US lawmakers exhibit a concerning ignorance regarding the extensive civilian casualties that occurred during Sri Lanka's war on terrorism.
by Daya Gamage
Declaring that the government of Sri Lanka, while combating ‘Tamil Organizations’ which were fighting for a Tamil Homeland in the North-East, committed genocide against the Tamil people, a resolution was tabled in the US House of Representatives, on May 15, 2024, to coincide with the 15th anniversary of the conclusion of the LTTE’s terrorist war; it states, “Recognizing the hundreds of thousands of lives lost during Sri Lanka’s almost 30-year armed conflict, which ended 15 years ago on May 18, 2009, and ensuring nonrecurrence of past violence, including the Tamil Genocide, by supporting the right to self-determination of Eelam Tamil people and their call for an independence referendum for a lasting peaceful resolution”.
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| Outlook of US Congress. Photo: © Orhan Çam / Fotolia |
The Resolution also quotes the then State Department Assistant Secretary Richard Boucher, during a visit to wartime Sri Lanka on June 1, 2006 as having said, “There are legitimate issues that are raised by the Tamil community, and they have a very legitimate desire, as anybody would, to be able to control their own lives, to rule their own destinies and to govern themselves in their homeland; in the areas they’ve traditionally inhabited.”
Ill-conceived use of Boucher’s pronouncement
It is ill-conceived to use Boucher’s 2006 pronouncement in the year 2024 when Government of Sri Lanka’s ‘Census of Population and Housing’ even in the Year 2012 – well acknowledged by official reports of the World Bank – that of the 11.14 percent of Sri Lankan Tamils (excluding the near 5 percent Tamils of Indian Origin living in the plantation areas in the centre of the country) only 7.81 percent is living in the North-East (Tamil Homeland) and 3.34 percent domiciled in the rest of the country in the Sinhalese-majority districts with gainful employment, access to housing, education and economic opportunities away from the so-called Tamil Homeland in the North-East. In 2012, the percentage of Sri Lanka Tamils living outside the North and the East is 42.76 percent, and in the Year 2024 it is closer to 50 percent.
If someone explained these demographic data to Members of the U.S. House of Representatives wouldn’t they entertain a second thought as to in what manner 50 percent of Tamils could claim a ‘Tamil Homeland’ when another (close to) 50 percent is left out? Let’s bring to the attention of American lawmakers and policymakers cogent facts related to ‘genocide’ and ‘civilian casualties’ and also ‘encourage’ ‘others’ that have ‘legitimate and moral authority’ to use their ‘diplomatic overtures’ to educate Washington. Since the military battle between the Government of Sri Lanka (GSL) and the Tamil Tigers ended in May 2009, the issue of civilian casualties during the final months of the battle and the human shield associated with it emerged when Sri Lanka’s accountability and transparency were focused on the Office of Secretary-General of the United Nations, the US Department of State, the US Congress, global human rights organisations and in many Western administrations.
Human shields
Following the deaths of the Tamil Tigers, the issue of human shield – to which the non-state actor was solely responsible and well known to the international community – became a secondary issue while the civilian casualties were given much prominence. Insinuating that civilian casualties were largely due to GSL’s military offensive, accountability and transparency figured prominently in Resolutions adopted by the UN Human Rights Council (UNHRC) in Geneva since 2012 and subsequently in 2015, 2016 and 2017; they called for a hybrid investigative mechanism to probe as to whether Sri Lanka violated international humanitarian law (IHL).
The prominence given to civilian casualty issue – leading to the allegation of genocide – eclipsed the issue of the use of human shields by the Tamil Tigers. The interconnection of both issues was ignored as they were not simultaneously discussed. It should be critically noted why those who demand accountability and transparency from Sri Lanka failed to include human shields used by the LTTE as a factor in the alleged excessive force analysis.
In a non-international armed conflict, it is appropriate to unearth the legal framework and mechanisms which are associated with the presence of civilians in a battlefield. Since the Eelam War IV (2006-2009) ended, Sri Lanka has been subjected to serious scrutiny of the manner in which it conducted the offensive during the final months. It is vital to note here in what form these allegations of international observers reached the UN and policy-framers/policy-makers of Western nations – in most cases Washington – leading to the accusation that Sri Lanka the IHL and committed war crimes leaving aside larger issues.
International observers rushing to judgment
In the case of Sri Lanka, the tendency of international observers to rush to judgment – and censure –is evident from the exaggerated civilian fatality figures cited extensively in their reports. The number of unarmed Tamils killed during the final stage of the war (January – May 2009) has been arbitrarily placed at 40,000. These deaths are blamed largely on the Sri Lankan military personnel who were accused of using excessive and indiscriminate force, and thereby committing war crimes.
The figure of 40,000 was arrived at by subtracting the number of internally displaced civilians from the UN’s estimate of the number of civilians caught up in the final offensive. According to a diplomatic cable from the US Embassy in April 2009 to the State Department, the UN had estimated that from January 20 to April 6, civilian fatalities numbered 4, 164 and 10,002 others were wounded.
An unpublished report by the United Nations country team in Sri Lanka stated that from August 2008 to May 13, 2009 (six days before the war ended), the number of civilians killed was 7,721. The International Committee of the Red Cross, the only outside agency, which was present in the war zone during the final phase, used various statistical indicators to conclude that the total number of noncombatants killed was around 7,000. On 09 March, the UN Country Team, for the first and only time, briefed diplomats in Colombo on the civilian casualty figures it had collected from the Humanitarian Convoy 11 (they were allowed in the battle zone).
According to this briefing, 2,683 civilians died between 20 January and 7 March, and 7,241 persons were injured. But the UN Country Team did not indicate to the diplomats that the vast majority of the civilian casualties were due to government shelling. (United Nations, “Report of the Secretary-General’s Internal Review Panel on UN Actions in Sri Lanka” 2012 Page 11). The British military attaché in Colombo reported that about a quarter of those killed were possibly Tamil Tigers who had discarded their uniforms. Despite all these contradictory fatality figures, a commission appointed by the UN Secretary General deemed the figure of 40,000 definitive, and all western governments have since accepted it unquestioningly.
Battlefield reality
Quite apart from the numbers killed and wounded is the question of Sri Lankan behaviour in prosecuting the offensive and how it is to be judged in terms of the law of war. Critics claim that the Sri Lankan forces used excessive force, and especially artillery, indiscriminately; some even claim that civilians were targeted intentionally. In fact, the reason that so many Tamil civilians were interspersed with Tiger combatants in the battle zone is that the latter forced large numbers of civilians to accompany them as they retreated towards the coast, and used them as human shields as government forces closed in.
There are well documented reports of Tigers shooting civilians who tried to save themselves by swimming away across the lagoon. Given the Tigers’ ruthless treatment of civilians throughout the war, there is even a prima facie case to be made that the LTTE leadership welcomed civilian fatalities as a way of galvanising foreign powers to bring Colombo under international pressure to declare a ceasefire.
The LTTE political commissar Puleedevan told some friends in Europe, “just as in Kosovo if enough civilians died the world would be forced to step in”, (Quoted in Frances Harrison’s Still Counting the Dead: Survivors of Sri Lanka’s Hidden War – London: Portobello, 2012)
International Humanitarian Law
International humanitarian law (IHL) provides the legal framework for those who are fighting for one of the parties to an armed conflict, and for those affected by the effects of hostilities. IHL aims to protect those who are not taking part in the hostilities. However, IHL acknowledges that civilians and civilian objects may legitimately be affected by warfare and the existence of collateral damage. Even though civilians and civilian objects may not be directly targeted, the IHL principle of proportionality allows civilian casualties and damage to civilian objects, under the restriction that these are not excessive to the military advantage anticipated.
The IHL principle of proportionality is commonly understood to be stipulated in article 51 (5) (b) of Additional Protocol I (1977) to the Geneva Conventions: “[Prohibited are attacks] … 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.”
During the final phases of the Eelam War IV – February through May 2009 – the GSL military had gained the upper hand, and the retreating Tigers in a desperate bid to prevent the Army from advancing, stepped up the forcible conscription and used civilians as human shields. The American lawmakers who tabled the Resolution this month either turned a blind eye to these facts or the pro-LTTE groups pulled the wool over their eyes.
The LTTE political commissar Puleedevan outlined his outfit’s strategy when he stated “just as in Kosovo if enough civilians died the world would be forced to step in”. The LTTE wanted a pause in fighting for its top leadership to flee to the North African state of Eritrea. According to the 15 December 2006 US Senate Foreign Relations Committee investigative report the African nation was providing military assistance to the LTTE.
The GSL was under severe pressure during this final state from the International Community (IC) to agree to a ceasefire to protect the civilians shield as harm to civilians could be interpreted as proof of the use of force excessive relative to the anticipated military advantage and thus disproportionate and prohibited under IHL.
Parity of status for LTTE
It may be recalled that IC, through the Norwegian facilitators, gave parity of status to the LTTE by bringing it to the negotiating table (2002-2004) with the GSL in 2002-2004 although the LTTE had been designated a terrorist organisation in many EU countries and the US. As Ambassador Robert Blake noted in a diplomatic cable “(the) Army has a generally good track record of taking care to minimize civilian casualties during its advances…”, if the GSL military forces, which were under legal constraints, had not refrained from attacking there would have been many more thousands of civilian casualties at the time of the conclusion of the war, as remarked by the ICRC Asia Head to a State Department official. These legal and moral constraints exercised by the GSL military were highlighted by Jacques de Maio, the ICRC’ Head of Operation for South Asia when he met US Ambassador-at-Large for War Crimes Issue – John Clint Williamson for a classified briefing – on July 9, 2009 along with several INGO heads in Geneva, Switzerland. The ICRC was the only international organization the GSL allowed in the northern battle field for humanitarian work.
The diplomatic cable sent by Ambassador Williamson to Washington on the issue of potential violations of IHL, quoted Maio as saying that “the Sri Lankan military was somewhat responsive to accusations of violations of International Humanitarian Law (IHL) and was open to adapting its actions to reduce casualties […] He could cite examples of where the Army had stopped shelling when ICRC informed them it was killing civilians. In fact, the Army could have won the military battle faster with higher civilian casualties, yet chose a slower approach which led to a greater number of Sri Lankan military deaths ….”
Williamson cable on ICRC statement
Williamson cable further noted what Jacques de Maio said about the LTTE and its strategies: “On the LTTE, de Maio said that it had tried to keep civilians in the middle of a permanent state of violence. It saw the civilian population as a “protective asset” and kept its fighters embedded amongst them. De Maio said that the LTTE commanders’ objective was to keep the distinction between civilian and military assets blurred …”
Ambassador Williamson met the ICRS South Asia Head to collect information in relation to US Congressional reporting requirements as the latter was the only person who could provide a clear picture of the ground situation. How come these reports never reached American Congressmen? Was it due to a lapse on the part of Sri Lanka?
One party to the conflict in Sri Lanka is considered non-existent and holding that party accountable for its actions is not possible. Therefore, only Sri Lanka’s actions have come under scrutiny. This writer and his co-author of a manuscript now being developed on US-Sri Lanka relations, Dr. Robert K. Boggs, a retired Senior Foreign Service – Intelligence Officer of the State Department, have been told by many senior (now retired) Foreign Service officers of the US. Department of State that Sri Lanka should be held to a higher level of accountability as it is the legitimate (state actor) administration bound to adhere to international laws insinuating that the separatist-terrorist group – the LTTE – is an illegal organisation that did not abide by international laws anyway.
The International Community, as well as the Office of the UN Secretary General along with the UN High Commissioner of Human Rights (UNHCHR) and the UN Human Rights Commission (UNHRC), after the conclusion of the Eelam War IV, commenced their investigation solely to ascertain whether the Government of Sri Lanka had adopted appropriate precautions for the protection of civilians instead of finding whether the Tigers had taken adequate measures to keep the civilians away from the battlefield.
The circumstances under which the unarmed civilians were present in the battlefield were never factored in by the global investigators. Even now by the ‘presenters’ of ‘resolutions’ to the US Congress. Had the global investigators looked into what motivated and under what circumstances the LTTE kept the civilians in or around military objectives they would have connected such exercises to the IHL norms. The United States, it is well known, in its overseas Global War on Terror (GWoT) operations in Iraq, Afghanistan and other places, has not always been transparent about the civilian casualties caused on its watch. The Executive Order – United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force – signed by President Obama in July 2016, among other matters, to assess, report and make public civilian casualty figure was drafted at a time when there was no other systematic reporting of civilian casualties. Section 3 of the Executive Order directs: (Quote) Report on Strikes Undertaken by the U.S. Government Against Terrorist Targets Outside Areas of Active Hostilities. (a) The Director of National Intelligence (DNI), or such other official as the President may designate, shall obtain from relevant agencies information about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities from January 1, 2016, through December 31, 2016, as well as assessments of combatant and non-combatant deaths resulting from those strikes, and publicly release an unclassified summary of such information no later than May 1, 2017. By May 1 of each subsequent year, as consistent with the need to protect sources and methods, the DNI shall publicly release a report with the same information for the preceding calendar year. (End Quote) President Donald Trump in an Executive signed March 2019 revoked Section 3 of Obama Executive Order. The decision to revoke Section 3 in fact reduced transparency regarding a portion of the most sensitive and secretive of U.S. actions.
The Obama Executive Order was issued at a time when there was no other systematic reporting of civilian casualties. Noting here is that since the conclusion of the Eelam War IV until Washington used UNHRC to reiterate transparency and accountability of Sri Lanka’s actions during the final stage of the war and emphasising the importance of setting-up a hybrid judicial body to probe alleged IHL violation in the 2017 Resolution in Geneva is vital amid the revocation of Section 3, and what Section 3 itself did not bring forth. The US Congress however mandated that the Pentagon provide annual reporting of civilian casualties from its operations in the War Theater under Section 1057 of the National Defense Authorization Act (NDAA).
It should be mentioned here that Section 1057 reporting includes only the Defense Department’s portion of Section 3 reporting. However, the information required by Congress is much higher – it includes civilians wounded as well as killed. Even Obama’s Section 3 of the Executive Order did not give a mandate to provide such data by geographic areas. On the other hand, Section 1057 does not include a toll of estimated combatant deaths to compare against the number of civilian casualties.
The elimination of Section 3 reporting requirement creates a transparency gap regarding civilian toll from any non-Defense Department lethal actions in Iraq, Afghanistan and elsewhere in the war theater. Since the conclusion of the war, the UN and the international community placed more emphasis on the conduct of the military of the GSL ignoring the behaviour of the fighting cadre of the LTTE. The conduct of both parties was not simultaneously assessed to get the larger scenario of the final stage of the battle.
The expert opinion is IHL does not specify how exactly two dissimilar values, human life and military advantage, should be weighed against each other for the purposes of proportionality. It is further complicated by disagreement over who counts as a civilian with immunity from attack and over what exactly constitutes a military advantage. The investigators and accuses of Sri Lanka did not attempt to give a broader focus on these complicated issues. The seven US House Members who tabled the Resolution this month were never apprised of the above scenario: The pro-Tamil Homeland Diaspora Tamil activists who were behind the Resolution concealed all that; and Sri Lanka, all these years, even now, has failed to use its diplomacy to place these ‘revealing facts’ before the policymakers and lawmakers in Washington and elsewhere.
This lacuna compelled this writer and Robert Boggs to develop a manuscript using both our understanding, experience and intense knowledge gained during a thirty-year engagement in the area of foreign affairs, how Washington used its diplomatic maneuvers toward Sri Lanka and the manner in which how lethargic Sri Lanka all these decades (and even now) failing to provide cogent evidence about Sri Lanka’s demographic formation, intra-ethnic and inter-ethnic divisions, cultural patters shared by all ethnic groups, the discrepancies between urban and rural division that have affected all ethnic communities to those who formulate policies in Western democracies. The May 15, 2024 Resolution tabled in the US House of Representatives manifests their lack of research ability and basic thinking. Sri Lanka is equally responsible of its lack of diplomacy.
Daya Gamage is a retired Foreign Service National Political Specialist of the U.S. Department of State once accredited to the Political Section of the American Embassy in Colombo. He is contributing columnist for The Island, a daily newspaper in Colombo.
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