The Case against Sri Lanka (I)
The Ban Ki Moon panel report - Part 7April 24, 2011, 7:24 pm
(Continued from Saturday)
We continue today, our serialization of verbatim excerpts from the Ban Ki Moon report. What follows are sections of the report pertaining to the legal case being made against Sri Lanka by the panelists.
D. Alleged violations by the Government of Sri Lanka
192. Chapter III identified five categories of credible allegations concerning conduct by the Sri Lankan Government. This section lays out the Panel’s assessment of each category of allegation for the underlying legal violation.
1. Killing of civilians through widespread shelling
(a) Common Article 3 of the Geneva Conventions
193. In terms of paragraph (1)(a) of Common Article 3, i.e. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, credible allegations point to the murder of civilians in widespread shelling of an indiscriminate nature by the SLA. These include attacks in the three No Fire Zones. In terms of whether indiscriminate shelling may amount to murder, international jurisprudence accepts that "where a civilian population is subject to an attack such as an artillery attack, which results in civilian deaths, such deaths may appropriately be characterized as murder, when the perpetrators had knowledge of the probability that the attack would cause death." The credible allegations also point to murder insofar as information, such as the Channel 4 videos, indicates that the SLA executed unarmed LTTE cadre who were taken into custody, particularly during the final days of the war.
(b) Requirement of distinction between combatants and civilians
194. International humanitarian law provides that "the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may be directed only against combatants and must not be directed against civilians" (Rule 1, ICRC Study). Civilians are defined as "anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict". In cases of doubt as to the status of a person, that person shall be considered a civilian.
195. The credible allegations indicate that the Government of Sri Lanka did not respect the fundamental principle of distinction. The Government stated that its military operations in the Vanni yielded zero civilian casualties, when credible estimates of civilian casualties are in the tens of thousands; it also provided vastly low estimates of civilians trapped in the conflict zone. Together these indicate that it associated many or most people inside the conflict zone with the LTTE and thereby failed to take account of this bedrock principle.
(c) Ban on attacks on civilians or civilian objects
196. International humanitarian law prohibits attacks on civilians and civilian objects. Attacks may be directed only against military objects and combatants (Rule 7, ICRC Study). There is an "unconditional and absolute prohibition on the targeting of civilians in customary international law". This norm is the most fundamental of those flowing from the principle of distinction. In addition, parties may not direct an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities (Rule 35, ICRC Study). In regard to the presence of the LTTE in the proximity of civilians in the NFZs, international tribunals, including the ICTY, have clarified that the ban on attacks against civilians protects a population that is "predominantly civilian", and "the presence within the civilian population of individuals who do not come within the definition of civilian [i.e. combatants] does not deprive the population of its civilian character.
197. In the case of Sri Lanka, it is important to consider the mental element of this prohibition from the context of the law on individual responsibility. Most significantly, the law does not prohibit only attacks in which the attacking party’s sole intent is to kill civilians deliberately. Reasoning by analogy from the First Additional Protocol, which defines the war crime of making civilians the object of attack in international armed conflict, requires that such a prohibited attack on civilians must be undertaken "willfully". According to the ICRC’s official commentary on the Protocol, "the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (criminal intent’ or malice aforethought’)," The ICRC’s authoritative jurisprudence has interpreted a "willful" attack to also encompass an attack that is reckless regarding the impact on civilians.
198. With respect to the determination of such intent to attack civilians, whether deliberately or recklessly, the ICTY has stated that: "the intent to target civilians can be proved... from direct or circumstantial evidence. There is no requirement of the intent to attack particular victims; rather it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack. Whether the attack was directed against civilians can be inferred on a case-by-case basis from numerous factors, including the methods used in the attack, the distance between the victims and the source of fire and the number and appearance of the victims. Moreover, the ICTY has held that "indiscriminate attacks, that is to say, attacks that strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians." In the same way, "certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack".
199. As for any argument that the SLA did not intend to make the civilian population the object of attack, but that its attacks were aimed at the LTTE, an attack remains unlawful if it is conducted simultaneously at a lawful military object and an unlawfully-targeted civilian population. The SLA possessed and operated weapons and intelligence systems, in particular UAVs, that enabled lawful targeting, and the Vanni Commander and other Government officials received numerous communications to notify them when the SLA was striking civilian targets. In addition, with respect to hospitals, the law is clear that the possible presence of wounded LTTE in some hospitals does not transform those hospitals into legitimate military targets - they remain protected civilian objects,
200. It is thus clear to the Panel that credible allegations point to a violation of the ban on attacks directed against civilians insofar as the SLA, whether deliberately or recklessly, attacked civilians situated in the NFZs, as well as other civilian objects, such as hospitals and other humanitarian objects, including food distribution lines. In addition, the widespread shelling that is credibly alleged, notably across the succession of NFZs where the civilian population went at the Government’s urging, also points to a violation of the customary law rule that prohibits attacks, the primary purpose of which is to spread terror among civilians (Rule 2, ICRC Study).
(d) Ban on Indiscriminate or disproportionate attacks against civilians
201. International humanitarian law prohibits indiscriminate attacks, generally considered to be those:
"...which am not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction (Rules 11-13, ICRC Study)".
202. Credible allegations point to a violation insofar as the SLA employed artillery in a manner that did not target specific military objectives but struck civilians without distinction, including within the self-declared NFZs and civilian objects such as hospitals and food distribution lines. The alleged use of heavy weapons in respect of target areas heavily populated by civilians, or the widespread use of artillery in those areas, might itself be indiscriminate.
203. The law also prohibits "launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" (Rule 14, ICRC Study). This norm prohibits the disproportionate use of force defined in terms of anticipated excessive civilian casualties. While the Panel does not have information on all incidents, credible allegations suggest numerous violations of this provision insofar as the attacks on the NFZs were broadly disproportionate to the military advantage anticipated from such attacks. The Government’s repeated declaration that it had ceased using heavy weapons in these NFZs points to awareness that such usage could be considered disproportionate. Broadly speaking, once both the civilian population and the LTTE were confined to the very limited spaces of the second and third NFZs, the LTTE was no longer mobile as an armed force, and more precise means to defeat the LTTE than barrages of widely-spread artillery and mortar attacks could and should have been employed in order to ensure respect for international humanitarian law.
(e) Requirement of precautions before and during attacks
204. International humanitarian law requires parties to take all feasible precautions to avoid or minimize civilian casualties, including through verification that targets are military objectives, choice of means and methods of warfare to minimize civilian casualties, and if circumstances permit, through effective advance warning (Rules 15-20, ICRC Study).
205. Credible allegations point to a violation of this provision insofar as they indicate that the Armed Forces did not provide any or sufficient advance warning of attacks to the civilian population, including attacks on military targets that would have an impact on civilians. The leaflets that were periodically distributed in the Vanni did not constitute sufficient precautions for specific attacks. In addition, the Government’s instructions for civilians to move into the NFZs, only to be subsequently shelled by the SLA, disregarded this rule and in fact amounted to a cynical manipulation of it.
(To be continued tomorrow)
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