The Numbers Game

Politics of Retributive Justice :

This study will be largely semi-empirical, and will focus on analysing numerical data gathered from the following sources. - Eyewitness Testimony – Culled from a large body of interviews conducted by the UTHR (J) team in 2009 with persons from the conflict zone. The UTHR(J) was one of the few organisations to interview people in Sri Lanka, and at same time cover a broad spectrum of views. They also provide valuable historical data through their informants in the Vanni about the state of affairs in the region from 2006 to 2009.

Civilians who escaped from the clutches of the LTTE coming to safer areas

- Satellite and associated imagery – Images from the conflict zone covering a period from 2007 to 2009.

- Wikileaks – Reveals information related to the conflict from sources/contacts maintained by the US Embassy within Sri Lanka and other postings outside the island.

- Documentary Information – Covers information gleaned from various reports/articles/statistics that have came out during and after the conflict.

- Media Groups – Information about the conflict from media coverage during and after.

- Information from Human Rights groups and related organisations – Covers reports/analyses/eye-witness testimony – these sources are usually independent to the ones used by the UTHR(J).

- UN – Data from various UN departments in and outside Sri Lanka.

Because the current debate concerning civilian fatalities relates to incidents that occurred during the last 5 months of the war, the following analysis will only the consider events and actions of the warring parties (Sri Lankan State and LTTE) leading up to and including May 2009, when the ground war against the LTTE was officially declared as being over.

Legal definitions

For there to be any meaningful discussion about civilian casualties as a result of the fighting in 2009, it is important to first review certain principles and definitions within international law that are relevant to the subject. These laws have a direct bearing on issues related to accountability in the context of the ensuing debate.

The primary focus in this part will be to look at how some of these ‘rules’ have been applied by critics of the Sri Lankan government, to incidents where its Armed Force have been accused of unlawfully killing large number of civilians.

The UN Panel of Experts (herein will be referred to as Panel) in their first report on Sri Lanka concluded that given the nature and intensity of the fighting in 2009, the four Geneva Conventions and specifically International Humanitarian Law (Law of Armed Conflict) served as the best means of judging the conduct of the warring parties in the conflict. The report, under the heading: “Legal Evaluation of Allegations”, stated:

179. The Panel’s mandate requires it to consider alleged violations of both international humanitarian law and international human rights law. The Panel proceeds from the basic and long-settled premise of international law that during an armed conflict such as that in Sri Lanka, both international humanitarian law and international human rights law are applicable.

181. International humanitarian law applies because the hostilities clearly met the threshold for an internal armed conflict, i.e. one involving protracted armed violence between the Government and organized armed groups. According to the International Criminal Tribunal for the former Yugoslavia (ICTY), an armed conflict exists “whenever there is a resort to armed force between States or protracted armed violence between government authorities and organized armed groups or between such groups within the State.” There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct in the conflict of both the Government and the LTTE.

It should be recognised that both prior to and during the conflict in 2009, the LTTE routinely flouted the Law of Armed Conflict in many of its battlefield, strategies and combat operations. Particularly relevant to the current discussion are two specific aspects of international law that need to be clarified and explored in greater detail, due to their obvious links to issues relating to civilian fatalities:

a. The definition of a ‘civilian’ in the context of the conflict in 2009; given how the LTTE regularly recruited civilians by force or coercion, imparting military training, to form civilian militias and auxiliary groups.

b. The deliberate use of civilians by the LTTE as well as protected UN, educational, medical, administrative (government) and religious facilities, as a cover for its operations.

In adopting such methods of warfare, the LTTE made it impossible for the Sri Lankan military to avoid collateral damage to civilians and civilian objects whilst pursuing legitimate military objectives during its operations in the Vanni theatre in 2008/2009. The tactics and modus operandi of the LTTE were deliberately tailored to violate the most fundamental legal and moral norms of human behaviour during a war.

While LTTE violations of the Law of Armed Conflict cited in this discussion paper are far from exhaustive, they illustrate the extraordinary challenges that the tactics of the LTTE posed for the Sri Lankan military – especially the Sri Lankan Army – who as many western observers have noted, appear to have exercised some care during significant periods of fighting in 2008/2009 in trying to respect its obligations under international law.

The former US Ambassador to Sri Lanka, Robert Blake, noted in a confidential US Embassy cable (Wikileak 09COLOMBO86) to Washington on January 26, 2009 that;

(the) Army has a generally good track record of taking care to minimize civilian casualties during its advances....

On July 9, 2009 the then US Ambassador-at-Large for War Crimes Issues – Ambassador John Clint Williamson - whilst collecting information in relation to a US Congressional reporting requirement, met and discussed the recent fighting in Sri Lanka with several INGO heads in Geneva, Switzerland. One of these heads was Jacques de Maio, the ICRC’s Head of Operations for South Asia. Whilst discussing potential violations of International Humanitarian Law, Jacques de Maio noted (as revealed in Wikileak 09GENEVA584):9

For example, he (Jacques de Maio) said that the Sri Lankan military was somewhat responsive to accusations of violations of International Humanitarian Law (IHL) and was open to adapting its actions to reduce casualties. He could cite examples of where the Army had stopped shelling when ICRC informed them it was killing civilians. In fact, the Army actually could have won the military battle faster with higher civilian casualties, yet chose a slower approach which led to a greater number of Sri Lankan military deaths.

To be continued