;

  1. The attack on the Djakovica Convoy on 14 Apr 1999 in which 70 to 75 civilians were killed
  2. The attack on the Chinese Embassy in Belgrade on 7 May 1999, which damaged the building and killed 3 civilians; and
  3. An attack on Istok Prison on 21 May 1999, which killed 19 civilians.

    These incidents of collateral damage, among others, caused allegations to be launched against NATO that their forces committed war crimes and that their use of force was not legitimate in the first place. The allegations even prompted the ICTY to inquire into whether the incidents justified a formal investigation by the prosecutor.

In many of the instances, NATO responded by admitting responsibility for the attack, but arguing that the targets were legitimate, and the attacks were either made with no knowledge that civilians were present or that they would equal the numbers that they did. In some cases, NATO representatives alleged that Milosevic’s forces used human shields. Additionally, on the question of legitimacy, NATO asserted that they were acting pursuant to collective self- defence and acting to stabilize the region. Civilians were never the intended targets and had they known civilians were present or that the degree of collateral damage was so high, they would never have followed through with some of those missions.

Notably, the ICTY ended up agreeing with the NATO assertions and found that no formal investigation by the prosecutor’s office was necessary. The court found that before each attack, the military and its legal advisors carefully analyzed the proposed targets, that the targets were legitimate; and that the number of civilian deaths was in fact proportional to the urgent military objective to overwhelm and defeat Milosevic’s forces.

Operation Unified Protector: In 2011, amidst the backdrop of the Arab Spring, the people of Libya rebelled against the government of Moammar Gadhafi. In response to the serious risk that Gadhafi was going to commit atrocities against his people, the U.N. Security Council issued Resolution 1973, which authorized military intervention in Libya. Pursuant to the resolution NATO implemented Operation Unified Protector, which called for the use of military force to protect the civilians caught up in the middle of the Libyan conflict. Again, due to the potential risk to life to the NATO members and civilians, military involvement was limited to and naval precision strikes as well as the enforcement of a no fly zone. This operation ended up being much less controversial in the long-run due to the level of caution that the NATO commanders put into their planning of each mission and the sound legal basis it had for intervening pursuant to Resolution 1973. Additionally, NATO representatives boast that essentially no civilian casualties were reported due to their immense focus on minimizing collateral damage. Secretary General Rasmussen stated that as a means of ensuring the low degree of collateral damage, military forces never targeted civilian infrastructure, such as water supplies or oil production facilities, or the general area surrounding those locations.

Additionally, in October 2011, NATO Military Committee Chairman Admiral Giampaolo Di Paola remarked that, from the very beginning, all members understood that “no civilian casualties and no collateral damage was an absolute must.” U.N. Secretary General Ban-Ki Moon even stated that the low degree of collateral damage during the operation was unprecedented. He also attributes this success to the use of “persistent surveillance and reconnaissance” of each target location in order to know exactly what is going on and know for certain whether a precision strike can be made without creating any collateral damage.

Some watch groups, such as the Human Rights Watch, claim that civilians were indeed harmed as a result of NATO’s air campaign during Operation Unified Protector. Even if these reports were true, NATO representatives would still argue that each target was carefully analyzed, that it was believed the targets were free of civilians, the targets were all necessary in weakening Gadhafi’s military campaign, and that they complied with their obligations under international law to take all means necessary to minimize civilian casualties.

ISRAEL: Israel Policy on Collateral Damage. Israel has not ratified Additional Protocol I to the Geneva Conventions, and thus is not bound by the Protocol’s broad protections of civilian populations during armed conflict. Nevertheless, Israel Defense Force (IDF) written statements of policy indicate that they adhere to the principle of Distinction that is central to IHL. For example, an Israeli Defense Force policy doctrine mandates that, “IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity, and property.” Although the Israeli government has acknowledged the laws of war, it nevertheless justifies some military operations against civilian targets—including the practice of destroying the homes of Palestinians suspected of assisting terrorists—on the basis of military necessity.

The Israeli government and IDF additionally publicize a robust policy meant to affirmatively minimize collateral damage during armed conflict with Hamas and. other Palestinian groups operating in the Gaza strip. In particular, the IDF claims that the following are some methods they used to minimize civilian causalities in recent conflicts.

Phone calls: During the last 24 hours of the operation, thousands of Israeli phone calls were made to residents of the Gaza Strip, warning them of. IDF strikes in the area.

Leaflets: The Israel Air Force has dropped leaflets over Gaza that warns civilians to avoid being present in the vicinity of Haman operatives.”

Diverting missiles in mid-flight: During Operation Cast Lead in 2008-09, the IDF aborted many missions seconds before they were to be carried out, due to civilians being present at the site of the target. The following video is an example of an IAF airstrike that was called off as the missile was on its way to the target.

Roof Knocking: “Roof knocking” is when the IAF targets a building with a loud but non-lethal bomb that warns civilians that they are in the vicinity of a weapons cache or other target. This method is used to allow all residents to leave the area before the IDF targets the site with live ammunition.

Pinpoint Targeting: The IDF, whenever possible, singles out terrorists and targets them in a way that will endanger few or no bystanders. This can often be hard to do, since terrorists prefer to hide in crowded areas.

Examples of Collateral Damage in Israeli Military Operations: Over the years, the Israeli Defense Force (IDF) has been engaged in conflicts with Hamas in’ the Gaza Strip and Hezbollah militants in Lebanon. Both cases have provided issues regarding collateral damage for consideration.

  1. Hamas Conflict: For years, Israeli citizens have suffered as a result of constant Hamas missile strikes into Israel. 98 For example, in 2012 alone, 1,650 rockets were fired into Israel from the Gaza Strip. 99 As a result of these missile attacks and other.. Hamas terrorist attacks, the IDF has conducted a number of operations in response. One such operation was “Operation Cast Lead” which took place from December 2008 to January 2009. In that operation, the IDF sought to deinfrastructure that Hamas was using to launch attacks against Israeli citizens. During Cast Lead, hundreds of civilian homes, infrastructure, and lives were destroyed as a result of Israeli rocket fire. This led to allegations that Israel had committed war crimes. This caused so much controversy that calls for the ICC to get involved were made, but, due to jurisdiction concerns over Palestine not being a state, the matter was never considered. However, Israel contended that just because civilians were killed does not necessarily make their conduct illegal because they were strictly acting in self-defence and each of their targets were thus legal.

Israel further asserts that it was their policy during this mission to warn civilians of rocket fire before in struck in order to help minimize the number of civilian casualties. For example, for some strikes, the IDF utilized missiles that could be aborted in flight if unexpected civilians appeared in the vicinity of the target. Additionally, they dropped leaflets over areas that would be subject to heavy rocket-fire so that civilians could leave the area. Also, IDF members would sometimes use “Roof Knocking Bombs, which are non-lethal projectiles that are used by IDF to warn civilians that they are in the range of the reach of their weapons in order to give them time to leave the area.

Based on this, and the fact that targets were selected because they were believed to be where Hamas was launching its attacks from, Israel asserts that their targeting practices were legal and that any civilian death or property damage is just collateral damage.

  1. Operations Against Hezbollah Israel has also suffered the effects of attacks from Hezbollah militants that operated inside of Lebanon. One of the major operations that took place as part of this ongoing conflict occurred from 12 July 2006 to 14 August 2006. In response to Hezbollah rocket fire into Israel, the IDF launched thousands of rockets and artillery shells into residential areas where it believed Hezbollah operatives to be located.”‘ As a result, significant damage was done to civilian homes and infrastructure and hundreds of civilian lives were lost. This operation also created controversy for Israel because it appeared that these counter-attacks were being launched indiscriminately. However, just as they did in the aftermath of Operation Cast Lead, the government asserted that their targets were legitimate because Hezbollah was hiding in residential areas to fire rockets into Israel and the IDF was trying to be as precise as possible but needed to target those areas to protect their own citizens. This still generates much controversy today.

UNITED STATES: U.S. Policy on Collateral Damage

The United States Department of Defense (DOD) defines collateral damage Unintentional or incidental injury or damage to persons or objects that would not be lawful military targets in the circumstances ruling at the time. Such damage is not unlawful so long as it is not excessive in light of the overall military advantage anticipated from the attack.

As a matter of policy, the DoD requires its service components, including the Army, Navy, Air Force, and Marines, to comply with the laws of war during all military operations and armed conflicts. In relevant part, the Department of Defense defines the law of war as, “[t]hat part of international law that regulates the conduct of armed hostilities. It is often called the ‘law of armed conflict. The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law.”

Although the United States is not a party to Additional Protocol I, the American military openly endorses the Principle of Distinction. American armed forces include that endorsement in their training materials, ensuring that every member of the U.S. military is aware that civilians may not be targeted. For example, the U.S. Air Force provides its entire force with a copy of the Airman’s Manual, an instructional reference guide. The Airman’s Manual codifies the policy of Distinction simply, saying “Do not . . . Attack non combatants who include civilians. Current doctrine from the US Army’s accredited Judge Advocate General’s (JAGC) Legal Center and School emphasizes the fundamental. elements of the laws of war essential to avoiding unlawful civilian causalities, including the following: military necessity, distinction, proportionality, and no unnecessary suffering. Army lawyers are instructed to address these elements in all circumstances and d to follow specific international legal obligations, including treaties and customary international law.

Additionally, the U.S. Army includes the Principle of Distinction in its training materials too. The first chapter of the Soldier’s Manual of Common Tasks is about the laws of war. The Manual explains that the Hague conventions and customary international law limit targeting decisions, and that the latter prohibits “targeting or attacking civilians. It goes on to state that civilians are protected from “all acts or threats of violence. Likewise, the Army’s field manual on ‘the law of land warfare says that “[a]ttacks [a]gainst the [c]ivilian population as [s]uch [are] [p]rohibited.

The United States Joint Operations Targeting Doctrine also provides guidance regarding the DoD’s position on targeting as it relates to collateral damage. Per the doctrine, all targeting decisions involving attacks must comply with controlling rules of engagement as well as international humanitarian law, including the “fundamental principles of military necessity, unnecessary suffering, proportionality, and distinction (discrimination) The targeting doctrine cautions that, in relation to avoiding collateral damage, the primary threats to the civilian population depend, on “engagement techniques, weapon used, nature of conflict, commingling of civilian and military objects, and armed resistance encountered”. The doctrine further suggests that military commanders should further verify with reliable intelligence that attacks are directed only against military targets and that any incidental “civilian injury or collateral damage to civilian objects must not be excessive in relation to the concrete and direct military advantage expected to be gained”. The doctrine even indicates that, when it is practicable, advance warning of the attack should be given to allow civilians to depart the targeted area. Finally, the doctrine provides that the attack must be cancelled or suspended when “it becomes apparent that a target is no longer a lawful military objective”. The DoD has, even expanded its emphasis on mitigating civilian categories in recent years, publishing further guidance on how to avoid unnecessary civilian death during armed conflict.

Examples of Collateral Damage in Recent U.S. Campaigns : Drone Strikes

In the decades since 9/11, the United States has engaged in a robust campaign of targeted killings of purported enemies of the War on Terror, mostly effectuated through unmanned drone strikes. These attacks ostensibly balance the principles of military necessity, discrimination, and proportionality, and in theory are billed as a surgical means of fighting the war that minimizes collateral damage. In practice, however, drone strikes have faced significant criticism from the international community because of allegations that they account for unjustified and disproportionate civilian causalities. Some of the best known examples of the alleged disproportionate effect that drone strikes haven civilians involve numerous cases where funeral processions were targeted, killing numerous civilians attending those funerals.

In response to criticism about the legality of drone strikes, the Obama Administration has argued that the U.S. is in an armed conflict with Al Qaeda and the Taliban, and that the U.S. may thus act in self-defence pursuant to the Authorized Use of Military Forced issued by Congress on September 18, 2001. Specifically, State Department Legal Advisor Harold Koh has argued that, because al-Qaeda has not abandoned its intent to attack the United States, the United States, “has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.” A study by Stanford and NYU Law Schools that included over 100 interviews and two trips to Pakistan to investigate drone strikes opined that; “[i]n the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling ‘targeted killing’ of terrorists, with minimal downsides or collateral impacts. This narrative is false. Interestingly, in light of widespread criticism, the Obama Administration, although still defending drone strikes, just last year purported to take a “zero tolerance” for civilian causality policy, claiming that moving forward, “before any strike is taken, there must be near-certainty that no civilian can be killed or injured— the highest standard we can set.”

IRAQ: Operation Iraqi Freedom : It is undisputed that the American-led invasion of Iraq has resulted in numerous civilian deaths. Although the United States military does not officially track civilian deaths figures, outside sources estimate that since the U.S. invaded Iraq in 2003, civilian causalities total between 121,000–134,000 deaths. Most of the civilian casualties attributable to Coalition conduct in the ground war appear to have been the result of ground-launched cluster munitions, which were reportedly responsible for 273 civilian casualties at al-Hilla and al-Najaf, and ground combat was responsible for 381 civilian deaths at al-Nasiriya. In some instances of direct combat, especially in Baghdad and al-Nasiriyya, problems with training on as well as dissemination and clarity of the rules of engagement (ROE) for U.S. ground forces may have contributed to loss of civilian life. The Los Angeles Times completed a survey of twenty-seven hospitals in Baghdad and the local area, reporting that at least 1,700 civilians died and more than 8,000 were injured in the capital during the initial ground operations at the beginning of the war.

Numerous accounts exist detailing allegations of permissible killings of civilians. In one case, U.S. Army soldiers opened fire on an unidentified vehicle as it was approaching a U.S. Soldiers attempted near al-Najaf on March 31, 2003 to direct the vehicle to stop, and then opened fire, killing seven of the fifteen civilian passengers on board. The London Times also reported an account of a firefight between Coalition forces and insurgents in which sixteen Iraqi soldiers were killed along with twelve civilians. There were even reports of U.S. forces targeting a hospital where two high profile Iraqi political leaders arrived, brandishing satellite phones. Although two Red Crescents marked the roof of the hospital, a coalition attack killed four and injured 70 patients. Accounts of extensive civilian deaths were so widespread, even among coalition force members, that two reporters wrote a book detailing the allegations of misconduct by U.S. troops in killing civilians.

Afghanistan: Operation Enduring Freedom: Many of the most flagrant examples of egregious collateral damage during OEF involve aerial bombing campaigns. In the first few months of the war, the United States mistakenly bombed a Red Cross building—twice. Although there were no direct casualties from this attack, the bombing left some 55,000 people without food and blankets. The mistake was alleged to be due to a “human error in the targeting process.” More seriously, a 2008 bombing of Azizabad, Afghanistan left over 90 civilians dead, including 60 children. The attack was aimed at killing just one militant, leader.

The International Criminal Court (ICC): In relation to the Coalition invasion of Iraq, the Office of The Prosecutor of The ICC received over 240 communications expressing concern regarding the military operations in that country and the resultant human loss. On the 9th February, 2006, The Prosecutor Luis Moreno-Ocampo indicated that he had a very special role in mandate as specified in the Rome Statue and that in accordance with Article 15 of the Rome Statute he had a duty to analyse information received with regard to potential crimes in order to determine whether there is a reasonable basis to proceed with a particular investigation. As the Chief Prosecutor he had to consider whether the available information provided a reasonable basis to believe that a crime within the jurisdiction of the Court had been or was in the process of being committed. Where this requirement was satisfied he had to consider admissibility before the Court in the light of requirements relating to gravity and complementarily with national proceedings. Thirdly, if those factors were positive he had to give consideration to the interests of Justice.
Sri Lanka, of course, is not a party to the International Criminal Court. However, the reasoning by the Chief Prosecutor in relation to the complaints made in relation to Iraq are worthy of consideration. The. conclusion The Prosecutor arrived at was this; the events in question occurred in the territory of Iraq which, again, like Sri Lanka was not a State Party to the Rome Statute and which had not lodged a declaration of acceptance under Article 12 (3) thereby accepting the jurisdiction of the Court.
Therefore, in accordance with Article 12 of the Rome Statute, acts on the territory of a non-State Party fell within the jurisdiction of the Court only when the person accused of the crime is a national of a State that has accepted jurisdiction (Article 12(2)(b)). The Prosecutor did not have jurisdiction with respect to actions of non-State Party nationals on the territory of Iraq.

The first Prosecutor of the ICC Luis Moreno-Ocampo was to say FOOTNOTE 1

For war crimes, a specific gravity threshold is set down in Article 8(1), which states that `the Court shall have jurisdiction in respect of war crimes in particular when committed as apart of a plan or policy or as part of a large-scale commission of such crimes’. This threshold is not an element of the crime, and the words ‘in particular’ suggest that this is not a strict requirement. It does, however, provide Statute guidance that the Court is intended to focus on situations meeting these requirements.

According to the available information, it did not appear that any of the criteria of Article 8(1) were satisfied.

Even if one were to assume that Article 8(1) had been satisfied, would then be necessary to consider the general gravity requirement under Article 53(1)(b). The Office considers various factors in assessing gravity. A key consideration is the number of victims of particularly serious crimes, such as wilful killing or rape. The number of potential victims of crimes within the jurisdiction of the Court in this situation 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions.. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes.

Taking into account all the considerations, the situation did not appear to meet the required threshold of the Statute He went on to say that in accordance with Article 15(6) of the Rome Statute that his conclusion at that stage were that the statutory requirements for the seeking of authorisation to initiate an investigation into the situation in Iraq had not been satisfied.

Based on the factual assertions and known prevailing conditions at the time, the actions of the Sri Lanka Army DO NOT CONSTITUTE WAR CRIMES.

The war crimes allegations against Sri Lanka appear to fall into three main categories, which include

(1) harm to civilians and civilian objects;

(2) killing of captives or combatants seeking to surrender; and

(3) preventing necessary food and medicine from being provided to civilians.

This section will provide a brief overview of the law that is relevant to war crimes and then analyze whether the government of Sri Lanka is liable for the above allegations based on the assertions they provided.

The Law Pertaining to War Crimes
According to the ICTY judgment of Prosecutor v. Tadic, four requirements need to be met in order for someone to be prosecuted for a war crime:

1. The violation must infringe a rule: The rule must be found in customary law or applicable treaty law;

  1. The violation must be serious in that the rule protects important values and the breach involves grave consequences for the victim; and
  1. The violation must entail individual criminal responsibility.

As discussed earlier, the applicable IHL provisions to this particular conflict is common article 3 (CA3) and customary international law. Customary international law includes CA3 and the core provisions of Additional Protocol II (APII) Tactic held that any violation of these provisions should satisfy the elements outlined above. Additionally, the three categories of allegations against Sri Lanka are all considered violations of these provisions.

Whether harm to civilians or civilian objects, a violation of CA3 and customary law, was unlawful is typically analysed against the principles of distinction, necessity, proportionality and humanity (unnecessary suffering), as discussed previously. So long as a military commander or government complies with these principles, the harm will be considered lawful collateral damage.

With regards to the allegation of killing captives, CA3(1) and APII(4) strictly forbid inhumanely treating combatants who have laid down their arms, such as by ,the use of torture or execution. These crimes are illegal per se, so no analysis is needed to determine whether it was excused or not. All that is required is a determination as to whether it happened or not

Finally, the allegation that Sri Lanka prevented civilians from receiving necessary medicine and food would, if true, violate the relevant IHL. It is well settled under CA3 and customary IHL that the wounded and sick shall be collected and cared for, and no party to the conflict shall impede that effort. Again, this type of crime is illegal if it is committed, and is not subject to a balancing. test to determine whether it is excused or not.

Harm to Civilians and Civilian Objects:

As previously discussed, one of the most serious allegations made against Sri Lanka is that they indiscriminately shelled civilians and civilian structures during the Humanitarian Operation. These assertions are made based on the fact that sources consistently reported that, during the months of January to May 2009, the government indiscriminately fired into the NFZs as well as during a 48-hour cease-fire. Most of the shelling, according to the allegations, was actually directed at areas where major hospitals were located.

The government contends that, although targeting was made toward these areas, several measures were put into place to limit the effect on civilians. First, the government asserts that the LTTE forced civilians into these areas to create human shields in order to deter the military from attacking. The government’s case is importantly supported by Jacques de Maio, International Committee of the Red Cross (ICRC) and Head of Operations for South Asia informed US officials that the LTTE “had tried to keep: civilians in the middle of a permanent state of violence”.

 The LTTE saw the civilian population as a “protected asset” and kept it’s fighting men embedded amongst them. He went on to say, that the LTTE Commanders’ object was to keep the distinction between the civilian and military assets blurred. The Government established the NFZs in order to reduce civilian casualties but the LTTE moved its men and heavy weaponry into these zones from which they began to shell SLA positions. Again, the position of the Government is supported by the following observations by Sir John Holmes, UN Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator;

 “There are continuing reports of shelling from both sides, including inside the ‘no-fire zone, where the LTTE seems to have set up firing positions.”

Additionally, the SLA took several measures in order to minimize casualties such as using snipers, selectively using artillery power, change from rapid fire to deliberate fire, the establishment of a “zero civilian casualty policy,” and the use of smaller fire teams to conduct missions. Furthermore, the damage described by the government is minimal.

Based on the above instructions, it is unlikely that the operations of the SLA constituted any war crimes, even though civilian lives were lost during the operation.

First, the principle of necessity is satisfied. GOSL asserts that the necessity was to respond to attacks being launched from the NFZs and in order to free civilians that were being held hostage in these areas both of which are considered legitimate reasons to use force under IHL.

 

For example, the 2009 State Department report to Congress acknowledged that there was clear evidence that the LTTE was firing artillery shells from within the hospital premises and concentrations of civilians.

In addition, the International Contact Group (ICG) also documented that there were “LTTE gun positions within n 500m of the Centre”. The ICG also recorded that most “of the LTTE artillery was located in the no fire zones.

Additionally, the principle of distinction is satisfied. The government asserts that they established the NFZs to help troops distinguish between civilians and non-civilians and even when it the SLA had to fire into those zones, it did so selectively and targeted only the locations that LTTE artillery was coming from.

Further, the hospitals in question were not directly targeted and some, for the most part, were no longer being used for treating patients.

Based on these assertions, it is evident that the government did its best to distinguish between military and civilian targets.

The proportionality and unnecessary suffering principles have also been satisfied based on the assertions. As previously stated, proportionality is violated where the incidental loss to human life outweighs the anticipated military advantage. Here, despite the fact that civilian casualties might have been expected, the government appeared to do their utmost to minimize those casualties in order to achieve their military objective of stopping future attacks from the LTTE out of those locations and rescuing the civilians among their many other objectives outlined on page 27 of my instructions.

In this case, the incidental civilian deaths and property damage was collateral Additionally, 290,000 civilians were rescued as a result of this operation.

It is also important to note that, at many times, the direction of fire could not be discerned, so it is difficult to attribute most of the deaths to the government. For example, Gordon Weiss, the UN Spokesman in Sri Lanka, acknowledged that there is good evidence that the LTTE fired artillery shells at their own people as a method of causing international outcry against the government.

It should be noted that the mere presence of civilians or the use of human shields does not bar an attack against the enemy force. In fact, the test of proportionality tends to be relaxed in those circumstances and any civilian deaths will be attributed to the party using the human shield.

War is imprecise and unpredictable and as long as the principles are satisfied, the incidental deaths will be considered as collateral damage. Where military operations are conducted among civilian populations, civilian casualties have always been a tragic consequence of armed conflict. The principle of military necessity allows for the intentional of potentially large numbers of people if the harm is both unintended and is not disproportionate to a legitimate military objective.

Therefore, based on the government’s assertions and the established facts, it is unlikely that the harm to civilians in this context constituted a war crime

Killing of Captives or Combatants Seeking to Surrender
Another allegation made against the Security Forces was that they executed surrendering soldiers of the LTTE. These allegations are based on video footage allegedly showing Sri Lankan soldiers killing captive LTTE members in January 2009 as well as other sources that reported that government forces filled several LTTE leaders while they attempted to surrender in May 2009.

CA3(1) and APII(4), strictly prohibit the murder of former combatants who have laid down their arms so any violation of this provision would certainly constitute a war crime. However, it is correct to say that a great deal of controversy attaches to the accuracy of videotape footage that has been produced.

Based on my instructions, however, it is unlikely that this crime was committed. As I have observed before, if there were individual acts that amounted to war crimes the authorities have the judicial structures within which to deal with perpetrators.

According to the government, 11,986 LTTE members were either detained or surrendered and 10,490 have already undergone rehabilitation and have been reintegrated into society. The rest are either currently under rehabilitation or are scheduled for prosecution. Additionally, the government asserts that the same accommodations were made for family members of LTTE.

Therefore, based on these facts alone, it is unlikely that this crime occurred.

Preventing Necessary Food and Medicine From Being Provided to Civilians

Finally, the government was alleged to have deprived civilians in the conflict zone from receiving necessary humanitarian aid. This allegation is based on the fact that there was a significant shortage of food and medicine available despite deliveries that were made to the conflict zones.

Under the relevant IHL’s requirements to provide for the sick and wounded, it could be considered a war crime to actively prohibit access to humanitarian aid. It might also be a violation of the relevant Human Rights Law, such as the International Convention on Economic, Social, and Cultural Rights (ICESR), which is discussed further elsewhere.

The government asserts that they worked with several UN agencies to provide aid to those in need in the conflict zones. Additionally, if there was any shortage in aid supplied, it was due to the fact that the LTTE consistently targeted the UN food convoys throughout the operation. Furthermore, few facts have been asserted that actually attribute responsibility to the government for the shortage in aid.

Based on my instructions (Sir Desmond), however, it is unlikely that this particular crime was committed.

 CONCLUSION OF SIR DESMOND DE SILVA

It is difficult to establish how many civilian casualties there were at the end stage of the conflict. Suffice it to say the UN Panel of Experts on Accountability in Sri Lanka said:

“Two years after the end of the war, there is still no reliable figure for civilian death.”

What can, however, be said is this but for the taking by the LTTE of hundreds of thousands of hostages for reasons I have already gone into in this Opinion, the casualties would largely have encompassed LTTE fighters alone. (in other words no civilian would have come to harm IF LTTE did not forcibly take them with them)
Based on my instructions, my analysis of the relevant law, from the factual matrix made available to me and other research, my opinion is that the great mass of civilian deaths which occurred in the final stage of the conflict were regrettable but permissible collateral damage.

It was occasioned in the process of the security forces fighting to overwhelm and defeat the LTTE who had taken hostages in such large numbers that this may well be considered to be one of the largest hostage takings in history. The human stakes were colossal considering that the hostages were being murdered if they had tried to escape. The end result of saving some 290,000 hostage lives and the defeat of the ruthless LTTE were legitimate military and humanitarian objectives and the collateral damage was not disproportionate to the military advantage and was wholly consistent with the humanitarian imperatives that prevailed at that grim time.

Shenali D Waduge  

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