The US Committees on Appropriations directed the Secretary of State to submit a report on alleged incidents which may have amounted to be violations of International Humanitarian Law (IHL) and /or crimes against humanity in Sri Lanka during the period January to May 2009. The specific direction to the Secretary of State was: "The conferees direct the Secretary of State to submit a report to the Committees on Appropriations not later than 45 days after enactment of this act detailing incidents during the recent conflict in Sri Lanka that may constitute violations of international humanitarian law or crimes against humanity, and, to the extent practicable, identifying the parties responsible" (p. 5).

The directive specifically requires the report to address only those activities that pertain to "violations of international humanitarian law or crimes against humanity" within the specified period. Thus, the violations should belong to only one or the other of these two categories, and no more. However, the report had gone beyond the directive and commented on Human Rights abuses as well, evidently "…in an effort to collect as much pertinent information as possible…including incidents that could constitute human rights abuses (and for them to be) included in the report in the interest of providing a sense of the broad range of harms civilians allegedly suffered from January to May 2009" (p. 8). This reflects a level of unwarranted over-zealousness. Therefore, the violations listed in the State Department Report need to be revised so that human rights abuses are expunged from the listed violations.

Human suffering is an inevitable aspect of conflict. IHL governs conduct during conflicts in order to minimize human suffering. This body of Law is contained in the four Geneva Conventions of 1949 and Article 3 that is common to all four Conventions is the only Article that addresses "non-international armed conflict", i.e., a conflict between a state and non-state actors (as was the conflict in Sri Lanka - a fact acknowledged in the Report). However, the inadequacy of provisions in Article 3 caused the International Community to adopt more detailed provisions in respect of non-international conflicts. These are contained in the two Additional Protocols of 1977; with Protocol II relating specifically to Non-International armed conflict. Although Sri Lanka has not ratified Protocol II, by implication, Protocol II of 1977 is what sets the guidelines during the non-international conflict that occurred in Sri Lanka. These Conventions and Protocols have by now come to be accepted as Customary Laws.

Although the Report is of the view that Protocol II is not applicable to Sri Lanka because "Sri Lanka is neither a party nor a signatory", the applicability of its provisions to the conflict in Sri Lanka gives legitimacy to the strategies adopted by the GOSL because the Protocol applies to non-international conflicts. For instance, Article 2, clause 2 permits the deprivation of liberty or restriction of liberty for reasons related to the conflict; thus justifying restricting the freedom of movement of the post-conflict displaced in enclosed camps until conflict related issues are resolved. Furthermore, Article 3, clause 2 denies intervention "directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs". Sri Lanka would have been in a much stronger position had it used the provisions of Protocol II to meet the continual negative comments from the International Community.

There appears to be considerable confusion as to what constitutes "crimes against humanity", and what constitutes "war crimes". Neither is specifically addressed by the Geneva Conventions or the Protocols to the degree that it is addressed in the Rome Statute of the International Criminal Court. For instance, Article 7 of this Statute describes activities that qualify as "crimes against humanity" and Article 8 describes activities that qualify as "war crimes", thus clearly recognizing the distinctions between the two. The inability to appreciate this difference has caused the State Department Report to go beyond the stipulated scope, and list both "Crimes against humanity" and "war crimes", thus compounding the confusion. Since the report is required to address ONLY "violations pertaining to international humanitarian law or crimes against humanity" and NOT "war crimes", the Report needs serious revision.

Given below are the activities listed in the Rome Statute as per Article 7: "Crimes Against Humanity". They are: "Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Prosecution against any identifiable group…; Enforced disappearances of persons; The crime of apartheid; Other inhuman acts of a similar character…"

The Executive Summary of the State Department Report lists 5 categories of incidents in Sri Lanka:

1) Children in armed conflict; 2) Harm to civilians and civilian objects; 3) Killing of captives or combatants seeking to surrender; 4) Disappearances; and 5) Humanitarian conditions - instances of severe food shortages, etc."

According to Article 8 of the Rome Statute, the 4 categories: "Conscripting or enlisting children; Killing of captives or combatants seeking to surrender; Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; and Intentionally using starvation of civilians…" are listed as "war crimes" and NOT as "crimes against humanity".

Thus, 4 of the 5 categories listed in the Executive Summary qualify as "war crimes" and not as "crimes against humanity. As with Human Rights violations, all those violations that qualify as "war crimes" should be expunged from the Report.

As to the issue of Disappearances - IHL does not recognize it as a violation. On the other hand, the Rome Statute recognizes it as a "crime against humanity" when incidents relating to such actions are carried out "with the authorization, support or acquiescence of, a State…". Since the report lists 5 incidents in February, 2 in April and 3 in May as "disappearances", and most of these cases are spurious and lack substance, they cannot be interpreted as being violations authorized as State Policy.

The single most significant issue that dominates activities during the period in question was the "Deportation or forcible transfer of population…" or "ordering the displacement …" both of which were inflicted on the Tamil population by the LTTE This single act is categorized in both "crimes against humanity" and "war crimes" by the Rome Statute. It is very disappointing that the State Department Report does not categorize this as one of the most serious of the crimes, although it qualifies not only as against humanity" and "war crimes", but also as a violation of "international humanitarian law".

One of the primary obligations of parties to a conflict is the protection of civilians. The report acknowledges the measures adopted by the Government of Sri Lanka (GOSL) to designate safe zones for the purpose of isolating the civilians from conflict zones. Three such zones were created, one in January, the second in February and the third in May. These attempts were seriously compromised and the safety of the civilians jeopardized when the LTTE used the safe zones for their own protection, thereby violating the most sacred of the obligations of IHL and crimes of war and against humanity. The consequence of this action was to transform the conflict from one of freeing Sri Lanka of terrorism by engaging the LTTE militarily without harm to non-combatants based on the right of self-defense, to one where the GOSL was compelled to modify its strategies due to the mix of combatants and non-combatants into a "human shield" within the safe zones.

The report acknowledges the "limitations on the State Department’s ability to collect and corroborate information"(P.9)…"Such limitations preclude the kind of testing and corroboration of evidence that would be necessary to evaluate whether the allegations presented are factually supported and/or would constitute violations of international law" (p.10). In addition to these limitations, and despite them, the Report has deemed it appropriate to include Human Rights abuses which fall outside the directive from the Committees on Appropriations which required the Secretary of State to report on "violations of international humanitarian law or crimes against humanity" (p.3). In addition, the Report has listed activities relating to "war crimes" even though the requirement of the directive was to report ONLY on "crimes against humanity". The inclusion of violations outside the scope of the directive requires the contents of the Report to be drastically revised if it is not to be trivialized for its padded content. The over-zealousness exhibited in the preparation of the Report casts doubt on the bona-fides that initiated the process and the motivations for the Report.

The events relating to the period in question were precipitated primarily by the actions of the LTTE when they forcibly transferred the Tamil population from one safe zone to another safe zone. This act alone collectively violates IHL, crimes against humanity and war crimes. The fact that the report has deemed it fit to overlook this violation perpetrated by the LTTE, despite the fact that it violates IHL, crimes against humanity and war crimes, means that the omission trivializes human suffering to a point of making a mockery of all the Conventions and Protocols that have been initiated specifically to prevent such suffering.