http://www.sundayobserver.lk/2012/10/14/fea03.asp

 

Use of human shields:

LTTE violated int’l humanitarian laws

by Shenali WADUGE

How far international laws of war and related punishment apply to terrorist organisations is something that needs far more attention than is presently given. No law will have face value when those not-signatory, non-binding and those that purely exist on their ability to inflict fear and terror does not fall into the radar of international justice and legal punishment.

Scores of civilians were used by the LTTE as human shields.

Many were forcibly recruited and given military training.

An LTTE cadre wearing a cyanide capsule around her neck

In this context, we examine how the LTTE had managed to escape three decades of international justice for its serial crimes against humanity and war crimes on a nation and possibly would have extended to other nations if it had not been militarily defeated.

No legal pundit, no UN luminary, no foreign leader and no citizen of the world can deny that they were unaware of the LTTE’s use of human shields, LTTE’s killing of civilians, LTTE’s use of military equipment among civilians, LTTE’s forcible recruitment and forced labour, LTTE’s killing of civilians through suicide attacks and the crime involved in demanding that its recruits (forced or otherwise) commit suicide by taking cyanide.

Supporters of the LTTE have hidden the criminality involved in demanding a person take his/her life through an euphoric fantasy called Eelam, sensationalising the most horrid of crimes that should have been condemned worldwide and a unanimous decision taken to end safeguarding terrorist groups to advance political agendas.

This has led a lot of ‘innocent’ people to think that the quest for Eelam is the primary goal of all foreign forces that speak on behalf of the LTTE over the years. Forgive the naïve for what they say….

The discussion in question revolves around the use of human shields by the LTTE and Sri Lanka’s conflict being categorised as a non-international armed conflict, the LTTE meets the prerequisites that classify it as a non-international armed group since it carried out ‘protracted hostilities’ and it was ‘organised’ and within the confines of a single country and ‘possessed’ a portion of the national territory (though control of a portion of territory by this non-State armed group is not required to have Common Article 3 applied to it).

As such laws relevant are Common Article 3 to the 1949 Geneva Convention and the 1977 Additional Protocol II.

Dissident armed force

The LTTE filled every criteria of Protocol II – it was involved in a confrontation with the Sri Lanka Armed Forces, and as a ‘dissident’ armed force, it was under a ‘command’ – Velupillai Prabhakaran. They controlled part of Sri Lanka’s territory illegally, enabling them to ‘carry out sustained and concerted military operations’.

The fact that the LTTE was using Tamil Nadu as its logistics hub and gateway adds a ‘transnational’ element since the LTTE was operating from across an international border though the country in question, India, did not ‘openly’ acknowledge so – making Sri Lanka’s armed conflict remain non-international.

If LTTE quotes international humanitarian laws through its mouthpieces functioning abroad, it is obliged to take accountability for its atrocities under those very same laws. Thus, the LTTE is obliged to protect non-combatants from collateral damage and be punished for not doing so. This raises the question of why the LTTE would choose to hide among civilians, to make themselves immune from attack. It goes against all laws of war written or unwritten and the LTTE cannot justify why it took shelter among civilians and is a severe violation committed by the LTTE.

It is evident that while total emphasis has been put on the obligations of the attackers (Sri Lanka Military), little or no attention has been paid towards the obligations of the defenders (LTTE) for forcibly taking a large population of Tamil civilians into an area demarcated by Sri Lanka’s Government as the No Fire Zone and commingling among the civilians to make themselves immune from attack.

What needs to be remembered at all times is that it is the defending forces (LTTE) that created the conditions to bundle civilians (as hostages or human shields) into an atmosphere where they would be shielded from attack by using civilian installations such as schools, places of religious worship and hospitals.

In both international and non-international armed conflicts, the use of human shields is prohibited and the rules are set in the Third and Fourth Geneva Conventions as well as the Additional Protocol I. Additionally, the International Criminal Court declares that “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” constitutes a war crime.

The LTTE has tried in vain to give an excuse that the civilians for volunteer human shields (VHS), but VHS are completely out of the scope in international humanitarian law (IHL). To avoid similar situations, the IHL should clearly cover VHS through legal regulations and define and prohibit such usage.

Let us look at some of the laws in place:

Civilians massacred by the LTTE.

An LTTE suicide bombing in Colombo

*Article 5 of IHL - “Civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances”

(protection of civilian population).

*Article 23 (Geneva Convention Three) - Specifically states that a prisoner of war is not to be used “to render certain points or areas immune from military operation”.

*Article 28 declares illegal the practice of employing human shields under IHL (Geneva Convention IV). “The presence of a protected person may not be used to render certain points or areas immune from military operation”.

*Additional Protocol 1 to the Geneva Convention – Article 51(7) says “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations”. This clearly applies to passive and active human shields whether they are voluntary human shields or not.

The LTTE has clearly violated the laws in place by taking scores of Tamil civilians along with them into a safe zone declared exclusively for the civilians by Sri Lanka’s military. These Tamil civilians did not join the LTTE out of choice, they joined because they had little choice since those that refused to faced torture and even death at the hands of the LTTE.

Civilian population

So, what the LTTE has violated is the clearly stated declaration that “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations.

“The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”

War crimes using human shields was first featured during the war crimes trials by UK military courts at Luneberg in 1946, the US military tribunal in Nuremberg in 1948 and the Karadzic and Mladic case in 1995 at the International Criminal Tribunal for the former Yugoslavia.

We would like to know, when the UN has clearly documented reports of LTTE atrocities, and when all international superpowers have banned the LTTE, what has stopped war crimes charges against this terrorist movement and is stopping it even now since there are plenty of “transnational” LTTE front organisations fighting to lead the next phase of LTTE terror?

The LTTE is an internationally banned terrorist group and it had challenged a legitimate government through three decades of terror. In international armed conflicts, the actors enjoy partial international legality, but Sri Lanka’s situation was a non-international armed conflict with the “other actor” nothing more than an internationally defined, accepted and banned terrorist movement involved in an international network of illegal activities, generating enough funds to keep decision-makers silent.

Yet, the LTTE has no legal international status though foreign parliamentarians may speak atop its fund-raising stages and ridicule a legitimate government in a sovereign nation simply because these ridicules have generated votes and catapulted them into political somebodies.

If the LTTE is declared illegal and banned, its every action must be regarded as illegal too. We would like to know why it is not so, from those who continue to whitewash the LTTE.

That Tamil civilians were attempting to escape the LTTE clearly shows that the accusations of genocide and mass killings by the Sri Lankan Armed Forces are simply a smokescreen and nothing short of ridiculing an achievement no military has been able to do. The Tamil Diaspora, certain sections of foreign parliamentarians, UN officers and the like at the mercy of Tamil votes and funds may say otherwise, but the reality is that no government would declare No Fire Zones (NFZ) if its intent was to kill civilians.

LTTE violations

The Government declared a NFZ on January 21, 2009 and February 12, 2009, going so far as to use loudspeakers and drop leaflets to direct civilians to move to these areas for shelter. These are all proof to depict how the LTTE blatantly violated these zones and moved heavy artillery, mortars and other equipment into the civilian safe zone to mingle with civilians and use them as human shields or hostages.

There is also proof that children as well as elders were forcibly conscripted. Is it not because the UN was aware of these violations of civilian rights that it issued a statement on January 16, 2009, imploring the LTTE to allow civilians to move into government-controlled areas without keeping them as “human shields”?

Let us also not forget that the LTTE held captive UN aid workers (two expatriates and 13 local staff) and released them on January 30 only after international pressure.

Would those pointing fingers care to explain why Tamil civilians would attempt to escape their “saviour” and “sole representative”, the LTTE, even braving LTTE’s indiscriminate firing to enter government-controlled areas? These are all very clearly documented and hold greater weight than those throwing stones or singing from abroad.

Their inflated egos are such that they cared little for their own people over their pompousness to keep alive a terrorist movement that served their self-interests, sacrificing the poor and low caste Tamils who had been used as cannon-fodder for three decades….Is this the Eelam that these civilians were to continue living in?

If the No Fire Zone or civilian safety zone was meant for civilians – what were LTTE terrorists including its leader doing inside this zone, when as an armed terror group, it should have been facing the military instead of using Tamil civilians and hiding among them? This is a clear violation of international laws and war ethics, especially when the LTTE was using the very civilians who have been used as a slogan for international propaganda purposes to warrant acceptance internationally and to allow it to camouflage its terrorism.

If the Sri Lankan Military had been indiscriminately firing at the no fire zones since January 21, 2009, how did 11,000 LTTE combatants live to surrender themselves to the military and why would the elimination of the LTTE have taken till May 19, 2009 to complete? Why would 5,000 or more soldiers sacrifice their lives when going by the genocide and mass killing argument that the Sri Lankan Military could have blown the entire area to smithereens? If the LTTE was firing from within the civilian safe zone and the Army retaliated with fire, who is primarily at fault? Returning fire is a perfectly legitimate action.

Moreover, let us not forget that the LTTE members were not always in uniform and functioned, disguised as civilians. It was one of these civilian-imposters that blew herself up at a makeshift civilian reception centre killing scores of Tamil civilians as well as a number of female soldiers who had been attending to the food and medical needs of the civilians who had escaped the LTTE. What type of cowardice was this?

Food and medicine

Moreover, the Government of Sri Lanka was not required to supply food or medicines to areas controlled by the LTTE. Nevertheless, despite threats to life, Government Agents supplied food and medicine throughout to areas of the North including during the final stages of the battle.

Let it also not be forgotten that civilian estimates were purposely inflated to use these food and medicines as buffer stock for the LTTE and their families while non-LTTE families were left to drink water – if they were lucky!

It must be noted that the Sri Lankan Military followed all principles in all targets – the commander evaluated the mission, time available, military advantage, intelligence at hand, assets available to target, political ramifications of striking target as well as the collateral damage. Moreover, the Army had been given orders to adhere to a “zero civilian casualty” policy.

Article 33 is perfect to describe Sri Lanka’s situation – it was only after suffering three decades of terror, countless local and internationally mediated ceasefires, negotiations, draft resolutions which the LTTE refused and an unabated killing spree did the Sri Lankan Government decide that force had to be used – that force resulted in a humanitarian military solution that ended Sri Lanka’s 30-year conflict in just three years. This included several appeals made in early 2009 by Sri Lanka’s President to the LTTE to lay down their arms and surrender to Sri Lanka’s Military.

Three years after, Sri Lanka is still trying to put the story straight, not because stakeholders to the conflict in Sri Lanka are not aware of the truth, it is because they need to continue the façade that gave them livelihood, while for others it continues to believe that terrorism can deliver political goals.

Where international organisations have failed nation-states is by misusing their office, manipulating international laws in place and using every cunning to throttle a nation while totally ignoring that its priority should be to noose illegal actors such as LTTE terrorists and their associated entities and individuals. We look forward to the day sanity prevails and hypocrisies end.