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Armed Conflict & Humanitarian Law

The Rajapakse Era

by International Law Project, International Educational Development, September 21, 2006

Paper presented in Geneva on the occasion of the UN Human Rights Council meetings

BRIEFING PAPER
ON
THE ARMED CONFLICT IN SRI LANKA
IN LIGHT OF
HUMANITARIAN LAW AND HUMAN RIGHTS:

The Rajapakse Era

Introduction

1.         At present time the armed conflict in Sri Lanka between the government military forces and the military forces of the Tamil people, the Liberation Tigers of Tamil Eelam (LTTE), has re-entered a phase of heated military operations after a cease fire of about 4 ½ years duration. The initial LTTE cessation of hostilities was formalized in a Cease Fire Agreement (CFA) signed by both parties to the conflict in early 2002. This paper focuses on the situation in Sri Lanka since the election, in October 2005, of Mahinda Rajapakse as President. Almost from the beginning of this election victory, the CFA has been repeatedly violated by Sri Lanka forces in a manner that has led to the renewed military operations. [1]

Overview of the Rajapakse era

2.         As a result of renewed military operations, the Tamil civilian population, as well as the Tamil-speaking Muslim population in certain areas, have sought refuge in ever increasing numbers. Conservative estimates place the number of internally displaced at about 700,000, of which 500,000 were already displaced as a result of prior phases in the armed conflict and the catastrophic Tsunami that occurred on 26 December 2004. Since military operations conducted by the Sri Lanka military forces greatly intensified in June 2006: as of the end of August 2006 there are 200,000 newly displaced. Those displaced represent more than ½ of the Tamil population remaining in Sri Lanka. [An estimate of 1.4 m for the total Tamil population is incorrect, although it is true a high proportion of the population has been displaced, many multiple times. -- Editor]

3.            Between the time of the election of Mr. Rajapakse in October 2005 to the end of August 2006, more than 750 Tamil civilians have been killed and 480 have disappeared. Thousands have been wounded. The government forces have carried out military operations targeting churches, schools, hospitals, ambulances, areas where Tamils civilians have sought refuge, numerous Tamil civilian populations centers, civilian markets and other civilian targets. Military operations are increasingly carried out with deliberate and indiscriminate aerial bombardments.

4.            Massacres of Tamil civilians have occurred many times since the elections, including but not limited to, the massacres of 23 December 2005 at Pesalai, 2 January 2006 at Trincomalee, 12 April at Trincomalee, 18 April at Jaffna, 25 April at Mutur and Sampoor, 4 May at Neliyadi, 7 May at Manthuvil, 13 May at Allaipiddy, 8 June at Vankalai, 6 August at Mutur, 13 August at Allaipiddy and 14 August at Mullitivu. We especially draw attention to several that we presented at the 58th session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights: the assassination of 17 humanitarian aid workers of Action Contre le Faim on 6 August in Mutur and the assault on St. Philip Neri Church in Allaipiddy on 14 August that left 15 dead and more than 100 injured. At the Sub-Commission, we also raised the events at a school/orphanage that was bombed by the Sri Lanka forces on 12 August in which many young girls were killed and injured. At time of writing (September 2006) we have learned of a massacre of 10 Muslims in Pottuvil (Amparai district) near a Sri Lankan military training camp and in an area where Sinhala and Muslims have clashed over water issues. The leader of the Sri Lankan Muslim Congress condemned that attack as Muslims began strikes and demonstrations against the Sri Lankan forces, demanding that they leave the area. On 20 September 2006 the Sri Lankan forces opened fire on Muslim demonstrators, wounding 14 of them. 

5.         During this same time period there have been deliberate attacks against other humanitarian aid workers besides those of Action Contre le Faim: persons working with the Tamil Rehabilitation Organization (TRO), the local Red Cross in Vavuniya, and US - based World Concern have been attacked, kidnapped or killed.

Massive violations of humanitarian law

6.         The above-mentioned operations indicate clear violations of humanitarian law that under Article 147 of Geneva Convention IV of 1949 are identified as grave breaches: willful killing of the civilian population, torture, attacks on protected facilities and personnel and wanton destruction of property with no defence of military necessity are a few of these grave breaches. Grave breaches of the Geneva Conventions are, under international law, war crimes. The scale and scope of these deliberate war crimes is similar to those carried out throughout the course of this long-lived armed conflict in Sri Lanka, but have taken place when there is a ceasefire agreement in place. As in the previous periods of the conflict, the international community has not spoken out very forcefully on the widespread war crimes in spite of their obligations to do so under the Geneva Conventions of 1949 Common Article 1, which provides: “[t]he High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances.” (Emphasis added). The current situation in Sri Lanka is certainly one of “all” circumstances. Many actions also clearly violate the rules of The Hague Convention and Regulations of 1907, also identified as war crimes under international law.

7.         As in the other periods of active military operations, the military operations are taking place exclusively in the Tamil areas. Accordingly, there are relatively few Sinhala victims of military operations. The LTTE, of course, carry out military operations directed at the Sri Lankan forces who are in the Tamil areas, so the Sinhala casualties are almost completely limited to its own armed forces, and as such, do not represent a violation: in an armed conflict, the parties may carry out military operations against the enemy forces. There are few Sinhala civilians caught in the crossfire of operations as the conflict is not taking place in their areas. In similar fashion, Sinhala civilians have not been targeted by the LTTE in their military operations, if only because there are few population centres of Sinhala people in the current field of battle.  [2] Also obvious is the fact that the LTTE is not seeking to encroach into the Sinhala areas in the south at this time, but seeks to defend itself and the Tamils in the traditional Tamil areas. In this sense, in the Tamil areas, the Sri Lankan forces are seen as a Sinhala occupation force. [3]

8.         The level of the armed conflict has created a humanitarian nightmare, not only because of the massive numbers of displaced civilians but also because to the serious restrictions on the movement of food, water and basic provisions to all affected by the war – which in itself may result in serious war crimes chargeable to the government of Sri Lanka.. There has been a severe embargo imposed by the Sinhala authorities to outside humanitarian aid for many years, in terms of who may deliver it, who may pay for it and how it can reach those who need it. Other countries, notably the United States, is restricting funds as well, as, for example, when the US authorities informed the American Red Cross that it could not deliver post-Tsunami aid to the Tamil areas. We can assume that the American Red Cross is presently told, or assumes, it cannot deliver funds for war victims in the Tamil area either. This, of course, violates a fundamental concept of humanitarian law: humanitarian aid may not be criminalized, but is always viewed as impartial, even if delivered to the enemy. Recently the Sinhala authorities ordered the bank accounts of the TRO to be frozen. As the TRO is one of the few organizations allowed to work on Tamil relief, obviously aid to Tamil war victims is severely impaired as is the ability of the TRO to function. [4] Most of the other organizations working in the Tamil areas, including UN agencies as well as NGOs, are either cutting back on their work or leaving certain areas due to attacks such as occurred against ACF workers and others, and the deliberate bombardments of civilian areas where they are based. These actions evince a severe attack against the fundamental principles of humanitarian law, and, if unchallenged, will be one further nail in the coffin of humanitarian law norms in Sri Lanka and beyond. We hope the international community as a whole is aware of this and appropriately responds.

Fraudulent use of "terrorism label to avoid humanitarian law consequences

9.         The situation is further compounded by serious efforts undertaken by the Sri Lanka authorities to seek to avoid application of humanitarian law at all but rather to have the international community view the armed conflict as a terrorism/counter-terrorism conflict. [5] In this regard, the United States has been very forward, putting a great deal of pressure on other states, notably the UK, Canada and the EU, to join it in listing the LTTE as a terrorist group. In fact, Sri Lanka’s whole interest in the terrorism issue at the UN appears heavily motivated by this agenda, rather than by any serious commitment to addressing actual terrorism and terrorist groups. [6] Since October 2005, the Rajapakse administration has utilized every single forum or issue, regardless of how unrelated, to hammer over and over on the “terrorism” issue, when the situation is clearly an armed conflict governed by humanitarian law. [7] In the same light, both the Sri Lankan authorities and the US have far overstepped the law and facts in a relentless campaign against the LTTE on the “child soldier” issue, in spite of evidence showing only a relatively small number of child soldiers who may currently be regarded as LTTE combatants, or that, until the Rajapakse government’s increase in military operations, there had been no military operations for 4 1/2 years. This campaign also omits mention that under the Geneva Conventions the minimum age for soldiers is 15, and the Optional Protocol is not yet customary international law. Further, there are no allegations of underage combatants who have actually died in the course of the recent escalation of hostilities.

10.       A salient feature of this unrelenting international campaign against the LTTE on the child solder issue is that there is clearly a total absence of concern for the thousands of Tamil children killed or injured by Sri Lankan government military forces, those displaced by first the Tsunami and then the renewed fighting, those made orphans by previous military operations and the Tsunami, and those who are now at risk of starvation due to government blockades of humanitarian assistance.  This controversy may also seek to avoid review of the devastating situation of Sinhala children involved in the sex/tourism industry, sexual slavery schemes and child labor taking place in the Sinhala areas of Sri Lanka -- the numbers of which far exceed any figures for LTTE child soldiers. [8] We maintain that efforts to demonize the LTTE over the child soldier issue has already and will continue to have a seriously detrimental effect on help for thousands of Tamil child victims of armed conflict and may leave equally large numbers of Sinhala children with no help in their plight.  

11.       As part of this “terrorism” campaign, the Sri Lanka authorities, assisted by those with an interest in the Tamil areas, have sought to demonize the Tamil people and their political and military leadership in a way that borders on - if not crosses into - racism. It is truly ironic that some of the States that have acquiesced to this political demonizing are also States that have either had internal armed conflicts themselves or have become involved in internal armed conflicts in other States -- sometimes on the government side and sometimes on the opposition side. That said, there is no rule in international law that forbids either civil wars or wars of national liberation in the exercise of self-determination. These struggles are not terrorism. While we are convinced that the history of the island supports a self-determination claim by the Tamil people, there is, at a minimum, an armed conflict governed by humanitarian law civil war rules occuring. This law has paramount authority.

Human rights violations related to the armed conflict

12.       Human rights violations committed against Tamils are for the most part related to the armed conflict and hence are also governed by humanitarian law. Thus torture committed against a Tamil while detained for purposes related to the war is automatically also a war crime. In similar fashion, withholding adequate food or medicine to Tamil civilians is both a violation of human rights and a violation of humanitarian law and should be analyzed accordingly. This double legal status should be reflected in all reports about the situation of the human rights of Tamils in Sri Lanka.

13.       It is also necessary take into account Article 4 of the International Covenant on Civil and Political Rights in evaluation of human rights violations in the context of armed conflict: Article 4 allows for abrogation of certain human rights during wars while indicating which rights may never be subject to limitations or abrogation. Thus, for example, some Tamil civilians may be detained for reasons relating to the armed conflict. However, such persons must be held in conditions that meet Geneva Convention rules for war-time civilian detainees, and may never be tortured. 

Impunity for war crimes and other violations

14.       As with the other instances of massive war crimes being committed by the Sri Lanka military forces, these appear to take place with impunity and with little international condemnation. As in the situations in Rwanda and the former Yugoslavia, the International Committee of the Red Cross has not spoken up very forcefully. States seeking to keep the focus on the application of humanitarian law and the possibility of a peaceful settlement to the conflict have their appeals drowned out by the anti-Tamil furor of other States, as well as by some of the viciously anti-Tamil political parties in Sri Lanka. While we appreciate efforts to bring the two parties to the conflict to the negotiating table, we think that at least the international community as a whole should use the occurrence of violations of humanitarian law to reinforce these efforts. We think that the statement issued by the Co-Chairs of the Tokyo Donor Conference issued on 12 September 2006 is somewhat weak in this regard, but does mention the “culture of impunity” in Sri Lanka.

Human rights violations not related to the armed conflict

15.       While this paper is primarily about the situation of the armed conflict, there are human rights violations in Sri Lanka not related to the armed conflict that are of continued concern. Most of these violations occur in the south and are directed at mainly Sinhala people. In this light, we have spoken out about the situation of Sinhala children who are taken into the sex tourism business that is again rampant in the southern tourist areas after being somewhat in abeyance after the Tsunami. Most conservative estimates indicate at least 30,000 Sinhala children are abused in this fashion. There is also compelling evidence of rampant child pornography involving primarily Sinhala children.

16.       There are also many Sinhala women who have taken posts outside the country as housemaids, nannies and the like, many of whom have been severely exploited or are in actual slave-like conditions. Unfortunately, the Sri Lankan government has a cavalier attitude towards its citizens caught in tragic situations abroad, and, for example, did not even rescue its citizens who were trapped in Lebanon during the war there. 

17.            IED/HLP also is concerned about the conditions of detention and the widespread use of torture in nearly all Sri Lankan jails. Concern for torture was raised by Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions in his 2006 report issued following his on-site visit to Sri Lanka, [9] and the reports of the several special rapporteurs on torture throughout that mandate reflect this. 

18.       The “culture of impunity” mentioned in the Statement of the Co-Chairs also applies to the impunity regarding the 25,000 plus Sinhala civilians brutally killed in the course of operations in 1992 against the JVP party during the Premadasa administration.  There were thousands of Sinhala who disappeared in that same era whose whereabouts have yet to be determined. We raised these points in statements and meetings held under our auspices at UN human rights sessions in that era, acknowledged by Mr. Rajapakse who himself attended several sessions. Mr. Rajapakse’s administration does not appear willing to take on full investigation or remedies for the survivors of the many victims.

19.            Improvement in the human rights situation in Sri Lanka will be severely hampered because of a recent ruling of the Sri Lanka Supreme Court in which the Court denies judicial application of international human rights treaties in Sri Lanka. This ruling, along with a decision by the authorities to deny application of Common Article 3 of Geneva Conventions of 1949, attempts to prevent any national remedies for serious human rights violations or war crimes. Sri Lanka’s attempt to remove itself from any obligations under Common Article 3, however, is a token gesture at best, as Common Article 3 is considered an expression of not only binding customary law but also jus cogens. Accordingly, the government cannot remove itself from liability under Common Article 3. A number of decisions of the International Court of Justice (Nicaragua and Corfu Channel to name a few) reinforce this or provide for application of fundamental principles of humanity. [10]

Conclusions and recommendations

20.       The international community should insist that there be immediate relief in favour of all displaced persons and that both parties to the conflict ensure full and free passage to all relief consignments of all groups. The international community should insist that all funds raised for this purpose, regardless of the origin of the funds or the recipients of relief, be free and available for relief work. The international community should insist on full and impartial investigation into all events discussed in this paper as well as all others that indicate violations of humanitarian law and human rights. The international community should insist that there be no impunity for violators.

21.            IED/HLP has been very concerned at the actions of the Rajapakse government from the moment it assumed power in Sri Lanka. The administration almost immediately after taking power took the already extreme demonizing of the Tamil people and their political and military defenders to new levels: it continues even now to further escalate this in spite of the application of humanitarian law to the conflict. It is time for the Sri Lanka government to cease this over-zealous demonizing both at home and abroad if it is serious about bringing about a peaceful resolution to this long conflict. We cannot imagine any combat force being willing to discuss a political solution under such a vitriolic and internationalized campaign. The government’s lip service to negotiations and dialogue at the conclusion of many a long diatribe is not convincing. In this regard, the administration has certainly poisoned the atmosphere and has made chances of a political solution ever more remote. We are convinced that negotiations will not take place until this atmosphere is considerably improved.

22.       We are convinced that negotiations will not take place until the Sri Lankan military forces cease military actions against the Tamil people and Tamil military positions recognized in the CFA. Every military attack on Tamil civilians further poisons the atmosphere and makes the possibility of reconciliation of the conflict in the context of a unitary State more difficult. The suggestion that the Tamil people can easily forgive and forget if peace is achieved is not reasonable. Tamil refugees and asylum seekers outside the country are less likely to go home with each new attack, both military and verbal, on Tamils.  

23.       We are convinced that if there is to be a political solution to the conflict within a unitary State, that the government of Sri Lanka must be prepared for substantial compromises to its positions. We cannot see the Tamil people agreeing to re-establishing the old, unworkable status quo as a minority in an overwhelmingly Sinhala State run as a Sinhala State, a situation that has been the topic of intense political and military conflict since the termination of British rule in 1949 and indeed caused the war. In particular, the Tamil people have long asserted that a solution maintaining a unitary State is only possible with sufficient autonomy in keeping with the Tamil right to self-determination. [11]  It is simply unreasonable to expect that the Tamil people will accept less and it is equally unreasonable for the international community to insist on a “solution” that solves nothing.     

24.       We are convinced that if negations between the two parties do not take place in the near future, that the return to full- scale war is inevitable.

25.       While pleased that the United Nations High Commissioner, Special Rapporteur Alston and others are urging a Council-authorized special commission for Sri Lanka due to the current crisis there, we would want to make certain that any such commission be established only after discussions with both parties to the conflict. Such a commission must be fully authorized to evaluate compliance with both human rights and humanitarian law, and must not undermine in any way the continuation of the Sri Lanka Monitoring Mission under the governments of Norway and Iceland. Any investigation mechanism established under the Council must involve both parties to the conflict, and allow procedures for the parties to call for investigation into certain events. The commission must be able to evaluate military operations of both parties for their compliance with the laws and customs of war regarding military operations (including those found in The Hague Conventions), conventions relating to weaponry, and conventions and General Assembly resolutions relating to the protection of victims of armed conflict. [12] Human rights violations in the context of the armed conflict must be evaluated in light of Article 4 rules. Any commission established must be free of political bias, be open and transparent, be rigorous and forthright in its approach, and be academically sound.

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[1] This briefing paper will not address the February 2006 Geneva talks between the Parties, moderated by Norway, regarding implementation of the CFA, or the failure to hold a second round to talks, originally scheduled for Geneva in April 2006, and postponed to a possible session in Oslo, that, in the end, did not take place.

[2] IED/HLP raises this obvious point because in the course of conversations with members of the US Congress, other government officials, and public officials of other countries, we were very surprised how many people actually thought that Sinhala civilians suffered equally to the Tamils and that the war was taking place all over Sri Lanka, including in the Sinhala areas. 

[3] Review of maps of the Tamil areas where the Sinhala forces are in control reveals that the high security zones (HSZ) established by the government armed forces leaves the Tamil people with few areas for traditional farming, subsistence activities, or anything resembling normal life.

[4] Our organization thinks that there may be a very cynical agenda at play, orchestrated by the Sri Lankan authorities and States having a geopolitical interest in the area. By restricting which aid organizations can provide aid in the Tamil areas to only a few, mostly Tamil ones, the Tamil diaspora has been cheated out of money it wanted directed to family and friends and other Tamils after the Tsunami. There were hundreds of thousands of $US that they contributed, for example, to the American Red Cross. Those donations were never delivered. Then many Tamils donated to TRO as the only aid vehicle, and now those funds are unavailable as they are frozen by [Sri Lankan] government order. Reconstruction in the Tamil areas has been slow, especially with new government restrictions on Tamil fishing. On the other hand, the relatively lightly effected Sinhala areas have been fully reconstructed, especially the tourist areas.

[5] IED/HLP regards this as defying reason. The LTTE is not a clandestine organization but a military force. It has military and political spokespeople. Its control of territory is open and well known, the lines of which were entered into in the CFA. Its military operations have always been limited to the field of battle in the armed conflict in Sri Lanka. Its combatants are in uniform, openly carry arms and utilize traditional military operations with the weaponry of war, much of which they have captured from the Sri Lankan military forces. Its military operations must be evaluated in the context of the laws and customs of war. Terrorist groups, on the other hand, are clandestine, are not in uniform, do not openly carry arms (indeed cannot) and do not carry out traditional military operations. They engage in terrorist acts (non-military acts of violence) precisely because they cannot realistically engage in traditional armed conflict against their supposed enemies.    

[6] Please refer to Written Statement E/CN.4/2006/NGO/207 that we submitted to the Commission that is now part of the documentation to the Council on certain of these points.

[7] As in the case of the American public who believed that Iraq was linked to Al Qaeda and the events of 11 September, the international community has appeared to be equally gullible and willing to disregard their own skepticism at the expense of humanitarian law – perhaps without even being aware of or understanding the underlying geopolitical interests.

[8] Please refer to Written Statement E/CN.4/2006/NGO/209 that we submitted to the Commission, that is now part of the documentation to the Council, on this point.

[9] E/CN.4/2006/53/Add.1.

[10] Sri Lanka is also bound by the Martens clause of The Hague Convention, incorporated in the Geneva Conventions of 1949 in this regard.

[11] While beyond the scope of this paper, we nonetheless point out that the Tamil people viewed previous government proposals for a political solution to be grossly inadequate. That said, certain other States felt that the Tamil’s rejection of these proposals was ill-advised, without any indication that they in any way understood these proposals in the context of Sri Lankan law and politics. In any case, even the weakest of the proposals had little chance with much of the Sinhala political leadership, as these forces want no “concessions” at all.  

[12] We have found the Canadian government’s manual on military operations, issued by the Judge Advocates General and available on line, to be particularly useful and complete. 

Contact:ied@igc.org

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