International law on the" No firing zone"

By Gomin Dayasri

(April 07, Colombo, Sri Lanka Guardian) The dedicated Tamil Diaspora with its travelling companions in the international NGO networks are synchronising a campaign to attract foreign intervention and commit Sri Lanka's military to foreign tribunals in a desperate bid to save the LTTE leadership from annihilation. That is their contribution from across the seas, in truth, to further aggravate the sad plight of the civilians trapped in the No Firing Zone (NFZ).

The initial attempt was through a NGO loaded Presidential Commission of Inquiry with so called biased foreign Eminent Persons (IIPEG) in attendance to fix the Security Forces with possible war crimes on the death of the 17 aid workers of the ACF in Mutur; leading to the air attack on a fictitious Shencholai where young people in a LTTE jungle training camp were killed.

Presently the active campaign abroad is directed towards a dubious desire on the purported perception to safeguard civilians in the No Fire Zone (NFZ), but more to attract provisions of international law, to hinder the forward march of the Armed Forces.

The bottom line is to place pressure on the successful military operations by raising the plea of war crimes to dispirit and thwart operations as an additional pressure on the servicemen to lower the morale. The emerging arena is the NFZ the final resting ground of the LTTE hierarchy.

The LTTE advocates will resort to argue that since it is a designated NFZ sanctioned as a safe sanctuary for civilians by the government forces it must remain so irrespective of whether the LTTE terrorists also seek refuge. It is paramount to retain the civilian population within the boundaries of the NFZ as a soul shield. Any attack made or an inspired attack by the LTTE itself will be portrayed as an act of criminality outside the realm of war.

Even a counter attack to an LTTE onslaught from within the NFZ will be queried as to whether it was in an legal sense 'defensive' invoking the principle of a right of exceeding limits of self defence.

The legal objective would be to tar brush any harm caused to civilians in the NFZ (possibly from LTTE fire) as a prohibitive non defensive use of force under the UN charter, amounting to an aggressive act constituting a crime against peace. At Nuremberg Nazi leaders were charged with similar acts of crime and the judgement described it as a supreme crime.

Action in a battlefield, in a densely populated confined area such as in the NFZ, the terrorist can intermingle with the civilian population and criminally attack the civilians in the absence of policing and place the burden on the Security Forces or draw the Security

Forces to save the civilians and cause an attack. The ensuing collateral harm or damage will be a tactical move inspired by the Diaspora and orchestrated by the LTTE to draw a distinction between war crimes and lawful combat.

The prime objective would be to scuttle military action and bring again a foreign third party intervention to seek diplomatic overtures to make "good faith reliance", as legally obligatory. It would be sugar coated, as a prelude to the launching of a successful military operation, after freeing the trapped civilians. To display a degree of good faith a foreign party enters to safeguard the civilians, for a possible evacuation exercise, as a condition precedent to armed forces entering the NFZ. A foreign interventionist would call for a cease fire and a monitoring process and will eventually commence a negotiating process.

The negotiation is the point for the LTTE to resurrect itself from the grave yard of doom. It is the escape clause from the dungeon of no return.

However to the advantage Sri Lanka holds unlike in the ongoing Gaza episode, there is no punitive blockade. On the contrary the civilians crossing the line have been welcomed with secured safe passages; the civilians are fleeing from terror and the LTTE are indulging in cruel preventing measures to build a soul shield for their own defence. There is no possibility of raising the "shock and awe" doctrine because the State has been providing food medicine fuel and other provision to civilians for years in LTTE controlled areas at state expense including those presently in the NFZ and beckoning them to cross. Medical facilities are provided even to injured of the LTTE.

These humanitarian acts of wisdom comprehensively eliminate the attraction of Articles 33 and 55 of the Fourth Geneva Convention relating to the treatment of a civilian population and Sri Lanka emerges triumphantly against charges for possible violation of such humanitarian laws.

Diaspora cannot turn to the International Court of Crime since neither Sri Lanka nor the LTTE are affiliated to its jurisdiction. NGO pressed hard for Sri Lanka to become a member trying to lobby the garment sector with a tariff exception cherry but the President stood firm notwithstanding pressure brought by interested parties from within the Cabinet.

The establishment of ad hoc international criminal tribunals as in Serbia and Rwanda by the UN Security Council is out of reach because of support received by Sri Lanka from within the UN Security Council and the veto power of China and Russia. The support extended by Asian giants China and Japan at critical times is of much value.

It is possible in view of ground work by the NGO community to invoke, without justification, the claims of universal jurisdiction inherent in national municipal courts on vague allegations of war crimes. This has been resorted to in Britain, Spain, US, France, Germany and Belgium. There is such legislation presently in 12 countries.

The dictator of Chile, Pinochet, was indicted in a Spanish High Court and detained in Britain. The Law Lords of UK upheld the right to extradite, but instead he returned to Chile on the ground of unfitness to face trial, due to extreme illness. Spain has also indicted several Israeli military officers on human rights violations, but they never marked an appearance.

German courts refused to press charges against Donald Rumsfield on torture charges despite strong evidentiary basis and non prosecution by the US authorities. These are opportunistic ventures to attract high profile publicity and as a deterrent of possible claims of detention and prosecution to inhibit travel plans of military personnel.

This is a most unlikely procedure as extradition cannot be sought by governments as the LTTE is a universally acknowledged terrorist organisation holding the civilians against their will in NFZ and preventing their departure by cruel methods for their own survival.

This is still more difficult as the voice of responsibility have called upon the LTTE to free the civilians. In a criminal jurisdiction there is no upper guardian.

The final opportunity could be convening a non governmental civil society tribunal with symbolic legal authority. Bertrand Russel took the lead to establish the Russel Tribunal on the Viet Nam War. The Permanent Peoples Tribunal based in Rome has organised inquiries on 20 international topics. The unofficial World Tribunal on Iraq held in Istanbul under the chairmanship of Indian novelist Arundhathi Roy issued a Declaration of Conscience condemning the US and Britain.

Therefore Diaspora which funded the LTTE may fund a sponsored after dinner theatre presentation of a soap box opera named 'Crimes against Humanity' as a requiem for the many Tamils killed by the LTTE? At most it would be a pantomime, at the least a vaudeville in style of the Wild West.

Global realities are based on double standards. Justice is never measured on Justice alone- Saddam Hussein or Slobodan Milosevic is treated differently to Pinochet ((Chile) or Suharto (Indonesia). As stated by Richard Falk, Professor of International Law at Princeton University-

"When it comes to International Criminal Law, there continues to reside impunity for the strong and victorious and potential accountability for the weak or defeated".

A lull, breather, respite, interval is the salvation for the LTTE. Did a Minister play to the tune of the LTTE when he spoke of "a pause"? A pause for the international players to enter to negotiate until dooms day? Conjuring a defeat from the jaws of victory is possible with bizarre thinking.

-Sri Lanka Guardian