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Terrorism: Sri Lankan Law & Practise
LTTE are a Combat Force
Memorandum submitted to US State Department
Karen Parker, 1997
This Memorandum addresses why the Liberation
Tigers of Tamil Eelam may not be included as a terrorist organization under
the terms of P.L. 104-132. Rather, the Liberation Tigers of Tamil Eelam are
a combat force in a war -- the Sri Lanka - Tamil War. Initiatives to include
the Liberation Tigers of Tamil Eelam in a list of terrorist organizations
are clearly politically motivated and have no basis in law and fact. This
Memorandum is not meant to be an exhaustive account of the Sri Lanka -
Tamil War. The facts chosen are meant to be illustrative of the fact that
there is a war and that in the course of the war there have been violations
of the rules of war by both sides. For each example given many others could
be made.
Summary of Argument |
There is a war in Sri Lanka
| A. What is War | B.
Terrorism.
| C. War in Sri Lanka. |
LTTE entitled to combatant status |
The Sri Lanka - Tamil War is a War of National Liberation in defense of the
principle of self determination |
Humanitarian Law relating to the conduct of War |
Humanitarian Law relating to Victims of the War |
Breaches of the Laws and customs of war in the Sri Lanka-Tamil War |
Support for LTTE may not be criminalised
| Concerns for the United
States
 SUMMARY
OF ARGUMENT
There is armed conflict (war) in Sri Lanka between the armed forces of the
government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). The
conflict is governed by humanitarian law: the Hague Conventions, the Geneva
Conventions (including all provisions of the Protocols Additional considered
customary law) and all treaty-based and customary laws of armed conflict.
A fundamental rule of humanitarian law is that combatants in a war are
entitled to combatant status. The LTTE meet all factual and legal tests for
combatant status under humanitarian law rules.
Laws relating to terrorism do not apply to combatants in wars or to acts
carried out in the course of war. Because the LTTE has combatant status, the
LTTE cannot be considered a terrorist organization nor can its acts in the
course of war be treated as terrorist. Therefore it is legally incorrect to
include the LTTE in a list of terrorist organizations under the terms of P.L.
104-132.
While the war in Sri Lanka could be characterized as a civil war requiring
neutrality from third party states such as the United States, this author is
convinced that the Tamil people meet all criteria for the right to
self-determination. Accordingly, the war in Sri Lanka is a war of national
liberation in defense of the right to self-determination.
Under international law rules applicable to wars of national liberation in
defense of the right to self-determination the United States is legally required
to side with the Tamil people and the LTTE. Regardless of whether the war is
characterized a civil war or war of national liberation the LTTE still have
combatant status and cannot be considered a terrorist organization under P.L.
104-132.
The laws and customs of war do not exonerate all acts undertaken in wartime.
There are numerous violations of the laws and customs of war taking place in the
Sri Lanka - Tamil war both by the government of Sri Lanka and the LTTE. The
existence of violations of the laws and customs of war on either side do not
reduce the parties to the conflict to terrorists and the war itself to
terrorism: the armed forces of both the government of Sri Lanka and the LTTE
maintain their combatant status. Individual violators, however, could
charged with breaches of the laws and customs of war.
THERE IS A
WAR IN SRI LANKA
A. What is War.
Humanitarian law -- also referred to as the laws and customs of war, the law of
armed conflict or jus in bello -- applies when there is armed conflict or
war. One of the threshold questions addressed by the law of armed conflict is
whether or not a particular situation is a war. Under the currently applicable
laws and customs of war, war is action carried out by military forces utilizing
the methods and materiel of war to defeat by military means the military
forces of the opponent or enemy. Simply put, if it looks like a war it probably
is a war.
Military action can involve conventional warfare or guerrilla or other form of
warfare. The laws and customs of war do not prohibit any particular form of
military action. All modern wars have been fought with a variety of military
tactics.
Because the purpose of war is to defeat the enemy military forces, the weaponry
of war may vary from situation to situation. Contemporary wars have seen the use
of spears and poison blow guns as well as napalm bombs and bullets containing
depleted uranium.
It is not necessary for the parties to a conflict to formally declare war for
there to be a war: a war exists and the laws and customs of war are applicable
when objectively armed conflict is taking place. For example, the United States
carried out lengthy military actions in Vietnam without ever having declared
war. Even so, the laws and customs of war were applicable to both sides in that
conflict.
Many countries at war either refrain from a formal declaration of war or try to
deny a war is even taking place at all to try to avoid application of
humanitarian law to their conflicts. One method governments use to attempt to
avoid evaluation of their military actions under humanitarian law rules is to
characterize the conflict as "terrorism" and "counter-terrorism" rather than
war. Governments mis-characterize armed conflict for a variety of reasons,
all present in the Sri Lanka - Tamil war:
(1) the government's own armed forces have violated the rules of war and the
government wants to avoid international censure;
(2) the opposition forces have destroyed military targets that are insured
and the government wishes the insured to receive insurance indemnification for
the damage;
(3) the government needs foreign aid (war is expensive) and many foreign
donors such as the United States restrict foreign aid during war or only allow
funds to combat "terrorism".
Regardless of the political or economic motives for evoking "terrorism" when
a war is taking place, humanitarian law automatically applies and the
"terrorism" label is incorrect.
B.
Terrorism.
There is no universally accepted international definition of terrorism.
Even so, it is easy to distinguish terrorism from war. For example, a group
involved in terrorism generally is quite small, does not have any semblance of
military command, and does not use the typical weapons or military tactics of
war. The groups often function secretly -- in fact the clandestine nature of
these groups makes them so hard to control. Most of these groups engage
exclusively in random attacks on civilians or on civilian structures using
bombs or small firearms or by kidnapping people for ransom. Members of these
groups are not entitled to combatant status because their actions and the
response by law enforcement actions of governments are not sufficient to qualify
as a war.
While there may be a stated goal, groups involved in activities usually labeled
"terrorist" seek to achieve that goal by intimidating the opposition into
agreement rather than through military achievement.
In part this may be because military victory is impossible given the group's
small size and limited military training. On the other hand, lack of military
activity may reflect on the typical goals of these groups: while some try to
overturn governments or seize political power or governance, many groups seek to
protect their "system" of monetary gain (usually illegal): the "drug" business,
extortion rings and the like. Military action against such groups makes no sense
at all -- these groups have no military bases, zones of territorial control, or
the like. While occasionally, some groups do have "camps" and carry out
"military training", they are not engaged in combat in any sense of the meaning
of combat. Wishful thinking, week-end "war games" or playing at war and future
plans are not sufficient to qualify as combat. Armed attacks on civilians rather
than concerted military actions against the opponent's armed forces are likewise
not combat.
If on the other hand large-scale, mutually fought military actions over a
wide territory are carried out against a so-called "terrorist" group it is far
more than likely that the group is not "terrorist" at all but rather a military
force in a war. Under these circumstances the "terrorist" is really a combatant.
C. War in
Sri Lanka.
Applying the criteria for armed conflict to Sri Lanka, it is patently obvious
that there is a war in Sri Lanka and that it is between the forces of the
government of Sri Lanka and the LTTE. The government military forces utilize the
methods and materiel of war to carry out military actions to defeat by
military means the military forces of its enemy the LTTE. On its part, the LTTE
carries out military actions against the military forces and military targets of
the government of Sri Lanka. There is nothing random or sporadic about this war,
nor is there anything clandestine about the LTTE -- the LTTE is very public. The
LTTE does not play week-end war games but fights militarily on military
battlefields day in and day out.
The war has existed for at least thirteen years or since the period immediately
following the massacre of Tamils in Colombo in 1983. The existence of armed
conflict was recognized by Sri Lankan government officials in this early period.
For example, in 1986 the Finance Minister questioned how elections urged by
Prime Minister Bandaranaike could take place when the country was "engulfed in a
civil war." The international community also recognized the obvious: in 1987,
the United Nations Commission on Human Rights passed a resolution calling on the
parties to the conflict "to respect fully the universally accepted rules of
humanitarian law" which, of course, only apply in wartime. The United States
State Department has also characterized the situation in Sri Lanka as war.
The early years of the war were characterized by Tamil military control of much
of the Tamil areas, the emergence of Vellupillai Pirabaharan as the leader of
the LTTE, and the gradual supremacy of the LTTE among other Tamil groups in the
armed conflict. A most important event of the early years was the failure of the
1985 Thimpu Negotiations. These talks, arranged by India, were to put in place
an agreed cease fire and a program for a political rather than military solution
to the Tamil national question. The talks took place in Thimpu, Bhutan from 8
July to 17 August 1985, breaking off abruptly when the Tamil delegation walked
out in protest of the continued military actions against Tamil civilians,
especially Sri Lankan army attacks on Vavuniya and other villages in the north.
In 1987 India became a party in the Sri Lanka-Tamil War several months after the
July 1987 signing of the Indo-Sri Lanka Agreement to Establish Peace and
Normalcy in Sri Lanka (Indo-Sri Lanka Accord or the Accord). The Accord was to
"resolv[e] the ethnic problem of Sri Lanka", to enable India to protect itself
from "foreign military and intelligence personnel" and to prevent Trincomalee
harbor or other Sri Lankan ports from being used by foreign powers for military
purposes. Shortly after signing the Accord, India sent the Indian Peace Keeping
Force (IPKF) to Tamil areas. Although under the terms of the Accord the purpose
of the Indian military presence was to protect the Tamil people and to carry out
a surrender of arms by the Tamil military groups, the Indian forces began
fighting the LTTE in October 1987. Between October 1987 and the final withdrawal
of Indian forces in 1990 India's military incursion in Sri Lanka produced
thousands of refugees of the war and civilian casualties.
At the height of the IPKF - LTTE war, Indian troops were said to number nearly
100,000. Major General Harkirat Singh, the divisional commander of Indian
forces, explaining why the Indian Forces were unable to either win or capture
the LTTE leadership, reported that the LTTE fought against their tanks at close
range with Chinese rocket-propelled grenade launchers. General Singh also
reported: "They even attacked tanks with burning jerry cans full of petrol."
Since the withdrawal of Indian forces, both the Sri Lankan Army and Navy have
been almost continually engaged in military operations against the LTTE. The
government forces use tanks, airplanes, armoured vehicles, military weapons, gun
boats and other military materiel. Major military campaigns are given
code names. For instance, three recent large-scale military operations against
Jaffna in the north were code-named Leap Forward, Riviresa (Sunshine) I and
Riviresa II. In the same period of time, the LTTE has been involved with almost
continual army and navy operations against the government's forces.
In the past several years, both sides have had some military victories. The
Riviresa campaign in the Fall of 1995 by the Sri Lankan army pushed into Jaffna
and the LTTE retreated to other areas under their control. Most of the civilian
population also fled, and it is only recently that some have begun to return.
Even so, at time of this writing, more than 300,000 Tamils from the Jaffna area
are still displaced and the war is still raging.
On the LTTE side, in July 1996 the LTTE successfully overran and seized the
entire Mullaitivu Army Camp, killing about 1200 Sri Lankan troops. The LTTE are
thought to have sustained about 250 casualties, including a large number of
women combat troops. The LTTE were able to capture the entire arsenal at the
camp. This victory was followed by an ambush of a Sri Lankan army unit at
Thenmaratchi (July 28, 1996) in which the LTTE also captured many arms and
ammunition.
The LTTE also has naval troops, and has been able to carry out successful
operations against the Sri Lankan navy. For example, in April and October 1996,
the LTTE "Sea Tigers" sunk five vessels of the Sri Lankan navy in Trincomalee.
The "Sea Tigers" have also sunk government vessels in Jaffna, and have been able
to carry out periodic blockades.
Since the beginning of the war, the military advantage of each side has ebbed
and flowed. What is apparent is that there is a war and that neither side has
won. At time of writing (December 1996) there appears to be a another of a
series of military standoffs.
LTTE
ENTITLED TO COMBATANT STATUS
A fundamental principle of humanitarian law is that combatants in a war are
entitled to combatant status. While this principle has been one of customary
international law for centuries, it also find expressions in treaty-based
humanitarian law. For example, Article One of the Hague Regulations grants the
rights of war to members of armies. Members of militia and volunteer corps
are also entitled to the rights of war if they meet certain conditions: they
must be under responsible command, wear some visible emblem to distinguish them
form civilians, carry arms opens and conduct operations in conformity with the
rules of war. Even civilians are entitled to engage in combat when they
spontaneously take up arms on the approach of the enemy. Because there is a war
in Sri Lanka between the government forces and the LTTE, the LTTE have combatant
status and the right to engage in combat. This status is inconsistent with a
label of "terrorist" -- a terrorist does not have combatant status or the right
to engage in combat.
THE SRI
LANKA-TAMIL WAR IS A WAR OF NATIONAL LIBERATION IN DEFENSE OF THE PRINCIPLE OF
SELF-DETERMINATION
Modern humanitarian law applies to all types of war: international wars, civil
wars and wars of national liberation. Each is governed by different provisions
in humanitarian law, although there are basic principles applicable to all armed
conflicts.
A war is an international war when military action or hostilities take place
between two or more separate States. Typically, the military forces of one
country engage in military actions against another country by invading another
country, but international rules can also apply when a country defends another
country from military action from a third state. In all circumstances, the
treaty-based and customary international law relating to international war
applies to these conflicts. In international wars, the international community
must be neutral if the war is equally the fault of the parties. If one party is
clearly the aggressor, the international community must condemn the aggression.
A war is a civil war when there is armed conflict taking place in one State
between government armed forces and opposition armed forces or groups who have
identifiable and responsible military commanders, who control enough territory
to carry out a significant level of armed conflict, who distinguish themselves
from the civilian population by means of distinct uniforms or other readily
identifiable physical features and who have the means to comply with
humanitarian law obligations relating to civil wars. Neither police actions
against civilian demonstrators nor isolated attacks by armed persons against
civilian or government targets qualify as armed conflict. In civil wars, the
international community must be neutral, as a civil war is an inherently
internal affair. The Sri Lanka - Tamil war could be viewed as a civil war, in
which case all humanitarian law relating to civil wars would apply. However, for
reasons set out below, this author is convinced that the Sri Lanka - Tamil war
is a war of national liberation in defense of the principle of
self-determination.
A war is a war of national liberation when a group having a claim to
self-determination carries out military actions against the occupying state,
which can be a colonial or alien power or a racist regime. Self-determination is
the collective right of a people to freely determine their own political status
and to pursue economic, social and cultural development. People claiming
self-determination must show a history of independence or self-rule in an
identifiable territory, a distinct culture, and a will and capability to regain
self-governance.
In wars of national liberation in the exercise of the right to
self-determination or against racist regimes, the international community is
required to side with the people with the right to self-determination or
fighting against racist regimes. This is because of the peremptory (jus
cogens) nature of the principle of self-determination and the international
prohibition against racism. Because the right to self-determination is jus
cogens, the duty of the international community to uphold it is an
obligation erga omnes. Ian Brownlie reinforces the erga omnes
obligation to observe the principle of self-determination in his opinion that
armed defenders of self-determination have a special combatant status.
The Tamil claim to self-determination is one of the strongest in the
contemporary international scene. The three main elements of a claim to
self-determination -- historic self-governance in an identifiable territory, a
distinct culture and a national will and capacity to govern -- are all present
in the Tamil case.
The Tamil people have a centuries-old tradition of independence on the
island of Ceylon, broken only by colonial powers. Early mention of a distinct
Tamil kingdom and culture exists in the 6th century B.C. in the great Indian
epics Mahabharata and Ramayana. A series of Tamil kings founded
the ancient capital Anuradhapura and ruled until 101 B.C. when the Tamil Ellaran
was defeated by a Sinhalese prince. This capital was retaken by the Tamils and
other Indian invaders in the ninth century. By 1214 A.D. however, the Tamils
held power in the kingdom of Jaffna, extending into current Tamil lands in the
North and East. A 1789 map of the area by the cartographer Du Peron clearly
indicates the territorial divisions of the two kingdoms.
The colonial period began in the early sixteenth century when the Portuguese
captured the Sinhalese kingdom in the south of Ceylon. The Tamil kingdom
remained free until 1621, more than 100 years later when the Portuguese captured
the Tamil king Sankili. The Portuguese were defeated by the Dutch in 1658, and
the Dutch soon began to import Tamils from south India as slaves and textile
workers. The British replaced the Dutch in 1796, who by 1833 governed both Tamil
and Sinhala kingdoms under unitary colonial rule.
The first British colonial secretary, Sir Hugo Cleghorn, recognized not only
that the Tamil and Sinhalese kingdoms were politically separate, he also
attested to their profound cultural, linguistic and religious differences. In
his now-famous Minute he wrote:
Two different nations, from the very ancient period, have divided between them
the possession of the island: the Sinhalese inhabiting the interior in its
Southern and Western parts from the river Wallouve to that of Chillaw, and the
Malabars [Tamils] who posses the Northern and Eastern Districts. These two
nations differ entirely in their religions, language and manners.
Cleghorn and other subsequent British administrators were acutely aware that the
Tamil people are predominately Hindu and the Sinhala people predominately
Buddhist. It is self-evident that Tamil culture, based on Hinduism, would be
dramatically different from Sinhala culture, based on Buddhism. The Tamil
language is also significantly different from the Sinhala language, although
they are both derived from ancient Indian languages.
The third element of self-determination -- national will and capacity to govern
-- is also exceptionally strong in the Tamil case. Not only are the LTTE
themselves evidence of a willingness to defend the right to self-determination
with the use of force but the vast majority of Tamil civilians, whether in Sri
Lanka or abroad, also show an exceptionally strong national will that has
endured for the many long years of the war and indeed throughout the colonial
period and post colonial period. Even those relatively few Tamils who do not
strongly support the LTTE do not deny their insistence on some form of
self-governance, whether in association with the Sinhalese or as a separate
nation.
The immediate post-colonial period saw the rise of the highly-regarded Tamil
politicians such as G.G. Ponnambalam, founder of the Ceylon Tamil Congress
(1944) and S.J.V. Chelvanayagam, founder of the Tamil Federal Party (1947).
Chelvanayagam was able to secure agreements with two prime ministers to address
the growing Tamil grievances in the early post-colonial period, but these pacts
were completely violated by the Sinhala governments. The Tamil United Front was
formed by the three leading Tamil politicians -- Ponnambalam, Chelvanayagam and
Thondaman -- and Tamil youth and student organizations. Running on a separatist
plank, Chelvanayagam won a huge majority in a 1975 election. As cited above, the
historic Pannakam meeting in May 1976 resulted in the Vaddukoddai Resolution
calling for a separate Tamil state. In the 1977 general elections, the TULF ran
on a platform of Tamil "sovereignty in its homeland on the basis of
self-determination" and won 18 out of the available 19 seats. The LTTE was
formed from a TULF youth group, and took its symbol from the tiger symbol of the
historic Tamil kingdom.
The large number of Tamil organizations in Sri Lanka and abroad speaks to this
national Tamil will. Each year of the war has seen more and more organization
among the Tamil people in Sri Lanka and in the diaspora. The Tamil question is
debated and urged in countless community forums and in international
conferences, many of which are organized by the Tamils themselves. There are
Tamil politicians from a variety of political parties, all of whom attest to a
goal of at least significant devolution of power in Sri Lanka to afford the
Tamil people full expression of their cultural aspirations as a people. The
leading Tamil religious leaders also support Tamil sovereignty. For example, in
an impassioned speech at a major peace conference in Australia, The Rev. Dr.
S.J. Emmanuel, Vicar General of the Diocese of Jaffna stated:
I am standing here as a man of God in service to a suffering mankind. I have
hope in the goodness of God and men. From amidst the deafening sounds of
thousands of bombs falling on our soil and consuming sacred lives, I cry out
with Moses of old, "Let my people go from this slavery to freedom."
Even prominent Sinhalese leaders attest to the strength of the Tamil will for
self-governance. For example, Mr. Adrian Wijemanne writes:
In Sri Lanka that stage is set for a long-drawn-out guerrilla war, the total
impoverishment of both nations, the demise of civil government among the Sinhala
people and the eventual establishment of the State of Eelam. The best efforts of
the Sinhala state can only postpone this sequence of events -- they cannot avert
the final outcome.
About the capacity to self-govern there can be no doubt. The Tamil people have a
long political history, and there are a variety of Tamil political parties with
great experience and highly developed platforms and programs. Many leading
Tamils have had high offices in former Sinhalese governments, and while they are
now mainly in exile, they are able and ready to serve in a Tamil government. The
LTTE has maintained a civilian authority in the areas under their control since
the beginning of the war
HUMANITARIAN LAW RELATING TO THE CONDUCT OF WAR
Before evaluating whether either the government of Sri Lanka or the LTTE
violates the rules of war in prosecuting this war, there must be some
understanding of what the rules of war are. Modern humanitarian law has two
branches: (1) the law governing the conduct of combat and (2) the law governing
treatment of persons affected by war.
In the modern age, the law governing the conduct of combat is frequently
referred to as " The Hague law" because the most important multilateral treaties
relating to combat were drafted at conferences held in The Hague, the
Netherlands. Humanitarian law governing treatment of persons affected by war is
now referred to as "Geneva law" because of the important multilateral treaties
drafted at similar conferences held in Geneva, Switzerland. Humanitarian law is
both customary and treaty-based.
Modern treaty-based humanitarian law dates from the first Geneva Convention,
promulgated in 1864. The Hague Conventions of 1899 and 1907, multilateral
treaties resulting from the peace conferences held in the Hague in 1899 and 1907
developed the law of combat. Subsequent treaties and declarations have focussed
on prohibitions against certain weapons (i.e. napalm, chemical and biological
weapons) and against modification of the environment for hostile purposes: there
have been no major revisions of the law of combat since the Hague Conventions of
1899 and 1907. Customary humanitarian law (including customary humanitarian law
discerned by expert opinion) therefore is especially important.
The right of combatants to combatant status and to engage in combat is a
fundamental principle of the law of military operations or The Hague body of
humanitarian law. As noted above, this customary rule was codified in Article 1
of the Hague Regulations of 1907.
While clearly an important provision of The Hague law for the combatants, The
Hague law has one more important general principle: any military operation
necessary to defeat the enemy forces is legal unless specifically prohibited or
limited. Prohibitions or limitations may be found in any source of international
law: treaties, customary law, principles of law of civilized nations, decisions
of tribunals, expert opinion, the laws of humanity, and the dictates of the
public conscience. Prohibitions may also be included in agreements between the
parties to a conflict. Because of the extensive prohibitions and limitations
found in these sources of humanitarian law, this principle of humanitarian law
is now frequently stated by its corollary rule: the means of warfare are not
unlimited. This formula first appeared in the Hague Convention (IV) of 1907
(Regulations, Article XXII): "The right of belligerents to adopt means of
injuring the enemy is not unlimited."
As of present time, The Hague law limits or forbids certain combat activities:
killing a combatant who is sick, wounded or has surrendered; military operations
against towns, villages, or buildings which are undefended or against the
civilian population or civilian habitations (including foodstuffs and drinking
water); and pillage. Military operations against combatants may also be
prohibited, for instance if there is a strong likelihood that an undue number of
civilians will be killed or injured in proportion to either the enemy armed
forces or the military objective.
The principle of "necessity" presents one of the major restriction on military
operations: a military operation must be necessary to defeat the enemy. What
constitutes military necessity is usually in constant dispute in any war, with
most combatant forces justifying any and all operations as necessary. However,
most sources require military operations objectively to demonstrate a definite
military advantage. Military operations may not be carried out if the military
gain is too small in proportion to the loss of life or property necessary to
achieve it. Military operations also may not be carried out if objectively the
enemy is already defeated or if the purposes of the war are already achieved.
In spite of the extensive prohibitions and limitations to warfare in current
customs and treaties, many military operations remain legal even though for
political or other purposes they may be condemned. One common military goal is
to kill the military or political leaders of the opponent force. While there is
growing concern about political assassination, most armed forces consider it
legal to kill any political or military leader of the opposition.
Legal military targets include all movable property of the opposing forces, and
all transport vehicles used to supply the opposition forces. These can include
trains, buses, cars, even if not the actual property of the enemy. Military
bases, offices, quartels
and camps are legal targets of military operations. Lines and means of
communication and transport (railroads, bridges, roads, broadcast facilities,
telephone and telegraph facilities having fundamental military importance) are
also legal targets. Fuel sources (depots, refineries, and the like) as well as
munitions factories or other facilities producing or storing war materiel
(arms, uniforms, military food supplies) are all legal military targets.
Electric works or other energy supply installations (with the exception of
nuclear ones) are also legal targets.
At present time, there are no prohibitions against attacking structures related
to the enemy's financial capacity: most wars are costly, so targeting the
enemy's monetary resources certainly meets the necessity test. Combatants
typically try to attack payroll dispensaries, gold or bullion/specie storage
facilities, mints and the like.
The Hague law also establishes rules for administration over seized enemy
territory and provides for compensation for violations. It provides rules for
proper use of uniforms and insignia, including insignia (red cross, red
crescent) of medical relief providers and equipment.
HUMANITARIAN LAW RELATING TO VICTIMS OF THE WAR
Since the first Geneva Convention there has been substantial development of
treaty law protecting victims of armed conflict illustrated by the promulgation
of the Geneva Convention of 1906, Geneva Convention (Wounded and Sick) of 1929
and Geneva Convention (Prisoners of War) of 1929, the Geneva Conventions I - IV
of 1949 and Protocols Additional I and II of 1977.
The law of protections for persons affected by war (Geneva law) also has one
overriding principle: combatants hors de combat and civilians not
directly engaged in armed combat may not be the target of military operations
and must be treated humanely. This body of humanitarian law address the right of
combatants to medical care if sick or wounded; the right of medical personnel to
treat sick or wounded combatants even if the combatants belong to the enemy
forces; the obligation to protect medical personnel, equipment and facilities
from military attacks; rules for the treatment of prisoners of war (POWs); and
protections of the civilian population from the hazards of war and their right
to medical care, subsistence needs and services. Geneva law outlaws torture,
slavery, wilful killing (killing outside of legal combat) and other inhumane
acts at all times.
In present time, the two bodies of humanitarian law are merging: both Protocols
Additional contain provisions historically considered The Hague law. For
example, Protocol Additional I has a section called "methods and means of
warfare" which restates the basic rule of The Hague law, and prohibits certain
weapons and means of warfare. Geneva law originally did not address civilian
objects other than hospitals. The Protocols both address a wide range of
civilian objects that may not be subjected to military action. For example
Protocol Additional I expands upon the provision of the Hague Convention of 1907
prohibiting attacks on undefended towns, villages or civilian buildings. The
Protocol also provides for duties and protections for civil defense and
establishes new regulations concerning aircraft signals and other electronic
identification. Both Protocols severely restrict attacks on public works of
installations containing dangerous forces: dams, dikes, nuclear installations.
This modern blending of the two branches of humanitarian law is in part due to
the fact that there has been no effort to revise and up-date the Hague
Conventions themselves. There has also been substantial development of human
rights law which has had an impact on humanitarian law.
BREACHES
OF THE LAWS AND CUSTOMS OF WAR
IN THE SRI LANKA -TAMIL WAR
In all wars, the international community has a right to investigate compliance
with humanitarian law, in particular with the Geneva Conventions, the Hague
Conventions and all customary humanitarian law. The Sri Lanka-Tamil war, like
all wars, is one with many violations of the laws and customs of war, especially
by the Sri Lanka military and government forces but also by the LTTE.
A major and repeated violation of the Sri Lanka forces is that they carry out
military attacks against the civilian population: in fact, the Sri Lankan
military forces carry out far more military operations against the civilian
population than against the LTTE. Some of these have received widespread
international condemnation. For example, Pope John Paul II spoke out following
the government bombing on a church and school at Navaly in July 1995 as part of
the military campaign "Operation Leap Forward". During the same period a bomb
killed 65 civilian in a church at Manipay and its local hospital was shelled.
Following the LTTE military victory at Mullaitivu Army Camp in July 1996, the
Sri Lankan security forces carried out widely-condemned reprisal attacks against
Tamil civilians in 6 villages in the area. The ICRC, Medecins San Frontieres,
Oxfam and the Offices of the United Nations High Commissioner for Refugees left
their missions in Kilinochchi because of shelling from the Sri Lankan forces.
Protection of prisoners of war is a fundamental obligation of the rules and
customs of war. The Sri Lankan government appears to have no normalized
treatment of LTTE prisoners of war. In the nearly 13 years of sustained armed
conflict in Sri Lanka, the government of Sri Lanka still has no designated
facilities for POWs. There is presently no regular international monitoring
of the POW situation as required by the Geneva Conventions. The Sri Lankan
government has allowed the International Committee of the Red Cross (ICRC) to
carry out some prison visits in a limited way -- for example, in 1994 the ICRC
had access to 2469 detainees.
Under Geneva Convention rules, sick and wounded combatants and civilians have an
absolute right to care. In spite of this, the Sri Lankan government has carried
out blockades of food and medicine for the Tamil areas during most of the war.
International NGOs have repeatedly condemned this practice at the annual
sessions of the United Nations Commission on Human Rights. For example, in 1992,
24 non-governmental organizations condemned the blockade that had been in force
since 1990. In June, 1996, the Vicar General of Jaffna appealed to the
government to lift the economic blockade to the North.
The violations of human rights that the international community has acknowledged
occur in Sri Lanka (such as torture, violation of the right to life and summary
execution, disappearances, and extreme procedural anomalies in the justice
system) can also be characterized as violations of the rules of war or
violations of humanitarian law (war crimes) when they occur in the context of
the war. Most violations of the rights of Tamils indicated in the above reports
and in numerous other reports prepared by non-governmental human rights
organizations do in fact occur in the context of the war, and are therefore both
war crimes and human rights violations.
The LTTE also has violated the rules of war protecting civilians : the LTTE has
on occasion targeted civilians; the LTTE has carried out military operations of
dubious military utility or against buildings or facilities that are generally
treated as protected. The LTTE has also carried out attacks on Tamil groups that
have collaborated with the Sri Lankan government. The LTTE is alleged to have
carried out killings of Sri Lankan political leaders although some of these
killings are also widely viewed as carried out by rival Sinhala factions. Even
with the accusations of violations of this type, a review of all available
information shows that for the most part, the LTTE attacks traditional military
targets.
It is also difficult to assess the LTTE's overall compliance with humanitarian
rules relating to prisoners of war. However, the LTTE has openly allowed the
ICRC to carry out regular visits to POWs and has returned a number of their POWs
to the Sri Lankan government through the ICRC. Recently, the LTTE released other
POWs and turned them over to clergy. The release of these POW was not part of a
POW exchange, and this author is not aware of any recent POW exchange between
the LTTE and government forces such as those that took place between the LTTE
and the IPKF during the Indian phase of the war.
Verification of violations of the rules of war is a serious problem in the Sri
Lanka - Tamil war. In part, verification is difficult because the Sri Lankan
government denies access to international, impartial monitors. This situation
has provoked the government into making wild accusations against the LTTE in an
attempt to damage the international acceptance of the LTTE and to reinforce its
labeling of the LTTE as "terrorist". For instance, the government frequently
accuses the LTTE of massacring villagers. Independent monitoring that has
investigated certain of these massacres reveals a different story -- sometimes
Sri Lankan soldiers themselves or anti-LTTE Tamil groups have been implicated.
In other circumstances, an event may have been unrelated to the Sri Lanka -
Tamil war.
Sadly, some human rights organizations echo government- originated accusations
against the LTTE, even circulating reports of alleged LTTE violations without
indicating the source of the information about the events, or whether the
organization has carried out its own investigation or even sought clarifying
information. This, of course, inadvertently plays into the intent of the
government to label the LTTE "terrorist" and even worse intimidates others from
demanding from both parties -- LTTE and government -- the truth.
The Sri Lankan government even goes so far as to denounce any expression of
sympathy for sick and wounded or displaced Tamil civilians as support for
"terrorism." For example, a Roman Catholic parish in North Carolina issued a
appeal for humanitarian aid for the hundreds of Tamils displaced in the
government assault of Jaffna in 1995. The Sri Lankan government launched a
counter-attack, sending the parish priest letters arguing that support for
Tamils was support for terrorism. Another priest, this time in San Francisco,
sent a letter to the editor (San Francisco Chronicle) also urging humanitarian
aid for Sri Lankan Tamils. The Sri Lankan Embassy (Washington) sent a harsh
reply letter, also referring to Tamils as terrorist and condemning any aid to
Tamil people. This climate of hostility makes the task of those investigating
alleged humanitarian law and human rights violations even harder.
In spite of the many violations of the laws and customs of war in the Sri Lanka
- Tamil War, the war remains a war and is not reduced to terrorism nor its
participants of either side to terrorists. The international community however,
has the right and the obligation to seek full compliance with humanitarian law
and to modify relationships with that country because these violations.
SUPPORT
FOR LTTE MAY NOT BE CRIMINALIZED
Regardless of whether the war in Sri Lanka is recognized as a war of national
liberation in the exercise of the right to self-determination or a civil war,
support for the LTTE from the Tamil people cannot be criminalized. The Tamil
people, whether in Sri Lanka or elsewhere, have the right to freedom of opinion
and belief, the right to freedom of expression and the right to support
political parties or groups of their own choosing.
CONCERNS
FOR THE UNITED STATES
Section 302 of P.L. 104-132 authorizes the Secretary General to designate a
group as a terrorist organization if three criteria are met: the organization is
a foreign organization, it engages in terrorist activity and the terrorist
activity threatens the security of United States nationals or the security of
the United States.
As set out above, these criteria do not apply to the LTTE, a
combatant force in a war in Sri Lanka. Even so, it is useful to evaluate the war
in Sri Lanka under the specific language of the Act to reinforce that fact.
First of all, the LTTE is a military force (army and navy) not a terrorist
organization. Humanitarian law make clear distinctions between combatant forces
and other groups. For example, the choice of wording in Article 1 of Protocol
Additional II -- "dissident armed forces" and "organized armed groups" that
carry out "military operations" is meant to distinguish combatant forces from
"organizations" that meet P.L. 104-132 criteria by carrying out random or
sporadic violence associated with terrorism. Protocol Additional II specifically
provides that "isolated and sporadic acts of violence and other acts of a
similar nature . . . are not armed conflicts" and hence not governed by
humanitarian law. The long, protracted and heavily prosecuted war in Sri Lanka
can hardly be characterized as sporadic or isolated violence.
Second, the LTTE does not engage in terrorist activity as defined by this
act. As indicated above, the LTTE engages in military operations in a war.
The military operations take place in Sri Lanka, not in the United States. There
are no United States troops stationed in Sri Lanka as part of a United States
force participating in the Sri Lanka - Tamil war. Therefore there is no LTTE
activity that can threaten the security of United States nationals or the
security of the United States.
This author acknowledges the real threat to ordered society posed by terrorist
groups and terrorism. The very nature of terrorist activity, especially its
randomness and seeming irrationality and the fact that groups are secretive and
clandestine, fosters personal and national insecurity. While recognizing the
emotional and political nature of anti-terrorism, this author is convinced that
true progress in anti-terrorist efforts mandates distinguishing "terrorism" from
wars. Labeling the LTTE as "terrorist" will do nothing to combat terrorism in
the United States or elsewhere. But, tragically, such an incorrect label could
play a part to unduly prolong the war in Sri Lanka and cause thousands more
deaths and injuries of Sri Lankans -- Tamil and Sinhala alike. Rather than
incorrectly labeling the war in Sri Lanka and its combatants, the United States
ought to be taking a far more aggressive role in seeking a peaceful resolution
to the Sri Lanka - Tamil war and the underlying Tamil question.
There are a number of concrete steps that the United States could take to assist
in the resolution of the Sri Lanka - Tamil war. The United States should
insist that the government of Sri Lanka and the LTTE correctly apply the laws
and customs of war.
The United States should urge independent, impartial monitoring of the war by
not only the ICRC but by the many international human rights groups and aid
providers. The United States can refrain from providing arms to the Sri Lanka
government both because of the duty of neutrality but also because of the proven
violations of humanitarian law. The United States can encourage other nations to
likewise refrain. The United States can also support and encourage international
initiatives to mediate in this war. Finally, the United States can enter into
dialogue with representatives of the Tamil people as well as the government.
The United States has a strong interest in a peaceful resolution of all the
worlds current conflicts, including the Sri Lanka - Tamil War, and the
prevention of future ones. The sheer number of current armed conflicts is
staggering -- Burundi, Zaire, Liberia, Chechnya, Sudan, Burma, Rwanda, Kashmir,
Afghanistan, Western Sahara, the Middle East, Iran, Turkey to name a few.
Achieving peace in these many conflicts is hampered by failure to address them
as the wars that they are. Most importantly incorrect labeling of combatants as
terrorists and treating a war as terrorism for whatever reasons undermines
humanitarian law and what should be its universal application.
Clearly it is not possible to have a coherent foreign policy when one war is
treated as a war and another is treated as terrorism. The United States cannot
take an active role in seeking peace in all the many wars, but the United States
can uniformly and honestly seek compliance with humanitarian law in all the
conflicts, including the Sri Lanka - Tamil war. This alone can be an effective
strategy in achieving peace.
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