War crimes charges against Sri Lankan leadership

(By: Colonel (Rtd) V A Siriwardana)

It has been reported that certain Western countries are in the process of collecting evidence to try the Sri Lankan Leadership, both Political and Military for committing war crimes. What are War Crimes? The concept of War Crimes is a recent one, came into being after conclusion of the World War II. Mass murder of millions of non combatants by Nazi Germany prompted the allied powers to initiate the concept of War Crimes which resulted in the Nuremberg Trials of 1945-46.

Article 147 of the Fourth Geneva Convention defines war crimes as: "Willful killing, torture or inhuman treatment, including willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power, or willfully depriving a protected person of the rights of fair and regular trial, ...taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict."

What certain Western Countries are trying to imply is that the use of Artillery and Air power by the Armed Forces during the last stages of operations to rescue the civilians held hostage by the LTTE, amounts to committing War Crimes. If this is accepted, it is going to create a precedent that will open flood gates for other countries to bring similar charges against particularly the US, NATO Countries and even the UN Security Council that has authorized certain operations, particularly in former Yugoslavia, Iraq and Afghanistan. Forces involved in all these operations heavily used Air and Naval power to discharge millions of tons of explosives into densely populated cities, resulting in deaths of thousands of non combatants and large scale destruction of property. Video clippings of all these are available with all major TV networks.

More than anything else, such a precedent, if created, will be the biggest boost to terrorism world over. No military any where in the world will be able to function effectively thereafter, thus giving virtually a free run to terrorist groups such as Al-Qaeda and others. The Leaders of the Western Countries trying to initiate War Crimes charges against Sri Lanka should first check with the Senior Officers of their own Militaries whether they would operate without Heavy Weapons and Air Power if they have to face a similar situation i.e. to neutralize an enemy force that possesses heavy weapons.

Terrorists are called 'terrorists' because they do not abide by the Laws of Armed Conflicts or any international convention. They will use civilians as much as possible to their benefit and will always find cover among innocent civilians for survival. In such situations, when military operations are directed against terrorists, certain amount of civilian casualties are unavoidable, however unfortunate that may be. If this situation leads to War Crime charges against Political and Military leadership of a country, then the only option is not to launch any military operation and allow terrorist a free run.

Recent action by the Sri Lankan military does not fall into any category of War Crimes as given in the definition above. So there is no basis for framing charges of War Crimes against the political or military leadership of Sri Lanka. On the contrary, the President of Sri Lanka should be commended for taking the unprecedented step of ordering the military to stop using Artillery and Air Power against LTTE in spite of the military risking heavy causalities due to not using the fire power of heavy weapons and aircraft. It is the military commanders who decide how to deploy weapons and no other leader in the world has taken such a bold decision or gone to such an extent to ensure civilian safety. From the very beginning of the operations, the Government instructed the Military to ensure zero civilian casualties. Although zero civilian causality in a conflict is not possible in the literal sense, what that meant to the military was to take every possible step to ensure the civilian casualties are kept to the minimum possible level.

The Sri Lankan military followed the instructions of their Commander In Chief to the letter and the civilian causality figure was the lowest when compared to other contemporary military campaigns in other parts of the world. Not a single complaint of rape, looting or willful destruction of places of religious worship, education etc have been received.

Therefore what the Western Countries who are contemplating War Crimes charges against Sri Lanka should do instead is to perhaps learn a lesson from the conduct of the political and military leadership of Sri Lanka and not to blunt the effectiveness of their own militaries by creating a very dangerous precedent.