War crimes…part 6 for UNHRC
By Kamalika Pieris
The Sri Lanka armed forces strenuously deny that they committed ‘war crimes’. Retd. Major General Lalin Fernando said firmly that the army did not have heavy artillery (175 mm guns and above) or cluster munitions as alleged. The Army also denied accusations by two Catholic bishops, Rayappu and Saundranayagam that the army had used cluster bombs at the last stage of the Eelam war IV. The ‘international community’ was closely watching the military action on the ground at the end of the war, said Major General Shavendra Silva. Had there been any loss of civilian lives, this community would have definitely tried to stop the offensive.
A charge had been made in 2017 that after the war, there was sexual exploitation and abuses of Tamil women by the Army. The Sri Lanka Army issued a statement saying the army categorically denies this. It is a baseless allegation. Civil administration was firmly established in the North in 2010 and the Army withdrew from all forms of civil administration. The question of sexual exploitation and abuses does not arise.
The Sri Lanka army said that they knew International Humanitarian Law. Army Commander Srilal Weerasooriya set up a Directorate of International Humanitarian Law (IHL) in the army, in 2000 to teach IHL to fighting forces. Sri Lanka is one of the first to set up such a Directorate, he said. Laksiri Mendis had joined the ICRC as legal advisor and one of his duties was to teach IHL to the forces. He said the armed forces were trained in maintaining IHL standards in the battlefield.
Though the North East conflict was not recognized as a non international armed conflict, continued Mendis, Sri Lanka armed forces always adhered to the standard and norms of the IHL and were trained extensively to uphold IHL standards in the battlefield and therefore it is unlikely the armed force will commit grave breaches as alleged. On many occasions the generals who visited Sri Lanka for IHL dissemination commented favorably on the way our armed forces had retaliated in the ‘fog of war’ concluded Laksiri Mendis.
However, Sarala Fernando observed in 2015 that army had focused on a strong IHL component in the training, ‘but that is not enough. During combat operations, a strong full time internal legal division is required to advice on IHL parameters’.
Professionals who were helping the army spoke up on behalf of the army. Sri Lanka College of Obstetricians and Gynecologists held a press briefing in 2012. ‘A special medical team was deployed in the war areas [in 2009]’ they said ‘and this team saw the real situation. We want to tell the world that no war crimes were committed and victims were cared for with utmost compassion by the government. We state that no human rights were violated, no war victim was abandoned during the humanitarian operation.’
The armed forces of Sri Lanka have received much praise for their victory in Eelam War IV. Army commander, Lieutenant General Ratnayake observed ‘Armed forces around the world are talking of our victory.’ Foreign military officers who attended the seminar ‘Defeating terrorism, Sri Lanka experience’ in 2012, said that Sri Lanka armed forces were among the best in the world considering the strategies they had used in Eelam war IV and the way they handled the humanitarian operation. The Pakistan media (2013) spoke of ‘Lanka’s amazing low cost war’ noting that Sri Lanka had only spent USD 5.5 billion between 2006 and 2009 to defeat the LTTE.
In 2011, Indian Military academy at Dehra Dun, India’s most prestigious military school honored the Sri Lanka Army by inviting its commander, General Jagath Jaysuriya as chief guest of the passing out parade. This is the first ever Sri Lanka Army Commander to have been invited to the occasion as Chief Guest. In 2010, Major General Mahinda Hathurusinghe, Commander, Security forces headquarters, Jaffna, was awarded the Gusi Peace Prize, Manila.
Requests came in from abroad for training in the strategies used against the LTTE, including small team operations. Manuals used by the army were translated from Sinhala into English and course material incorporating Eelam war tactics prepared. Many countries have requested training from us, said the Army Commander. ‘We have visited many countries and told them our methods of winning. Our officers regularly take part in various military conferences in the world, and the Sri Lanka army had become a regular invitee for these conferences. The army was also consulted by local and international civilian and business organizations.
The Ministry of Defence holds an annual Defence seminar from 2001. Participation has increased from 11 countries at the first seminar to 35 in 2013. The first seminar was to share with the world our expertise what we did and how we succeeded, said the Ministry. The fifth Defence seminar, 2015 ‘was to make the world understand that we are a professional military. It is a disciplined armed force. We discharge our duties professionally and our officers and men are as good as any professional army in the world’.
The joint ‘War Gaming centre’ at the Defence Services Command and Staff College, Sapugaskanda provided training for local and foreign personnel. The 2014 course had 101 middle grade officers from Sri Lanka and 16 from Bangladesh, China, Indonesia, Malaysia, Maldives, Nepal, Oman, Pakistan, Rwanda, Senegal and Vietnam. The newspapers carried a photo of this group examining a large map of Vanni west and Gulf of Mannar. In 2015, there were participants from Australia, India, Singapore, Sudan and Turkey as well.
There is also the Sri Lanka army field training exercise, ‘Cormorant strike’ from 2000. This is a mock field training exercise designed for joint special operations working as one team. The purpose was to share the skills the Sri Lanka army had acquired in the May 2009 operation. It was conducted at Kokilai in 2015. It was a mega exercise with commandos and Special Forces of the army, 245 sailors and 140 airmen. There were 53 foreign participants and observers from Bangladesh, China, India, Indonesia, Malaysia, Nepal, Pakistan and USA.
In 2017, Cormorant Strike VIII was held at Infantry Training Centre, Minneriya. It had 69 foreign participants from Bangladesh, Brazil, China, India, Indonesia, Iran, Iraq, Israel, Kenya, Malaysia, Maldives, Nepal, Oman, Pakistan, Russia, Sudan, Turkey, and USA.
Sri Lanka army’s epic hostage rescue is also a feat of heroism and dedication. Military authorities repeatedly stated that the operation was done at the sacrifice of soldiers who died in the process. This hostage rescue was achieved at tremendous cost to the army, they said, soldiers lost their lives, limbs and eyesight. The army went to the extent of taking losses in a bid to minimize loss of civilian life. The earth bund behind which the hostages were held was breached at great sacrifice by the army. Many died in the process. Troops assigned to clear civilians rushing to the government held areas had also done so at the risk of their lives. Army officers pointed out that the Tamil civilians owed their lives to the bravery of our soldiers.
The 58 division has meticulously planned the rescue operation which was carried out jointly with the elite army commandos and the Special Forces. At Puthumathalan, the troops had infiltrated LTTE held positions along about one km long stretch and then fought their way out to clear a path for civilians to escape.
The civilians had surrendered to the army at the end of the war by walking along the Mullivaikkal road. The army had made special arrangements to receive them. The 58 division set up about 40 points to welcome civilians, Troops assigned to clear civilians rushing to government held positions had done so at the risk of their lives. These people have never acknowledged the efforts made by the army to safely receive Tamils on the Vanni east front”, observed Shamindra Ferdinando.
Sri Lanka Forces took time to overcome the LTTE defences in Mullivaikkal only because the LTTE held 300,000 Tamil civilians hostage there, using them as a human shield. Otherwise they could have finished off the LTTE in 48 hours, said Lalin Fernando. Shavendra Silva, former commander of 58 division, which spearheaded the offensive on the northwester front, said the army could have finished off the LTTE much earlier had the military conducted the offensive without taking into consideration civilian concerns. The army went to the extent of taking losses in a bid to minimise loss of civilians. TF1 and 56 divisions paid a heavy price to capture targets given to the respective formations.
The air force, could have easily decimated the LTTE, but did not do so, because of civilians. We took our targets in the Air Force when we were 100 percent certain they were only LTTE targets, said the former head of the Air Force, Roshan Goonetilleke. We abandoned over 150 targets with which we could inflict massive destruction as they were close to civilian habitation, LTTE lasted two years and ten months only because the air force had gone out of their way to avoid civilian casualties, added Shamindra Ferdinando.
Gordon Weiss writing on the last phase of the Eelam War in his book ‘The Cage’ observed During the course of research for this book, dozens of Tamils described the Sinhalese as inherently kind and gentle people”
On the whole, continued Weiss, the vast majority of people who escaped seem to have been received with relative restraint and care by the front-line SLA troops who quickly passed them up the line for tea, rice, and first aid. Thin, bedraggled women clutching children to their breasts and pleading in a foreign tongue, fell at their feet The front-line soldiers who received the first civilians as they escaped to government lines, those who guarded them in the camps and the civilian and military doctors who provided vital treatment distinguished themselves through their mercy and care.”
It remains a credit to many of the front-line SLA soldiers that, despite odd cruel exceptions, they so often seem to have made the effort to draw civilians out from the morass of fighting ahead of them in an attempt to save lives. Soldiers yelled out to civilians, left gaps in their lines while they waved white flags to attract people forward and bodily plucked the wounded from foxholes and bunkers. Troops bravely waded into the lagoon under fire to rescue wounded people threading their way out of the battlefield or to help parents with their children, and gave their rations to civilians as they lay in fields, exhausted in their first moments of safety after years of living under the roar and threat of gunfire” said Gordon Weiss.
‘We are being asked how we created a humane soldier’ said Army Commander Ratnayake. ’ It is not military training. It is our culture. In battle, you see the worst and best sides of a person. Our soldiers are well balanced. They can fight battles of high intensity and then turn to gently helping the elderly or feeble.’ He concluded ‘I do not think this is possible for the western soldier. Our soldiers are unique in that respect.’
Until the hostages were rescued, the Sri Lanka forces were hamstrung. They could not use their fire power that included MBRLs and aircraft to the full. That caused the delay. Once the hostages were rescued there was nothing legally or morally as far as waging wars go, to restrain the Forces. The land the terrorists were occupying was Sri Lanka sovereign land. The proscribed, fully armed terrorists were a military target by law. Their destruction was justifiable. The force used was proportionate and legitimate, said Lalin Fernando.
Since the defeated Eelamists were making a mighty fuss over the defeat, a Presidential Commission to Investigate into Complaints regarding Missing Persons, known as the Paranagama Commission, was appointed in August 2013 by President Rajapaksa. The committee consisted of Maxwell P. Paranagama (Chairman) Manohari Ramanathan and Suranjana Vidyaratne, Director General of Census and Statistics.
The scope of the Commission’s mandate was expanded into a second mandate by Gazette notification on 15 July 2014, to address the facts and circumstances surrounding civilian loss of life and the question of the responsibility of any individual, group, or institution for violations of international law during the conflict that ended in May 2009”. The Paranagama Commission is the only one of the four commissions set up to examine the Eelam War that deals in depth with war crimes. (Darusman, OISL, LLRC, and PC). The Commission requested more time to complete their work, but the Commission was wound up by the Yahapalana government. The report was published in August 2015. This report met with opposition from the UNHRC. The OISL report wanted the Paranagama Commission disbanded, cases transferred to credible and independent institutions, and war crimes prosecuted under universal jurisdiction.
The Paranagama report states that it aimed to analyze “the complex legal standards applicable to military operations such as those that occurred in the final phase of the Sri Lankan conflict and to apply them to the unique set of factual circumstances that presented itself during the relevant time period”. The Commission said and that “This exercise has not been adequately carried out in the Darusman Report)”.
The Paranagama Commission set up a Legal Advisory Council to assist the Commission. This team of international legal and military experts included Sir Desmond de Silva QC, Prof. David Crane, Sir Geoffrey Nice, Rodney Dixon and Maj. Gen. John Holmes. Sir Desmond was involved in Human Rights violation and war crime issues in Sierra Leone, Belgrade and Syria. Prof. Crane was the Chief Prosecutor of the Special Court for Sierra Leone and has spent 30 years working for the US federal government. Sir Geoffrey was the deputy prosecutor to the International Criminal Tribunal for the Former Yugoslavia (ICTY).
These lawyers provided legal opinion on the law of armed conflict as well as a comprehensive analysis of the law of armed conflict in relation to the allegations against Sri Lanka . These legal opinions take the bottom out of the case that the OHCHR was trying to make against Sri Lanka . This group, without exception dismissed the one-sided charges leveled against Sri Lanka observed the media.
These lawyers were impressed by the military actions of the government. The resolve of the government to end the conflict even when faced with the unpalatable choice of killing or injuring civilians in the vicinity of LTTE artillery batteries likely saved many more civilian lives, said Newton. A hostage rescue operation where some 295,000 were saved, is a successful operation, said de Silva and Crane.
Nice and Dixon said that the Sri Lankan government had a responsibility to recover its proper lawful authority over the occupied territory. This was not a problem that a legitimate government could overlook, postpone indefinitely or ask others to solve it. The lawyers also observed that the war situation in the final months of the conflict are distinctive and possibly unique. No other known conflict has had the characteristics of the final phase of Eelam War IV. LTTE used hostages as human shields to delay the defeat, draw international attention and intervention, and perhaps arrange a cease-fire to allow it to re-group.
Nice and Dixon observed that various reports produced to date have blamed the Government of Sri Lanka for its armed forces unlawfully attacking civilians in the final stages of the conflict. Therefore the question is whether government forces used a lawful weapon (artillery) against lawful military objectives in a lawful manner. These five lawyers think the government did the correct thing. Our conclusion is that, subject to the full factual circumstances being established, the applicable legal standards did allow Sri Lanka Government forces to attack the LTTE and its military locations, concluded Nice and Dixon.
it is my unqualified opinion, said Newton, that there was an urgent need to end the war and the commanders were entitled to use the most suitable form of attack, which was long distance artillery. No report has proposed alternatives to the military approach taken by the Government of Sri Lanka and backed up such alternatives by expert military opinion, observed Nice and Dixon.
I am satisfied that the proportionality principle was respected by the Sri Lanka army so far as the circumstances permitted, said Newton. The Sri Lanka Army can almost certainly produce evidence that it undertook artillery strikes designed to minimize or to eliminate civilian casualties. They were experts at using suitable artillery batteries.
There is no evidence to suggest that the government used indiscriminate weapons such as barrel bombs or Grad rockets 15. They used on-scene observers whenever possible. There were stringent rules of engagement which required higher level approval for the return of artillery fire. These would have served to minimize civilian casualties. The Sri Lanka military cannot be responsible for a higher margin of error than anticipated, concluded Newton.
The evidence is clear that targets were specifically attacked in response to LTTE fire emanating from within the civilian areas. LTTE combatants fired artillery from civilian areas and from civilian installations in the No-Fire Zones. In my opinion, the Sri Lanka military had every right to respond to those provocations with artillery fires targeting the LTTE positions, provided that the estimate of civilian casualties was not “clearly excessive”, said Newton.
There is at present, no set formula or ratio of civilian losses to military advantage, available, to decide whether an attack was within the IHL or not. There is no clear rule on ‘excessive shelling’ or ‘military advantage’, said Nice and Dixon. It is a subjective evaluation, said ICRC. In every attack they must carefully weigh up the humanitarian and military interests at stake, using common sense and good faith
It would have been very difficult for the Government forces to determine the extent to which these civilians were voluntarily serving as human shields. LTTE had conscripted civilians of all ages into the LTTE forces making it very difficult for the Government forces to differentiate between civilians and fighters, as well as between fighters and human shields said Nice and Dixon. The absence of any uniforms worn by the LTTE combatants would have made the distinctions to be drawn between civilians and fighters even harder for the Government forces, they added.
It is most unlikely that the SLA could be held liable for incidental civilian deaths due to the failure to distinguish lawful targets, said de Silva and Crane. It is not unlawful under IHL to target military objectives (including soldiers, military equipment, locations etc) when they are guarded or surrounded by involuntary civilian human shields or hostages. These human shields were legitimate military targets, said Nice and Dixon. Government forces were entitled, under IHL, to regard the deaths of civilians participating as human shields as justifiable. There is no prohibition on the use of artillery shells in urban areas either.
Assessments of the lawfulness of attacks must take account of the reaction of field commanders on the ground to the situations they faced as well, said Nice and Dixon. Those officers will often have made judgments in the heat of battle with necessarily incomplete information and intelligence. The Government’s forces should, in accordance with the rules of IHL, be afforded a margin of latitude commensurate with the military exigencies that they encountered and taking into account the widespread unlawful use of civilians by the LTTE.
No military commander in the world could be expected to stand by while its forces were attacked by the enemy, simply because there was a legal obligation not to respond. Field commanders have every right to consider the safety of their own forces. They are perfectly justified in not sending ground forces into the war zone to respond to the LTTE artillery fire.
U.S. Embassy had reported that the Sri Lankan military expressly took “the utmost care” to avoid civilian casualties. This is like the difficult balancing faced by NATO in Kosovo, said Newton. NATO had said ‘every day we did our very best to limit collateral damage and limit the loss of life on the adversary’s side’. Similar statements were made by Sri Lankan officials and there is no evidence to contradict that assertion, said Newton.
Nice and Dixon searched for a legal framework within which the Government forces could have been permitted to act without transgressing the limits of IHL, and against which their actions can be measured in accordance with properly defined legal standards. Any future inquiry, whether by the UN or any other body, is strongly encouraged to draw on this legal framework for its work, and to avoid making findings based on generalized statements about the law, without rigorous analysis, they said.
No report to date has sought to provide a thorough analysis of the application of the law, as presently defined and understood, to the specific factual circumstances of the latter stages of the Sri Lanka – LTTE conflict, they said. The earlier reports, had not even considered the complex legal standards applicable to this particular conflict.
Nice and Dixon made several observations. They said that principles of distinction and legitimate targeting, military necessity and proportionality have to be addressed before judgment about the rights and wrongs of a military attack can be made. The law in this field is not at all settled and could be regarded as generally undefined.
There is no hard and fast rule on the precise limits of acceptable civilian casualties under IHL, and each situation must be assessed on its merits. Very careful consideration must therefore be given to the circumstances of any conflict before judgments about legality or illegality of military actions in the conflict are made publicly. They also observed that uncertainties in international law could not have made it easy for Sri Lankan field commanders.
The legality of specific artillery strikes conducted by Sri Lanka must be judged on case by case, target by target. This is the analysis common to the assessment of any operational decisions in the context of an armed conflict, said Newton. This is an exercise those criticizing the Government of Sri Lanka have not performed. Instead of seeking independent military analysis, the discussions so far has generated an emotional response by presenting emotionally charged visual imagery and a simple explanation of the law (at best), all coupled to statistical information that is usually or always highly controversial, concluded Nice and Dixon. The relevant law, should not be discussed in a casual way in the press and on television.
Nice and Dixon also stated, firmly that this matter was not one which could be decided by legal opinion alone. This issue was not one that could be solved ‘on paper’ by lawyers they said. Whether what was done was lawful or unlawful could not be established by lawyers alone. An assessment of the final phase of the war must be done by independent top-level military personnel from countries completely uninvolved in the conflict, said Nice and Dixon..
The issue of human shields was discussed extensively. These lawyers are all agreed that LTTE’s act of taking civilians as hostages and using them as human shields in combat areas makes the LTTE guilty of the international crime of Human Shielding. The use of human shields in war is specifically prohibited under International Humanitarian Law, (IHL) they said. International Criminal Tribunal for former Yugoslavia (ICTY) considered human shielding a violation of the international law of warfare.
However, there has been a dramatic increase in the use of human shields today. Wars now take place inside populated areas and the weaker party uses the presence of civilians to deter military strikes from a superior force. Human shields therefore now present military decision-makers with one of the biggest challenges when implementing IHL.
Legal experts now increasingly feel that the party using human shields should not be allowed to get away with this tactic. The use of human shields should not be permitted to profit from such a clear violation of the laws of war, said de Silva and Crane. It is wholly inconsistent with the broader legal and moral principles to reward such intentional misconduct, said Newton.
The LTTE should not be rewarded for having committed the crime of taking human hostages and taking advantage of them as human shields to support their military campaign. The responsibility for the harmful consequences to civilians used as shields has been unfairly shifted to the government,
Modern international law remains unsettled on the precise application of the proportionality principle in the face of human shields. There is no known case law on the subject said Nice and Dixon. Case law providing guidance on the issue of human shields is relatively sparse, said de Silva and Crane.
The legal team of Crane, de Silva, Dixon, Nice and Newton had much to say about the LTTE. Here are some of their comments.
LTTE, on the verge of defeat, used civilians to avoid defeat. The war was clearly lost by then. LTTE refused civilians permission to leave, using them as hostages. LTTE shot point-blank at civilians who attempted to escape the conflict zone. This added to the death toll in the final stages of the war. The act of forcibly preventing civilians who wished to leave is a separate war crime of the LTTE,.
By engaging in perfidy and human shielding, it was the LTTE that failed to take the necessary precautions to minimize civilian casualties and so it is the LTTE that was truly liable for failure to comply with the principle of distinction and thus for civilian deaths that resulted.
LTTE alone is fully responsible for the civilian deaths. If the LTTE did not take civilians as hostages, there would have been no civilians casualties of any significance. But for the LTTE use of artillery fire from civilian areas, the civilians were perfectly safe based on the government declaration of the area as protected.” Only the LTTE could have known the correct figures of death or injury to civilians located in the area. 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.”
Paranagama commission said that the principal reason for loss of life during the last phase of the war was the hostage taking and use of human shields. . Paranagama Commission also found that it was the LTTE that killed majority of Tamil civilians during the last 12 hours of the final siege.
Countries have been saying for a long time, that the current laws of warfare do not apply to the modern asymmetrical battlefield in which standing armies battle loosely organized militias. It is wrong to punish law abiding nations for their observance of the laws of war and reward the non-state actors who disregard them. As the nature of conflict changes, IHL needs to keep abreast with modern asymmetric warfare. The rules of war must be modified, to ensure that they do not favor those violating the law, The Sri Lanka experiences could be used to rewrite the IHL rules.
Liability must be assessed in the light of the unique context of this war. It was a war fought under extraordinary circumstances, where a large civilian population was forcibly held within the battle zone and deliberate positioned to gain military advantage; the LTTE merged the No Fire Zones into the theatre of war. There for it was very difficult for the army to apply humanitarian principles fully.
Military tactics have been briefly discussed. There is no such thing as a ‘clean’ and ‘surgical’ war said Prof J. Krause, Director of the Institute of Security policy, Germany when he attended the Colombo Defense seminar 2013, Field Commanders are permitted to use their discretion when making decisions in situ. They will decide upon an attack on the basis of the information available to them at the time. An attack which affects s civilian object is not unlawful as long as it is aimed at a military target and the damage to civilians is not excessive. . Only direct attack against civilian objects are prohibited, not incidental damage resulting from attacks directed against military objectives.
Here are the references and links to the statements of Desmond de Silva, Crane, Newton , Nice and Dixon.
- The opinion by Desmond de Silva and D. M. Crane was published in ‘Island’ 3.3.2015. (http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653).
- The opinion by Nice and Dixon in ‘Island’ 10.3.2015 http://www.island.lk/index.php?page_cat=article-details&page=article– details&code_title=121064
- Abridged version of this review by Nice and Dixon at Island 24.3.2015 http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121960
- The opinion by Newton in Island” 28.9..2015 http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653
- Review of “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka” by Sir Geoffrey Nice & Rodney Dixon published 24 .7. 2014 Island” http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=121959) ( continued)