By Neville Ladduwahetty Courtesy Island

The comments presented below are in response to an edited and abbreviated version of a legal opinion by Sir Desmond de Silva on “Permissible parameters of collateral damage” carried by The Island of April 10, 2015. The article states: “Currently whether or not an attack that results in civilian deaths is legal under international humanitarian law depends on whether the attack meets the requirements of three principles: (1) Distinction; (2) Military Necessity and (3) Proportionality. A violation of international humanitarian law only occurs if there is an intentional attack directed against civilians, or if an attack is launched on a military objective with knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage”.

The comments given below are based on the following parameters:

1. The conflict in Sri Lanka was a Non-International Armed Conflict. This fact was acknowledged by the UN sponsored Panel of Experts in their Report based on a definition of an Armed Conflict established by the International Tribunal for former Yugoslavia.

2. Non-International Armed Conflicts are governed by International Humanitarian Law the custodian of which is the ICRC. Distinction; Military Necessity and Proportionality that form the core principles of International Humanitarian Law are interconnected. For instance, clear distinction between combatants and non-combatants (civilians) makes evaluating military gains in proportion to incidental loss of civilians fairly straightforward. On the other hand, when distinctions between combatants and non-combatants become blurred, the task of evaluating military gain in relation to incidental loss of civilians as a result of the measures adopted to secure that gain is not only “not easy” as admitted in the article but also highly subjective.

ICRC rules of customary law relating to each of the core principles cited above are presented below.

DISTINCTION

Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

Rule 6. Civilians are protected against attack, unless and for such time as they take a direct part in hostilities.

Rule 7. Parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.

Rule 10. Civilian objects are protected against attack, unless and for such time as they are military objectives.

PROPORTIONALITY in ATTACK

Rule 14. Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.

Rule 23. Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas.

Rule 24. Each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.

PROHIBITED ZONES

Rule 36. Directing an attack against a demilitarized zone agreed upon between the parties to the conflict is prohibited.

ACCESS TO HUMANITARIAN RELIEF

Rule 55. 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.

FUNDAMENTAL GUARANTEES

Rule 96. Taking of hostages is prohibited.

Rule 97. Use of human shields is prohibited.

ICRC RULES in the CONTEXT of SRI LANKA’S ARMED CONFLICT

There is irrefutable evidence that at the final stage of the conflict there were in addition to the regular LTTE cadres in uniform, 5 other categories present in the conflict zone.

1. Category 1: Former LTTE cadres who had discarded their distinguishable uniforms in exchange for regular civilian clothes and continued to directly participated in the hostilities.

2. Category 2: Non-LTTE cadres in civilian clothes who volunteered to directly participated in the hostilities.

3. Category 3: Non-LTTE cadres who had voluntarily rendered services that directly contributed to advance the military efforts of the LTTE thereby directly participating in the hostilities.

4. Category 4: Non-LTTE cadres who were coerced into rendering services that contributed to advance the military efforts of the LTTE.

5. Category 5. Non-combatants – civilians.

The regular LTTE cadres and categories 1 to 4 lose their right of protection under rules of ICRC because of their participation in the hostilities.

Under the circumstances presented above, establishing who was a combatant and who was a civilian is realistically not possible due to the blurring of Distinctions. However, under rules of customary International Humanitarian Law all 4 categories including regular LTTE cadres should be counted as combatants since it was not possible to distinguish those who contributed voluntarily from those who were coerced into participating in the hostilities. Since establishing who was a combatant and who was a non-combatant makes compliance with ICRC rules 1 to 10 cited above an impossible task, determining how many non-combatant (civilians) died during the final stages of the conflict is not possible with any credibility.

The inability to distinguish between combatants and civilians complicates the Principle of Proportionality. If the Principle of Proportionality depends on the ability to measure military gain anticipated against possible civilian casualties, it is realistically not possible to make an assessment of likely loss of civilian casualties involved as required by ICRC Rule 14 due to the inability to distinguish between combatant and non-combatants.

Sir Desmond’s opinion is that “the principle of proportionality is to relate means to ends”. He further states: “It is not easy to assess what attacks are disproportionate, to a large degree the answer depends on the interpretation of the circumstances prevailing at the time, the expected military advantage gained by striking a certain military target, and other context-specific considerations”(Ibid).

The material presented above clearly conveys that the issue is not the difficulty of assessing what attacks are disproportionate or interpreting circumstances, but rather, that it is simply not possible to ascertain the cost of the “means” because of the inability to distinguish combatants from non-combatants. Therefore, with all due respect to Sir Desmond how relevant is the concept of proportionality in the context of the particularities in Sri Lanka?.

VIOLATIONS of INTERNATIONAL HUMANITARIAN LAW

The essence of International Humanitarian Law is the protection of civilians during conflicts. Since the conflict in Sri Lanka was an Armed Conflict and the LTTE was a party to the conflict they were required by provisions of International Humanitarian Law to ensure the protection of the civilians in their midst. Attempts by the Sri Lankan Government to create mutually agreed No Fire Zones for the protection of the civilians was rejected by the LTTE. Consequently, the entire area became a zone of conflict. By shooting any civilians who attempted to escape, the entire conflict zone was transformed into one where combatants and non-combatants were forced to coexist with the latter as hostages becoming a protective shield for the LTTE in violation of ICRC Rules 96 and 97.

The feasibility of meeting the threshold set by the core principles of International Humanitarian Law namely, Distinction, Military necessity and Proportionality must be realistically evaluated within such a context.

The executive Summary of the UN Panel of Experts report states: “From February 2009 onwards, the LTTE started point-blank shooting of civilians who attempted to escape the conflict zone, significantly adding to the death toll in the final stages of the war. It also fired artillery in proximity to large groups of internally displaced persons (IDPs) and fired from, or stored military equipment near, IDPs or civilian installations such as hospitals”. The tactics deployed by the LTTE is a clear violation of ICRC Rules 23 and 24. Furthermore the fact that such activities were carried out behind protective bunds and barriers erected at the command of the LTTE means it is humanly not possible to ascertain the likely extent of incidental civilian injuries that would result in the event the security forces responded to the artillery fire of the LTTE. Even the deployment of aerial reconnaissance or other technologies would not help to ascertain possible extent of collateral damage due to lack of distinction between combatants and non-combatants. Under these circumstances principles of proportionality has no relevance.

The allegation of killing civilians through widespread shelling has to originate from those who survived. They would not be in a position to know whether the response to the artillery fire from the LTTE was in proportion or not. Considering the fact that 4 categories outside the regular LTTE cadres participated in the military operations means that once dead no one would be in a position to know who was a combatant and who was not, who directly participated in hostilities and who did not. Under circumstances where distinctions are blurred the tendency would be to categorize all dead who were not in uniform as a “civilians”. Such attempts to establish the number of dead “civilians” under these circumstances would lead to seriously flawed estimates.

Charges of War Crimes have been leveled for depriving humanitarian aid to those in the conflict zone. According to ICRC Rule 55, parties to a conflict are not expected to furnish humanitarian aid – only “allow and facilitate rapid and unimpeded passage of humanitarian relief”, and that too only to the civilians meaning non-combatants. Since it is not possible to establish who were non-combatant and how many of them were there, a charge of War Crimes on grounds of depriving humanitarian aid becomes baseless.

CONCLUSION

During the final stages the conflict zone consisted of a mix of 6 categories other than the security forces. They were: 1. Regular LTTE cadres in uniform; 2. Former LTTE cadres who had discarded their distinguishable uniforms in exchange for regular civilian clothes; 3. Non-LTTE cadres in civilian clothes who volunteered to be combatants; 4. Non-LTTE cadres who had voluntarily rendered services that directly contributed to advance the military efforts of the LTTE; 5. Non-LTTE cadres who were coerced into rendering services that contributed to advance the military efforts of the LTTE; 6. Non-combatants (civilians). No one however astute would be in a position to ascertain the relative proportion of each category due to the absence of distinction between combatants and non-combatants. Under such circumstances, the principle of proportionality is only a theoretical concept without practical relevance in the particular context of Sri Lanka. However, the need to respond to LTTE artillery fire was a military necessity purely on grounds of self defence, without the ability to ascertain the consequences involved due to the particularities of the situation.

Expert opinion is that the 3 core principles of International Humanitarian Law are: (1) Distinction; (2) Military Necessity; (3) Proportionality. Violation of International Humanitarian Law could be serious enough to reach the threshold of War Crimes. If as the experts say “violation of international humanitarian law only occurs if there is an intentional attack directed against civilians”, and if it is not practically possible to distinguish combatants from non-combatants (civilians), there is no basis for any inquiry, national or international, to establish that “intentional attacks were directed at civilians” in violation of International Humanitarian Laws.

The exercise of counting how many “civilians” died in the final stages of the conflict becomes meaningless due to the inability to distinguish combatants from non-combatants/civilians. Therefore, except for those in uniform, all others dead would be erroneously counted as civilians. All that could be ascertained with any degree of certainty is the Total Number (i.e., combatants plus non-combatants/civilians) who perished during the final stages of the conflict.