Indi Samarajiva, in the Sunday Island, 18 December 2011, under a different title: “Highlights of the LLRC Report”
It was basically a strategic necessity, but near the end of the war the LTTE’s actions were to herd civilians around them and essentially play chicken with the Sri Lankan military, hoping that the international community would bail them out. This is the strategy their international wing(s) are continuing now, using the deaths they effectively caused to put pressure on the GoSL. It is extremely cynical and evil even. If anything was a war crime, this was it. A civilian who had been displaced with his family since August 2006 stated that the LTTE always mingled with the people even in the NFZs. Civilians therefore had tried to escape and move out of the NFZs into safe areas during the night. He further explained that when this happened, the LTTE fired and then the Army returned fire to the place where the LTTE firing came from.
While it is important to remember that the LTTE were the bad guys, it is also important to remember that ‘proportionality’ means nothing if you are the one being bombed. “We cannot digest and we cannot forget the untold sufferings that we have experienced during the last stages. The Government announced 
a security area. The first security area was declared at Udayakattu by the Government. So we went there; we got caught there and we went through a lot of difficulties in that area. We started getting displaced from place to place. Whenever the Government announces certain areas we went to take shelter there and we went through difficulties. And we cannot forget the people who died in that security area. I could have taken a photograph but the situation was not that conducive to take photographs. We were trying to save our lives.”Civilian Casualties: The military is admitting that civilian casualties did occur (code for ‘we did kill innocent people’), something that Mahinda Rajapaksa falsely and callously denied.
4.112 During the Commission’s sittings in Mullaittivu the Commission was briefed by a Military Official on the final phase of the conflict. He stated that in the midst of battle, civilians were trying to cross over to Army lines and the LTTE were firing at them to prevent the civilians from crossing over. The Army too had returned fire, using small arms and during the exchanges of fire, civilians were caught in the cross fire and casualties did occur.
Hospital Shelling: They are also admitting that hospitals were shelled, because the LTTE had set up artillery nearby. 4.128 A Government official who was interviewed by the Commission stated that on 3rd February 2009, shells had fallen on the PTK hospital where he was receiving treatment. He further stated that he had been taken in for a dressing and as soon as he was brought out a shell had landed on the theatre and the entire theatre had been damaged. He added that all who could run away had fled screaming.
Food And Supply Shortages: After listing how the government did all it could to supply affected areas (I think they did do a lot), they admitted that the situation was still pretty hellish. The LTTE was siphoning off supplies that did come, and the supplies could not possibly be enough.
4.179 A Government Doctor who had served in the Wanni until the final days of the conflict during the course of his representations to the Commission stated that the hospital staff with a few medical people went to Puthumatthalan and Mullaivaikkal. He further elaborated: “…thinking in retrospect I cannot help concluding that we all managed to survive under deplorable conditions, unfit even for animals, fear, suffering, loss of life or limbs and the surrounding areas littered with dead bodies and carcasses of dying animals was all that the poor people had to bear with. Many did not have access to a square meal a day and most importantly and pathetically water was a hard to get commodity for many. Absent were toilets and even the most conservative women folk had to go in the open…’
Civilian Detentions: With the usual covering intro (Army did what they could, LTTE was mixing cynically), the commission also highlights a wrong. Perhaps a necessary one, but this a big thing, admitting uncomfortable realities.
4.227 The Commission on its visits to the detention centres heard from detainees that, due to the conditions not being conducive at the time of surrender, to obtain all the details of their involvement with the LTTE, they were languishing in detention/rehabilitation centres, even though at the time of surrender they had not been with the LTTE.
Essentially, innocent people were detained. They justify, but there is a small justice in simply acknowledging reality.
The White Flag surrendering people being killed issue is largely denied. What’s more interesting is that they report multiple cases of disappearances.
4.227 The Commission on its visits to the detention centres heard from detainees that, due to the conditions not being conducive at the time of surrender, to obtain all the details of their involvement with the LTTE, they were languishing in detention/rehabilitation centres, even though at the time of surrender they had not been with the LTTE.
Violence Was Proportional: From the reports they jump a bit to the conclusion, that the violence and civilian suffering was proportional. In essence, was it worth it in terms of the military objective. I have to agree. The military objective was ending a 30 year war that could have crippled the country for another 30, until Prabhakaran died of diabetes. So yes I think it was proportional, though emotionally that is still a messed up thing to say.
4.283 Having reached the above conclusions, it is also incumbent on the Commission to consider the question, while there was no deliberate targeting of civilians by the Security Forces, whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality. Given the complexity of the situation that presented itself as described above, the Commission after most careful consideration of all aspects, is of the view that the Security Forces were confronted with an unprecedented situation when no other choice was possible and all “feasible precautions” that were practicable in the circumstances had been taken.
Accountability: The real issues in all the hype have been A) why cannot the government admit that civilians were killed and B) why cannot they take responsibility. I think the report goes very far towards A, and addresses B. Not to the satisfaction of people who want Mahinda and Gotabhaya in jail, but many of those people who I think did notwant Sri Lankato win the war, which is ultimately a positive outcome. I simply think a punitive commission is a waste of time and bad for the nation. Accountability, however, is a good thing and supports a better future for us all. Anyways, the report acknowledges wrongs and calls for rectification (to the limited extent that is mortally possible).
4.286 … the material nevertheless points towards possible implications of the Security Forces for the resulting death or injury to civilians, even though this may not have been with an intent to cause harm. In these circumstances the Commission stresses that there is a duty on the part of the State to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrong doers. Consideration should also be given to providing appropriate redress to the next of kin of those killed and those injured as a humanitarian gesture that would help the victims to come to terms with personal tragedy, both in relation to the incidents referred to above and any other incidents which further investigations may reveal.
So: I think this is rather long and I have stopped here. The report is really not dull and I recommend reading it for yourself (http://t.co/ GdEsLD9q). At the least, this LLRC report has way more information than the UN Report, which is essentially a reading of TamilNet. There is actually a lot of meat and direct testimony in what the LLRC has produced. I went to a bunch of sessions and I thought the conclusion was pre-determined and that they were playing up to Gotabhaya rather shamelessly. The final report, however, has surprised me. For me the biggest issues have been admitting death and supporting life. I think the report addresses both well.
Honestly, the best war is one that never starts. It is better if a bunch of uniformed troops line up, kill each other in a field and go home. Beyond that, war is just differing degrees of bad. The just war that commentators often demand (no civilian casualties) is not even present in international law, because it is not real. War is really bad. I think the only good war is one that ends. This war did end, after 30 years, and that is a relative good. And it happened. Now we can talk about it with some honesty. I think this is a start.
The Christmas goose
http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=41427
In the two and a half years after the end of the war, no counter had been made by Sri Lanka to these allegations of having broken international laws. The LLRC report cannot be considered a counter to those allegations, but at least there is a statement of how an independent body of Sri Lankan legal experts would see the applicability of the international law of armed conflict and international humanitarian law to the Sri Lankan context. The international report that dealt most comprehensively with the legal aspects of the Sri Lankan case was the UN Secretary General’s advisory panel report of April 2011. According to the position stated in that report, Sri Lanka basically stands condemned already. The position taken by Ban Ki-moon’s panelists can be summarized as follows.
* Sri Lanka has signed only the Geneva Conventions of 1949 and not its Additional Protocol II which deals with internal conflicts. Therefore Sri Lanka is not covered by Additional Protocol II.
* What is applicable to the Sri Lankan case is only Common Article 3 (Common in the sense of being common to all four of the Geneva Conventions) which deals with internal conflicts and broadly stipulates that those taking no active part in the hostilities should be treated humanely.
* Attacks may be directed only at combatants and not at civilians, the latter being defined as those who are not members of an armed group taking part in the conflict. There is an ‘unconditional and absolute prohibition’ on the targeting of civilians. This absolute immunity is available to a population that is ‘predominantly civilian’ which means that even if there are individuals who are combatants among the population, that does not deprive the said population of its civilian character.
* While attacks on civilians have to be ‘willful’ to become a crime, and the accused has to deliberately target and kill civilians, this element of a willful attack will also apply to an attack that is reckless with regard to its possible impact on civilians.
* If it is argued that the army did not target civilians deliberately, and targeted only the LTTE, an attack still remains unlawful if it hits a lawful military object and a civilian object at the same time.
This means that you cannot fire back at terrorists who shoot at the army from among civilians.
What was stated in the Ban panel report was undoubtedly the lunatic fringe of the law of armed conflict. With laws such as the above, no country on earth would be able to combat terrorism. The LLRC started off by echoing the views expressed in the ICRC compendium of Customary International Humanitarian Law. A key observation that the ICRC makes is that Additional Protocol II of the Geneva Conventions which deals with internal conflicts has not defined the terms ‘civilian’ and ‘combatant’ in a satisfactory manner and that all subsequent international treaties have also not defined these two terms.
The Ban Ki-moon panel report stressed as we saw above that if there is a doubt whether a person is a civilian, he will be considered a civilian. But this is not accepted by key western countries which have expressed their reservations on this rule. The USA, France and the UK do not accept this view. The USA holds that the question of civilians and ‘direct participation in hostilities’ must be decided on a case by case basis. France and the UK insisted that the presumption of being civilian does not override the commander’s duty to protect the troops under his command. Thus we see that the Ban panel was trying to ram down our throats principles that the western nations have rejected.
Even the ICRC compendium itself agrees that to insist that in cases of doubt the assumption should be that the people on question are civilians would create an imbalance between the government forces and terrorists because it would be lawful to attack a terrorist only when he is ‘taking direct part in hostilities’ whereas it would be lawful to attack government forces at any time. The ICRC also observed that there is no definition of ‘direct participation in hostilities’.
The international law of armed conflict that the LLRC has based itself however is the law of international conflict which has been approved of by the United States of America, the United Kingdom, France, Germany, Netherlands, Australia, Canada, Italy, New Zealand. These principles adopted by western nations can be summarized as follows.
* The principle of distinguishing between civilian and military objectives only prohibits direct attacks against civilian objects and does not deal with the question of incidental damage resulting from attacks directed against military objectives. Therefore an attack which affects civilian objects is not unlawful as long as it is aimed at a military target and the damage to civilians is not excessive.
* While ‘all feasible precautions’ have to be taken to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, in the practical application of these rules, the obligation to take all feasible precautions is limited to those precautions that are practicable or practically possible taking into account all circumstances including humanitarian and military considerations.
* The military manuals of the USA, Australia, Canada, Switzerland, Australia, Netherlands among other nations, specifically states that the presence of civilians within or around military targets do not render such places immune from attack. Readers will note that the Ban panel said exactly the opposite in relation to Sri Lanka.
* While the principle has been broadly stated that when there is a doubt whether a certain civilian facility is being used for military purposes, it should be given the benefit of the doubt and declared a civilian facility. The USA however objected to this on the grounds that this is contrary to the traditional law of war because it shifts the burden of determining the precise use of a facility from the party controlling that facility to the party that lacks such control!
* With regard to the obligation to choose a target that causes least damage to civilians and civilians objects, The United States has emphasized that this is not an absolute obligation as it applies only when a choice is possible. An attacker may comply with it only if it is possible to do so subject to mission accomplishment and allowable risk or he may determine that it is impossible to make such a determination.
* In reference to the principle of proportionality, which stipulates that the loss of incidental civilian life should not be disproportionate to the direct military advantage anticipated, the rules that the western countries adheres to is that the term ‘military advantage’ refers to the advantage anticipated from the military attack considered as a whole and not from isolated or particular parts of that attack. Further, the western states have affirmed that the term ‘concrete and direct military advantage anticipated’ refers to an expectation that the attack would make a relevant and proportionate contribution to the final goal. Some western states, namely Australia, Canada and New Zealand stipulated that the term ‘military advantage’ included the security of the attacking forces.
This is not all, the LLRC report goes on to examine the western endorsed international laws applicable to other allegations against Sri Lanka as well. For example, with regard to the question of those trying to surrender, the UK in particular has argued that that it may not be possible to accept surrender from one unit while under fire from another position. This is exactly what the west says happened in the case of Nadesan and Pulidevan who are supposed to have been trying to surrender while their people were firing on the army from the same line. Moreover, the UK stipulated that the party which accepts surrender is not required to go out to receive the surrender – instead the party offering surrender has to come forward and submit to the control of the enemy forces. The United States has stipulated very significantly, that an offer of surrender has to be made at a time when it can be received and acted upon and a last minute surrender to an onrushing force may be difficult to accept!
All these points are derived from observations made by the afore-mentioned group of Western nations, individually and collectively, in their responses to the relevant clauses of the Geneva Conventions and Additional Protocol II of the same. With these observations the west has basically cooked their own goose as far as making allegations against Sri Lanka is concerned. Their own laws will be Sri Lanka’s defence. All that Sri Lanka now has to do is to compile a dossier on all the observations and reservations expressed by western countries b collectively or individually to various conventions governing the international law of armed conflict and to use that to prepare Sri Lanka’s response. This is also the sales pitch that has to be taken to the UN Human Rights Council to convince the other nations on that body that the west is on a politically motivated witch hunt against Sri Lanka.
All these present international laws that related to war was based on conventional warfare and as such does not apply to present day Asymmetric warfare that ltte was guilty of.
Americans want to re wright the whole war scenario that affect asymmetric warfare and of course civilians that are major combatants.
UN is becoming a political joke rather than a neutral umpire and what Ban Ki did was based on a hatchet job to please his masters and has nothing to do with right or wrong. S.Koreans always will lick US boots since US underwright their security.
Having appointed two rapporteurs for ch4 video analysis they had a egg on their face since 2nd finding rubbish the 1st finding after my video analysis.
Worst was none of the so called video experts that UN hired are nothing but ordinary people and not experts in this field. I challenged them to give the video to expert lab for analysis and they refused. Because they knew the video is faked from the beginning .
So where is the justice ? Or shall I say rapporteurs are dishonest? Is this means whole UN system is corrupt?
This thesis is as perceptive as succinct and comprehensive. Many thanks PSARA. I am no legal eagle but I have always thought that many of the war crimes stipulations were written by backroom boffins [some military] who have no comprehension of the complexities of warfare.
In short, the rules of war dissected by PSARA are mostly impossible to implement – because the first duty of a ground commander is to protect his unit and to secure delimited objectives.
Phrased otherwise I am agreeing with Indi Samarajiva: “the best war is one that never starts.”
Grounded thus in pragmatics one can say that the human rights extremists are mostly not only in the backroom with the boffins; they are also in the stratosphere. Ban ki-Moon should be subject to investigation for his choice of personnel for the Darusman Panel and should take some heat for the manner in which that panel allowed itself to be the mouthpiece of the HR lobby. Roberts. Also see http://thuppahi.wordpress.com/2011/06/27/people-of-righteousness-target-sri-lanka/