KAMALIKA PIERIS
The Advisory Council to the Paranagama Commission has made a valuable contribution to the current war crimes” issue regarding Eelam War IV. The Advisory Council consisted of three international legal experts, Sir Desmond de Silva, QC. (UK) as Chairman, with Sir Geoffrey Nice QC. (UK) and David M. Crane (USA).
The Commission also obtained the advice of Rodney Dixon, QC. (UK/ South Africa),d Michael Newton (USA) and Major General J Holmes ,one of the most distinguished Generals of the British Army.’ It is hard to find any other Commission that has had such a wealth of advice to assist it ‘ , said Sir Desmond. Obtaining the expert opinion of these legal luminaries and the military opinion of Maj Gen Holmes was a master stroke on the part of the Rajapaksa government, observed Shamindra Ferdinando.
The Tamil separatist group in Sri Lanka made an awful fuss over the appointment of Desmond de Silva. S.V.Kirubaharan and M.A.Sumanthiran objected to the inclusion of Desmond de Silva on the grounds of conflict of interest. Desmond had been consulted by Rajapaksa earlier. Sumanthiran made his complaint to Parliament.
A group of ‘civil society members’ wrote to President Sirisena In August 2015 saying that the Bar Standards Board of the United Kingdom has decided to initiate a formal investigation into the conduct of Sir Desmond de Silva with respect to his role in Sri Lanka. The investigation had commenced on 20 July 2015. They also said that de Silva had failed to ‘win the confidence of the victims in the Sri Lankan conflict’. This group wanted Desmond de Silva removed from the Advisory Committee. Centre for Policy Alternatives and World Evangelical Alliance were among the signatories.
Journalist Chris Dharmakirti investigated the UK complaint and found that the complaint was made to the Bar Standard Board by an NGO, ‘Sri Lanka Campaign for Peace and Justice’, charging conflict of interest. This NGO was set up in 2009 after the war was won and its stated objective is a separate state. Yasmin Sooka, a member of the Darusman panel is on the advisory council of this NGO. In 2013, Yasmin Sooka and M.A. Sumanthiran spoke at a meeting organized in the House of Commons in London by the Global Tamil Forum.
There were also several newspaper and website articles about how much Sir Desmond and the other experts advising the Paranagama Commission were getting paid. At one point Sir Desmond gave a statement to’ Ceylon Today’ saying that there was a carefully orchestrated NGO campaign against him and indeed that was what it was, said Shamindra Ferdinando.
Desmond de Silva was not removed and the case against him was thrown out. The case officer dealing with the matter had said that this was a highly politicized complaint. Asked to comment on the dismissal of the allegation against him, Sir Desmond said: The complaint against me was totally baseless and had no foundation in law or fact. It was the product of those whose knowledge of the law is clearly in need of some improvement.”
Did this group of eager signatories not know whom they were dealing with? They should have. Desmond de Silva grew up in Kandy. He was the son of a leading criminal lawyer, Fred de Silva and the grandson of George E de Silva. I remember Desmond, as a teenager arguing politics with my father in our house. He was confident and assertive even then. He and his sister Helga subsequently migrated to UK, but retained an interest in Sri Lanka. Desmond was, in my view, an excellent choice to lead this Advisory Council.
These five legal experts have considerable legal experience on war crime. Sir Desmond de Silva and Professor David Crane prosecuted the former President of Liberia, Charles Taylor, had him arrested and prosecuted for war crimes, for which he is now serving 50 years in prison. De Silva and Crane were picked personally by the Secretary General of the United Nations to discharge those roles and they were both appointed at the level of an Under Secretary General of the United Nations. Sir Geoffrey Nice worked at the International Criminal Tribunal for the former Yugoslavia; led the prosecution of Slobodan Milosevic, and also worked for the International Criminal Court in the Hague. In fact, all three of them, have each prosecuted a head of state, said Sriyan de Silva.
Rodney Dixon prosecuted and defended cases before the International Criminal Tribunal for the former Yugoslavia, the Rwanda Tribunal, the Special Court for Cambodia, the War Crimes Chamber for Bosnia and Herzegovina and the Special Court for Sierra Leone. Professor Michael Newton is Professor of Law at the Vanderbilt University School of Law, USA. He has served as the Senior Adviser to the US Ambassador-at-Large for War Crimes Issues, as the US representative on the US Planning Mission for the Sierra Leone Special Criminal Court, and coordinated the US Government’s support for the prosecution of Slobodan Milosevic.
These five legal experts have provided ‘opinions’ to the Paranagama Commission on the conduct of the war. There is a detailed joint legal Opinion by Sir Desmond de Silva and Professor David Crane explaining the principles of International Law relative to some of the war crimes allegations against Sri Lanka.
Nice and Dixon searched for a legal framework within which the Government forces could have been permitted to act without transgressing the limits of IHL, and against which their actions can be measured in accordance with properly defined legal standards. Any future inquiry, whether by the UN or any other body, is strongly encouraged to draw on this legal framework for its work, and to avoid making findings based on generalized statements about the law, without rigorous analysis, they said.
The earlier reports, (they probably mean LLRC and Darusman reports) had not even considered the complex legal standards applicable to this particular conflict. As far as is known, no report to date has sought to provide a thorough analysis of the application of the law, as presently defined and understood, to the specific factual circumstances of the latter stages of the Sri Lanka – LTTE conflict, they said.
Nice and Dixon said that principles of distinction and legitimate targeting, military necessity and proportionality have to be addressed before judgment about the rights and wrongs of a military attack can be made. The law in this field is not at all settled and could be regarded as generally undefined. There is no hard and fast rule on the precise limits of acceptable civilian casualties under IHL, and each situation must be assessed on its merits.
Very careful consideration must therefore be given to the circumstances of any conflict before judgments about legality or illegality of military actions in the conflict are made publicly. The uncertainties in international law could not have made it easy for Sri Lankan field commanders. The relevant law, should not be discussed in a casual way in the press, on television, in international organizations etc.
Nice and Dixon also stated, firmly that this matter was not one which could be decided by legal opinion alone. This issue was not one that could be solved ‘on paper’ by lawyers they said. Whether what was done was lawful or unlawful could not be established by lawyers alone. It must be analyzed by independent top-level military personnel, from countries completely uninvolved in the conflict.
The legality of specific artillery strikes conducted by Sri Lanka must be judged on case by case, target by target. this is the analysis common to the assessment of any operational decisions in the context of an armed conflict, said Newton. This is an exercise those criticizing the Government of Sri Lanka have not performed. Instead of seeking independent military analysis, the discussions so far has generated an emotional response by presenting emotionally charged visual imagery and a simple explanation of the law (at best), all coupled to statistical information that is usually or always highly controversial.
Hundreds of individuals in Sri Lanka and abroad are well aware of the opinions provided by these lawyers, including the very detailed legal opinion by Sir Desmond and Professor Crane said Sriyan de Silva, because these Opinions were published by Island” newspaper and have been available on the Internet since mid March 2015.
Here are the references and links.
- The opinion by Desmond de Silva and D. M. Crane was published in ‘Island’ 3.3.2015. (http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653).
- The opinion by Nice and Dixon in ‘Island’ 10.3.2015 http://www.island.lk/index.php?page_cat=article-details&page=article- details&code_title=121064
- The opinion by Newton in Island” 28.9..2015 http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653
- Review of “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka” by Sir Geoffrey Nice & Rodney Dixon published 24 .7. 2014 Island” http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121959)
- Abridged version of this review by Nice and Dixon at Island 24.3.2015 http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121960
The legal opinions of Sir Desmond De Silva, Sir Geoffrey Nice, David Crane, Michael Newton and Rodney Dixon have not been included as annexures to the Paranagama report, only the military assessment by Major General John Holmes has been include, complained Shamindra Ferdinando. Had all the legal opinions of these experts been published as annexures to the Paranagama report that would have been the equivalent of a legal nuclear weapon against the enemies of Sri Lanka, he said. Actually, these opinions have been incorporated into the text of the Report, word for word. So they are in the report. The legal opinions given by these international experts were so damaging to the war crimes project against Sri Lanka, that the OHCHR ended up recommending that the Paranagama Commission be abolished altogether, continued Shamindra.
The legal opinions submitted by these international experts were in Sri Lanka’s favour and took the bottom out of the case that the Western powers, the Tamil separatist lobby and the Western funded NGOs in Sri Lanka and the largely Western funded OHCHR was trying to build against Sri Lanka, observed Shamindra. The Island newspaper got hold of these opinions and published them in full on the internet edition so that they have by now gone around the world.
I wish to draw attention to two ‘new’ observations made by these legal specialists.The first is about the Tamil civilians in the war area. The Sri Lanka public has always had reservations about the ‘innocence’ of Tamil civilians living amidst LTTE control in the north. They did nothing to help the Sri Lanka army or bring the war to an end. The lawyers looked at the position of the Tamil civilians who acted as hostages and human shields for the LTTE. It is extremely unlikely that 20,000 LTTE cadres could have taken control of 330,000 hostages against their will, said de Silva and Crane. A large section of these civilians would have gone voluntarily with the LTTE, to play their part in the LTTE war.
If so, then the captive Tamil civilian population is not ‘innocent’, they are voluntary human shields, said Newton. By placing themselves in the line of fire, voluntary human shields’ are actually participating in the war. They are playing a passive role, not an active one, but they are definitely a part of the war and they definitely helped to influence its outcome. Since they had directly participated in hostilities, they were not entitled to protection as civilians. They had forfeited that protected status. Further when civilians directly participate in hostilities, they become lawful targets themselves, said de Silva and Crane.
Here is the second ‘new ‘observation. These specialists say that LTTE is guilty of ‘Perfidy.’ The use of civilian human shields by LTTE in the final stages of the war is comparable to the war crime of ‘Perfidy’, said de Silva, Craneand Newton. Perfidy is defined in law as acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence”. LTTE committed perfidy when they told the civilians that they were safe from attack, and were entitled to protection under IHL, while intending to use them as human shields, between themselves and the advancing Sri Lanka Army.
LTTE has had a long history of engaging in perfidious conduct throughout the 30 year conflict with the government of LTTE added de Silva and Crane.For years, it allegedly disguised its attackers as civilians to gain access to the Sri Lanka forces and then killed them through the use of suicide bombers. In 2002, LTTE suicide bombers accounted for “over one third of the total suicide bombings in the world.”
The issue of human shields was discussed eztensively.These lawyers are all agreed that LTTE’s act of taking civilians as hostages and using them as human shields in combat areas makes the LTTE guilty of the international crime of Human Shielding. The use of human shields in war is specifically prohibited under International Humanitarian Law, (IHL) they said. International Criminal Tribunal for former Yugoslavia (ICTY) considered Human shielinding a violation of the international law of warfare. However, there has been a dramatic increase in the use of human shields today. Wars now take place inside populated areas and the weaker party uses the presence of civilians to deter military strikes from a superior force.
Human shields present military decision-makers with one of the biggest challenges when implementing IHL. Modern international law remains unsettled on the precise application of the proportionality principle in the face of human shields There is no known case law on the subject said Nice and Dixon. Case law providing guidance on the issueof human shields is relatively sparse, said de Silva and Crane.
Legal experts now increasingly feel that the party using human shields should not be allowed to get away with this tactic. It is wholly inconsistent with the broader legal and moral principles to reward such intentional misconduct, said Newton. The use of human shields should not be permitted to to profit from such a clear violation of the laws of war, said de Silva and Crane. It is wrong to punish law abiding nations for their observance of the laws of war and reward the non-state actors who disregard them.
As the nature of conflict changes, IHL needs to keep abreast with modern asymmetric warfare. The rules of war must be modified, to ensure that they do not favor those violating the law, continued de Silva and Crane. The Sri Lanka experiences could be used to rewrite the IHL rules, they said. The warning of the U.S. Ambassador that strikes should not be undertaken against clearly identified military objectives when the LTTE used the presence of civilians in the so-called NFZ to launch military strikes is both naive and unfounded in modern international law.
The lawyers were impressed by the military actions of the government. 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, said Newton. A hostage rescue operation where some 295,000 were saved, is a successful operation, said de Silva and Crane.
Nice and Dixon said that the Sri Lankan government had a responsibility to recover its proper lawful authority over the occupied territory. This was not a problem that a legitimate government could overlook, postpone indefinitely or ask others to solve it. The lawyers also observed that the war situation in the final months of the conflict are distinctive and possibly unique. No other known conflict has had the characteristics of the final phase of Eelam War IV. LTTE used hostages as human shields to delay the defeat, draw international attention and intervention, and perhaps arrange a cease-fire to allow it to re-group.
Nice and Dixon observed that various reports produced to date have blamed the Government of Sri Lanka for its armed forces unlawfully attacking civilians in the final stages of the conflict. Therefore the question is whether government forces used a lawful weapon (artillery) against lawful military objectives in a lawful manner. These five lawyers think the government did the correct thing. Our conclusion is that, subject to the full factual circumstances being established, the applicable legal standards did allow Sri Lanka Government forces to attack the LTTE and its military locations concluded Nice and Dixon.
it is my unqualified opinion, said Newton, that there was an urgent need to end the war and the commanders were entitled to use the most suitable form of attack, which was long distance artillery. No report has proposed alternatives to the military approach taken by the Government of Sri Lanka and backed up such alternatives by expert military opinion, observed Nice and Dixon.
I am satisfied that the proportionality principle was respected by the Sri Lanka army so far as the circumstances permitted, continued Newton. The Sri Lanka Army can almost certainly produce evidence that it undertook artillery strikes designed to minimize or to eliminate civilian casualties. They were experts at using suitable artillery batteries.
There is no evidence to suggest that the government used indiscriminate weapons such as barrel bombs or Grad rockets 15. They used on-scene observers whenever possible. There were stringent rules of engagement which required higher level approval for the return of artillery fire.These would have served to minimize civilian casualties. The Sri Lanka military cannot be responsible for a higher margin of error than anticipated, concluded Newton.
The evidence is clear that targets were specifically attacked in response to LTTE fire emanating from within the civilian areas. LTTE combatants fired artillery from civilian areas and from civilian installations in the No-Fire Zones. 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”, said Newton.
There is at present, no set formula or ratio of civilian losses to military advantage, available, to decide whether an attack was within the IHL or not. There is no clear rule on ‘excessive shelling’ or ‘military advantage’, said Nice and Dixon. It is a subjective evaluation, said ICRC. In every attack they must carefully weigh up the humanitarian and military interests at stake, using common sense and good faith Newton however, said that the legal standard in very clear. Strikes must have been launched knowing beforehand that they were “clearly excessive”.
It would have been very difficult for the Government forces to determine the extent to which these civilians were voluntarily serving as human shields. LTTE had conscripted civilians of all ages into the LTTE forces making it very difficult for the Government forces to differentiate between civilians and fighters, as well as between fighters and human shields said Nice and Dixon. The absence of any uniforms worn by the LTTE combatants would have made the distinctions to be drawn between civilians and fighters even harder for the Government forces, they added.
It is most unlikely that the SLA could be held liable for incidental civilian deaths due to the failure to distinguish lawful targets, said de Silva and Crane. It is not unlawful under IHL to target military objectives (including soldiers, military equipment, locations etc) when they are guarded or surrounded by involuntary civilian human shields or hostages. These human shields were legitimate military targets, said Nice and Dixon. Government forces were entitled, under IHL, to regard the deaths of civilians participating as human shields as justifiable. There is no prohibition on the use of artillery shells in urban areas either.
Assessments of the lawfulness of attacks must take account of the reaction of field commanders on the ground to the situations they faced as well, said Nice and Dixon. Those officers will often have made judgments in the heat of battle with necessarily incomplete information and intelligence. The Government’s forces should, in accordance with the rules of IHL, be afforded a margin of latitude commensurate with the military exigencies that they encountered and taking into account the widespread unlawful use of civilians by the LTTE.
No military commander in the world could be expected to stand by while its forces were attacked by the enemy, simply because there was a legal obligation not to respond. Field commanders have every right to consider the safety of their own forces. They are perfectly justified in not sending ground forces into the war zone to respond to the LTTE artillery fire.
U.S. Embassy had reported that the Sri Lankan military expressly took “the utmost care” to avoid civilian casualties. This is like the difficult balancing faced by NATO in Kosovo, said Newton. NATO had said ‘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, continued Newton.
This essay ends with some edited, combined, quotations on the LTTE made by these lawyers.
LTTE alone is fully responsible for the civilian deaths. If the LTTE did not take civilians as hostages, there would have been no civilians casualties of any significance. Only the LTTE could have known the correct figures of death or injury to civilians located in the area.
LTTE, on the verge of defeat, used civilians to avoid defeat. The war was clearly lost by then. LTTE refused civilians permission to leave, using them as hostages. LTTE shot point-blank at civilians who attempted to escape the conflict zone. This added to the death toll in the final stages of the war. The act of forcibly preventing civilians who wished to leave is a separate war crime of the LTTE.
By engaging in perfidy and human shielding, it was the LTTE that failed to take the necessary precautions to minimize civilian casualties and so it is the LTTE that was truly liable for failure to comply with the principle of distinction and thus for civilian deaths that resulted.
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 civilian casualties should be considered collateral damage and the ultimate responsibility for their loss would rest on the LTTE due to their grave breaches of IHL.” CONCLUDED)
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