LTTE is a globally designated terrorist organization banned in Sri Lanka & in 32 nations including US, UK, EU, Canada & India. However, Sri Lanka’s Opposition & Opposition Leader are demanding the release of LTTE claiming them to be ‘political prisoners’. There is no legal basis to make such a demand & the citizens of Sri Lanka as well as the GOSL & the world must be made aware of this. While there is no legal definition for terrorists, so long as one country’s terrorist becomes another country’s freedom fighter and when countries manufacture arms for profit while also manufacturing conflicts to sell these arms and the same countries fund rebels & non-state actors against other states, we are unlikely to see any globally acceptable term for terrorists either.

LTTE are UnLawful Combatants (Illegal Combatants/Belligerents)

Sri Lanka’s conflict is termed a NON-INTERNATIONAL ARMED CONFLICT – NIAC (Internal Armed Conflict)

Features & Laws applicable to a NIAC

1. A NIAC the conflict is between a State and Non-State Actor (LTTE)
2. International Humanitarian Law, Customary IHL & Local laws are applicable. Non-State Actors are OBLIGED to abide by laws that govern IHL. IHL does not confer legal status to an armed opposition group. In short, LTTE has no legal status but abide by laws that govern IHL,
3. IHL Treaty Law permits a state’s domestic law to determine the appropriate detention & internment powers in NIAC. IHL does not deny a government’s right to suppress rebellion & charge them domestically for crimes committed. GOSL can put on trial LTTE & Prabakaran can be charged posthumously.
4. In an NIAC – Common Article 3 to the Geneva Convention (in all 4 Geneva Conventions) & Article 1 of the 1977 Additional Protocol II to the 1949 Geneva Conventions apply
5. Whether LTTE cadres are rehabilitated or not they are not immune from criminal charges in domestic court for violations of IHL. There is no reason to release or compensate them without filing charges against them & allowing the domestic courts to declare them guilty or not guilty of allegations charged.
6. NIAC does not confer title of combatants or prisoners of war status to armed non-state actors. This means LTTE are neither combatants nor prisoners of war. TNA, Jaffna University, LTTE Tamil Diaspora, NGOs on payroll of LTTE Diaspora & even John Kerry, please take note.
7. Prisoner of War (POW) status is given only to International Armed Conflicts. POWs are members of one of the parties to a conflict. POWs cannot be prosecuted for taking direct part in hostilities. These captured enemy soldiers are combatants. Their detention is not a punishment but only to prevent further participation in the conflict. POWs must be released & repatriated after the end of hostilities. Sri Lanka’s conflict was not an International Armed Conflict therefore LTTE are not POWs.
8. There are 2 types of Enemy combatants – Lawful & Unlawful Enemy Combatants.

• Enemy Combatant status is applicable to ONLY International Armed Conflicts. LTTE is thus not entitled to Enemy Combatant status.
• Lawful Combatants are entitled to prisoner of war (POW) status & protections of the Third Geneva Convention.
• UnLawful Combatants (Illegal Combatants/Belligerents) are not entitled to prisoner of war status nor entitled to receive full protections of the Third Geneva Convention. The Geneva Conventions do not recognize

9. Geneva Conventions do not afford any lawful status for unlawful combatants & a State dealing with them is legally bound ONLY to observe Article 3 of the Geneva Conventions & may ignore all other Articles. GOSL has every right to capture & detain LTTE unlawful combatants & subject them to trial & punishment for acts which render their belligerency unlawful.
10. Where civilians directly engage in hostilities – Red Cross considers them unlawful or unprivileged combatants or belligerents. This means any Tamil pretending to be ‘civilian’ but engaged in hostilities whether voluntarily or by force will be classified as a unprivileged combatant or belligerent.
11. Unlawful combatants ARE NOT protected by Conventions on Civilians as civilians that take up arms lose their privileged status as a civilian. This is why we continue to question HOW MANY CIVILIANS died without engaging in hostilities & HOW MANY LTTE unlawful combatants/belligerents dressed & fought as CIVILIANS and died. Without knowing this, no one can accuse the GOSL forces of killing civilians. Let us also not forget that LTTE had a trained armed civilian force.
12. Any armed non-state actor that does not show they are belligerents by wearing an uniform to fight are also excluded from protection under the rules of war. LTTE fought both in uniform & civilian clothing. How can a soldier identify a LTTE unlawful combatant in civilian clothing?
13. Political Prisoners are persons detained for their political views. Terrorism & Terrorist activity does not cover political activity or political views. LTTE are therefore not entitled to use title of Political Prisoners.

The Attorney General’s Department is bound to press charges against LTTE unlawful combatants/illegal combatants/belligerents under provisions available in existing domestic laws for crimes committed over 30 years.

UNHRC & everyone trying to revive LTTE are reminded that Sri Lanka has every right to put LTTE on trial for their acts of war crimes & terror over 30 years BEFORE holding any ad hoc hybrid tribunals based on falsified evidence prepared to advance other agendas.

JUSTICE for unarmed civilians : LTTE committed crimes against unarmed civilians

• The civilians of Sri Lanka must get justice for every premeditated murder targeting unarmed civilians in Sri Lanka. An armed group must engage in hostilities with a State & its military NOT unarmed civilians and evict them from their homes & habitats while confiscating their lands & property.

JUSTICE for members of Armed Forces & Police killed by LTTE

• Some 5000 wives & families of soldiers have filed cases of missing in the UNHRC & with the Presidential Commission on Missing Persons. It’s now 9 years and UNHRC has done nothing.

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