IN SRI LANKA, NO VICTORY FOR CIVILIANS AT WAR’S END
While the civil war in Sri Lanka has finally drawn to a close after more than 25 years of bloodshed, the last few weeks of the conflict saw heavy fighting and civilian casualties. Serious and credible allegations of war crimes on both sides have attracted international attention, and the European Union has called for an independent investigation and the prosecution of anyone responsible for violations of the laws of war. The most pressing issue at the moment is the restrictions on humanitarian access to the battle zone since May 9. Under international humanitarian law, the government of Sri Lanka has the obligation to attend to the wounded, which number approximately 16,000 according to UN figures. At least 7,000 others were killed.“Under international humanitarian law, the lives of all those who are not or are no longer fighting must be spared. Wounded and sick people must be collected and cared for immediately, and detainees must be treated humanely,” said the ICRC’s director of operations, Pierre Krähenbühl, from the ICRC’s headquarters in Geneva on 18 May. “This is all the more urgent since no humanitarian aid has reached those who need it for over a week.”
And according to government figures, there are more than 250,000 displaced people (IDPs) in some 20 camps.
The laws of war also oblige governments to investigate and follow up reports of any war crimes that may have been committed by their forces. There are some indications that the government forces may have deliberately targeted hospitals in the ‘safe zone’, while the Tamil Tigers were accused of using civilians as human shields.
Hospitals and Safe Zones
On May 9 and 10, approximately 1,000 civilian refugees – victims of shellfire – were reported to have been brought dead or dying to a makeshift hospital in Mullivaikkal, in the middle of the ‘safe zone.’ A larger number are alleged to have been buried in the sand. It is a war crime to deliberately to attack a hospital or other medical unit, whether civilian or military. Under customary international law Hospitals and medical personnel are protected from attack, both in international and civil wars.
Despite this prohibition the safe zone, including the hospital within it, was allegedly shelled by government forces.
On May 12 and 13, the Mullivaikkal hospital itself was shelled, killing around 100 people according to doctors working there, one of whom reported that the shelling came from the direction of Iraddaivaikal where Sri Lankan government forces are situated. The makeshift hospital was abandoned by the doctors because of continued shelling, leaving behind about 400 badly wounded patients. In February, the Sri Lanka Air Force bombers cluster bombed and fully destroyed the Ponnampalam Memorial hospital in Puthukkudiyiruppu.
The exception to the protected status of hospitals is found in Article 19 of the Fourth Geneva Convention, which states that hospitals shall not lose their protections under international humanitarian law “unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.” Although the Fourth Geneva Convention does not apply directly in the case of internal conflicts like that in Sri Lanka, this provision reflects customary law. Examples of acts harmful to the enemy are “the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a centre for liaison with fighting troops.” Article 19 further specifies that hospitals used for hostile purposes are only subject to attack after a sufficient warning has been given, and after the warning has gone unheeded. There is no indication that such a warning was given. The presence of wounded combatants in a hospital does not make it a legitimate military target.
During the conflict, satellite images were published by international media which appeared to show recent heavy shelling by government forces in the “safe zone.” Photographs published by Human Rights Watch showed crater marks and significant population displacement between 6 and 10 May. The safe zone was designated as such by the government, and according to the UN at least 50,000 people were trapped in this area.
It is thought that nearly 1000 people were killed on the weekend of May 9 and 10 by government shelling in the safe zone. Under Rule 35 of the ICRC study on Customary International Law, “Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited.”
Whilst this appears to accord a so-called safe zone the necessary protections under international law, under Article 15 of the Fourth Geneva Convention, such a zone is ‘established’ when the parties to the conflict have done so by agreement. In this case, the “safe zones” were not established by agreement with the Tamil Tigers, so they could not formally considered as “protected zones” as set out in the First and Fourth Geneva Conventions and customary international humanitarian law. It was only unilaterally designated as such by the government.
As such, on this basis, government forces were not prohibited from attacking LTTE forces inside a safe zone, thereby putting civilians at risk. Despite this, by declaring the area a safe zone, civilians were encouraged to enter the area, making them highly vulnerable in the event of an attack. Having regard to the presence of almost 50,000 civilians, both parties had an obligation under international humanitarian law to respect the principles of proportionality and discrimination between civilian and military targets. Where attacks on military targets – such as on opposition forces – are to be carried out, an advance warning must be issued to the civilians that the area is no longer an area protected from attack. But the situation was complicated by the fact that tens of thousands of civilians were effectively ‘trapped’ inside the zone, amid heavy shelling, so any such warning could not be heeded.
The Use of Human Shields
The Tamil Tigers denied accusations by the military that civilians inside the war zone were being held as human shields and that they opened fire on those trying to flee. However, there is substantial evidence that this occurred, violating a well-established rule of international humanitarian law. Article 28 of the Fourth Geneva Conventions reflects customary international law and decrees that civilians should not be “used to render certain points or areas immune from military operations” and Common Article 3 of the Geneva Conventions (which applies in internal conflicts) prohibits the taking of hostages.
Locating military forces in populated areas is also a violation of international humanitarian law. According to Rules 22-24 of the ICRC Study on Customary International Humanitarian Law, which arguably apply also to non-international armed conflicts, parties to a conflict, to the extent feasible, shall remove the civilian population and material under their control from the vicinity of military objectives, avoid locating military objectives within or proximate to densely populated areas, and take other necessary precautions to safeguard the civilian population and civilian objects under their control against the dangers of military operations. The imprecise nature of the provision (‘to the extent feasible’) may however make it difficult to use this as a basis for accusing the parties of breaching the law.
The International Response
The United Kingdom has strongly condemned the actions of the Sri Lankan government, telling the government that it may face a potential war crimes probe over deaths of civilians. Foreign Office minister Bill Rammell told the House of Commons that the message from the British government was that it would support “an early investigation into all incidents that may have resulted in civilian casualties, particularly the reported shelling of hospitals, to determine whether war crimes have been committed.”
On 18 May, the European Union called for an independent war crimes investigation into the killing of civilians in Sri Lanka. Meeting in Brussels, the General Affairs and External Relations Council (GAERC) said that it was “appalled by the loss of innocent lives as a result of the conflict and by the high numbers of casualties, including children” and urged both the Sri Lankan Government and the LTTE to fully respect their obligations under international law.
The laws of war also require that governments conduct their own investigations into reports of war crimes by their forces, however there has been no indication from the Sri Lankan government that such investigations will be initiated. If the Sri Lankan government fails in its accountability obligations and fails to address the concerns of ethnic Tamils, the international community may be able to intervene. The International Criminal Court would only have jurisdiction over Sri Lanka, which is not party to the court, if the UN Security Council refers the situation to it. Ultimately, it may be left to the justice systems of other States to uphold their own obligations under Common Article 1 of the Geneva Conventions “to ensure respect” for the Conventions “in all circumstances.”
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Tiger by the Tail
By James Ross
The New York Times, May 21, 2009
Target the guilty on both sides and war crimes trials could be averted
By Anthony Dworkin
The Independent, May 20, 2009
Sri Lanka: Over 250,000 Displaced Persons in Urgent Need of Assistance
ICRC Interview with Monica Zanarelli
May 20, 2009
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May 18, 2009
Council Conclusions on Sri Lanka (PDF)
Council of the European Union
May 18, 2009
Security Council Press Statement on Sri Lanka
United Nations Security Council
May 13, 2009
Sri Lanka: Satellite Images, Witnesses Show Shelling Continues
Human Rights Watch
May 12, 2009
Q&A on Accountability for Violations of International Humanitarian Law in Sri Lanka
Human Rights Watch
April 27, 2009
War on the Displaced: Sri Lankan Army and LTTE Abuses against Civilians in the Vanni
Human Rights Watch
February 20, 2009