LTTE cadres are neither Prisoners of War (POWs) nor Political Prisoners!
Posted on September 29th, 2016

Shenali D Waduge

There are continuous reference being made to LTTE cadres as Prisoners of War. This is legally incorrect. Sri Lanka’s conflict is categorized as a non-international armed conflict (NIAC). Even the Ban Ki Moon personally commissioned 3 member panel which is not sanctioned by either the UN Security Council or the UN General Assembly categorized Sri Lanka as a NIAC. LTTE is a globally designated terrorist organization. Yet the UN has no legal definition for terrorists. In such a scenario we can only take provisions of International Humanitarian Law (IHL) applicable to LTTE while the government is bound to apply local laws and the violation of these IHL to take action against LTTE. LTTE are UNLAWFUL COMBATANTS.

As a NIAC the conflict was between the State and Non-State Actor (LTTE).

Given that Sri Lanka’s conflict is described as an armed conflict of a non-international character the laws applicable are

  • Common Article 3 to the Geneva Convention (appears in all 4 of the Geneva Conventions)
  • Article 1 of 1977 Additional Protocol II to the 1949 Geneva Conventions

The above two covers those detained to be protected against murder, torture, humiliation/degrading treatment and those detained who had been participating in hostilities are not immune from criminal prosecution under domestic laws.

Thus LTTE cadres whether rehabilitated or not cannot be referred to as Prisoners of War and should not be released without criminal charges being filed against them in Sri Lanka’s domestic court for violations of IHL as the Government deems adequate. They should not be released or compensated by the State (taxpayers) – if anyone wants to personally look after them with their personal funds they are more than welcome to do so but not with State funds.

The drafters of IHL treaty law purposefully permitted a state’s domestic law to determine the appropriate detention and internment powers in NIAC. Therefore the UNSG and UNHRC head are reminded that it is the right of Sri Lanka to first put on trial LTTE for their acts of war crimes and terror over 30 years before holding tribunals against the Government troops for defending the nation. For 30 long years the People of Sri Lanka have been waiting for justice.

LTTE genocidal terror – As civilians, we want justice for LTTE crimes committed upon us as planned, premeditated murder devising ways of creating terror and targeting civilian lives and civilian infrastructure coming into our lives to disturb us. An armed group must engage in hostilities with the State military and not upon unarmed civilians going to school, travelling to work and going about their lives nor does these armed groups have any entitlement to chase/evict Sinhalese & Muslims from their habitats and confiscating their lands and property as well.

Members of the armed forces and police some of whom have lodged over 5000 cases of missing, need to have answers for where these servicemen are as it is now over 6 years after the military defeat of the LTTE ground force but these soldiers remain MIA. The complaints by their families are lodged with the Presidential Commission on Missing Persons as well as UNHRC who have done nothing.

Legal definitions:

NIAC – non-international armed conflict – or internal conflict –

International humanitarian law applies. IHL imposes obligations on both sides of the conflict equally, though without conferring any legal status on the armed opposition groups involved. (LTTE has no legal status) The parties to non-international armed conflicts are at minimum required to comply with Article 3 common to the Geneva Conventions and with rules of customary IHL.

In a non-international armed conflict, IHL does not prevent the prosecution of captured rebel fighters for the mere fact of having taken up arms. Article 3 common to the Geneva Conventions, the mere fact that an armed group – be it labelled “freedom fighters,” “terrorist” or otherwise – is party to an armed conflict does not give it any particular status under IHL. But the application of IHL does not affect the sovereignty of a State or a government’s right to suppress rebellion through armed force and to prosecute insurgents under its own laws.(The GOSL had every right to squash the LTTE – all we now need is for the LTTE to be charged for their crimes under domestic laws even murderers like Prabakaran to be posthumously charged)

In non-international conflict insurgent groups (armed non-State actors) are not entitled to the status of combatants, nor prisoners of war.

In Non-International Armed Conflict terms COMBATANT and PRISONER OF WAR does not apply. Therefore LTTE cadres cannot be called Combatants or Prisoners of War.

John Kerry purposely referred to LTTE fighters as prisoners of war just to stir mischief.

Therefore, even if TNA, Jaffna University, LTTE Tamil Diaspora, foreign paid NGOs and their local lackeys all scream demanding the release of LTTE ‘Prisoners of War’ the term cannot be used for LTTE. There is no legal basis whatsoever.

Enemy Combatant: (lawful & unlawful)

“‘Enemy combatant’ is a general category that subsumes two sub-categories: lawful and unlawful combatants

Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention.

Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention.

The term ENEMY COMBATANT is applicable to ONLY an International Armed Conflict. Therefore LTTE cannot be referred to as ENEMY COMBATANT.

Unlawful Combatant/ Illegal Combatant /belligerent

Unlawful Combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5. The Geneva Conventions do not recognize any lawful status for combatants in conflicts not involving two or more nation states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles.

Red Cross confirmed that if civilians directly engage in hostilities, they are considered unlawful” or unprivileged” combatants or belligerents.

But unlawful” combatants cannot ever be protected by the Convention on Civilians, as civilians lose any privileged status if they take up arms.(Again we ask of the UN – how many civilians were engaged in hostilities and died as a result)

Categorized terrorists like LTTE fall into unlawful combatant category. They cannot demand protection of laws of war. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

There has been a rule that those who do not openly show that they are belligerents, especially by wearing a uniform, are excluded from protective rules of the law of war. This category traditionally includes combatants who seek to blend with the civilian population (Isn’t this what LTTE committed. How can the soldier identify the civilian from a combatant in civilian uniform? (civilian by day and terrorist by night”) Such people do not deserve protection of law of war and are considered as unlawful combatants. These are better known as genocidal terrorists. LTTE were genocidal terrorists.

Prisoner of War

The status of POW only applies in international armed conflict. POWs are usually members of the armed forces of one of the parties to a conflict who fall into the hands of the adverse party. POWs cannot be prosecuted for taking a direct part in hostilities.  Their detention is not a form of punishment, but only aims to prevent further participation in the conflict. They must be released and repatriated without delay after the end of hostilities. LTTE does not qualify for this status. The term “prisoner of war” refers to a special status afforded by the Third Geneva Convention to captured enemy soldiers (“combatants”) in international armed conflicts only. Prisoners of war cannot be prosecuted for acts that are lawful under IHL (for example, for having attacked enemy forces).

Political Prisoner

Political prisoner means persons or groups who are detained for their political views. Hence, a political prisoner is someone who is imprisoned or kept under house arrest for his/her participation in political activity. Terrorism and terrorist activity does not cover political activity or views!

International humanitarian law (IHL) cannot be taken as representing the law of war – IHL is only part of a legal system applicable in war.

Therefore, the present efforts to refer to LTTE cadres as Prisoners of War must be legally refuted and publicly condemned and these hardcore unrehabiliated men should not be allowed to be released from prison. Instead the Attorney General’s Department is bound to press charges against them using domestic laws or specially created provisions and file action against them for war crimes.

If anyone has committed genocide it is no one else but the LTTE and justice must first come to the innocent people that the LTTE murdered and terrorized. UN, UNSG, UNHRC head, foreign governments and foreign payroll local lackey NGOs have no right to be seeking justice for LTTE forgetting the innocent people who are waiting for justice against the LTTE for their crimes.

A public petition must be organized demanding that LTTE must stand trial first for their war crimes over 30 years before any tribunals are introduced illegally bypassing the sovereign internal laws of Sri Lanka.

 

Shenali D Waduge

 

References:

  • ICRC Law of War Manual
  • Geneva Conventions & Treaties
  • The Law of War and Illegal Combatants by Ingrid Dette
  • Enemy Combatants – CFR publication
  • Combatants – Penn State University

3 Responses to “LTTE cadres are neither Prisoners of War (POWs) nor Political Prisoners!”

  1. Sarath W Says:

    Thank you Shenali for all your informative articles. You are a national treasure. God bless you and give you the courage to continue to keep the expats informed.

    I hope our president Mahinda and all the traitors in this corrupt government read this article. Mahinda should get some good advisers like you and kick out those parasites around him. What has the ‘so called’ professor GL has done so far to bring to attention to the international community about the issues you mentioned? Obviously Kerry, Clinton and Banki are all influenced by the LTTE propaganda and their blood money in some cases.

  2. Dilrook Says:

    Correct legal position. Thank you Shenali.

    Tamil Tigers was a terrorist group. They were justly eliminated. Its a shame some of them were released without removing this threat from the society for good.

  3. Cerberus Says:

    Shenali, You are exactly right. There was no war, only a group of terrorists who tried to topple the Govt just like the JVP did. Only difference was when the JVP uprising was put down by the Catholic UNP party no one objected since those young men were all Sinhala Buddhists. In the case of the LTTE the only difference was it was a group trained by India and some of the fighters (35% came from South India) while the others were local Tamil youth. So the West and India conveniently dubbed it as a fight between the Sinhalese and Tamils though it was not.

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