WAR CRIMES IN SRI LANKA -What the international experts say (5)

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Desmond de Silva QC-April 9, 2015, 12:00 pmFinally, the government was alleged to have deprived civilians in the conflict zone from receiving necessary humanitarian aid. This allegation is based on the fact that there was a significant shortage of food and medicine available despite deliveries that were made to the conflict zones.

*Desmond de Silva on the **permissible parameters of collateral damage*

*Desmond de Silva QC is a prominent Queens Counsel in England who was appointed by UN Secretary General Kofi Annan as the Chief Prosecutor of the Special Court for Sierra Leone.*

* (This is an edited and abbreviated version of a legal opinion. The language and the title has been modified to suit a general readership. Reducing a detailed legal opinion to a newspaper article does not do justice to the experts concerned. We do so only in order to keep the Sri Lankan public informed about the thinking of eminent international experts which may differ in significant ways from the propaganda that the public often hears from interested parties. The complete legal opinion is available at /http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122896) *

In the final phase of the conflict when the LTTE was facing inevitable defeat it resorted to holding hostages as a human shield and shelling the Sri Lankan Army (SLA) from No Fire Zones so as to force the Army to run the risk of causing civilian casualties in responding. No doubt, this was done for the purpose of assigning allegations of civilian killings to the Army. In addition, there was evidence from many sources that the LTTE fired artillery into their own people. This strategy, is not unknown in hostilities of this kind where there is a need on the part of the losing side to provoke a propaganda storm so as to invite international intervention to prevent impending defeat.

Upon the defeat of the LTTE a host of allegations were launched against the SLA which included the unlawful targeting of civilians and causing illegal collateral damage. Currently, whether or not an attack that results in civilian deaths is legal under international humanitarian law depends on whether the attack meets the requirements of three principles: (1) Distinction, (2) Military Necessity, and (3) Proportionality. A violation of international humanitarian law only occurs if there is an intentional attack directed against civilians, or if an attack is launched on a military objective with the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage.

In the final stages of the war, according to the Report of the Secretary-.general s Panel of Experts on Accountability in Sri Lanka around 330,000 civilians were trapped in an ever decreasing area, fleeing the shelling but kept hostage by the LTTE and being used as a strategic human buffer between themselves and the advancing SLA. From February 2009 onwards, the LTTE started the point blank shooting of civilians who attempted to escape the conflict zone whilst continuing a policy of suicide attacks outside the conflict zone. On Friday (April 3) the UN Secretary General Ban Ki-Moon called on the LTTE to allow civilians to leave the conflict area of their own free will. He expressed his deep distress by continuing reports of civilians being kept at extreme risk, against their will and with heavy casualties in a very small area by the LTTE. The UN Secretary-General (UNSG) deplored the forced recruitment of civilians, particularly children, stating the severe restrictions of the LTTE on their freedom of movement violated international law.

The immediate duty of the Government forces was to free the hostages by defeating their captors and in order to do so they were entitled to use as much force as was absolutely necessary to completely overwhelm their enemy, subject to the principle of Proportionality. This was done, and 296,000 civilian hostages whose future was uncertain in the hands of the LTTE, were now saved. In my view, this was a military and humanitarian necessity. When military necessity is understood to require non-combatant death, such killing is permissible and legal if it is proportionate to the expected military advantage of the operation.

By doing their due diligence to ensure that the number of casualties was as low as possible and that only military targets were fired upon, the Government satisfied the principles of Necessity, Distinction and Proportionality.

I bear in mind that there was an urgent need to bring the war to a swift conclusion, save as many hostages as possible and to prevent the escape of the LTTE leadership by sea. Their escape would have enabled them to position themselves elsewhere in the World and continue directing murderous terrorist activities against the people of Sri Lanka. The phenomenon of a group from outside waging war against a state was .exemplified by the Al-Qaeda attack on the Twin Towers in New York in 2001 and indeed by the murder of Rajiv Gandhi, the Prime Minister of India by the LTTE.

Thus, the damage and loss of life, regrettable as it was, was merely collateral damage. It is my opinion that a war crime cannot be ascribed to the Government on the basis of the facts set out above.

The function of the principle of proportionality is to relate means to endsdid the military result justify the means required to accomplish it, the death of innocents. It is not easy to assess what attacks are disproportionate; to a large degree the answer depends on an interpretation of the circumstances prevailing at the time, the expected military advantage gained by striking a certain military target, and other context-specific considerations.

It should also be noted that the principle of proportionality is often misapplied. For instance, in some cases the mere quantum of collateral damage and incidental injury causes critics to condemn a strike as disproportionate. However, the extent of harm and damage is relevant only as it relates to the military advantage that was reasonably expected at the time the attack was launched. Importantly, the standard is "excessive" (a comparative concept), not "extensive" (an absolute concept). Damage to civilians or their property can be extensive without being excessive. Assuming the military advantage anticipated itself is high extensive damage will not be excessive. Thus, where the military object is of paramount importance the right of civilians to be free from the effects of hostility diminishes.

When assessing the legality of "collateral damage" under lHL, disproportionate attacks are prohibited in two ways. First, military commanders must evaluate the potential civilian losses anticipated, and not pursue the attack if they are excessive in relation to the, military advantage gained International courts and national military tribunals use a "reasonable commander" standard based on the circumstances at the time to determine whether a particular military act was proportional.

Another allegation made against the Security Forces was that they executed surrendering soldiers of the LTTE. These allegations ions are. based on video footage allegedly showing Sri Lankan soldiers killing captive LTTE members in January 2009 as well as other sources that reported that government forces killed several LTTE leaders while they attempted to surrender in May 2009.

Based on my instructions, however, it is unlikely that this crime was committed. As I have observed before, if there were individual acts that amounted to war crimes the authorities have the judicial structures within which to deal with perpetrators. According to the government, 11,986 LTTE members were either detained or surrendered and 10,490 have already undergone rehabilitation and have been reintegrated into society. The rest are either currently under rehabilitation or are scheduled for prosecution. Additionally, the government asserts that the same accommodations were made for family members of LTTE. Therefore, based on these facts alone, it is unlikely that this crime occurred.

Finally, the government was alleged to have deprived civilians in the conflict zone from receiving necessary humanitarian aid. This allegation is based on the fact that there was a significant shortage of food and medicine available despite deliveries that were made to the conflict zones.

The government asserts that they worked with several UN agencies to provide aid to those in need in the conflict zones. Additionally, if there was any shortage in aid supplied, it was due to the fact that the LTTE consistently targeted the UN food convoys throughout the operation. Furthermore, few facts have been asserted that actually attribute responsibility to the government for the shortage in aid.

Link: Original legal opinion of Desmond de Silva

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=122971

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