Daya Gamage in Asian Tribune, 28 March 2019, where the title is different = “U.S. official document clears Sri Lanka of civilian deaths”
Instead of agreeing to collaborate with the United Kingdom to adopt Resolution 40/1 in March – an extension of October 2015 30/1 Resolution which imposed on Sri Lanka a mechanism of ‘hybrid court investigation’ to ascertain the truth about civilian casualties during the Eelam War (2006-2009) IV – Sri Lankan delegation headed by Foreign Minister Marapona, following the impressive official statement rejecting the ‘hybrid mechanism’, among others, should have followed the example set by the United States, not leaving the UNHRC process altogether but dissociated with the mechanism set forth under the 30/1 Resolution.
The Sri Lanka delegation had a strength given by Lord Naseby when he quoted de-classified documents in the House of Lords in 2017 disputing the fabricated 40,000 civilian death figures authoritatively presenting the 7,000 figure to withdraw from the UNHRC process.
In fact, the Government of Sri Lanka, if its Foreign Ministry and Presidential Secretariat did proper undertaking of research-analyses in their dealings with ‘global affairs’, they would have noted the official document released by the US Department of Defense in June 2015 in which the American position on civilian casualties were well defined. The USDOD document could have been used to absolve itself from the charges of civilian deaths when Washington ‘liberals’ were manipulating to present the 30/1 Resolution.
In collaborating with Washington to co-sponsor the 30/1 Resolution in October 2015 Sri Lanka exhibited its total ignorance of USDOD position on civilian casualties stated just three months before.
While using Lord Naseby’s submission which was based on classified cables sent by the Defense Attaché who witnessed the war from his accredited position in Colombo’s British High Commission, the GSL could have used the USDOD Law of the War Manual, first, not to participate in the 30/1 Resolution, second, to totally dissociate and discourage the adoption of it.
U.S. Department of Defense June 2015 – Law of War Manual, the authoritative position the Government of the United States takes in war situations in both international and non-international warfare, gives the USG official positions on my situation one of which is connected to ‘Human Shield’ and ‘Civilian Deaths’.
The interpretation of the ‘Proportionality Law’ in non-international war and the definition the Government of the United States declared on ‘Human Shield’ and ‘Civilian Deaths’ – in fact the language in the Manual – clears Sri Lanka’s culpability of civilian deaths during the final month (March-May 2009) of the intense battle between the GSL military and the Tamil Tiger fighting cadre in the battle of Puthukkudiriyirippu in the banks of the Lagoon Nathikadal in the Sri Lanka District of Mullaitivu.
Since the Eelam War IV was concluded, the US Department of State – in two reports released by its Office of Global Crimes – alleged the Sri Lanka military of discriminatory using heavy military artillery which cause the deaths of unarmed civilians. Lobbied and forced by the professional activists within the Tamil Diaspora who were once providing ‘material support’ to the LTTE in its secessionist war against the legitimate government of Sri Lanka, the USG went far as the UN Human Rights Commission in Geneva to bring resolutions against the GSL from 2010 through 2014. The theme of those resolutions was ‘accountability for what occurred during the final months of the war which produced civilian deaths’.
The interpretations and definition provided by the US Department of Defense (USDOD) in the Law of War Manual in fact absolves the Sri Lanka military of the ‘war crime and genocide charges’ blaming the non-state actor – the LTTE – in declaring “[i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields.”
During final months of the Eelam War IV, the state department and foreign offices of EU nations continually appealed to the LTTE not to use unarmed civilians as human shield and urged to allow the civilians to move toward the GSL declared No-Fire Zones to prevent mass casualty. It was quite apparent to everyone at that time that the LTTE was in fact using the unarmed civilians as human shield to prevent the GSL military from using its offensive to capture its rightful territory held by the secessionist movement. The Tigers were using heavy artillery to attack GSL military using the human shield and prevented them from leaving toward the No-Fire Zone. In fact there were reports that the Tigers brutally killed civilian who chose to escape toward the NFZ.
It is to this scenario during the final months of the war that the Asian Tribune endeavors to connect the determinations, interpretations and declared official US positions found in the USDOD-released Law of War Manual.
The commonly called ‘Proportionality Rule ‘ is combatants must refrain from attacks in which the expected loss of life or injury to civilians, and damage to civilian objects incidental to the attack, would be excessive in relation to the concrete and direct military advantage expected to be gained.
Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not constitute a war crime…. even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).
The USDOD Manual, among others, gives the USG interpretation and determination to this principle of proportionality. And this interpretation and the determination in the Manual which is now the official position of the Government of the United States that the Asian Tribune endeavors to connect to the scenario that prevailed during the final months of the intense battle between the non-state actor -Tamil Tigers, and the military of the legitimate Sri Lanka government which gave rise to issues of human shield and civilian deaths.
The Manual states that “[t]he party that employs human shields in an attempt to shield military objectives from attack assumes responsibility for their injury.”
The Manual further states that “[i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would perversely encourage the use of human shields.”
One of the most significant policy positions the USG has taken is when the USDOD Manual stated that “[i]f the proportionality rule were interpreted to permit the use of human shields to prohibit attacks, such an interpretation would … allow violations by the defending force to increase the legal obligations on the attacking force.”
When interpreting the scenario that prevailed during the final months of the Eelam War IV battle, the LTTE (defending force) ‘allowed violations’ using the human shield knowing full well that the attacking forces’ (GSL Military) ‘legal obligations could increase’.
This is how the Manual gives the USG ‘official position’ on ‘Human Shields’ and ‘Civilian Deaths’. The USDOD declares the USG policy plank that it is unfair for defending forces to intentionally trigger the legal obligations of the attacking force, through unlawful conduct, as a means of obtaining tactical advantage. The state department and EU nations have gone on record that the LTTE use of human shield was wrong urging the secessionist movement to allow the unarmed civilians to move toward the NFZ for safety.
It is internationally accepted in covenants that parties to a conflict must: (1) take certain measures to help ensure that military forces and civilians can be visually distinguished from one another; (2) physically separate, as feasible, their military objectives from the civilian population and other protected persons and objects; and (3) refrain from the misuse of protected persons and objects to shield military objectives.
The LTTE totally disregarded this, and the International Community was well aware of it though the Government of Sri Lanka was ignorant as its two vital organs – Ministry of Foreign Affairs and Presidential Secretariat – had done no research and investigation to find avenues to shield itself from manufactured and fabricated ‘civilian casualty figures’.
Under Protected Persons and Objects, the US Defense Department Law of War Manual says:
(Quote) In particular, the civilian population, protected persons under the GC, POWs, fixed medical establishments and medical units, parliamentarism and other persons protected by a flag of truce, and cultural property are protected persons and objects that may not be used.
Although persons and objects that are protected by the law of war may not be used inthese ways, this rule does not prohibit a party from using what would otherwise be a civilian object for military purposes and thereby converting it to a military objective that is not protected by the law of war.
For example, a building that previously was a civilian object could be used for military purposes (including as cover) and would not implicate this rule because it would no longer be a protected object. (End Quote)
It was widely known to the International Community that the LTTE converted hospitals and make-shift medical units as military objectives to attack the GSL military forces during the final and critical month of the battle.
The U.S. position is that the LTTE was not prohibited “from using what would otherwise be a civilian object for military purposes and thereby converting it to a military objective”, nevertheless the Manual declares once such a civilian facility was converted to a military objective that facility “is not protected by the law of war”.
The Manual determines “For example, a building that previously was a civilian object could be used for military purposes (including as cover) and would not implicate this rule because it would no longer be a protected object”.
The USDOD Manual further interprets the law of war under Protected Persons or Objects to Deter Enemy Military Operations in this manner:
(Quote) The essence of this rule is to refrain from deliberately endangering protected persons or objects for the purpose of deterring enemy military operations. This absolute duty to refrain from purposeful misconduct may be contrasted with the affirmative obligation that parties have to take feasible precautions to separate the civilian population, civilian internees, POWs, fixed medical establishments and medical units, and cultural property, from the dangers of military operations.
An adversary’s intention to violate this rule is likely to be clear because that adversary normally would make it apparent to the opposing party that attacks against the military objective being shielded would risk harming protected persons or objects. (End Quote)
The US Department of State throughout knew that the LTTE was using unarmed civilians as human shield, converted medical facilities as military objectives. Going by the language of the Manual, if the United States Government position of the use of unarmed civilians as human shield, it can be interpreted that the LTTE “violations increased the legal obligations on the attacking force”, attacking forces in this instance the GSL military forces; and converting civilian facilities such as make-shift hospitals and existing hospitals into military objectives, such facilities are “not protected by the law of war”.
The Government of Sri Lanka never gave serious note of the interpretations, determinations and policy declarations of the Government of the United States on the law of war in the Department of Defense’ Law of War Manual to frustrate the efforts of the United States to sponsor the October 2015 30/1 Resolution and bringing pressure to co-sponsor its own death knell.
Why did Sri Lanka ignored then and now in March 2019 session of the UNHRC in Geneva the official position adopted by the United States through the DOD Manual. The interpretations, determinations and policy declarations in the Manual clearly absolve Sri Lanka of incidents that occurred during the final months of the battle.
The Asian Tribune, even at this late stage, would like to provide the Government of Sri Lanka the link to the 1204-page DOD Manual: http://www.defense.gov/pubs/Law-of-War-Manual-June-2015.pdf.
This is not a Sirisena, Wickremasinghe or Rajapaksa issue: This is about the global image of Sri Lanka, and to frustrate the global efforts of former Tamil Tiger activists who were giving legal counsel, political strategy, lobbying services, raised funds and even advocated the procurement of arms to sustain the secessionist LTTE who have now taken over the global diplomatic offensive against Sri Lanka in their quest to de-legitimize the Sri Lanka state as a first move to facilitate the entry of the United Nations as a supervisory body to the North-East Provinces of Sri Lanka.
We hear a proposal to open a branch of the UNHRC in the northern province of Sri Lanka.
The USDOD’s Law of War can be easily interpreted into the scenario which existed during the final months of the Eelam War IV.
– Asian Tribune –