WAR CRIMES IN SRI LANKA What the international experts say (5)

Desmond de Silva QC-April 9, 2015, 12:00 pm

Finally, the government was alleged to
have deprived civilians in the conflict zone from receiving necessary

humanitarian aid. This allegation is based on the fact that there was a
significant shortage of food and medicine available despite deliveries that
were made to the conflict zones.
*Desmond de Silva on the **permissible parameters of collateral damage*
*Desmond de Silva QC is a prominent Queens Counsel in England who
was appointed by UN Secretary General Kofi Annan as the Chief Prosecutor
of the Special Court for Sierra Leone.*
* (This is an edited and abbreviated version of a legal opinion. The
language and the title has been modified to suit a general readership.
Reducing a detailed legal opinion to a newspaper article does not do justice
to the experts concerned. We do so only in order to keep the Sri Lankan
public informed about the thinking of eminent international experts which
may differ in significant ways from the propaganda that the public often
hears from interested parties. The complete legal opinion is available at
/http://www.island.lk/index.php?page_cat=article-details&page=articledetails&code_title=122896) *
In the final phase of the conflict when the LTTE was facing inevitable defeat
it resorted to holding hostages as a human shield and shelling the Sri
Lankan Army (SLA) from No Fire Zones so as to force the Army to run the
risk of causing civilian casualties in responding. No doubt, this was done
for the purpose of assigning allegations of civilian killings to the Army. In
addition, there was evidence from many sources that the LTTE fired
artillery into their own people. This strategy, is not unknown in hostilities
of this kind where there is a need on the part of the losing side to provoke
a propaganda storm so as to invite international intervention to prevent
impending defeat.
Upon the defeat of the LTTE a host of allegations were launched against
the SLA which included the unlawful targeting of civilians and causing
illegal collateral damage. Currently, whether or not an attack that results in
civilian deaths is legal under international humanitarian law depends on
whether the attack meets the requirements of three principles: (1)
Distinction, (2) Military Necessity, and (3) Proportionality. A violation of
international humanitarian law only occurs if there is an intentional attack
directed against civilians, or if an attack is launched on a military objective
with the knowledge that the incidental civilian injuries would be clearly

excessive in relation to the anticipated military advantage.

In the final stages of the war, according to the Report of the
Secretary-.general s Panel of Experts on Accountability in Sri Lanka
around 330,000 civilians were trapped in an ever decreasing area, fleeing
the shelling but kept hostage by the LTTE and being used as a strategic
human buffer between themselves and the advancing SLA. From February
2009 onwards, the LTTE started the point blank shooting of civilians who
attempted to escape the conflict zone whilst continuing a policy of suicide
attacks outside the conflict zone. On Friday (April 3) the UN Secretary
General Ban Ki-Moon called on the LTTE to allow civilians to leave the
conflict area of their own free will. He expressed his deep distress by
continuing reports of civilians being kept at extreme risk, against their will
and with heavy casualties in a very small area by the LTTE. The UN
Secretary-General (UNSG) deplored the forced recruitment of civilians,
particularly children, stating the severe restrictions of the LTTE on their
freedom of movement violated international law.
The immediate duty of the Government forces was to free the hostages by
defeating their captors and in order to do so they were entitled to use as
much force as was absolutely necessary to completely overwhelm their
enemy, subject to the principle of Proportionality. This was done, and
296,000 civilian hostages whose future was uncertain in the hands of the
LTTE, were now saved. In my view, this was a military and humanitarian
necessity. When military necessity is understood to require non-combatant
death, such killing is permissible and legal if it is proportionate to the
expected military advantage of the operation.
By doing their due diligence to ensure that the number of casualties was
as low as possible and that only military targets were fired upon, the
Government satisfied the principles of Necessity, Distinction and
Proportionality.
I bear in mind that there was an urgent need to bring the war to a swift
conclusion, save as many hostages as possible and to prevent the escape
of the LTTE leadership by sea. Their escape would have enabled them to
position themselves elsewhere in the World and continue directing
murderous terrorist activities against the people of Sri Lanka. The
phenomenon of a group from outside waging war against a state was
.exemplified by the Al-Qaeda attack on the Twin Towers in New York in
2001 and indeed by the murder of Rajiv Gandhi, the Prime Minister of

India by the LTTE.

Thus, the damage and loss of life, regrettable as it was, was merely
collateral damage. It is my opinion that a war crime cannot be ascribed to
the Government on the basis of the facts set out above.
The function of the principle of proportionality is to relate means to ends
did the military result justify the means required to accomplish it, the
death of innocents. It is not easy to assess what attacks are
disproportionate; to a large degree the answer depends on an
interpretation of the circumstances prevailing at the time, the expected
military advantage gained by striking a certain military target, and other
context-specific considerations.
It should also be noted that the principle of proportionality is often
misapplied. For instance, in some cases the mere quantum of collateral
damage and incidental injury causes critics to condemn a strike as
disproportionate. However, the extent of harm and damage is relevant only
as it relates to the military advantage that was reasonably expected at the
time the attack was launched. Importantly, the standard is "excessive" (a
comparative concept), not "extensive" (an absolute concept). Damage to
civilians or their property can be extensive without being excessive.
Assuming the military advantage anticipated itself is high extensive
damage will not be excessive. Thus, where the military object is of
paramount importance the right of civilians to be free from the effects of
hostility diminishes.
When assessing the legality of "collateral damage" under lHL,
disproportionate attacks are prohibited in two ways. First, military
commanders must evaluate the potential civilian losses anticipated, and
not pursue the attack if they are excessive in relation to the, military
advantage gained International courts and national military tribunals use
a "reasonable commander" standard based on the circumstances at the
time to determine whether a particular military act was proportional.
Another allegation made against the Security Forces was that they
executed surrendering soldiers of the LTTE. These allegations ions are.
based on video footage allegedly showing Sri Lankan soldiers killing
captive LTTE members in January 2009 as well as other sources that
reported that government forces killed several LTTE leaders while they

attempted to surrender in May 2009.

Based on my instructions, however, it is unlikely that this crime was
committed. As I have observed before, if there were individual acts that
amounted to war crimes the authorities have the judicial structures within
which to deal with perpetrators. According to the government, 11,986 LTTE
members were either detained or surrendered and 10,490 have already
undergone rehabilitation and have been reintegrated into society. The rest
are either currently under rehabilitation or are scheduled for prosecution.
Additionally, the government asserts that the same accommodations were
made for family members of LTTE. Therefore, based on these facts alone,
it is unlikely that this crime occurred.
Finally, the government was alleged to have deprived civilians in the
conflict zone from receiving necessary humanitarian aid. This allegation is
based on the fact that there was a significant shortage of food and
medicine available despite deliveries that were made to the conflict zones.
The government asserts that they worked with several UN agencies to
provide aid to those in need in the conflict zones. Additionally, if there was
any shortage in aid supplied, it was due to the fact that the LTTE
consistently targeted the UN food convoys throughout the operation.
Furthermore, few facts have been asserted that actually attribute
responsibility to the government for the shortage in aid.
Link: Original legal opinion of Desmond de Silva
http://www.island.lk/index.php?page_cat=article-details&page=articledetails&code_title=122971
WAR CRIMES IN SRI LANKA - What the international experts say
Professor Michael Newton on civilians, hostages and artillery fire
Sir Geoffrey Nice and Rodney Dixon: Law applicable to military ops
WAR CRIMES IN SRI LANKA - What the international experts say (2)
What the international experts say (3)
WAR CRIMES IN SRI LANKA

WAR CRIMES IN SRI LANKA What The International Experts Say 4

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