Posted on June 2nd, 2021


 Eelam war IV, which started in June 2006, was the LTTE‘s ‘final war’ to establish   Eelam, using conventional warfare across large swathes of land, intermixed with guerilla methods.  It was a high intensity, military confrontation across a vast battlefield. The warring was almost continuous, with few short pauses.

Eelam war IV was a Civil War, a protracted armed confrontation between the state and a   non-state army, sustained by a secessionist movement.  It was not Terrorism” nor was it a War of liberation”.  The intention was to partition the country, creating the littoral state of Eelam, leaving the rest land locked.

This war did not come as a surprise. It had been brewing for some time. Tamil politicians   launched a new political party in December 1949, Illankai Tamil Arasu Kachchi (ITAK).  The word ‘arasu’ could mean kingdom/government/administration/state. A.J Wilson   made it clear that their ‘Tamil arasu”   meant an ‘autonomous Tamil state’ and   that ‘Illankai Tamil Arasu Kadchi ‘meant ‘Ceylon Tamil State Party”.

Modern International law uses the term Non-international armed conflict” (NIAC) instead of ‘Civil War’.   In a Non-international armed conflict” the country’s Security Forces should be confronted within its own territory by an organized armed group operating under an effective command structure, having the capacity to carry out sustained and concerted military operations and exercising control over a part of country.  The confrontation must reach a high level of intensity.

In addition, the non state group must have access to weapons, to recruits and to military training. It must have the ability to plan and carry out military operations, as well as the ability to negotiate agreements, including cease-fire or peace accords.

There are several laws which applied to non-international armed conflicts. Firstly, Common Article 3 of the Geneva Conventions of 1949, secondly, Additional Protocol II of 1977,  and lastly, the Rome Statue of the International Criminal Court, (1998, 2002) which includes the items held in Common Article 3.

Two sets of Human Rights laws have also been thrown into the arena, namely, ‘International Human Rights Law’ (IHRL) and ‘International Humanitarian Law’ (IHL). The International Committee of the Red Cross is the custodian of IHL. IHRL   is for peace time violations   of human rights while IHL is for those engaged in war. Analysts point out that Eelam war must be judged in terms of International Humanitarian Law.  However, UNHRC has included both IHRL and IHL in its 2021 Resolution on Sri Lanka.

 Sri Lanka has signed Common Article 3 but has not signed Additional Protocol II or the Rome Statute. The most important of these for Sri Lanka was Additional Protocol II, 1977 to the Geneva conventions.

 This is the only regulation that is of any use to a government engaged in civil war, said analysts. This Protocol supports the right of governments to preserve national unity, protect territory, and maintain law and order in a civil war situation. This Protocol prohibits others from meddling in the war or interfering with any actions the government chooses to take on the matter. The Protocol said,

1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.

2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs. 

3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.

As of July 2020, the Protocol had been ratified by 169 countries,  however, Bhutan, India, Indonesia, Iran, Kiribati, Malaysia, Marshall Islands, Myanmar, Nepal, Pakistan, Papua New Guinea, Singapore, Sri Lanka, Thailand, Tuvalu have not signed the Protocol.

Sri Lanka has not signed this Protocol and therefore cannot make use of these valuable clauses.  When asked why Sri Lanka did not sign, officials have no answer, said Nihal Jayawickrema.  Observers ask, was it deliberate? The present trumped up ‘war crimes’ charges are due to this omission.

The conflict in Sri Lanka is a Non –international armed conflict as defined by the ICC for Yugoslavia. However, the government of Sri Lanka has not recognized the Eelam war as a Non international armed conflict, observed Laksiri Mendis . Laksiri has done legislative drafting in many Commonwealth countries.

The government of Sri Lanka has failed  to say at the UNHRC sessions,  in Geneva,  that the Eelam  War was a non-international armed conflict,  and that it comes under Additional Protocol II of 1977. This  is a serious shortcoming on the part of successive governments, observed Neville Ladduwahetty.  

Successive Sri Lanka  governments have been reluctant to categorize the conflict as an ‘armed conflict’ said Ladduwahetty. This is despite the fact that the  Government of Sri Lanka signed a Ceasefire Agreement   with the LTTE which gave the LTTE control over territory which was then identified as ‘LTTE controlled areas’ . The ICRC in Sri Lanka  joined in this, and never referred to LTTE fighters as ‘combatants’. The land held by the LTTE  was referred to as ‘uncleared areas’ added analysts.

The last phase of the war should have been classified by Sri Lanka as an Armed Conflict, said analysts.    All high level commentators, such as Desmond de Silva, said that   this phase was  an Armed Conflict. An Armed Conflict  is protected from HR charges  because it comes under the rules of war.

 Instead of  using the term Armed Conflict,  the Mahinda Rajapaksa government called   the  last phase of Eelam War IV a Humanitarian mission”.  The last word they should have used was ‘Humanitarian’.  When asked why they did this, Gotabaya Rajapaksa  said ‘it was just a name we used. It had nothing to do with Human Rights. We were  rescuing people as well as fighting.    Of course it was not ‘just a name we used.’ It has been deliberately introduced by someone  and thoughtlessly accepted by  those in charge. ( Continued)

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