Shenali D Waduge

In June 2015 the US released the Law of War Manual. Some of its contents are legally and morally indefensible which is why there is need to selectively pick items relevant to Sri Lanka. Nonetheless, it reading through the contents of proportionality and how the US Department of Defense views involuntary human shields, the Sri Lankan case needs to be clearly disassociated to highlight that the precautions and actions taken by Sri Lanka’s military stood out and continues to remain morally and legally defensible though Western media and Western funded international reports and envoys project an opposite notion. Has Sri Lanka adopted the thinking in the US Law of War manual the military offensive would not have gone on for over 3 months, Sri Lankan military would not have needed to rescue close to 300,000 Tamils (some of them were LTTE in civilian clothing) and lose close to 2500 soldiers, put up reception centres manned with Tamil speaking soldiers, send tonnes of food, medicines and essentials to the conflict areas much of which were confiscated by the LTTE and not given to the civilians. So no amount of reports and training bogus witnesses whose identities are kept hidden for 20 years cannot press war crimes charges until and unless 40,000 names are produced as being killed. It doesn’t matter if the figures are 200,000 but they must have names and addresses to claim that they have been killed. Showing 45 witnesses and projecting that as being sufficient to have killed 40,000 is creating laws of insanity!

US Law of War Manual takes the position that hostage-taking is prohibited by international law that civilians must not be used as shields or as hostages.” Refer paragraphs. 2.5.3.3, 5.16.3, 10.5.1.4, and 11.6.1. In addition paragraph 5.3.2 says that civilians — including hostages — must not be made the object of an attack.

The manual also says wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited.” paragraph 5.3.3.2

What is relevant to Sri Lanka are the lines in the manual that says in some cases, a party to a conflict may attempt to use the presence or movement of the civilian population or individual civilians in order to shield military objectives from seizure or attack.” Is this not what the LTTE committed in using civilians to shield itself from attack and attacking from among civilians?

The question that the Sri Lankan military will be asked is to answer inspite of LTTE committing above whether precautions were taken. enemy persons engage in such behavior, commanders should continue to seek to discriminate in conducting attacks and to take feasible precautions to reduce the risk of harm to the civilian population and civilian objects” (para. 5.4.4)

What LTTE stands guilty of and has no excuse against is the fact that LTTE did keep civilians by force. Evidence to prove this is the UNSG’s appeal to release civilians, Foreign Envoys appeal to release civilians, civilian witness accounts that those attempting to flee were shot at by LTTE, the embedded journalist accounts (Murali Reddy), Ban Ki Moon’s Panel of Expert report.

The US Laws of Manual states this about human shields:

5.12.3.3 Harm to Human Shields. Use of human shields violates the rule that civilians may not be used to shield, favor, or impede military operations. The party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury, provided that the attacker takes feasible precautions in conducting its attack.

The Defense Department apparently thinks that it may lawfully kill an unlimited number of civilians forced to serve as involuntary human shields in order to achieve even a trivial military advantage. The Manual draws no distinction between civilians who voluntarily choose to serve as human shields and civilians who are involuntarily forced to serve as human shields. The Manual draws no distinction between civilians who actively shield combatants carrying out an attack and civilians who passively shield military objectives from attack. Finally, the Manual draws no distinction between civilians whose presence creates potential physical obstacles to military operations and civilians whose presence creates potential legal obstacles to military operations. According to the Manual, all of these count for nothing in determining proportionality under international law.

As an example the US feels that it can destroy a residential building and kill its civilian inhabitants to eliminate a single combatant hiding inside or firing from the roof and such an attack is not disproportionate if the combatant enters the building with the intent to use the civilians as passive, involuntary human shields. US manual denies these civilians legal protection from excessive incidental harm.

One then wonders on what grounds the US is actually co-championing the UNHRC resolutions against Sri Lanka if the US position is clear as given above.

However, Protocol I to the Geneva Conventions prohibits the use of human shields. The US law of war manual upholds the view that if a defending force (ex LTTE) violates the prohibition on using civilians as involuntary human shields then the attacking force (ex Sri Lanka Military) is in effect, released from its obligation not to inflict excessive incidental harm on those civilians. US is not a signatory to Protocol 1 but is bound by customary international law which entails that international humanitarian law (IHL) applies unconditionally to each party to an armed conflict irrespective of the conduct of opposing parties.

Laws of non-international armed conflict & principle of proportionality

• parties to the conflict must not launch an attack against lawful military objectives if the attack ‘may be expected’ to result in excessive civilian harm (deaths, injuries, or damage to civilian objects, or a combination thereof) compared to the ‘concrete and direct military advantage anticipated’. If conducted intentionally a disproportionate attack may constitute a war crime.

Wiki cable clearly exonerates Sri Lanka Army from the false allegations being made

The relevance of this cable is that it was the US Ambassador himself sending a memo after his meeting with ICRC head of operations which clearly indicated that the army did not deliberately shell and in fact delayed the inevitable victory taking to consideration the civilian factor while the LTTE purposely kept civilians or kept themselves among the civilians. Proof of this was evident when a suicide bomber dressed as a civilian blew herself up near a makeshift refugee reception center killing military personnel as well as Tamil civilians.

Wiki cable by US Ambassador to Geneva Clint Williamson on July 15, 2009 after meeting with Jacque de Maio, ICRC Head of Operations for South Asia on 9 July 2009.

On the LTTE, de Maio said that it had tried to keep civilians in the middle of a permanent state of violence. It (LTTE) saw the civilian population as a ‘protective asset’ and kept its fighters embedded amongst them. 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 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.”

De Maio said it would be hard to state that there was a systematic order to LTTE fighters to stick with civilians in order to draw fire. Civilians were indeed under ‘physical coercion not to go here or there,’ he said. Thus, the dynamics of the conflict were that civilians were present all the time. This makes it very difficult to determine though at what point such a situation becomes a case of ‘human shields.’ –  (If civilians were kept by force while LTTE was fighting with the Sri Lankan Army, the LTTE must shoulder all blame for putting civilians in harms way. Numerous appeals both international and local were made to the LTTE to release these civilians – LTTE refused to do so. Not stopping at that LTTE even used these civilians in combat and in an armed conflict these civilians automatically become combatants)

The army was determined not to let the LTTE escape from its shrinking territory, even though this meant the civilians being kept hostage by the LTTE were at increasing risk….de Maio said, while one could safely say that there were ‘serious, widespread violations of IHL,’ by the Sri Lankan forces, it did not amount to genocide. He could site examples of where the army had stopped shelling when ICRC informed them it was killing civilians. In fact, the army actually could have won the military battle faster with higher civilian casualties, yet chosen a slower approach which led to a greater number of Sri Lankan military deaths. He concluded however, by asserting that the GSL failed to recognize its obligation to protect civilians despite the approach leading to higher military casualties. From his standpoint, a soldier at war should be more likely to die than a civilian.” (What is significant about what the ICRC head said to the US ambassador was that there was NO GENOCIDE committed by the Sri Lankan Army, that in desiring to save civilians the Army took longer to finish the operation thus compromising its own soldiers who died as a result. The military objective was to destroy the LTTE while also attempting to save the civilians kept by force or civilians staying voluntarily with the LTTE – this is something Western armies will not understand because their superiors order them to ‘shoot everything that moves’ or soldiers are ordered to engage in 360 degree rotational fire)

Lets put things into context

• Sri Lanka’s 30 years of terrorism started out by India functioning as state sponsor in clandestinely training unemployed Sri Lankan Tamil youth in armed warfare
• These armed groups were initially trained, armed and funded by India eventually LTTE becoming supreme after bumping off leaders of the other armed groups
• Over time LTTE became contracted to parties that were linked to external sources that began to use LTTE as a smokescreen for a bigger agenda. Terrorism became a convenient camouflage that would enable these external parties to send their representatives regularly to Sri Lanka to work on the bigger agenda while pretending to help solve the conflict
• It is important that we view these solutions being offered as being part of a bigger agenda/plan that has nothing to do with peace building, conflict resolution, peaceful coexistence among any of the communities in Sri Lanka. Until and unless Sri Lankans can realize this the whole nation remains doomed and vulnerable.
• The unexpected end to terror shook the plans and it is this anger that has turned to revenge coming with venom in the form of a personally commissioned report by the UNSG which has become the foundation to successive illegal resolutions, western government funded reports projected as being ‘independent’ highlighting poor ethics, western owned media providing the necessary negative publicity against the targeted enemy, foreign funded panel discussions, documentaries, book releases, foreign statements all spending a lot of money on propaganda but not one of them caring to answer fundamental and basic questions

The questions left unanswered

• If the Sri Lankan military was ordered to kill (disregarding all laws of war) why did they save close to 300,000 while sacrificing 2500 soldiers over 5 months of attempting to liberate the civilians said to be kept hostage by the LTTE
• If the propaganda of 40,000 to 200,000 said to have been killed by the Sri Lanka military is true why have those giving the numbers failed to give at least 100 names of the dead including their details? If they can give a number of dead surely they can give their names!

• On what grounds can the producing of anonymous 45 supposed ‘witnesses’ whose identities are sealed for 20 years be accepted to press war crimes charges for killing x number of people when again we don’t know whether they were killed or even born! Leave aside naming the dead there are no skeletons even found after 6 years! And we know how the US/NATO lied about mass graves during the Yugoslavia conflict, so we are not going to fall for media hype and bogus lies by the same envoys unless there is proof.

These are factors that the new Sri Lankan Government must be realistically looking at. We are not saying to exonerate anyone of any crime. But any crime must have evidence. Just because some foreign funded reports are emerging with anonymous witnesses we can’t except that has a legal reason to claim war crimes were committed and 40,000 or more were killed when so far none of these names are lodged with the Presidential Commission on Missing Persons with a mandate to investigate missing from 1983 to 2009.

Therefore, in looking at all the Western-backed UN war crimes charges and realizing that the war crimes are for every leader other than the US/UK and their allies the people of Sri Lanka must be aware of the lies that went into accuse other nations of war crimes and have their leaders either locked up or killed. This is a gross violation of the entire justice system.

Sri Lanka fought the LTTE fair and square. They were given 3 times to lay down and surrender. All 3 times they refused to comply. The conflict was fought fair and the fact that the 11000 LTTE cadres who surrendered have been rehabilitated and reintegrated except those that refused show how fair the Sri Lankan authorities have been even beyond the end of the conflict. The fact that the North is today a developed area from the stone age look it had during LTTE reign in just 5 years also goes to show how much loans and grants the GOSL took to improve the lives of the North.

The people of Sri Lanka must stand up for those that liberated the country and not fall for the lies being hatched.

Shenali D Waduge

Use of human shields: LTTE violated int’l humanitarian laws http://www.sundayobserver.lk/2012/10/14/fea03.asp

ICRC Sri Lanka during final phase of war

http://www.onlanka.com/news/icrc-sri-lanka-during-final-phase-of-war.html

Sri Lanka Missing Persons Commission: 40,000-225,000 accused of being killed but only 18,590 missing complaints filed

http://www.lankaweb.com/news/items/2014/06/08/sri-lanka-missing-persons-commission-40000-225000-accused-of-being-killed-but-only-18590-missing-complaints-filed/