Luckily the Mahinda Rajapakse government had sought the legal opinion of international legal experts whose opinions should now be used to compare the OISL and UNHRC Heads reports and demands that contravene Article 2.7 of the UN Charter by interfering in the internal affairs of a sovereign nation. Reading Prof. Newton’s legal opinion alongside that of the OISL and the PoE any would laugh at the childishness of the report produced, the premises and insinuations made. Any would have to wonder for whose interest the report has been written and for whose benefit the recommendations have been made.
Who is Prof. Michael Newton?
He is an expert in terrorism, accountability, transnational justice, conduct of hostilities and has published more than 80 books, articles, op-eds. He has been an expert witness in terrorism related trials. He has also been the senior advisor to the Ambassador-at-large for War Crimes issues in the US State Dept.
Prof. Newton’s resume – http://law.vanderbilt.edu/files/cvs/2016_Newton_CV.pdf
Prof. Michael Newton on civilians being used by LTTE
§ LTTE refused to permit some 330,000 fellow Tamils to flee away from zone of conflict
§ LTTE used them as human shields
§ GOSL declared area as safe civilian (no fire zone) to protect innocent civilians but LTTE refused to agree to its creation. This he says constitutes prima facie evidence of LTTE’s intent to use civilians/civilian objects for its military campaign.
§ LTTE embedded its heavy artillery within the NFZ and intentionally shelled Sri Lankan positions from amidst civilian population
§ Using civilians Prof. Newton says is ‘roughly comparable to the war crime of perfidy’ because the LTTE sought to use the government’s compliance with the laws & customs of warfare to gain unwarranted military advantage.’ (this nullifies OISL allegation against SL Army)
§ LTTE intentionally used the civilians to shield military operations – this Prof. Newton says constitutes a war crime
§ Prof. Newton says that the obligation to protect civilians within the zone of conflict (as given in Article 57(1) of Protocol 1 to the Geneva Convention of 1949)
§ Prof. Newton says ‘there is no evidence to suggest that Sri Lankan commanders ignored this fundamental obligation. As reported by the US Embassy the Sri Lankan military expressly took the utmost care” to avoid civilian casualties, despite the intentional warping of its operational environment by the LTTE”. (this completely demolishes OISL’s claims)
Prof Newton – Distinguishing civilians from combatants
§ Question is how to distinguish civilian population from combatants and civilian objectives from military objectives to direct military operations only against military objectives as required by Article 48 of the Protocol 1
§ Assessment of US ambassador at the time gives clearly that the operational goal of the LTTE was to effect military advantage against the Sri Lankan forces and so LTTE forcibly prevented evacuations of civilians who wanted to leave (again OISL premise is demolished)
§ Prof. Newton states that the ‘Elements of Crimes for the Rome Statute’ adopted in June 2000 was clear that action by a perpetrator with the intent to ‘shield a military object from attack’ or to take advantage of one or more civilians to ‘shield, favour or impede military operations’ constitutes a war crime (OISL – it is LTTE who has committed the war crime not SL Army)
§ Prof. Newton also demolishes Ban Ki Moon’s Panel of Experts who claimed that ‘credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks”. (PoE argument legally thrown to the dustbin)
§ Prof. Newton also says that the ‘crime of using human shields is committed by any perpetrator that intentionally moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict” (LTTE becomes a clear war criminal)
§ Prof. Newton authoritatively says LTTE committed the war crime of using human shields on any occasion that it took advantage of the presence of innocent civilians with the intent of protecting its military assets from any attack or to shield, favour or impede military operations.” (LTTE by attempting to gain inappropriate military advantage from the presence of civilians/civilian objects commits the war crime of using human shields with or without deliberate moving of civilians) – there goes another unfounded premise of the OISL and PoE to the dustbin.
§ Prof Newton says that ‘there is no per se prohibition against attacking targets protected by human shields’ so long as government artillery strikes comply with the principle of proportionality and after taking ‘all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.
§ Prof. Newton says that both Hamas and LTTE used human shields unlawfully to favour military operations.
Prof. Newton on military attacks
§ Evidence clear that targets were ‘specifically attacked in response to LTTE fire emanating from within the civilian areas”
§ To elucidate this Prof. Newton brings out other examples
o ‘no government has declared the illegality of Israeli strikes simple because they were directed into civilian areas (law is that artillery fire into civilian areas cannot be deemed per se unlawful but must be subjected to the traditional analysis drawn from principles of distinction, military necessity, and proportionality.
§ Response of the German government following the 2009 Israeli incursion into Gaza was that it supported the assertion that there is no per se prohibition on the use of artillery shells in urban areas: The Federal Government has no reliable information on the use of such ammunition. The use of means of warfare which cannot be directed against a specific military objective, so called indiscriminate attacks, would be prohibited …This would depend not only on the type of ammunition, but also on the circumstances of their use”
§ Gotovina case – neither ICTY Trial Cambers nor Appeals Chambers asserted that use of artillery fire directed against purported military objectives located in civilian urban areas is in itself dispositive of illegality.
Prof. Newton on principle of distinction
§ Principle of distinction requires parties to distinguish at all times between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives.”
§ It is prohibited to target civilians in customary international law
§ Galic Appeal Judgement, Article 51(2) of Additional Protocol I states in a clear language that civilians and the civilian population as such should not be the object of attack”, that this principle does not mention any exceptions”, and in particular that it does not contemplate derogating from this rule by invoking military necessity.”
§ Article 51(2) explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities” and stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objective.”
§ Prof. Newton says that There is no requirement that particular areas or zones be designated as civilian or military in nature” because a distinction is to be made between the civilian population and combatants, or between civilian and military objectives – on a case-by-case basis.
§ Sri Lankan government did not require labelling area as safe or protected so long as attacks were on lawful targets using lawful weapons in a lawful manner as permitted under the laws & customs of warfare.
§ Prof. Newton on rethinking Proportionality with modern human shielding
§ The problem – human shields present military decision-makers a challenge to ensure civilians are protected from hostilities (unless they take part in hostilities) and the violation by one side who locates military objectives within or near densely populated areas and fails to take the necessary precautions to protect civilian populations.
§ Prof. Newton says that the commander in the field has to either cede an unlawfully obtained military advantage to the enemy and suffer casualties or undertake careful strikes in response. He goes on to say that ‘if the law is warped to permit the enemy to unlawfully exploit human shields with no possibility of recourse, then it becomes irrelevant and essentially obsolete”. He says the only to way to balance is to apply good faith application of the law of proportionality. (another OISL premise against SL Army demolished)
§ Prof. Newton adds a very important answer no military commander in the world, and by extension no political official that authorizes the use of military force, should accept a legal premise that military forces must suffer the lethal force of the enemy while under a legal obligation not to respond using lawful force in self-defence” (this is exactly what the UN/UNSG, PoE and the OISL demands of the SL Army – to become guinea pigs for LTTE fire)
§ Prof. Newton confirms that ‘LTTE enemy deliberately misused civilians to protect military targets, and ignored governmental efforts to establish safe areas for civilians while hindering their ability to seek safety”
§ He says that the right of the Sri Lankan government to respond using lawful weapons against identifiable military targets must be respected.
§ Prof Newton says that LTTE deliberately ignores its own legal duties, disconnects between aspirational legal rules”
§ Prof. Newton says that the warning of the U.S. Ambassador that strikes should not be undertaken against clearly identified military objectives when the LTTE used the presence of civilians in the so-called NFZ to launch military strikes is both naive and unfounded in modern international law.
§ What the essential argument is that the Sri Lankan forces cannot be shown the red card and charged when the other side is violating all rules of law and laws of proportionality.
Prof. Newton on voluntary human shields
§ Voluntary human shields, even though they do not wear uniforms, carry guns openly, or follow a chain of command, seem to have chosen directly to participate in the war effort and even place themselves in the line of fire. Once they are on the battlefield they are passive rather than active, but they intend to affect the war by their passivity, and the passivity is often even more efficacious than those soldiers who are carrying weapons and are actively ready to fire them.
§ To be a voluntary human shield, a person must intentionally seek to put herself or himself between a likely attack and a military target. This volitional conduct epitomizes the essence of the principle from Article 51(3) of Protocol I that civilians enjoy express protections unless and for such time as they take a direct part in hostilities.”
§ Voluntary human shields risk their own lives for a particular military or political objective. They are therefore intellectually identical to unlawful belligerents or other insurgents in the sense that they participate in hostilities but do not enjoy combatant immunity or benefit from the full range of rights that accrue to lawful combatants.”
§ Prof. Newton says Neither the principle of discrimination nor the principle of proportionality applies to persons no longer legally categorized as civilians.” (OISL has still to answer how many of the people they term ‘civilians’ were truly civilian as LTTE did have a civilian trained army)
§ express right to protection derived from civilian status is forfeited by voluntary participation in the conflict”
§ Prof Newton quotes the theory of Emer de Vattel that the law should not be fashioned or applied in order to favour oppressors – which means LTTE should not use human shields to gain asymmetric advantage. Prof. Newton says that LTTE exploited the presence of civilians to favour military operations tilting the application of proportionality to disfavour the lawful and limited responses of the government.
Prof Newton concludes that the military responses to illegal LTTE actions is proportionate
§ In psychological terms – SL Army strikes were directed at military objectives despite presence of human shields. Prof. Newton says that more lives were saved than lost.
§ Even when Sri Lanka forces issued effective warnings to the civilian population (which negates the accusation by OISL that SL Forces did not) these warnings came to nought as LTTE prevented civilians from leaving to safety. Prof. Newton says that LTTE rejected the area declared safe for civilians and nullified the warnings and thus LTTE bears ‘responsibility for civilian deaths because their own conduct was the causal factor in such deaths’.
§ ‘no evidence in the record to suggest that the government used inherently indiscriminate weapons such as barrel bombs or Grad rockets 15, that are typically used for their capacity to affect a wide area at great range (this again demolishes OISL specific claims about SL military using such weapons – this is a key factor that absolves the military and shames the OISL for lying)
§ The SLA can almost certainly produce evidence that it undertook artillery strikes in compliance with the best practices designed to minimize or to eliminate civilian casualties.” For example, artillery experts will attest that frequent adjustments to equipment are needed to account for wind changes, humidity changes and temperature changes that affect the predictability of artillery round trajectories. These practices in turn served to decrease the foreseeable civilian casualties by ensuring that rounds were directed specifically to the lawful LTTE targets (what does the OISL have to say now… an apology to the SL Army is fine for starters)
§ Similarly, commanders are experts at using the artillery batteries that are best positioned to respond to a given attack. Use of on-scene observers whenever possible and stringent rules of engagement to require higher level approval under specific operational conditions for the return of artillery fire into the safe zone served to minimize civilian casualties.” (don’t you just wonder what the OISL is upto when reading Prof. Newton’s legal opinion?)
§ Prof. Newton says proof that the SL Army did their best to anticipate causal factors that could have made worse civilian casualties and so fired at military objectives from a greater distance which indicates the SL army compliance with proportionality principle. He concludes that ‘the Sri Lanka military cannot be responsible for a higher margin of error than anticipated’.
Prof. Newton on Civilians, Combatants and Loss of Civilian status
§ Prof. Newton says ‘civilians that intentionally shielded LTTE targets forfeited their otherwise protected status by virtue of having directly participated in hostilities’ (we now want to know how many civilians intentionally shielded LTTE targets)
§ ‘the reported inflation of estimated civilian casualties sought to aggrandize the wrongfulness of the military responses, and to obscure the prior war crimes committed by the LTTE precisely to achieve a propaganda victory that might translate into strategic success’ (how will the OISL respond to this)
§ 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” in relation to the anticipated military value.
§ commanders have every right to consider the safety of their own forces in making proportionality determinations because, the perspective of the commander (or other warfighting decision maker) is entitled to deference based on the subjective perspective prevailing at the time.”
§ it is my unqualified opinion that the overarching necessity of ending the multi-generational struggle against the LTTE permitted Sri Lanka commanders to consider means of attack that accomplished the vital goal of final victory”, even as they sought to protect their own forces. It would be ludicrous to suggest that there is some precept of international law that required them to send ground forces into the NFZ to respond to the LTTE artillery fire. I cannot imagine a knowledgeable expert in my field that would suggest otherwise.”
Full opinion – http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120653
Reading Prof. Newtons opinion one can realize the level of lies that the UNHRC has stooped to in trying to twist and turn the law to favour the illegal combatants the LTTE and the audacity of the UNHRC head to demand that the present government ‘rein in Sri Lanka’s military’ shows he is going well over his limits.
Shenali D Waduge