Primacy of International Humanitarian Law (IHL) and Its Application in Internal Armed Conflicts
Significance for Sri Lanka
Courtesy of The Island
by M.L.Wickramasinghe
Neville Ladduwahetty’s well argued assertion that international humanitarian Law would be the relevant and applicable law (article titled ‘ International Laws in Armed Conflict’ published in the ‘Island’ of January 25 and 28) for evaluating the 2006-2009 non- international (internal) armed conflict between LTTE and Sri Lankan Security Forces is timely
This article while further strengthening the above proposition, attempts to provide information on how basic concepts of international humanitarian Law (IHL) applies in non-international (internal) armed conflicts (NIACs). This would enable discerning citizens and leaders to obtain a basic understanding of how accountability issues pertaining to Eelam War IV are established in a balanced manner, without continually being subjected to excessive influence of international media materials and other contentious reports.
Non International Armed Conflict (NIAC)
There are two types of armed conflicts (i) international armed conflicts (IAC) where a country invades another country, and (ii) non-international armed conflicts (NIAC) -popularly called internal armed conflicts – where an armed group launches high intensity battles with the security forces of a country. In both of these cases international humanitarian law (IHL) is applied to guide the conduct as well as assess the consequence of armed conflicts.
The International Committee of Red Cross (ICRC) is the mandated authority on IHL. ICRC describes a NIAC as follows: (i) the Country’s Security Forces should be confronted within its own territory by an organized armed Group operating under an effective command structure, (ii) the Group should exercise control over a part of country’s territory (iv) the Group should have the capacity to carry out sustained and concerted military operations. [Ref: March 2008 ICRC Opinion Paper titled “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?’]
LTTE, its operations, and the Eelam War IV fitted perfectly but tragically with the criteria of a NIAC.
LTTE was formed in 1978. Sri Lankan Security Forces and LTTE were engaged in three battles and three rounds of peace initiatives. In 2006, when the Eelam War IV started LTTE was controlling the major parts of the Northern Province and substantial areas in the Eastern Province. The Darusman Report describes the overall power and authority of LTTE : “It operated and sought to project itself as a de facto state. To this end LTTE developed a well-structured international strategy, and in the territory it controlled established its own police, jails, courts, immigration departments, banks and some social services”.
In June 2006, LTTE waged what it called the ‘final war’ to establish an Eelam state using classic conventional warfare across large swathes of land intermixed with guerilla methods and boosted tragically and violently by terrorism. LTTE was described by the U.S. FBI as the most ruthless terrorist organization in the world.
Core IHL Principles and its
Application in a NIAC
International humanitarian law –IHL- is also called the law of wars. The main purpose of IHL is to protect civilians in an armed conflict while simultaneously allowing the achievement of military objectives. IHL regulate the conduct of armed hostilities by balancing principles of humanity and military necessity.
The rules of IHL are those rules included in the Geneva Conventions of 1949 (GC), the 1977 Protocols of GC applicable to IACs and NIACs respectively, and customary laws developed over a period of time by State practice. The judgments of international courts, and the influence of applicable human rights laws have also contributed to the development of IHL. ICRC has compiled all these rules into one publication called Customary IHL Rules. (Ref: nihl-databases.icrc.
The 03 core Principles in IHL are (i) Distinction (ii) Military Necessity (iii) Proportionality. It is the combined results of decisions taken on the basis of the above named principles by military actors on both sides, that primarily determines whether a particular event during an international or internal armed conflict, had violated rules of IHL or not.
Under the distinction principle the parties to the armed conflict are expected to distinguish between civilians and combatants during military operations. This basically means that civilians must not be directly, deliberately and intentionally targeted. The distinction principle also requires that all combatants (including auxiliaries) wear distinguishable uniforms so that civilians can be correctly identified in the heat of the battle. Combatants fighting in civilian dress breach IHL.
Under the military necessity principle, if a military assesses that an adverse military object has to be neutralized to contribute to the achievement of a particular immediate military objective or the overall military campaign objectives, IHL rules would permit a conditional attack on such a military object even when placed near civilians. These conditions are described under the proportionality principle. The party attempting to neutralize the identified military objective has to abide by certain restrictions in the use of fire power; only adequate fire power that is needed to neutralize the identified targeted military object is allowed to be used under IHL in such a situation. The following paragraph is an example of how IHL principles are applied to monitor violations.
The Chief Prosecutor (Mr. Luis Moreno-Ocampo) of the International Criminal Court established to investigate the 2003 invasion of Iraq, wrote an open letter to persons/organizations that queried about the reason for non-acceptance of some allegations of incidental damage during the armed conflict. In it he explained the basis for assessing potential violations of IHL principles. “A crime occurs if there is an intentional attack directed against civilians (principle of distinction) …..or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality)…..”. Alleged violations are assessed on “(a) the anticipated civilian damage or injury; (b) the anticipated military advantage and (c) and whether (a) was “clearly excessive” in relation to (b)”. . [Ref:- www.icc-cpi-int]
Human Shielding
According to Rule No. 97 in ICRC’s Customary IHL compendium the use of human shields is prohibited. Human shielding occurs when military objectives are intentionally co-located among or near civilians with the intent of impeding attacks on those military objectives.
Although human shielding is not cited per se in Protocol 2 to the Geneva Convention which is applicable to NIACs, hostage taking is expressly prohibited. Hostage taking is interpreted to include human shielding. Rule No. 98 of ICRC’s compendium of IHL Customary Rules also prohibits taking of hostages. The vast majority of countries also prohibit human shielding in armed conflict, including USA, UK, Australia and Norway (as stated in domestic laws or operational guideline for armed forces in ‘law of war’ Manuals). Hence human shielding is a criminal act in both IACs and NIACs.
Human shielding is a crime under IHL and other laws. It is also considered as unethical manipulation of the law. Charles J Dunlap Jr. in an article titled ‘Lawfare Today: A perspective’ (ref: scholarship.law.duke.
Some experts and key organizations continue to advocate for the use of both IHL and INRL during NIACs. This is possibly due to two misconceptions. The first may be due to an erroneous view that IHL rules covering NIACs are still ‘undeveloped’ compared to IHL for IACs. This view is erroneous. The last 15 years has witnessed a considerable strengthening of IHL rules on NIACs due to cross-fertilization with other different set of rules. During this period, IHL for NIACs has been strengthened through fusion of applicable international human rights law with the relevant rules of IHL for both IACs and NIACs. The jurisprudence of international criminal courts such as the International Criminal Tribunal for former Yugoslavia had also contributed to the refinement of IHL for NIACs. The climax in this regard was the Study conducted by ICRC on Customary International Humanitarian Law (IHL). This study researched ‘state practices’ on IHL and listed 161 Customary IHL rules of which about 151 rules were found to be applicable to NIACs. All customary IHL rules for both NIACs and IACs identified as a result of this Study are included and explained in the book ‘Customary International Law’ by Jean-Marie Henvkaerts and Louise Doswarld-Beck published by the Cambridge University Press in 2005. According to analysts, the above developments resulted in the ‘the fusion of IHL with IHRL’ in relevant sub-areas, strengthening the human rights aspects of IHL.
The second reason would have been the unfortunate mix-up of the LTTE Eelam War IV with that of NIACs commonly occurring in many parts of the world. These NIACs are characterized by low intensity and intermittent confrontations with long intervals of cold-war like situations and high underlying tension. These latter low intensity NIACs certainly would require the concurrent application of IHRL and IHL. But such a concurrent approach need not be applied to the former. The LTTE-GOSL NIAC was a high intensity, continuous, military confrontation across a vast battlefield. The warring was almost continuous, with absolutely few short pauses. Thus there were two distinct phases; the continuous armed conflict phase and the post conflict phase. Hence technically and conceptually, the concurrent approach is not the best approach for the continuous fighting phase in the Sri Lanka-LTTE NIAC.
The concurrent approach is highly inappropriate from a rights based perspective. The use of this approach is glaringly discriminatory of the Sri Lankan Security Forces and the Sri Lankan State vis-a -vis the LTTE. The LTTE as a non-State party would be protected from the application of IHRL, while the Sri Lanka Security Forces and the State will be doubly burdened and discriminated against being subjected to be investigated under two laws, namely IHL and IHRL. It should also be noted that Sri Lanka was protecting itself from threats against its sovereignty and territorial integrity under Article 5 of the UN Charter.
As Ladduwahetty had also suggested the most appropriate approach for Sri Lanka is to negotiate for a sequential approach – i.e. use IHL till May20, 2009 and IHRL thereafter.
In the changed international environment it may be useful to enter into a dialogue on these issues. It would also be useful to re-visit the opinions presented by world renowned experts such as Rt .Hon. Desmond De Silva, Major General J.T. Holmes, Professor Michael Newton etc etc to the Missing Persons Commission chaired by Mr. Maxwell Paranagama, as well as the chapter on IHL contained in the Report of LLRC chaired by the late Mr.C.R de Silva. These reports provide valuable insights on the conduct of last stages of the LTTE- Sri Lanka non-international armed conflict through an analysis based on the international humanitarian law (IHL).
(The writer is an ex-Journalist, Communication Researcher and a retired Officer of the International Civil Service.)
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