SUNDAY LEADER, March 3, 2015

Professor Michael Newton is Professor of law at Vanderbilt University School of Law – A Legal opinion for the Commission Inquiring into Disappearances

(This is an edited and abbreviated version of a legal opinion given to the Commission Inquiring into Disappearances by Professor Michael Newton, published in full in the Sunday Leader of 3rd March 2015. The language and the title have been modified to suit a general readership. Reducing a detailed legal opinion to a newspaper article does not do justice to the expert concerned. We do so only in order to keep the Sri Lankan public informed of the thinking of eminent international experts which may differ in significant ways from the propaganda that the public often hears from interested parties. The original legal opinion of Prof. Newton is available at the following link: (http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653).

This opinion focuses on the intentional use of artillery fire directed to respond to LTTE artillery fire emanating from within civilian areas. The LTTE refused to permit some 330,000 fellow Tamils to flee towards safer areas away from the zone of conflict, and used them as human shields to deter offensive operations by the Sri Lanka Army. The Government of Sri Lanka declared a no fire zone (NFZ) in order to protect the civilians. Aside from refusing to agree to the creation of such a safe zone, which itself constitutes prima facie evidence of its intent to use civilians as an extension of its military campaign, the LTTE embedded its heavy artillery within the NFZ and intentionally shelled Sri Lankan positions from the midst of the civilian population.

The use of the civilian population in that manner is roughly comparable to the war crime of perfidy because the LTTE sought to use the government’s compliance with the laws and customs of warfare in order to gain an unwarranted military advantage. Civilians who would otherwise have spread out and sought shelter in other regions were prevented from doing so in order to dissuade the government from attacking lawful targets. Intentional efforts to use the presence of such civilians to shield military operations constitute a war crime in its own right. This opinion therefore also addresses the law regarding the use of force against military targets when one party to the conflict has attempted to ‘insulate’ those targets through manipulation of the laws and customs of warfare.

The obligation to protect civilians within the zone of conflict is perhaps the most deeply embedded premise of the laws and customs of warfare. Participants to an armed conflict must ensure that in the conduct of military operations, constant care shall be taken to spare the civilian population. No responsible commander ever intentionally targets civilian populations during armed conflicts. There is no evidence to suggest that Sri Lankan commanders ignored this fundamental obligation. As reported by the U.S. Embassy, the Sri Lankan military expressly took “the utmost care” to avoid civilian casualties, despite the intentional warping of its operational environment by the LTTE.

This is reminiscent of the difficult operational balancing faced by NATO during operations in Kosovo, between the loss of civilian lives and the need to end the conflict lawfully. NATO repeatedly briefed the public and diplomatic communities on efforts to minimize civilian casualties. Even when confronted with the presence of human shields, the commander of air operations vehemently maintained that “every day we did our very best to limit collateral damage and limit the loss of life on the adversary’s side.” Similar statements were made by Sri Lankan officials and there is no evidence to contradict that assertion.

Distinguishing between civilians and combatants and directing military operations only against military objectives constitute customary international law that is unquestionably binding on all parties to all conflicts. Thus, assuming that the operational goal of the LTTE was to effect a military advantage against the Sri Lanka government (which seems clear from the facts provided and the assessment of the U.S. Ambassador at the time), the very act of forcibly preventing the evacuation of civilians constituted an independent war crime on the part of LTTE authorities. The Elements of Crimes for the Rome Statute are clear that any action by a perpetrator committed with the intent to take advantage of one or more civilians to impede military operations constitutes a war crime.

It is wholly inconsistent with the broader legal and moral principles to reward such intentional misconduct by requiring the attacker to ignore the changed role of the otherwise protected civilians. In other words, there is no per se prohibition against attacking targets protected by human shields. The government artillery strikes must be assessed under the duty to comply with the principle of proportionality and the obligation to take all feasible precautions to minimize loss of civilian life.

There are at least two clear points that help justify the actions of the Sri Lanka government forces. In the first place, the evidence is clear that targets were attacked in response to LTTE fire emanating from within the civilian areas. The law is clear that artillery fire into civilian areas cannot be deemed per se unlawful in its own right, but must be subjected to the principles of distinction, military necessity, and proportionality. In the Gaza conflict, there has been much international criticism directed against the Israeli Defense Forces because of the implication that widespread military strikes in the ‘urban’ areas of Gaza constituted an unlawful attack against the civilian population.

There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. The mere labelling of an area as a safe area or protected zone had no legal effect on the underlying authority of the Sri Lanka forces to attack lawful targets. While Hamas gains no higher degree of automatic protection from attack merely by the terminology attached to the ‘urban areas’ within the Gaza Strip, the legal authority of Sri Lanka to respond to attacks initiated by the LTTE was similarly unaffected by the semantic designation of the NFZ.

The problem of human shields presents military decision-makers with one of the most potent challenges to the implementation of international humanitarian law in the world today. On the one hand, civilians remain entitled to absolute protection from the effects of hostilities. On the other, when one side violates its obligations to avoid locating military objectives within or near densely populated areas, the commander in the field either cedes an unlawfully obtained military advantage to the enemy, and suffers casualties with no possible recourse, or undertakes careful strikes in response directed against military objectives. If the law is warped to permit the enemy to unlawfully exploit human shields with no possibility of recourse, then the law becomes obsolete.

No military commander in the world should accept a legal premise that military forces must suffer the lethal force of the enemy while under a legal obligation not to respond using lawful force in self-defense. Because the LTTE enemy deliberately misused civilians to protect military targets, and ignored governmental efforts to establish safe areas for civilians, the only way to ensure respect for the overall fabric of the laws and customs of warfare is to recognize the right of the Sri Lankan government to respond using lawful weapons against identifiable military targets.

Policymakers and military practitioners should be absolutely clear that the law of proportionality provides protection to non-combatant lives and property. Unless the law of proportionality is understood to apply even in the face of human shields, then war fighters may well begin simply to discount the constraints of the laws and customs of war because they have been twisted to provide an undue military advantage to one side based solely on its own unlawful actions. The laws and customs of war cannot countenance such undue military leverage to the side that wilfully ignores the obligation to protect civilians.

Modern international law remains unsettled on the precise application of the proportionality principle in the face of human shields. Killing innocent civilians may often be an integral part of the destroying of the military target and the proportionality principle thus hinges on the anticipated extent of civilian casualties as well as the degree of military advantage forecast. Involuntary human shields should not be understood to have waived or forfeited their human right to life. Yet, we can still discount the human shields’ lives during the, proportionality analysis because of the wrongful way that the enemy adversary has acted. In this context the actions of the LTTE had the effect of nullifying any advance warnings by government forces by preventing them (civilians) from leaving. Indeed, but for the LTTE use of artillery fire from civilian areas, the civilians were perfectly safe based on the government declaration of the area as protected.

The rights of involuntary human shields do not trump every countervailing consideration. If the lives of combatants have inherent value, undue constraints on the ability to respond to hostile actions could create a fatalistic sense of unavoidable death at the hands of an adversary that uses human shields to enhance their war effort. Emer de Vattel (an 18th Century legal theorist) was absolutely correct in maintaining that the law should not be fashioned or applied in order to favour oppressors, which in turn logically requires that the use of human shields should not be permitted to provide an automatic asymmetric advantage to one adversary. Vattel’s logic applies perfectly to the LTTE attempts to exploit the presence of civilians to unduly tilt the balance against the government. In other words, if the law exists to protect innocent civilians to the greatest degree possible given the realities of modern conflicts, it cannot be construed to reward the party that intentionally endangers civilians.

In my view, the Sri Lanka government military responses to illegal LTTE actions should be seen as proportionate for the following reasons – Sri Lanka strikes directed at military objectives, despite the presence of human shields should be categorized as a form of positive punishment designed to end the unwanted behaviour. The humanitarian concerns of innocent civilians ought to be equally shared by all parties to the conflict at all times. Responding to the deliberate attacks of the LTTE helped to signal to the LTTE and to the world that an advantage secured using unlawful means should not be rewarded. The resolve of the government to end the conflict even when faced with the unpalatable choice of killing or injuring civilians in the vicinity of LTTE artillery batteries likely saved many more civilian lives.

Similarly, even in circumstances when the Sri Lanka forces were able to issue effective warnings to the civilian population, the effect of those warnings was nullified by the demonstrated ability of the LTTE to prevent the flow of civilians to safety. Thus, the LTTE bears responsibility for civilian deaths because their own conduct was the causal factor in such deaths. There is no evidence in the record to suggest that the government used inherently indiscriminate weapons such as barrel bombs or Grad rockets. This prima facie evidence indicates that the proportionality principle was respected so far as the circumstances permitted. The actions of the Sri Lanka military in specifically targeting illegal enemy artillery fire as a responsive measure and reiterating the desire to grant all civilians complete safety through the NFZ complied with the principle of proportionality.

Proportionality provides no license to recklessly destroy civilian lives and property; neither should it serve as an impenetrable cipher designed to ensnare commanders attempting to perform their mission with endless allegations of criminality and interminable investigations. Theorists have long noted that insurgent propagandists make the most of government excesses, so that the burning of a few shops and homes becomes magnified into the rape of entire villages. In one of his most poignant observations from the context of the Algerian insurgency, David Galula noted that “The insurgent, having no responsibility, is free to use every trick; if necessary, he can lie, cheat, exaggerate. He is not obliged to prove, he is judged by what he promises, not by what he does.” This prescient forecast described the actions of the LTTE in the NFZ perfectly.

The reported inflation of estimated civilian casualties sought to aggrandize the wrongfulness of the military responses, to achieve a propaganda victory. In my opinion, the Sri Lanka military had every right to respond to those provocations with artillery fires targeting the LTTE positions, provided that the estimate of civilian casualties was not “clearly excessive” in relation to the anticipated military value. Military commanders are vested with the broadest possible discretion to determine the combination of means needed to accomplish the military mission subject to the provisions of the laws and customs of warfare. This includes the latitude to expressly take the lives and safety of their own personnel into account when making the proportionality analysis.

In the circumstances prevailing at the time, it is my unqualified opinion that the overarching necessity of ending the multi-generational struggle against the LTTE permitted Sri Lanka commanders to consider means of attack that accomplished the vital goal of “final victory”, even as they sought to protect their own forces.