02 November 2015

The Last Stages of the War

Written by

I. Introduction

A. Purpose

1. This paper aims to provide guidance on the key rules of international humanitarian law (IHL) that were applicable to the Sri Lankan civil war, which ended on 19 May 2009.1 It sets out the core principles of IHL, with which both the Sri Lankan Security Forces (SFs) and the Liberation Tigers of Tamil Eelam (LTTE) were required to comply.

2. Since the end of the civil war, various international and domestic bodies have looked into questions of IHL and international human rights law (IHRL) that have arisen in relation to the Sri Lankan civil war. In 2011, a United Nations (UN) Panel of Experts found credible allegations that both sides committed violations of IHL and IHRL.2 The Lessons Learnt and Reconciliation Commission (LLRC), established by the Sri Lankan Government, addressed some of these alleged violations.3 Following these two inquiries, international pressure for accountability continued to increase. As a result, in 2014, the UN Human Rights Council (UNHRC) mandated the UN Office of the High Commissioner for Human Rights (OHCHR) to conduct a comprehensive investigation into violations that occurred after 2002.4 The same year, the Sri Lankan Government expanded the mandate of its Presidential Commission of Inquiry (Paranagama Commission) to examine a broad range of alleged violations of IHL and IHRL.5 The Report of the OHCHR Investigation on Sri Lanka (OISL) was published in September 2015.6 The Paranagama Commission publicly released the Report on its second mandate (Paranagama Report) in October 2015.7

3. Several of these investigations and inquiries have reached dramatically different findings of both fact and law. As a result, scholars, politicians, and civil society groups have engaged in a heated debate about what actually happened during the final months of the war (between September 2008 and May 2009) and whether these alleged facts may amount to violations of IHL. A debate as to the facts may be understandable at this stage. However, there appears to be unwarranted confusion as to the nature and operation of the IHL principles that applied to the Sri Lankan armed conflict.

4. This paper seeks to address this confusion by providing clear, objective guidance on some of the basic rules of IHL that applied during the final months of the conflict. While certain factual questions may warrant greater investigation, for the most part, the legal principles that apply to those facts are clear and settled.

5. In addition, this paper seeks to provide guidance on how to apply IHL rules to allegations or incidents. As is emphasized below, IHL rules are meant to regulate specific conduct and decision-making in the battlefield. Compliance with these rules must therefore be assessed with respect to specific allegations, attacks and incidents.

B. Scope and methodology

6. This paper considers basic rules of IHL relevant to the final stages of the Sri Lankan armed conflict (September 2008 to 19 May 2009). Although IHL was certainly applicable to a longer time period in Sri Lanka, the paper focuses on the final stages of the armed conflict because substantial debate has emerged regarding the conduct of hostilities at this time. Furthermore, civilian casualties were also at their highest in these final months of the conflict.

This paper sets forth basic rules of IHL of particular relevance to the final months of the war. The paper then poses a series of questions and answers. These questions and answers address specific issues, which seem to have led to confusion in the popular Sri Lankan discourse and in various domestic and international reports. This paper does not give any report or legal narrative prominence over another and refers to customary international law (CIL) to explain what the law actually states with respect to these questions. The paper then analyses the legal reasoning adopted in the recently released Paranagama Report in light of the applicable law.

7. In the course of the analysis, this paper uses factual scenarios and case studies as examples to place the law in context and explain how IHL rules must be applied to specific allegations. These examples have not been chosen to make factual claims about what happened during the final stages of the civil war. Factual scenarios used to illustrate legal principles draw on open-source information (such as official government websites and publications, UN reports and non-government organisation [NGO] reports), as well as confidential witness accounts and other evidentiary material (including satellite imagery).

8. The Public Interest Advocacy Centre‘s (PIAC) International Crimes Evidence Project (ICEP) has provided counsel, advice and analysis to SACLS in the process of writing this paper. ICEP‘s goal is to collect, preserve and analyse evidentiary material in a way that can contribute to justice and accountability. By providing analysis of witness statements and other evidentiary material, as well as legal review, ICEP has aimed to assist SACLS in explaining the applicable law in the Sri Lankan civil war.

9. This paper refers to some witness accounts documented by ICEP. Those accounts are referred to using a unique identification letter in order to protect witness identity. Some of these accounts have been referred to in previous ICEP publications, and some have not. Access to these accounts, for the purposes of this paper, has been restricted to PIAC staff. SACLS has relied on ICEP‘s analysis of the witness accounts they have collected.

10. SACLS also acknowledges the support and assistance of Mytili Bala in the preparation and writing of this paper.

C. Relevant factual background

11. Since the late 1970s or early 1980s, Sri Lanka has been ravaged by a civil war between the LTTE and the SFs. The LTTE was an armed group fighting for a separate Tamil state in the Northern and Eastern Provinces of Sri Lanka. As a result of the LTTE‘s use of suicide bombings and assassinations against military and civilian targets, it was proscribed as a terrorist organization by a number of states.8 A ceasefire was brokered by Norway in 2002 but during this time, both sides strengthened themselves militarily, until the ceasefire collapsed in 2006 and fighting re-commenced.9

12. The SFs launched their final offensive in September 2008. On 2 January 2009, they captured Kilinochchi, the LTTE‘s de facto capital.10 From January to May 2009, the conflict zone shrank to a sliver of land in the north-east of Sri Lanka (see maps below).11

THE LAST STAGES OF THE WAR CLARIFYING THE APPLICATION OF IHL 1

Jan. 2009. Credit: Defence.lk

 THE LAST STAGES OF THE WAR CLARIFYING THE APPLICATION OF IHL 2

May 2009. Credit: Defence.lk

13. During the final offensive, the SFs unilaterally declared three successive ‗No-Fire Zones‘ (NFZs) as civilian safe areas. The first was declared on 20 January 2009,12 the second on 12 February 2009,13 and the third on 8 May 200914 (see map below). Each NFZ was smaller in size than the last, and the Government actively encouraged civilians to move to these areas, telling them they would be provided with security and basic amenities.15 The Sri Lankan Government declared victory over the LTTE on 19 May 2009.16

THE LAST STAGES OF THE WAR CLARIFYING THE APPLICATION OF IHL 3

Credit: Crisis Group

II. Legal framework

14. All parties to an armed conflict must abide by IHL, as set forth in relevant treaties and CIL. The Sri Lankan armed conflict is widely characterized as a non-international armed conflict (NIAC) for the period considered in this paper.17

15. In terms of the parties‘ treaty-based IHL obligations, Sri Lanka is party to the four Geneva Conventions of 1949.18 Common article 3 to the four Geneva Conventions, applies in NIACs. While Sri Lanka is not a party to Additional Protocol II (1977) to the Geneva Conventions (AP II) that governs NIACs, many of its articles are consistent with the customary rules applicable to NIACs.19 In particular, the IHL rules discussed in the sections that follow form part of the customary law rules applicable in NIACs, and therefore apply to the military operations conducted by the SFs and the LTTE.

16. In situations of armed conflict, IHRL continues to apply alongside IHL.20 Sri Lanka is a party to several major IHRL conventions, which have provisions that are relevant in the circumstances.21 Additionally, when serious violations of IHL or IHRL are committed, individuals responsible may be held criminally liable for war crimes or crimes against humanity. 22 This paper, however, focuses exclusively on relevant obligations of both sides under IHL and does not deal with human rights violations or international crimes.

III. Questions of IHL

A. Basic rules of IHL
1. Prohibition of direct attacks against protected persons and protected objects

17. IHL requires parties to an armed conflict to distinguish between on the one hand protected persons and objects and on the other legitimate military targets; and to only direct attacks against the latter. This is a fundamental principle of IHL.

18. As this paper clearly sets out, IHL requires the parties to the conflict to do everything feasible in the circumstances to distinguish protected persons and objects from legitimate military targets, even if it is difficult to do so. As will be discussed, alleged violations of the principle of distinction must be assessed on a case-by-case basis, looking at the situation on the ground at the time of a particular military attack and not based on a general assessment of the composition of the population within the conflict zone.

a. Distinction between civilians/civilian objects and legitimate military targets

i. The rule

19. IHL requires that ‗[t]he parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.‘23

20. Military objectives are ‗objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.‘24 Civilian objects are objects that do not constitute a military objective.25

21. IHL also requires that ‗parties to an armed conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.‘26

22. Under IHL, only members of the armed forces are combatants. Civilians are those who are not combatants. They must not be directly targeted. They only lose their immunity from attack if, and for such time as, they directly participate in hostilities.27

23. The ICRC‘s Interpretive Guidance on the Notion of Direct Participation in Hostilities (ICRC Interpretive Guidance) identifies three cumulative elements to evaluate if a civilian is directly participating in hostilities: (a) the civilian performs an act that is ‗likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack‘ (threshold of harm);28 (b) there is a direct causal link between the civilian‘s act and the harm likely to result (direct causation);29 and (c) the civilian‘s act is connected to the hostilities between the parties (belligerent nexus).30 If any one of these elements is missing, the civilian cannot be considered to be directly participating in hostilities, and so the civilian may not be lawfully attacked.

24. Civilians directly participating in hostilities only do so ‗on a merely spontaneous, sporadic, or unorganized basis‘.31 Members of organized armed groups, on the other hand, belong to the group and as such their function within the group could be regarded as directly participating in hostilities. For this reason, according to the ICRC Interpretive Guidance, they may be considered as performing a continuous combat function for the group involving their direct participation in hostilities.32 According to this interpretation, members of organised armed groups would cease to be civilians for as long as they remain members of the organised armed group. For ease of reference, this paper refers to combatants and members of organised armed groups performing a continuous combat function as fighters.33

ii. Application

If civilians assisted the LTTE by, for example, performing sentry duties and transporting food and ammunition to the frontlines, did they temporarily lose their immunity from attack?

There is information suggesting that some civilians who remained in the NFZs assisted the LTTE in its war effort.34 In situations where civilians directly participated in hostilities, they would have been legitimate military targets for such time as they were participating. Whether civilians directly participated in hostilities at the time of the attack must be established on a case-by-case basis.

For example, in the event civilians performed sentry duties for the LTTE‘s defence, they likely directly participated in hostilities: their duties would have adversely and directly affected the SFs‘ military operations by giving the LTTE advance notice of imminent attacks. Similarly, if civilians transported ammunition to the LTTE frontlines, they likely directly participated in hostilities, by providing the LTTE with the means to sustain its armed operations against the Sri Lankan Army. In both these cases, the civilians‘ conduct would likely have been sufficiently connected to the hostilities between the SFs and the LTTE (belligerent nexus) to render them lawful targets. In situations where people assisting the LTTE war effort are found to satisfy the criteria for direct participation in hostilities, they would be legitimate military targets for such time as they so participated.

In contrast, it is unlikely that the delivery of food rations to LTTE forces would have constituted direct participation in the absence of a direct causal link between the delivery of food and the infliction of harm.35 Accordingly, civilians whose assistance to the LTTE fell short of direct participation in hostilities remained protected from attacks.

iii. The Paranagama Report

25. The Paranagama Report correctly states that the notion of ‗direct participation in hostilities‘ is not limited to engagement in armed activities,36 and could involve other types of activities. In particular the Report notes that ―while the supplying of foodstuffs to combatants and the delivery of humanitarian relief do not constitute participation in hostilities, the supply and transport of weapons and ammunition to combatants may amount to direct involvement in hostilities‖.37

26. However, the Report does not clearly articulate which specific criterion the Commission used in order to determine whether a specific activity amounts to direct participation in hostilities.38 The Commission makes no reference to the ICRC study on direct participation in hostilities and the three-layered test proposed therein, instead stating ―there is as yet no clear and uniform definition of ‗direct participation in hostilities‘‖.39 It also fails to justify its conclusion that civilians used as a ‗buffer‘ should be deemed to be directly participating in hostilities. As explained in the section on human shields below— and recognized by the Commission itself40—legal experts are divided on this question.

b. Direct attacks on civilians

i. The rule

27. IHL prohibits parties to a conflict from making the civilian population as such, as well as individual civilians, the object of an attack.41

28. Parties to a NIAC must do everything feasible to verify that targets are military objectives.42 In cases of doubt, civilian status must be presumed.43

ii. Application

Was the SFs obligation to distinguish between civilians and the LTTE, when conducting an attack, altered if such a distinction was difficult to make on the ground?

Even in circumstances where it was very difficult to distinguish between civilians and fighters, the SFs were obliged to take all feasible steps to verify that every attack was directed at fighters and military objectives. The SFs had the sophisticated capabilities to do this, as is outlined in more detail below.

The available evidentiary material indicates that, in early 2009, the vast majority of LTTE fighters were not wearing LTTE uniforms,44 making it difficult for the SFs to distinguish between fighters and civilians. In addition, LTTE artillery appears to have been extensively camouflaged,45 also making its identification difficult. Nonetheless, the SFs were still obliged under IHL to do everything feasible to verify that each and every attack was directed at fighters or military objectives, and not at civilians or civilian objects. What was feasible under the circumstances depended on the SFs‘ capabilities and operating procedures in intelligence gathering, surveillance, target acquisition and battle damage assessment. Reports indicate that SFs‘ capabilities (including Unmanned Aerial Vehicles [UAVs] and other surveillance aircraft)46 were sophisticated and employed extensively.47 Witness accounts suggest that surveillance aircraft were extensively flown over the Vanni, and by the time the civilian population had been displaced to the Mullivaikkal peninsula, the SFs often had a direct line of sight to the areas that were being attacked by direct- and indirect-fire weapons. According to reports, the SFs were able to identify densely populated civilian areas, as well as hospitals.48 They were also in a position to identify some of the military targets, such as sites from which the LTTE was firing artillery.49 In addition to its surveillance capabilities, the operational procedures and technologies employed by the Sri Lankan Army and Sri Lankan Air Force assisted them to verify targets and achieve greater accuracy in an attack.50 However the assessment may have been complicated in instances where civilians might have been directly participating in hostilities. As explained above, if an individual civilian‘s actions meet the threshold of direct participation in hostilities, they lose their immunity from attack for the duration of such participation.

The SFs were not relieved of their obligation to distinguish between civilians and fighters simply because it was difficult to do so. Whether the SFs violated the principle of distinction must be assessed on a case-by-case basis taking into account the circumstances prevailing at the time, including the SFs‘ relatively sophisticated capabilities and procedures.

iii. The Paranagama Report

29. The Paranagama Commission mentions the difficulties in distinguishing between civilians and LTTE fighters who were not wearing uniforms, and between civilians and those who may have been directly participating in hostilities as voluntary human shields.51 It refers, for example, to the ―undisputed fact that many LTTE cadres did not wear uniforms, often making it impossible for the SLA to draw clear distinctions between civilians and LTTE personnel.‖52 However, the Commission does not reference the obligation to presume civilian status in case of doubt. Instead, the Commission is of the view that ―reasonable commanders in their same position would have thought necessary and prudent to consider‖ for their targeting decisions and for the proportionality assessment: the LTTE‘s strategy to use the civilian population to protect itself, the melting of LTTE fighters into the civilian population, various reports indicating that LTTE forces fired artillery from civilian areas or near civilian installations, the resolve of the government to end the conflict, as well as other general factors and observations.53

30. This statement evidences a misunderstanding of how a military commander ought to operationalize IHL rules in his decision-making. It invites the taking into consideration of general conditions assumed to be prevailing in the conflict zone. These considerations are irrelevant to on-the-ground targeting decisions and the obligation to distinguish between civilians/civilian objects and lawful military targets. As explained above, a military commander ought to take concrete steps to verify that the targets of each attack are military objectives. A military commander is under no circumstances exempted from this target verification, even if the task was ―extraordinarily difficult‖54. In particular, he may not rely on an analysis of general conditions in the conflict zone in place of attackspecific target verification. Further, any doubt that arises after the target verification must weigh in favour of the protection of civilians. The Paranagama Report fails in this regard because it does not undertake the kind of evidence-based analysis of relevant facts concerning specific attacks as required by IHL, and without which, an assessment of whether any party violated the principle of distinction is impossible.

2. Prohibition of indiscriminate attacks

31. Military commanders must not launch attacks that are indiscriminate.55 As explained above, in the Sri Lankan context, the close proximity of fighters and civilians in a shrinking conflict zone rendered targeting more difficult. It is precisely in these difficult combat circumstances, that the prohibition against launching indiscriminate attacks is fundamental.

32. Indiscriminate attacks are defined as those:

(a) which are 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.56

a. Area bombardment and use of explosive weapons

i. The rule

33. An attack by bombardment is prohibited if such an attack treats several clearly separated and distinct military objectives in an area containing a similar concentration of civilians or civilian objects to a village, or town, as a single military objective.57 As such, area bombardment (for example, through the use of artillery or multi-barreled rocket launchers [MBRLs]) in a zone where civilians concentrate is considered to be an indiscriminate attack.

34. Furthermore, the use of explosive weapons with a ‗wide impact area‘ (or ‗wide area effects‘)58 should also be avoided in densely populated areas, ‗due to the significant likelihood of indiscriminate effects‘.59

ii. Application

Given that LTTE fighters were dispersed throughout the conflict zone, including the NFZs, was bombardment of the area permissible under IHL?

It is undisputed that over time, civilians and LTTE fighters were confined in an evershrinking space, with the SFs and the LTTE militarily engaging one another on multiple fronts.60 While this situation likely made it more difficult for the SFs to identify LTTE targets, it would not have relieved the SFs of their fundamental targeting obligations – in particular, not to launch indiscriminate attacks.

Even in a situation where LTTE fighters and emplacements were scattered across a wide area and were difficult to distinguish from civilians, each attack had to be directed at a specific military objective. Therefore, to comply with the prohibition on indiscriminate attacks, the SFs were required to employ means and methods that could be directed at a specific military target and whose effects could be limited. This effectively precluded attacks by bombardment involving the use of indirect fire weapons (such as artillery, mortars and MBRLs) given the high concentration of civilians in the ever-shrinking conflict zone.61 On the basis of the known capabilities of the SFs, it appears that alternative means and methods of warfare (aside from indirect fire weapons) may have been available, including precision-guided munitions deployed by aerial bombing.62

As discussed below, these obligations on the SFs did not alter the obligations on the LTTE to take all feasible precautions against the effects of an attack, including the obligation not to position their fighters and emplacements in areas where civilians were present, and to remove civilians from the vicinity of their fighters and emplacements. In addition, the LTTE was equally prohibited from resorting to area bombardment in zones with a high concentration of civilians.

iii. The Paranagama Report

35. The Paranagama Commission notes that there is no dispute that shelling into and out of the NFZs took place and that such attacks caused civilian deaths. It considered whether the available evidence gives reasonable grounds to believe that there was a government policy of indiscriminate or deliberate shelling in violation of the IHL principles of distinction and proportionality.63 While stating that further investigation of incidents of shelling is required, the Commission agrees at the outset with the conclusion of its military expert (Major General John Holmes, who was engaged by the Commission to provide an expert military opinion on certain questions)64 that ―it is not possible at this point in time, on the evidence available, to accurately state which side‘s artillery and mortars caused identified shell craters and civilian casualties.‖65

36. The Commission acknowledges that the SFs were equipped with MBRLs and recalls the indiscriminate effects of these weapons.66 Despite concluding that it is not possible to state which side‘s weaponry caused shell craters and civilian casualties, the Commission finds that the LTTE used MBRLs,67 but concludes there was ―no evidence that this Commission could find to suggest that the SFs used inherently indiscriminate weapons‖.68 The Commission fully endorses the military expert‘s opinion on this question, who assumes that had the SFs used MBRLs and heavy weaponry to shell areas densely populated with civilians and embark on an ―indiscriminate campaign of bombardment‖, the hundreds of thousands of civilians who survived the conflict zone would not have done so.69 Even assuming the accuracy of the military expert‘s estimate of civilian casualties that would have resulted from the use of MBRLs for 2 to 3 days, his argument does not appear to contemplate the possibility of a more limited use of MBRLs by the SFs than 2 to 3 days of continuous shelling into areas densely populated with civilians. The Commission‘s heavy reliance on the expert‘s speculation about civilian casualties had MBRLs been used continuously for 2/3 days, evidences a lack of rigour in the analysis and the absence of evidence in support of its conclusion.

37. The Commission also fully endorses the military expert‘s conclusion that ―in broad terms the artillery campaign was [not] conducted indiscriminately, but was proportionate to the military objective sought‖.70 This conclusion is partly based on 1) the assumption that the SFs did not use MBRLs and 2) the fact that ―there had not been allegations of indiscriminate shelling and war crimes in the previous military artillery operations that equate to the criticisms made in the last phase of the 2009 operation‖.71 The military expert finds the SFs‘ prior record to be ―indicative of a command ‗culture‘ that did not appear to espouse indiscriminate shelling‖.72 The logic of this reasoning is questionable. Even if the SFs were assumed at a given point in time to be pursuing a policy that did not endorse indiscriminate shelling, it does not follow that the identical policy was applied and followed until the end of the war.

38. In rejecting allegations of area bombardment by the SFs, the Commission relies on the ICTY Appeals Chamber decision in the Gotovina case to conclude that: The Sri Lanka military cannot be responsible for a higher margin of error than anticipated, and in the language of the ICTY Appeals Chamber ‗it could not be excluded that the shells were all aimed at legitimate military targets‘.73

39. However, the Commission misreads the Appeals Chamber decision in that case. The allowance for a margin of error greater than 200 meters means that the judges do not automatically discount the possibility that shells falling more than 200 meters from an alleged military target may have aimed at that target. Therefore, the recognition by the Appeal Chamber that the margin of error may be greater than 200 meters invites a caseby-case basis assessment of each attack taking into account conditions on the ground in order to determine whether an attack targeted a military objective or was in fact indiscriminate. Although the Commission recommends that ―Judge-led investigations‖ should take place in respect of particular incidents, and underlines the challenges in criminal investigations of specific shelling incidents,74 it nevertheless draws broad, general conclusions rejecting the indiscriminate nature of the military campaign without examining any specific incidents in the kind of detail required under IHL.

b. Prohibition of attacks that disproportionately affect civilians

40. Under IHL, military commanders are required to ensure that they do not launch attacks that may be expected to cause excessive civilian losses (in terms of death, injury and/or damage to civilian objects) in relation to the concrete and direct military advantage anticipated from that attack.

i. The rule

41. IHL prohibits parties to a conflict from 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.‘75

42. The prohibition on disproportionate attacks aims at limiting potential incidental harm to civilians and ensuring that there is a definite military advantage for each military objective pursued.

ii. Application

43. The proportionality assessment must be made in respect of an individual military attack,76 and not to the broader armed conflict as a whole. For example, International Criminal Tribunal for the former Yugoslavia (ICTY) jurisprudence provides the following examples of attacks: the shelling of a specific part of a city on a given day;77 or specific shelling incidents.78

44. The assessment refers to a ‗concrete and direct military advantage‘ meaning that the advantage must be ‗substantial and relatively close‘.79 Therefore, ‗advantages which are hardly perceptible and those which would only appear in the long term should be disregarded‘.80

45. The proportionality assessment is applied from the perspective of a reasonable military commander, based on the information available at the time of the attack. The ICTY Trial Chamber has specified that, in determining whether an attack was proportionate, it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator (for example, a military commander) making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.81

46. There are several elements that a military commander might take into account in assessing the proportionality of the attack, such as:

[Civilians‘] location (possibly within or in the vicinity of a military objective), the terrain (landslides, floods etc.), accuracy of the weapons used (greater or lesser dispersion, depending on the trajectory, the range, the ammunition used etc.), weather conditions (visibility, wind etc.), the specific nature of the military objectives concerned (ammunition depots, fuel reservoirs, main roads of military importance at or in the vicinity of inhabited areas etc.), and technical skill of the combatants (random dropping of bombs when unable to hit the intended target).82

If the stated objective of the military operation was to end 30 years of civil war against what was considered to be a brutal terrorist organisation, would the killing of as many as tens of thousands of civilians have been proportionate under IHL?

IHL sets forth rules to guide military commanders in strategic and tactical decisionmaking while ensuring the protection of civilians and others not engaged in the fighting. Accordingly, IHL rules such as the prohibition of disproportionate attacks must be applied to the planning and execution of each specific attack and not to the armed conflict as a whole.

In assessing whether a specific attack is proportionate, IHL requires military commanders to compare expected civilian losses in a given attack with the military advantage that is sought in that specific attack. The overall justification of the armed conflict itself cannot be used as the military advantage sought in an individual attack. In fact, IHL is not interested in the relative merits of each side‘s political reason for engaging in hostilities. Accordingly, ending 30 years of war against what was considered to be a brutal terrorist organisation is far too broad, remote and imprecise to be considered a military advantage under IHL. Likewise, comparing this broad goal with the total number of civilian casualties expected over an extended period of time (in this case several months) would be a gross misapplication of the IHL principle of proportionality.

Is the security of the SFs a relevant consideration in the proportionality assessment?

The question of whether and to what extent the safety of a party‘s forces is to be factored into a proportionality assessment is currently unsettled.83 However, only a few States consider the security of the attacking forces to be an integral part of the anticipated military advantage and therefore a relevant factor in the assessment of the proportionality principle.84

If the security of the attacking forces were to be taken into account as part of the concrete and direct military advantage, the extent to which this advantage could be weighed against anticipated civilian losses is unclear. What is clear however, is that the protection of the attacking forces would not override all other factors when making a proportionality assessment.85

Should the number of civilians who survived be taken into account in a proportionality assessment?

The proportionality test does not involve a comparison between the number of civilians expected to be killed and the number of civilians expected to survive an attack (or the number of civilians who actually survived). Rather, as explained above, the principle of proportionality compares the expected civilian casualties with the anticipated military advantage, which needs to be concrete, direct and military in nature.

Even if a high number of civilians was expected to survive or actually survived the attack, this cannot ‗compensate‘ for the number of civilians expected to be killed or injured as a result of the attack.

Does the uncertainty regarding the overall number of civilians actually killed in the armed conflict affect the proportionality assessment?

The overall number of civilians killed in the armed conflict does not affect the application of the proportionality assessment by military commanders, nor does it affect any subsequent assessment of whether specific attacks were disproportionate.

As the principle of proportionality is intended to guide military commanders in planning attacks that comply with IHL, it is the anticipated civilian casualties and not actual civilian casualties that are relevant to the application of the proportionality assessment. At the planning stage, commanders cannot know the number of civilians that will actually be killed in the attack they are planning. However, they can estimate this number, taking into account all the parameters of the attack including: the proximity of civilians to the military target; the means and methods of warfare that they are planning to use; visibility; and other relevant parameters.

Similarly, judges or fact-finders who seek to assess in retrospect whether military commanders complied with the prohibition on disproportionate attacks may only take into account information available to the commanders prior to the attack taking place.

iii. The Paranagama Report

47. While the Paranagama Report acknowledges the need to assess proportionality on a case-by-case basis,86 the Commission nevertheless applies the proportionality assessment without reference to specific attacks. This generalised analysis is particularly evident in para. 150 of the Report, reproduced in full below:

There is no hard and fast rule on the precise limits of acceptable civilian casualties under IHL, and each situation must be assessed on its merits. The peculiar circumstances of the final months of the conflict – which are largely not contested – were ones in which the SLA should, in accordance with the rules of IHL, be afforded a margin of latitude commensurate with the military exigencies that they encountered and taking into account the widespread unlawful use of civilian hostages by the LTTE.87 As a further example of this general analysis, the Commission states that it was satisfied that ―in terms of the military objective sought, the elimination of Prabhakaran was clearly a crucial factor in freeing Tamil civilians from LTTE captivity and in the main, the methods deployed were not disproportionate.‖88

48. As explained above, the proportionality assessment applies to specific attacks and not to the military campaign as a whole. Therefore, the Commission‘s unspecific application of the proportionality assessment is erroneous and misleading. In its analysis of the application of the principle of proportionality, the Commission takes into account ―the military objective sought and eventually achieved, by the Government‘s defeat of the LTTE in order to end the conflict once and for all‖.89 It states that the UN Panel of Experts failed to deal with ―the paramount military advantage anticipated by the SLA in the capturing or killing of the LTTE leader‖.90 The Commission then seeks to compare this objective with the overall number of civilians who died in the conflict.91 First, as explained above, the military objective considered by the Commission is neither direct nor concrete, as required under IHL. The Commission relies on the interpretation of the ICC Statute to suggest that customary international law allows for a broad interpretation of the concept of military advantage in IHL. However, contrary to the Commission‘s assertion, the term overall added in the Rome Statute is not reflective of customary international law. In fact, the ICRC specifically stated at the Rome Conference on the Statute of the International Criminal Court that the addition of the word ―overall‖ to the definition of the crime could not be interpreted as changing existing law.92 Taking into account such a broad military objective also allows the Commission to engage in a far more lenient exercise of comparison in relation to civilian losses. It states: ―Assuming the military advantage anticipated is itself high, extensive damage may not be excessive.‖93 Second, the overall number of civilian casualties is in any event irrelevant to the proportionality assessment because the IHL principle in this regard is concerned only with a comparison of the concrete and direct anticipated military objective for each attack with the civilian casualties expected from that attack.

49. By comparing the overall military objective of the SF military campaign in the last phase of the conflict with civilian casualties due to SF shelling attacks over that period of time, the Commission incorrectly applies the proportionality assessment under IHL.

3. Obligation to take precautions in attacks

50. Parties to a conflict are required to take precautions to protect civilians from the effects of military operations when they plan and conduct attacks. Although the requirement to take precautionary measures is often omitted in narratives about the Sri Lankan civil war,94 this obligation is fundamental.

a. The rule

51. IHL requires parties to an armed conflict to take feasible precautions when they plan and conduct an attack.95

52. Some precautionary measures that the attacking party must take are derived from the principle of distinction, such as the obligation to do everything feasible to verify that targets are military objectives.96 Other obligations include choosing the means and methods of warfare with a view to avoid, and in any event minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects.97 When a choice is possible between attacking several different military objectives to obtain a similar military advantage, the objective selected must be the one that may be expected to cause the least danger to civilian lives and to civilian objects.98 In addition, each party to the conflict must do everything feasible to cancel or suspend an attack if it becomes apparent that it is a prohibited attack (i.e the target is not a military objective or the attack would be indiscriminate).99 Parties to the armed conflict must also give effective advance warning of attacks that may affect the civilian population, unless circumstances do not permit.100

b. Application

Were the SFs under an obligation to issue warnings prior to each attack?

Unless circumstances do not permit, parties to an armed conflict are obliged to issue effective advance warnings of attacks that may affect civilians.

The question whether the SFs were obliged to issue warnings must be assessed on a case-by-case basis. Under IHL, warnings are only required for attacks that are likely to affect the civilian population. Hence, for example, if no civilians remain in the area under attack prior to the attack, no warning is required.101 In addition, warnings are required only when circumstances permit. Thus for instance, if surprise or speed is essential to the success of the attack or to the security of the attacking forces, warnings may not be required.102 On the other hand, in instances where the target is not very mobile or is in any event encircled, it is likely that warnings are required. The obligation to issue warnings does not depend on the likelihood that civilians will be able to move or otherwise protect themselves upon receiving warning of an attack. Thus, even in cases where the LTTE may have forced civilians to remain in the NFZs, this did not preclude the requirement of the SFs to issue effective warnings.

There is no indication that the SFs issued any warnings prior to shelling attacks in the NFZs, an area where civilians were undoubtedly going to be affected by any attack. The UN Expert Panel Report noted that the leaflets periodically dropped in the Vanni did not provide warnings as to specific attacks.103 Moreover, to the extent such leaflets instructed civilians to move into NFZs that the SFs subsequently shelled, the leaflets would not have constituted an effective warning. A case-by-case determination would be required in order to determine whether surprise and speed were an imperative in any of these attacks.

Even if the SFs did issue warnings, the warnings would not relieve the SFs of their other obligations under IHL. Nor would advance warnings by the SFs relieve the LTTE of its obligations to take precautions against the effects of attacks (see below).

The obligation to issue warnings equally applies to attacks launched by the LTTE that may have affected civilians.

c. The Paranagama Report 

53. The Paranagama Commission only makes the following general statement about the issuance of warnings prior to attacks:

―The Commission is satisfied that where the SLA issued warnings to the civilian population to protect themselves by entering a NFZ, the effect of those warnings was nullified by the movement of the LTTE into such areas, preventing the flow of civilians to a safe environment. This had the effect of making the anticipated civilian casualties essentially unknowable by the SLA whilst the LTTE was properly positioned to accurately assess the precise number of deaths or injury to civilians under their control.‖104

The Commission therefore incorrectly suggests that the obligation on the SFs to issue warnings was affected by the civilians‘ ability to act on them prior to an attack.

54. Furthermore, the Commission does not examine whether sufficient precautions were taken prior to specific attacks. It only mentions the obligation to take precautions in respect of the application of the proportionality test.105

4. Obligation to take precautions against the effects of attacks

55. The parties to a conflict must take precautions to protect civilians under their control from the effects of attacks.106 In the context of the final months of the Sri Lankan conflict, an analysis of these obligations is most relevant in connection to the LTTE‘s conduct, as the LTTE was in close proximity to thousands of civilians in the conflict zone during this period.

a. The rule

56. Parties must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks.107 These include the following two obligations:

Each party must, to the extent feasible, avoid locating military objectives within or near densely populated areas.108

Each party must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.109

b. Application

By refraining from wearing uniforms, did the LTTE fail to comply with its obligations to take all feasible precautions to protect civilians from the effects of attacks?

Witness accounts suggest that in early 2009, the vast majority of LTTE fighters were not wearing LTTE uniforms110 and in many cases, fighters had blended in with the civilian population.

IHL does not specifically prescribe that members of armed groups performing a continuous combat function in a NIAC must wear uniforms.111 Therefore the mere failure to wear a uniform is not a violation of IHL, as such.

While LTTE fighters were not necessarily obliged to wear uniforms, they would have been required under IHL to distinguish themselves from civilians in order to comply with the obligation to take precautions against the effects of an attack. This could be done through the use of distinctive signs, or by carrying weapons openly. Whether any LTTE fighter failed to distinguish him or herself from civilians must be assessed on a case-bycase basis.

By firing from within the NFZs, did the LTTE fail to comply with its obligations to take all feasible precautions to protect civilians from the effects of attacks?

If the LTTE positioned and used weapons, ammunition and emplacements in or near areas densely populated by civilians, it would have failed in its obligation to take all feasible precautions to protect civilians from the effects of an attack, specifically the obligation not to position military objectives in civilian areas.

Evidentiary material including witness accounts indicate that the LTTE positioned itself and fired artillery and mortars from emplacements within the NFZs.112 Witness accounts also suggest, however, that prior to the declaration of the first and second NFZs, some LTTE weapons and emplacements were already positioned in areas where thousands of civilians subsequently moved.113 For example, the first NFZ encompassed the LTTE‘s western and southern defensive lines,114 which meant that, as civilians moved into the first NFZ, they came into even closer proximity to military objectives in the NFZ.

The general movement of the civilian population towards LTTE emplacements did not diminish the LTTE‘s obligation to protect civilians. Under IHL, the LTTE was obliged to move its weapons and emplacements away from these densely populated areas and physically evacuate civilians from the vicinity of its military objectives, to the extent feasible. The LTTE‘s alleged conduct, firing weapons from civilian areas and preventing civilians from leaving the conflict zone, would have heightened the effects of attacks on the civilian population. As such, the LTTE would have failed to take adequate precautions to protect civilians from the effects of attacks, as required under IHL.

Nonetheless, even if the LTTE failed to protect civilians from the effects of attacks, this did not relieve the SFs of their obligations to plan attacks keeping in mind the large numbers of civilians that were likely to have been in the vicinity of the military objectives.

In situations where the LTTE forced civilians to remain in the conflict zone, did they violate their obligations under IHL to take all feasible precautions to protect civilians from the effects of attacks?

To the extent the LTTE prevented civilians from leaving the conflict zone, they likely violated their IHL obligation to take precautions to protect civilians from the effects of attacks.

Whether the LTTE forced civilians to remain in the conflict zone must be assessed on a case-by-case basis. Witness accounts paint a confused picture and, as addressed earlier, suggest that there were many reasons why civilians remained in the conflict zone.115 However, some accounts do suggest that the LTTE prevented civilians from leaving the Vanni,116 sometimes through the use or threat of force. For example, in relation to a specific incident involving a humanitarian convoy, the LTTE reportedly used threat of force to prevent local UN staff and their families to leave the Vanni.117 Witnesses also reported that LTTE fighters shot at civilians attempting to leave; and that in certain instances, these attacks resulted in civilian deaths.118

This alleged failure by the LTTE to protect civilians from the effects of attacks, would be a violation of IHL, irrespective of the motive for the decision to prevent civilians from leaving the conflict zone. The fighting was sufficiently intense that forcing civilians to stay in the conflict zone exposed them to the effects of the attacks that were taking place.

c. The Paranagama Report

57. The Paranagama Report extensively deals with the LTTE‘s failure to protect civilians from the effects of attacks.119 As explained above, the LTTE was under an obligation to avoid, to the extent feasible, locating military objectives within or near densely populated areas. Therefore, by locating its military assets and positions in areas densely populated with civilians the LTTE would have breached its IHL obligations, whether or not it sought to gain a strategic advantage.

58. The Commission goes further and emphasized that ―the LTTE willfully moved their heavy artillery into the first NFZ and began to shell the SLA positions from amidst the civilians, who were now trapped in that NFZ‖.120 However, the Commission does not examine whether LTTE military positions were already in these zones prior to their designation as NFZs121 or the likelihood that the first NFZ, given its situation, would become part of the area of hostilities122. This omission is significant because it leads to the conclusion that the presence of the LTTE in the NFZs aimed at shielding their military positions. In light of this, the Commission exclusively blames the LTTE for civilian casualties. Both implications are erroneous. First, as explained in the section on human shields, determining whether the LTTE used civilians as shields would require more analysis of specific incidents of co-location and intent therein. Second, as explained in the section on non-reciprocity, violations of IHL by one party does not relieve the opposing party from its own obligations under IHL.

5. Non-reciprocity123

59. Violations of IHL by one party to an armed conflict do not relieve another party from its obligation to comply with IHL. Contrary views expressed with regard to Sri Lanka124 do not reflect well-established CIL. This section clarifies the contours and raison d’être of this fundamental principle of IHL.

a. The rule

60. IHL applies unconditionally and unilaterally to all parties to the conflict, irrespective of the misconduct of opposing parties. One party‘s obligation to respect IHL does not depend on the other party‘s respect therefor.125 This is the principle of non-reciprocity.126

61. When armed groups do not comply with the rules of warfare, ensuring adherence to IHL becomes difficult. Nonetheless, the value and importance of IHL is undermined if noncompliance by one party is used by another party as an excuse to derogate from its obligations under IHL. The purpose of IHL is not to guarantee a fair fight between combatants but to offer civilians the greatest protection possible, despite the conduct of hostilities.

b. Application

If the LTTE failed to take precautions to protect civilians from the effects of SFs attacks, did this mean the SFs were not expected to respect the principle of distinction or other rules when launching an attack?

To the extent the LTTE failed to wear uniforms or distinguishing signs, prevented civilians from leaving an active conflict zone, or fired from densely populated civilian areas, they likely violated the obligation to take precautions against the effects of attacks. However, even in these circumstances, the SFs were not relieved of their own obligations under IHL, including the obligation to respect the principles of distinction and proportionality, and to take precautionary measures in an attack. It may therefore be the case that both parties violated IHL.

Similarly, there is no ‗but for‘ test in IHL – that is, IHL does not recognise an argument such as ‗but for the LTTE's use of human shields, there would not have been such high civilian casualties‘; or, ‗but for the LTTE being a terrorist organisation, none of the SFs‘ actions would have been necessary‘. IHL is concerned with the conduct of each party with respect to a specific attack. Both parties may at the same time be responsible for violations of IHL. The misconduct of one party cannot be justification for the misconduct of another. Questions of who started what and who is more responsible for casualties are not relevant to the application of IHL.

Is IHL unfair if its application in practice rewards those who violated its norms?

IHL aims at balancing two competing interests in an armed conflict. The first interest is that of ‗military necessity‘, which permits measures to weaken the military capacity of an opposing party. The second interest is humanitarian, requiring that those who do not participate in the conflict be protected from the effects of armed conflicts.127

In order to strike this balance between military and humanitarian imperatives, IHL applies to all parties to an armed conflict, such that one party is not relieved of its IHL obligations even if the opposing party refuses to comply with its IHL obligations. This customary principle is necessary to prevent both parties from violating the fundamental rights of those who do not take part in hostilities. The contrary position, that one party‘s breach effectively lessens its adversary‘s obligations under IHL, would fundamentally undermine the raison d’être of this branch of international law, which is to balance military necessity and humanitarian goals.

It may be the case that the compliant party who fights against a non-compliant party suffers a relative disadvantage. However, this is not a problem that may be corrected by fundamentally changing the essence of IHL, to the detriment of civilians and persons hors de combat. International criminal law may, for example, serve to incentivise compliance by holding individuals who bear responsibility for certain breaches criminally liable.

c. The Paranagama Report

62. While non-reciprocity is at the core of IHL, the gazetted questions posed in the second mandate of the Paranagama Commission invited a flawed analysis. As explained above, IHL is not concerned with the question of which party bears the greatest responsibility for civilian deaths. Indeed, civilian deaths may occur in situations where all parties comply with IHL. They may also be the result of both parties‘ violation of IHL. Instead, IHL is only concerned with the question of whether or not any party breached rules of IHL.

63. By seeking to determine whether the LTTE or the SFs bear the greatest responsibility for civilian deaths, the Commission engaged in analysis that ignores the basic principle of non-reciprocity.128 Paragraph 43 of the Paranagama Report, which reads as follows, evidences this approach:

The Commission must accept that shelling by the SLA undoubtedly led to a significant number of civilian deaths, but the Commission stresses this was an inevitable consequence of the LTTE‘s refusal to permit civilians to leave their control in order to use them both as a shield and a pool for recruitment[..].129

64. As explained above, the non-reciprocity principle requires that all parties to an armed conflict comply with their obligations under IHL, irrespective of the other party‘s violations and irrespective of any perceived disadvantage as a result. The Commission‘s discussion of the burden of responsibility being ―unfairly‖ shifted to a compliant party, and the ―impermissible ‗forced choice‘‖ faced by it when its non-compliant opponent violates its obligations under IHL is, therefore, misleading. The Commission‘s conclusion about the ―inevitable consequences‖ of the SFs‘ actions disregards the fundamental principle of non-reciprocity and seeks to shift responsibility for civilian losses solely to the LTTE.130

B. Additional violations of IHL and application
1. Taking of hostages

65. Hostage taking is prohibited under IHL.131 In the Sri Lankan context, some analyses have tended to make broad assertions as to whether this violation occurred without regard to specific incidents, or conflated the issues of human shields and hostage taking. This paper clarifies the legal requirements in relation to the taking of hostages under IHL and reiterates that individual incidents need to be analysed in order to determine if hostages were taken.

a. The rule

66. The taking of hostages is prohibited by common Article 3132 as well as under customary IHL.133 According to the commentary to common Article 3, hostage taking must be understood in the broadest sense.134

67. Hostage taking is also prohibited specifically by human rights treaties such as the 1979 International Convention against the Taking of Hostages (Hostages Convention).135 Although the Hostages Convention does not apply in the context of armed conflict, its definition is useful.136 The Hostages Convention defines hostage taking as the seizure or detention of a person (the hostage), combined with threatening to kill, injure or continue to detain the hostage, in order to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage.137

68. According to ICTY jurisprudence, it must be established that ‗at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.‘138

b. Application

Could the LTTE’s conduct be characterised under IHL as hostage taking of the entire civilian population?

There are many reasons that may explain why civilians remained in the conflict zone. Therefore, whether the LTTE‘s conduct amounted to hostage taking must be assessed on a case-by-case basis taking into account specific actions by the LTTE and the intent therein.

Witness accounts reflect the confusing nature of events on the ground and provide a myriad of reasons why civilians remained behind LTTE lines. Many witnesses have stated that they were encouraged to move into the NFZs areas by the Government‘s declaration of the NFZs as safe areas for civilians.139 Indeed, the Secretary to the Ministry of Defence asserted on 2 February 2009 that anything located outside the designated NFZ was considered a legitimate target.140

Some witnesses stated that, in addition to government announcements, the LTTE also made announcements and advised people and groups about where to move.141 Some witnesses reported that the LTTE prevented them or other civilians from leaving the conflict zone.142 Other witnesses stated that they chose not to move into governmentcontrolled territory because they were afraid of what might happen to them in custody, and specifically that girls and women would be raped by the SFs.143

Other witnesses who were involved in providing medical or humanitarian assistance said that they stayed behind, in spite of government pressure for them to leave the Vanni, in order to help civilians in need.144

While in many cases, civilians appeared to have stayed in the conflict zone for reasons other than the threat or use of force by the LTTE, there is information to suggest that the LTTE engaged in taking hostages during the final months of the conflict.145 For instance, witness accounts detail an incident (mentioned earlier in this paper) in early January 2009 where a large group of local UN staff members and their families, who formed part of a humanitarian convoy, were prevented from leaving the Vanni.146 The situation escalated to the point that several armed LTTE fighters and police surrounded the convoy and prevented them from leaving the area at gunpoint.147 If the LTTE‘s actions in this case were intended to compel a third party to act or refrain from acting as a condition for the UN staff and their families‘ safety, it is likely that this conduct would amount to hostage-taking under IHL.

There is some evidence to suggest that the LTTE had a policy of retaining Tamil civilians in the conflict zone, by force or threat of force, in order to compel the international community to broker an end to the hostilities with the SFs. For example, one senior LTTE member stated:

When the war grew more desperate the [LTTE] Political Wing wanted to ensure that sufficient numbers of civilians remained in the Vanni in order to force the international community to step in and broker an agreement with the GoSL [ie. Government of Sri Lanka] to end the war.148

The LTTE could be said to have breached the IHL prohibition on taking hostages, to the extent it held civilians in the conflict zone and conditioned their release on, for example, the SFs refraining from attacking, or on an intervention by other States or the UN in the conflict. As with every alleged violation of IHL, this assessment would need to be made on a case-by-case basis.

 c. The Paranagama Report

69. The Paranagama Commission correctly states the law on the prohibition of hostagetaking.149

70. The Commission asserts that 300,000 to 330 000 persons were held hostage by the LTTE.150 According to the Commission, the purpose of the LTTE in taking hostages was allegedly ―to achieve a Kosovo style international intervention, if enough civilians were seen to be killed‖151. While there may have been incidents of hostage taking, the general assertion of the Commission that more than 300,000 people were held hostage is insufficiently supported.152 Contrary to the Commission‘s assertion, witness accounts mention a wide range of factors—other than threat or use of force by the LTTE—that led civilians to remain in the conflict zone despite the hostilities. This is also recognized by the military expert who recalls that ―it should not be forgotten that for many of the civilians this was their home and that they feared what would happen to them if they crossed over‖.153

2. Human shields

71. IHL prohibits parties to an armed conflict from intentionally using civilians to shield military objectives from attacks. While this prohibition is widely considered to be part of CIL, the extent to which human shields are immune from direct attacks and protected against excessive incidental harm is debated. In particular, many scholars propose to distinguish between involuntary and voluntary human shields to assess whether human shields retain their immunity from attack. Different views have also been put forward in relation to how to factor human shields into a proportionality assessment, i.e. whether or not they should be counted as civilians in anticipating civilian losses from a proposed attack. This paper clarifies that, according to IHL, civilians are immune from attacks and protected against disproportionate attacks, except and for such time as they are directly participating in the hostilities.

a. Prohibition of the use of human shields

i. The rule

72. IHL prohibits the use of human shields.154 ‗[T]he use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives‘.155

73. The use of human shields is a special intent breach of international law. The breach occurs only if the party intended to use the co-location of military objectives and civilians (or persons hors de combat) in order to shield military objectives.156 This special intent distinguishes the prohibition of using human shields from other rules requiring that ‗each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas‘157 and that ‗each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives‘.158

ii. Application

Did the LTTE’s conduct amount to human shielding as defined by IHL?

Various reports and witness accounts suggest that the LTTE placed civilians at risk by keeping civilians in the ever-shrinking conflict zone, conducting military operations in and around civilian areas and by positioning artillery and mortar positions close to civilian encampments and hospitals (co-location).159

It is necessary to consider specific incidents to determine whether such activities constituted human shielding at a given point in time. The key question is intent—whether the LTTE forcibly displaced civilians or co-located military equipment with the specific intent to protect its positions from attack. For instance, witnesses report that the LTTE buried weapons at various sites on the seashore of the Mullivaikkal peninsula.160 Specifically, one witness observed a large piece of equipment (what the witness was told was an artillery gun) in a area densely populated by civilians on the Mullivaikkal peninsula.161 The equipment was on the seashore, about 25 metres from a food distribution site and had been covered in tree leaves.162 This may amount to the use of human shields if the equipment was intentionally concealed near a food distribution site to protect it from attacks.

As this paper makes clear, even in instances where the LTTE breached IHL, the SFs were still required to comply with IHL, and vice versa.

iii. The Paranagama Report

74. The Paranagama Commission is of the view that ―the war crime of using human shields was a complete offence with or without the deliberate moving of civilians, so long as the LTTE co-located civilians and military targets to gain a military advantage from the presence of the civilians‖.163

75. The Commission asserts that the ―LTTE took advantage of the presence and location of thousands of civilian hostages to shield the LTTE leadership from attack and capture‖164 and that the ―LTTE exploited the civilian status of the hostages to protect their most important military assets, namely, their commanders and their leader, Prabhakaran‖.165

76. While the Commission mentions allegations that the LTTE ‗placed their offices and military equipment near IDP sites and civilian installations‘166 or ‗set up artillery near a UN aid convoy‘,167 it does not examine any specific incident of co-location of civilians and military targets. Instead, it made general assertions regarding the presence and location of thousands of civilians in the conflict zone where the LTTE operated. The Commission‘s general conclusion regarding the use of human shields by the LTTE is therefore unsupported, even though evidence suggests that in specific instances the LTTE may have used civilians as human shields.168

b. Protection of human shields from direct attacks and excessive incidental harm (voluntary and involuntary human shields)

i. The rule

77. Under IHL, whether human shields retain their immunity from direct attacks and protection against excessive incidental harm arguably depends on whether they are ‗involuntary human shields‘ or ‗voluntary human shields‘. Involuntary human shields are protected persons used without their knowledge or against their will to shield military objectives. Voluntary human shields are civilians willingly attempting to shield military objectives.

78. The protected status of voluntary human shields depends on whether or not they are considered to be directly participating in hostilities. As discussed above, civilians directly participating in hostilities lose their protected status under international law, but only for such time as they participate. The ICRC Interpretive Guidance distinguishes between civilians who physically block or impede an attack on a military target and those who do not physically hinder the attacker‘s capacity to identify or destroy the target but intend to use their protected status to render an attack on a target disproportionate. According to the ICRC, only the first category directly causes the kind of harm required for direct participation in hostilities.169 However, this question is arguably unsettled in CIL.170

79. On the other hand, under IHL, involuntary human shields are civilians and are therefore protected from both direct attacks and excessive incidental harm. The customary status of this principle is reflected by the ICRC‘s study of military manuals and other indicia of State practice.171

ii. Application

Were the SFs breaching their IHL obligations in the event human shields were killed as a result of an attack against a military objective?

The death of human shields is not, as such, an indication that the SFs breached their obligations under IHL. However, if an attack by the SFs directly targeted—or could have been anticipated to disproportionately affect—human shields who were not directly participating in hostilities, this would prima facie constitute a breach of IHL. 172

Even if one accepted that voluntary human shields directly participate in hostilities, as explained above, in practice, it would be extremely difficult for a commander to determine whether human shields were acting voluntarily. This would require assessing whether civilians are located close to a military objective out of their free will and with the intent of shielding the objective.

Many witnesses stated that, after initially moving to the NFZs, they relocated on a frequent basis in order to: flee the advancing SFs; flee the fighting between the SFs and LTTE; or otherwise escape the effects of intense shelling and bombing in their area at the time of relocating.173 Witnesses describe chaotic scenes suggesting that the location of civilians at any given time was very unclear and civilian movement uncoordinated and confusing.174 Therefore, in many cases, it would have been extremely difficult to determine whether a person was a voluntary human shield, or simply caught up in an immensely chaotic and shrinking conflict zone. Without more information, military commanders would have been obliged to presume that human shields retained their protected status.175

Even though human shields are prohibited from being directly attacked and must be protected from excessive incidental harm unless they directly participate in hostilities, the deaths of human shields (or any other civilian) do not necessarily mean that the SFs violated IHL. If the SFs were targeting a specific military objective, took all feasible precautions prior to and during the attack, and if, given the circumstances prevailing at the time, civilian deaths were not expected to be excessive compared to the concrete and direct military advantage anticipated, there was no violation of IHL. This must therefore be assessed on a case-by-case basis.

iii. The Paranagama Report

80. The Paranagama Report concludes that voluntary human shields directly participate in hostilities.176 As explained in paragraph 78, and otherwise acknowledged by the Paranagama Commission,177 this position is unsettled in law.

81. The Report recognizes that ―involuntary human shields retain their civilian status and protections under IHL at all times‖.178 However, the Commission proposes a ―recalibration of the proportionality test so as to take due account of involuntary human shields‖.179 The Commission cites a few sources in favour of the proposed recalibration. These sources happen to be taken from a paper by Michael N. Schmitt‘s article “Human Shields in International Humanitarian Law‖.180 Despite this, Schmitt‘s article is not directly cited by the Commission. This is significant, because Schmitt quotes some of these sources to support a position contrary to that of the Commission. In fact, a plain reading of the quotes from the Human Rights Watch statement regarding the conflict in Iraq and the policy paper from the US Joint Chiefs of Staff reveals that they do not support the proposed recalibration of the proportionality assessment.181

82. The Commission also seeks to rely on quotes from the UK military manual and the ICRC Model Manual on the Law of Armed Conflict for Armed Forces to support its proposed recalibration of the proportionality assessment.182 While the Commission does not refer to the US Department of Defense Law of War Manual, it should also be noted that the most recent edition of the Manual supports the proposition that harm to human shields should not be understood to prohibit attacks under proportionality assessments – a change that has triggered much debate and controversy.183 However, quotes from these manuals are insufficient to demonstrate that CIL currently allows parties to a conflict ―to take due account of involuntary human shields and discount voluntary human shields who are directly participating in hostilities‖ when assessing proportionality, as proposed by the Commission.184

83. CIL refers to a general state practice accepted as law.185 While the term ‗general practice‘ used in the ICJ Statute does not require that state practice be universal and identical, it should be extensive and virtually uniform.186 The ICRC study of military manuals reveals that the practice of many states does not support the proposed recalibration of the proportionality assessment.187 For example, Israel‘s practice—which is particularly relevant because it has extensive experience with adversaries that allegedly use human shields—suggests a contrary view.188 In the absence of similar and consistent state practice, the UK military manual and the US Department of Defense Law of War Manual do not reflect CIL on this question.189 Therefore, the Commission‘s proposed recalibration of the proportionality test is not supported in law.

84. The Paranagama Commission‘s conclusion that the shelling campaign was not on the whole disproportionate is therefore based on unsupported propositions of facts and law, and flawed reasoning. First, the qualification of the majority of the population as hostages and as human shields is unsupported. Second, as the Commission itself acknowledges,190 the proposition to recalibrate the proportionality test to diminish the protection of involuntary human shields has no legal basis. Third, in any event, the proportionality assessment must be applied to each specific attack. The failure of the Commission to examine a single attack in which human shields were allegedly used evidences a lack of rigour in its analysis.

3. Perfidy
a. The rule

85. Treaty law prohibits parties to a conflict from killing, injuring, or capturing an adversary through resort to perfidy.191 This rule is considered to be customary law for NIACs.192 Perfidy is an act that invites the confidence of an adversary such that he or she is led to believe he or she is entitled to, or obliged to accord, protection under IHL, with intent to betray that confidence.193 Perfidy is therefore a special intent-breach of IHL

86. Perfidy is also harm-based breach of IHL, meaning that the breach is constituted only if a specific harm occurs as a result of the perfidious behavior.194

b. Application

If the LTTE systematically failed to wear uniforms, did this conduct amount to perfidy?

Available information suggests that, as the conflict progressed, many LTTE fighters failed to wear uniforms.195 Further to this, many failed to take steps to distinguish themselves from civilians and therefore—as explained above—by not wearing uniforms, and by not distinguishing themselves through other means, these fighters likely violated the obligation to take precautions against the effects of an attack. However, in order for this to constitute the violation of perfidy under IHL, the evidence must show that the LTTE killed, injured or captured an adversary by resorting to perfidy, in this case, dressing as civilians.

In order to reach such a conclusion, specific examples must be examined. For example, reports suggest that during the final months of the conflict, LTTE fighters conducted suicide attacks by detonating their explosive vests. In one instance, at a screening centre in Mullaittivu on 9 February 2009, several people allegedly died after a suicide attack.196 In the event the suicide fighter disguised him or herself as a civilian (so as to trick the SFs into believing that they were entitled to be protected as civilians), with the specific intent of betraying that confidence, and members of the SFs died as a result of the detonation of the fighter‘s suicide vest,197 this would amount to perfidy prohibited under IHL

c. The Paranagama Report

87. The Paranagama Report accurately states the law on perfidy.198 It does not reach a definite conclusion on the qualification of specific conducts as acts of perfidy, but notes that ―perfidy is relevant in the context of LTTE suicide bombers pretending to be civilians and then blowing themselves up, and the SLA negotiating surrender under a white flag and then firing upon and killing those who surrendered‖199.

C. Application of the rules of IHL in the NFZs
1. The principle

88. As demonstrated above, the prohibition of indirect and indiscriminate attacks as well as the obligations to take precautions in attacks and against the effects of attacks are well established under IHL. All parties are obliged to comply with these rules irrespective of whether the other party violated IHL. In particular, these rules continued to apply to attacks directed at the NFZs, even if the LTTE fired from within the NFZs.

2. Application

Did the SFs violate IHL by returning LTTE fire originating from within the NFZs?

Parties to an armed conflict are entitled to militarily engage members of the opposing forces. The UN Expert Panel Report, the LLRC Report, the OISL Report and the Paranagama Report indicate that LTTE targets were located within the NFZs.200 There may legitimately be differing views on the legal ramifications of violating a unilaterally declared NFZ,201 however, regardless of the status of the area in general, IHL rules on the conduct of hostilities still applied.

Thus, even when the SFs were directly responding to LTTE fire, they were obliged to: refrain from targeting civilians;202 refrain from launching indiscriminate attacks including those using means and methods of warfare (including indirect fire weapons in areas heavily populated with civilians) and disproportionate attacks;203 take all feasible precautions to minimise civilians casualties;204 and to abort military attacks expected to result in disproportionate civilian casualties.205 The SFs would have had to take into account the high concentration of civilians in the NFZs to comply with each of these principles while returning fire in the NFZs.

Even if the LTTE violated its obligations, the principle of non-reciprocity under IHL required the SFs to comply with their own obligations under IHL. Likewise, any failure by the SFs to comply with its obligations under IHL would not have relieved the LTTE of its obligations.

3. The Paranagama Report

89. According to the Paranagama Report, the mere labeling of some areas as No-FireZones did not produce legal effects, due to the LTTE‘s refusal to acknowledge the protected status of these consecutive No-Fire Zones.206 The Commission nonetheless finds that the SFs were bound by the rules of IHL detailed in this paper when firing into the NFZs.207

IV. Case study

90. Section III of this paper explains fundamental IHL rules applicable to the conduct of hostilities in Sri Lanka and addresses specific questions that have become contentious in the public debate. It is difficult, however, to look at each IHL issue in isolation as many core principles of IHL intersect in any given situation. This section applies the fundamental and often overlapping IHL rules explained above to a specific example. The following example is meant to be illustrative and does not intend to make factual claims about the last stages of the Sri Lankan civil war.

1. Summary of factual allegations to which IHL principles are applied208

91. Witness accounts and photographic evidence indicate that Putumattalan Hospital, the hospital‘s immediate surroundings and a nearby UN compound were subject to artillery, rocket-propelled grenades (RPG) and gunfire on 24 March 2009.209 In the course of the attack, hospital buildings were damaged, a tree and bus at the front of the hospital were hit, and civilians were killed and wounded near the hospital and compound.210

92. This attack appears to have formed part of a more extensive military campaign by the SFs to capture Putumattalan,211 which it did on or around 21 April 2009. The SFs‘ broader campaign employed both direct (RPGs and rifles) and indirect fire weapons (artillery and mortars) to attack Putumattalan, repeatedly hitting Putumattalan Hospital, the UN Compound and civilian areas.212

93. The attack on 24 March 2009 raises questions about the SFs‘ compliance with the principle of distinction, the principle of proportionality, and the requirement to take all feasible precautions in an attack. It also raises questions about the LTTE‘s compliance with its obligations to protect the civilian population under its control and not to use civilians as shields.

2. Prohibition of direct attacks against protected persons or objects.

94. Putumattalan Hospital and the UN compound are entitled to special protection under IHL.213 Unless, and for such time as, they were taking part in hostilities, civilians were also protected from attack.214 The hospital, its ambulances, and the UN compound were clearly marked by the display of emblems, signs and an official flag in the case of the compound.215 The coordinates of these sites were provided to the Sri Lankan Government and/or the SFs.216 Witness accounts corroborate that the SFs extensively flew UAVs over the Vanni including Putumattalan,217 and such aircraft were capable of identifying the presence of both protected sites and the many thousands of civilians in their immediate vicinity. Moreover, at least with respect to the hospital, there was a direct line of sight from these sites to SFs‘ emplacements across the Nanthikadal lagoon.218

95. There is no specific information to suggest that, other than a small number of fighters potentially being treated at the hospital219 (who were not legitimate targets because they were hors de combat), there were specific military objectives in the relevant area at the time of the attack.220 Nonetheless, the available information strongly indicates that, at various times in the final stages of the conflict, the LTTE fired weapons from the vicinity of the hospital or used hospitals for other military purposes,221 and transported fighters, military vehicles and weapons using main roads, including roads adjacent to protected objects.222 Further inquiry is required to ascertain whether there were one or more military objectives in the vicinity of Putumattalan Hospital, the UN compound and/or nearby civilian areas on or around 24 March 2009223

3. Prohibition of indiscriminate attacks

96. According to IHL, attacks must not be indiscriminate.224 This means that even if specific legitimate targets were identified, the attack must employ means and methods that were capable of being directed at a specific military target (for example, a group of LTTE fighters transporting a tank to the frontlines). Based on the information available, the attacks launched on 24 March 2009 in part employed means and methods of warfare (the use of artillery in area bombardment) that were not capable of being directed at a specific military target and so were indiscriminate.225

97. Similarly, even assuming that legitimate military targets were identified in the area, a reasonable military commander was obliged, taking into account all of the circumstances at the time of planning the attack, to ensure that the attack was proportionate (i.e., to ensure that the attack was not expected to cause excessive civilian losses in relation to the anticipated direct and concrete military advantage of destroying any such military targets). As discussed above, based on a general understanding of what was occurring at the time, it is possible there was a specific military target that was being attacked. However, based on the information available, it is not clear what it was and no specific military objective has been identified with respect to this attack. The village of Putumattalan was densely populated with civilians taking no part in the hostilities.226 In these circumstances, there would have to be a very clear and strong (or ‗direct and concrete‘) military advantage to warrant an attack on targets within such a densely populated civilian area.

4. Precautions in attack

98. There is limited evidence of what precautions the SFs did or did not take to protect the civilian population from the effects of the attack on 24 March 2009. However, the LLRC Report noted that the SFs‘ Rules of Engagement were changed as civilians moved into the second NFZ: operations were to be conducted using small arms only.227

99. Additionally, the SFs repeatedly asserted from 25 February 2009 that they had stopped using heavy weapons on the NFZs.228 Nonetheless, looking specifically at the attack on the date in question, the evidence overwhelmingly points to the use of heavy weapons in combination with small arms on 24 March (and in subsequent attacks on Putumattalan and elsewhere in the NFZs).229 As noted in paragraphs 91 and 92 above, this attack appears to have employed a combination of artillery fire, RPG fire and small arms fire.

100. The available evidence suggests that insufficient precautionary measures were taken by the SFs to avoid, or at least to minimise civilian casualties. On the evidence referred to above, although the Sri Lankan Government and SFs were made aware of the precise location of Putumattalan Hospital and the UN compound, and despite their capabilities to identify the presence of a significant civilian population in the village, there appears to have been no advance warning of the attack. The use of indirect fire weapons (along with RPGs and small arms) also suggests that weapons were not chosen to minimise civilian casualties.

5. Use of human shields

101. Parties to an armed conflict are prohibited from using civilians as human shields (i.e., to not intentionally co-locate military objectives with civilians or civilian objects so as to shield such military objectives from attack). There is no specific evidence to suggest that LTTE targets were in proximity to the hospital, UN compound or nearby civilian areas at the time of the attack on 24 March 2009. However, given credible evidence that armed LTTE fighters sometimes fired from hospitals, or moved in close proximity to such facilities, it cannot be discounted that targets were near the hospital at the time of the attack. If such targets were so positioned in order to be shielded from attack, then this would likely amount to the use of human shields in violation of IHL.

102. It is essential to note that even if the SFs were attacking legitimate targets within the vicinity of the hospital, the attack on those targets still had to be proportionate, and precautionary measures still had to be taken.

V. Conclusion

103. The analysis in this paper demonstrates that the basic IHL rules regarding the prohibition of direct attacks against protected persons and objects and indiscriminate attacks, as well as the obligations to take precautions in an attack and against the effects of an attack, are well settled under CIL applicable in NIACs. As such, both the LTTE and the SFs were obliged to comply with these rules while conducting their operations and planning and carrying out military attacks. These IHL rules remained in force, irrespective of whether they were violated by the opposing party.

104. Evidentiary material collected and analysed by other reporting processes raise the probability that, between September 2008 and May 2009, the LTTE violated the obligation to protect civilians against the effects of attacks while the SFs violated their obligation to take precautions in attacks and violated the prohibition against indiscriminate attacks. However, as pointed out in this paper, an in-depth examination of the facts and circumstances on the ground is needed to verify these allegations and assess whether, with respect to specific attacks, the SFs violated the prohibition on direct attacks against protected persons or objects; and whether, with respect to specific incidents, the LTTE took civilians as hostages, used them as human shields or breached the prohibition on perfidy.

105. As explained in this report, IHL rules govern specific conduct and decisionmaking. Therefore, compliance with IHL must necessarily be examined on a case-bycase basis with reference to specific allegations, incidents and attacks. Under a rigorous application of IHL, there is no room for generalized analyses and conclusions about the overall conduct of the war and the overall behavior of both parties. As demonstrated in this paper, generalized analyses such as the ones adopted in the Paranagama Report distort IHL concepts and principles. They can therefore lead to flawed reasoning and grossly inaccurate conclusions.

106. Any investigation into allegations of IHL violations, whether criminal or as part of a truth-seeking, reparations, or institutional reform process, must therefore examine specific incidents and attacks. It must be carried out independently, impartially and in compliance with international standards. In particular, any investigative mechanism or function established (for example, within Sri Lanka) must be staffed with specialised personnel who have a track record of independence and impartiality, and long-standing experience and expertise in IHL (as well as other relevant bodies of international law). Such an investigation must form part of comprehensive transitional justice measures that address the underlying political dimensions of Sri Lanka‘s conflict, in addition to victims‘ rights to truth, justice, reparations and guarantees of non-recurrence

107. Previous and ongoing domestic mechanisms have fallen short of these requirements. The LLRC relied on minor disagreements between States to suggest supposed ambiguities in IHL that do not exist,230 and reached wholesale conclusions in its report regarding the parties‘ compliance with IHL unsupported by the examination of any specific event.231 The Paranagama Commission also failed to examine any specific event in detail. Although the Commission called for independent judicial inquiries to look into a select number of incidents, on the whole it reached generalized conclusions based only on the analysis provided by a military expert without recourse to findings or evidence. While the Paranagama Commission stated the law accurately in the main – with the notable exception of the rules on direct participation in hostilities and those surrounding the principle of proportionality – its failure to apply the law to any specific incident led to a serious distortion of the applicable principles and rules.

108. Domestic mechanisms such as the LLRC and the Paranagama Commission have given rise to misconceptions about IHL rules and their application to the armed conflict in Sri Lanka. As this paper demonstrates, many views that have proliferated in the public debate on Sri Lanka are not consistent with a rigorous and impartial application of IHL. These views include the proposition that the deaths of thousands of civilians were justified under IHL in order to defeat a ruthless terrorist group or that any violation by the SFs was justified by prior violations by the LTTE. On the other hand, the fear that an acknowledgement of the LTTE‘s violations would exculpate the SFs from any wrongdoing is also erroneous. These misconceptions stand in the way of truthseeking and reconciliation and must be dispelled. In order to do so, any credible accountability mechanism must rigorously, independently and impartially apply IHL rules to specific attacks conducted by both parties to the conflict, and to specific incidents of alleged violations.

107. Previous and ongoing domestic mechanisms have fallen short of these requirements. The LLRC relied on minor disagreements between States to suggest supposed ambiguities in IHL that do not exist,230 and reached wholesale conclusions in its report regarding the parties‘ compliance with IHL unsupported by the examination of any specific event.231 The Paranagama Commission also failed to examine any specific event in detail. Although the Commission called for independent judicial inquiries to look into a select number of incidents, on the whole it reached generalized conclusions based only on the analysis provided by a military expert without recourse to findings or evidence. While the Paranagama Commission stated the law accurately in the main – with the notable exception of the rules on direct participation in hostilities and those surrounding the principle of proportionality – its failure to apply the law to any specific incident led to a serious distortion of the applicable principles and rules.

108. Domestic mechanisms such as the LLRC and the Paranagama Commission have given rise to misconceptions about IHL rules and their application to the armed conflict in Sri Lanka. As this paper demonstrates, many views that have proliferated in the public debate on Sri Lanka are not consistent with a rigorous and impartial application of IHL. These views include the proposition that the deaths of thousands of civilians were justified under IHL in order to defeat a ruthless terrorist group or that any violation by the SFs was justified by prior violations by the LTTE. On the other hand, the fear that an acknowledgement of the LTTE‘s violations would exculpate the SFs from any wrongdoing is also erroneous. These misconceptions stand in the way of truthseeking and reconciliation and must be dispelled. In order to do so, any credible accountability mechanism must rigorously, independently and impartially apply IHL rules to specific attacks conducted by both parties to the conflict, and to specific incidents of alleged violations.

Endnotes

1 Address by H.E. Mahinda Rajapaksa at the ceremonial opening of Parliament, 19 May 2009, available at: http://www.priu.gov.lk/news_update/Current_Affairs/ca200905/20090519terrorism_defeated.htm.

2 UN, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011 (hereafter UN Expert Panel Report).

3 LLRC, Report of the Commission of Inquiry on Lessons Learnt and Reconciliation, November 2011 (hereafter LLRC Report).

4 UNHRC, Resolution 5/1, Promoting reconciliation, accountability and human rights in Sri Lanka, 27 March 2014, UN Doc. A/HRC/RES/25/1, [10(b)].

5 The official name of the Paranagama Commission is ‘Presidential Commission to Investigate into Complaints regarding Missing Persons’. Initially, the Paranagama Commission was tasked with looking into missing persons during the period between 10 June 1990 and 19 May 2009. See Extraordinary Gazette No. 1823/42, 15 August 2013. Since March 2014, the Paranagama Commission’s mandate has been the period between 1 January 1983 and 19 May 2009. See Extraordinary Gazette No. 1855/19, 25 March 2014. The Paranagama Commission’s mandate has since been expanded in scope to look into alleged IHL violations (the second mandate), in addition to investigating missing persons. See Extraordinary Gazette No. 1871/18, 15 July 2014; Extraordinary Gazette No. 1876/40, 12 August 2014.

6 UNHRC, Report of the OHCHR Investigation on Sri Lanka (OISL), 15 September 2015, UN Doc. A/HRC/30/CRP.2

7 Report On the Second Mandate Of the Presidential Commission of Inquiry Into Complaints of Abductions and Disappearances, August 2015, available at: http://www.pcicmp.lk/images/Reports/14_August_Final_Version.pdf [accessed 13 November 2015].

8 Presidential Truth Commission on Ethnic Violence, Report of the Presidential Truth Commission on Ethnic Violence (1981-1984), printed as Sessional Paper No. III, September 2002 (hereafter Ethnic Violence Report), [52][53]. See also LLRC Report, [8.150], [9.184].

9 Norwegian Agency for Development Cooperation (NORAD), Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka, 1997-2009, Report 5/2011 – Evaluation, September 2011, available at: http://www.norad.no/en/toolspublications/publications/2011/pawns-of-peace-evaluation-of-norwegian-peaceefforts-in-sri-lanka-1997-2009/ [accessed 23 June 2015], 94-5, 104. See also LLRC Report, [2.52].

10 UN Expert Panel Report, [47], [73], [77]; LLRC Report, [3.14],[4.43];OISL Report [86].

11 UN Expert Panel Report, [47], [73], [77]; LLRC Report, [3.18]; OISL Report [87].

12 UN Expert Panel Report, [80]; OISL Report, [802].

13 UN Expert Panel Report, [96]; OISL Report, [89].

14 UN Expert Panel Report, [114]; OISL Report,[92] . See also PIAC, Island of Impunity? Investigation into international crimes in the final stages of the Sri Lankan civil war, February 2014 (hereafter ICEP Report), [6.15] and [6.18] which refer to correspondence from the Sri Lankan Army Directorate of Military Intelligence and other branches of the Sri Lankan Army.

15 OISL Report, [753]-[766].

16 Address by H.E. Mahinda Rajapaksa at the ceremonial opening of Parliament, 19 May 2009, available at: http://www.priu.gov.lk/news_update/Current_Affairs/ca200905/20090519terrorism_defeated.htm [accessed 21 August 2015].

17 For evidence of the widespread acceptance of the view that the conflict amounted to a NIAC, see the UN Expert Panel Report, [181]; OISL Report, [182]- [183]; Paranagama Report, [119]; comments made by the International Committee of the Red Cross, e.g. 9 July 2009 address entitled, ‘The Geneva Conventions Today’ wherein the Head of the ICRC Legal Division refers to the armed conflict in Sri Lanka as a NIAC; opinions of member states, e.g., the United States in Department of State Report to Congress on Incidents During the Recent Conflict in Sri Lanka, 2009, which states at 6, ‘*i+n the context of a non-international armed conflict… such as the recently ended conflict in Sri Lanka…’

18  Sri Lanka has also ratified the 1980 Convention on Certain Conventional Weapons, the 1993 Chemical Weapons Convention with Protocols I, II and III, and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. This paper, however, focuses on violations of IHL pursuant to Article 3, common to the four Geneva Conventions of 1949 and CIL

19  In relation to rules of customary IHL applicable in armed conflict, see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules (Cambridge University Press: Cambridge and New York, 2005) (hereafter ICRC Study).

20  International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Judgment,  8 July 1996, [25]; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Judgment, 9 July 2004, [106]. See also ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, [216]

21  Specifically, Sri Lanka is party to the: International Covenant on Civil and Political Rights (11 June 1980) and its Optional Protocol (3 October 1997), International Covenant on Economic, Social and Cultural Rights (11 June 1980), International Convention on the Elimination of All Forms of Racial Discrimination (18 February 1982) and International Convention on the Elimination of All Forms of Discrimination against Women (15 October 2002). Notably, Sri Lanka is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (3 January 1994) and the Convention on the Rights of the Child (12 July 1991) and its Optional Protocol on the involvement of children in armed conflict (8 September 2000).

22  It is worth noting however, that Sri Lanka is not a party to the Rome Statute of the International Criminal Court.

23 Rule 7, ICRC Study, applicable to NIACs.

24 Rules 8 and 9, ICRC Study, applicable to NIACs. This definition is drawn from Article 52(2), AP I applicable to IACs; see also Article 2(7), Amended Protocol II to the Convention on Certain Conventional Weapons (1980) which applies to NIACs.

25 Rule 9, ICRC Study. This definition is drawn from Article 52(1) of AP I applicable to IACs.

26 Rule 1, ICRC Study, applicable to NIACs; see also Article 13(2) AP II.

27 Rule 6, ICRC Study, applicable to NIACs. See also Article 13(3), AP II.

28 In relation to the requisite threshold, the ICRC Interpretive Guidance notes, ‘a specific act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack’, 47.

29 That is, direct causation between the act and ‘the harm likely to result either from that *civilian’s+ act, or from a coordinated military operation of which that act constitutes an integral part’: ICRC Interpretive Guidance, 51.

30 ICRC Interpretive Guidance, 46.

31  ICRC Interpretive Guidance, 34.

32  Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (Geneva: ICRC, 2009) (hereafter ICRC Interpretive Guidance), 33

33  See e.g., Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds), New Rules for Victims of Armed Conflicts (Martinus Nijhoff: The Hague, 1982), 672.

34  See, e.g., UN Expert Panel Report, [98]; OISL Report [654], [910].

35  The ICRC Interpretive Guidance notes, ‘for the requirement of direct causation to be met, it is neither necessary nor sufficient that the act be indispensible to the causation of harm *to the adversary+. For example… the provision of food to the armed forces may be indispensible, but not directly causal, to the subsequent infliction of harm’, 54.

36  Paranagama Report, [355].

37  Paranagama Report, [358].

38  The Report refers to Smith proposal in its conclusion. However, this proposal lacks specificity especially in light of the ICRC subsequent comprehensive study on direct participation in hostilities. 

39   Paranagama Report, [307].

40  Paranagama Report, [147].

41  Rules 1 and 7, ICRC Study. See also Article 13(2), AP II.

42  Rule 16, ICRC Study, applicable to NIACs.

43  See Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (ICRC: Geneva, 1987) (hereafter AP Commentary) [4789]. This principle is codified in Article 50(1), API applicable to IACs.

44  See, e.g., Witness Accounts G, H and I. See also ICEP Report [6.199] which cites other witness accounts.

45  UN Institute for Training and Research Operational Satellite Applications Programme, Geo-spatial analysis in support to the Secretary-General’s Panel of Experts on Sri Lanka, 17 January 2011 (hereafter UNITAR Report), 44.

46  See, e.g., UN Expert Panel Report, [58], [61]; LLRC Report, [4.37]–[4.41]; OISL Report [737]-[740], [747]; Jane’s intelligence journal, ‘Jane’s World Air Forces – Sri Lanka’, 8 May 2012, 6; correspondence from Air Marshal H.D. Abeywickrama (Air Force Commander) to the Hon C.R. De Silva (LLRC Chairman), ‘UAV and Surveillance Devices’, 29 September 2011 included in LLRC Report, Annex, 61–2; Stockholm International Peace Research Institute, ‘Transfers of Major Conventional Weapons 2000 to 2009’, SIPRI Arms Transfers Database, 27 January 2013; Udeshi Amarasinghe & Thilini Kahandawaarachchi, ‘Defence Secretary Gotabaya Rajapaksa Salutes the War Heroes’, Business Today, June 2009, http://www.businesstoday.lk/cover_page.php?art=891 [accessed on 4 September 2013+; ‘Taming the Tigers’, AirForces Monthly, June 2009, 76, available at: http://www.airforce.lk/pdf/news%20paper/slaf/srilanka_ariforce.pdf [accessed 14 January 2014]; Sri Lankan Air Force website, ‘Aircraft Fleet’, http://airforce.lk/pages.php?pages=aircraft_fleet [accessed on 4 September 2013]; ‘Transcript of Gotabaya Rajapaksa’s Testimony before the LLRC’, 17 August 2010, 6 (on file with ICEP).

47  See, e.g., UN Expert Panel Report, [58], [61]; LLRC Report, [4.37]–[4.41]; OISL Report [737]-[740], [747]; correspondence from Air Marshal H.D. Abeywickrama (Air Force Commander) to the Hon C.R. De Silva (LLRC Chairman), ‘UAV and Surveillance Devices’, 29 September 2011 included in LLRC Report, Annex, 61–62. In relation to intelligence, see for e.g., C. A. Chandraprema, Gota’s War: The Crushing of Tamil Tiger Terrorism in Sri Lanka (Ranjan Wijeratne Foundation, 2012), 356–7, 507; lecture by Gotabaya Rajapaksa titled ‘Sri Lanka’s National Security Concerns’, delivered at Kotelawala Defence University and published as ‘The Final Threat To Sri Lanka’s National Security Is New Media’, Colombo Telegraph, 14 June 2013, http://www.colombotelegraph.com/index.php/sri-lankas-national-security-concerns-social-media-is-a-threat/ [accessed 25 August 2013]. For a more extensive list of sources, see ICEP Report, [16.78]-[16.84], [16.96]-[16.106].

48  UN Expert Panel Report, [60]-[61], [92]. 

49  See, in relation to LTTE targets in the first and second NFZs, ICEP Report, [6.21]-[6.24].

50  See, e.g., Sri Lankan Ministry of Defence, Humanitarian Operation Factual Analysis: July 2006 – May 2009, July 2011 (hereafter Ministry of Defence Report), [224], [226]-[228], [238]-[241], [244]; and correspondence from Air Marshal H.D. Abeywickrama (Air Force Commander) to the Hon C.R. De Silva (LLRC Chairman), ‘UAV and Surveillance Devices’, 29 September 2011 included in LLRC Report, Annex, 61–2. For a more extensive list of sources, see ICEP Report, [16.61]-[16.62], [16.66], [16.75], [16.77]-[16.84].

51   Paranagama Report, [89], [105], [145(c)], [477].

52  Ibid, [105].

53  Ibid, [477]. 

54  See *89+ of the Paranagama Report, which notes that the security forces’ task of assessing the number civilians at risk was made “extraordinarily difficult where the LTTE were deliberately and unlawfully embedded within the civilian population in order to deter SLA military responses or to protect their leadership.”

55  Rule 12, ICRC Study, applicable to NIACs.

56  Rule 12, ICRC Study.

57  Rule 13, ICRC Study applicable to NIACs.  

58   Explosive weapons include ‘large or unguided air-delivered bombs, missiles and rockets, unguided indirect fire weapons such as artillery and mortars, and multiple rocket launchers’: ICRC, Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects. Expert Meeting, Chavannes-de-Bogis, 24-25 February 2015, 5.

59  ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, report to the 31st International Conference of the Red Cross and Red Crescent, Geneva, 28 November-1 December 2011, 42.

60  See, e.g., UN Expert Panel Report, ii. See generally Section 6, ICEP Report.

61  It is unclear precisely how many civilians were inside the third NFZ by the end of the conflict. However, the UN Expert Panel noted that, by the final days of the conflict, 'the United Nations estimated that 100,000 civilians remained trapped within three square kilometres’: UN Expert Panel Report, *115+. Satellite imagery analysis suggests that, on 6 May 2009, there were between 46,000 and 60,000 civilians in the area that would become the third NFZ: UNITAR Report, 49. By 13 May 2009, the population was estimated to include more than 33,000 civilians: UNITAR Report, 49.

62  ICEP Report, [16.74]-[16.77] which cites inter alia Ministry of Defence Report, intelligence journals and the UN Expert Panel Report; OISL Report [747].

63  Paranagama Report, [464].

64  The Expert Military Report, including the questions addressed within it, is annexed to the Paranagama Report.

65  Paranagama Report, [470]; Expert Military Report, [71].

66  Ibid., [480].

67  Ibid.,  [218]- [476].

68  Ibid., [491] The Commission does, however, refer to reports of phosphorus and cluster munitions being used by the SFs, but notes that the use of cluster munitions would not have been illegal per se and that the issue for determination would have been whether their deployment was proportionate. The Commission states that the use of these weapons is an area “requiring further investigation”. See *492+-[499].

69  Ibid., [481].

70  Ibid., [481], [482].

71  Ibid., [479]; Expert Military Report, [76].

72  Ibid. 

73  Paranagama Report, [478].

74  Ibid., [483]- [485].

75  Rule 14, ICRC Study applicable to NIACs. 

76  AP Commentary [2218]. However, even in the case of a concerted attack in numerous places, the concept of ‘attack’ is not broad enough such as to include the armed conflict as a whole.

77  ICTY, Prosecutor v. Stakid (Case No. IT-97-24), Trial Chamber, Judgment, 31 January 2005.

78  ICTY, Prosecutor v. Galid (Case No. IT-98-29-T), Trial Chamber, Judgment, 5 December 2003 (hereafter Galid).

79  AP Commentary, [2209].

80  Ibid.

81  Galid, [58].

82  AP Commentary, [2212].

83 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 2000, which states, ‘The questions which remain unresolved once one decides to apply the principle of proportionality include the following: *….+ d) To what extent is a military commander obligated to expose his own forces to danger in order to limit civilian casualties or damage to civilian objects?... The answers to these questions are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker.’

84  See, e.g., military manuals of Australia, Canada and the United States in ICRC Customary Law Database, ‘Practice Relating to Rule 14. Proportionality in Attack’, available at: https://www.icrc.org/customaryihl/eng/docs/v2_cha_chapter4_rule14 *accessed 20 August 2015+. Cf. relevant UK practice: ‘Sometimes a method of attack that would minimise the risk to civilians may involve increased risk to the attacking forces. The law is not clear as to the degree of risk that the attacker must accept. The proportionality principle does not itself require the attacker to accept increased risk. Rather, it requires him to refrain from attacks that may be expected to cause excessive collateral damage. It will be a question of fact whether alternative, practically possible methods of attack would reduce the collateral risks. If they would, the attacker may have to accept the increased risk as being the only way of pursuing an attack in a proportionate way’: The Joint Service Manual of the Law of Armed Conflict, Joint Service Publication 383, 2004, 2.7.1.

85  Robin Geiss, ‘The Principle of Proportionality: ‘Force Protection’ as a Military Advantage’, Israel Law Review 45, 74 cited in Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, UN Doc. A/HRC/29/CRP.4, 24 June 2015, [296].

86  See, for example, Paranagama Report, [320].

87  Ibid., [150], emphasis added.

88  Ibid., [29], emphasis added.

89  Paranagama Report, [149]. See also [29].

90  Ibid., 40.

91  Ibid., [148], [476]. The Commission also challenges previous estimates of the number of civilians who died in the conflict and refers to the “difficulties” in assessing the true number of “innocent civilian” deaths. See, for example, [24], [27], [148].

92  Rule 14, note 29 ICRC Study.

93  Paranagama Report, [320].

94  The UN Expert Panel Report at [204]-[205] and the OISL Report at [759]-[761] briefly outline the IHL requirement of precautions.

95  Rules 15-21, ICRC Study, applicable to NIACs.  This rule can also be implicitly inferred from Article 13(1) of AP II although does not explicitly require precautions to be taken. Neither common Article 3 nor AP II stipulates requirements for the planning and carrying out of attacks. Article 2(3) of the 1907 Hague Convention (IX) first set out the principles of precautions in attack, although these were more clearly codified in Article 57(1) of the AP I.

96  Rule 16, ICRC Study.

97  Rule 17, ICRC Study.

98  Rule 21, ICRC Study.

99  Rule 19, ICRC Study.

100  Rule 20, ICRC Study.

101  Ibid.

102  Rule 16, ICRC Study.

103  UN Expert Panel Report, [205]; OISL Report, [765].

104  Paranagama Report, [32].

105  Paragama Report, [327], [368].

106  Rules 22-24, ICRC Study, applicable to NIACs.

107  Rules 22-24, ICRC Study, see also Article 13(1), AP II.

108  Rule 23, ICRC Study, see also Article 13(1), AP II.

109  Rule 24, ICRC Study.

110  See, e.g., Witness Accounts F, G, H, I, J and K.

111  Toni Pfanner, ‘Military uniforms and the law of war’, 86 International Review of the Red Cross 853, 122. In fact, Pfanner notes that ‘non-State parties to a non-international armed conflict are not allowed to wear military uniforms according to national law, which restricts their use.’ Additionally, he explains, the wearing of civilian clothes is only unlawful if it amounts to perfidy, 104.

112  See generally Section 6, ICEP Report.

113  Witness Account L.

114  ICEP Report, [6.24] which cites the UN Expert Panel Report and an eyewitness account.

115  For further detail on the reasons why civilians remained in the conflict zone, see response to the question below, ‘Could the LTTE’s conduct be characterized under IHL as hostage taking of the entire civilian population?’ on pages 39-40 of this paper.

116  See, e.g., Witness Accounts L, M, N and O.

117  Witness Accounts M, L and N.

118  See, e.g., Witness Accounts O, M, K, P and Q. See also UN Expert Panel Report, [177(b)]; and Ministry of Defence Report, [182], [187], [191].

119  Paranagama Report, [103], [154],[ 246], [487]-[498].

120  Ibid., [246].

121  See, e.g.  UN Expert Panel Report, [96] ; OISL Report [276].

122  See, e.g.  OISL Report [276].

123  Even though the ICRC generally refers to the relevant IHL principle as one of ‘reciprocity’, the notion is perhaps more accurately described as the ‘principle of non-reciprocity’. This paper refers to it as the ‘principle of non-reciprocity’.

124  Narrative iii Report, 51, 73.

125  Rule 140, ICRC Study, applicable to NIACs.

126  Article 1 of the Geneva Conventions makes clear that parties to a conflict undertake to respect and ensure respect for the Conventions ‘in all circumstances’. The rules in common Article 3 must similarly be observed ‘in all circumstances’. The relevant customary IHL principle states that ‘the obligation to respect and ensure respect for international humanitarian law does not depend on reciprocity’; Rule 140, ICRC Study; see also Article 51(8) of AP I, ‘any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57’.

127 Melzer, Nils. 2010. "Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques of the ICRC's Interpretive Guidance on the Notion of Direct Participation in Hostilities". New York University Journal of International Law and Politics. 42, no. 3: 833.

128  Paranagama Report [43], [147], [631].

129  Ibid., *43+. See also *369+, which states: “It is inevitable that civilian casualties will be higher in circumstances in which the enemy has acted unlawfully and placed civilians in harm’s way and the principle of proportionality has to accommodate this reality.”

130  Ibid., see [33], [42], [71].

131  Rule 96, ICRC Study, applicable to NIACs.

132 Common Article 3(1)(b), Geneva Conventions.

133 Rule 96, ICRC Study.

134  See commentary on common Article 3 in Jean Pictet, Commentary on the Geneva Conventions of 12 August 1949 (ICRC: Geneva, 1952), 229–30.

135 Sri Lanka acceded to the Hostages Convention on 8 September 2008.

136 Article 12, Hostages Convention. According to the ICRC Study, the definition of hostage taking in the Hostages Convention, although drafted outside the IHL context, provides useful guidance as to the elements of the offence, see discussion under Rule 96, ICRC Study.

137 Article 1, Hostages Convention.

138 ICTY, Prosecutor v. Blaskic(Case No. IT-95-14), Trial Chamber, Judgment, 3 March 2000 [158]

139  See, e.g., Witness Accounts A, E and D.

140  Sky News, Interview of Gotabaya Rajapaksa, uploaded 28 March 2009, available at: https://www.youtube.com/watch?v=pKmM2qg95R0 [accessed 24 July 2015].

141  See, e.g., Witness Accounts A, G and T.

142  See, e.g., Witness Accounts A, G and C.

143  See, e.g., Witness Accounts A, B and C.

144  See, e.g., Witness Accounts D and E.

145  See, e.g., UN Expert Panel Report, ii-iii, [177(a)], [237].

146  Witness Accounts M, L and N.

147  Ibid.

148 Witness Account L.

149  Paranagama Report, [344].

150  Paranagama Report, [21], [42], [71], [ 284].

151  Ibid., [258]. See also *42+, which refers to: “Shelling civilian hostages in order that the LTTE might assign those deaths to the SLA for media purposes to provoke international humanitarian intervention.”

152  Ibid., [106].

153  Paranagama Report, Military expert opinion [18].

154  Rule 97, ICRC Study, applicable to NIACs.

155  See definition under Rule 97. In particular, the study specifies that ‘the prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations. Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.’ 

156  Ibid

157  Rule 23, ICRC Study.

158  Rule 24, ICRC Study.

159  UN Expert Panel Report, iii and [80], [97], [177(c)]; LLRC Report, [4.268], [4.350]; OISL Report [791].

160  See, e.g., Witness Accounts G and A.

161  Witness Account A.

162  Ibid.

163  Ibid.

164  Paranagama Report, [ 141].

165  Ibid.

166  Ibid, [246].

167  Ibid.

168  Ibid., [477].

169  ICRC Interpretive Guidance, 56-57.

170  See, e.g., ICRC, Summary Report of Fourth Expert Meeting: Direct Participation of Hostilities in Armed Conflict, 2006, 46-8; and ICRC, Summary Report of Second Expert Meeting: Direct Participation of Hostilities in Armed Conflict, 2004, 6-7

171  See discussion of practice under Rule 14, ICRC Study. Germany, Australia and the UK take similar positions but they are parties to AP I.

172  Ibid.

173  In relation to fleeing the advancing Sri Lankan Army forces, see, e.g., Witness Accounts S, R, I, T, S, U, E, T and C. On fleeing as a result of fighting between the Sri Lankan Army and LTTE, see, e.g., Witness Accounts D, S and C. On fleeing shelling and bombing attacks, see, e.g., Witness Accounts T, A, C, R, E, V, H, U, D, G, W, X, S and D.

174  See, e.g., Witness Accounts A, R, G and U.

175  See AP Commentary [4789]. This principle is codified in Article 50(1), API applicable to IACs. See also the discussion above at [27] and following.

176  Paranagama Report, [364].

177  Ibid., [147]

178  Ibid., [362] 

179  Ibid., [365].

180  Schmitt, Michael N. 2008. “Human Shields in International Humanitarian Law”. Israel Yearbook on Human Rights. 38: 17-59. *Hereinafter Schmitt, “Human Shields in International Humanitarian Law”+.

181  Paranagama Report, [369].

182  Ibid.

183  US Department of Defense (Office of General Counsel), Law of War Manual, June 2015, 5.12.3.

184  Paranagama Report, [365].

185  Article 38(1)(b), ICJ Statute.

186  ICJ, North Sea Continental Shelf cases, Judgment, 20 February 1985, [74].

187  See discussion of practice under Rule 14, ICRC Study. 

188  Supreme Court of Israel, Public Committee against Torture in Israel v. The Government of Israel, HCJ 769/02, 11 December 2005, [42] (emphasis added).

189   The ICRC’s Model Manual on the Law of Armed Conflict for Armed Forces does not constitute state practice.

190  Paranagama Report, [ 362].

191  Article 37 of AP I which refers to IACs. The ICC Statute includes killing or wounding treacherously as a war crime in both IACs and NIACs: Article 8(2)(b)(xi) (applicable to IACs) and Article 8(e)(ix) (applicable to NIACs).

192  Rule 65, ICRC Study, applicable to NIACs.

193  Article 37(1), AP I.

194  Article 8(e)(ix), ICC Statute.

195  See, e.g., Witness Accounts F, G, H, I, J and K. See also UN Expert Panel Report, [97]; LLRC Report, [4.64], [4.275], [4.357]; Ministry of Defence Report, [179], [180], [196(d)]; and ICEP Report, [1.19], [6.199], [6.248].

196  See, e.g., UN Expert Panel Report, 19, fn 26.

197  See OISL Report, [911] which suggests that soldiers were killed as a result of the attack.

198  Paranagama Report, [397]- [398]. 

199  Ibid., [389].

200  UN Expert Panel Report, iii and [80], [97], [177(c)]; LLRC Report, [4.268], [4.350]; OISL Report [756]; Paranagama Report, [35], [36], [131],[246].

201  According to CIL, a ‘safety zone’ (which is essentially what the ‘no fire zone’ proposed to be) should be created by mutual agreement of both parties, in many instances, by written agreement: Rule 35, ICRC Study. The safety zone may be annulled if one party is in breach of their agreement in setting up the zone: commentary to Rule 36, ICRC Study. As the NFZs in Sri Lanka were created by one party, without mutual agreement of the other, it is not clear what the legal ramifications of this was on their status and who was obliged to comply with the NFZ. As is discussed in this section, this legal uncertainty does not negate the importance of complying with IHL on the conduct of hostilities.

202  See [19]-[28] above

203  See [32]-[42] above.

204  See [51]-[52] above.

205  See [52] above.

206  Paranagama Report, [472].

207  Ibid. 

208  This section of the paper draws on evidentiary material and analysis in the ICEP Report, see generally [6.106]-[6.156]. In its Report, the Paranagama Commission refers in paragraph [486] to a number of hospitals that were damaged by shell fire, including Putumattalan Hospital, and concludes as follows: “As regards the allegation of the deliberate shelling of hospitals by the SLA, the view of this Commission is that there is sufficient evidence to give rise to a reasonable belief that a crime or crimes may have been committed. It is also the view of this Commission that a Judge-led investigation should take place in relation to these allegations to determine in the light of the applicable law, if in fact, there is a prima facie case based on the carefully scrutinised evidence” *490+.

209  See, e.g., Witness Accounts M, Y and Z.

210  Ibid.

211  The ICEP Report details evidence relating to subsequent attacks on Putumattalan, from 25 March to around 20 April 2009, see [6.140]-[6.154]; see also OISL Report, [843]-[849]

212  ICEP Report, [6.155]; OISL Report [845].

213  Putumattalan Hospital and the UN Compound were specifically protected objects under IHL, which means that they were protected from attack. See, in particular, Rule 30 of the ICRC Study which states, ‘Attacks directed against medical… personnel and objects displaying the distinctive emblems of the Geneva Convention in conformity with international law are prohibited’ and Rule 32 which states, ‘Objects used for humanitarian relief operations must be respected and protected.’

214  See [19]-[24] above.

215  In relation to the marking of the hospital and ambulances, see UN Expert Panel Report, [103] which appears to rely on witness accounts of Witness Accounts A1, P and M. In relation to the UN flag, see Witness Accounts M, P, A1, K and Z, see also OISL Report [839].

216  In relation to the hospital, see UN Expert Panel Report, [103], OISL Report [840], and Witness Accounts P and M. In relation to the UN compound, see OISL Report [840], and Witness Account M.

217  See, e.g., Witness Accounts P, M, Y, K and Z. The Sri Lankan Ministry of Defence has confirmed the frequent use of UAVs around this time, see ICEP Report, [6.114].

218  See, e.g., Witness Accounts A1, M, P, Y, M and K.

219  UN Expert Panel Report, [104], OISL Report [841].

220  The available information suggests that the LTTE moved to defensive positions approximately 100 meters from the hospital on around 19 April 2009, by which time the earthen bund in the area between Putumattalan Hospital and Nanthikadal Lagoon was extended north to a final length of over one kilometre, approaching within 100 metres of the hospital compound: UNITAR Report, 16-7; ICEP Report, [6.150], see also [6.147]-[6.149]; OISL Report [841].

221  See, e.g., allegations cited in ICEP Report, [6.33]-[6.34], [6.96], [6.101], [6.153].

222  See, e.g., Witness Accounts T, S and D.

223   OISL Report, *841+ concluded based on witness statements that the LTTE ‘were not positioned between the hospital and the SLA on the opposite shore’. 

224  Rule 11, ICRC Study.

225  An indiscriminate attack can be evidence of a direct attack on civilians or civilian objects: Galic, [57].

226  See, e.g., Witness Account M; and UNITAR Report, 16.

227 LLRC Report, [3.18].

228  OISL Report, [735]; ICEP Report, [1.14], [6.28], [6.227], [6.235]-[6.236], [6.293].

229  ICEP Report, [6.135]-[6.139].

230  Steven Ratner, ‘Accountability and the Sri Lankan Civil War’, 106 American Journal of International Law 4 (2012), 805.

231 LLRC Report, [4.262]- [4.285].

Dr Isabelle Lassée

Isabelle has worked in Sri Lanka for the past five years. Previously, she has interned at the prosecutor’s office at the Khmer Rouge tribunal in Phnom Penh, and has worked at several UN agencies and NGOs in France, Ghana, the Maldives. She has also taught international human rights law, international humanitarian law and international criminal law at various universities including Sciences Po, Paris.

Isabelle has a doctorate in international law with high honours from Université Paris II Panthéon-Assas. Her doctoral research focused on the role and contribution of UN mandated commissions of inquiry to peace building, human rights protection and Transitional Justice. She holds a Master’s degree in human rights and humanitarian law from Panthéon-Assas, an advanced research diploma in international law from the Institut des Hautes Etudes Internationales, and a certificate in criminology from the Institut de Criminologie de Paris.

Isabelle is an avid extreme sports enthusiast, but since arriving in Sri Lanka has given up sky-diving for kite-surfing.

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