Laws of wars: War crimes and its applicability

By Sarath Wijesinghe

War is Tragic Violent and Complicated

(October 30, Colombo, Sri Lanka Guardian) Current topic today in world politics is war crimes which is not a novel scenario at the end of any successful victory of a long battle. The victory of war that engulfed the terrorism arena worldwide and Sri Lanka for three decades considered to be unwinnable was watched by the world with amazement and disbelief by disproving the theory that terrorism can not be crushed militarily. Now it is the post mortem as in the two world wars and the European was in the recent past where some countries, NGO’s and interested groups are clamouring to investigate the atrocities taken place during the struggle to elimination of terrorism which has been a threat to the SAARC region and the world over.

War by nature is tragic and violent and complicated. Any war is bitter and unfortunate which is an evil of necessity in the interest of humanity at large. International law has categorized such was as Just Wars of necessity. Having watched the atrocities committed and mass executions and tortures the world jurists have formulated a code and a set of laws under international law in the interest of the sick, injured, and civilians subjected to cross fire and in war zones. Tamil Tigers, Hamas,al-Quada do not consider bound by laws of war all of which are categorized terrorist organisations by the United States and European Union. They target non combatant civilians, and use humans as shields, execute persons using religious places of worship and hospitals as covers. But it is a sorry state and a matter of concern that some members and organisations of the world family consider LTTE and GOSL on equal terms, most probably based on the precedents and previous examples of the agreement between Prabakaran and the Leaser of the Opposition- then Prime Minister Norwegians as facilitators, which is to the great relief or the peoples of Sri Lanka abrogated by President Rajapaksa as promised in his policy document Mahinda Chintana. Why do not they consider Hamas,al-Quada on equal terms on the wars in Afghanistan and Iraqi still struggling to have control over with enormous ammunition and unlimited funds.

Senator Patric J.Leehy of the Democratic subcommittee is asking a full and independent investigation so that those responsible can be held accountable, for the Human Right violations on June to May 2009 after the war of 30 years, which successfully ended by the most professional forces in the world, the terror event the 4th largest Army- India- was not able to control despite the enormous man power ammunition backed by the regional power of the South Asia. He saws that too many questions are unanswered and Robert Colville of UNHCER is asking for a Gaza modelled investigation conducted by a South African Judge on the atrocities of Israel which they vehemently deny. European Union has passes a resolution on Sri Lanka, based on information received by the opposition propaganda and some media and NGO’s still haunting in Sri Lanka with anti national elements. The most strange and suspicious scenario is the timing if the concerns and resolutions and the selection of January 2009 to June 2009 for the investigation, which is the period the Army crushed the LTTE with the freedom given to them by His Excellency the President as the Commander, who gave political leadership, picked up the officers and provided adequate and sophisticated arms, despite financial constraints. He has vouched to fight against any attempts to take any steps internationally against the forces acted independently during the period identified with the political leadership and the backing they never got for the last 30 years of suffering. What have irritated some interested parties is the political leadership and the vision of the president and ever growing popularity and acceptance in the country and all over the globe and the emergency of a unique foreign Policy for Sri Lanka and the region to which Sri Lanka is giving leadership and a new vision. West needs followers and not innovators. Many locally and internationally have noted our national weakness of short memory. India has still not pardoned Prabakaran for killing their loved leader Prime Minister Rajiv Gandhi, and the recent bomb blast killing 92 and injuring hundreds in Pakistan during Mrs Clinton’s visit are chilling reminders and reminder of what we went through before the LTTE was completely wiped out.

Appointment of Committee of Experts on the USA report and enhance friendship with the West and international realities

Undoubtedly there is a local and international conspiracy aroused and initiated by some anti national elements with ulterior motives against President Mahinda Rajapaksa and his “Regime” by misdirecting and misrepresentation matter as all the attempts in Sri Lanka to grab political power has failed. Therefore the appointment of the committee to look into the contents of the USA report is on the right directions and to the satisfaction of the concerns of EU, USA, and some NGO’s. Even tough the report itself is not based on any reliable or evidence at all. 68 page document is based on text messages, emails, telephone calls from the war torn area- mostly by active activists- aerial photographs taken by NGGO’s and media reports .They need some things to cling into based on baseless but amidst fierce propaganda and massive funding and network of LTTE and manpower worldwide.

Washington Times Editorial is interesting and important. Is says “Sri Lanka is to join Israel as a country facing war crime investigations for effectively fighting back against terror. America should support the Sri Lankan government or keep its nose out of their business. This shows that views of some NGO’s with vested interests are not the position of the general public of the United States. On the appointment of the “Committee of Experts” by president Rajapaksa is hailed and approved by the international community. Ian Kelly of US department was jubilant and said that “This is exactly what we would expect to look into on these very serious allegations of human rights. They may need some action to forget cover the gross violations of human rights in Iraqi and Afghanistan of greater magnitude.” This shows that Sri Lanka is not alone. Majority of fair and like minded USA citizens organisation and media is with us.

The Law.

The Laws of War are codified in Hague in modern concepts conventions from 1898 and 1907. The modern concepts were developed under auspicious of “Nuremburg” trials on the definitions of the London Charter of 8th August 1945. Nuremburg principals show what constitutes a war crime, the procedure and crime under International Law. International Law does not impose a penalty yet the responsibility runs to the head of state.

There were a series of trials and prosecutions to the members of Nazi Government from 1945 onwards. They were dealt with conspiracy and crime against peace, wars of aggression, crime against humanity, war crime and dealing with civilians. These Laws of International Law gradually improved mainly from the World War two having witnessed unprecedented and grave atrocities that shocked the world. Massacres of opponents and victims of wars were frequent and rampant and the need of for Wars of Laws and guidelines were required when there was only total war especially in the west followed by international conflicts.

The Factual Situation

The current violations of the laws or customs of war including murder, ill treatment and deportation of civilians, slave labour in camps, and similar offences and atrocities are parts of war crimes, which are recognized under international law as crimes against humanity since World War 1, World War 2 and onwards. The current debate is the proposition and the revelations in the international media, especially among NGOs that the Sri Lankan government and the LTTE have committed war crimes. The laws of war are guidelines to be followed and effective during wars and armed conflicts, especially for the protection of the sick, wounded, disabled and the affected persons such as civilians and citizens around war zones with no connection to the war or the conflicts. Why do US and some western democracies treat GOSL and equally are questionable as it is a banned terrorist organisation considered to be the most ruthless and feared.

War is justifiable in certain circumstances for self-defence under International Law, and for the protection of citizens in a democratic society. There is no dispute that Sri Lanka and India are model democracies in South Asia in which the current President Mr. Mahinda Rajapaksa and the Government in power is democratically elected. According to the US State Department the LTTE is the most ruthless, powerful and organized terrorist organization which is responsible for the killings of hundreds of thousands of civilians, destruction of national wealth and killing of two leaders of South Asia in Sri Lanka and India and wiping out the entire democratic elected leaders of the Tamil people and killing innocent civilians of Tamil and Sinhala ethnicity. It is legal and justifiable to take all appropriate steps to eradicate terror and terrorism, which has made life miserable and unsafe.

It is to the amazement, surprise and to the disbelief that President Rajapaksa with the help of the armed forces has wiped out LTTE terrorism by disproving the accepted norms and belief by the world that terrorism could not be eradicated militarily. There was no foreign intervention or there is hardly any support for the President Rajapaksa and his brother Gotabaya Rajapaksa - The Defence Secretary - to achieve this unexpected and unbelievable goals and successes.

Current Situation.

Geneva Convention and the Treatises of 1949 which is ratified by 194 countries have dealt with these aspects in detail. Article 27 of 27th 4th Geneva convention is produced as follows –
“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practises, and their manners and customs. They shall at all times be humanely treated, and be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.”

The wordings here are beautiful and the meanings have deep and broad meanings based on humanity. But, are theses been adhered to in the wars and conflicts to the last word is a moot issue, We have a classic example in Afghanistan, Iraq, Vietnam and many other countries and colonies from the time of the World War one of treatment of victims of civilians affected by the war. These are excellent expectations which are difficult to put in to practice. There are 4 treatises and additional protocol setting standards in treatment of victims of war and protecting of civilians in and around the war zone. and the basic rights of those who are captured during military conflict.

The world is aware that the LTTE was using civilians as a human shield which is a grave crime under International Law and a crime against humanity. The entire world was watching carefully as to how well the civilians were treated in Sri Lanka during the conflict and how carefully they were taken out of the conflict for protection and to safe enclaves, when the LTTE last stages resorted to self destruction. These were civilians who were starving and living in fear amidst the LTTE fighters who are generally ruthless and brain washed by the senior carders. It is amazing to note that until the USA report was prepared specifying a certain period of committing war crimes, neither USA nor any other country ever raised the issue at LTTE of war crimes although Sri Lanka as well as any other countries fell victims of this menace. One of the main reasons is the enormous number of LTTE carders and sympathises who fled the country using various illegal ways and means of entering the western green pastures. Today the immigrants of Sri Lankans in countries such as the EU, USA, Canada and Australia are in millions which are economically and politically powerful. The good news is that these people who are otherwise named as Sri Lankan Diaspora is day by day realizing the truth and look forward to considering Sri Lanka, victorious from war as their motherland, again. For the Diaspora and especially the youngsters cricket and the winning of the war are which is, unbelievable coupled with peace, prosperity and a bright future are the main attractions to attract for Sri Lankans again despite vigorous anti Sri Lankan propaganda worldwide. Areas of attractions to attract Sri Lanka’s world famous natural beauty and the enormous natural resources which are full of culture, historical and modern where the inhabitants are world famous for smile and friendship are attractions of the second and third generations of Diaspora is a good sign for a bright future.

The Geneva Convention applies at times of war and armed conflict to governments who have ratified its terms. Sri Lanka has ratified the convention on 28th February 1959 having signed the instrument on 8th December 1949. Not only Sri Lanka, but 194 countries have ratified the instrument means it has universal application which includes the USA forces who are protected by the Patriotism Act where the armed forces are well protected by the act and these are double standards and amount to throwing stones whilst in glass houses. Instead of appreciating the victory over terrorism and the steps taken for settlement of IDPs which costs billion of billions of rupees and the way in which it is done should be investigated in to by using proper channels. The most sensitive interested and the citizens with a grave feelings for the citizens of the North and East predominantly Tamil and Muslims, are the Indians. The leading Indian politicians who ones criticized having listened to here say information after having spent a number of days in Sri Lanka on the invitation of Sri Lankan President has given a full “Bill of Health” to Sri Lanka and Sri Lankan forces. After visiting Sri Lanka they submitted a fine report to the leaders of the Indian parliament of the excellent treatment offered to the trapped civilians as a result of the war for which the LTTE is responsible for.

Patriotic Act of USA.

Patriotic Act in the USA gives blanket immunity to war crime offenders of the USA where ever they are engaged in war either in US or outside are patriots who are supposed to do no wrong, thereby even those who are supposed to have committed offences will not be prosecuted and enjoys unlimited immunity. USA ironically points the finger at others, especially those countries which are independently trying to stand with no support of the legitimate arms dealers. The arms trade is one of the main lucrative and main sources of income of the Western countries, without which they will face unemployment and economic problems. These are matters that concerns small, but proud developing countries such as Sri Lanka who is a senior member of the United Nation in which the reigns are in the hands of the main contributor of funds the USA and the five main world powers. It is time for us to follow suit.

Sri Lankan war heroes and war crimes.

The moot issue is whether the Sri Lankan armed forces are guilty of war crimes, and also whether it comes within the ambit of the Geneva Convention, International Law and the International Humanitarian mechanism. This is a political and factual issue of treating differently on double standards.

The armed forces cannot be found fault or dealt with the USA report alone, facts must be substantiated based on international standards. For that UN must sharpen the teeth which are 60 years old and ailing. The LTTE network is still so strong worldwide that they are able to buy over the individuals and the organizations. It is the time that the Sri Lankan professional and intellectuals will have to be extremely alert, careful and to offer the fullest co-operation to His Excellency the President Mahinda Rjapaksa at this crucial hour.

Writer is a Senior Solicitor, Attorney- At- law, Chairperson SAARC Centre United Kingdom a former Secretary of the Bar Association and a former Chairman Consumer Affairs Authority. He can be reached at sarath8@hotmail.com.

-Sri Lanka Guardian