Does the UNHRC have a mandate to judge international humanitarian law in an armed conflict?Sri Lanka’s conflict is defined as a non-international armed conflict where governing rules are IHL. Why is the UNHRC taking Sri Lanka to task based on human rights alone and that too human rights that are outside of the conflict. When the UNHRC attempts to cunningly use human rights over IHL, the Global South nations of the UNHRC must realize the dangers for their own countries by the intrusive resolutions being passed which in turn can be applied to their countries by the precedents being created. Why has Sri Lanka’s Foreign Ministry & Legal Advisors not demanded UNHRC or the international community stick IHL and bring forward allegations of violations with facts & evidence instead of plucking non-conflict related human rights issues which can easily be taken up at universal periodic reviews of UNHRC.
Human Rights Law is displaced by International Humanitarian Law during an Armed Conflict. This does not mean human rights law is invalidated within the zone of an armed conflict. What it does mean is that where rules of war are concerned the applicable laws are IHL which follow the maxim lex specialis derogate legi generali (where norms deal with the same subject, priority is given to the norm that is more specific – which is IHL and not IHR) Thus, lex specialis is humanitarian law. ICJ accepts this too. Human Rights Law is applicable in an armed conflict but it cannot conflict with IHL. Wherever there is a conflict, IHL prevails.
What are the LAWS applicable to a Non-International Armed Conflict?
LTTE recruitment of children as child soldiers –
LTTE violated fundamental rights of a child to education/violated Article 26 of the UN Declaration of Human Rights / Geneva Convention IV Article 50/ Additional Protocol I of 1977 Article 77(2) / Additional Protocol II of 1977 Article 4(3)(c) / Convention on the Rights of the Child 1989 Article 38(3) /
LTTE are unlawful combatants –
LTTE violations of Customary IHL
LTTE violated Principle of Distinction (Rule 1, 2, 5, 6, 7, 8, 9, 10)
– Rule 1 LTTE had a civilian armed force & combatants fought in civilian clothing & herded civilians with purposeful intent to put civilian life at risk & as a defense.
– Rule 2 LTTE fired at fleeing civilians and fired from among civilians
– Rule 5 LTTE herded civilians with them knowing they were putting civilian lives at risk
– Rule 6 LTTE did not protect civilians against attack and forced civilians to engage in hostilities by forcibly recruiting civilians and giving them short training & sending them to the war front (such civilians engaging in hostilities do not qualify to be classified as civilians as LTTE were using them as a military objective)
– Rule 7 LTTE herded civilians into the safe zone demarcated for only civilians and fired from among civilians. LTTE even fired at civilians fleeing LTTE
– Rule 8 LTTE fired from among civilians inside the safe zone which was not meant for LTTE. Sri Lanka Armed Forces had every right to return fire because LTTE was prohibited to fire from among civilians.
– Rule 9 LTTE used civilians as objects
– Rule 10 LTTE did not protect civilians against attack.
LTTE violated Principle of Indiscriminate attacks (Rule 11, 12, 13)
The safe zone was meant for civilians. It was not an official demarcation but the SL Armed Forces dropped leaflets in Tamil and spoke over loudspeakers advising civilians to seek shelter in the safe zone. Knowing this, LTTE committed a grave violation by not only entering the safe zone with the civilians but firing from among civilians putting civilians on the line of fire.
LTTE violated Principle of Proportionality in Attack (Rule 14-24)
Rule 14Sir Geoffrey Nice QC & Rodney Dixon QC international terrorist experts concluded in their report that applicable legal standards did allow Sri Lanka Armed Forces to attack the LTTE & its military locations. Under IHL civilian casualties are allowed though to precise number but requiring to be commensurate to the aim of defeating LTTE. Such an assessment should be by independent top-level military personnel (not NGO panelists like Sooka)
Not only did LTTE use civilians in hostilities, LTTE had a trained armed civilian force, it kept civilians as human shields and hostages and fired from among civilians. On 27 January 2009 US envoy Robert Blake publicly stated “LTTE must immediately desist from firing heavy weapons from areas within or near civilian concentrations”. This clearly exposed LTTE.
Then there was the US cable with ICRC Head of Operations for South Asia, Jacques de Maio stating that ‘LTTE commanders objective was to keep the distinction between civilian and military assets blurred”
LTTE did not fire wearing uniforms further confounding distinction.
IHL requires parties not to target civilians but military objectives can be attacked.
In creating a safe zone and asking civilians to move into it – the Sri Lanka Army did its part to safeguard the civilians.
Rule 15– In joining the civilians inside the safe zone and firing from inside the safe zone – LTTE were violating the rule of IHL. Collateral damage is allowed. If by the statistics of dead which was below 8000 including LTTE, this loss is certainly acceptable considering Sri Lanka Armed Forces saved 300,000.
Rule 16The LTTE violated this principle that requires it to verify targets as military objectives – LTTE fired at fleeing civilians and killed them. No one knows how many civilians LTTE killed in this manner.
Rule 17LTTE violated this principle by not taking precautions to avoid, minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.
Rule18The Sri Lanka Armed Forces took every precaution to avoid incidental loss of life to civilians. However, LTTE broke all rules.
Rule 19Firing from among civilians knowing Sri Lanka Armed Forces had every right to return fire, by LTTE was with purposeful intent of putting civilians lives in jeopardy.
Rule 20LTTE violated this principle of not giving advance warning of attacks affecting civilian population because LTTE was firing from among civilians.
Rule 21Again LTTE was in violation of this principle as LTTE chose to fire from among civilians expecting the Armed Forces to return fire and thus cause civilian casualties.
Rule 22LTTE was in violation of this principle that required it to take all precautions to protect civilians under its control – LTTE was actually putting civilians in harms way and even firing at fleeing civilians.
Rule 23LTTE violated this principle that required it to avoid military objectives within or near densely populated areas – LTTE fired from inside the safe zone and LTTE fired from hospitals and schools keeping civilians with them
Rule 24LTTE did not remove civilians under its control from vicinity of military objectives – instead LTTE used civilians and kept them in the line of fire.
LTTE violated Principle of Protecting Special Persons & Objects – medical & religious (Rule 25-30)
Rule 25LTTE violated this principle by forcing doctors working in the hospitals to lie and give false figures
Rule 26 In all probability LTTE violated this principle too as the doctors working in the conflict zone were not allowed to follow medical ethics.
Rule 27This principle required religious personnel to be respected and protected – they however lose that protection if they commit anything outside their humanitarian function. It is good to evaluate the religious personnel who were with LTTE during the conflict & their conduct. No such religious persons were with the Sri Lanka Armed Forces.
Rule 28LTTE did not allow medical units to function as per their purpose.
Rule 29LTTE forced medical transports to be used for its advantage – even essentials sent for civilians were confiscated and given only to LTTE & their families.
Rule 30LTTE did attack UN convoys and even ship carrying medical and essentials to the conflict zone.
LTTE violated Principle of Humanitarian Relief Personnel & Objects (Rule 31-32)
– Rule 31 LTTE did not respect humanitarian relief personnel nor protected them
– Rule 32 LTTE was using hospitals and schools to nurse LTTE while the same venues were used for civilians while LTTE fired from these places
LTTE violated Principle of Personnel & Objects in Peace Keeping Mission (Rule 33)
Rule 33 – LTTE fired at convoys carrying relief, including ships
LTTE violated Principle of Journalists (Rule 34)
Rule 34 – there were no journalists with LTTE unless they were part of LTTE, while the journalists with the armed forces were given fullest protection by the troops
LTTE violated Principle of Protected Zones (Rule 35-37)
LTTE violated these principles
LTTE violated Principle of Cultural Property (Rule 38-41)
This violation occurred across the 3 decades of conflict, where LTTE stands guilty of attempting to destroy Sinhala Buddhist cultural heritage to secure their argument for an exclusive Tamil Eelam.
Principle of Works & Installations Containing Dangerous Forces (Rule 42)
Avoiding installations containing dangerous dams, dykes, nuclear etc to be avoided to prevent loss of civilian life.
This would need to be further investigated.
LTTE violated Principle of Natural Environment (Rule 43-44-45)
LTTE destroyed natural environment not only during the final phase of the conflict but throughout its terror rule. Imagine constructing a swimming pool in the middle of the Vanni jungles!
Principle of Special Methods of Warfare – No Quarter Given (Rule 46)
Meaning no survivors is regarded a war crime. The rule may be applicable where LTTE shot dead Tamils attempting to flee them which was a violation of Article 3 of the Geneva Convention guaranteeing prohibition of murder.
LTTE violated Principle of Attacking persons recognized as hors de combat (Rule 47)
LTTE violated this rule by not only attacking Tamil civilians some who were injured but also attacking injured soldiers/unarmed soldiers.
Principle of Attacking persons parachuting from aircraft in distress (Rule 48)
There are enough of instances that LTTE have violated this fundamental principle
LTTE violated Principle of destruction & seizure of property (Rule 50)
Enough of instances prevail where LTTE has seized property belonging to adversary
LTTE violated Principle of access to humanitarian relief (Rule 52-53-54-55-56)
This is an area that UNHRC has purposely omitted from investigation as the essential relief sent to the Tamil civilians were not only inflated in numbers but were confiscated to be given only to LTTE combatants & their families. That Tamil civilians were in starvation was apparent from interviews given by them revealing the manner essentials were stolen by LTTE and not given to them.
LTTE thus stands guilty of attempting to starve the civilian population which was a violation of Rule 53 Customary IHL.
LTTE also broke Rule 54 of attacking & rendering useless objects indispensable to the survival of civilians
LTTE also broker Rule 55 as the humanitarian relief sent to civilians was denied to them
LTTE violated Rule 56 as civilians were denied freedom of movement to access the humanitarian relief sent to them.
LTTE violated Principle of International Humanitarian Law (Rule 57)
As is clear, LTTE violated all international humanitarian law –but the question is why were none of these taken up by the OISL or even UNHRC or those drafting resolutions against only the armed forces of Sri Lanka?
Principle of While Flag (Rule 58)
The military attaches of the UK and US embassies in their secret memos to their governments clearly have debunked the myths surrounding the white flag, another ruse unfairly used against Sri Lanka Armed Forces.
Principle of Improper use of Distinctive Geneva Emblems (Rule 59-60-61-62-63)
This would require to be further investigated
Principle of Concluding agreement to suspend combat with intent of surprise attack (Rule 64)
This would require to be further investigated
LTTE violated Principle of killing, injuring, capturing adversary for perfidy (Rule 65)
The best example of this was the killing of 600 policemen by LTTE, as they were asked to surrender and instead ended up being slaughtered one after the other. Enough of occasions, LTTE has violated this Rule.
Rule 66, 67, 68, 69 – cover Communication with the Enemy
Rule 70 – cover Principles on the use of weapons
Rule 72 – cover use of poison or poisoned weapons
Rule 73 – cover use of biological weapons
Rule 74 – cover use of chemical weapons
Rule 75 – cover use of riot-control agents
Rule 76 – cover use of herbicides as a method of warfare
Rule 77 – cover use of bullets which expand/flatten in the human body & is prohibited
Rule 78 – cover use of anti-personnel bullets which explode in human body & is prohibited
Rule 79 – cover use of weapons which are not detectable by x-ray in the human body
LTTE violated Principle of using booby-traps (Rule 80)
LTTE’s use of suicide human beings put civilian life in jeopardy when LTTE disguised as a civilian blew herself up at a civilian-refugee receiving centre killing scores of Tamil civilians and Army personnel
LTTE violated Principle of Landmines (Rule 81-82-83)
There are enough of examples of LTTE using landmines on civilians across 3 decades of terror.
The recently released video-footage of LTTE experimenting land mines using dogs was also shocking. This was the first time a terrorist organization was using animals for its terror experiments.
It must be noted that the Sri Lanka Armed Forces applied Rule 83 in ensuring the areas occupied by LTTE were free of landmines before settling people back to their homes. However the international community insisting that IDPs return home before such landmine checking makes any to wonder what the real intent was in their demand!
LTTE violated Principle of Incendiary Weapons (Rule 84-85)
LTTE took no care to protect civilians whom they herded to be used as human shields and hostages and even shot at them for trying to flee. These civilians were even used to engage in hostilities and many would have lost their lives as a result. However, LTTE must be faulted for violating of this Rule of IHL.
LTTE violated Principle of using blinding laser weapons (Rule 86)
this would need to be further investigated
LTTE violated Principle of Treating civilians & injured persons (Rule 87-88)
LTTE has violated this fundamental Rule as civilians were used in hostilities, given only basic training and injured combatants were put into buses and these were blown up. How many combatants LTTE killed in this manner is not known and UNHRC is obviously not interested to find out.
Children as young as 7 years were taken as child soldiers – how many such children met their sad death is also not known.
The elderly were also handed guns & ordered to shoot – how many such died engaging in hostilities is also unknown.
However, none of these deaths qualify as civilian deaths if they were engaged in hostilities.
LTTE violated Principle of Murder (Rule 89)
LTTE not only murdered fleeing Tamil civilians, LTTE also murdered injured LTTE combatants
LTTE violated Principle of Torture, Inhuman treatment (Rule 90)
The manner that children & elderly were forced to take up arms and fight has to be condemned as an act of torture and inhuman treatment and degradation. Why is the UNHRC and international community silent about this?
LTTE violated Principle of Corporal Punishment (Rule 91)
How many LTTE combatants, child soldiers did LTTE punish for not following orders and injuring them for life?
Why doesn’t the UNHRC investigate into this?
Principle of mutilation, medical/scientific experiments (Rule 92)
Principle of rape & sexual violence (Rule 93)
There are allegations that LTTE female combatants to sexual misadventure by LTTE male combatants and this has been hushed up without investigation.
LTTE violated Principle of Slavery (Rule 94-95)
LTTE forced combatants to dig the bund that was to protect LTTE from the Sri Lanka Armed Forces. Throughout LTTE rule, whether LTTE combatants were paid or were looked after is unknown.
It’s surprising that the OISL and UNHRC never raised this too.
LTTE violated Principle of Taking hostages /human shields(Rule 96-97)
This was a very clearly violated principle by LTTE having herded almost 300,000 people to be used as hostages and human shields and was the reason for collateral damage of civilian lives. Again why OISL, UNHRC or the international community ignore this important Geneva Convention violation is baffling.
LTTE violated Principle of Enforced Disappearances (Rule 98)
Both LTTE and the Sri Lanka Armed Forces are accused of this violation & require to be investigated with facts and evidence.
LTTE violated Principle of Arbitrary deprivation of liberty (Rule 99)
By denying Tamil civilians their right to seek shelter and safety, LTTE violated this principle. Again why UNHRC and IC are not bothered about these violations is also baffling.
Principle of fair trial (Rule 100-101)
The kangaroo court that the UNHRC is advocating, based on hearsay from LTTE remnants living overseas and parroted by NGO heads on payroll is being used to put a national army on trial without presenting facts & figures with evidence. The People of Sri Lanka stand up in unison against this blatant violation of Customary IHL.
Rule 101 declares that no one can be accused or convicted of a criminal offence or an act of omissionwhich did not constitute a criminal offence under national or international law – therefore, it is wrong for the UNHRC to judge the national army of Sri Lanka on hearsay only.
Rule 102 – declares that no one may be convicted of an offence except on basis of individual criminal responsibility– the allegation of 40,000 killed comes with no proof of names, dead bodies or even skeletons but the UNHRC wants an entire army to be declared war criminals
Rule 103 – declares collective punishment as prohibited
This is exactly what the kangaroo court of UNHRC via its resolutions is aiming at.
Rule 104 – convictions and religious practices of civilians and injured must be respected
LTTE violated Principle of respecting Family Life (Rule 105)
LTTE violated this by kidnapping even children – breaking up homes, denying fundamental rights to education for children, freedom of movement or even peace of mind to Tamils
LTTE violated Principle of Combatants & Prisoners of War (Rule 106-107-108)
Prisoner of War status is only applicable to International Armed Conflicts not NIAC
Rule 106 requires combatants to distinguish themselves from civilians – LTTE violated this fundamental rule. LTTE fought in civilian clothing and LTTE had a civilian trained unit. None of these fighters can claim to be a civilian if shot at.
LTTE violated Principle of wounded, sick, shipwrecked (Rule 109-110-111)
LTTE attacked ships carrying essential items for civilians. LTTE sent its sea tigers to attack such vessels carrying relief. LTTE even sent a suicide bomber to a relief centre accepting IDPs many of whom were elderly and injured.
LTTE violated Principle of evacuating dead (Rule 112-113-114-115-116)
LTTE attempted to destroy evidence of its combatants by blowing them up while living
Enough of LTTE video footage show how inhumanely LTTE treated dead Sri Lanka Army soldiers.
LTTE violated Principle of Missing Persons (Rule 117)
LTTE and LTTE fronts are claiming 40,000 dead/missing but is unable to provide even the names of the supposed dead, or even family members of the supposed dead.
LTTE violated Principle of Depriving Liberty (Rule 118-119-120-121-122-123)
LTTE denied Tamil civilians food, water, clothing, shelter and medical attention. It is mind boggling that the OISL and UNHRC ignore this fact revealed even by the IDPs.
LTTE also denied women their right to liberty by forcefully turning them into fighters
LTTE denied children their right to liberty by turning them into child soldiers and even training them to commit suicide by biting cyanide capsule.
Rule 121 requires Tamil civilians to have been kept separate from the combat zone – LTTE actually herded them as hostages and human shields and denied them basic health & hygiene.
Rule 122 required LTTE to refrain from pillage of personal belongings – LTTE stole house, property and lands of Tamils including writing their deeds in LTTE names. These need proper investigation.
LTTE violated Principle of Non-International Armed Conflict (Rule 124)
ICRC was in the conflict zone throughout and ICRC communiques reveal in detail their role.
But, on many occasions ICRC was not allowed by LTTE to inspect
Rule 125 – persons deprived of liberty allowed to correspond with families – LTTE did not allow such
Rule 126 – An allegation against the Sri Lanka Armed Forces is that civilian IDPs were held in internment camps and not allowed out and did not have access to relations. This was not true and can be proven with facts. The initial stages no one was allowed out until screening process was complete as well as the clearance of land mines etc.
Rule 127– Personal convictions/religious practices respected – the IDP centres all catered for this
Rule 128– No sooner that it was safe for the IDPs to return to their homes, they were released. Within months of the conflict ending, IDPs were able to return to their homes or to relations. World IDPs that run into millions are still to return home!
Rule 129– In a NIAC, the GoSL had every right to put up IDPs in centres to protect them from the conflict until such time alternatives were prepared for their return. The security and safety of the civilians were taking into account
Rule 130– applies to only IAC
Rule 131– The GoSL took every measure to provide the basic facilities to the IDPs and these were inspected by the ICRC and the UN officials arriving. All of them praised the efforts in Sri Lanka but returning to Geneva years later, they tell a different story. Wonder why?
Rule 132– Displaced have a right to voluntary return to homes – this was allowed once land mining was cleared
Rule 133– Property rights of displaced. It is important to note here that simply claiming entitlement to a land area without proof and carrying out media campaigns is not the best way to claim land. But this is the path being opted unfairly.
LTTE violated Principle of Special protection for needs of women (Rule 134)
LTTE used women even grandmothers when fighters were in want. Where’s UNHRC about women’s rights?
LTTE violated Principle of Children entitled to special respect & protection (Rule 135-136-137)
LTTE violated this principle by having an entire unit of child soldiers trained to kill. Where was UNHRC?
LTTE broke Rule 136 in recruiting children – what did UNHRC do about this?
LTTE broke Rule 137 in putting children to engage in hostilities – what did the UN do about this? 1/3 of LTTE comprised child soldiers
LTTE violated Principle of elderly / disabled and infirm given protection (Rule 138)
LTTE violated this Rule by putting the elderly in harms way, not feeding the elderly, not allowing the elderly to leave, and even engaging elderly in armed hostilities.
LTTE violated Principle of Compliance with IHL (Rule 139-140-141-142-143)
LTTE may be a terrorist organization. LTTE may not sign conventions or treaties. But LTTE was bound to comply with international humanitarian laws. LTTE flouted all of these Rules.
It is questionable why Sri Lanka’s legal advisors did not take the violations of IHL and the requirement to be judged by violations of IHL to argue one’s case against the bogus charges being cooked up by NGO’s lobbied by LTTE fronts.
Rule 143 requires teaching of IHL to civilians and this must be included as a special subject in Sri Lanka.
Rule 144 – requires States must not encourage violations of IHL
Rule 145 -146-147 – applicable to IAC
Rule 148 – Parties in a Non-International Armed Conflict cannot resort to belligerent reprisals.
Rule 149 – A State is responsible for violations of IHL whether state or non-state. If a State is responsible, then the State is permitted to take action to ensure IHL is not violated. In so doing, Sri Lanka cannot be found fault with.
Rule 150 – State is responsible for violations of IHL to make full reparations for loss or injury
Rule 151 – Individuals are criminally responsible for war crimes they commit. Therefore the question is why have LTTE combatants not been charged?
Rule 152 – Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.This has to be proved with facts & evidence, not on hearsay by LTTE runaways and their NGO heads!
Rule 153 – Commanders & superiors are criminally responsible for war crimes committed by subordinates if they knew, or had reason to know that these were to be committed and no action was taken to prevent such.
Rule 154 – Combatants can disobey a manifestly unlawful order
Rule 155 – Obeying superior order does not relieve subordinate of criminal responsibility if subordinate knew act ordered was unlawful.
Rule 156 – Serious violations of IHL constitute war crimes
Rule 157 – States have right to vest universal jurisdiction in national courts over war crimes
Rule 158 – States must investigate war crimes committed by nationals or armed forces on their territory and prosecute suspects – evidence must prevail
Rule 159 – at end of hostilities authorities must grant broadest possible amnesty in a NIAC – the GoSL gave a presidential pardon to 594 child soldiers of LTTE treating them as victims.
Rule 160 – Statutes of limitation may not apply to war crimes
Rule 161 – States must make every effort to facilitate investigation of war crimes and prosecution of suspects. The problem we have is that we do not wish to have UNHRC create kangaroo courts where the national army are given retributive justice while LTTE terrorists are given restorative justice.
Why does Sri Lanka not demand the UNHRC to present with facts& evidence Sri Lanka’s violations of IHL during the final phase of the conflict instead of meekly accepting the cooked up human rights allegations most of which do not even cover the conflict but are seeking war crimes charges quoting the final phase of the conflict.
Shenali D Waduge