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LTTE cadres are not PRISONERS OF WAR – file charges against them for war crimes in Sri Lanka

The conflict in Sri Lanka has been described as a non-international armed conflict by the Ban Ki Moon appointed 3 member panel (which is not sanctioned by either the UN Security Council or the UN General Assembly). LTTE is designated globally as a terrorist organization. However there is no legal definition for terrorists in the UN. Therefore, it is best that we view provisions of IHL applicability to LTTE and file action against LTTE for breaking those provisions.

The conflict in Sri Lanka is described as a non-international armed conflict because the two parties are the Government armed forces and an organized armed group within Sri Lanka.

Term enemy combatant is used only in an international armed conflict therefore LTTE is not entitled to be referred to as an ENEMY COMBATANT.

In a non-international armed conflict such as Sri Lanka’s, COMBATANT and PRISONER OF WAR STATUS DOES NOT APPLY. (John Kerry must retract reference to LTTE fighters as prisoners of war because they are not POWs under NIAC – non international armed conflict)

Therefore, the present efforts to refer to LTTE cadres as Prisoners of War must be legally refuted and publicly condemned and these hardcore unrehabiliated men should not be allowed to be released from prison. Instead the Attorney General’s Department is bound to press charges against them using domestic laws or specially created provisions and file action against them for war crimes. 

Given that Sri Lanka’s conflict is described as an armed conflict of a non-international character the laws applicable are

  • Common Article 3 to the Geneva Convention (appears in all 4 of the Geneva Conventions)
  • Article 1 of 1977 Additional Protocol II to the 1949 Geneva Conventions
The above two covers those detained to be protected against murder, torture, humiliation/degrading treatment and those detained who had been participating in hostilities are not immune from criminal prosecution under domestic laws. (Thus these unrehabilitated LTTE cadres given that they refused to be rehabilitated and reintegrated into society like the other LTTE cadres should not be referred to as Prisoners of War and should not be released but criminal charges should be filed against them in a Sri Lanka’s domestic courts) for violations of IHL as the Government deems adequate.

The drafters of IHL treaty law purposefully permitted a state’s domestic law to determine the appropriate detention and internment powers in NIAC.

For 30 long years the People of Sri Lanka have been waiting for justice.

For civilians, we want justice for LTTE crimes committed upon us as planned, premeditated murder devising ways of creating terror and targeting civilian lives and civilian infrastructure coming into our lives to disturb us. An armed group must engage in hostilities with the State military and not upon unarmed civilians going to school, travelling to work and going about their lives nor does these armed groups have any entitlement to chase/evict Sinhalese & Muslims from their habitats and confiscating their lands and property as well.

For members of the armed forces and police some of whom have lodged over 5000 cases of missing, need to have answers for where these servicemen are as it is now over 6 years after the military defeat of the LTTE ground force but these soldiers remain MIA. The complaints by their families are lodged with the Presidential Commission on Missing Persons.

Therefore as Sri Lanka’s conflict is described as a NIAC the LTTE fighters are not entitled to POW status but should be charged for their crimes in a domestic court of law without further delays. They should not be released or compensated by the State (taxpayers) – if anyone wants to personally look after them with their personal funds they are more than welcome to do so but not with State funds.

Legal luminaries are welcome to add

Shenali D Waduge

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