Neville Ladduwahetty, courtesy of The Island, 8/9th March 2016, where the title is “Addressing Accountability“ … with the highlighting and illustrative images being my editorial impositions. Michael Roberts
The current debate in the country is whether there should or should not be any foreign “participation” in the accountability processes and if there is to be foreign “participation”, to what degree it should be. The uncertainty as to the final outcome of the debate has caused the Security Forces to be understandably apprehensive. However, what needs to be appreciated is that accountability is only one facet of the entire reconciliation process.
Issues such as the closure on missing persons, reparations, reconstruction and rehabilitation have a far greater impact on reconciliation than accountability. This is particularly so because the focus on accountability would primarily be on the period from January to May 2009, since the strategies adopted by the Security Forces in the conduct of the separatist Armed Conflict prior to this period were acknowledged by the US in a cable that stated: “The Government has gained considerable credit until this point for conducting a disciplined military campaign” (Cable to the US State Department by the US Embassy, WikiLeaks, 27 January, 2009).
The Context – the Final Stages of the Separatist Armed Conflict: With the fall of Kilinochchi on January 2, 2009 the Report of the Office of the UN High Commissioner for Human Rights (OISL) states in paragraph 86:”By the end of January 2009, the LTTE was severely diminished as a fighting force. It lacked heavy weapons and had to rely on new and ill-trained recruits to fill its ranks … Having lost their defence lines at Kilinochchi and Elephant Pass, the LTTE was apparently no longer able to hold ground against the SLA (Sri Lankan Army) advance from the north, west and south, and engaged in a fighting withdrawal in an ever diminishing area with its back against the sea”.
With diminished military assets the choices open to the LTTE were limited. The only asset was the civilian population, if one could call 300,000 plus civilians an asset. They provided not only protection for the LTTE by blurring distinctions between civilians and combatants but also resources by way of manpower to participate in hostilities. Thus the civilian population became a “human shield”; a function that could only be served by compelling the civilians to stay with them by holding them “hostage”.
This was the context of the final stage of the separatist Armed Conflict both for the LTTE and the Security Forces. However, the use of civilians either as a human shield or as hostage is prohibited by International Humanitarian Law. What needs to be appreciated is that the purpose of a human shield could only be fulfilled as long as the LTTE could hold the civilians hostage; a dependence that caused the LTTE to prevent civilians from escaping by shooting them; evidence of which is contained in the Reports of the LLRC, Panel of Experts (Darusman); Paranagama; etc..
Rule 97 of the ICRC – The use of human shields is prohibited. …..International and non-international armed conflicts
With respect to non-international armed conflicts, Additional Protocol II does not explicitly mention the use of human shields, but such practice would be prohibited by the requirement that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations”. It is significant, furthermore, that the use of human shields has often been equated with the taking of hostages, which is prohibited by Additional Protocol II, and by customary international law (see Rule 96). In addition, deliberately using civilians to shield military operations is contrary to the principle of distinction and violates the obligation to take feasible precautions to separate civilians and military objectives (see Rules 23–24).
Several military manuals which apply in non-international armed conflicts prohibit the use of human shields. The legislation of several States criminalizes the use of human shields in non-international armed conflicts. The use of human shields in non-international armed conflicts has been condemned by States and by the United Nations, for example, with respect to the conflicts in Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan and the former Yugoslavia.
Rule 96. The taking of hostages is prohibited. Common Article 3 of the Geneva Conventions prohibits the taking of hostages. It is also prohibited by the Fourth Geneva Convention and is considered a grave breach thereof. These provisions were to some extent a departure from international law as it stood at that time, articulated in the List (Hostages Trial) case in 1948, in which the US Military Tribunal at Nuremberg did not rule out the possibility of an occupying power taking hostages as a measure of last resort and under certain strict conditions. However, in addition to the provisions in the Geneva Conventions, practice since then shows that the prohibition of hostage-taking is now firmly entrenched in customary international law and is considered a war crime.
The prohibition of hostage-taking is recognized as a fundamental guarantee for civilians and persons hors de combat in Additional Protocols I and II. Under the Statute of the International Criminal Court, the “taking of hostages” constitutes a war crime in both international and non-international armed conflicts. Hostage-taking is also listed as a war crime under the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone. Numerous military manuals prohibit the taking of hostages. This prohibition is also set forth in the legislation of numerous States.
Meeting the Challenge Presented: This was the context during the final stages of the separatist Armed Conflict. Consequently, the task before the Security Forces was how to meet an extraordinary challenge that had no precedent because of its scale and where rules of engagement for any Army did not exist as acknowledged by Maj. General John Holmes (Ret) formerly of the UK Special Forces (Paranagama Report, paragraph 83). The situation was compounded by the LTTE resorting to acts that were prohibited under rules of International Humanitarian Law despite its obligation to do so as a party to the conflict.
The mix of combatants and civilians that the Security Forces had to deal with could be categorized as follows:
- LTTE combatants in uniform.
- LTTE combatants who had shed their uniforms thereby violating the obligation for distinction as required by rules of International Humanitarian Law.
- Civilian who had volunteered to be combatants.
- Civilians who were coerced into directly participating in hostilities.
- Bona fide civilians and hors de combat.
According to this categorization except for category 5 the rest lose their Right to Protection as combatants under rules of International Humanitarian Law.
LTTE cadres dressed in civilian clothes firing a ZU-23 heavy machine gun – -see Mango 2014 at https://www.colombotelegraph.com/index.php/sri-lankas-war-in-its-last-phase-where-wia-figures-defeat-the-gross-kia-estimates/
It was within this mix of humanity that the Security Forces had to fulfill their obligation of Military Necessity. Under the circumstances, principles of distinction and proportionality that is the bedrock of International Humanitarian Law cannot be applied because if distinction as who was a combatant and who was a civilian is not possible, principles of proportionality too lose their relevance. In such a context, the charge of “indiscriminate attacks” cannot be established by anyone reviewing the evidence of witnesses. Such assessment is not possible even by anyone who happened to be an eyewitness, due to blurring of distinctions between civilians and combatants.
In that background, attempts to sensationalize the number of dead civilians would only be an exercise in fantasy because no one has the insight to ascertain who is a civilian and who was a combatant. Those who have attempted to give estimates of the dead civilians do not realize that by doing so they could be dishonouring those who committed their lives in the cause to establish the separate State of Tamil Eelam. They certainly would not want to be counted as civilians because they were answering the call of their leaders to fight the good fight for a separate State at Vaddukoddai in 1976.
What is of relevance under the circumstances presented was how to persuade the civilians who wished to leave the conflict zone to do so, in order that the sovereignty and territorial integrity of the State could be restored, which are the declared obligations of any Democratically elected responsible Government and endorsed in several international instruments starting with paragraph 7 of Article 2 of the Charter of the United Nations and Article 3 of Protocol II of 1977.
Although Article 3 of the International Convention against the taking of hostages, adopted by the UN General Assembly in 1979 does not apply to non-International Armed Conflicts, the general principle that any State Party should “take all measures it considers appropriate to ease the situation of the hostages”, has relevance. Article 3 of the Additional Protocol II, entitles State Parties to take “all legitimate means to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”. 
Scenes from Mullivaikkal in May 2009 –images from Tamilnet now found in Roberts, Tamil Person and State. Pictorial, 2014, with brief captions
Given the extraordinary circumstances of the situation, the decision as to what measures would qualify to be considered “appropriate to ease the situation of the hostages”, or what would amount to “all legitimate means” to ease the situation of those who wanted to leave the conflict zone and restore the territorial integrity of the State, would have been entirely subjective, and made on the exigencies of the situation What was “legitimate” or what was “appropriate” could only be determined by those directly engaged in the Separatist Armed Conflict in the heat of battle, and on the spur of the moment due to the absence of Rules of Engagement to guide them. Attempts to judge the strategies adopted after the fact would only be valid if the circumstances that had prevailed during the final stages could be recreated. Attempting to pass judgment on the basis of witnesses whose credibility has proven to be questionable would be misleading and counter-productive. That the measures adopted were appropriate is evident from the fact that nearly 300,000 civilians were saved and the territorial integrity of the State restored.
Although Article 3 of the International Convention against the taking of hostages, adopted by the UN General Assembly in 1979 does not apply to non-International Armed Conflicts, the general principle that any State Party should “take all measures it considers appropriate to ease the situation of the hostages”, has relevance. Article 3 of the Additional Protocol II, entitles State Parties to take “all legitimate means to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State”.
Given the extraordinary circumstances of the situation, the decision as to what measures would qualify to be considered “appropriate to ease the situation of the hostages”, or what would amount to “all legitimate means” to ease the situation of those who wanted to leave the conflict zone and restore the territorial integrity of the State, would have been entirely subjective, and made on the exigencies of the situation. What was “legitimate” or what was “appropriate” could only be determined by those directly engaged in the Separatist Armed Conflict in the heat of battle, and on the spur of the moment due to the absence of Rules of Engagement to guide them. Attempts to judge the strategies adopted after the fact would only be valid if the circumstances that had prevailed during the final stages could be recreated. Attempting to pass judgment on the basis of witnesses whose credibility has proven to be questionable would be misleading and counter-productive. That the measures adopted were appropriate is evident from the fact that nearly 300,000 civilians were saved and the territorial integrity of the State restored.
The circumstances were so extraordinary and unique that Commanders away from the battle scene would NOT have been in a position to lay down policy. Furthermore, they also could not have been in a position to give instructions to the Field Commanders because of the fluidity of the unparalleled circumstances presented minute by minute, hour by hour and day by day. Their only option was to leave it to the judgment of those in the thick of battle to realize the twin objectives of saving the civilians as an integral part of Military Necessity and neutralizing the LTTE in order to restore the territorial integrity of the State. Indiscriminate killing of civilians would have defeated these objectives because all it would accomplish would have been to induce civilians to commit themselves to the safety of the LTTE even at the risk of their lives. It was only by persuading the civilians to seek sanctuary with the Security Forces that the latter could accomplish the daunting task of bringing closure to the separatist Armed Conflict.
Relevance of a Judicial Mechanism: The facts presented above bring into question what material benefit could be gained by engaging in a full scale Judicial Mechanism as proposed by Geneva in the broader context of Reconciliation. Reliving the final stages of the conflict would only open memories of events with little or no impact on more vital issues of bringing closure to missing persons, reparations, reconstruction and rehabilitation. These issues have greater relevance to the living.
The notion that a Judicial Mechanism is necessary for the sake of truth and justice presumes that People are able to handle the Truth. This is not often the case. If a violation was committed and there is clear evidence that such took place, an independent arrangement could be set-up under the jurisdiction of the Attorney General’s Department to bring justice to those who were wronged. On the other hand, an exercise where former battle scenes are revisited to establish whether or not legitimate and appropriate means were used or whether war crimes and/or crimes against humanity were committed in the process of bring closure to the separatist Armed Conflict would be futile, because it physically cannot be relived. Consequently, an inconclusive Judicial Exercise would only leave in its wake a disappointed population who in all likelihood would blame the Government for lack of commitment in order to protect the Security Forces. In short, the entire exercise would be labeled a cover-up. On the other hand, a conclusive outcome that war crimes and crimes against humanity were committed, while satisfying those who wish to hold the Security Forces responsible would seriously damage the morale of the latter. This is the paradox a Judicial Mechanism would have to face..
Conclusion: The words of President Abraham Lincoln during his 2nd inaugural address are of poignant relevance to Sri Lanka when he said “…but one of them would make war rather than let the nation survive; and the other would accept war rather than let it perish. And the war came”. In Sri Lanka, the Tamil leadership called on the Tamil community to make war to create the separate State of Tamil Eelam at Vaddukoddai in 1976. And successive Sri Lankan Governments had no option but to accept war in the absence of failed attempts to negotiate a rational and mutually acceptable solution.
Despite the US acknowledging that the Security Forces had engaged in a “disciplined military campaign” until January 2009, the US is today leading the International initiative for Sri Lanka to relive the final 5 months of the separatist Armed Conflict. The objective is to ascertain whether the measures adopted by the Security Forces were legitimate and appropriate or whether war crimes and/or crimes against humanity were committed during its operations. The irony of the approach pursued by the US is that the actions of the Government of Sri Lanka are judged against a backdrop created by the LTTE that is prohibited under rules of International Humanitarian Law because the holding of civilians hostage for the purpose of using them as a human shield amount to war crimes and crimes against humanity.
If the Judicial Mechanism contemplated in the name of Truth and Justice determines that the measures adopted by the Security Forces were legitimate, the ruling would be received with disappointment and scepticism, and the Government would be blamed for lack of commitment towards protection of the Security Forces. The entire exercise would be described as a cover-up by the Government. Alternatively, an outcome that concludes that war crimes and crimes against humanity were committed would be welcomed by some while seriously damaging the morale of the Security Forces. Consequently, whatever ruling is given the outcome would leave winners and losers and polarize the nation further. Therefore, it would be more prudent to abandon a formal Judicial Mechanism except for possible individual violations, and focus on the more pressing tasks affecting the living by bringing closure to missing persons, reparations, reconstruction and rehabilitation.
It is correct that Geneva Conventions and Protocols to establish rules of war did not exist in 1865 to guide the US as to how to preserve the Union. At the same time could one say that the measures adopted recently in Iraq, Afghanistan, Libya and a host of other places throughout the world are “legitimate” and “appropriate” or indiscriminate, in order to make the US safe from Global Terrorism? Prospective Presidential Candidates in the US have come to realize the need to rethink US policy on how to make the country safe. This should be a pointer to the US to rethink its take on Sri Lanka, since the absence of war has made Sri Lanka safe for the US and Sri Lanka to jointly pursue mutually fulfilling national interests. Focusing on Reconciliation would extend these prospects further.
