{"id":60045,"date":"2016-10-25T04:11:40","date_gmt":"2016-10-25T11:11:40","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=60045"},"modified":"2016-10-25T04:11:40","modified_gmt":"2016-10-25T11:11:40","slug":"need-to-rebrand-sl-conflict","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/10\/25\/need-to-rebrand-sl-conflict\/","title":{"rendered":"Need to rebrand SL conflict"},"content":{"rendered":"

By Neville Ladduwahetty\u00a0Courtesy The Island<\/em><\/span><\/h2>\n

October 20, 2016, 9:14 pm<\/span><\/p>\n

Decades prior to May 2009, when the \u2018armed conflict\u2019 in Sri Lanka ended, the conflict had been branded as an \u2018ethnic\u2019 one. Subsequently, the Lessons Learnt and Reconciliation Commission in their report categorized it as a conflict between a state and a non-state actor. The Army in its report covering the period July 2006 to May 2009 branded the conflict as a Humanitarian Operation. The Darusman report and the report of the Office of the UN High Commissioner for Human Rights (OISL), branded the conflict as an \u2018armed conflict\u2019 as per Common Article 3 of the Geneva Convention since the LTTE had reached the threshold needed to qualify as a party to a Non-International Armed Conflict.<\/p>\n

Despite the fact that the conflict is commonly referred to as an armed conflict, the defeat of the LTTE continues to be referred to as the defeat of a ruthless fascist terrorist outfit by some well informed and knowledgeable analysts and commentators. The question that needs to be addressed is: Which branding would enable Sri Lanka to honourably address the challenges from Geneva? Should it be categorized as a \u2018separatist armed conflict\u2019 governed by International Humanitarian Law, or as one defeating terrorism even though there is NO internationally accepted definition of terrorism?<\/p>\n

IMPACT of PERSPECTIVES\u00a0on ACCOUNTABILITY<\/p>\n

The LTTE, like all terrorists, resorted to terrorism to instill fear and intimidate the public. Notwithstanding this reality, the Tamil community and in particular those in the diaspora, have succeeded in portraying the LTTE as \u2018freedom fighters\u2019 engaged in the task of establishing a separate state, as resolved in Vaddukodai in 1976. This has enabled the LTTE to gain the sympathy of the International Community, a.k.a the West, to the extent that the West sees them as victims and not as terrorists. This perspective has skewed the judgment of the West. The success with which the Tamil diaspora has played the “victim card” is evident from the remarks made last week by a Brooklyn Judge, while reducing the sentences by 10yr. of three persons convicted by the US for providing material support to a terrorist organization per UN Resolution 1373.<\/p>\n

Federal Judge, Raymond Dearie is reported to have stated:<\/p>\n

“I just believe in my heart of hearts that an injustice has been done and I can\u2019t correct it\u2026Now that we\u2019ve become a little bit more sophisticated in our thinking about what is and is not terrorism, now that we know a lot more about the conflict in Sri Lanka and the horrors visited upon these people, perhaps there\u2019s a way to provide a fair measure of justice to all without condemning these men to essentially a life behind bars” (Daily Mirror, October 14, 2016).<\/p>\n

The foregoing reflects the mood in the West. That mood is that horrors were visited on the Tamil people. Altering the narratives propagated by the nearly million strong Tamil diaspora over decades is no easy task for any government, even if supported by expensive PR firms. Therefore, these efforts should be abandoned. Relief for having defeated a ruthless fascist terrorist outfit and contributing towards making the world safer, as commented by the UN Secretary General during his recent visit to Sri Lanka, is not going to change the mood in the West either. The only realistic and credible way out is through a legal approach that relies on the full provisions of International Humanitarian Law applicable to Non-International Armed Conflicts.<\/p>\n

INTERNATIONAL PARAMETERS<\/p>\n

The OISL report acknowledges that the international parameters that should guide accountability issues should be those relating to Non-International Armed Conflict, recognized as part of Customary Law.<\/p>\n

Paragraphs 182 and 183 of the OISL report states:<\/p>\n

182. “Article 3 common to the four Geneva Conventions relating to conflicts not of an international character is applicable to the situation in Sri Lanka, with all parties to the conflict being bound to respect the guarantees pertaining to the treatment of civilians and persons hors de combat contained therein. Common Article 3 binds all parties to the conflict to respect, as a minimum, that persons taking no direct part in hostilities as well as those placed hors de combat shall be treated humanely, without any adverse distinction”.<\/p>\n

183. “In addition, the Government and armed groups that are parties to the conflict are bound alike by the relevant rules of customary international law applicable in non-international armed conflicts”<\/p>\n

If the LTTE and the security forces are “bound alike”, to “respect the guarantees pertaining to the treatment of civilians” and to abide by the “relevant rules of customary international law”, why should the full focus on accountability be on the Government of Sri Lanka, with hardly any accountability being placed on the LTTE? One possible reason could be the failure of advisors to successive Sri Lankan governments to address issues of accountability based on the full scope of International Humanitarian Law. Unless these positions are re-visited there is little or no relief for those who gave their full measure of devotion, through life and limb, and the rest of the country through its treasure, to make the nation whole again.<\/p>\n

Therefore, it is imperative that the conflict be rebranded as a “Separatist Armed Conflict”, in order to position Sri Lanka to take the stand that measures adopted were legitimate, given the unprecedented and extraordinary challenges presented by the LTTE when they took >350,000 civilians hostage as a “human shield”, and engaged nearly 6000 child soldiers to be combatants, in complete violation of customary international law. Furthermore, measures adopted by the Sri Lankan Government and its security forces were legitimate, because they were engaged in the task to “defend the national unity and territorial integrity of the state” in keeping with Article 3 of UN Additional Protocol II of 1977.<\/p>\n

BUILD-UP TOWARDS the ARMED \u00a0CONFLICT<\/p>\n

The strategy adopted by the LTTE was to commit acts of terrorism coupled with a propaganda campaign that the “war was unwinnable”. This campaign was carried out both nationally and internationally with a view to demoralizing the public and weakening the resolve of the political establishment into signing a Cease Fire Agreement. The campaign that the war was unwinnable became so convincing that the LTTE came to believe in its own invincibility: a fact evident from the scope of the Interim Self Governing Authority submitted by them. This mindset prompted the LTTE to equip itself to launch an all out campaign to militarily defeat the Sri Lankan State and establish the separate state of Tamil Eelam. Thus, issues relating to the conflict should be addressed from the stand point that it was a Separatist Armed Conflict rather than from the standpoint of defeating a ruthless fascist terrorist outfit.<\/p>\n

The validation of the conflict as an \u2018armed conflict\u2019 by the OISL entitles Sri Lanka to deploy the full range of International Humanitarian Law developed over the years by the very agents who insist that Sri Lanka be held accountable for strategies adopted during the conflict. Such an approach would entitle Sri Lanka to exploit the full range of the provisions of International Humanitarian Law under provisions of Common Article 3 of the Geneva Convention and Additional Protocol II of 1977. This would give Sri Lanka the opportunity to meet challenges presented using customary rules set by the International Community, without having to plead our case before prejudiced arbitrators.<\/p>\n

COUNTING CIVILIAN DEATHS<\/p>\n

The principal charge against Sri Lanka is the number of civilian deaths. Given below are extracts from the OISL report that gives an idea of the background in which these deaths occurred:<\/p>\n

Paragraph 86: “By the end of January 2009, the LTTE was severely diminished as a fighting force\u2026and had to rely on new and ill-trained recruits to fill its ranks”.<\/p>\n

Paragraph 87: “This period was marked by the \u2026 forced recruitment of adult and children by the LTTE and coercive measures to stop civilians leaving the conflict area”.<\/p>\n

Paragraph 1267: “counting or estimating the exact number of civilian casualties during the different stages of the armed conflict is impossible \u2026”.<\/p>\n

This background together with the two principal rules governing International Humanitarian Law of DISTINCTION and PROPORTIONALITY should guide Sri Lanka to explain the circumstances with which issues of accountability should be addressed. The following is based on ICRC Customary law, Vol. 87, March 2005:<\/p>\n

The Principles of Distinction<\/p>\n

Rule 1: “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians”.<\/p>\n

Rule 2: “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”.<\/p>\n

Rule 3: “All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel”.<\/p>\n

Rule 4: “The armed forces of a party to the conflict consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates”.<\/p>\n

Rule 5: “Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians”.<\/p>\n

Rule 6: “Civilians are protected against attack, unless and for such time as they take a direct part in hostilities”.<\/p>\n

Proportionality in Attack<\/p>\n

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

There is irrefutable evidence in UN and other reports that as a policy the LTTE took measures to discard their distinguishing uniforms thereby obscuring distinction between them and civilians. There is also irrefutable evidence that civilians participated as combatants; some voluntarily and others under coercion. In addition, civilians also directly participated in support of the hostilities. Consequently, all of them lose the right of protection by being combatants one way or another. In such a background, it is humanly not possible to identify who is a combatant and who is not, whether during the armed conflict or afterwards, because it would be impossible to distinguish between combatants and bona fide noncombatants and if distinguishing a civilian from a combatant was impossible, it follows that it is also not possible to ascertain whether the military advantage gained by the planned attack was proportionate or not. Furthermore, it is also not possible to determine who among the dead was a civilian and who was a combatant. In view of the particularities of the circumstances that prevailed, in particular after >350,000 civilians were taken hostage, the principle of proportionality becomes inapplicable.<\/p>\n

VIOLATION of PRINCIPLES of DISTINCTION and PROPORTIONALITY<\/p>\n

Paragraph 184 of the OISL report states:<\/p>\n

“International humanitarian law prohibits direct attacks on persons not taking direct part in hostilities \u2026Obligations of parties to the conflict in the conduct of hostilities are governed by the principles of distinction, proportionality and precaution at all times”.<\/p>\n

It must be granted that as a strategy, violating the principle of distinction was to the advantage of the LTTE. Therefore, it is natural to expect the LTTE to present themselves as civilians, conveying the impression that they were “not taking direct part in hostilities”. It must then follow that a strategy where combatants conceal themselves as civilians would result in the violation of principles of proportionality, because of the inability to distinguish between those who took direct part in hostilities and those who did not.<\/p>\n

In addition to violating principles of distinction with consequences on principles on proportionality, other violations such as locating military hardware in the vicinity of civilians and hospitals also compromised the safety of civilians. All of these actions should be understood in the context that the LTTE was fully aware that their military capabilities were severely diminished; a condition that would naturally have forced them to resort to whatever diabolical means possible, to test the ultimate resolve of the Sri Lankan Government and the Defense Forces. Attempting to hold Sri Lanka accountable for meeting such extraordinary challenges through a judicial process is unjustifiable because the physical circumstances in which they happened cannot be recreated. Furthermore, attempting to continue with a judicial process would in the circumstances be based only on the subjectivity of the narrator. Therefore, in the name of Justice itself, the Geneva process should be abandoned.<\/p>\n

The question to successive governments and security forces is why these legitimate arguments were not presented during any of the discourses in Geneva or in any other national or international forums. The approach that Sri Lanka should take is to present its case founded on principles of International Humanitarian Law, and call on Geneva to refute the legitimacy of the arguments. Unless such a bold initiative is adopted, the fate of the soldiers who defended the integrity of the State would be in jeopardy – an unacceptable situation for any sovereign nation.<\/p>\n

CONCLUSION<\/p>\n

Although Sri Lanka and many other nations saw the defeat of the LTTE as the defeat of a ruthless fascist terrorist outfit, the Tamil diaspora in the West has succeeded in convincing the International Community that members of the LTTE were freedom fighters. Such perceptions have even affected the Halls of Justice in the USA, judging from the remarks of a Federal Judge Raymond Dearie, who stated: “I just believe in my heart of hearts that an injustice has been done and I can\u2019t correct it\u2026Now that we\u2019ve become a little bit more sophisticated in our thinking about what is and is not terrorism, now that we know a lot more about the conflict in Sri Lanka and the horrors visited upon these people, perhaps there\u2019s a way to provide a fair measure of justice to all without condemning these men to essentially a life behind bars” (Daily Mirror, October 14, 2016). The result of this perception was to reduce a 25 year prison term by 10 years for providing material support to the LTTE.<\/p>\n

Therefore, hoping to find relief on grounds that Sri Lanka made the world safe by defeating the world\u2019s most ruthless outfit is futile. Instead, the approach should be to present the factual circumstances and the extraordinary challenges that the security forces had t o face because of the violation of nearly every tenet of International Humanitarian Law by the LTTE including complete disregard for principles of Distinction and Proportionality that are the very foundation of Armed Conflict. What happened in Sri Lanka was precipitated by the actions of the LTTE who as a party to the conflict violated every possible rule under the Rules of International Humanitarian Law, and for the security forces to overcome those challenges and restore the national unity and territorial integrity of the State as endorsed by Article 3 of Additional Protocol II of 1977. Attempts to hold judicial inquiries are unacceptable because if justice is to be served, it would require the recreation of the unprecedented circumstances that had existed before these actions are judged. Since these circumstances cannot be recreated, the Geneva process should be abandoned.<\/p>\n

What is taking place in Sri Lanka is no different to what is happening in UK, where “Former soldiers have claimed that they have been hounded through courts on unfounded claims and there are growing calls for the Ihat (Iraq Historic Allegations Team) to be shut down” (British Guardian, quoted in Sunday Times, October 16, 2016). A Downing Street statement issued recently stated: “The Prime Minister spoke of her pride in the UK armed forces and praised the work they do to keep our nation safe. She said that every effort must be made to prevent any abuse of the legal system, and restated her determination to protect the armed forces against any instances of vexatious complaints” (Ibid).<\/p>\n

Clearly, the entire approach of Geneva to Sri Lanka has been nothing but a collection of politically motivated “vexatious complaints” \u2013 more reason as to why the Geneva initiated accountability process should be abandoned.<\/p>\n

According to Article 3 of the Additional Protocol II, nothing shall be invoked to affect a sovereign State from using “all legitimate means” to “defend the national unity and territorial integrity of that State”. The threshold for what is legitimate when it comes to defending the national unity and the territorial integrity of a State should be lower than what is legitimate when it comes to invading countries such as Iraq, Afghanistan or Libya. This difference is reflected in the immortal words of the Gettysburg address wherein President Abraham Lincoln “dedicated a portion of that field as a final resting place FOR THOSE WHO GAVE THEIR LIVES THAT THAT NATION MIGHT LIVE” (emphasis mine). Having dedicated a portion of the field as a final resting place ONLY to those gave their lives so that the nation might live, for a US State Dept. official to kneel and lay a wreath for those who attempted to dismember the nation of Sri Lanka, reflects confused perspectives.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Neville Ladduwahetty\u00a0Courtesy The Island October 20, 2016, 9:14 pm Decades prior to May 2009, when the \u2018armed conflict\u2019 in Sri Lanka ended, the conflict had been branded as an \u2018ethnic\u2019 one. Subsequently, the Lessons Learnt and Reconciliation Commission in their report categorized it as a conflict between a state and a non-state actor. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5,7],"tags":[],"class_list":["post-60045","post","type-post","status-publish","format-standard","hentry","category-security","category-terrorism"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/60045","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=60045"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/60045\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=60045"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=60045"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=60045"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}