By Neville Ladduwahetty Courtesy Island

Sri Lanka’s detractors claim that it should be held accountable for the violations committed during the final stages (January to May 2009) of the conflict. The issues that dominate this claim are:

1. High number of “civilians” killed during this period.

2. Indiscriminate firing into No Fire Zones (NFZs).

3. Denial of humanitarian aid to those in the NFZs by deliberately under-estimating their numbers.

Issues of distinction between “civilians” and those directly participating in hostilities, rules regarding NFZs, and denial of humanitarian aid do not arise in the case of insurgencies or internal disturbances. Such issues arise in the case of Armed Conflicts, where rules of international or non-international Rules of War apply. Therefore, the violations listed above that are alleged to have been committed by Sri Lanka during the final stages of the conflict should be investigated in relation to violations as defined by Rules of War and which are governed by International Humanitarian Law as applied to non-international Armed Conflicts, the guardian of which is the ICRC.

Criteria for categorizing a conflict as an Armed Conflict were established by the International Criminal Tribunal for the Former Yugoslavia 1995 (ICTY) during the trial of Prosecutor v. Tadic. The Tribunal stated: “…we find that an Armed Conflict exists whenever there is resort to armed force between States or protracted armed violence between government authorities and organized groups or between such groups within a State. Article 1.1 of the Additional Protocol of 1977 states: “This Protocol …shall apply to all armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations…”.

CIVILIANS IN ARMED CONFLICT

Central to the issue of International Humanitarian Law are the factors that qualify a person to be categorized as a “civilian”. Since parties to conflicts are expected to adopt strategies to militarily defeat opposing forces without INTENTIONALLY putting “civilians” in harm’s way, the issue of distinguishing civilians from formal combatants or armed groups and those “directly participating in hostilities” becomes crucial to the issue of whether violations of International Humanitarian Law were committed or not.

This issue of distinction between “civilians” and “non-civilians” has been the subject of much debate and discussion among lawyers and academics. “In 2009, after six years of discussion and research, the ICRC published the document entitled “Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL” as well as all documents produced during the proceedings of the expert process” (Asser Institute, April 2004).

The Conclusion to the ICRC document states: “For the purposes of the principle of distinction in non-international armed conflicts, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack UNLESS AND FOR SUCH TIME AS THEY TAKE A DIRECT PART IN HOSTILITIES (emphasis mine). In non-international armed conflicts, organized armed groups constitute the armed forces of a non- State party to the conflict and consist only of individuals whose continuous function is to take a direct part in hostilities”.

DIRECT PARTICIPATION of CIVILIANS

According to ASSER INSTITUTE – Center for International & European Law: “…direct participation in hostilities” means: “…to engage in a specific attack or attacks on an enemy combatant or object during a situation of armed conflict” (April, 2004). The ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) in its judgement in Prosecutor v. Krnoljeac said that: “An ‘attack’ can be defined as a course of conduct involving the commission of acts of violence” (Ibid). The Commentary on Additional Protocol II states in a similar vein that: “The notion of direct participation in hostilities implies that there is sufficient casual relationship between the act of participation and its immediate consequences” (Ibid).

Continuing the ASSER INSTITUTE report states: “…it is generally and increasingly considered that there are many activities which involve a more indirect role for civilians, where the civilian is not one or more steps (geographically or temporarily) away from the actual application of violence (which may be virtual rather than physical) and may not even consider him to be a direct participant in hostilities, and which do not actually involve attacks in the literal or kinetic sense, or where the casualty relationship is more indirect, yet which are also considered as direct participation in hostilities”.

DIRECT PARTICIPATION in SRI LANKA

In the case of Sri Lanka the “organized armed group” consisted of LTTE cadres in uniform and therefore distinguishable from the rest. There also were LTTE cadres who had shed their uniforms and continued to directly participate in the conflict. In addition, the LTTE trained over several years, civilians for combat duty. How many of them “directly participated in hostilities” during the final stages of the conflict cannot be realistically ascertained. Others would have directly participated in hostilities “away from actual application of violence”. Collectively, the above categories are thus NOT entitled to protection under provisions of International Humanitarian Law (IHL). Since no one is in a position to claim with any degree of accuracy how many directly participated in the conflict, it is NOT possible to ascertain how many of those killed were “civilians” by IHL standards, and how many were NOT entitled to protection as civilians.

The claim that several thousands of “civilians” were killed during the final stages of the conflict has been challenged by several commentators and analysts. Both claimants and those who challenge the claims premise their comments on their ability to clearly identify a “civilian” from those who directly participated in the conflict and who, as a consequence lost the right of protection entitled to a “civilian”. Since “…the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities” (ICRC) it is apparent that numbers of so called “civilians” killed must necessarily be based on conjecture and imaginings, because no one is in a position to establish how many of those who were killed directly participated in the conflict. Therefore, the charge that International Humanitarian Law was violated because several thousand “civilians” were killed during the final stages of the conflict could justifiably be rejected.

ATTACKS on NO FIRE ZONES

Protected Zones referred to as No Fire Zones or Safe Zones are created specifically to protect civilians and the wounded and sick (ICRC Rule 35). Most importantly, the recognition of such zones as protected zones requires the acceptance in writing by the parties to the conflict. In the absence of such agreement unilateral declarations of protected zones have no meaning. Since written agreements between the Government and the LTTE did NOT exist, it could be justifiably concluded that NFZs as recognized by IHL did not exist, and the entire field of military operations became a zone of the Armed Conflict in which the rules of war apply. The presence of the LTTE among the civilians in the war zone presented a serious challenge which was compounded when the LTTE used the civilians as a “human shield” and carried out military operations using heavy artillery against the Government forces; irrefutable evidences of which abound (Corrupted Journalism – Channel 4 and Sri Lanka, Engage Sri Lanka, 2013, pp. 71-101). The consequence of LTTE action was not only to deny protection to the civilians but also to severely put them in harm’s way when they resorted to engage in military operations in their presence. Therefore, No Fire Zones meeting the required standards of IHL never existed.

Similarly, Right of Protection ceased to exist when LTTE military operations were conducted from locations in close proximity to medical facilities afforded protection under ICRC rules. This is confirmed by ICRC Rule 28 which states: “Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy. Therefore, the carrying out of military operations in the vicinity of medical facilities by the LTTE resulted not only in denying due protection to these facilities, but also jeopardized the safety of the sick and wounded; acts specifically forbidden by rules of IHL.

DELIVERY OF HUMANITARIAN AID

ICRC Rule 55 states: “The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control”.

ICRS Rule 56 states: “The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in the case of imperative military necessity may their movements be temporarily restricted”.

It is evident from the Rules of IHL cited above, that the Government was ONLY required to provide access and facilitate the delivery of humanitarian aid. Therefore, the issue of determining the quantum of humanitarian aid to be delivered was NOT a responsibility of the Government of Sri Lanka and furthermore, if there were in fact shortfalls the onus should be on the providers of humanitarian aid who should be held accountable, and NOT the Government of Sri Lanka. In the particular circumstances in which the “civilians” were with the LTTE who were directly participating in the conflict, attempts by the Government to deliver humanitarian aid to the conflict zone would have amounted to aiding the LTTE. Despite the official provisions under IHL cited above, the Government did participate in providing humanitarian aid to those in the conflict zone, over and above what was legally required of it .

CONCLUSIONS

When internal conflicts involving democratically elected Governments and non-state actors as in Sri Lanka are NOT categorized as Armed Conflicts, Governments are expected to meet higher standards than non-state actors. It is ONLY by categorizing a conflict as an Armed Conflict that parties to a conflict could be equally held accountable for violations of International Humanitarian Law because according to ICRC: “IHL binds all actors to an armed conflict in international conflicts it must be observed by the states involved, whereas in internal conflicts it binds the government, as well as the groups fighting against it…”. As long as the Government delays acknowledging the conflict in Sri Lanka as an Armed Conflict Sri Lanka will continue to be held accountable for alleged IHL violations that were precipitated by LTTE actions.

As demonstrated above, whatever violations of International Humanitarian Law that were committed during the final stages of the conflict were caused by LTTE actions for which the LTTE has to be held responsible and accountable. Furthermore, the non-existence of No Fire Zones as recognized by IHL and exoneration from being responsible for delivery of humanitarian aid entitles the Government to reject the other claims of the detractors. The charge that thousands of “civilians” were killed due to Government action should be rejected because no one is in a position to distinguish between “civilians” and those who directly participated in hostilities. Attempting to establish the numbers of civilian deaths is a futile and inexact exercise.
It is imperative, therefore, that the Government re-visit the positions taken and present the conflict as an Armed Conflict at the forthcoming sessions in Geneva, fortified in the knowledge that the UN Panel of Experts also categorized the conflict as an Armed Conflict on the basis of the ruling by the International Criminal Tribunal for former Yugoslavia. Not to do so is to forego a once in a lifetime opportunity to credibly resolve the issue of accountability that has dogged Sri Lanka since May 2009, when the Armed Conflict was brought to a close.