by Dr. Parasaran Rangarajan, 'International Law Journal of London,' August 27, 2014
Sri Lanka may have given evidence against itself in the larger context of the “genocide” of Tamils in 2009, a widely accepted phrase in the legal community for what happened when the Sri Lankan Armed Forces bombed a “No Fire Zone” killing up to 75,000 Tamil civilians including children, women, and the elderly in just 3 months according to United Nations (U.N.) reports[1].They say a picture speaks a thousand words and in this case, it is true as the Office Of The High Commissioner For Human Rights (OHCHR) at the United Nations is conducting a probe. This is a photo, courtesy of the Sri Lankan Defence Ministry[2] as stated in the picture, which clearly proves several war crimes and the intent or mens rea for genocide.
Realising that the “red” on the map is Liberation Tigers of Tamil Eelam (LTTE) held areas, we ask a very simple question; where has the government of Sri Lanka put its “No Fire Zone” for Tamil civilians? It seems it is right in the middle of the LTTE held area.
The logical question would be why didn’t the government of Sri Lanka put its “No Fire Zone” in the south where Tamil civilians would be safer as it has a responsibility to protect civilians during war?
Ask a child where a government should place a safe zone for civilians; in the middle of the war area or somewhere far from it? Now, what can government of Sri Lankan officials respond when that question is answered? There can only be one answer to this and that answer is clear intention to kill these civilians. United Nations officials from the Nobel Peace Prize nominated documentary “Sri Lanka Killing Fields” stated the same.
There was a complete disregard for human life in this case and at the very least, these were “crimes against humanity” but “genocide” would be the better term as there were pre-calculated efforts to create a “No Fire Zone” in the middle of an LTTE war zone which contradicts each other. Here, we have the intent to destroy this area which gives us the intent to destroy an ethnic or national population; Tamils.
It is very clear from the images that the Sri Lankan Ministry of Defence has provided us that these areas would be destroyed as the 55th Division came in from the north near Palamattalam, 53rd Division on the A35 Highway, 58th Division on the left of the A35 Highway along with Task Force 8 on the right, and the 59th Division from the south after crossing Mullaitivi.
This was a complete “encirclement” of a civilian zone which is in breach of Article 17 of the “4th Geneva Conventions Relative To The Protection Of Civilians During Time Of War”[3] as there is a duty to evacuate when such a situation occurs. This is also a violation of responsibility to evacuate civilians under Article 29 of the “4th Geneva Conventions Relative To The Protection Of Civilians During Time Of War” which places responsibility on a state actor to do so for “protected persons” which include non-nationals of Sri Lanka such as any United Nations official or other foreign nationals who were still in the area capturing these horrific crimes.
Other than the fact that the government of Sri Lanka intentionally bombed the “No Fire Zones” consisting of Tamil civilians proving the mens rea for genocide, we have another war crime committed by the government of Sri Lanka; failure to provide air-raid shelters when aircrafts are being used. In an article detailing the actions of the Sri Lankan Armed Forces, it stated;
“Last Tuesday morning the LTTE had been transporting a 130mm artillery gun in the general area northeast of Puthukkudiyiruppu. An Air Force UAV that had been conducting aerial surveillance over Puthukkudiyiruppu outside the civilian no fire zone had first spotted this and had sent the images to its command centre. Based on the intelligence received, Israeli built K-fir jets attached to the 10th air force squadron were scrambled. Having observed the target the jets had taken a precision strike resulting in both the vehicle and the artillery gun being destroyed.”
Here, the government of Sri Lanka has used aerial vehicles in its war against the LTTE. When it UAV’s and Israeli K-fir jets are being used, the government has a duty to provide air-raid shelters in the “No Fire Zones” which were not given. This is in violation of Article 88 of the “4th Geneva Conventions Relative To The Protection Of Civilians During Time Of War”. In addition, there were many reports that the Sri Lankan Air Force were bombing the LTTE previously so there certainly should have been the appropriate cover given to civilians. Failure to do so constitutes a war crime.
Going back to the choice of location of the “No Fire Zone”, the very fact that the government of Sri Lanka placed the so called “No Fire Zones” in LTTE held areas when they were on an all out offensive against the LTTE proves that there was intent to bomb the entire area including the “No Fire Zones” which the government intentionally moved civilians into – pre-meditated genocide.
Additionally; reports surfaced everyday that thousands of civilians had died forms the knowledge of “murder” of civilians occurring, which is a “crime against humanity” under Article 7 of the Rome Statute[4]. Proceeding to bomb with this knowledge anyway which constitutes intent for “genocide” under customary international law recognising the dictums and opinions of the International Criminal Tribunal For The Former Yugoslavia (ICTfY) and International Criminal Tribunal For Rwanda (ICTR).
Previously, I had written an article for the South Asian Analysis Group titled “Sri Lanka: Was It A Genocide” [5] where I cited the United Nations Panel of Expert Reports (POE) of 2011 [6] in defining “extermination” as genocide as the report on pages 68-69 stated:
“The credible allegations support the finding of the crime against humanity in so far as the conditions imposed on civilians in the final months in the NFZ’s (No Fire Zones) were calculated to bring about the destruction of a significant part of the civilian population.”
This is word for word match with the definition of genocide given to us by Article 2 (c) of the “1948 Convention On The Prevention And Punishment Of The Crime Of Genocide” [7], Article 6 of the Rome Statute, and customary international law.
In addition, pages 47-48 of the report stated that the Sri Lankan Army executed LTTE combatants who were waving white flags signaling surrender and also used chemical bomb munitions or white phosphorus against the civilians in the “No Fire Zones”:
“There are allegations that the SLA (Sri Lankan Army) used cluster bomb munitions or white phosphorous or other chemical agents against civilian, particulary around the PTK and NFZ’s (No Fire Zones). Accounts refer to large explosions, followed by smaller explosions consistent with the sound of a cluster bomb. Some wounds in the various hospitals are alleged to have been caused by cluster munitions and white phosphorous.”
The execution of surrendered combatants is in violation of Article 47 of the 4th Geneva Conventions and Article 23 (c) of the 1907 Hague Conventions [8] as an attack against “persons ad-hors” is prohibited as war crimes. The use of chemical weapons such as cluster munitions or white phosphorous has long been banned by the “United Nations Convention Against Chemical Weapons (CWC)” [9] and Article 8 as well as Article X of the “1925 Geneva Protocol For Prohibition of Use in War of Asphyxiation, Poisons, or Other Gases, and Of Bacteriological Methods of Warfare”[10].
In a very simple comparison, the International Criminal Tribunal for the former Yugoslavia (ICTfY) found that the act of Serbian General Radko Mladic overrunning a U.N. “Safe-Area” and executing at least 7,500 Bosniak men and boys who were sheltering with Dutch peacekeeping troops was legally “genocide”.
Many eminent political figures including the former United Nations Assistant-Secretary among other judges of the Dublin Tribunal, former Financial and External Affairs Minister of India Shri. Yashwant Sinha, the Attorney General and Minister for Human Rights of Mauritius Jaya Valayden, the Deputy Prime Minister of Mauritius Rama Sithenen, former Prime Minister of India Smt. Indira Gandhi, former Attorney General of the U.S. Ramsey Clark, former European Union (E.U.) Parliament Member Robert Evans, former U.S. Secretary of State Madeline Albright, and U.S. Presidential Special Envoy to Sudan Richard S. Williamson have agreed that this was a genocide.
Former U.S. Secretary of State Madeline Albright and U.S. Presidential Special Envoy to Sudan Richard S. Williamson also stated that the Eelam Tamils should be granted “remedial sovereignty” just as Kosovo was in her report regarding the Responsibility To Protect (R2P) Doctrine which Professor Richard Falk, former United Nations Special Rapporteur For Palestine, along with the current United Nations Secretary-General had stated the United Nations failed to uphold when it came to Sri Lanka in an earlier interview published in the first volume of the International Law Journal of London.
These facts cannot be overlooked or avoided as the United Nations investigates Sri Lanka for violations of international law as from simple pictures, we form the mens rea for genocide and prove the commission of several war crimes; the failure to evacuate civilians when an area is encircled as per Article 17 of the “4th Geneva Conventions Relative To The Protection Of Civilians During Time Of War” and failure to provide air-raid shelters when aircrafts were being used in war which is in violation of Article 88 of the same convention.
In addition, when there are violations of international humanitarian law (IHL) such as the 4th Geneva Conventions, under Article 29, the government of the entire member-State, not just the individuals must be held accountable so it is more than clear that the State of Sri Lanka is guilty of war crimes including genocide.
In summary, the following war crimes including genocide, crimes against humanity, and violations of international law have occurred:
- Failure to provide air-raid shelters in violation of Article 88 of the “4th Geneva Convention Relative To The Protection Of Civilians During Time Of War”.
- Failure to evacuate civilians when surrounded by troops in violation of Article 17 of the “4th Geneva Convention Relative To The Protection Of Civilians During Time Of War”.
- Failure to protect civilians in general in violation of Article 29 of the “4th Geneva Convention Relative To The Protection Of Civilians During Time Of War”.
- Violation of Article 2 (c) of the “1948 Geneva Convention On The Prevention And Punishment Of The Crime Of Genocide” proved from the “2011 United Nations Panel of Expert Report On Accountability In Sri Lanka”.
- Violation of Article 7 of the Rome Statute of the International Criminal Court.
- Violation of Article 23 (c) of the 1907 Hague Convention as Liberation Tigers of Tamil Eelam (LTTE) combatants with a white flag were killed according to the “2011 United Nations Panel of Expert Report On Accountability In Sri Lanka” known as the “White Flag Event”.
- Violation of the “United Nations Convention Against Chemical Weapons (CWC)” as chemical weapons and white phosphorous was used against civilians according to the “2011 United Nations Panel of Expert Report On Accountability In Sri Lanka”.
- Violation of the Article X and Article 8 of “1925 Geneva Protocol For Prohibition of Use in War of Asphyxiation, Poisons, or Other Gases, and Of Bacteriological Methods of Warfare” based on the report stating chemical weapons and white phosphorous was used against civilians.
- Violation of customary international law and international humanitarian law (IHL) citing dictums and legal opinions of judges from the International Criminal Tribunal For The Former Yugoslavia (ICTfY).
References:
1. The U.N. Versus Sri Lanka, 2013 The Wall Street J., Mar. 23, 2013 at (2013), http://online.wsj.com/news/articles/SB10001424052702304636404577297220014224602
2. Asif Fuard, Tigers Caught in a Noose, 2009 The Sunday Times, Apr. 5, 2009 at (2009), http://sundaytimes.lk/090405/News/sundaytimesnews_19.html .
3. Convention (IV) Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949., Int’l Committee of Red Cross , http://www.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5
4. Rome Statute, 2002 Int’l Crim. Ct. (2002), http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
5. Dr. Parasaran Rangarajan, Sri Lanka: Was It a Genocide?, 2014 S. Asia Analysis Group, July 21, 2014 at (2014), http://www.southasiaanalysis.org/node/1571#_ftn17.
6. United Nations, Report of the Secretary-General’s Panel of Expert on Accountability in Sri Lanka (2011), http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf.
7. United Nations, 1948 Convention on the Prevention and Punishment of the Crime of Genocide (1948) [hereinafter Genocide Convention], https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf.
8. International Committee Of Red Cross, 1907 Hague Conventions (1907), http://www.icrc.org/ihl/INTRO/195.
9. Organsation For The Prohibition Of Chemical Weapons, United Nations Convention Against Chemical Weapons, http://www.opcw.org/chemical-weapons-convention/articles/.
10. International Committee Of Red Cross, 1925 Geneva Protocol for Prohibition of Use in War of Asphyxiation, Poisons, or Other Gases, and of Bacteriological Methods of Warfare, http://www.icrc.org/ihl/INTRO/280?OpenDocument.
Photo credits
1. Sri Lankan Ministry of Defence – Indiramurthy Jayasuriya. No Fire Zone. The Sunday Times. Web.
2. United Nations. Craters Of “No Fire Zones”. UNITAR/UNOSAT. Web
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