Addressing accountability

By Neville Ladduwahetty

The current debate in the country is whether there should or should not be any foreign "participation" in the accountability processes and if there is to be foreign "participation", to what degree it should be. The uncertainty as to the final outcome of the debate has caused the Security Forces to be understandably apprehensive. However, what needs to be appreciated is that accountability is only one facet of the entire reconciliation process.

Issues such as the closure on missing persons, reparations, reconstruction and rehabilitation have a far greater impact on reconciliation than accountability. This is particularly so because the focus on accountability would primarily be on the period from January to May 2009, since the strategies adopted by the Security Forces in the conduct of the separatist Armed Conflict prior to this period were acknowledged by the US in a cable that stated: "The Government has gained considerable credit until this point for conducting a disciplined military campaign" (Cable to the US State Department by the US Embassy, WikiLeaks, 27 January, 2009).


With the fall of Kilinochchi on January 2, 2009 the Report of the Office of the UN High Commissioner for Human Rights (OISL) states in paragraph 86:

"By the end of January 2009, the LTTE was severely diminished as a fighting force. It lacked heavy weapons and had to rely on new and ill-trained recruits to fill its ranks … Having lost their defence lines at Kilinochchi and Elephant Pass, the LTTE was apparently no longer able to hold ground against the SLA (Sri Lankan Army) advance from the north, west and south, and engaged in a fighting withdrawal in an ever diminishing area with its back against the sea".

With diminished military assets the choices open to the LTTE were limited. The only asset was the civilian population, if one could call 300,000 plus civilians an asset. They provided not only protection for the LTTE by blurring distinctions between civilians and combatants but also resources by way of manpower to participate in hostilities. Thus the civilian population became a "human shield"; a function that could only be served by compelling the civilians to stay with them by holding them "hostage".

This was the context of the final stage of the separatist Armed Conflict both for the LTTE and the Security Forces. However, the use of civilians either as a human shield or as hostage is prohibited by International Humanitarian Law. What needs to be appreciated is that the purpose of a human shield could only be fulfilled as long as the LTTE could hold the civilians hostage; a dependence that caused the LTTE to prevent civilians from escaping by shooting them; evidence of which is contained in the Reports of the LLRC, Panel of Experts (Darusman); Paranagama; etc..

Rule 97 of the ICRC - The use of human shields is prohibited.

International and non-international armed conflicts

With respect to non-international armed conflicts, Additional Protocol II does not explicitly mention the use of human shields, but such practice would be prohibited by the requirement that "the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations". It is significant, furthermore, that the use of human shields has often been equated with the taking of hostages, which is prohibited by Additional Protocol II, and by customary international law (see Rule 96). In addition, deliberately using civilians to shield military operations is contrary to the principle of distinction and violates the obligation to take feasible precautions to separate civilians and military objectives (see Rules 23–24).

Several military manuals which apply in non-international armed conflicts prohibit the use of human shields.  The legislation of several States criminalizes the use of human shields in non-international armed conflicts.  The use of human shields in non-international armed conflicts has been condemned by States and by the United Nations, for example, with respect to the conflicts in Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan and the former Yugoslavia.

Rule 96. The taking of hostages

is prohibited.

Common Article 3 of the Geneva Conventions prohibits the taking of hostages.  It is also prohibited by the Fourth Geneva Convention and is considered a grave breach thereof.  These provisions were to some extent a departure from international law as it stood at that time, articulated in the List (Hostages Trial) case in 1948, in which the US Military Tribunal at Nuremberg did not rule out the possibility of an occupying power taking hostages as a measure of last resort and under certain strict conditions.  However, in addition to the provisions in the Geneva Conventions, practice since then shows that the prohibition of hostage-taking is now firmly entrenched in customary international law and is considered a war crime.

The prohibition of hostage-taking is recognized as a fundamental guarantee for civilians and persons hors de combat in Additional Protocols I and II.  Under the Statute of the International Criminal Court, the "taking of hostages" constitutes a war crime in both international and non-international armed conflicts.  Hostage-taking is also listed as a war crime under the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.  Numerous military manuals prohibit the taking of hostages.  This prohibition is also set forth in the legislation of numerous States. 



This was the context during the final stages of the separatist Armed Conflict. Consequently, the task before the Security Forces was how to meet an extraordinary challenge that had no precedent because of its scale and where rules of engagement for any Army did not exist as acknowledged by Maj. General John Holmes (Ret) formerly of the UK Special Forces (Parangama Report, paragraph 83). The situation was compounded by the LTTE resorting to acts that were prohibited under rules of International Humanitarian Law despite its obligation to do so as a party to the conflict.

The mix of combatants and civilians that the Security Forces had to deal with could be categorized as follows:

1. LTTE combatants in uniform.

2. LTTE combatants who had shed their uniforms thereby violating the obligation for distinction as required by rules of International Humanitarian Law.

3. Civilian who had volunteered to be combatants.

4. Civilians who were coerced into directly participating in hostilities.

5. Bona fide civilians and hors de combat.

According to this categorization except for category 5 the rest lose their Right to Protection as combatants under rules of International Humanitarian Law.

It was within this mix of humanity that the Security Forces had to fulfill their obligation of Military Necessity. Under the circumstances, principles of distinction and proportionality that is the bedrock of International Humanitarian Law cannot be applied because if distinction as who was a combatant and who was a civilian is not possible, principles of proportionality too lose their relevance. In such a context, the charge of "indiscriminate attacks" cannot be established by anyone reviewing the evidence of witnesses. Such assessment is not possible even by anyone who happened to be an eyewitness, due to blurring of distinctions between civilians and combatants.

In that background, attempts to sensationalize the number of dead civilians would only be an exercise in fantasy because no one has the insight to ascertain who is a civilian and who was a combatant. Those who have attempted to give estimates of the dead civilians do not realize that by doing so they could be dishonouring those who committed their lives in the cause to establish the separate State of Tamil Eelam. They certainly would not want to be counted as civilians because they were answering the call of their leaders to fight the good fight for a separate State at Vaddukoddai in 1976.

What is of relevance under the circumstances presented was how to persuade the civilians who wished to leave the conflict zone to do so, in order that the sovereignty and territorial integrity of the State could be restored, which are the declared obligations of any Democratically elected responsible Government and endorsed in several international instruments starting with paragraph 7 of Article 2 of the Charter of the United Nations and Article 3 of Protocol II of 1977.

Although Article 3 of the International Convention against the taking of hostages, adopted by the UN General Assembly in 1979 does not apply to non-International Armed Conflicts, the general principle that any State Party should "take all measures it considers appropriate to ease the situation of the hostages", has relevance. Article 3 of the Additional Protocol II, entitles State Parties to take "all legitimate means to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State".

Given the extraordinary circumstances of the situation, the decision as to what measures would qualify to be considered "appropriate to ease the situation of the hostages", or what would amount to "all legitimate means" to ease the situation of those who wanted to leave the conflict zone and restore the territorial integrity of the State, would have been entirely subjective, and made on the exigencies of the situation What was "legitimate" or what was "appropriate" could only be determined by those directly engaged in the Separatist Armed Conflict in the heat of battle, and on the spur of the moment due to the absence of Rules of Engagement to guide them. Attempts to judge the strategies adopted after the fact would only be valid if the circumstances that had prevailed during the final stages could be recreated. Attempting to pass judgment on the basis of witnesses whose credibility has proven to be questionable would be misleading and counter-productive. That the measures adopted were appropriate is evident from the fact that nearly 300,000 civilians were saved and the territorial integrity of the State restored.

To be continued

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