The appeal made to the UK High Court by Major Gen Priyanka Fernando, the former Minister Counsellor (Defence) of the Sri Lanka High Commission against the judgement of the Westminster Magistrates’ Court on him was allowed today, 19 March 2021. In the judgement handed down by the High Court, it decided in favour of Major Gen Fernando and quashed his conviction by the Westminster Magistrates’ Court on 6 December 2019 and acquitted him. The defendants, who are pro-LTTE demonstrators who staged protests in front of the Sri Lanka High Commission in London on Sri Lanka’s 70th Independence Day on 4 February 2018 are ordered to pay costs to Major Gen Fernando.
The High Court compellingly rejected the arguments of the defendants and accepting the arguments on behalf of Major Gen Fernando, upheld the traditional views on diplomatic immunity as contained in the Vienna Convention on Diplomatic Relations of 1961 to which both Sri Lanka and the UK are States Parties. The interpretation of the treaty should not be an exercise in ‘pedantic literalism’. It should be read in the context of its ‘object and purpose’” said the court in its judgement. The Court said that the efficacy of the Vienna Convention depends, even more than most treaties do, on its reciprocal operation. Article 47.2 of the Vienna Convention authorises any receiving state to restrict the application of a provision to the diplomatic agents of a sending state if that state gives a restrictive application of that provision as applied to the receiving state’s own mission.
The UK High Court also draws the danger of the threat to the efficient performance of diplomatic functions which arises from the risk of trumped up or baseless allegations and unsatisfactory tribunals. It opines that from the United Kingdom’s point of view, a significant purpose of conferring diplomatic immunity of foreign diplomatic personnel in Britain is to ensure that British diplomatic personnel enjoy corresponding immunities elsewhere.
The UK High Court further says that the doctrine of diplomatic immunity affords protection to all diplomatic staff in the UK in exchange for the equivalent protection afforded to the UK’s diplomatic staff abroad. The grant of immunity does not depend on ministerial fiat, rather it exists by virtue of statute and the Vienna Convention on Diplomatic Relations.
The High Court judges also decided that the Chief Magistrate of the Westminster Magistrates’ Court was not right in her determination that Major Gen Fernando was not covered by residual immunity when he faced trial at the Westminster Magistrates’ Court.
NAGOYA — A group supporting foreign workers and refugees petitioned the immigration bureau in this central Japan city on March 18 to reveal the truth behind the death of a Sri Lankan woman in her 30s detained at the facility.
Members of the group Start, which supported the woman, gathered to submit their calls and to protest outside the Nagoya Regional Immigration Services Bureau in the city’s Minato Ward. They chanted phrases including, “Why didn’t you save her?” and, “We want you to change.”
Their petition reads, “The incident was caused by neglecting medical care. Clarify who has responsibility for management, and release an apology and the truth, as soon as possible. To stop this from happening again, we ask you to change your policies from one of single-minded deportations to one that considers the circumstances of the individuals involved and offers them relief.”
Bureau officials reportedly said, “We are currently under investigation by the ministry (of justice), and therefore cannot respond.”
At the protest, around 10 supporters and others observed a minute’s silence. Yasunori Matsui, 66, an adviser to Start, said, “We had filed requests for her to be hospitalized and put on an IV drip, but the bureau just kept saying it was ‘fine.’ I’m forced to say they left her to die. We will continue to protest, and push the bureau to improve its response.” Supporters and others could be heard saying slogans in unison, including, “Totally unforgivable,” and, “Reveal the truth.”
In response to requests from her supporters, an altar for flower donations from people connected to the deceased woman was set up inside the facility on March 16. A Nigerian woman who came from Tokyo to the bureau said with tears rising: “Foreigners and Japanese people are just the same, so why wasn’t she helped?”
The deceased was out in detention at the bureau in August 2020 for not having residency status, but in January 2021 her health took a sudden turn, and she began vomiting repeatedly. The support group asked the bureau to admit her to hospital, among other measures, but officials did not accept their requests.
The woman was found in her cell without a pulse on March 6, and confirmed dead at the hospital she was dispatched to by ambulance. The Ministry of Justice is proceeding with an investigation, which includes listening to accounts from the support group.
(Japanese original by Shinichiro Kawase, Nagoya News Center)
Sri Lanka today claimed that allegations raised against the country at the UN Human Rights Council (UNHRC) in Geneva are politically biased
Foreign Minister Dinesh Gunawardena said that the allegations raised by several countries including the UK, Canada and Germany, of human rights abuses in Sri Lank, is an action taken for political purposes, by concealing the truth.
A vote is scheduled to be held on 22 March 2021 on the allegations made by several countries against Sri Lanka, at the 46th session of the UN Human Rights Council (UNHRC) in Geneva. Responding to a question raised by journalists at the Foreign Ministry in this regard today, the Minister pointed out that it is not the responsibility of an internationally recognized Human Rights Council to accuse or take a vote on the internal affairs of our country.
Over the years, various allegations have been levelled against our country, alleging human rights abuses. We have been cautious about this. After our government was elected, a Presidential Commission has been appointed to investigate human rights allegations. Funds have been allocated from the budget to activate the Office on Missing Persons. While the present government was taking a number of such positive steps, it was not fair to ignore it and accuse us repeatedly in various manners at the Human Rights Council in Geneva” the Minister said.
Minister Gunawardena.said that the Government was attempting to defeat the false accusations levelled against th ecountry.
He also said that several friendly countries have joined hands with Sri Lanka and he hopes India will also support the island. (Easwaran Rutnam)
The Director General of Health Services today confirmed six more COVID-19 related deaths, increasing the death toll due to the virus in Sri Lanka to 544.
01. A 70-year-old male from Polgahawela who passed away at the Kandy General Hospital on march 18 due to Covid-19 pneumonia.
02. A 79-year-old woman from Suduhumpola who passed away on March 17 while being treated at the Kandy General Hospital. The cause of death I s mentioned as heart disease and Covid-19 pneumonia.
03. An 83-year-old woman from Wattala who had passed away at home on March 19 due to Covid-19 related complications.
04. A 96-year-old woman from Pitakotte who had passed away at home on March 14 due to Covid-19 related complications.
05. A 72-year-old male from Ganemulla who had passed away at home on February 18 due to Covid-19 related complications, high blood sugar and high blood pressure.
06. A 73-eyar-old woman from Shilawathura who had passed away at home on March 10 due to Covid-19 related complications.
The Epidemiology Unit of the Health Ministry says another 144 persons have tested positive for the novel coronavirus increasing the today’s tally of new cases to 298.
Earlier today, it was reported that 154 close contacts of patients from the Peliyagoda cluster had tested positive for the virus.
This brings the tally of confirmed cases of Covid-19 in the country thus far to 89,497 while the total number of recoveries has reached 86,227.
The number of infected patients currently under medical care is 2,732 while the death toll due to the virus stands at 538.
State Intelligence Service (SIS) chief Maj. Gen. Suresh Sallay has lodged a complaint with the CID stating that MP Nalin Bandara has made baseless and false statements regarding him.
The CID are investigating into the complaint which was submitted in writing yesterday (18), Police spokesman DIG Ajith Rohana said, adding that the SIS chief recorded a statement with the CID today.
In the complaint, the SIS chief says that MP Nalin Bandara had made baseless allegations against him during a press conference on March 17 and that this statement could pose a threat to his life as well as his family members.
The Police Spokesman said that a team from the Criminal Investigations Department (CID) led by an Assistant Superintendent of Police (ASP) is already investigating this complaint.
The United States Magazine and Democratic Review (May 1851)
In 1851, An American Journal
(The United States Magazine and Democratic Review), at a time (1851) when they
I.e. USA, did not have imperial ambitions that dovetailed with that of British
imperialism, highlighted and exposed the genocidal crimes committed on
the Sinhalese people in British occupied Ceylon, under the administration
of the then Governor Lord Torrington.
In the concluding phase of
the Journal article having the caption ‘ The English in Ceylon” ( May 1851)
, the author of the article says as follows:
” The history of Lord
Torringtons administration in Ceylon affords an epitome of English rule,
wherever throughout the world, by force, or fraud, or violence, she has
succeeded in planting her guilty flag. The horrors perpetrated during 1848 in
the island-gem of the East, are the counterpart of those of which, from time to
time, during a period of seven centuries, the green isle of the West has been
the victim.
We have reproduced this Ceylon
tragedy, because it contains a moral upon which it behooves the Democracy of
America, at the present moment, seriously to reflect. The flag which sanctioned
the massacres of the Cingalese, and has witnessed the devastation of Celtic
Ireland; the flag which, usurping every advantageous commercial and political
position throughout the globe, has been the harbinger everywhere of desolation
and death this flag, which in two wars, our fathers levelled in the dust, now
flaunts us in the face on the southern portion of this our continent ;
out-spreads its crimson folds over republican soil, insulting our manhood,
blighting our commercial prospects, and dimming the lustre of the stars and
stripes. Shall Central America share the fate of Ceylon ? Shall our sister
Republics on this continent, whose independence, hy every principle of honor,
of interest, and of duty, we are bound to protect, be consigned to the tender
mercies of a Torrington ? Shall the island of Ruatan become the Ceylon of the
Western Hemisphere, and the Isthmus of Central America be made, on a smaller
scale, a second Hindostan ? We submit these questions, in all earnestness, to
the consideration of the Democracy of America, confident that they will be
answered in a manner worthy of those, whose pride it is, that they inherit the
principles of a Jefferson, a Madison, a Monroe, a Jackson and a Polk”.
The United States
Magazine and Democratic Review (May 1851)
BRITISH policy, or that system
which the British Government has for ages systematically pursued, and by which
it has acquired its vast colonial empire, is hut very imperfectly understood by
the mass of the American people. Deriving our knowledge of English affairs, for
the most part, from English sources, we are too apt to he dazzled by the
contemplation of an empire upon which the sun never sets, and to ascribe to
Divine destiny, that which, in reality, is the result of a system,
more fiendish, and more detestable, because more extending and more extended in
its operation, than that of Machiavelli. The conquests of old Rome were
attended, at least, with glory; and, in modern times, those of our own country
were laden with fruits, not alone of glory and renown to the conquerors, but
better far, of freedom, of happiness, and of civilization to the conquered.
England alone, of all the nations, ancient or modern, is the only one whose
sword, while entwined with wreaths of cypress for the vanquished, has failed to
reap one pure laurel to deck the victor’s brow. Survey her colonial empire ;
glance your eye athwart those boundless plains made fruitful by the young
embraces of the god of day and point, if you can, to one rood of territory,
whose acquisition was not conceived in selfishness and iniquity, and
consummated in treachery, in perfidy and fraud. As the subject, however, of
England’s colonial empire is one which could not properly be treated within the
limits of a review article, we shall confine ourselves, for the present, to a
condensed expose of certain occurrences of which the island of
Ceylon has recently been the theatre and which have startled the propriety even
of that most fastidious assembly, the British House of Commons.
Placed at the western entrance
of the Bay of Bengal, Ceylon is separated by a narrow strait from the mainland
of Hindostan. In size, it is nearly as large as Ireland; and it possesses a
population of about a million and a half of souls, made up of various tribes of
native Cingalese, Malabars, Mahometans, Coolies, Dutch and English, and their
mongrel descendants. Once the abode of civilization, as is evidenced by the
ruins of ancient cities, canals, bridges, aqueducts, &c., in which the
interior of the island abounds, its geographical position, and natural
advantages of soil and climate, should make of Ceylon, in our day, the chief
mart of Eastern commerce. That it does not occupy this position, can only be
attributed to that system, as short-sighted as vicious, by which the island has,
for half a century, been governed, for the immediate profit of the mother
country. In 1796, Ceylon was taken possession of by the English, and the Dutch
expelled from its shores. From that period, down to so late as 1819, the native
chiefs boldly resisted the usurped authority of the invaders, and were finally
reduced to subjection only after a desperate struggle, and by such agencies as
England alone is skilled to employ for the accomplishment of her darling
objects. Since 1819, the government of the colony has been administered by a
Governor, appointed by the Colonial Secretary, for the time being, at home,
assisted by a council composed entirely of European civil and military
servants, who are described by MeCulloch as being, from their tenure of office,
totally subservient to the will of the Governor. The religion of the island is
that of Buddha, as established by the following clause of the treaty of the 2nd
of March, 1815, between the British government and the native chiefs The
religion of Buddha, professed by the chiefs and inhabitants of these provinces,
is declared inviolable; and its rites, ministers and places of worship, are to
be maintained and protected. The period embraced between the years 1819 and
1846, was not remarkable for any extraordinary occurrences in Ceylon; suffice
it to say, that the history of the island during this interval, is made up of
patient suffering and distress on the part of the natives, and of heartless
tyranny and exaction on the part of their foreign rulers.
In 1846. Lord Torrington was
appointed by Earl Grey, Whig Colonial Secretary,to the lucrative office of
Governor of Ceylon. Arrived at the seat of government, his lordship is
surprised to find the financial affairs of the colony in an embarrassed
condition; and, accordingly, in virtue of the wide discretionary powers vested
in him, proceeds to meet the difficulty off-hand by the imposition of severe
new taxes of his own invention. These taxes, though decidedly original in
their way, were yet of that character, that any one at all acquainted with the
colony might have foreseen that they could never by any possibility be
collected. The most obnoxious of them were, a road-tax, a shop-tax, a gun-tax,
and a dog-tax. The first ordained, that every male resident in the island,
between the ages of fifteen and fifty-five, should either labor for six days in
each year on the public roads, or pay three shillings sterling, in lieu of such
personal service. The second enacted, that every occupant of a shop, the rental
of which amounted to £ 5, should take out a yearly license on a £ 1 stamp. The
third directed, that on a certain day in each year, the Cingalese should repair
to the chief towns, armed, and apply for licenses for their fire-arms, at a
cost of 2s. 6d. for each gun. The fourth, imposed a tax of ir. on every dog
kept in the island, and sentenced to death all puppies above three months old
whose proprietors could not produce the protecting shilling. Now, it is
necessary to understand that in Ceylon, as in all countries subject to the
British flag, the bulk of the population are extremely poor; hence, the payment
of these taxes was to them an impossibility. Those, moreover, upon dogs and
guns, were imposed upon what were to them absolute necessaries of life.
Besides, the road-tax was a direct outrage upon that religion which, as we have
shown above, the English had bound themselves by treaty to protect,
since the native priests are restricted by it, both from labor and from
touching money. The promulgation of the decree announcing these new taxes
naturally created great excitement throughout the island. Petitions, memorials,
remonstrances, from all classes of the inhabitants, were laid before the
Governor. They were disregarded. By any means, Lord Torrington was
resolved to carry out his object. The assembling of the people in large masses
was encouraged by the government agents, in the hopes that a collision between
them and the British troops would occur. It did occur. A British soldier is
slightly wounded, whether by any of the native inhabitants or not, does not
appear from the evidence taken before the Parliamentary Committee, which is the
only authority which we shall quote. But the collision, so anxiously sought for
by Lord Torrington, had taken place; and martial law is at once proclaimed.
Proclamations are issued, confiscating the lands and properties of all those
who, terrified at the atrocities they had before seen committed under martial
law, had fled into the jungles. Courts martial, composed of subaltern officers,
ignorant of the language of the country, tried, convicted, sentenced, and put
to instant death, hundreds of the innocent inhabitants; and this, not only in
violation of all law, human and divine, but in utter contempt of the 7th
article of the treaty, to which we have already referred, which stipulates that
No sentence of death can be carried into execution against any inhabitant,
except by the written warrant of the British Governor or Lieutenant Governor
for the time being. But what cares Lord Torrington for treaties, or for the
laws of humanity ? Must he not govern ? And what means
government in the vocabulary of a British aristocrat, but confiscation and
murder ?
Much has been said of the
magnanimity of the British soldier. Let the following letters, addressed by the
commandant of Kandy, to the presiding officer of one of the courts martial,
hounding him on in his bloody career, serve as a specimen
My dear Watson:
You are getting on swimmingly.
Impress on the court that there is no necessity for taking down the evidence
in detail; so they are satisfied with the guilt or innocence of the
individual, that is sufficient for them to find and sentence. This
is the law and the mode.
Yours, T. A. DROUGHT, Col.
Commanding.
August 16, 1848.
Well were these magnanimous
instructions obeyed. For a period of nigh three months, confiscations,
burnings, massacres, were the order of the day in Ceylon: and this, be it
remembered, notwithstanding that subsequent to the imposition of martial law,
not a single offense was pretended ever to have been committed by the
inhabitants. Amongst those who suffered during this period, was one whose
execution is thus mentioned by Lord Torrington in a dispatch to Earl
Gray___” An influential priest who was convicted of administering treasonable
oaths, was shot at Kandy in full robes. This priests trial took
place at Kandy, and he was arraigned–
First, For
having directly or indirectly held correspondence with rebels, and Cur not
giving all the information in his power which might lead to the apprehension of
a proclaimed rebel, Kaddapolla Unanse, professing to know his place of
concealment on or about 17th August, 1848. Second, For
administering, or conniving at the administration (!)
of a treasonable oath to one Kerr Bande, on or about the 17th August, 1848.
On these absurd and
unintelligible charges the poor Buddhist priest was dragged before a military
tribunal; tried by military judges, not one of whom understood the language in
which the evidence against him was given; convicted and shot! Several attorneys
who were present at the trial; and who did understand the language,
felt satisfied that the witnesses for the prosecution had perjured themselves
for the purpose of currying favor with the Governor, and that the priest was
innocent. Under this impression they besought the Governor to postpone the
execution. In vain Lord Torringtons answer was By G, sir, if all the lawyers in
Ceylon said that the priest was innocent, he should be shot tomorrow morning.
And shot he was. More, Earl Grey, in answer to Lord Torringtons dispatch
announcing the execution, pronounced the death of the Buddhist priest to
be highly satisfactory! Again, in a subsequent dispatch,
Earl Grey, in the name of the Queen, complimented Lord Torrington, and declared
his complete approval of his decision, promptitude, and judgment. Thus
sustained by the Home Government, and having triumphed over
the refractory inhabitants of Ceylon, surely Lord
Torrington must feel proud and happy! But no: after all the massacres,
pillages, burnings and confiscations after he had made a desert, and called it
peace.
Lord Torrington discovered that
his severe taxes were inapplicable to the island, and could not be collected.
They were accordingly every one repealed!
These proceedings had now begun
to attract popular attention in England, and in the session of 1849, a
parliamentary committee was appointed to investigate then-i. Upon the evidence
taken before that committee, we have based our statements. Their authenticity,
therefore, cannot be impeached. And this is England. England of the World’s
Fair, and the Peace Congress ; England of George Thompson, and the Abolition
Societies! What matters it, that a few men, Cobden and Bright, and their
associates, should denounce these atrocities, and that the London Quarterly
Review should stigmatise them as a disgrace to the English name they have been
sanctioned by the British government, and are the consequences of the policy by
which, in its foreign and colonial relations, that government has invariably
been directed. The history of Lord Torringtons administration in Ceylon affords
an epitome of English rule, wherever throughout the world, by force, or fraud,
or violence, she has succeeded in planting her guilty flag. The horrors perpetrated
during 1848 in the island-gem of the East, are the counterpart of those of
which, from time to time, during a period of seven centuries, the green isle of
the West has been the victim.
We have reproduced this Ceylon
tragedy, because it contains a moral upon which it behooves the Democracy of
America, at the present moment, seriously to reflect. The flag which sanctioned
the massacres of the Cingalese, and has witnessed the devastation of Celtic
Ireland; the flag which, usurping every advantageous commercial and political
position throughout the globe, has been the harbinger everywhere of desolation
and death this flag, which in two wars, our fathers levelled in the dust, now
flaunts us in the face on the southern portion of this our continent ; out-spreads
its crimson folds over republican soil, insulting our manhood, blighting our
commercial prospects, and dimming the lustre of the stars and stripes. Shall
Central America share the fate of Ceylon ? Shall our sister Republics on this
continent, whose independence, hy every principle of honor, of interest, and of
duty, we are bound to protect, be consigned to the tender mercies of a
Torrington ? Shall the island of Ruatan become the Ceylon of the Western
Hemisphere, and the Isthmus of Central America be made, on a smaller scale, a
second Hindostan ? We submit these questions, in all earnestness, to the
consideration of the Democracy of America, confident that they will be answered
in a manner worthy of those, xv hose pride it is, that they inherit the principles
of a Jefferson, a Madison, a Monroe, a Jackson and a Polk.
Courtesy:
The United States Magazine and Democratic Review (1851)
Colombo, March 18 (The Citizen): In his recent telephone conversation with the Sri Lankan President Gotabaya Rajapakasa, Indian Prime Minister Narendra Modi has assured that India will not do any injustice to Sri Lanka,” says the Sri Lankan Foreign Secretary Adm.Prof.Jayanath Colombage.
He denied a report in the State-owned Daily News which quoted him as saying that India had assured that it would support” Sri Lanka, and protect the country’s sovereignty during the UNHRC sessions.”
The paper further quoted the Foreign Secretary as saying: Being the super power they (India) are, Sri Lanka greatly appreciates their position.” The Foreign Secretary was speaking at the Third Digital Dialogue hosted by the Media Center for National Development, the paper said.
Clarifying the position, Colombage said that in his recent telephone conversation with the Sri Lankan President Gotabaya Rajapakasa, Indian Prime Minister Narendra Modi, the latter assured that India will not do any injustice to Sri Lanka.”
India’s support is critical for Sri Lanka as the line-up against it in the 47-member UN Human Rights Council (UNHRC) on the resolution on human rights violation is formidable. The hostile resolution calling for intervention and sanctions is likely to be carried.
While China, Pakistan and Russia are firm supporters of Sri Lanka, and the Sri Lankan Foreign Minister Dinesh Gunawardena claims that the Asian bloc will support his country, it appears that there is no such firm commitment on their part.
India has taken a stand that does not back Sri Lanka but is not hostile either. Its Representative, Indra Mani Pandey ,raised the issue of power devolution to the provinces under the 13th.Amendment and called for its implementation if there is to be ethnic reconciliation and national unity in Sri Lanka.
However, considering the precarious position Sri Lanka will be in, when the noose tightens in Geneva and the resolution comes for a vote, Sri Lankan opinion makers earnestly hope India would commit itself in its favor and lobby for it among the Afro-Asian countries even if only in the eleventh hour.
Conversations with Sri Lankans reveal that they would like India to uphold Prime Minister Narendra Modi’s Neighborhood First” policy and come to Lanka’s aid when it needs it most. They recall that India has time and again reiterated its historical, cultural and religious ties with Sri Lanka and its commitment to the maintenance of its sovereignty and say that this is the time to demonstrate it.
It is also pointed out that Sri Lanka has cooperated with India on maritime security by becoming part of the India-inspired Indian Ocean Maritime Security architecture and setting up a Secretariat for it in Colombo.
Sri Lanka has offered the West Container Terminal project in Colombo port in lieu of the East Terminal. ECT could not be given to India or any foreign entity because of nationalist opposition. Sri Lanka suspended the solar power projects in the North which were earlier given to a Chinese company. Sri Lanka has also indicated that it will hold provincial council elections soon.
But politically aware Sri Lankans also realize that India has its concerns and grievances vis-à-vis Sri Lanka.
India has a long-standing commitment to the Tamil minority in the island, which has huge support among the Tamils of Tamil Nadu. In the past, India had had to intervene in Sri Lanka substantially because of domestic pressure from Tamil Nadu. And Tamil Nadu is going for State Assembly elections in April in which Narendra Modi’s Bharatiya Janata Party (BJP) is contesting as an ally of the ruling All Anna Dravida Munetra Kazhagam (AIADMK).
If the BJP gets a decent number of seats in the Assembly it will be a huge step forward for it as it will mean that Tamil Nadu is coming under the sway of Hindu nationalism, the BJP’s stock-in-trade.
Secondly, devolution of power to elected Provincial Councils in Sri Lanka is India’s brainchild. India is interested in its survival. The system stems from the July 1987 India-Sri Lanka Accord. Despite stiff opposition, the 13 th.Amendment (13A) creating elected provincial councils with a measure of autonomy, was passed by the Lankan parliament and has been in operation till recently. The councils have not had elections to enable the government to change the election law and go for a fresh delimitation of constituencies.
However the utterances of some key Lankan Ministers calling for the repeal of the 13A has raised an alarm in New Delhi. The Gotabaya Rajapaksa government is committed to bringing about a new constitution, where provincial autonomy might be pruned in favor of greater centralization, it is feared.
It is based on these apprehensions that Prime Minister Modi has repeatedly called for a full implementation of the 13A – which was reiterated by the Indian envoy in UNHRC.
Lankan President Gotabaya Rajapaksa has now said that Provincial Council elections will be held in June. But the legal decks have to be cleared first. The government has to decide whether it will go by the old electoral law and old delimitation of constituencies or have a new legal framework. According to reports efforts are being made to speed up the legal deck-clearing.
India has still not gotten over the disappointment over its removal from the project to build the East Container Terminal in Colombo port after signing an MOU on it in 2019. Piqued by this, the Indian government did not take the alternative offer of the West Container Terminal leaving it to be negotiated by the Adanis, a private Indian port operator company.
However, despite irritants and hiccups, India and Sri Lanka continue to engage each other in various fields. India was the principal foreign participant in the event related to the 70 th. Anniversary of the Sri Lankan Air Force. It sent its indigenous fighter aircraft Tejas and its aerobatic teams to give stunning displays for three days. India is also the only supplier of COVID-19 vaccines to date.
Recently, it gave LKR 22 million worth of teaching equipment to the Sri Lanka Maritime Naval Academy at Trincomalee and inaugurated the construction of 114 housing units for Catholic pilgrims who come to the historic Madhu Church in North Sri Lanka.
Director-General of Health Services has issued revised COVID-19 quarantine guidelines for all incoming passengers and tourists arriving in Sri Lanka from overseas.
The guidelines noted that they should receive the approval to enter the country from the Foreign Affairs Ministry and other relevant authorities or from Sri Lanka Tourism, respectively.
All travelers should submit the filled Health Declaration Form to the staff of Airport Health Office at Health Counters at the arriving airport, it read further.
Key points in the guidelines for Sri Lankan citizens/dual citizens and foreign nationals:
• For passengers who have received the recommended doses of COVID-19 vaccine:
– They should arrive in the country after two weeks of completion of COVID-19 vaccination.
– Upon arrival, they should produce the original copy of the vaccination certificate together with a certified copy of English language translation if the certificate is not in English language, to the Airport Health Officer.
– They will be referred to a PCR test within 24 hours upon arrival (Day One) from a private or state sector laboratory approved by the Health Ministry.
– Once the test report is available, they will be released from the quarantine hotel or centre by issuing a discharge document mentioning the date of PCR sample collection and PCR test result.
– They should undergo repeat PCR on Day Seven after arrival to Sri Lanka from a private or state sector laboratory approved by the Health Ministry.
• For passengers who have not received the COVID vaccine or not completed the recommended doses of vaccination and arrive in Sri Lanka within less than two weeks of vaccination:
– If they are undergoing hotel quarantine (single or shared by family members), they will be referred to PCR testing on Day One and Day Seven.
– However, if they are under quarantine at a centre, they will be subjected to PCR testing on Day One and Day Ten.
– If both tests are negative, they will be released from the quarantine procedure, following the second PCR test.
Upon being discharged, all arrivals are required to arrange their own transport method to go to their respective residences from the quarantine hotel or centre.
Immediately upon arriving home, they should inform the area Medical Officer of Health (MOH) by telephone or email and produce a discharge document issued by the designated authority at the quarantine hotel or centre.
After informing the area MOH, the travellers, who have received both vaccine doses and obtained a negative PCR report on Day One of arrival, are not required to quarantine further.
For those who have not received the recommended vaccine doses, a balance home-quarantine period (out of 14 days) under the supervision of area MOH, is mandatory.
All PCR test results must be informed to the MOH attached to their respective residential area. If one of the PCR test results is positive, they should inform the MOH, and follow the treatment protocol of Health Ministry.
If febrile or display respiratory symptoms of COVID- 19 during the quarantine period, they should inform the relevant MOH.
In the meantime, separate guidelines issued for tourists arriving in the country have also been revised by the Director-General of Health Services.
Minister of Environment Mahinda Amaraweera says a full investigation is being carried out into the accuracy of the land deeds of the property in Sinharaja Forest, where plans for the construction of a hotel are underway.
His remarks came as concerns were raised over environmental destruction taking place at 7-acre land at the Sinharaja Forest Reserve for the said construction.
The minister pointed out that the Central Environment Authority or Ratnapura District Secretariat has not granted permission to clear the trees at the said plot of land.
Divisional Secretary and Grama Niladhari should be held accountable for not performing their duties properly and allowing it to happen, he noted.
However, the government’s stance on the matter is to take over the said land at Sinharaja Forest Reserve as soon as possible, Minister Amaraweera remarked.
The government is also looking into taking over a 1,500-acre land in the same area and a final decision on the matter will be taken during the coming week, he said further.
The Colombo Crimes Division (CCD) is due to interrogate former Minister Rajitha Senaratne and former MP Chathura Senaratne over a false complaint filed by a journalist alleging that he was abducted.
A journalist recently lodged a complaint claiming that he had been abducted and assaulted by four individuals on March 10.
However, following a lengthy investigation by the CCD, the complaint made by the 62-year-old journalist and owner of the ‘Siyarata’ newspaper was proven to be false, police said.
Police stated that it was uncovered that the burn marks which he alleged were inflicted by his kidnappers were actually self-inflicted using a mason trowel at his residence.
Police Media Spokesperson DIG Ajith Rohana stated that the journalist in question had visited an office of former Parliamentarian Chathura Senaratne in Thimbirigasyaya, where he had met with the former Minister Rajitha Senaratne at the office.
Accordingly, the journalist has been arrested for filing a false complaint, he said.
Officials of the CCD are due to obtain statements from Rajitha and Chathura Senaratne over the incident, DIG Rohana said.
The suspect has also admitted that he had made a false complaint through a confession, he further stated.
The Attorney General has reportedly made clarifications to his Singaporean counterpart for a third time regarding the request of extraditing the former Central Bank (CBSL) Governor Arjuna Mahendran.
Attorney General Dappula de Livera stated this before the Permanent High Court Trial-at-Bar in Colombo today (March 18).
Arjuna Mahendran is one of the major suspects wanted by the authorities in connection with the Central Bank bond scam case.
The case was taken up today (March 18) before Justices Champa Janaki Rajaratne, Damith Thotawatte, and Namal Balalle.
In September 2019, the Ministry of Foreign Affairs forwarded the extradition request on Arjuna Mahendran, to the Sri Lankan High Commission in Singapore.
The extradition request was then forwarded to the Government of Singapore for necessary action.
In 2020, International Criminal Police Organization (Interpol) informed Sri Lanka that the former Central Bank Governor has changed his name to ‘Harjan Alexander’.
The legal opinion of Sir Desmond de Silva covers all areas of allegation against the Sri Lankan Army and takes every leaf of relevant international law relevant to war crimes and clearly establishes why Sri Lanka cannot be accused of committing war crimes. Even individual soldier misbehaviour he says can be dealt with within existing framework of internal laws which clearly reveals we not only do not require war crimes tribunals and we certainly do not require international judges whatsoever. With these clear and precise legal arguments in place why is the Government of Sri Lanka betraying its national army and accepting bogus propaganda to be the basis for trials promoted by nations who have blood on their hands for which no UN war crimes trials have commenced. What the citizens of Sri Lanka must realize is that there are NO legal case for war crimes against Sri Lanka and so there should be no war crimes trials at all.
Sir Desmond de Silva takes on the task of providing the legal opinion related to collateral damage in the context of Sri Lanka’s non-international armed conflict.
Legal pronouncements by former Prosecutor of the ICC Luis Moreno-Ocampo that justified collateral damage in the US led invasion of Iraq.
During this final phase of the conflict it is undoubted that there was considerable loss of civilian life; the figures, however, vary considerably. Sadly, this is what is called ‘collateral damage’ in military parlance…”
Following the military defeat of the LTTE a host of allegations had been made against the Sri Lank an Army (SLA) in having committed war crimes” (a very one-sided propaganda to which the powerful nations of the West were also party)
The legal opinion of Sir Desmond de Silva is subject to the following questions
The law related to collateral damage. The pronouncement of Luis Moreno-Ocampo, state practices & official positions taken by US, UK, Israel before Courts & Tribunals & UN agencies/bodies including Security Council & Human Rights Council and its predecessor bodies on COLLATERAL DAMAGE.
Facts relating to prosecution of war against LTTE, civilian casualties in closing stages of the War against LTTE as not constituting a war crime
a) sole intention of SL Army was to gain a decisive military advantage over LTTE and bring to an end 30 years of terror by LTTE against all ethnic and religious groups in Sri Lanka
b) SL Army pursued objecting respecting principles of distinction and proportionality which SL Army strove to follow
c) Following the end of 30 year war against LTTE the peace, freedom, democracy and development was seen in the whole of the North and East post-conflict phase validating the intent and purpose of the military action.
Materials provided to Sir Desmond by the GOSL
Humanitarian Operation Factual Analysis – Ministry of Defence, Sri Lanka July 2006-May 2009
Opinion by Luis Moreno-Ocampo – 9 February 2006
31 page document entitled ‘Instructions to Queens Counsel’
Summary by Sir Desmond
By 2009 the Government of Sri Lanka had been in an ongoing internal armed conflict with the Liberation Tigers for Tamil Eelam (LTTE) for some thirty years. The LTTE waged a ruthless secessionist campaign to create an independent state in the North and East of Sri Lanka.”
After many failed attempts at peace the GOSL launched an operation to finally end the conflict and bring to a close the war that had claimed tens of thousands of lives,, both civilian and military. The Government created No Fire Zones (NFZs) with view to saving civilian lives. Indeed, the creation of these zones is only realistically consistent with that intention. The first NFZ was created in January 2009. Upon realizing that the Army refrain from firing into NFZs the LTTE promptly moved it’s CADRES and Artillery into the midst of these innocent civilians.” (Note: LTTE moved its cadres and artillery amidst civilians inside the NFZ)
This is…a war crime committed by the LTTE. In the final phase of the conflict when the LTTE was facing inevitable defeat it resorted to holding hostages as a human shield and shelling the Sri Lankan Army (SLA) from No Fire Zones so as to force the Army to run the risk of causing civilian casualties in responding. No doubt, this was done for the purpose of assigning allegations of civilian killings to the Army. In addition, there was evidence from many sources that the LTTE fired artillery into their own people. This strategy, is not unknown in hostilities of this kind where there is a need on the part of the losing side to provoke a propaganda storm so as to invite international intervention to prevent impending defeat.” (so now we know why NGOs and certain parties inside the UN were making a ruckus about civilians dying from army shelling – it was to pin blame on the SLArmy while trying to give time to the LTTE to re-group)
It was the duty of the GOSL to free the civilian hostages from their LTTE captors. Attempts by the civilian hostages to escape from their unlawful captivity were met with their being shot. The operation to free those hostages and defeat their LTTE captors resulted in significant civilian casualties with a range of figures from 8,000 to 40,000. Whatever be the true figure of the civilian casualties, the overwhelming number of innocent civilians taken hostages were saved. This was a humanitarian triumph achieved by the military defeat of the LTTE by the SLA, thereby ending the LTTE practice of forced recruitment in which the LTTE took one child per family for its forces”. As the war progressed the policy intensified and was enforced with brutality, often recruiting several children from the same family, including boys and girls as young as 14”
Upon the defeat of the LTTE a host of allegations were launched against the SLA which included the unlawful targeting of civilians and causing illegal collateral damage.. References to the use of the atom bomb on Hiroshima and Nagasaki at the end of WWII for the purpose of determining the degree of acceptable collateral damage in a given set of circumstances is not helpful. The threshold as to what constitutes acceptable collateral damage under International Humanitarian Law (IHL) has changed significantly since WWII. Whereas, during WWII, it was generally held that widespread civilian death was acceptable so long as it furthered a legitimate military target, this broad view has changed markedly since WWII. Increasingly, the international community, and by extension IHL, requires a higher threshold in determining that civilian casualties are allowable under the laws of armed conflict.”
Currently, whether or not an attack that results in civilian deaths is legal under IHL depends on whether the attack meets the requirements of three principles which guide the legality of actions under the laws of armed conflict and IHL:
o (1) Distinction,
o (2) Military Necessity, and
o (3) Proportionality.
In evaluating the legality of civilian casualties in the final stages of the war, in order to determine if they are permissible collateral damage, a violation of IHL only occurs if there is an intentional attack directed against civilians (violation of principle of distinction), or if an attack is launched on a military objective with the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (violation principle of proportionality).”
In the final stages of the war, according to the Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka around 330,000 civilians were trapped in an ever decreasing area, fleeing the shelling but kept hostage by the LTTE and being used as a strategic human buffer between themselves and the advancing SLA.”
From February 2009 onwards, the LTTE started the point blank shooting of civilians who attempted to escape the conflict zone whilst continuing a policy of suicide attacks outside the conflict zone.”
On Friday (April 3) the UN Secretary General Ban Ki-Moon called on the LTE to allow civilians to leave the conflict area of theirs own free will. He expressed his deep distress by continuing reports of civilians being kept at extreme risk, against their will and with heavy casualties in a very small area by the LTTE. The UN Secretary-General (UNSG) deplored the forced recruitment of civilians, particularly children, stating the severe restrictions of the LTTE on their freedom of movement violated international law.”
The and immediate duty of the Government forces was to free the hostages by defeating their captorsand in order to do so they were entitled to use as much force as was absolutely necessary to completely overwhelm their enemy, subject to the principle of Proportionality. This was done, and 296,000 civilian hostages whose future was uncertain in the hands of the LTTE, were now saved.In my view, this was a military and humanitarian necessity. When military necessity is understood to require non-combatant death, such killing is permissible and legal if it is proportionate to the expected military advantage of the operation.”
By doing their due diligence to ensure that the number of casualties was as low as possible and that only military targets were fired upon, the Government satisfied the principles of Necessity, Distinction and Proportionality.”
”I bear in mind that there was an urgent need to bring the war to a swift conclusion, save as many hostages as possible and to prevent the escape of the LTTE leadership by sea. Their escape would have enabled them to position themselves elsewhere in the World and continue directing murderous terrorist activities against the people of Sri Lanka. The phenomenon of a group from outside waging war against a state was exemplified by the Al-Qaeda attack on the Twin Towers in New York in 2001 and indeed by the murder of Rajiv Gandhi, the Prime Minister of India by the LTTE.”
Thus, the damage and loss of life, regrettable as it was, was merely collateral damage. It is my opinion that a war crime cannot be ascribed to the Government on the basis of the facts set out above.
I set out my reasoning and conclusion in Sections 9 and 10 of this Opinion. This is not to say that there were not, in the heat of battle, cases of war crimes committed by individual members of the SLA. However, the evidence does not suggest that the commission of a war crime by reason of the collateral damage referred to was Government policy. In other words, there is no evidence of state sponsored war crimes in this regard.
Factual Assertions by Sir Desmond de Silva
For thirty years, the Liberation Tigers of Tamil Eelam (LTTE) were responsible for conducting numerous attacks against the Sri Lankan government and its citizens as part of its effort to create a separate Tamil state.” (No UN came forward calling for accountability for these deaths)
After repeatedly failing to reach a peaceful settlement with the LTTE leadership through peace talks, the government decided to conduct a large-scale Humanitarian Operation” in 2006 to finally rid the country of the organisation.” (the LTTE were even given a change of weather by taking them overseas on foreign trips to stop killing people – even that didn’t work!)
By around January 2009, the SLA had pushed the LTTE fighters into a small area of the country. However, due to the significant number of civilians that were in that particular location, the government established No Fire Zones” (NFZS) where the greatest concentration of civilians was located. The LTTE fighters decided to take advantage of the NFZs and began firing at the military forces from within the zones.” (key points is that the LTTE positioned themselves INSIDE the NFZ and fired at the SL Army from INSIDE the NFZ)
Additionally, the LTTE held tens of thousands of civilian hostages in the NFZs as human shields in order to deter the military from firing upon them while they conducted their attacks.’ (key point is that the civilian hostages were kept as human shields by LTTE)
Throughout the operation, the military followed a zero civilian casualty policy.” However, in order to properly counter the LTTE attacks coming out of the NFZs, the military needed to launch counter-attacks against them. The military enacted several protective measures in order to limit the number of civilian casualties during the operations including specialised training for the troops, selectively using artillery fire, the use of snipers, the use of smaller fire teams, and the change in weaponry from rapid fire to deliberate fire.”
In addition to what has been said, the care exercised by the security forces included several institutional mechanisms in place to safeguard human rights.
o The Directorate of Human Rights and Humanitarian Law of the Sri Lanka Army (SLA) was established in January 1997. Its role was to further improve the appreciation and knowledge of SLA personnel of International Humanitarian Law (IHL) and Human Rights (HR) through training, monitoring the compliance of its personnel to these norms, and inquiring into and reporting alleged transgressions.
o The Sub Directorate on Human Rights and International Humanitarian Law in the Sri Lanka Navy (SLN)was established in June 2002 as a means of providing advice, conducting training programmes for naval personnel, disseminating information and coordinating work with various agencies on all matters related to HR & IHL.
o The International Humanitarian Law and Human Rights cell of the Sri Lanka Air Force (SLAF) was established in 2002 along similar lines. Training on Human Rights and International Humanitarian Law. Security Forces personnel receive in-depth training on HR and IHL through the directorates described above. In particular, officers and soldiers actively engaging in operations were trained to be of their responsibilities with regards to the safety of civilians and the protection of human rights, and to make appropriate and informed decisions in the heat of battle.
o Training comprised three distinct programmes:
a. Training of instructors to conduct seminars and awareness programmes on HR and IHL for other personnel on a continuous, full time basis,
Regular field level training for other personnel conducted by these trained instructors in the operational areas
Formal training for officers and other ranks at established training centres
These training programmes are supported by the dissemination of written materials including leaflets, instruction booklets, placards etc., dealing with human rights, codes of conduct, offenses in armed conflict and other relevant material.
Assistance for these training programmes has been obtained from Governmental, non-Governmental and international organisations such as the Ministry of Disaster Management, the ICRC, the UNDP, the British Council, the National Commission on Human Rights, the National Institute of Education, the Centre for the Study of Human Rights at the University of Colombo and the Sri Lanka Foundation Institute.
Overall, more than 175,000 personnel of the SLAhave undergone training in this subject area since the year 2001. Education on IHL and HR has been a compulsory subject for all SLN personnel in induction training courses, On the job training and all mandatory courses pertaining to promotion. More than 24,000 personnel of the SLAF have also received training in this subject area.
Applicability of International Humanitarian Law (IHL) to Internal Armed Conflicts
GOSL is a party to the four main Geneva Conventions of 1949, and thus has an obligation to comply with International Humanitarian Law (IHL).” (pl note LTTE is not signatory to any international treaty and is not bound by any law except customary laws)
war crimes could only be committed during an international conflict, but after the ICTY’s 1999 decision in Prosecutor v. Tadic, it is now well settled that violations of IHL can occur during internal conflicts as well.” (developments in law)
Internal conflict is defined as protracted armed violence between governmental authorities and organized armed group or between such groups within a state.” (also known as non-international armed conflict)
If such a conflict exists, the relevant IHL provisions will govern the parties’ actions throughout the entire territory until a peaceful settlement has been reached.” (parties” imply that LTTE is also bound by ILH)
Both Common Article 3 (CA3) and Additional Protocol II (APII) to the Geneva Conventions apply to internal armed conflict. Because Sri Lanka is not a party to APII, the provisions of CA3 and customary international law govern the conflict in question.CA3 includes the following important provisions that parties to an internal conflict must abide by
o Persons not taking part in the hostilities, including combatants who have laid down their arms shall be treated humanely, including the prohibition on discrimination on the basis of race, color, religion, sex, birth or wealth; murder or torture; hostage-taking; cruel or degrading treatment; and the use of executions as a sentence without due process are prohibited. The wounded and sick are to be cared for.” Any serious violation of these provisions could constitute a war crime.
Applicability of International Human Rights Law
International Human Rights Law (IHRL) is made up of a set of treaties and conventions that member states have drafted in order to cooperate in the protection of rights that the international community recognizes as fundamental”
The most relevant agreements to this conflict that Sri Lanka is a party to include the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (CAT), and the International Covenant Economic, Social and Cultural Rights.These instruments contain non-derogable rights that states are required to uphold for their citizens at all times.
IHRL is applicable both in armed conflicts and in times of peace. As a result, IHRL and IHL usually overlap with regards to crimes committed during armed conflict because a state is bound to respect both bodies of law. If the two bodies of law converge the most during internal conflicts because IHRL governs, how a state treats its citizens and is therefore less applicable in cases of international conflict.”
internal armed conflicts, it is most heavily relied on when the state refuses to recognize the applicability of CA3 to the conflict because certain human rights conventions, such as the ICCPR, contain non-derogable rights that cannot be ignored.”
Applicability of Customary International Law (CIL)
Article 38 of the statute for the International Court of Justice (ICJ), customary international law is defined as evidence of a general practice that is accepted as law.”
To reach this level, the practice must be considered both extensive and uniform so that states essentially believe that the custom is actually required by law. These practices may include treaties and other international agreements.”
There are certain bodies of customary international law that do apply to internal armed conflicts such as the Sri Lanka conflict. In Nicaragua v U.S., the ICJ determined that CA3 has become so widely accepted that its provisions should be considered to be customary international law. Additionally, although APII is not considered customary international law as a whole, there are core provisions within it that reaffirm and supplement CA3 and are, therefore, considered to be binding as customary law. These provisions include articles 4-6, 9 and 13, which cover the protection of civilians, medical and religious personnel, and the fundamental rights guaranteed to all those involved in the conflict.”
Finally, the ICRC has drafted a list of rules that it considers be a part customary international law in both internal and international conflicts based on its recognition of state practice because these provisions are customary law, they are considered binding on all parties of an internal conflict”
Liability of Non-State Actors – the LTTE
The LTTE, as non-state actors engaging in armed conflict, still have liability under IHL, and thus are liable for any transgressions of the laws contained therein.”
Two theories support this conclusion. The majority view holds that non-State actors, like the LTTE here, are bound by IHL by reason of their being active on the territory of a Contracting Party (a State Party to the Geneva Conventions and/or its Additional Protocols).”
This theory is also referred to as the `principle of legislative jurisdiction’. Put simply, this theory posits that any agreements that a State may enter into (here, Sri Lanka) are subsequently binding on anyone it its jurisdictional territory. The advantage of this theory is that it may subject all armed groups active on a State territory to IHL, whether or not these groups have consented to be bound by IHL. Applied here, this theory would hold that the LTTE-by virtue of their physical presence in the sovereign, land of Sri Lanka, are subsequently subject to jurisdiction for any obligations or treaties it is a party to, including IHL and the Geneva Conventions.” (in other words every law Sri Lanka signs becomes automatically applicable to LTTE)
An alternative rationale has it that, because some armed groups exercise de facto control over territory, they behave like States, and therefore the international obligations – including obligations under IHL – incurred by States should also be incurred by non-state actors engaging in armed conflict.”
Such a theory, however, requires that a non-state group exercise de facto control of an area, and so this does not apply universally.”
Irrespective of its limited scope, however, it is worth looking at this explanation in respect of those groups that do exercise territorial control. Additional)
this theory would also apply to the LTTE as they did exercise de facto control over large portions of the North and East of Sri Lanka at the relevant time.”
Finally, it should be noted that IHL, to the extent that it’s embodied in customary international law, would also be binding on non-state actors like the LTTE.”
Right of a State in International Law to ensure national security and defend itself from insurgents and terrorists
Article 51 of the U.N. Charter recognizes a State’s right to use force to defend itself, and under this provision Sri Lanka is justified in using necessary and proportional force to defend itself from insurgents and terrorists. This interpretation gives Sri Lanka a military right to defend itself under the clear mandates of the Charter. This conflict was an internal armed conflict and, therefore, IHL applies.”
History of IHL in Non-International Conflicts and the Law of Collateral Damage
Principles of International Humanitarian Law (IHL’) – The rules of international humanitarian law govern armed conflict.
Although the concept of ‘armed conflict’ is not defined in the Geneva Conventions or its subsequent Protocols, it has elsewhere been described a conflict arising between states and leading to the intervention of members of the armed forces” and that it exists whenever there is resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups within a state”.
Armed conflicts have traditionally been classified as either international or non-international, with each governed by separate rules.”
As there is no debate that the present conflict in Sri Lanka is non-international in nature, this Opinion will only address IHL as it relates to non-international armed conflict;
Non-International Armed Conflict – Sources of Law
Whereas the regulation of international armed conflict is comprehensive and elaborate,” comprising the majority of the provisions in the 1949 Geneva Conventions, the law governing non-international conflict is sparse. Specifically, only one provision of the 1949 Geneva Convention, Common Article 3, and the later-added Additional Protocol II govern non-international armed conflict. Additionally, it has been argued that customary international law also governs non-international armed conflict, although the extent to which this is true has been debated.
Common Article 3 & Additional Protocol II
Article 3, common to all four Geneva Conventions, is the only article in the Conventions that applies to non-international armed conflict. It provides minimum guarantees for protecting those not taking an active part in hostilities.”
Sri Lanka both signed and ratified all four Geneva Conventions, and thus is bound by the provisions of common article 3. Additionally, common article 3 has gained customary international law status, and so is binding on all state parties now, not just signatories.”
Additional Protocol II – Common article 3 was developed and expanded upon by Protocol II (1977),which applies to all non-international armed conflicts that take place in the territory of a state party between its armed forces and dissident armed forces. The stated aim of Protocol II was to extend the essential rules of the law of armed conflicts to internal wars. Thus, Additional Protocol II provides additional protections to those engaged in internal armed conflict. In particular, Protocol II lists a series of fundamental guarantees and other provisions calling for the protection of non-combatants. In particular, Additional Protocol II requires that, so long as they do not take part in hostilities, the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations” and shall not be the object of attack. Protocol II does not apply to situations of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence. Sri Lanka neither signed nor ratified Additional Protocol II. However, the Protocol which acceded to or not by individual nations have assumed the weight of customary international law because they have broadly accepted by a majority of nations as good law.See Appeal Chamber judgment in Tadic in the Defence Motion for Interlocutory Appeal on Jurisdiction rendered on October 2, 1995 in the Prosecutor v Dusco Tadic.
Customary International Law
Customary international law is generally binding on all states regardless of agreement or objection because custom emanates from universal norms of behavior among states.”
Applicable customary law here includes Articles 4-6, 9, 13. of AP II and all of common article 3.
Sources of IHL Governing Collateral Damage
Defining Collateral Damage : Providing civilian protection while simultaneously allowing for military objectives to be fulfilled is a central goal of IHL.
Accordingly, IHL seeks to protect civilians from the causalities of war to the greatest degree possible, while still allowing belligerents to engage in armed conflict.
If is well established that, under international humanitarian law… the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime.” (extremely crucial argument so long as SL Army has following Distinction / Military Necessity and Proportionality)
International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.
In particular the three principles already referred to namely—
o (I) distinction,
o (2) military necessity, and
o (3) proportionality—guide the legality of actions under the laws of armed conflict and IHL.
During the reporting period, senior Sri Lankan officials made repeated public statements denying that the GSL was shelling the NFZ or targeting hospitals and was not responsible for any civilian casualties. However, sources alleged that the majority of shelling in the NFZ was from GSL forces. The GSL announced that it would observe a 48-hour ceasefire on two occasions. The stated aim of these was to allow civilians to move into areas in which they would not be subject to shelling. Incident reports suggest, however, that the GSL may have begun shelling before the end of the second 48-hour ceasefire. Reports also indicated that the LTTE forcibly prevented the escape of IDPs and used hem as human shields.”
Distinction requires that combatants distinguish between civilian and military personnel and targets in planning and executing military action.”
The principle of military necessity stipulates that the use of force must be used only to compel the complete submission of the enemy … [T]he destruction of property to be lawful must be imperatively demanded by the necessities of war… There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. Thus, the doctrine of military necessity requires that legitimate targets are, limited to those that make an effective contribution to military action and whose destruction or neutralization offers a definite military advantage in circumstances ruling at the time.”
The final principle of lawful engagement, proportionality, offers the strongest protection to civilians.Proportionality holds that the anticipated military advantage of any use of force must be balanced against the probable or expected civilian losses. In order to meet the requirements of proportionality, such losses cannot be excessive” when compared to the military advantage gained by the use of force. The civilian casualties from otherwise permissible attacks on valid necessary military targets are called collateral damage.”
In evaluating the legality of civilian casualties in order. to determine if they are permissible collateral damage, a violation of IHL only :occurs if there is an intentional attack directed against civilians (violation of principle of distinction), or if an attack is launched on a military objective with the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (violation principle of proportionality). Thus, there may very well exist a valid military target that is unlawful to attack because the civilian loss expected greatly exceeds any military advantage conferred.”
Proportionality Explained
As stated above, the death of civilians in non-international armed conflict is only lawful when the attack that precipitated it was in furtherance of a necessary military target (encompassing military necessity” and distinction”) and when the attack was in accordance with the principle of proportionality.
where civilians were killed by intentional military action engaging a valid military target, the critical issue in determining whether the act was lawful was whether it comported with the principles of proportionality. Proportionality’s fundamental premise is that the means and methods of attacking the enemy are not unlimited.”
The function of the principle of proportionality is to relate means to ends—did the military result justify the means required to accomplish it, the death of innocents. It is not easy to assess what attacks are disproportionate; to a large degree the answer depends on an interpretation of the circumstances prevailing at the time, the expected military advantage gained by striking a certain military target, and other context-specific considerations.”
It should also be noted that the principle of proportionality is often misapplied. For instance, in some cases the mere quantum of collateral damage and incidental injury causes critics to condemn a strike as disproportionate. However, the extent of harm and damage is relevant only as it relates to the military advantage that was reasonably expected at the time the attack was launched. Importantly, the standard is excessive” (a comparative concept), not extensive” (an absolute concept)
Damage to civilians or their property can be extensive without being excessive. Assuming the military advantage anticipated itself is high extensive damage will not be excessive. Thus, where the military object is of paramount importance the right of civilians to be free from the effects of hostility diminishes.”
When assessing the legality of collateral damage” under lHL, disproportionate attacks are prohibited in two ways.
First, military commanders must evaluate the potential civilian losses anticipated, and not pursue the attack if they are excessive in relation to the, military advantage gained”
‘International courts and national military tribunals use a reasonable commander” standard based on the circumstances at the time to determine whether a particular military act was proportional. For example, in Prosecutor v. Stanislav Galic, the defendant was charged with illegal deliberate and indiscriminate attacks on civilians. Explaining the ‘reasonable commander’ standard, the court in Stanislav Galic opined that [in] determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”
Second, once a decision has been made to target a necessary military objectivethat will likely result in the loss of civilian life, every reasonable effort must be made to minimize civilian losses. For example, in Isayeva Russia, the European Court of Human Rights held that a Russian aerial attack on a village violated the principles of proportionality because the attack continued even when civilians tried to escape the village. Even though the Russians were attacking a valid military target—insurgents in the village—they were found to violate the mandates of proportionality because they failed to show that the attack was carried out with the requisite care for the lives of the civilian population” that is required ‘by the laws of armed conflict.” Thus, commanders must exercise great caution in avoiding targeting even necessary military targets.
Human Shields
No specific textual prohibition of human shielding exists in the law of non-international armed conflict.”
Additional Protocol 11, however, does contain a more general proscription against endangering civilians, holding that the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.”
Thus, because human shields clearly place civilians in unnecessary danger from military operations, their use would violate AP II would thus is prohibited in non-international armed conflict too.
Historical shift in prevailing views on acceptable collateral damage: WW3 to Present
The international view on what constitutes acceptable civilian casualties in armed conflicts has changed significantly since the end of the Second World War. In particular, the twentieth century following the end of World War 11 has, with each conflict, seen a decreasing tolerance for what is viewed as acceptable collateral damage. What follows is a treatment of the change in views throughout history relating to collateral damage”
WWII saw a bombing strategy all actors—first the Germans, then followed by the British and Americans—that for the first time was focused heavily on civilian population centers, and defeating civilian morale. The Germans executed large-scale bombing runs on London early in the war, and the British and Americans followed suit in Germany and along the Axis lines.”
The American’s finished the war with what stands today as arguably the greatest accepted act of lawful” collateral damage—the use of the atomic bomb on Hiroshima and Nagasaki.”
Although at the time the act was considered lawful because the targets were a military necessity”required to end the war, this expansive view would not be shared in later conflicts.”
War in the Balkans: Operation Allied Force : From March to June 1999, the U.S. and NATO allies engaged in military operations to end Serbian atrocities in Kosovo, and force Slobodan Milosevic to withdraw forces from the area. During this operation, Milosevic’s Serbian forces employed a wide variety of concealment warfare tactics to deceive NATO forces, including dispersing troops and equipment throughout and within civilian population centers and hidden in civilian homes, barns, schools, factories, and monasteries. Serbian forces even dispersed among Civilian traffic during their movements used human shields to protect military equipment. These tactics contributed to several incidents of collateral damage resulting in civilian casualties, the most notable of. which included: inadvertent attacks on refugees over a twelve-mile stretch of a major road in Kosovo, resulting in seventy-three civilian casualties; ballistic attacks near a small town where 87 civilians were killed; and two incidents involving attacks on civilian buses that each involved heavy civilian causalities. In spite of these incidents, an investigation conducted by a committee of the International Criminal Tribunal for the Former Yugoslavia (ICTY) concluded that none of the foregoing collateral damage incidents presented sufficient evidence to warrant additional review or prosecution for violations of LOAC. The circumstances of the collateral damage in the form of civilian casualties referred to in the Kosovo Operation and in relation to which the investigation by a committee of the ICTY is highly relevant to the circumstances that appertained to the situation in the final phase of the conflict in Sri Lanka.
State Practice on Collateral Damage
The North Atlantic Treaty Organization (NATO) NATO has been an integral part to many military operations (especially those that are stability/peacekeeping in nature) around the world. This section will address NATO’s policies regarding collateral damage during armed conflict and present some examples from Operation Unified Protector and Operation Allied Force for consideration.NATO Collateral Damage Policy: As an organisation made up entirely of states that are party to the Geneva Conventions, NATO considers the laws of war to be extremely important to the planning of military operations. For example, in Secretary General Anders Fog Rasmussen’s annual report for 2011, he stated that in the preparations for Operation Protector in Lebanon, it was understood that there was an absolute requirement to minimize collateral damage and civilian casualties.” Additionally, NATO’s Military Committee has drafted a number of military doctrines that outline its policies regarding the use of military force during certain circumstances. For example, in its Peace Support Operations doctrine, there is an entire doctrine devoted to exercising restraint in the use of force. It stresses that, at all times, LOAC should be complied with and that force should be precise, appropriate, proportionate, and designed to resolve and defuse a crisis.” All options other than force should be considered first, and when necessary, only the minimum force necessary should be used. However, this does not exclude the use of force that might be sufficient to overwhelm the entire enemy force, so long as it is proportional.Additionally, its Counter-insurgency (COIN) doctrine advises military commanders to consider the extent to which collateral damage might occur as a result of the proposed operation. In many locations throughout the document, it recognizes that collateral damage, especially the loss of civilian lives, can be used against NATO as propaganda and undermine its efforts as a result. In fact, the doctrine states that counter-insurgency operations will inevitably be counterproductive if the level of collateral damage is significant. Accordingly, the manual recommends that the smallest and most precise amount of force should be applied in order to yield the greatest effectiveness out of an operation. For these reasons, the document also advises commanders to be extremely cautious in the planning of operations to be conducted in urban environment because they possess the greatest risk of causing collateral damage.
Overall, both doctrinal documents consistently recommend the use of the least amount of and the most precise use of force inconducting military operations. In most cases, the doctrine recommends using precision air strikes and small arms. At the same time, military forces are permitted to use as much force as absolutely necessary to completely overwhelm the enemy. The bottom line is that NATO commanders shall use as much force as necessary until the predicted level of collateral damage makes it counterproductive, which is identical to proportionality.
Examples of Collateral Damage in NATO Military Operations: Two of the most prominent examples of collateral damage issues in NATO military operations include Operation Allied Force in Kosovo and Operation Unified Protector in Libya. This section will examine the type of collateral damage that occurred and response made by NATO and the international community.Operation Allied Force: Operation Allied Force was a NATO response to the horrific human rights abuses that were occurring throughout Kosovo and the Former Yugoslavia in the late 1990’s under President Milosevic. The objectives of the operation included a stop to all military action and violence; agreement to establish station an international military presence in Kosovo, and ensure the withdrawal of President Milosevic’s military and police forces from Kosovo.In order to best minimize collateral damage, NATO forces relied heavily on strategic air power to strike key military targets in the region. While many of the legitimate military targets were successfully hit during the operation, it was reported that a significant number of civilians were killed as well as a great degree of damage to civilian infrastructure as a result of the air strikes. Some of these incidents included:1. civilian passenger train at the Grdelica Gorge on 12 Apr 1999 in which 10 civilians were killed;
The attack on the Djakovica Convoy on 14 Apr 1999 in which 70 to 75 civilians were killed
The attack on the Chinese Embassy in Belgrade on 7 May 1999, which damaged the building and killed 3 civilians; and
An attack on Istok Prison on 21 May 1999, which killed 19 civilians.These incidents of collateral damage, among others, caused allegations to be launched against NATO that their forces committed war crimesand that their use of force was not legitimate in the first place. The allegations even prompted the ICTY to inquire into whether the incidents justified a formal investigation by the prosecutor.
In many of the instances, NATO responded by admitting responsibility for the attack, but arguing that the targets were legitimate, and the attacks were either made with no knowledge that civilians were present or that they would equal the numbers that they did. In some cases, NATO representatives alleged that Milosevic’s forces used human shields. Additionally, on the question of legitimacy, NATO asserted that they were acting pursuant to collective self- defence and acting to stabilize the region. Civilians were never the intended targets and had they known civilians were present or that the degree of collateral damage was so high, they would never have followed through with some of those missions.
Notably, the ICTY ended up agreeing with the NATO assertions and found that no formal investigation by the prosecutor’s office was necessary. The court found that before each attack, the military and its legal advisors carefully analyzed the proposed targets, that the targets were legitimate; and that the number of civilian deaths was in fact proportional to the urgent military objective to overwhelm and defeat Milosevic’s forces.
Operation Unified Protector: In 2011, amidst the backdrop of the Arab Spring, the people of Libya rebelled against the government of Moammar Gadhafi. In response to the serious risk that Gadhafi was going to commit atrocities against his people, the U.N. Security Council issued Resolution 1973, which authorized military intervention in Libya. Pursuant to the resolution NATO implemented Operation Unified Protector, which called for the use of military force to protect the civilians caught up in the middle of the Libyan conflict. Again, due to the potential risk to life to the NATO members and civilians, military involvement was limited to and naval precision strikes as well as the enforcement of a no fly zone. This operation ended up being much less controversial in the long-run due to the level of caution that the NATO commanders put into their planning of each mission and the sound legal basis it had for intervening pursuant to Resolution 1973. Additionally, NATO representatives boast that essentially no civilian casualties were reported due to their immense focus on minimizing collateral damage.Secretary General Rasmussen stated that as a means of ensuring the low degree of collateral damage, military forces never targeted civilian infrastructure, such as water supplies or oil production facilities, or the general area surrounding those locations.
Additionally, in October 2011, NATO Military Committee Chairman Admiral Giampaolo Di Paola remarked that, from the very beginning, all members understood that no civilian casualties and no collateral damage was an absolute must.” U.N. Secretary General Ban-Ki Moon even stated that the low degree of collateral damage during the operation was unprecedented. He also attributes this success to the use of persistent surveillance and reconnaissance” of each target location in order to know exactly what is going on and know for certain whether a precision strike can be made without creating any collateral damage.
Some watch groups, such as the Human Rights Watch, claim that civilians were indeed harmed as a result of NATO’s air campaign during Operation Unified Protector. Even if these reports were true, NATO representatives would still argue that each target was carefully analyzed, that it was believed the targets were free of civilians, the targets were all necessary in weakening Gadhafi’s military campaign, and that they complied with their obligations under international law to take all means necessary to minimize civilian casualties.
ISRAEL: Israel Policy on Collateral Damage.Israel has not ratified Additional Protocol I to the Geneva Conventions, and thus is not bound by the Protocol’s broad protections of civilian populations during armed conflict. Nevertheless, Israel Defense Force (IDF) written statements of policy indicate that they adhere to the principle of Distinction that is central to IHL. For example, an Israeli Defense Force policy doctrine mandates that, IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity, and property.” Although the Israeli government has acknowledged the laws of war, it nevertheless justifies some military operations against civilian targets—including the practice of destroying the homes of Palestinians suspected of assisting terrorists—on the basis of military necessity.
The Israeli government and IDF additionally publicize a robust policy meant to affirmatively minimize collateral damage during armed conflict with Hamas and. other Palestinian groups operating in the Gaza strip. In particular, the IDF claims that the following are some methods they used to minimize civilian causalities in recent conflicts.
Phone calls: During the last 24 hours of the operation, thousands of Israeli phone calls were made to residents of the Gaza Strip, warning them of. IDF strikes in the area.
Leaflets: The Israel Air Force has dropped leaflets over Gaza that warns civilians to avoid being present in the vicinity of Haman operatives.”
Diverting missiles in mid-flight: During Operation Cast Lead in 2008-09, the IDF aborted many missions seconds before they were to be carried out, due to civilians being present at the site of the target. The following video is an example of an IAF airstrike that was called off as the missile was on its way to the target.
Roof Knocking: Roof knocking” is when the IAF targets a building with a loud but non-lethal bomb that warns civilians that they are in the vicinity of a weapons cache or other target. This method is used to allow all residents to leave the area before the IDF targets the site with live ammunition.
Pinpoint Targeting: The IDF, whenever possible, singles out terrorists and targets them in a way that will endanger few or no bystanders. This can often be hard to do, since terrorists prefer to hide in crowded areas.
Examples of Collateral Damage in Israeli Military Operations: Over the years, the Israeli Defense Force (IDF) has been engaged in conflicts with Hamas in’ the Gaza Strip and Hezbollah militants in Lebanon. Both cases have provided issues regarding collateral damage for consideration.
Hamas Conflict: For years, Israeli citizens have suffered as a result of constant Hamas missile strikes into Israel. 98 For example, in 2012 alone, 1,650 rockets were fired into Israel from the Gaza Strip. 99 As a result of these missile attacks and other.. Hamas terrorist attacks, the IDF has conducted a number of operations in response. One such operation was Operation Cast Lead” which took place from December 2008 to January 2009. In that operation, the IDF sought to deinfrastructure that Hamas was using to launch attacks against Israeli citizens. During Cast Lead, hundreds of civilian homes, infrastructure, and lives were destroyed as a result of Israeli rocket fire. This led to allegations that Israel had committed war crimes.This caused so much controversy that calls for the ICC to get involved were made, but, due to jurisdiction concerns over Palestine not being a state, the matter was never considered. However, Israel contended that just because civilians were killed does not necessarily make their conduct illegal because they were strictly acting in self-defence and each of their targets were thus legal.
Israel further asserts that it was their policy during this mission to warn civilians of rocket fire before in struck in order to help minimize the number of civilian casualties. For example, for some strikes, the IDF utilized missiles that could be aborted in flight if unexpected civilians appeared in the vicinity of the target. Additionally, they dropped leaflets over areas that would be subject to heavy rocket-fire so that civilians could leave the area. Also, IDF members would sometimes use Roof Knocking Bombs, which are non-lethal projectiles that are used by IDF to warn civilians that they are in the range of the reach of their weapons in order to give them time to leave the area.
Based on this, and the fact that targets were selected because they were believed to be where Hamas was launching its attacks from, Israel asserts that their targeting practices were legal and that any civilian death or property damage is just collateral damage.
Operations Against Hezbollah Israel has also suffered the effects of attacks from Hezbollah militants that operated inside of Lebanon. One of the major operations that took place as part of this ongoing conflict occurred from 12 July 2006 to 14 August 2006. In response to Hezbollah rocket fire into Israel, the IDF launched thousands of rockets and artillery shells into residential areas where it believed Hezbollah operatives to be located.”‘ As a result, significant damage was done to civilian homes and infrastructure and hundreds of civilian lives were lost. This operation also created controversy for Israel because it appeared that these counter-attacks were being launched indiscriminately. However, just as they did in the aftermath of Operation Cast Lead, the government asserted that their targets were legitimate because Hezbollah was hiding in residential areas to fire rockets into Israel and the IDF was trying to be as precise as possible but needed to target those areas to protect their own citizens.This still generates much controversy today.
UNITED STATES: U.S. Policy on Collateral Damage
The United States Department of Defense (DOD) defines collateral damage Unintentional or incidental injury or damage to persons or objects that would not be lawful military targets in the circumstances ruling at the time.Such damage is not unlawful so long as it is not excessivein light of the overall military advantage anticipated from the attack.
As a matter of policy, the DoD requires its service components, including the Army, Navy, Air Force, and Marines, to comply with the laws of war during allmilitary operations and armed conflicts. In relevant part, the Department of Defense defines the law of war as, [t]hat part of international law that regulates the conduct of armed hostilities. It is often called the ‘law of armed conflict. The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law.”
Although the United States is not a party to Additional Protocol I, the American military openly endorses the Principle of Distinction. American armed forces include that endorsement in their training materials, ensuring that every member of the U.S. military is aware that civilians may not be targeted. For example, the U.S. Air Force provides its entire force with a copy of the Airman’s Manual, an instructional reference guide. The Airman’s Manual codifies the policy of Distinction simply, saying Do not . . . Attack non combatants who include civilians. Current doctrine from the US Army’s accredited Judge Advocate General’s (JAGC) Legal Center and School emphasizes the fundamental. elements of the laws of war essential to avoiding unlawful civilian causalities, including the following: military necessity, distinction, proportionality, and no unnecessary suffering. Army lawyers are instructed to address these elements in all circumstances and d to follow specific international legal obligations, including treaties and customary international law.
Additionally, the U.S. Army includes the Principle of Distinction in its training materials too. The first chapter of the Soldier’s Manual of Common Tasks is about the laws of war. The Manual explains that the Hague conventions and customary international law limit targeting decisions, and that the latter prohibits targeting or attacking civilians. It goes on to state that civilians are protected from all acts or threats of violence. Likewise, the Army’s field manual on ‘the law of land warfare says that [a]ttacks [a]gainst the [c]ivilian population as [s]uch [are] [p]rohibited.
The United States Joint Operations Targeting Doctrine also provides guidance regarding the DoD’s position on targeting as it relates to collateral damage. Per the doctrine, all targeting decisions involving attacks must comply with controlling rules of engagement as well as international humanitarian law, including the fundamental principles of military necessity, unnecessary suffering, proportionality, and distinction (discrimination) The targeting doctrine cautions that, in relation to avoiding collateral damage, the primary threats to the civilian population depend, on engagement techniques, weapon used, nature of conflict, commingling of civilian and military objects, and armed resistance encountered”. The doctrine further suggests that military commanders should further verify with reliable intelligence that attacks are directed only against military targets and that any incidental civilian injury or collateral damage to civilian objects must not be excessive in relation to the concrete and direct military advantage expected to be gained”. The doctrine even indicates that, when it is practicable, advance warning of the attack should be given to allow civilians to depart the targeted area. Finally, the doctrine provides that the attack must be cancelled or suspended when it becomes apparent that a target is no longer a lawful military objective”. The DoD has, even expanded its emphasis on mitigating civilian categories in recent years, publishing further guidance on how to avoid unnecessary civilian death during armed conflict.
Examples of Collateral Damage in Recent U.S. Campaigns : Drone Strikes
In the decades since 9/11, the United States has engaged in a robust campaign of targeted killings of purported enemies of the War on Terror, mostly effectuated through unmanned drone strikes. These attacks ostensibly balance the principles of military necessity, discrimination, and proportionality, and in theory are billed as a surgical means of fighting the war that minimizes collateral damage. In practice, however, drone strikes have faced significant criticism from the international community because of allegations that they account for unjustified and disproportionate civilian causalities. Some of the best known examples of the alleged disproportionate effect that drone strikes haven civilians involve numerous cases where funeral processions were targeted, killing numerous civilians attending those funerals.
In response to criticism about the legality of drone strikes, the Obama Administration has argued that the U.S. is in an armed conflict with Al Qaeda and the Taliban, and that the U.S. may thus act in self-defence pursuant to the Authorized Use of Military Forced issued by Congress on September 18, 2001. Specifically, State Department Legal Advisor Harold Koh has argued that, because al-Qaeda has not abandoned its intent to attack the United States, the United States, has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.” A study by Stanford and NYU Law Schools that included over 100 interviews and two trips to Pakistan to investigate drone strikes opined that; [i]n the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling ‘targeted killing’ of terrorists, with minimal downsides or collateral impacts. This narrative is false. Interestingly, in light of widespread criticism, the Obama Administration, although still defending drone strikes, just last year purported to take a zero tolerance” for civilian causality policy, claiming that moving forward, before any strike is taken, there must be near-certainty that no civilian can be killed or injured— the highest standard we can set.”
IRAQ: Operation Iraqi Freedom : It is undisputed that the American-led invasion of Iraq has resulted in numerous civilian deaths. Although the United States military does not officially track civilian deaths figures, outside sources estimate that since the U.S. invaded Iraq in 2003, civilian causalities total between 121,000–134,000 deaths. Most of the civilian casualties attributable to Coalition conduct in the ground war appear to have been the result of ground-launched cluster munitions, which were reportedly responsible for 273 civilian casualties at al-Hilla and al-Najaf, and ground combat was responsible for 381 civilian deaths at al-Nasiriya. In some instances of direct combat, especially in Baghdad and al-Nasiriyya, problems with training on as well as dissemination and clarity of the rules of engagement (ROE) for U.S. ground forces may have contributed to loss of civilian life. The Los Angeles Times completed a survey of twenty-seven hospitals in Baghdad and the local area, reporting that at least 1,700 civilians died and more than 8,000 were injured in the capital during the initial ground operations at the beginning of the war.
Numerous accounts exist detailing allegations of permissible killings of civilians. In one case, U.S. Army soldiers opened fire on an unidentified vehicle as it was approaching a U.S. Soldiers attempted near al-Najaf on March 31, 2003 to direct the vehicle to stop, and then opened fire, killing seven of the fifteen civilian passengers on board. The London Times also reported an account of a firefight between Coalition forces and insurgents in which sixteen Iraqi soldiers were killed along with twelve civilians. There were even reports of U.S. forces targeting a hospital where two high profile Iraqi political leaders arrived, brandishing satellite phones. Although two Red Crescents marked the roof of the hospital, a coalition attack killed four and injured 70 patients. Accounts of extensive civilian deaths were so widespread, even among coalition force members, that two reporters wrote a book detailing the allegations of misconduct by U.S. troops in killing civilians.
Afghanistan: Operation Enduring Freedom: Many of the most flagrant examples of egregious collateral damage during OEF involve aerial bombing campaigns. In the first few months of the war, the United States mistakenly bombed a Red Cross building—twice. Although there were no direct casualties from this attack, the bombing left some 55,000 people without food and blankets. The mistake was alleged to be due to a human error in the targeting process.” More seriously, a 2008 bombing of Azizabad, Afghanistan left over 90 civilians dead, including 60 children. The attack was aimed at killing just one militant, leader.
The International Criminal Court (ICC): In relation to the Coalition invasion of Iraq, the Office of The Prosecutor of The ICC received over 240 communications expressing concern regarding the military operations in that country and the resultant human loss. On the 9th February, 2006, The Prosecutor Luis Moreno-Ocampo indicated that he had a very special role in mandate as specified in the Rome Statue and that in accordance with Article 15 of the Rome Statute he had a duty to analyse information received with regard to potential crimes in order to determine whether there is a reasonable basis to proceed with a particular investigation. As the Chief Prosecutor he had to consider whether the available information provided a reasonable basis to believe that a crime within the jurisdiction of the Court had been or was in the process of being committed. Where this requirement was satisfied he had to consider admissibility before the Court in the light of requirements relating to gravity and complementarily with national proceedings. Thirdly, if those factors were positive he had to give consideration to the interests of Justice. Sri Lanka, of course, is not a party to the International Criminal Court.However, the reasoning by the Chief Prosecutor in relation to the complaints made in relation to Iraq are worthy of consideration. The. conclusion The Prosecutor arrived at was this; the events in question occurred in the territory of Iraq which, again, like Sri Lanka was not a State Party to the Rome Statute and which had not lodged a declaration of acceptance under Article 12 (3) thereby accepting the jurisdiction of the Court. Therefore, in accordance with Article 12 of the Rome Statute, acts on the territory of a non-State Party fell within the jurisdiction of the Court only when the person accused of the crime is a national of a State that has accepted jurisdiction (Article 12(2)(b)). The Prosecutor did not have jurisdiction with respect to actions of non-State Party nationals on the territory of Iraq.
The first Prosecutor of the ICC Luis Moreno-Ocampo was to say FOOTNOTE 1
For war crimes, a specific gravity threshold is set down in Article 8(1), which states that `the Court shall have jurisdiction in respect of war crimes in particular when committed as apart of a plan or policy or as part of a large-scale commission of such crimes’. This threshold is not an element of the crime, and the words ‘in particular’ suggest that this is not a strict requirement. It does, however, provide Statute guidance that the Court is intended to focus on situations meeting these requirements.
According to the available information, it did not appear that any of the criteria of Article 8(1) were satisfied.
Even if one were to assume that Article 8(1) had been satisfied, would then be necessary to consider the general gravity requirement under Article 53(1)(b). The Office considers various factors in assessing gravity. A key consideration is the number of victims of particularly serious crimes, such as wilful killing or rape. The number of potential victims of crimes within the jurisdiction of the Court in this situation 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions.. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes.
Taking into account all the considerations, the situation did not appear to meet the required threshold of the Statute He went on to say that in accordance with Article 15(6) of the Rome Statute that his conclusion at that stage were that the statutory requirements for the seeking of authorisation to initiate an investigation into the situation in Iraq had not been satisfied.
Based on the factual assertions and known prevailing conditions at the time, the actions of the Sri Lanka Army DO NOT CONSTITUTE WAR CRIMES.
The war crimes allegations against Sri Lanka appear to fall into three main categories, which include
(1) harm to civilians and civilian objects;
(2) killing of captives or combatants seeking to surrender; and
(3) preventing necessary food and medicine from being provided to civilians.
This section will provide a brief overview of the law that is relevant to war crimes and then analyze whether the government of Sri Lanka is liable for the above allegations based on the assertions they provided.
The Law Pertaining to War Crimes According to the ICTY judgment of Prosecutor v. Tadic, four requirements need to be met in order for someone to be prosecuted for a war crime:
1. The violation must infringe a rule: The rule must be found in customary law or applicable treaty law;
The violation must be serious in that the rule protects important values and the breach involves grave consequences for the victim; and
The violation must entail individual criminal responsibility.
As discussed earlier, the applicable IHL provisions to this particular conflict is common article 3 (CA3) and customary international law. Customary international law includes CA3 and the core provisions of Additional Protocol II (APII) Tactic held that any violation of these provisions should satisfy the elements outlined above. Additionally, the three categories of allegations against Sri Lanka are all considered violations of these provisions.
Whether harm to civilians or civilian objects, a violation of CA3 and customary law,was unlawful is typically analysed against the principles of distinction, necessity, proportionality and humanity (unnecessary suffering),as discussed previously. So long as a military commander or government complies with these principles, the harm will be considered lawful collateral damage.
With regards to the allegation of killing captives, CA3(1) and APII(4) strictly forbid inhumanely treating combatants who have laid down their arms, such as by ,the use of torture or execution. These crimes are illegal per se, so no analysis is needed to determine whether it was excused or not. All that is required is a determination as to whether it happened or not
Finally, the allegation that Sri Lanka prevented civilians from receiving necessary medicine and food would, if true, violate the relevant IHL. It is well settled under CA3 and customary IHL that the wounded and sick shall be collected and cared for, and no party to the conflict shall impede that effort. Again, this type of crime is illegal if it is committed, and is not subject to a balancing. test to determine whether it is excused or not.
Harm to Civilians and Civilian Objects:
As previously discussed, one of the most serious allegations made against Sri Lanka is that they indiscriminately shelled civilians and civilian structures during the Humanitarian Operation. These assertions are made based on the fact that sources consistently reported that, during the months of January to May 2009, the government indiscriminately fired into the NFZs as well as during a 48-hour cease-fire. Most of the shelling, according to the allegations, was actually directed at areas where major hospitals were located.
The government contends that, although targeting was made toward these areas, several measures were put into place to limit the effect on civilians. First, the government asserts that the LTTE forced civilians into these areas to create human shields in order to deter the military from attacking. The government’s case is importantly supported by Jacques de Maio, International Committee of the Red Cross (ICRC) and Head of Operations for South Asia informed US officials that the LTTE had tried to keep: civilians in the middle of a permanent state of violence”.
The LTTE saw the civilian population as a protected asset” and kept it’s fighting men embedded amongst them. He went on to say, that the LTTE Commanders’ object was to keep the distinction between the civilian and military assets blurred. The Government established the NFZs in order to reduce civilian casualties but the LTTE moved its men and heavy weaponry into these zones from which they began to shell SLA positions. Again, the position of the Government is supported by the following observations by Sir John Holmes, UN Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator;
There are continuing reports of shelling from both sides, including inside the ‘no-fire zone, where the LTTE seems to have set up firing positions.”
Additionally, the SLA took several measures in order to minimize casualties such as using snipers, selectively using artillery power, change from rapid fire to deliberate fire, the establishment of a zero civilian casualty policy,” and the use of smaller fire teams to conduct missions. Furthermore, the damage described by the government is minimal.
Based on the above instructions, it is unlikely that the operations of the SLA constituted any war crimes, even though civilian lives were lost during the operation.
First, the principle of necessity is satisfied. GOSL asserts that the necessity was to respond to attacks being launched from the NFZs and in order to free civilians that were being held hostage in these areasboth of which are considered legitimate reasons to use force under IHL.
For example, the 2009 State Department report to Congress acknowledged that there was clear evidence that the LTTE was firing artillery shells from within the hospital premises and concentrations of civilians.
In addition, the International Contact Group (ICG) also documented that there were LTTE gun positions within n 500m of the Centre”. The ICG also recorded that most of the LTTE artillery was located in the no fire zones.
Additionally, the principle of distinction is satisfied. The government asserts that they established the NFZs to help troops distinguish between civilians and non-civilians and even when it the SLA had to fire into those zones, it did so selectively and targeted only the locations that LTTE artillery was coming from.
Further, the hospitals in question were not directly targeted and some, for the most part, were no longer being used for treating patients.
Based on these assertions, it is evident that the government did its best to distinguish between military and civilian targets.
The proportionality and unnecessary suffering principles have also been satisfied based on the assertions.As previously stated, proportionality is violated where the incidental loss to human life outweighs the anticipated military advantage. Here, despite the fact that civilian casualties might have been expected, the government appeared to do their utmost to minimize those casualties in order to achieve their military objective of stopping future attacks from the LTTE out of those locations and rescuing the civilians among their many other objectives outlined on page 27 of my instructions.
In this case, the incidental civilian deaths and property damage was collateralAdditionally, 290,000 civilians were rescued as a result of this operation.
It is also important to note that, at many times, the direction of fire could not be discerned, so it is difficult to attribute most of the deaths to the government. For example, Gordon Weiss, the UN Spokesman in Sri Lanka, acknowledged that there is good evidence that the LTTE fired artillery shells at their own people as a method of causing international outcry against the government.
It should be noted that the mere presence of civilians or the use of human shields does not bar an attack against the enemy force. In fact, the test of proportionality tends to be relaxed in those circumstances and any civilian deaths will be attributed to the party using the human shield.
War is imprecise and unpredictable and as long as the principles are satisfied, the incidental deaths will be considered as collateral damage. Where military operations are conducted among civilian populations, civilian casualties have always been a tragic consequence of armed conflict. The principle of military necessity allows for the intentional of potentially large numbers of people if the harm is both unintended and is not disproportionate to a legitimate military objective.
Therefore, based on the government’s assertions and the established facts, it is unlikely that the harm to civilians in this context constituted a war crime Killing of Captives or Combatants Seeking to Surrender Another allegation made against the Security Forces was that they executed surrendering soldiers of the LTTE.These allegations are based on video footage allegedly showing Sri Lankan soldiers killing captive LTTE members in January 2009 as well as other sources that reported that government forces filled several LTTE leaders while they attempted to surrender in May 2009.
CA3(1) and APII(4), strictly prohibit the murder of former combatants who have laid down their arms so any violation of this provision would certainly constitute a war crime. However, it is correct to say that a great deal of controversy attaches to the accuracy of videotape footage that has been produced.
Based on my instructions, however, it is unlikely that this crime was committed. As I have observed before, if there were individual acts that amounted to war crimes the authorities have the judicial structures within which to deal with perpetrators.
According to the government, 11,986 LTTE members were either detained or surrendered and 10,490 have already undergone rehabilitation and have been reintegrated into society. The rest are either currently under rehabilitation or are scheduled for prosecution. Additionally, the government asserts that the same accommodations were made for family members of LTTE.
Therefore, based on these facts alone, it is unlikely that this crime occurred.
Preventing Necessary Food and Medicine From Being Provided to Civilians
Finally, the government was alleged to have deprived civilians in the conflict zone from receiving necessary humanitarian aid. This allegation is based on the fact that there was a significant shortage of food and medicine available despite deliveries that were made to the conflict zones.
Under the relevant IHL’s requirements to provide for the sick and wounded, it could be considered a war crime to actively prohibit access to humanitarian aid. It might also be a violation of the relevant Human Rights Law, such as the International Convention on Economic, Social, and Cultural Rights (ICESR), which is discussed further elsewhere.
The government asserts that they worked with several UN agencies to provide aid to those in need in the conflict zones. Additionally, if there was any shortage in aid supplied, it was due to the fact that the LTTE consistently targeted the UN food convoys throughout the operation. Furthermore, few facts have been asserted that actually attribute responsibility to the government for the shortage in aid.
Based on my instructions (Sir Desmond), however, it is unlikely that this particular crime was committed.
CONCLUSION OF SIR DESMOND DE SILVA
It is difficult to establish how many civilian casualties there were at the end stage of the conflict. Suffice it to say the UN Panel of Experts on Accountability in Sri Lanka said:
Two years after the end of the war, there is still no reliable figure for civilian death.”
What can, however, be said is this but for the taking by the LTTE of hundreds of thousands of hostages for reasons I have already gone into in this Opinion, the casualties would largely have encompassed LTTE fighters alone. (in other words no civilian would have come to harm IF LTTE did not forcibly take them with them) Based on my instructions, my analysis of the relevant law, from the factual matrix made available to me and other research, my opinion is that the great mass of civilian deaths which occurred in the final stage of the conflict were regrettable but permissible collateral damage.
It was occasioned in the process of the security forces fighting to overwhelm and defeat the LTTE who had taken hostages in such large numbers that this may well be considered to be one of the largest hostage takings in history. The human stakes were colossal considering that the hostages were being murdered if they had tried to escape. The end result of saving some 290,000 hostage lives and the defeat of the ruthless LTTE were legitimate military and humanitarian objectives and the collateral damage was not disproportionate to the military advantage and was wholly consistent with the humanitarian imperatives that prevailed at that grim time.
Luckily the Mahinda Rajapakse government had sought the legal opinion of international legal experts whose opinions should now be used to compare the OISL and UNHRC Heads reports and demands that contravene Article 2.7 of the UN Charter by interfering in the internal affairs of a sovereign nation. Reading Prof. Newton’s legal opinion alongside that of the OISL and the PoE any would laugh at the childishness of the report produced, the premises and insinuations made. Any would have to wonder for whose interest the report has been written and for whose benefit the recommendations have been made.
Who is Prof. Michael Newton?
He is an expert in terrorism, accountability, transnational justice, conduct of hostilities and has published more than 80 books, articles, op-eds. He has been an expert witness in terrorism related trials. He has also been the senior advisor to the Ambassador-at-large for War Crimes issues in the US State Dept.
Prof. Michael Newton on civilians being used by LTTE
§ LTTE refused to permit some 330,000 fellow Tamils to flee away from zone of conflict
§ LTTE used them as human shields
§ GOSL declared area as safe civilian (no fire zone) to protect innocent civilians but LTTE refused to agree to its creation. This he says constitutes prima facie evidence of LTTE’s intent to use civilians/civilian objects for its military campaign.
§ LTTE embedded its heavy artillery within the NFZ and intentionally shelled Sri Lankan positions from amidst civilian population
§ Using civilians Prof. Newton says is ‘roughly comparable to the war crime of perfidy’ because the LTTE sought to use the government’s compliance with the laws & customs of warfare to gain unwarranted military advantage.’ (this nullifies OISL allegation against SL Army)
§ LTTE intentionally used the civilians to shield military operations – this Prof. Newton says constitutes a war crime
§ Prof. Newton says that the obligation to protect civilians within the zone of conflict (as given in Article 57(1) of Protocol 1 to the Geneva Convention of 1949)
§ Prof. Newton says ‘there is no evidence to suggest that Sri Lankan commanders ignored this fundamental obligation. As reported by the US 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 completely demolishes OISL’s claims)
Prof Newton – Distinguishing civilians from combatants
§ Question is how to distinguish civilian population from combatants and civilian objectives from military objectives to direct military operations only against military objectives as required by Article 48 of the Protocol 1
§ Assessment of US ambassador at the time gives clearly that the operational goal of the LTTE was to effect military advantage against the Sri Lankan forces and so LTTE forcibly prevented evacuations of civilians who wanted to leave (again OISL premise is demolished)
§ Prof. Newton states that the ‘Elements of Crimes for the Rome Statute’ adopted in June 2000 was clear that action by a perpetrator with the intent to ‘shield a military object from attack’ or to take advantage of one or more civilians to ‘shield, favour or impede military operations’ constitutes a war crime (OISL – it is LTTE who has committed the war crime not SL Army)
§ Prof. Newton also demolishes Ban Ki Moon’s Panel of Experts who claimed that ‘credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks”. (PoE argument legally thrown to the dustbin)
§ Prof. Newton also says that the ‘crime of using human shields is committed by any perpetrator that intentionally moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict” (LTTE becomes a clear war criminal)
§ Prof. Newton authoritatively says LTTE committed the war crime of using human shields on any occasion that it took advantage of the presence of innocent civilians with the intent of protecting its military assets from any attack or to shield, favour or impede military operations.” (LTTE by attempting to gain inappropriate military advantage from the presence of civilians/civilian objects commits the war crime of using human shields with or without deliberate moving of civilians) – there goes another unfounded premise of the OISL and PoE to the dustbin.
§ Prof Newton says that ‘there is no per se prohibition against attacking targets protected by human shields’ so long as government artillery strikes comply with the principle of proportionality and after taking ‘all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.
§ Prof. Newton says that both Hamas and LTTE used human shields unlawfully to favour military operations.
Prof. Newton on military attacks
§ Evidence clear that targets were ‘specifically attacked in response to LTTE fire emanating from within the civilian areas”
§ To elucidate this Prof. Newton brings out other examples
o ‘no government has declared the illegality of Israeli strikes simple because they were directed into civilian areas (law is that artillery fire into civilian areas cannot be deemed per se unlawful but must be subjected to the traditional analysis drawn from principles of distinction, military necessity, and proportionality.
§ Response of the German government following the 2009 Israeli incursion into Gaza was that it supported the assertion that there is no per se prohibition on the use of artillery shells in urban areas: The Federal Government has no reliable information on the use of such ammunition. The use of means of warfare which cannot be directed against a specific military objective, so called indiscriminate attacks, would be prohibited …This would depend not only on the type of ammunition, but also on the circumstances of their use”
§ Gotovina case – neither ICTY Trial Cambers nor Appeals Chambers asserted that use of artillery fire directed against purported military objectives located in civilian urban areas is in itself dispositive of illegality.
Prof. Newton on principle of distinction
§ Principle of distinction requires parties to distinguish at all times between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives.”
§ It is prohibited to target civilians in customary international law
§ Galic Appeal Judgement, Article 51(2) of Additional Protocol I states in a clear language that civilians and the civilian population as such should not be the object of attack”, that this principle does not mention any exceptions”, and in particular that it does not contemplate derogating from this rule by invoking military necessity.”
§ Article 51(2) explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities” and stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objective.”
§ Prof. Newton says that There is no requirement that particular areas or zones be designated as civilian or military in nature” because a distinction is to be made between the civilian population and combatants, or between civilian and military objectives – on a case-by-case basis.
§ Sri Lankan government did not require labelling area as safe or protected so long as attacks were on lawful targets using lawful weapons in a lawful manner as permitted under the laws & customs of warfare.
§ Prof. Newton on rethinking Proportionality with modern human shielding
§ The problem – human shields present military decision-makers a challenge to ensure civilians are protected from hostilities (unless they take part in hostilities) and the violation by one side who locates military objectives within or near densely populated areas and fails to take the necessary precautions to protect civilian populations.
§ Prof. Newton says that the commander in the field has to either cede an unlawfully obtained military advantage to the enemy and suffer casualties or undertake careful strikes in response. He goes on to say that ‘if the law is warped to permit the enemy to unlawfully exploit human shields with no possibility of recourse, then it becomes irrelevant and essentially obsolete”. He says the only to way to balance is to apply good faith application of the law of proportionality. (another OISL premise against SL Army demolished)
§ Prof. Newton adds a very important answer no military commander in the world, and by extension no political official that authorizes the use of military force, 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-defence” (this is exactly what the UN/UNSG, PoE and the OISL demands of the SL Army – to become guinea pigs for LTTE fire)
§ Prof. Newton confirms that ‘LTTE enemy deliberately misused civilians to protect military targets, and ignored governmental efforts to establish safe areas for civilians while hindering their ability to seek safety”
§ He says that the right of the Sri Lankan government to respond using lawful weapons against identifiable military targets must be respected.
§ Prof Newton says that LTTE deliberately ignores its own legal duties, disconnects between aspirational legal rules”
§ Prof. Newton says that 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.
§ What the essential argument is that the Sri Lankan forces cannot be shown the red card and charged when the other side is violating all rules of law and laws of proportionality.
Prof. Newton on voluntary human shields
§ Voluntary human shields, even though they do not wear uniforms, carry guns openly, or follow a chain of command, seem to have chosen directly to participate in the war effort and even place themselves in the line of fire. Once they are on the battlefield they are passive rather than active, but they intend to affect the war by their passivity, and the passivity is often even more efficacious than those soldiers who are carrying weapons and are actively ready to fire them.
§ To be a voluntary human shield, a person must intentionally seek to put herself or himself between a likely attack and a military target. This volitional conduct epitomizes the essence of the principle from Article 51(3) of Protocol I that civilians enjoy express protections unless and for such time as they take a direct part in hostilities.”
§ Voluntary human shields risk their own lives for a particular military or political objective. They are therefore intellectually identical to unlawful belligerents or other insurgents in the sense that they participate in hostilities but do not enjoy combatant immunity or benefit from the full range of rights that accrue to lawful combatants.”
§ Prof. Newton says Neither the principle of discrimination nor the principle of proportionality applies to persons no longer legally categorized as civilians.” (OISL has still to answer how many of the people they term ‘civilians’ were truly civilian as LTTE did have a civilian trained army)
§ express right to protection derived from civilian status is forfeited by voluntary participation in the conflict”
§ Prof Newton quotes the theory of Emer de Vattel that the law should not be fashioned or applied in order to favour oppressors – which means LTTE should not use human shields to gain asymmetric advantage. Prof. Newton says that LTTE exploited the presence of civilians to favour military operations tilting the application of proportionality to disfavour the lawful and limited responses of the government.
Prof Newton concludes that the military responses to illegal LTTE actions is proportionate
§ In psychological terms – SL Army strikes were directed at military objectives despite presence of human shields. Prof. Newton says that more lives were saved than lost.
§ Even when Sri Lanka forces issued effective warnings to the civilian population (which negates the accusation by OISL that SL Forces did not) these warnings came to nought as LTTE prevented civilians from leaving to safety. Prof. Newton says that LTTE rejected the area declared safe for civilians and nullified the warnings and thus LTTE bears ‘responsibility for civilian deaths because their own conduct was the causal factor in such deaths’.
§ ‘no evidence in the record to suggest that the government used inherently indiscriminate weapons such as barrel bombs or Grad rockets 15, that are typically used for their capacity to affect a wide area at great range (this again demolishes OISL specific claims about SL military using such weapons – this is a key factor that absolves the military and shames the OISL for lying)
§ The SLA can almost certainly produce evidence that it undertook artillery strikes in compliance with the best practices designed to minimize or to eliminate civilian casualties.” For example, artillery experts will attest that frequent adjustments to equipment are needed to account for wind changes, humidity changes and temperature changes that affect the predictability of artillery round trajectories. These practices in turn served to decrease the foreseeable civilian casualties by ensuring that rounds were directed specifically to the lawful LTTE targets (what does the OISL have to say now… an apology to the SL Army is fine for starters)
§ Similarly, commanders are experts at using the artillery batteries that are best positioned to respond to a given attack. Use of on-scene observers whenever possible and stringent rules of engagement to require higher level approval under specific operational conditions for the return of artillery fire into the safe zone served to minimize civilian casualties.” (don’t you just wonder what the OISL is upto when reading Prof. Newton’s legal opinion?)
§ Prof. Newton says proof that the SL Army did their best to anticipate causal factors that could have made worse civilian casualties and so fired at military objectives from a greater distance which indicates the SL army compliance with proportionality principle. He concludes that ‘the Sri Lanka military cannot be responsible for a higher margin of error than anticipated’.
Prof. Newton on Civilians, Combatants and Loss of Civilian status
§ Prof. Newton says ‘civilians that intentionally shielded LTTE targets forfeited their otherwise protected status by virtue of having directly participated in hostilities’ (we now want to know how many civilians intentionally shielded LTTE targets)
§ ‘the reported inflation of estimated civilian casualties sought to aggrandize the wrongfulness of the military responses, and to obscure the prior war crimes committed by the LTTE precisely to achieve a propaganda victory that might translate into strategic success’ (how will the OISL respond to this)
§ 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.
§ commanders have every right to consider the safety of their own forces in making proportionality determinations because, the perspective of the commander (or other warfighting decision maker) is entitled to deference based on the subjective perspective 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. It would be ludicrous to suggest that there is some precept of international law that required them to send ground forces into the NFZ to respond to the LTTE artillery fire. I cannot imagine a knowledgeable expert in my field that would suggest otherwise.”
Reading Prof. Newtons opinion one can realize the level of lies that the UNHRC has stooped to in trying to twist and turn the law to favour the illegal combatants the LTTE and the audacity of the UNHRC head to demand that the present government ‘rein in Sri Lanka’s military’ shows he is going well over his limits.
The Mshinda Rajapakse government sought the legal opinion of Prof D M Crane and Sir Desmond de Silva on the legal issues pertaining to the use of human shields and hostage taking by the LTTE. Their legal opinion sheds to pieces the findings of the PoE and the OISL as well as the OHCHR Heads reports and their insistence on war crimes tribunals against Sri Lanka. It is a good wake up call for all parties to realize that the nonsense of dramatic propaganda must stop and that the UN & UNHRC are duty-bound to look at the legal aspects of a non-international armed conflict before concluding that war crimes have been committed by a sovereign state as is already seen by the biased statements coming out of the mouth of the OHCHR head and his reports.
Did LTTE attempt to immunise its military leadership and assets through the criminal act of hostage taking
Was the internment of civilians near areas of strategic importance an international crime of human shielding
Was the evaluation of the customary principle of Proportionality relative to the government’s military operations affected by LTTE’s intentional use of civilian hostages as human shields with the intent of using the loss of civilian life to discredit the government.
Do civilians lost their protected status by becoming voluntary ‘hostages’ for the purpose of creating a human shield in order to assist a belligerent party in gaining a military advantage?
Did LTTE decision to use combatants not in uniform to enter the conflict to gain military advantage by intentionally making it difficult to distinguish between combatants and civilians thus blurring the distinction between civilians and combatants affect the government’s military’s evaluation of the customary principle of distinction
{ Clearly neither the PoE, the OISL or OHCHR head bothered to even look at these key factors before concluding Sri Lanka’s military had committed war crimes. On the part of a supposed to be unbiased entity the UN & UNHRC has been exposed }
Legal issues pertaining to the use of human shields and hostage taking by LTTE (Factual Assertions)
It is asserted that, for thirty years, the Liberation Tigers of Tamil Eelam (LTTE) were responsible for conducting numerous attacks against the government of Sri Lanka (GOSL or the Government) and its citizens as part of its effort to create a separate Tamil state.” (and UN did nothing)
After repeatedly bailing to reach a peaceful settlement with the LTTE leadership through peace talks, the Government was forced to confront the LTTE’s determined effort to utilize the presence of the civilian population of the Vanni so as to immunize their positions from attack, to avoid defeat in battle, and to ensure the preservation of the LTTE leadership to enable them to continue waging their war.” (OISL & UNHRC please get this clear – LTTE was using civilians to save themselves and avoid defeat)
After the fall of Kilinochchi in the 2nd January 2009 to the SLA, in order to secure the safety of hundreds of thousands of civilian Tamils the Government set up a series of No Fire Zones (NFZ’s). Despite this effort, the LTTE allegedly refused to recognise the NFZs. International law requires that safe areas, ceasefires and truces are accepted by both warring parties: agreement is a pre-requisite for legitimacy. Due to the refusal of the LTTE to recognise any such NFZs the laws relating to such zones have less relevance to any analysis of the situation in the last stages of the conflict.” (NFZ has to be recognized by both parties to be effective – LTTE did not recognize NFZ)
It is asserted that the LTTE fighters took advantage of the NFZs, embedded themselves in the NFZ’s and began firing at the military forces from within the zones.’ (Hope OISL and OHCHR head reads this bit)
LTTE allegedly held thousands of civilians and some UN aid workers hostage in the NFZs as human shields in order to deter the military from firing upon them while they conducted their attacks.” (Unthinkable… would LTTE hold foreign aid workers? Inspite of this foreign aid workers were demanding to go inside battlezone… is it to be taken hostages and add to drama?)
Eventually, the GOSL declared victory on 19th May 2009, but allegations that tens of thousands of civilians were killed in the final phase of the war and that civilian property, such as local hospitals, were damaged have been used to support the argument that the government committed war crimes during this operation.” (LTTE funded propaganda)
However, the Government contends that civilians and the hospitals were never the intended target of their attacks, rather the SLA were returning fire against enemy targets embedded as they were amidst civilians and close to hospitals.”
other allegations have been made that the government killed LTTE leaders after they had already surrendered and had laid down their arms. This is based on video footage received by local media.” (We would first like to know who funds C4 videos on Sri Lanka this will reveal the real intent of the videos)
legal implications of the LTTE’s alleged hostage taking and use of human shields as it relates to the potential liability on the part of the Government of Sri Lanka for alleged war crimes.”
Legal status of the Conflict
In law – Sri Lankan conflict is classified as a non-international armed conflict (NIAC)
During the ICTY, the Appeals Chamber in its landmark decision on Tadic established whether a NICA qualifies as a) protracted, armed violence b) governmental authorities and organized armed groups within a state. The Special Court for Sierra Leone and the ICC also adopted this.
Conflict between LTTE and GOSL lasted almost 30 years – ICTY says that some degree of organization by the parties will suffice to establish what constitutes an ‘organized armed group’
well documented that the LTTE has been a disciplined and highly effective conventional fighting force” since the late 1990s, possessing both naval and air assets. The LTTE’s military capabilities are certainly sufficient to establish the second element of the argument.” – this satisfies both elements!!! (PoE boasted about LTTE being highly disciplined too J)
most impartial judges would agree that the Sri Lankan conflict is properly categorized as a NIAC and that any analysis of the legal issues appurtenant to that conflict should be categorised accordingly.” (key words are most impartial judges!)
Issues Presented
Did LTTE attempt to immunize its military leadership and assets by criminal act of hostage taking and internment of civilians near areas of strategic importance which is an international crime of Human Shielding?
Did evaluation of customary principle of proportionality of govts military operations get affected by LTTE’s intentional use of civilian hostages as human shields whereby LTTE hoped to use loss of civilian life to discredit the government?
Do civilians lose their protected status by becoming voluntary ‘hostages’ for the purpose of creating a human shield to assist a belligerent party in gaining military advantage?
Did the customary principle of distinction relative to governments military operation get affected by LTTE’s decision to use combatants not in uniform to enter the conflict with intent to gain a military advantage making it difficult to distinguish between combatants and civilians thus blurring the distinction between civilians and combatants (Lest we forget LTTE did have a trained civilian force, civilians had to undergo compulsory armed training – we need to know how many of these were posing as civilians)
Discussion 1 : Did LTTE attempt to immunize its military leadership and assets by criminal act of hostage taking and internment of civilians near areas of strategic importance which is an international crime of Human Shielding?
In both international and non-international armed conflicts, customary international law prohibits the use of civilians to shield military objectives and operations. This practice, known as human shielding, has been held as a grave breach” and a violation of the laws or customs of war” by the ICTY Trial Chamber.” (clearly LTTE has violated)
when addressing the law applicable to the Sri Lankan Armed Conflict in 2009, the United States categorically affirmed this position, declaring that the civilian population must not be used to shield military objectives from military attack.”” (US also confirms LTTE cannot use civilians as human shields)
In 1996, the ICTY determined that the facts contained in an indictment against Radovan Karadzic and Ratko Mladic were sufficient to constitute the crime of Human Shielding. According to the indictment, the accused had captured at least 248 UN personnel and ordered their subordinates to place the hostages at several potential NATO air targets, such as ammunition bunkers and military communication centres, in order to make it difficult for NATO to target those sites.”
The ICTY has also determined that, as long as protected detainees (civilians or POWs) are being used to shield military objectives from attacks, a war crime has been committed regardless of whether the detainees were actually harmed or attacked.” (This clearly finds LTTE the guilty party)
`In Blaskic, the accused was convicted of using civilian hostages as human shields to protect his headquarters at the Hotel Vitez, but appealed on the grounds that the hotel was not under attack at the time and that the hostages did not suffer any mental or physical harm. The court affirmed the conviction holding that it was sufficient just to prove that the civilians were placed at the hotel for the strategic purpose of protecting the headquarters.” (this means that LTTE who rounded up civilians and took them clearly intended to use them as human shields)
Discussion 2 : Is there evidence to suggest LTTE fired artillery at the SLA from the NFZ from the very outset of its creation?
The Bishop of Jaffa in a letter to the President on 25 January, 2009, stated;We are also urgently requesting the Tamil Tigers not to station themselves among the people in the safety Zone and fire their artillery shells and their rockets at the army. This will only increase more and more the death of civilians thus endangering the safety of the people.”
Throughout the final months of the Sri Lanka Conflict in 2009, it has been asserted that the LTTE kept up its attacks on the SLA from all NFZ’s that were set up by the Government. This was allegedly done with the intent to immunise themselves from attacks by government security forces; the very same activity and intent which the Monadic court found sufficient to constitute human shielding.”
Geneva Convention IV, Art. stands for the premise that even the mere presence of protected persons cannot be used to render a military target immune from attack. In other words, a belligerent who hides within an area with high concentrations of civilians is committing the crime of Human Shielding even if the belligerent party is not ‘actively placing them into a location.” (OHCHR head please read this legal aspect very carefully)
there are numerous reports of LTTE holding UN personnel and their families hostage in the NFZs in order to prevent or make difficult any counter attack by the SLA; facts which are nearly identical to those which the Mladic court relied upon in its determination of the sufficiency of the indictment against the defendants for the crime of Human Shielding.” (does make you wonder why these NGOs wanted to get inside the war zone when the SLA were saying it was not safe)
LTTE’s activities as alleged, both in hostage taking and redeployment to the NFZ’s with the intent of immunising its assets from attack—if true—would likely support LTTE liability for the crime of Human Shielding.” (LTTE is guilty – clearly)
Discussion 3 : When government’s military operation and customary principle of Proportionality was affected by LTTE’s intentional use of civilian hostages as human shields so that loss of life would discredit the government?
The laws and customs of war prohibit the launching [of] 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”
This principle has been applied coequally to operations involving both attack and the exercise of self-defence, with the principle operative factor being whether damage and loss of life is excessive in relation to any anticipated military objective. 34 Relative to self-defence, the International Court of Justice (ICJ) has held that customary international law warrant[s] only measures which are proportional to the armed attack and necessary to respond to it…” In determining proportionality generally, as demonstrated in the Case Concerning Oil Platform and the Advisory Opinion on Nuclear Weapons respectively, international courts will consider, inter alia, both the scale of the operation as a whole, and the risk associated with the weapons used.”
Modern warfare has seen a dramatic increase in the use of human shields as the battlefronts have moved from open fields to urban population centres. Involuntary human shields, that is, persons who are forcibly located around a military objective” in order to prevent that position from being targeted are the most frequently encountered situation of human shielding. However, involuntary human shielding has also been interpreted in the Commentary on the Additional Protocols to include not only the forcible location of civilians but also the act of taking advantage of voluntary movements of persons. In situations where a belligerent employs involuntary human shields, those persons being used as such cannot be considered as taking an active part in hostilities, and thus their presence would have to be weighed in any analysis of the proportionality of an attack.” (there is also the important fact that the LTTE had a civilian force trained in armed warfare)
international legal commentators are split as to what extent the presence of involuntary human shields affects the proportionality analysis. The prevailing view holds that persons used as involuntary human shields do not lose their protected status and thus casualties resulting from an attack are only defensible as collateral damage provided they are not excessive when compared to the military advantage anticipated by the attack.” (all of US/NATO killings go as collateral damage… no war crimes for them.. is the Law Racist, we have to ask)
a view which has gained some recognition holds that requiring the impeded party to factor involuntary human shields into the proportionality equation at all would allow the shielding party to profit from a clear violation of the laws of war, and thus should not be allowed.” (this was LTTE’s exact strategy – wonder who they consulted, probably that Scandinavian country now re-entering to create more trouble)
Yoram Dinstein says in cases involving involuntary human shields, the actual test of excessive injury to civilians must be relaxed”, making allowances for the unavoidable fact that, if an attempt is made to shield military objectives with civilians, civilian casualties will be higher”. An example of this, he argues, can be found in the Israeli bombardment of Beirut in June and July of 1982 where, despite the high number of civilian casualties, some commentators recognised that the number was not necessarily excessive given the fact that military targets were placed among the civilian population.”
In such cases, Dinstein has argued that, since the belligerent state is not vested by the laws of war with the power to immunise an otherwise lawful target by placing civilians in harm’s way, the ultimate responsibility for civilian casualties should fall upon the shielding party rather than on the impeded party. (the shielding party was the LTTE)
in the context of its 2006 conflict with Hezbollah, there were several reports of Hezbollah militants using Lebanese civilians as human shields, firing rockets and otherwise conducting combat operations from within residential areas. Because of this, the IDF had launched thousands of air and artillery strikes into southern Lebanon that caused the deaths of over 1000 Lebanese civilians. Israel has since been accused of war crimes as a result of those deaths.”
In response, the Israeli Ministry of Foreign Affairs adopted the above principle in a statement which declared: the deliberate placing of military targets in the heart of civilian areas is a serious violation of humanitarian law, and those who choose to locate such targets in these areas must bear responsibility for the injury to civilians which this decision engenders.” (this means it is the LTTE that has to bear responsibility for the injury or death to civilians)
The Ministry re-emphasized this point in a similar statement a year later, which stated that while the attacking party still has the responsibility to minimize civilian casualties, the ultimate responsibility for civilian loss will lie with the party deliberately placing civilians in harm’s way. (LTTE your crimes are now clear)
Amnon Rubenstein, another highly qualified publicist, agrees with Dinstein’s view that the proportionality evaluation should be adjusted when involuntary human shields are used. However, Rubenstein asserts that such adjustment is only appropriate when the targeted objective poses a clear and present danger” to the impeded party’s troops or civilians, such as targeted positions from which mortars or missiles are being fired.
These uncertainties in international law could not have made it easy for Sri Lankan field commanders. Deciding whether to act or refrain from acting against the position of an adversary — especially when that position presents a clear and present danger to military assets and civilians— is a decision which carries grave consequences if made incorrectly.” (the dilemma the Sri Lankan commanders on the field faced)
Sri Lankan commanders often faced the difficult choice of neutralizing active LTTE artillery positions at the cost of casualties among purported civilian groups, or refraining from action at the cost of suffering military losses or failing to protect its own civilian population.” (commanders faced the question of even sacrificing their men)
In either scenario, the legal uncertainty as to the proper value assigned to casualties resulting from human shielding within an analysis of proportionality likely made it very difficult for Sri Lankan field commanders to conform their conduct to the law; and it is asserted that this difficulty was frequently and deliberately exploited by the leadership of the LTTE.”
The difficulties facing a field commander are compounded by the blurring of the differences between combatants and civilians where hostages are taken. This forced choice” aspect is faced by many modern military commanders who have to contend with terrorist organisations suborning civilian populations into acting as human shields. They have to make on the spot decisions as to whether civilians are assuming the risk involved by their voluntary actions, or if they are civilians acting under duress.” (do people at least now realize the dilemma that the field commanders of the SL Army had to deal with?)
weaker parties have also engaged in a tactic known as Jawfare” which exploits legal norms to impede the enemy’s operations”, essentially punishing law abiding nations for their observance of the laws of war and rewarding the non-state actors who disregard them.” (this is the exact Kangaroo Court that the UNHRC is setting up – punishing the ONLY COUNTRY to have got rid of a menace – the LTTE terrorists)
As Rubenstein points out, if this trend continues in its failure to account for the interests of impeded states, IHL itself is in danger of falling into disrepute.” (we believe this has already happened… UNHRC and the UN is now a laughing stock)
humanitarian operation launched by the GOSL was justified by a host of compelling military objectives, namely ending the nearly 30 year campaign of violence by the LTTE which included assassinations on duly elected officials and attacks on civilian objects such as the Central Bank of Sri Lanka, the international airport,” and the Mavilaru sluice gate, in the latter case depriving the populace of access to water.”
Even taking the highest figures ascribed to the deaths of Vanni civilians, assuming that there were up to 330,000 civilians in the NFZ as the Darusinan Report contends –7,000 of whom were killed– this presumes a loss of life of approximately 2% of that civilian population. The respected UTHR report compiled by a group of Tamil academics places the hostage” population at 300,000. If there were as many as 40,000 killed, this would be a loss of approximately 12% of that population. Whatever the figure in terms of a hostage rescue operation where some 295,000 were saved — it is a successful operation.”(THIS IS THE MOST IMPORTANT PART OF THE LEGAL OPINION)
GOSL, while declaring the NFZs, had to contend with LTTE efforts to utilise human shields to immunise their positions from attack. Once inside the NFZs, the LTTE carried out artillery and mortar strikes on security forces while simultaneously endangering the lives of the civilians in the area and shooting those that attempted to flee.” (REALLY… Did LTTE carry out artillery and mortar strikes while using civilians as human shields to immunise them from attack???)
Gordon Weiss, who was working on ground at the time of the conflict later stated, ….The population also served as a recruiting pool, a practice that would become more voracious and unforgiving as the fighting progressed. Just what proportion of those in the Tiger ranks were forced to serve against their will can never be known but it is certain that the rate of reluctant recruits increased dramatically as the last battles sapped the remaining experienced tiger stalwarts into the fight. There were numerous accounts of brutal forced recruitment of children in the final days, including the daughter of one UN staff member, who eventually managed to desert and escape the siege. Most ominously of all, there is good evidence that at least on some occasions the Tamil Tigers fired artillery into their own people. The terrible calculation was that with enough dead Tamils, but all would eventually be reached that would lead to international outrage and intervention…
Under the Rubenstein view, the fact that the LTTE was using their shielded position within the NFZs to carry out artillery strikes against GOSL forces represents precisely the sort of clear and present danger Rubenstein argued could logically support a diminution of the value of civilian casualties in a proportionality calculation.”
under the Dinstein view, the ultimate responsibility for civilian casualties resulting from the LTTE’s practice of taking and keeping hostages near military assets would fall on the LTTE and not the GOSL, since the laws and customs of war do not permit a belligerent to immunise a position from attack through the use of involuntary human shields. (please send a copy of this to OHCHR head and OISL as well as the PoE team of ‘lawyers’)
Under the Dinstein view, civilian casualties are a consequence of any military situation involving the use of involuntary human shields and so the analysis ends where they are intentionally used by one side to frustrate attacks by another.”
Under the prevailing view, the anticipated military advantage sought must be proportional to the civilians endangered in the targeting of that objective with no associated reduction in the value of civilian_ casualties. Yet, even under this view, which affords no leniency regarding civilian casualties, it is likely that one could find that the destruction of the LTTE and the removal of some 295,000 civilians from danger of death, a proportional amount of civilian casualties. This would be particularly so in view of the fact that it is now impossible to estimate what proportion of those civilians were killed by the LTTE firing upon them with a view to achieving an international propaganda victory by assigning those deaths to SLA forces.Indeed the arithmetic is further complicated by the number of LTTE fighters not in uniform whose deaths could be treated as civilian when in fact they were full combatants. (Let us also remember that some 12,000 LTTE cadres that surrendered did so wearing civilian clothing – if the SL Army were killers they could have easily shot all 12,000 dead)
In summary it appears that a proportionality analysis under either the prevailing view, or either of the scholarly views would support the legality of the operations carried out by the forces of the GOSL.
Discussion 4 : Did civilians lose their protected status by voluntarily becoming hostages’ to create a human shield to assist LTTE to gain military advantage?
Under customary international law, there is a distinction drawn between the protection afforded to civilians and the protection afforded to civilians taking direct part in hostilities.”
In both NIAC and IAC civilians enjoy protection from attack unless and for such time as they take a direct part in hostilities. In other words, when civilians directly participate in hostilities, they become lawful targets and are thus not taken into account in a proportionality assessment when military targets in their proximity are attacked.
Voluntary human shielding occurs as a matter of law when a person seeking to shield a position remains in an area with the intent to frustrate enemy operations. Several highly qualified publicists agree that when civilians voluntarily act as human shields in this manner, they may be considered to be taking a direct part in hostilities in appropriate situations. In such cases, depending on the site being shielded, the presence of civilians situations serving as human shields can directly cause actual harm to the attacking party even if it is passive, thus resulting in a discount or reduction of the value of that civilian presence in the proportionality analysis.
Discussion 5 : To what extent did 300,000-330,000 civilians voluntarily went with the LTTE as LTTE retreated after the fall of Kilinochchi on 2 January 2009?
Robert Blake, former American ambassador spelt it out eloquently when he stated, …As the Sri Lankan army was pushing north into the Tamil areas, the predominantly Tamil areas that were controlled by the LTTE for more than two decades, they displaced… the Sri Lankan army displaced a large number of Tamil civilians and they all began to move northwards. The LTTE systematically refused international efforts to allow those internally displaced persons to move south. To move away from conflict areas where they could have been given food and shelter and so forth. So they systematically basically refused all efforts and in fact violated international law by not allowing freedom of movement to those civilians. So had the LTTE actually allowed people to move south, none of this would have happened in the first place, so it’s important to make that point. I think that often gets lost in the debate on this…” (We hope Ambassador Blake does not regret he said this…)
but for the alleged hostage takings by the LTTE – either voluntarily or forced – there would have been no civilian casualties in any significant numbers.” (the long and short of the story is that no civilian would have got harmed in any way if LTTE had not forced them to come with them)
Sir John Holmes speaks as follows: As the LTTE retreated, the Tamil civilian population from the area they had controlled were going with them, which obviously exposed them to huge risks. How voluntary was this? It was hard to say for certain.”
it is extremely unlikely that some 20,000 cadres of LTTE, at that stage, could have taken up to 330,000 hostages against their will”. (Now this is a very important point…. How come OISL and PoE missed this)
probability is that a large section of the civilians went voluntarily with the LTTE in order to play a part, albeit passive, in the LTTE war effort. It is asserted that this effort included seeking international intervention on the basis of a humanitarian crisis. Such an intervention, if it occurred, would or may have prevented the LTTE leadership from losing the war, which, after their defeat at Killinochchi (2 January 2009) looked inevitable.” (we would like to know how many Tamils went voluntarily with the LTTE)
After the fall of Killinochchi there appeared to be a point of no-return for the Tamil Tigers. An important question that arises is the extent to which the civilian population voluntarily played their part in furthering the war crimes of the LTTE, even if only to achieve international intervention and thus preserve the LTTE leadership from losing the war.”
Discussion 6 : Did the customary principle of distinction relative to the SL Army’s operations get affected by LTTE’s decision to use combatants not in uniform to enter conflict with intent to gain military advantage by making it difficult to distinguish between combatants and civilians or to blur the distinction between civilians and combatants?
An adversary commits the crime of perfidy when he engages in an act that is intended to make the other party believe that it deserves protection under IHL in order to obtain a military advantage.”
The crime of perfidy is committed any time when simulating a civilian status with intent to deceive the enemy and obtain militancy advantage.
simply failing to wear a distinguishable military uniform is not, on its own, perfidious conduct. Additionally, conduct that constitutes the ordinary ruses of war”, such as the use of camouflage, mock operations, misinformation, and decoys – will not be considered perfidious because they are only designed to mislead the enemy rather than deceive him into believing that the actor deserves a protected status.”
Finally, perfidy, like most war crimes is often perpetrated by a multitude of persons . . . acting in unison or, in most cases, in pursuance of a policy”. As a general principle of customary international law, where all participants share the same intent to commit a crime, even if that intent did not extend to the ultimate result – such as death– all participants may still be held liable if the death was a natural and foreseeable result of their common criminal plan.
The ICTY has made it clear that IHL strictly prohibits the feigning of civilian status in an internal armed conflict under the rule against perfidy.”
State practice has also shown that those who conceal themselves as civilians in order to conduct an attack to be engaging in perfidious conduct. In U.S. v. Jawad a Military Commission Judge found that the government could prosecute an individual as an unlawful combatant for perfidious conduct as a result of feigning civilian status. In that case, the accused had dressed in civilian attire in order to approach U.S. military personnel and kill them with a grenade that he had concealed.”
The U.S. also utilised the principle that suicide bombings are sufficient to constitute the crime of perfidy in the al-Nashiri case where the accused was charged with using perfidious and treacherous conduct in the 2000 bombing of the USS Cole. The government alleged that he had masterminded the attack in which the attackers approached the USS Cole on a civilian vessel in order to get close enough to detonate its bombs. Israel has also historically adopted similar principles. In the 1994 Swarka case, an Israeli Military Tribunal found that two members of the Egyptian military had committed perfidy and could not benefit from POW status after disguising themselves as civilians in order to get closer to Israeli military forces and launch attacks from civilian territory. 105 Another example can be found in Afghanistan in connection with Operation: Enduring Freedom (OEF). In that scenario the Taliban used civilians to approach U.S. forces and attack them from residential areas, which ultimately forced them to wait for insurgents to attack and then attempt to ensnare them. This latter example illustrates one of the major problems the U.S. has faced as a result of perfidious conduct.
the LTTE amount to perfidy. It is alleged that the LTTE has had a long history of engaging in perfidious conduct throughout the 30 year conflict with the GOSL. For years, it allegedly disguised its attackers as civilians to gain access to the SLA forces and then kill them through the use of suicide bombs. In 2002, LTTE suicide bombers accounted for over one third of the total suicide bombings in the world.”
According to the UN Secretary General’s Panel of Experts Report on the conflict, the LTTE continued this practice during the last three months of the war in 2009 by conducting numerous suicide missions against SLA forces, which resulted in the deaths of civilians as well. These allegations of suicide attacks represent clear illustrations of perfidy because the LTTE allegedly disguised themselves as civilians in order to obtain better access to GOSL forces for the purposes of increasing effectiveness of its attacks.
A number of those fighting for the LTTE failed to wear a recognisable military uniform thus blurring the difference between LTTE fighters and civilians.
an- act of feigning civilian status with the intent of gaining an advantage amounts to unlawful perfidious conduct.” (add one more to LTTE guilt list)
As with most other war crimes, the party who intended the conduct to be carried out, as well as all co-perpetrators who shared the same intent may be held liable for consequences which were natural and foreseeable results of that conduct. Therefore, it is likely that one could find that the LATE had committed perfidy during the last three months of the conflict, and could thus be held liable for an unknown number of deaths that resulted. ……….this fact could potentially exonerate the SLA from liability for deaths resulting from their failure to precisely distinguish between lawful and unlawful targets.” (boo hoo… all the LTTE sympathizers must be disappointed)
the customary principle of Distinction between civilian and military targets is one of the fundamental principles of IHL. The principle of Distinction prohibits indiscriminate attacks, that is, those attacks that are not directed solely against military objectives.”
NIAC is the obligation to take all practicable precautions, taking into account military and humanitarian considerations, to minimize incidental death, injury, and damage to civilians.”
the general rule is that feasible precautions must be taken to avoid or minimize death and injury to the civilian population.””‘ Feasibility in this context is defined as those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations” and is an obligation which belongs to both attackers and defenders in a NIAC.
Especially in conflicts where asymmetric warfare is present, the weaker adversaries have resorted to acts of perfidy by feigning civilian status in order to make it difficult for the other to distinguish between appropriate military targets and civilians, and the instant case likely falls into this category of conflicts.” (exactly what the LTTE did)
this conduct has led to several instances in which the members of the side complying with IHL face the choice of either not responding in the face of danger or risking the lives of innocent civilians.” (exactly what happened – LTTE broke the laws and the SLArmy has to answer)
principle of distinction is usually violated in situations where the presence of members of an armed group in an area is used to justify the destruction of that entire area.”
statement made by the Sudanese Minister of Defence in 2005 that the presence of even one rebel was sufficient for making the whole village a legitimate military target.”
statement made by Mr. Stephen Smith, the Australian Minister of Foreign Affairs regarding the actions of the LTTE during the last three months of the conflict in Sri Lanka. There, the Minister expressly condemned the numerous civilian deaths as a result of the LTTE’s use of bombs and artillery” in the NFZs and targeting of civilians that attempt to leave the conflict zones as a violation of the rules of war.”
Blaskic, the ICTY held that the accused had committed grave breaches of IHL by indiscriminately killing Muslim women and children. In that case, amidst combat in the Lasva valley in April 1993, the soldiers under the direction of the accused indiscriminately fired artillery shells without regard for where the shells landed” and, even after the combat was over, the soldiers entered civilian houses while killing Muslim women and children.
in 2009, the Israeli High Court of Justice found that the principle of distinction was not violated during Operation Cast Lead” when the IDF hit medical transports, buildings, and ambulances with its rocket attacks toward Hamas. The Court reasoned that, because Hamas militants had resorted to using such locations traditionally protected by IHL, they became legitimate military targets and that the civilian deaths that occurred as a result were the responsibility of Hamas.”
Discussion 7 : LTTE’s liability for perfidious conduct and forced recruitment of civilians, execution of civilians trying to escape and placement and firing of their weapons from within civilian and hospital zones – who ?
most unlikely that the SLA could be held liable for incidental civilian deaths from any failure on the part of the SLA to distinguish lawful targets from civilians because the liability is more likely to fall upon the LTTE as the party intending to foster and exploit the environment which made distinction difficult in the first place.” (what a relief… our soldiers are exonerated…)
This principle of liability was illustrated by the Israeli Supreme Court in 2009 when it held Hamas was liable for the civilian deaths resulting from IDF strikes on otherwise protected objects due to Hamas’s decision to use those objects for their operations. It follows logically that civilian deaths area natural and foreseeable result of perfidious conduct intended to make it difficult to comply with the principle of distinction in the context of an armed conflict.”
it is clear that, the LTTE’s alleged engagement in perfidious conduct by feigning civilian status, blurring the distinction between combatants and civilians, compelling civilians into the front line, executing civilians who sought to escape, and generally putting civilians in harm’s way as a part of their strategy results in the LTTE having to bear the principle liability for civilian casualties. As noted, the principle of distinction requires that adversaries conduct attacks with discrimination and take all feasible precautions to minimize the civilian casualties.” (what have you to say now UNSG, PoE, OISL and OHCHR Head…. What a load of lies you have been telling the world and trying to promote hybrid courts undermining our sovereign status)
GOSL attempted to minimize civilian casualties by setting up NFZs and scaling down the methods of attack so that they were more precise. The area of the first NFZ was a fraction of the territory then controlled by the LTTE. Instead of conducting its warfare from that territory, the LTTE moved into the NFZ, demonstrating their intent to conduct their war against the SLA whilst embedded amongst civilians and civilian structures. 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. (THANK YOU – WHAT A RELIEF THAT THE LEGAL ARGUMENTS ARE IN FAVOR OF OUR WAR HEROES – THE SRI LANKA ARMED FORCES)
CONCLUSION
As unfortunate as it is, 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.” (ALL THE MEMORIALS NOW SHOULD FIND FAULT WITH LTTE AND NOT THE SRI LANKA ARMY… LTTE DIASPORA PLEASE TAKE NOTE)
LTTE likely committed the international crime of using human shields during an internal armed conflict.”(Finally – the War Criminals are LTTE and not the SLArmy)
According to principles derived from international court opinions like Mladic and Blaskic, any belligerent who conducts military operations in areas of high civilian concentration or forcefully places civilians in danger to make it difficult for the other side to comply with IHL has committed the crime of Human Shielding.” (Truth wins the day….)
By placing its military assets in the NFZs, attacking GOSL forces from therein, and forcing civilians to remain there at gunpoint, the LTTE is liable for the crime of Human Shielding. This is a very different picture to that which has been presented to the world by some commentators, namely, that the GOSL declared an NFZ in order to get civilians to locate themselves in that NFZ for the purpose of the SLA seeking to then eliminate them by shelling those very areas.” (The Propaganda Lies are now shredded to pieces)
This unlawful use of human shields by the LTTE is a legally operative factor in determining whether the GOSL’s attacks against the LTTE were proportional. As discussed, what impact human shielding has on proportionality is an unsettled area of the law. Of the many opinions that exist, the Rubenstein approach, which diminishes the protection requirement in the face of clear and present danger, is the best approach. The SLA complied with proportionality by endeavoring to create NFZs, however, the LTTE’s steadfast refusal to agree to such zones may be a clear indication that it was the LTTE’s intention that there should be no safe zones for Tamil civilians so as to be able to exploit such civilians for their own military or political advantage.
if civilians willfully participate in a human shield with the intent to assist in the military objectives of the LTTE, they are considered direct participants and lose their protected status, taking them out of the proportionality assessment. It is important to emphasize that any voluntary human shields are legitimate targets. (OUR ARMY ARE NO WAR CRIMINALS – LTTE ARE THE WAR CRIMINALS)
In conclusion, as the nature of conflict changes, IHL needs to keep abreast with modern asymmetric warfare so as to allow a rethinking of the rules of war that does not favour the violators of international law. Currently the West is faced with these very problems with organisations such as ISIS operating out of civilian and urban areas and endangering the lives of civilians. With such threats continuing to present themselves, Sri Lanka and the situation it faced in the recent past should help pioneer thinking in this regard towards a favorable resolution of the existing lack of consensus in this area of international law. At the end of the day the rule of law must govern the battlefield and civilians ultimately protected.
Thank you Prof. David M. Crane and Sir Desmond de Silva
These excellent points clearly shift legal blame to the LTTE and away from the hysteria generated over media by LTTE funded campaigns to which very powerful and influential people and organizations have played a part. These legal opinions are far superior to the shoddy reports that have come from the UN/UNHRC wherein the biased and vindictive nature is made clear. Is this racism coming to the fore?
What is this kangaroo court being recommended likely to do and that too the recommendations come from countries that have still to atone for centuries of racist colonial crimes they have committed. People of Sri Lanka must seriously wake up to realize that our soldiers did not commit war crimes and as such we should not agree to hold any type of court whatsoever. In so agreeing we are only paving the way to create a worser situation than in 1815 – we may not have a country at all. All these propaganda and humiliations is to make us feel guilty and repent? Why should we when clearly the international experts point all guilt to the LTTE. Its time that all of us now stand united and defend our forces without believing the lies that have been circulated globally only because the party that faces the guilt has the power of money and influence. Truth cannot be compromised by lies and money. Wake up Sri Lankans…
‘Nandasena started where Sirisena ended.’ That is the perception
in the minds of many people in the country, today.
Sirisena betrayed the country and her soldiers in 2015 when he
co-sponsored an anti-Sri Lankan Resolution containing the usual invective and
unsubstantiated accusations, disgorged regularly from the poop-houses in
Washington.
Sirisena is considered today a traitor by most, if not all, Sri
Lankans and history will condemn him so.
Is Nandasena back-stabbing Dinesh?
Where is Nandasena hoping to pitch his tent in 2021 when the UNHRC
takes up the anti-Sri Lankan proposal tabled by CORE?”
The grapevine has it that Nandasena is attempting to sidestep the
issue of asking the Non-Aligned Bloc to second and support Foreign Minister
Gunawardena’s proposal to reject outright the CORE proposal.
If Nandasena fails to mobilise the friendly countries in the HRC
chamber, the anti Sri Lankan proposal will be adopted unanimously, by
default.
War heroes sacrificed
If Nandasena co-sponsors or agrees to a consensual resolution or
is a party in any way to the anti- Sri Lankan proposal being adopted
unanimously by the UNHRC, for the want of the Chair not-calling for a vote, it
would be a clear signal that Nandasena is pitching his tent alongside Sirisena.
Such a move would signal Nandasena’s intention of collaborating
with America to betray Sri Lanka’s sovereignty and her war heroes; the soldiers
would be extradited to America and incarcerated in their prisons, any time the
Americans so determine. Some perhaps to be even incinerated in their
chairs.
Such a move would also mean that Nandasena has collaborated with
the Americans to permit American soldiers to peremptorily and unilaterally
invade Sri Lanka, if America decides that Sri Lanka’s actions threaten American
interests or if the Americans determine that Sri Lanka’s resources are vital for
America to achieve its objectives.
Carte blanche for American military interventions
And it would also mean that Nandasena has diabolically consented
to betray our friends in the Non-Aligned Movement and elsewhere, by allowing a
villainous concept to become etched into International law by precedence, which
would empower America to unilaterally invade any Sovereign Nation in the world,
at any time the Americans decide to do so.
This is the effectual gist of the CORE proposal based on
Bachelet’s dubious Report.
All the above would happen, if Sri Lanka fails to initiate action
to have Dinesh Gunawardena’s proposal seconded by a friendly country. Such a
course of action only, would force the Chair of the UNHRC to call for a vote.
The question being angrily tossed about these days is, Is
Nandasena deliberately side-stepping the issue of asking the Non-Aligned Bloc
to Second and support Gunawardena’s proposal to reject the CORE proposal, the
preliminary and mandatory step for a vote to be taken?”
If the Non-Aligned Movement is mobilised to Second and support
Dinesh Gunawardena’s outright rejection of the CORE proposal, it would compel
the HRC Chair to call for a vote, preventing the disastrous consequences of
adopting unanimously a ‘Consensual’ Resolution, when no vote could ever be
taken.
Bachelet and Nandasena agree Sri Lanka is a failed State?
If the CORE Resolution is adopted unanimously, for the want of a
vote not being taken, it would mean that Nandasena has accepted the position,
indicated by Bachelet, that Sri Lanka by her actions has demonstrated its
inability and unwillingness to pursue a meaningful path towards accountability
for international crimes and serious human rights violations.”
If the CORE proposal is adopted unanimously, without a vote, what
Nandasena is broadcasting to the world is ‘Yes, I agree, Sri Lanka is a failed
State. American intervention is necessary’
Are our heroic soldiers war criminals?
People demand from Nandasena, Tell us loud and clear, is this the
position you are taking? Are you telling the world (by accepting the Bachelet
Report) that Sri Lanka is a failed State? Are you telling the world community
that Sri Lanka’s soldiers committed international crimes and are in breach of
serious Human Rights violations?
Is Sri Lanka surrendering?
Colombage, the controversial Secretary in the Foreign Ministry,
said in that interview with Raymond, We are not willing to surrender without a
fight.”
Since Nandasena has not refuted this widely publicised statement,
it is presumed that Nandasena endorses this view.
What does Colombage mean therefore by saying ‘not willing to
surrender without a fight’? The operative word is ‘SURRENDER’.
Rephrased, Colombage’s statement would read, ‘We are willing to
surrender; only after a fight’.
Has Colombage once again, by a Freudian slip, let the cat out of
the bag? He is saying that ‘surrender’ is an option and that Nandasena has
endorsed it. Perhaps, the talks going on with the Enemy (the CORE group) to
change some of the wording of the Resolution, is the ‘mock’ fight that is going
on, before we surrender.
Even one vote for Sri Lanka is a victory for all sovereign States
No one in the Government or Opposition has spoken against or about
the insidious concepts neatly concealed in the Bachelet Report; these
dangerous, precedent-setting concepts would change the World Order for good and
permit unilateral American military intervention anywhere in the world; this,
only if the CORE proposal were adopted unanimously. Even if there were only one
vote in our favour, a very unlikely situation in the context of 35 NAM
countries being in the HRC, it is a victory for the free world.
So, what is this talk about ‘surrender’? Sri Lanka’s actions could
only be construed as surrender, if she allows the CORE-proposal to be adopted
unanimously, by consensus.
What is Nandasena upto? Is Nandasena doing a Sirisena?
Surrender is not in the vocabulary of the Sri Lanka Army
It is a disgrace that a former military officer like Nandasena,
whether average or less so, is even considering ‘Surrender’. That word is not
in the vocabulary of the Sri Lanka Army. Ask Sarath Fonseka, he will vouch for
that.
The Sri Lankan Army, when engaged in a defensive battle with an
Enemy whose firepower and manpower are superior by far to the Army, there is
never a question of surrender; they fight and defend their position to
the end, dying if needs be with their boots on.
That is the ethos of the Sri Lanka Army they fight to a
‘last-man-last-bullet’.
The Mahinda Rajapakse government sought the legal opinion of a group of distinguished international legal luminaries who have been involved in war tribunals and who knew the laws related to conflicts. Reading these expert opinions against the PoE and the OISL reports as well as the biased and interfering statements of the OHCHR head, many would realize that the UNHRC has been compromised and the question is by whom! The legal arguments and the laws quoted by these two distinguished legal luminaries are worth reading to understand the nature of the bias and one-sided propaganda based vendetta that the UN/UNHRC and others have stooped to.
Prof. Sir Geoffrey Nice QC is a barrister and has been involved in the war crimes tribunal for the former Yugoslavia. He prosecuted the ICTY the cases of the Bosnian Croat Dario Kordić. He has been involved in ICC and doing pro bono work for victim groups.
Rodney Dixon QC is an expert in international law, public law, and human rights. tttgchambers.com
Legal opinion on Law applicable to military operations in the final stages of the armed conflict
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. However none of these reports has considered properly, or at all, the complex legal standards applicable to military operations at the stage in a conflict that had been reached in this conflict in early 2009.” (PoE, C4, LTTE diaspora propagandists, all other lackeys joining false propaganda bandwagon and OISL please read this part over and over again)
As a minimum, 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 ……..requires very careful consideration to be given to the circumstances of any conflict before judgments about legality or illegality of military actions in the conflict are made publicly. The relevant law, it can be argued, should not be discussed in a casual way – in the press, on television, in international organisations etc – if its possible application to parties in armed conflict is going to lead to lasting condemnation of one side and exoneration of the other.” (we have heard nothing other than propaganda about Sri Lankan forces being war criminals)
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. Nor has any report –so far as is known – proposed alternatives to the military approach taken by the Government of Sri Lanka and backed up such proposed alternatives by expert military opinion” (there goes PoE into the dustbin)
the applicable legal standards did allow Sri Lanka Government forces to attack the LTTE and its military locations”
Any attack, aimed as it was at defeating and finally destroying the LTTE, would only have been lawful if civilian casualties were not excessive and disproportionate in the circumstances.”
To meet this test the Government forces would need to have assessed – as accurately as possible – the number of civilians at risk, a task made extraordinarily difficult where the LTTE were deliberately and unlawfully protected by civilian ‘human shields’ in embedded positions.”
assessments had to be made from a distance about whether the human shields were (i). voluntarily involving themselves in the hostilities and thus to be treated as legitimate targets under International Humanitarian Law (IHL), or (ii) were ‘hostages’ who had been forced to act as shields and / or perform military tasks.” (this is the question we have been asking UNHRC has not bothered to answer)
The Sri Lankan Government had a responsibility to recover its proper lawful authority but it had to comply with relevant international law.”
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.”
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.” (Please re-read this OISL & OHCHR Head)
The problem the Government faced was not one that, at the time, could be solved ‘on paper’ by lawyers any more than it could now be established by lawyers alone” (OHCHR please read)
The legal luminaries point out that a government’s military senior officers make judgements deeming it is lawful, and these judgements are made in the heat of battle and it is only military experts who will know the nature of these judgements. (PoE nor OISL sought independent military analysis of these decisions)
‘Instead it 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” (C4, PoE, OISL shame on you).
Key facts
No other known conflict has mirrored the characteristics of this decisive stage of the conflict in Sri Lanka when the LTTE was on the verge of being conquered after over 30 years of war”
LTTE in the final stages of the conflict exerted considerable control over large sections of the civilian population, many of whom were its supporters in the broadest sense, in the Vanni…… to protect the LTTE and advance its military cause” (note the underlined words)
LTTE ‘deployed’ the civilian population in various ways to support its war effort including by using them as ‘human shields’ and compelling them to serve as part of their armed forces and support their military objectives”
Much of this activity occurred in the Government’s designated No-Fire Zones where the civilian population gathered to seek protection. This strategy was employed by the LTTE in an attempt at any cost to prevent the Government from obtaining an outright military victory in the final months of the conflict as the LTTE faced a comprehensive defeat.” (OISL have you read these legal opinions???)
The Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka found that there were credible allegations” that in the time period between September 2008 and 19 May 2009 around 300,000 to 330,000 were held as hostage in the Vanni area by the LTTE and used as human shields at times to seek to avoid being vanquished.’ The Report states, inter alia, that:
(Quoting PoE report) Despite grave danger in the conflict zone, the LTTE refused civilians permission to leave, using them as hostages, at times even using their presence as a strategic human buffer between themselves and the advancing Sri Lanka Army. It implemented a policy of forced recruitment throughout the war, but in the final stages greatly intensified its recruitment of people of all ages, including children as young as fourteen. The LTTE forced civilians to dig trenches and other emplacements for its own defences,thereby contributing to blurring the distinction between combatants and civilians and exposing civilians to additional harm. All of this was done in a quest to pursue a war that was clearly lost; many civilians were sacrificed on the altar of the LTTE cause and its efforts to preserve its senior leadership. 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.”
The legal luminaries say that the LTTE used this tactic to draw international attention and intervention and to arrange a ceasefire to prevent its demise and buy time to re-group.
LTTE combatants fired artillery from civilian areas and from civilian installations in the No-Fire Zones in order to seek to shield themselves from attack by Government forces”
It is also reported that the LTTE continued to pursue its policy of using suicide bombers to target the civilian population during the conflict and even after it had ended
the lack of uniforms worn by LTTE forces often made it very difficult to be able to draw clear distinctions between civilians and armed forces”.
Darusman Report says LTTE’s positioning of mortars and other artillery among IDPs” and the fact that LTTE cadre were not always in uniform” led to retaliatory fire by the Government, often resulting in civilian casualties.”
The Darusman Report further found that forcefully using civilians to dig trenches and other military facilities contributed to blurring the distinction between combatants and civilians and exposing civilians to additional harm.” – this is important considering the application of the law on distinction and proportionality, particularly in circumstances when human shields are being employed either voluntarily or under compulsion.
Sir Geoffrey and Rodney Dixon quotes various reports
In 2011, Amnesty International published a report that concluded that, based on information independently gathered such as eyewitness testimony and information from aid workers, the LTTE used civilians as human shields and conscripted child soldiers.”
The ICRC Head of Operations for South Asia, Jacques de Maio, informed US officials that the LTTE were trying to keep civilians in the middle of a permanent state of violence.
A US cable of de Maio’s information states that the LTTE saw the civilian population as a protective asset’ and kept its fighters embedded amongst them.”
On 26 March 2009, the UN Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, John Holmes, informed the UN Security Council that the LTTE continue to reject the Government’s call to lay down their arms and let the civilian population leave, and have significantly stepped-up forced recruitment and forced labour of civilians … at least two UN staff, three dependents and eleven NGO staff have been subject to forced recruitment by the LTTE in recent weeks.”
Further reports stated that the LTTE used the protection and resources provided by the UN and various NGOs for military purposes: for example, boats given by `Save the Children’ tents from the UNHCR, and a hospital built with INGO support were found to have been used by the LTTE forces to bolster their military campaign.
The testimony of eyewitnesses like Dr. Shanmugarajah before the Commission of Inquiry on Lessons Learnt and Reconciliation in November 2010 may also be relevant. Dr. Shanmugarajah’s testimony described the time period from January to May 2009. He stated that his work at Kilinochchi and Mullaitivu hospitals, that was affected by the nearby fighting, included the treatment of both civilians and LTTE combatants who sustained injuries from shelling attacks nearby the hospital. He also stated that civilians would come to the hospital after being shot by LTTE forces for trying to move to safer areas.
Darusman Report found that the LTTE 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.”
On 26 March 2009, the UN Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, John Holmes, briefed the UN Security Council on the humanitarian situation in Sri Lanka stating that: The Government have promised on several occasions to refrain from using heavy weapons and to uphold a ‘zero civilian casualty’ policy. However, there are continuing reports of shelling from both sides, including inside the ‘no-fire zone, where the LTTE seems to have set up firing positions.”
On 27 January 2009, US Ambassador Robert Blake stated that The LTTE must immediately desist from firing heavy weapons from areas within or near civilian concentrations.”
On the same day, Ambassador Blake sent an Action Request to the Norwegian Ambassador, Torre Hattrem, noting that The U.S. has publicly urged the LTTE to allow IDPs freedom of movement and to not fire from positions in or near IDP concentrations .
In January 2009, the Bishop of Jaffna Rt. Rev. Dr. Thomas Savundaranayagam wrote a public letter to President Mahinda Rajapaksa stating: We are urgently requesting the Tamil Tigers not to station themselves among the people in the safety zone and fire their artillery — shells and rockets at the army. This will only increase more and more the death of civilians thus endangering the safety of the people.”
A US cable relaying information obtained from the ICRC Head of Operations for South Asia, Jacques de Maio stated that De Maio said that the LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred. They would often respond positively when the ICRC complained to the LTTE about stationing weapons at a hospital, for example. The LTTE would move the assets away, but as they were constantly shifting these assets, they might just show up in another unacceptable place shortly thereafter.”
Number of civilian deaths (leaving aside who was responsible for these deaths)
How many of these persons were directly participating in hostilities which would have allowed them to be legitimate targets under IHL?” (this question OHCHR and OISL evades to answer)
The Darusman Report claims that the figure for civilian deaths is a range of up to 40,000” but concedes that further investigation is required
Although the Darusman Report asserts that there are a number of credible sources” for this figure, none is identified and the Report fails to give any description or breakdown of the circumstances of each of these deaths, the basis for their alleged ‘civilian status’, or who may be responsible. (finally there are some people asking the correct questions… OISL we hope you have a copy of this)
Other sources estimate the figure to be much lower including a US State Department Report which stated that between January and April 2009 a figure of 6,710 casualties represented deaths of both LTTE cadres and civilians.
It also has to be taken into account that there is evidence that the LTTE sought to exaggerate the number of civilian casualties”. (please give a print out to OISL and OHCHR head)
The true number of people killed in the conflict is of critical significance to the application of the laws of war, especially in respect of whether any civilian loss of life (as opposed to deaths of persons who were killed while participating in hostilities) was proportionate to the military advantage of any particular attack or series of attacks (assuming that such persons were killed in these attacks and not by other means).” (we are now seriously wondering whether they were even born…!!!)
Applicable legal standards under International Law
1) Principle of Distinction, military necessity and proportionality, complexities of their application
2) Whether use of civilians in hostilities and as human shield (was a deliberate policy) to prevent military objectives from being attacked lawfully
1. Protection of Civilians and the Principle of Proportionality
Given that the conflict in Sri Lanka was an internal armed conflict, and not an international conflict, it should be noted that Additional Protocol II, which applies to internal armed conflicts, also prohibits the civilian population from being the subject of attack. Article 13 of Protocol II sets out similar protections as those provided in Protocol I.
IHL requires that parties to a conflict do not target and attack civilians and civilian population
Article 51(1) and (2), and Article 57(1) of Additional Protocol I prohibit attacks on civilians.
Article 52(1) provides the same protection for civilian objects Civilian objects shall not be the object of Attack or of reprisals.”
Military objects (whether individuals, equipment, locations etc), on the other hand, may be attacked.
Article 52(2) of Additional Protocol I provides that Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
Article 51 of Additional Protocol I prohibits parties from carrying out indiscriminate attacks which do not specifically strike a military object or employ a method or means of combat which can be specifically directed at a military object only.
In particular, any attack which strikes both military and civilian objects without distinction constitutes an indiscriminate attack and is prohibited
Therefore, a party is obligated to do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives.
The concept of military necessity requires a balance to be struck between protecting civilians and the necessities of military operations. It is described as a symbiotic relationship”28 where military forces in planning military actions are permitted to take into account the practical requirements of a military situation at any given moment and the imperatives of winning… winning the war or battle is a legitimate consideration, though it must be put alongside other considerations of IHL.”
ICRC notes that: The entire law of armed conflict is, of course, the result of an equitable balance between the necessities of war and humanitarian requirements. There is no implicit clause in the Conventions which would give priority to military requirements. The principles of the Conventions are precisely aimed at determining Where the limits lie; the principle of proportionality contributes to this.
The rule of proportionality is set out in Article 57 of Additional Protocol I.31 ….It is accepted that the loss of civilian life may be incidental and unavoidable during attacks on military objects, but a party to the conflict is obligated to refrain from launching an attack which would result in the 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. An attack anticipated to cause collateral damage which is excessive in relation to the military advantage must be cancelled or suspended and if carried out could be categorised as a prohibited `indiscriminate attack’
there is no clear rule on what constitutes excessive’ collateral damage or what is considered appropriate ‘military advantage’. In other words, there is no set formula or ratio (of civilian losses to the intended military advantage) to determine the proportionality of any given attack.”
The UK Manual on the Law of Armed Conflict notes that law is not clear as to the degree of risk that the attacker must accept. The ICRC accepts that it is a subjective evaluation, the interpretation must above all be a question of common sense and good faith for military commanders. In every attack they must carefully weigh up the humanitarian and military interests at stake.”
Evaluation of the proportionality of an attack, and whether the resulting collateral damage could be ‘excessive’ should thus be based on a thorough assessment of the prevailing facts
The ICTY has held that in determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.
In 2009 the US State Department issued a ‘Report to Congress on Incidents During the Recent Conflict in Sri Lanka’ which stated that: The principle of proportionality requires that parties to a conflict refrain from attacks on military objectives that would clearly result in collateral civilian casualties disproportionate to the expected military advantage. Accordingly, some level of collateral damage to civilians — however regrettable — may be incurred lawfully if consistent with proportionality considerations. All parties to a conflict must take all practicable precautions, taking into account both military and humanitarian considerations, in the conduct of military operations to minimise incidental death, injury, and damage to civilian objects.”
The Israeli Ministry of Foreign Affairs has stated that the core question, in assessing a commander’s decision to attack, will be (a) whether he or she made the determination on the basis of the best information available, given them circumstances, and (b) whether a reasonable commander could have leached a similar conclusion.”
The ‘military advantage’ of an attack must be weighed in the calculation against the civilian loss of life to determine whether the loss incurred was excessive and thus unlawful. The military advantage anticipated from a particular attack should be assessed from the standpoint of the overall objective of the military operation.
The ICRC has observed that the military advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces.”
Military advantage may legitimately include protecting the security of the commander’s own forces.”
In the ICJ’s Advisory Opinion on the use of nuclear weapons the Court did not rule out the use even of nuclear weapons in seeking a military advantage, stating:”the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake”
Additional Protocol II do not expressly include the principles of proportionality as set out in Additional Protocol I, they should be taken into account when considering the present conflict. It has been held that these rules apply in all conflicts irrespective of the nature of the conflict.44 In any event, in order to assess the lawfulness of the military operations in the present case, it is appropriate to draw on these principles and rules of IHL.
2. Use of civilians in the military campaign and as human shields
Use of human shields by parties to a conflict is prohibited under IHL. Article 51(7) of Additional Protocol I provides that: The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”
Use of civilian objects as shields is prohibited in Article 12 (4) of Additional Protocol I : Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.” The ICRC commentary on the Geneva Conventions notes that this prohibition applies in both international and non-international armed conflicts.
A distinction must immediately be drawn between those civilians who voluntarily act as shields, as opposed to those who are forced to participate in this unlawful activity. (we keep asking this, no one answers)
Those who voluntarily act as human shields and take part in hostilities lose their status and protections as civilians. They may be legitimately targeted while taking part in hostilities” and are not to be taken into account when assessing collateral damage.” (how many is that please!!!)
Article 51(3) of Additional Protocol I and Article 13(3) of Additional Protocol 11 both provide that civilians enjoy protection unless and for such time as they take a direct part in hostilities.” The ICRC commentary notes that once the civilian ceases to take part in the hostilities, the civilian regains his right to protection.
Involuntary or forced human shields…….retain their civilian status and protections under IHL at all times. In a situation where civilian or civilian objects are involuntarily used as shields, Article 51(8) of Additional Protocol I states that the violation of the prohibition against shielding shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the preliminary measures provided for in Article 57 [cited above] ,.5′ The ICRC’s commentary on Article 51(8) does not forbid attacks on military objectives in the event that they are shielded by civilians but explains that it is compulsory to apply the provisions relating to the protection of civilians before proceeding with such an attack.
Accordingly, the use of [involuntary] human shields does not necessarily bar attack on a lawful target” but the attack must nevertheless be conducted in accordance with the rules of IHL, including the application of the principle of proportionality to assess whether the military advantage of the attack outweighs the humanitarian protections afforded to the civilians in question. (We really hope that OISL and OHCHR head gets a copy of this)
The fact that the enemy has acted unlawfully and placed civilians in harm’s way can be taken into account as an important factor when assessing whether the number of civilian casualties is so excessive as to outweigh the military advantage. In other words, specific allowance can be made for the enemy’s unlawful conduct in the ‘proportionality’ calculation as it is inevitable that civilian casualties will be higher in these circumstances.
The UK’s Manual of the Law of Armed Conflict provides that if the defenders put civilians or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on those objectives”, and that The enemy’s unlawful activity may be taken into account in considering whether the incidental loss or damage was proportionate to the military advantage expected.””
The ICRC’s Model Manual on the Law of Armed Conflict for Armed Forces states that the attacking commander is entitled to take the defending commander’s actions into account when considering the rule of proportionality.” (thankfully no one associated with PoE and OISL took part in writing
Human Rights Watch on human shields used in the conflict in Iraq a military objective protected by human shields remains open to attack, subject to the attacking party’s obligations under IHL to weigh the potential harm to civilians against the direct and concrete military advantage of any given attack, and to refrain from attack if civilian harm would appear excessive.”
A policy paper from the US Joint Chiefs of Staff states that Joint force targeting during such situations is driven by the principle of proportionality, so that otherwise lawful targets involuntarily shielded with protected civilians may be attacked, and the protected civilians may be considered as collateral damage, provided that the collateral damage is not excessive compared to the concrete and direct military advantage anticipated by the attack.”
Leading scholars, experts and publicists in IHL have stressed that the proportionality assessment… cannot be detached from the shielding party’s actions and ought to take into account the incentive to illegally use civilians as human shields.”57 It has been explained that the measure of proportionality must be adjusted” particularly when the use of involuntary or unknowing human shields is part of a widespread or systematic policy.”58 The principle of proportionality must be applied but the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that — if an attempt is made to shield military objective with civilians —civilian casualties will be higher than usual.
A leading expert and publicist Major-General A.P.V. Rogers states that a court approaching the issue should take into account the use of human shields and give the necessary weight to this consideration so as to redress the balance between the rights and duties of the opposing parties which otherwise would be titled in favour of the unscrupulous.” (did the OISL or PoE do this? )
The basic rule is – 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. This rule is contingent on adherence to the laws applicable to military attacks – including respect for the principles of proportionality – but by taking into account that the ‘proportionality’ equation must be considered in light of the unlawful use by the opposition of civilians and by adjusting the proportionality ratio accordingly. Scholars contend this adjustment is necessary precisely to achieve greater protection for civilians”
Rubenstein and Raznai identify that use of human shields by a party can – in order to compensate for its military disadvantage, or, alternatively, to enhance its military capacity – effectively immunize a military objective from an attack by placing enough civilians at risk, thereby gaining a direct benefit from violating international law.” They explain that in these circumstances the application of the proportionality requirement should not shift the responsibility from the shielding party to the impeded one” as this increases – and perhaps even legitimizes – the danger to civilians during hostilities, rather than reducing it”. They add that if one party continuously and persistently uses civilians as shields, the adversary would eventually and inevitably forsake its commitment to spare civilians and would attack enemy combatants and targets despite the human shields’ presence. Ongoing and systematic use of civilians as human shields would justify this adjusted assessment, since it would also create an incentive to lessen the use of the human shields tactic, ultimately enhancing civilian protection during armed conflicts. (what have you to say now OISL & UNHRC head)
W. Hays Parks emphasises that While an attacker facing a target shielded from attack by civilians is not relieved from his duty to exercise reasonable precautions to minimize the loss of civilian life, neither is he obligated to assume any additional responsibility as a result of the illegal acts of the defender. Were an attacker to do so, his erroneous assumption of additional responsibility with regard to protecting the civilians shielding a lawful target would serve as an incentive for a defender to continue to violate the law of war by exposing other civilians to similar risk.
The ICRC has stated that if one of the Parties to the conflict is unmistakably continuing to use this unlawful method for endeavoring to shield military objectives from attack, the delicate balance established in the Conventions and the Protocols between military necessity and humanitarian needs would be in great danger of being jeopardized and consequently so would the protection of the units concerned”
An appropriate adjustment must therefore be made in determining whether the civilian loss is justified in circumstances in which the other side has violated IHL to itself seek to gain a military advantage. As has been noted, in these circumstances, ‘proportionality’ must itself be proportionate.
Application of these legal standards to factual circumstances
LTTE forces systematically used civilians as human shields in the final stages of the conflict to survive as a military force and gain military advantage. They took an estimated 300,000 to 330,000 civilians as hostages and their use as human shields for military purposes to defend LTTE’s military objectives constituted widespread violations of the prohibition on use of civilians and civilian objects as human shields. (you seriously have to wonder whether PoE or OISL or even UNHRC head knows the laws of combat!!!)
It would have been very difficult for the Government forces to determine at the time the extent to which these civilians were voluntarily serving as human shields, and were thus legitimate military targets while taking part in the hostilities.” …………..”the Government forces were entitled under IHL, however harsh this sounds, to regard the deaths of civilians who were forced to participate as human shields as in theory justifiable ‘collateral’ consequences of their attacks, given the military objective of the attacks.”
the Government forces would have been assisted by the rules of IHL which permitted commanders to adjust the ratio of civilian deaths as set against the intended military advantage in favour of the attainment of the military objectives given that the forces they opposed pursued a widespread unlawful policy of using civilians to seek to press their own military advantage and to undermine the military mission of the advancing forces.
” It might also be argued as reasonable for Government forces to have assessed the specific circumstances (involving tens of thousands of civilians being marshaled by the LTTE to avoid defeat at any cost in the final weeks of the conflict) to be at that end of the spectrum which would most favour a marked adjustment in the ‘proportionality’ calculation to take account of the widespread unlawful conduct of the LTTE and of the revealed past conduct of the LTTE to expose innocent civilians to death, for example by its policy of suicide bombings. As noted above, this policy continued in the final phases of the conflict and thereafter.”
The military objective of putting an end to the implementation of this policy and the obvious danger it caused to citizens, would be a factor that Government forces could have taken into account when assessing the proportionality of any attacks aimed at destroying the perpetrators of this policy and the collateral effects of such attacks on any civilians.”
It would seem that the Government forces would have been entitled to take into account a variety of factors at the time, which reasonable commanders in their same position would have thought necessary and prudent to consider when deciding on the nature, target and proportionality of any military attack”
There were undoubtedly LTTE military objects situated throughout the Vanni including in the No-Fire Zones which could be legitimately targeted with the aim of completely overwhelming and destroying the LTTE to bring to a conclusive end to this extended conflict.” (OISL and OHCHR please read this)
LTTE’s strategy was to use the civilian population of the Vanni (whether voluntarily or not) for the sole purpose of defeating the Government’s military campaign to conquer the LTTE and for the LTTE to continue to exist and be able to fight against the Government.”
As already highlighted, any assessment of the portion of civilians who were voluntarily assisting the LTTE, and hence participating in the hostilities, would have been extremely difficult or impossible to make accurately; but this could not of itself free the Government forces from their duty to act with the legitimate military objective of ending the conflict.”
Moreover, the 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.” (obviously UN & UNHRC in Air Conditioned rooms do not understand this)
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.”
Various reports indicate that LTTE forces fired artillery from civilian areas or near civilian installations to attempt to shield themselves from attack and total destruction. LTTE forces also stationed weaponry in civilian locations such as hospitals.”
LTTE forces were using heavy artillery which was fired from locations in the Vanni, including the No-Fire Zones. These weapons and locations would have been regarded as legitimate military targets and could themselves have been targeted with weaponry appropriate and proportionate to seeking the destruction of the LTTE’s weapons.”
Government of Sri Lanka stated throughout the conflict that it was actively distinguishing between civilians and those involved in hostilities in its planning of attacks. For example, in suggesting the demarcation of a ‘no-fire zone’ for keeping civilians and IDPs away from fight, the Government directed that the presence of Internally Displaced Persons (IDPs) and civilians should be taken in account, to guarantee their safety and security, in order to avoid any collateral damage. A US cable dated 27 January 2009 noted that the Government has gained considerable credit until this point for conducting a disciplined military campaign over the past two years that minimized civilian casualties.”
….there is no known case law that assists on the specific subject of proportionality in the context of human shields.”
Particular attacks and the overall pattern of attacks must fall to be assessed on the particular circumstances at the time and how they would have been known to the commanders charged with the mission of winning (and ending) the war.”
a well-established set of rules under IHL would permit some loss of civilian lives in the specific circumstances of the final phase of the conflict in the Vanni. It may also be argued that the justifiable number of such losses could take account of the opposing party’s unlawful reliance on the civilian population, which in the present case was by all accounts substantial and widespread and likely in the mid- and longer- term to lead to yet more substantial loss of life.”
It is clear from the above analysis of the law and from authoritative commentary (from the ICRC and from legal authorities of the ICTY and other courts) that assessments of the lawfulness of attacks must take account of the reaction of commanders on the ground to the situations they faced.
Post facto, such ‘would-be’ assessments can only be reconstructed by top-level military personnel from countries completely uninvolved in the conflict. This is an exercise those criticising the Government of Sri Lanka have not performed. (This is why we say we want experts from Russia, China, Venezuela, Cuba and countries who have had no links with LTTE or LTTE fronts
Conclusion
The Opinion sets out 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 generalised statements about the law that lack rigorous analysis. Similarly unfortunate would be any such inquiry failing to understand the need for calculations to be made of what, for any particular attack, would have been the assessments of the putative reasonable commander in the field.
The complete opinion of Sir Geoffrey Nice and Rodney Dixon – www.island.lk
Isn’t it a surprise that the diplomats and UN officials have woken up only after the conflict ENDED and chose not to ask any questions while the conflict was raging. Where were the UN and diplomats when the conflict was taking place? A Consultative Committee was set up in 2006 and this Committee met 28 times from 14 Oct 2006 to 11 May 2009. Sitting on this committee which met every two weeks were all of the top diplomats, UN officials, the Defense Secretary, the Armed Forces representatives, Public Officials covering the humanitarian rescue operation in Sri Lanka. This was the best forum to demand answers. Why did the UN officials and Diplomats keep mum?
Consultative committee
September, 2006, the President authorized the setting up of Consultative Committee on Humanitarian Assistance (CCHA). The grouping included ministers, senior officials, including Defence Secretary Gotabhaya Rajapaksa; top Colombo based diplomats and senior representatives of UN agencies – FAO, UNICEF and WFP. 1st meeting of the CCHA was on Oct 14, 2006 and the last meeting on 11 May 2009. Minutes of CCHA meetings are available with Jeevan Thiagarajah, executive director of the Consortium of Humanitarian Agencies (CHA) US, EU, Japanese, UN Resident/Humanitarian coordinator too had been represented in CCHA deliberations. The Colombo-based diplomats had direct access to Government Agents, Ms Imelda Sukumar (Mullaitivu), Vedhanayagam (Kilinochchi), Ms P.S.M. Charles (Vavuniya), Nicholas Pillai (Mannar), as they too were members of the CCHA.
The CCHA had met 28 times from Oct 14, 2006 to 11 May 2009 – why did no one raise issue of GOSL lapses during these 28 meetings without complaining years later to the OHCHR/OISL & PoE?
The former defense Secretary, Gotabaya Rajapakse is on record to say that none of these envoys had complained about shortage of food and other essential items, though there were requests for zinc sheets, cement and iron.
At a CCHA meeting on 30 March 2009 the UN Resident and Humanitarian Coordinator (R/HC) in Sri Lanka, Neil Bhune, estimated the maximum number of civilians trapped at 180,000.
The minutes of this meeting revealed that Ambassador Blake admitted that the LTTE was continuing to hold civilians against their will.
Did the PoE or the OISL have a look at the meetings of these meetings before throwing allegations that the Sri Lankan Government/Armed Forces did not supply food/medicines etc to the Tamils held by LTTE?
The Government has enough statistics to present the tons of food and essentials it sent to the war zone together with the items sent by UN. How come none of these statistics have been considered in making wild allegations against Sri Lanka even by Michele Bachelet who claims Sir Lanka was ‘starving’ the IDPs.
The GoSL must request the UNGA to investigate the entire UNHRC Resolutions against Sri Lanka for illegalities and violations of due process by the officials and bias and shortcomings or abuse of power of their office.
The Consultative Committee minutes are a good example of diplomats who did not have anything to say when they could have but are cooking up more than they can swallow for some hidden agenda.
Does the UNHRC have a mandate to judge international humanitarian law in an armed conflict?Sri Lanka’s conflict is defined as a non-international armed conflict where governing rules are IHL. Why is the UNHRC taking Sri Lanka to task based on human rights alone and that too human rights that are outside of the conflict. When the UNHRC attempts to cunningly use human rights over IHL, the Global South nations of the UNHRC must realize the dangers for their own countries by the intrusive resolutions being passed which in turn can be applied to their countries by the precedents being created. Why has Sri Lanka’s Foreign Ministry & Legal Advisors not demanded UNHRC or the international community stick IHL and bring forward allegations of violations with facts & evidence instead of plucking non-conflict related human rights issues which can easily be taken up at universal periodic reviews of UNHRC.
Human Rights Law is displaced by International Humanitarian Law during an Armed Conflict. This does not mean human rights law is invalidated within the zone of an armed conflict. What it does mean is that where rules of war are concerned the applicable laws are IHL which follow the maxim lex specialis derogate legi generali (where norms deal with the same subject, priority is given to the norm that is more specific – which is IHL and not IHR) Thus, lex specialis is humanitarian law. ICJ accepts this too. Human Rights Law is applicable in an armed conflict but it cannot conflict with IHL. Wherever there is a conflict, IHL prevails.
What are the LAWS applicable to a Non-International Armed Conflict?
LTTE recruitment of children as child soldiers –
LTTE violated fundamental rights of a child to education/violated Article 26 of the UN Declaration of Human Rights / Geneva Convention IV Article 50/ Additional Protocol I of 1977 Article 77(2) / Additional Protocol II of 1977 Article 4(3)(c) / Convention on the Rights of the Child 1989 Article 38(3) /
LTTE violated Principle of Distinction (Rule 1, 2, 5, 6, 7, 8, 9, 10)
Rule 1 LTTE had a civilian armed force & combatants fought in civilian clothing & herded civilians with purposeful intent to put civilian life at risk & as a defense.
Rule 2 LTTE fired at fleeing civilians and fired from among civilians
Rule 5 LTTE herded civilians with them knowing they were putting civilian lives at risk
Rule 6 LTTE did not protect civilians against attack and forced civilians to engage in hostilities by forcibly recruiting civilians and giving them short training & sending them to the war front (such civilians engaging in hostilities do not qualify to be classified as civilians as LTTE were using them as a military objective)
Rule 7 LTTE herded civilians into the safe zone demarcated for only civilians and fired from among civilians. LTTE even fired at civilians fleeing LTTE
Rule 8 LTTE fired from among civilians inside the safe zone which was not meant for LTTE. Sri Lanka Armed Forces had every right to return fire because LTTE was prohibited to fire from among civilians.
Rule 9 LTTE used civilians as objects
Rule 10 LTTE did not protect civilians against attack.
LTTE violated Principle of Indiscriminate attacks (Rule 11, 12, 13)
The safe zone was meant for civilians. It was not an official demarcation but the SL Armed Forces dropped leaflets in Tamil and spoke over loudspeakers advising civilians to seek shelter in the safe zone. Knowing this, LTTE committed a grave violation by not only entering the safe zone with the civilians but firing from among civilians putting civilians on the line of fire.
LTTE violated Principle of Proportionality in Attack (Rule 14-24)
Rule 14Sir Geoffrey Nice QC & Rodney Dixon QC international terrorist experts concluded in their report that applicable legal standards did allow Sri Lanka Armed Forces to attack the LTTE & its military locations. Under IHL civilian casualties are allowed though to precise number but requiring to be commensurate to the aim of defeating LTTE. Such an assessment should be by independent top-level military personnel (not NGO panelists like Sooka)
Not only did LTTE use civilians in hostilities, LTTE had a trained armed civilian force, it kept civilians as human shields and hostages and fired from among civilians. On 27 January 2009 US envoy Robert Blake publicly stated LTTE must immediately desist from firing heavy weapons from areas within or near civilian concentrations”. This clearly exposed LTTE.
Then there was the US cable with ICRC Head of Operations for South Asia, Jacques de Maio stating that ‘LTTE commanders objective was to keep the distinction between civilian and military assets blurred”
LTTE did not fire wearing uniforms further confounding distinction.
IHL requires parties not to target civilians but military objectives can be attacked.
In creating a safe zone and asking civilians to move into it – the Sri Lanka Army did its part to safeguard the civilians.
Rule 15– In joining the civilians inside the safe zone and firing from inside the safe zone – LTTE were violating the rule of IHL. Collateral damage is allowed. If by the statistics of dead which was below 8000 including LTTE, this loss is certainly acceptable considering Sri Lanka Armed Forces saved 300,000.
Rule 16The LTTE violated this principle that requires it to verify targets as military objectives – LTTE fired at fleeing civilians and killed them. No one knows how many civilians LTTE killed in this manner.
Rule 17LTTE violated this principle by not taking precautions to avoid, minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.
Rule18The Sri Lanka Armed Forces took every precaution to avoid incidental loss of life to civilians. However, LTTE broke all rules.
Rule 19Firing from among civilians knowing Sri Lanka Armed Forces had every right to return fire, by LTTE was with purposeful intent of putting civilians lives in jeopardy.
Rule 20LTTE violated this principle of not giving advance warning of attacks affecting civilian population because LTTE was firing from among civilians.
Rule 21Again LTTE was in violation of this principle as LTTE chose to fire from among civilians expecting the Armed Forces to return fire and thus cause civilian casualties.
Rule 22LTTE was in violation of this principle that required it to take all precautions to protect civilians under its control – LTTE was actually putting civilians in harms way and even firing at fleeing civilians.
Rule 23LTTE violated this principle that required it to avoid military objectives within or near densely populated areas – LTTE fired from inside the safe zone and LTTE fired from hospitals and schools keeping civilians with them
Rule 24LTTE did not remove civilians under its control from vicinity of military objectives – instead LTTE used civilians and kept them in the line of fire.
LTTE violated Principle of Protecting Special Persons & Objects – medical & religious (Rule 25-30)
Rule 25LTTE violated this principle by forcing doctors working in the hospitals to lie and give false figures
Rule 26 In all probability LTTE violated this principle too as the doctors working in the conflict zone were not allowed to follow medical ethics.
Rule 27This principle required religious personnel to be respected and protected – they however lose that protection if they commit anything outside their humanitarian function. It is good to evaluate the religious personnel who were with LTTE during the conflict & their conduct. No such religious persons were with the Sri Lanka Armed Forces.
Rule 28LTTE did not allow medical units to function as per their purpose.
Rule 29LTTE forced medical transports to be used for its advantage – even essentials sent for civilians were confiscated and given only to LTTE & their families.
Rule 30LTTE did attack UN convoys and even ship carrying medical and essentials to the conflict zone.
LTTE violated Principle of Humanitarian Relief Personnel & Objects (Rule 31-32)
Rule 31 LTTE did not respect humanitarian relief personnel nor protected them
Rule 32 LTTE was using hospitals and schools to nurse LTTE while the same venues were used for civilians while LTTE fired from these places
LTTE violated Principle of Personnel & Objects in Peace Keeping Mission (Rule 33)
Rule 33 – LTTE fired at convoys carrying relief, including ships
LTTE violated Principle of Journalists (Rule 34)
Rule 34 – there were no journalists with LTTE unless they were part of LTTE, while the journalists with the armed forces were given fullest protection by the troops
LTTE violated Principle of Protected Zones (Rule 35-37)
LTTE violated these principles
LTTE violated Principle of Cultural Property (Rule 38-41)
This violation occurred across the 3 decades of conflict, where LTTE stands guilty of attempting to destroy Sinhala Buddhist cultural heritage to secure their argument for an exclusive Tamil Eelam.
Principle of Works & Installations Containing Dangerous Forces (Rule 42)
Avoiding installations containing dangerous dams, dykes, nuclear etc to be avoided to prevent loss of civilian life.
This would need to be further investigated.
LTTE violated Principle of Natural Environment (Rule 43-44-45)
LTTE destroyed natural environment not only during the final phase of the conflict but throughout its terror rule. Imagine constructing a swimming pool in the middle of the Vanni jungles!
Principle of Special Methods of Warfare – No Quarter Given (Rule 46)
Meaning no survivors is regarded a war crime. The rule may be applicable where LTTE shot dead Tamils attempting to flee them which was a violation of Article 3 of the Geneva Convention guaranteeing prohibition of murder.
LTTE violated Principle of Attacking persons recognized as hors de combat (Rule 47)
LTTE violated this rule by not only attacking Tamil civilians some who were injured but also attacking injured soldiers/unarmed soldiers.
Principle of Attacking persons parachuting from aircraft in distress (Rule 48)
There are enough of instances that LTTE have violated this fundamental principle
LTTE violated Principle of destruction & seizure of property (Rule 50)
Enough of instances prevail where LTTE has seized property belonging to adversary
LTTE violated Principle of access to humanitarian relief (Rule 52-53-54-55-56)
This is an area that UNHRC has purposely omitted from investigation as the essential relief sent to the Tamil civilians were not only inflated in numbers but were confiscated to be given only to LTTE combatants & their families. That Tamil civilians were in starvation was apparent from interviews given by them revealing the manner essentials were stolen by LTTE and not given to them.
LTTE thus stands guilty of attempting to starve the civilian population which was a violation of Rule 53 Customary IHL.
LTTE also broke Rule 54 of attacking & rendering useless objects indispensable to the survival of civilians
LTTE also broker Rule 55 as the humanitarian relief sent to civilians was denied to them
LTTE violated Rule 56 as civilians were denied freedom of movement to access the humanitarian relief sent to them.
LTTE violated Principle of International Humanitarian Law (Rule 57)
As is clear, LTTE violated all international humanitarian law –but the question is why were none of these taken up by the OISL or even UNHRC or those drafting resolutions against only the armed forces of Sri Lanka?
Principle of While Flag (Rule 58)
The military attaches of the UK and US embassies in their secret memos to their governments clearly have debunked the myths surrounding the white flag, another ruse unfairly used against Sri Lanka Armed Forces.
Principle of Improper use of Distinctive Geneva Emblems (Rule 59-60-61-62-63)
This would require to be further investigated
Principle of Concluding agreement to suspend combat with intent of surprise attack (Rule 64)
This would require to be further investigated
LTTE violated Principle of killing, injuring, capturing adversary for perfidy (Rule 65)
The best example of this was the killing of 600 policemen by LTTE, as they were asked to surrender and instead ended up being slaughtered one after the other. Enough of occasions, LTTE has violated this Rule.
Rule 66, 67, 68, 69 – cover Communication with the Enemy
Rule 70 – cover Principles on the use of weapons
Rule 72 – cover use of poison or poisoned weapons
Rule 73 – cover use of biological weapons
Rule 74 – cover use of chemical weapons
Rule 75 – cover use of riot-control agents
Rule 76 – cover use of herbicides as a method of warfare
Rule 77 – cover use of bullets which expand/flatten in the human body & is prohibited
Rule 78 – cover use of anti-personnel bullets which explode in human body & is prohibited
Rule 79 – cover use of weapons which are not detectable by x-ray in the human body
LTTE violated Principle of using booby-traps (Rule 80)
LTTE’s use of suicide human beings put civilian life in jeopardy when LTTE disguised as a civilian blew herself up at a civilian-refugee receiving centre killing scores of Tamil civilians and Army personnel
LTTE violated Principle of Landmines (Rule 81-82-83)
There are enough of examples of LTTE using landmines on civilians across 3 decades of terror.
The recently released video-footage of LTTE experimenting land mines using dogs was also shocking. This was the first time a terrorist organization was using animals for its terror experiments.
It must be noted that the Sri Lanka Armed Forces applied Rule 83 in ensuring the areas occupied by LTTE were free of landmines before settling people back to their homes. However the international community insisting that IDPs return home before such landmine checking makes any to wonder what the real intent was in their demand!
LTTE violated Principle of Incendiary Weapons (Rule 84-85)
LTTE took no care to protect civilians whom they herded to be used as human shields and hostages and even shot at them for trying to flee. These civilians were even used to engage in hostilities and many would have lost their lives as a result. However, LTTE must be faulted for violating of this Rule of IHL.
LTTE violated Principle of using blinding laser weapons (Rule 86)
this would need to be further investigated
LTTE violated Principle of Treating civilians & injured persons (Rule 87-88)
LTTE has violated this fundamental Rule as civilians were used in hostilities, given only basic training and injured combatants were put into buses and these were blown up. How many combatants LTTE killed in this manner is not known and UNHRC is obviously not interested to find out.
Children as young as 7 years were taken as child soldiers – how many such children met their sad death is also not known.
The elderly were also handed guns & ordered to shoot – how many such died engaging in hostilities is also unknown.
However, none of these deaths qualify as civilian deaths if they were engaged in hostilities.
LTTE violated Principle of Murder (Rule 89)
LTTE not only murdered fleeing Tamil civilians, LTTE also murdered injured LTTE combatants
LTTE violated Principle of Torture, Inhuman treatment (Rule 90)
The manner that children & elderly were forced to take up arms and fight has to be condemned as an act of torture and inhuman treatment and degradation. Why is the UNHRC and international community silent about this?
LTTE violated Principle of Corporal Punishment (Rule 91)
How many LTTE combatants, child soldiers did LTTE punish for not following orders and injuring them for life?
Why doesn’t the UNHRC investigate into this?
Principle of mutilation, medical/scientific experiments (Rule 92)
Principle of rape & sexual violence (Rule 93)
There are allegations that LTTE female combatants to sexual misadventure by LTTE male combatants and this has been hushed up without investigation.
LTTE violated Principle of Slavery (Rule 94-95)
LTTE forced combatants to dig the bund that was to protect LTTE from the Sri Lanka Armed Forces. Throughout LTTE rule, whether LTTE combatants were paid or were looked after is unknown.
It’s surprising that the OISL and UNHRC never raised this too.
LTTE violated Principle of Taking hostages /human shields(Rule 96-97)
This was a very clearly violated principle by LTTE having herded almost 300,000 people to be used as hostages and human shields and was the reason for collateral damage of civilian lives. Again why OISL, UNHRC or the international community ignore this important Geneva Convention violation is baffling.
LTTE violated Principle of Enforced Disappearances (Rule 98)
Both LTTE and the Sri Lanka Armed Forces are accused of this violation & require to be investigated with facts and evidence.
LTTE violated Principle of Arbitrary deprivation of liberty (Rule 99)
By denying Tamil civilians their right to seek shelter and safety, LTTE violated this principle. Again why UNHRC and IC are not bothered about these violations is also baffling.
Principle of fair trial (Rule 100-101)
The kangaroo court that the UNHRC is advocating, based on hearsay from LTTE remnants living overseas and parroted by NGO heads on payroll is being used to put a national army on trial without presenting facts & figures with evidence. The People of Sri Lanka stand up in unison against this blatant violation of Customary IHL.
Rule 101 declares that no one can be accused or convicted of a criminal offence or an act of omissionwhich did not constitute a criminal offence under national or international law – therefore, it is wrong for the UNHRC to judge the national army of Sri Lanka on hearsay only.
Rule 102 – declares that no one may be convicted of an offence except on basis of individual criminal responsibility– the allegation of 40,000 killed comes with no proof of names, dead bodies or even skeletons but the UNHRC wants an entire army to be declared war criminals
Rule 103 – declares collective punishment as prohibited
This is exactly what the kangaroo court of UNHRC via its resolutions is aiming at.
Rule 104 – convictions and religious practices of civilians and injured must be respected
LTTE violated Principle of respecting Family Life (Rule 105)
LTTE violated this by kidnapping even children – breaking up homes, denying fundamental rights to education for children, freedom of movement or even peace of mind to Tamils
LTTE violated Principle of Combatants & Prisoners of War (Rule 106-107-108)
Prisoner of War status is only applicable to International Armed Conflicts not NIAC
Rule 106 requires combatants to distinguish themselves from civilians – LTTE violated this fundamental rule. LTTE fought in civilian clothing and LTTE had a civilian trained unit. None of these fighters can claim to be a civilian if shot at.
LTTE violated Principle of wounded, sick, shipwrecked (Rule 109-110-111)
LTTE attacked ships carrying essential items for civilians. LTTE sent its sea tigers to attack such vessels carrying relief. LTTE even sent a suicide bomber to a relief centre accepting IDPs many of whom were elderly and injured.
LTTE violated Principle of evacuating dead (Rule 112-113-114-115-116)
LTTE attempted to destroy evidence of its combatants by blowing them up while living
Enough of LTTE video footage show how inhumanely LTTE treated dead Sri Lanka Army soldiers.
LTTE violated Principle of Missing Persons (Rule 117)
LTTE and LTTE fronts are claiming 40,000 dead/missing but is unable to provide even the names of the supposed dead, or even family members of the supposed dead.
LTTE violated Principle of Depriving Liberty (Rule 118-119-120-121-122-123)
LTTE denied Tamil civilians food, water, clothing, shelter and medical attention. It is mind boggling that the OISL and UNHRC ignore this fact revealed even by the IDPs.
LTTE also denied women their right to liberty by forcefully turning them into fighters
LTTE denied children their right to liberty by turning them into child soldiers and even training them to commit suicide by biting cyanide capsule.
Rule 121 requires Tamil civilians to have been kept separate from the combat zone – LTTE actually herded them as hostages and human shields and denied them basic health & hygiene.
Rule 122 required LTTE to refrain from pillage of personal belongings – LTTE stole house, property and lands of Tamils including writing their deeds in LTTE names. These need proper investigation.
LTTE violated Principle of Non-International Armed Conflict (Rule 124)
ICRC was in the conflict zone throughout and ICRC communiques reveal in detail their role.
But, on many occasions ICRC was not allowed by LTTE to inspect
Rule 125 – persons deprived of liberty allowed to correspond with families – LTTE did not allow such
Rule 126 – An allegation against the Sri Lanka Armed Forces is that civilian IDPs were held in internment camps and not allowed out and did not have access to relations. This was not true and can be proven with facts. The initial stages no one was allowed out until screening process was complete as well as the clearance of land mines etc.
Rule 127– Personal convictions/religious practices respected – the IDP centres all catered for this
Rule 128– No sooner that it was safe for the IDPs to return to their homes, they were released. Within months of the conflict ending, IDPs were able to return to their homes or to relations. World IDPs that run into millions are still to return home!
Rule 129– In a NIAC, the GoSL had every right to put up IDPs in centres to protect them from the conflict until such time alternatives were prepared for their return. The security and safety of the civilians were taking into account
Rule 130– applies to only IAC
Rule 131– The GoSL took every measure to provide the basic facilities to the IDPs and these were inspected by the ICRC and the UN officials arriving. All of them praised the efforts in Sri Lanka but returning to Geneva years later, they tell a different story. Wonder why?
Rule 132– Displaced have a right to voluntary return to homes – this was allowed once land mining was cleared
Rule 133– Property rights of displaced. It is important to note here that simply claiming entitlement to a land area without proof and carrying out media campaigns is not the best way to claim land. But this is the path being opted unfairly.
LTTE violated Principle of Special protection for needs of women (Rule 134)
LTTE used women even grandmothers when fighters were in want. Where’s UNHRC about women’s rights?
LTTE violated Principle of Children entitled to special respect & protection (Rule 135-136-137)
LTTE violated this principle by having an entire unit of child soldiers trained to kill. Where was UNHRC?
LTTE broke Rule 136 in recruiting children – what did UNHRC do about this?
LTTE broke Rule 137 in putting children to engage in hostilities – what did the UN do about this? 1/3 of LTTE comprised child soldiers
LTTE violated Principle of elderly / disabled and infirm given protection (Rule 138)
LTTE violated this Rule by putting the elderly in harms way, not feeding the elderly, not allowing the elderly to leave, and even engaging elderly in armed hostilities.
LTTE violated Principle of Compliance with IHL (Rule 139-140-141-142-143)
LTTE may be a terrorist organization. LTTE may not sign conventions or treaties. But LTTE was bound to comply with international humanitarian laws. LTTE flouted all of these Rules.
It is questionable why Sri Lanka’s legal advisors did not take the violations of IHL and the requirement to be judged by violations of IHL to argue one’s case against the bogus charges being cooked up by NGO’s lobbied by LTTE fronts.
Rule 143 requires teaching of IHL to civilians and this must be included as a special subject in Sri Lanka.
Rule 144 – requires States must not encourage violations of IHL
Rule 145 -146-147 – applicable to IAC
Rule 148 – Parties in a Non-International Armed Conflict cannot resort to belligerent reprisals.
Rule 149 – A State is responsible for violations of IHL whether state or non-state. If a State is responsible, then the State is permitted to take action to ensure IHL is not violated. In so doing, Sri Lanka cannot be found fault with.
Rule 150 – State is responsible for violations of IHL to make full reparations for loss or injury
Rule 151 – Individuals are criminally responsible for war crimes they commit. Therefore the question is why have LTTE combatants not been charged?
Rule 152 – Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.This has to be proved with facts & evidence, not on hearsay by LTTE runaways and their NGO heads!
Rule 153 – Commanders & superiors are criminally responsible for war crimes committed by subordinates if they knew, or had reason to know that these were to be committed and no action was taken to prevent such.
Rule 154 – Combatants can disobey a manifestly unlawful order
Rule 155 – Obeying superior order does not relieve subordinate of criminal responsibility if subordinate knew act ordered was unlawful.
Rule 156 – Serious violations of IHL constitute war crimes
Rule 157 – States have right to vest universal jurisdiction in national courts over war crimes
Rule 158 – States must investigate war crimes committed by nationals or armed forces on their territory and prosecute suspects – evidence must prevail
Rule 159 – at end of hostilities authorities must grant broadest possible amnesty in a NIAC – the GoSL gave a presidential pardon to 594 child soldiers of LTTE treating them as victims.
Rule 160 – Statutes of limitation may not apply to war crimes
Rule 161 – States must make every effort to facilitate investigation of war crimes and prosecution of suspects. The problem we have is that we do not wish to have UNHRC create kangaroo courts where the national army are given retributive justice while LTTE terrorists are given restorative justice.
Why does Sri Lanka not demand the UNHRC to present with facts& evidence Sri Lanka’s violations of IHL during the final phase of the conflict instead of meekly accepting the cooked up human rights allegations most of which do not even cover the conflict but are seeking war crimes charges quoting the final phase of the conflict.
Pro-LTTE and people living off LTTE kitty will not like to hear this but, whatever the collateral damage that took place during the final phase of the conflict is unfortunate, but it brought to an end 30 years of terror & deaths, it prevented LTTE terror taking place since May 2009 and that to all Sri Lankans is what matters. Sri Lanka’s Armed Forces saved close to 300,000 Tamils sacrificing 6261 armed forces personnel while also accepting close to 12,000 LTTE combatants who surrendered. The on the ground estimates, place the dead at less than 8000. To have saved 300,000 lives at the cost of 8000 deaths and to have ended 30 years of terrorism in 3 years, we think deserves a thumbs up to Sri Lanka’s Armed Forces.No National Army in the world has carried out a military intervention combined with a humanitarian rescue operation to end 30 years of terrorism in just 3 years. Sri Lanka must be judged on this achievement against the unfortunate collateral damage of 8000 civilian” dead.
The UN Country Team gave 7721 killed (Aug 2008 to 13 May 2009)with 18,479 injured.
A Survey conducted by GoSL in the North placed the dead at 7400and missing at 2600.
A Population survey by Tamil Teachers in the North in July 2011covering migration, deaths, untraceable persons from 2005 to 2009 revealed 7896 deadand 1102 dead from natural illness/sickness.
So we have 3 figures 7721 / 7400 / 7896 on the ground figures which can be proved as against guestimates that run into 40,000, 75,000, 125,000 and even 200,000 supposed to be dead. Out of curiosity, just to even believe this number can those make these wild allegations kindly produce the names or some form of IDs of the dead. So far its been 12 years and haven’t even found a mass grave to have dumped 40,000 dead!
So we think this collateral damage of 7721 dead is worth 12years of no LTTE, no LTTE terror, no LTTE assassinations, no LTTE suicide missions, no LTTE child soldiers.
But the global policemen, the self-appointed human rights angels & democracy deliverers wish to present a fake picture of what took place in Sri Lanka while hiding their sordid record of collateral damage by illegal interventions upon nations that had no harm or even threatened them.
According to Long War Journal, Bureau of Investigative Journalism 90% of people killed by US drone strikes were not intended targets.
How is it that Western scholars get away claiming ‘systematic weakness in counting civilian casualties from NGOs, media citing inherent lack of many things but the same is not applicable to Sri Lanka?
The US has even redefined non-combatants. US has decided that all military-aged males in the vicinity of a target are deemed to be combatants. Now imagine if this was applicable to the area the LTTE was confined to with a minimum 10,000 civilian armed LTTE unit?
President Obama drops 26171 bombs in a single year and walks away with the Nobel Peace prize. All military-aged males killed in these air strikes were declared combatants. How’s that for human rights!
In 2019, a Presidential executive order revoked requirement for US intelligence officials to publicly report number of civilians killed in counter terrorism missions. The same country that is hiding civilian deaths by them are demanding accountability from Sri Lanka – is this not hypocrisy?
Costs of War Project at Brown University, USA claims US air strikes in Afghanistan has increased civilian fatalities by 330% since 2017. The US study claims in 2019 alone 700 civilians have been killed by US & Allies – the very countries presenting resolutions against Sri Lanka!
According to Save the Children an average of 5 children have been killed or wounded every day since 2006 (14 years) – that’s over 25,550 children killed! Why have we not seen UN or UNHRC come forward to stop the killing of children in Afghanistan?
Without wasting time on Sri Lanka, a conflict that ended in 2009 and with peace from LTTE for 12 years, why is the UN & UNHRC not trying to stop carnage of children from US & Allies air strikes?
Why is this collateral damage from illegal interventions not a concern for Michele Bachelet or UN Chief Antonio Guterres? Shouldn’t they be using the UN system to prevent killing of innocent unarmed civilians especially when these conflicts are illegal and with no UN mandate?
It is because of these blatant hypocrisies and biases by the UN and its officials that the People of Sri Lanka are confronting the baseless allegations being made most from LTTE sources and blurting by mouthpieces funded by LTTE kitty.
Saving 300,000 lives against the loss of 7721 lives, we think is worth the 3 years that took to end 30 years of terror. We really don’t care what the world says, as in our eyes our war heroes did what no national army could even dream of doing. The War on Terror was declared by US & Allies in 2001 – can they tell us what war against terrorism they have won against the deaths and destruction of nations they must be held accountable f or?
We suffered 30 years of terror. UN or UNHRC or the diplomats did nothing to stop LTTE killing.
When LTTE was vanquished in 2009, the UN, UNHRC and diplomats are asking how and why. This speaks volumes of their real intent. They never wanted Sri Lanka to end terrorism or LTTE.
Well, we are sorry to say the LTTE ground force is no more, the best they can now try to do is to put Rudkrakumaran into a tiger uniform and send him to the Vanni with the LTTE Diaspora brats regularly appearing on Instagram!
In possibly a rising trend, Barbados has declared it doesn’t want the Queen to be its head of state. That leaves 14 more countries that continue to keep the Queen as head of their state. Let’s not forget, Great Britain had military presence in 171 countries except 22 countries of the world. Out of this 171 only 54 decolonized & independent countries remain members of the Commonwealth comprising 2.4billion people of which 1.3billion are Indians. The question is out of the remaining 14 – who will be next to say no to the Queen, while kick starting withdrawing from the Commonwealth. Its seriously time Sri Lanka said cheerio to the Queen & the Commonwealth too.
The Queen is Head of State of Great Britain &
Australia
New Zealand
Canada
Antigua & Barbuda
Bahamas
Belize
Grenada
Jamaica
Papua New Guinea
Saint Kitts & Nevis
Saint Lucia
Saint Vincent & Grenadines
Solomon Islands
Tuvalu
While Guyana, Trinidad & Tobago & Dominica removed the Queen as Head of State in 1970s, Mauritius removed the Queen in 1992.
Barbados joins the list in 2021 after gaining independence in 1966.
Australia voted at a referendum to continue with the Queen as Head of State in 1999.Yet an increasing number of citizens in Australia and Canada wish to have their own elected Head of State instead of the Queen.
In 2020 total UK exports to the 11 countries (excluding Australia/New Zealand/Canada) that continue to hold the Queen as their head of State amounted to £436 million
In 2020 total UK imports from the 11 countries (excluding Australia/New Zealand/Canada) that continue to hold the Queen as their head of State amounted to £720 million
54 countries proudly claim to be members of the Commonwealth, exactly what do they benefit other than shaking the Queen’s hand annually?
It’s not enough that Britain illegally occupied countries, Britain even sets a criteria to select former colonies to be members of the Commonwealth and these countries are expected to comply with the 1971 Declaration of Commonwealth Principles. The nations must demonstrate commitment to democracy, hold free and fair elections, apply rule of law, independent judiciary, good governance, well-trained public service, protect human rights, freedom of expression…. the list couldn’t get more hypocritical. Fancy how all these values nicely omits UK acknowledgement, accountability and reparations for British colonial crimes committed against 171 nations!
The Commonwealth Secretariat set up in 1965 is supposed to be helping the commonwealth member states to follow the Principles of the Commonwealth. Let’s kick of these values & principles by returning all the treasures proudly on display in UK Museums! In reality, there is very little that member states get from Britain though members of the Commonwealth.
In 2019, UK exports to the Commonwealth were worth £65.4 billion; British imports from the Commonwealth were £63.7 billion. The Commonwealth accounted for 9.1% of the UK’s total trade – around the same as the UK’s total trade with Germany.
UK trade with the Commonwealth was heavily focused on five countries – Australia, Canada, India, Singapore and South Africa; combined these countries accounted for 72% of UK exports to the Commonwealth and 73% of UK imports from the Commonwealth.
This means the rest of the countries are really insignificant, though Britain enjoys bullying them.
The US has turned both UK and India into faithful poodles.But India & UK will soon wake up to harsh realities and unforgiving neighbors in EU and South Asia. Both UK and India have unreliable partners. US bears no sentimental attachment to either UK or India. Isolated from EU and if Commonwealth states also bid adieu to UK, Britain will learn a hard lesson in what it feels to be isolated. Britain can hardly expect partnerships if they side with terrorist fronts and take pains to draft resolutions on behalf of them.
For US, having Britain isolated in Europe and India hated by South Asians is the perfect strategic move. A weak ally is a good poodle. Same strategy applies to India.
The Queen’s friends!
While Britain is backstabbing Commonwealth member and former colony Sri Lanka propping LTTE fronts to separate Sri Lanka, back home Scotland wants to separate from the UK!
LTTE supporting Britain following Brexit has found difficulty in even selling their fish to the European mainland and British truck drivers crossing the English Channel are even having their sandwiches snatched by Dutch border officials citing new food import rules!
Like Brexit exit, it is a good time for commonwealth nations to exit it if Britain cares not to defend the nations it destroyed and plundered without an apology or reparation.
Isolated from Europe, Britain will soon feel the heat and this is no better a time for the Commonwealth Nations to evaluate exactly what Britain has given them in return for the decades of humiliation their people suffered under British rule and continue to do so simply because Britain sings Long Live the Queen!
On
March 18, 2021 the British Parliament will be having a full-scale discussion on
the Report of the UN High Commissioner for Human Rights with a view to holding
the Govt. of Sri Lanka, its machinery, and senior officials accountable for
alleged war crimes in the last days of the war against terrorism which ended on
May 18, 2009.
Someone
conversant with the high number of atrocities committed during the British
colonial period in Sri Lanka (1796 – 1948) may not know whether to laugh or cry
over this debate in the British Parliament.
It is
one of the great ironies of our time that the countries that had hounded and
continue to hound ex – colonies, such as Sri Lanka, wherever possible at every
nook and corner of the UN system, are mostly the very same countries which had
systematically destroyed the civilizational foundations of the colonies and violated
the human rights of the subject people in European colonies in Asia and Africa.
In Sri
Lanka the three prime European colonial countries are Portugal, the Netherlands
and Britain. Each one is of these countries is shamelessly evasive when it
comes to accountability for the crimes committed by their colonial rulers in
Sri Lanka.
New Book
Accountability issues should not be made into a one-way street. It will bring
both International Law, United Nations and even the British Parliament into
disrepute and give rise to credibility issues.
New
Book
A new
book has been just released titled ‘Freedom
Struggles of Sri Lanka -Lessons Learned and the Way Forward’ that discuss
fairly comprehensively British liability for a range of wrong doings across the
board. Published by Godage International Printers, its Chief Editor is
Professor C.M. Madduma Bandara, a well – known Cambridge University alumnus. The
book contains some useful information and analyses of relevance to the present
difficulties faced by Sri Lanka in the international arena.
A Chapter on “Çolonial Crimes of British
Ceylon” by lawyer Senaka Weeraratna, compiles wide-ranging evidence of
crimes against humanity committed by the British colonial rulers. It builds a
strong case that can justifiably become the basis for seeking reparations.
Among the other chapters, the final ones on the future scenarios and
“Way Forward”, may undoubtedly prove useful for the present-day
political leadership. Its future prognosis is equally powerful since it employs
some scenario development methodologies. The book also unravels some rare
historical sources like the ‘British Parliamentary Select Committee Report of
1850, which had found fault with a British Governor i.e. Viscount
Torrington, for his complicity in the brutal and inhumane suppression of
the Matale Rebellion in 1848. Hundreds of innocent civilians had lost their
lives in the punitive expeditions launched by the Colonial Govt. under the
watch of Torrington in the Kandyan areas.
While valuing such attempts by the British Parliament of
the day for their yearning for further inquiry and rectification of colonial
wrongs, it also provides many lessons for present-day parliamentarians.
Bogey of
Human Rights
Today,
the West preaches human rights, demands accountability and upholding of
universally accepted standards on human rights. British human rights
campaigners point accusing fingers at Sri Lanka. Yet, a detailed scrutiny of
colonial rule in British occupied Ceylon (1796 – 1948) reveals a sad saga of
human rights violation of a gross kind such as tyranny, plunder, divide and
rule, and a vicious policy of violence and discrimination directed mainly
against Sinhala Buddhists and confiscation of their precious inherited lands.
21st century
international legal doctrines need to be availed of to present a case for
compensation from the current British Government for genocide and mass murder
of people of Uva – Wellassa in 1817 – 1820. The rectification of
Historical Injustices is a prime duty of any self – respecting nation.
Independence is never complete without meting out Justice to those who were
wronged by an unjust colonial system.
Sri
Lanka’s National patriots such as Keppetipola, Madugalle, Ven. Kudapola Unnanse
and several others who were convicted on the footing of a Victor’s (White
Man’s) Justice by colonial Judges presiding in what was in reality nothing more
than Kangaroo Courts, for their leading role in popular uprisings in 1818 and
1848 deserve to be exonerated through public re –trials. The colonial Governors
such as Robert Brownrigg, Viscount Torrington, Robert Chalmers and other
officials such as George Turnour must be tried posthumously, in a Nuremberg
like Trial, for their reprisal killings and drafting harsh laws that were later
imitated on a bigger scale by the Third Reich in the massacre of the people of
Lidice in Nazi – occupied Czechoslovakia in June 1942. Trial in absentia
is a criminal proceeding in a court of law in which the person who is subject
to it is not physically present at those proceedings. ‘In absentia’ is Latin
for in the absence”.
Land
grab in Kandyan areas
British
injustice was felt mostly in the enactment of waste land laws.Kandyan peasants
were made landless. They were reduced to a landless state by the takeover of
their lands for the plantation industry (initially coffee, then tea) under a
series of waste land laws commencing with the Crown Lands (Encroachments)
Ordinance, No. 12 of 1840.
Kandyan chena which
traditionally had no documentary proof of ownership was taken over for
plantation agriculture. This is demonstrated by the names of estates with older
names ending with hena or
chena crop names. This affected the food security of the people. Evidence of
starvation sometimes resulting in death is revealed in the writings of authors
such as Le Merseur. The British systematically transferred the wealth of the
Kandyan region into their own coffers.
An
accountability process for these colonial crimes is warranted through an
apology, catharsis and adequate reparations. An Apology must be particularly
directed to the descendants of the Sinhala Buddhist Kandyans who were singled
out victims of colonial brutalities. These are the descendants of a highly
oppressed group of people who were also deprived of their inheritance by the
colonial rulers planting thousands of indentured Indian labour in their lands
without their consent. 19th century British official documents reveal how the
freedom struggles against British colonial rule were suppressed in a most
brutal, genocidal manner in one of the darkest pages of European colonial
history.
Wars of
Independence
There
were two major wars for independence from British colonial domination. The
first uprising took place in 1818 in Uva – Wellassa and the second uprising
took place in Matale (1848). Both insurrections were brutally crushed. Millewa Adikarange Durand
Appuhamy ( Rebels, Outlaws and Enemies to the British (Colombo:
Gunasena, 1990), comments as follows in respect to the crushing
of the Kandyan Sinhala uprising in 1818 :
This
brute force was employed in Kandy to reduce the inhabitants to savages and to
dehumanize them. Everything was done to wipe out their traditions, customs,
culture and religion. Mind you, the Kandyans were promised that this would not
happen, and that their customs and traditions would be maintained (cl. 4, 8 of
the Convention). However, Kandyan villages and farms were burnt down. Their paddy-fields
were scorched. Their cattle slaughtered and their fruit bearing trees were
simply chopped down. Starved and ill, they were finished off with the gun as if
they were stray dogs in a stranger’s land. British civilians then flocked in to
take over their lands, clear the virgin forests, and convert them to cash crops
for the benefit solely of the settlers and their financiers in Britain. To the
Kandyans, the most concrete and the foremost in value was land. This land not
only gave them their daily bread but also their dignity. It was to preserve
this land that they fought off successfully three western imperial nations,
Britain included. Now having ceded their country to trickery, they remained
helpless against the planters who insolently trampled over their lands and
their rights to their lands”.
The
crushing of the uprising in Matale in 1848 is described in a nutshell in a
remarkable critical article ‘English in Ceylon’ published in USA in 1851 (The
United States Magazine and Democratic Review. Print: Vol. XXVIII, No. CLV,
– 1851 May). It is as follows:
The
history of Lord Torrington’s administration in Ceylon affords an epitome of
English rule, wherever throughout the world, by force, or fraud, or violence,
she has succeeded in planting her guilty flag. The horrors perpetrated during
1848 in the island-gem of the East, are the counterpart of those of which, from
time to time, during a period of seven centuries, the green isle of the West
has been the victim”.
Even the animals were destroyed en masse –
elephants the mode of transport used by both King and villager alike for
cultivation, tanks, religious processions soon became the target of British huntsmen.
Samuel Baker headed the elephant slaughter killing 30-40 elephants on a daily
basis.
It is estimated that the British decimated
over 10, 000 elephants in Ceylon.
Holocaust of elephants by the British Raj in Sri Lanka
No
apology nor any compensation has been paid by any of the Western colonial
Governments e.g. Portugal, Netherlands and Britain to Sri Lanka for the
destruction of both man – made as well as the natural foundations of life in
Sri Lanka over a period of nearly 450 years ( 1505 – 1948).
The
vastness of the British Empire including the jungles of Sri Lanka was made into
a hunting ground for Big Game on the part of members of British military
families. They hunted not only for pleasure but also as part of their
training for battle and display of their male masculinity. It was the Fauna and
Flora of Sri Lanka that paid a huge price for this training which brought out a
new genre – hunting narratives.
There is
enough evidence to reveal British complicity in the liquidation of a good part
of Sri Lanka’s natural forests in the Kandyan areas and the priceless elephant
wealth which was until then greatly protected by Sri Lanka’s Animal Friendly
Cultural Heritage.
English
writer Gary Brecher
An
English Writer Gary Brecher, author of the book War Nerd” has written a long
article on British crimes in Sri Lanka to a web site called ‘Exiled on Line”
under the title When Pigs Fly-and Scold: Brits Lecturing Sri Lanka”.
He
accuses the British establishment of destroying the Sinhalese people completely.
Completely and deliberately, sadistically. Stole their land, humiliated and
massacred their government, made it Imperial policy to erase every shred of
self-respect the Sinhalese had left. He says You can talk about the Nazis
all day long, but nothing they did was as gross as what you find out when you
actually look into the history of British-Sinhalese relations. If you can even
call them relations”; I guess a murder-rape is a relation, sort of ” .
Making a
comparison between Nazi and British atrocities he says that the British were
great masters at grabbing some paradise island in the tropics, then using the
British Royal Navy to wall it off separating the island from the rest of the
world, and crushing the local tribe without any qualms of conscience. If the
locals put up a resistance, the Brits would take measures to starve them to
death, shoot them down, infect them with smallpox or get them addicted to opium
(as in China) –whatever they had to do to gang-rape the locals so bad that they
the victims would thereby lose the will to resist.
Brecher
points out that the Nazis governed for only one decade but the Brits were able
to quietly carry out their extermination programs for three hundred years, and
to this day they have no remorse nor have any guilty feeling about it.
He
further says that by all accounts, the Sinhala / Kandyans were harmless people,
who didn’t need or want much from the outside world. All they asked was for
people to leave them alone up on their big rocky highlands to indulge in their
Buddhist way of life. Unfortunately, that wasn’t British policy. It irked the
red coats that Kandy still had a king, an army, all this impudent baggage that
went with independence. The British decided to break the Sinhalese completely
and crush the whole society” .
By this
time, i.e. the early 1800s, the Brits had perfected their techniques in little
experiments all over the world. Those Clockwork Orange shrinks were amateurs
compared to the Imperial Civil Service. The British Empire knew dozens of ways
of undermining and suppressing native kingdoms.
Brecher
writing further says that destroying Buddhism was a big part of Brit policy.
The Buddhist routine, the temples, begging monks, long boring prayers–it was
the glue that kept Kandy together. So the Brits decided to destroy it. They
even said so, in private memos to each other. They weren’t shy in those days.
Here’s the Brit governor in 1807: Reliance on Buddhism must be destroyed. Make
sure all [village] chiefs are Christian.”
The
British developed ingenious ways of grabbing other people’s lands under various
pretexts. For example, the British began invading Australia in 1788, on the
footing that it was terra nullis: a land with no owners.
Divide
and Rule colonial policy
European
powers like Spain and Portugal depended on bloody conquest and massacres in
colonial expansion, especially in South America. Britain was not far behind,
given what the British did to Australian Aborigines in Tasmania and mainland
Australia. The British were the masters of the game of ‘ Divide and Rule’. The
ethnic and religious tensions in Sri Lanka are very much a legacy of colonial
rule. If the target country had many ethnic groups or tribes like in India,
North America, Fiji, Malaysia, or Sri Lanka, the British first looked for any
potential allies that have distinctive differences from other groups,
particularly the majority. Then the British undermine the authority of the
majority by promoting unfairly selected members of a minority community with a
view to creating tension and conflict between various groups. The appointment
of Haji Marikar (Muslim) as the Muhandiram to be in charge of roadways in
Wellassa is a case in point. This appointment was resented by the Sinhalese as
it undermined the authority of Dissawa Mellewa. This was the spark that led to
the 1818 uprising.
British
intrigue in Kandy under the directions of successive Governors, namely, North,
Maitland and Brownrigg was also intended to achieve British supremacy in Ceylon
as in India, by subduing the Kingdom of Kandy through a vicious campaign of
propaganda and character assassination directed against the ruler of the
Kandyan Kingdom, King Sri Vikrama Rajasinha. He was demonized. He was accused
of being a tyrant. Killer of women and children (of persons who had committed
treason). A common punishment for treason in most countries including imperial
Britain. A drunkard. And as he was of Indian origin the British
discredited his Malabar ancestry as a ploy to alienate him from his Adigars,
his chiefs and rejected his right to the throne.
In
fairness it must be said that as a young King, Sri Vikrama Rajasinha was
popular among the people of his Kingdom. He took charge of the administration
which was fair and efficient. He displayed aesthetic sensibility regularly
listening to music and commissioned the Royal Architect and Master Craftsman,
Devendra Mulachari to design and build the Paththripuwa (1802) and the Kandy
Lake (1807), among other novel creations. The King supervised the artists who
enlarged and decorated the Kandy City.
Colonialism under three European countries was a dark chapter
in the history of Sri Lanka. Much of the problems in the country today
particularly ethnic and religious tension have their origin in divisive
policies fashioned by the colonial rulers. This Chapter cannot be closed merely
because the former colonial countries wish to evade accountability.
Reconciliation between the colonizer and colonized can be effective only on the
basis of apology, catharsis and reparations for colonial crimes committed in
Sri Lanka.
Conclusion
The
British Parliament must also listen to the grievances of the Sinhala Buddhist people
who resisted colonial invasions more than any other community of the country
and for this reason alone were selectively victimized substantially during the
era of the Portuguese Inquisition in Ceylon ( 1505 – 1658), discriminated
against by the Dutch on ground of religion, and made destitute particularly the
Kandyan Sinhala peasantry whose lands were grabbed under waste lands laws and
denied employment by the import of thousands of Indentured labour from South
India to work in tea and coffee plantations of the British.
The
people of Sri Lanka still continue to suffer from the cruel legacy of the
colonial masters.
Senaka
Weeraratna
Sources
Colonial crimes in British occupied Ceylon during the freedom
struggles (1796 – 1948)
