MEMORANDUM ON SRI LANKA - PART II
HUMANITARIAN LAW RELATING TO THE CONDUCT OF WAR

PART II - Return to PART I

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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 attacked 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 without direct access to the area 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 of State 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 should acknowledge the application of the law of self-determination to this conflict and adapt its foreign policy accordingly. Even if the Untied States fails to fulfill its obligations under the law of self-determination, the United States should at least fulfill its obligations under the rules of civil war. Accordingly, it should 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.

Respectfully submitted,

Karen Parker
Attorney at Law

3 March 1997

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