Geneva Conventions:

Privileged terrorists, deprived soldiers

Alfred Thompson Denning

Terrorists are evanescent, fleeting. They come and go. Their whereabouts are unknown. They hide among the innocent civilians. They roam about, dressed up like any other civilian. There are no warning signals; a bomb, an explosion, a head flies.

Yes, it was a suicide bomber, and the soldiers could not do much about it. It is extremely difficult, almost impossible, to distinguish between this unconventional terrorist posing as a civilian, and the ordinary civilian.
 

The conventional soldier therefore is operating in an environment where the enemy is less recognisable. How difficult, then, is the task of countering terrorism ?

Extremely, more than the law could have imagined. No, I am not talking about court orders! I am referring, more specifically, to that body of international law called international humanitarian law (frequently known as the law of armed conflict).

The problems relate to the application and enforcement of the law. There is little use if the laws of armed conflict do not, in reality, address some of the grave problems encountered by the soldiers who are directly involved in countering terrorism. The soldier should be the privileged one, and the terrorist, the deprived one. Not vice versa.

The complex web of modern humanitarian law treaties includes in particular the four 1949 Geneva Conventions and the two Additional Protocols of 1977.

The four Geneva Conventions concern the protection of the wounded and the sick (GC I), the wounded, sick and shipwrecked at Sea (GC II), prisoners of war (GC III) and civilians (GC IV) respectively.

Further, Additional Protocol I of 1977 relates to the protection of victims of international armed conflict and Additional Protocol II deals with, for the first time, the protection of victims of non-international armed conflicts.

Application of humanitarian law

The question relating to the application of humanitarian law has been resolved quite convincingly by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Tadic, in which the Tribunal held that international humanitarian law applies from the initiation of armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached. The Tribunal also defined armed conflicts to include any type of conflict.
 

Therefore, there is no great controversy over the applicability of humanitarian laws to armed conflicts.

However, in Sri Lanka, like in any other country in which armed (terrorist) conflicts exist, we do face problems when facing terrorism perpetrated by a non-state actor. It is the problem of a 'lack of reciprocity'.

To ask the question more vividly, how does one expect the LTTE, rooted as it is in the very notions of terrorism and indiscriminate barbarity, to respect and enforce humanitarian laws underlying the most basic and rudimentary norms of justice and humanity ? To whom is this non-state actor accountable? To none.

Therefore, at the very outset, it should be remembered that there is simply no parity of status. These are different actors, with different responsibilities. Surely, leading a group of terrorists is easier.

The battle has not even begun, but Prabhakaran scores a point. Then, there is the question of regular forces. Does the LTTE meet the requirement of a regular force? The answer is both 'yes' and 'no'.

The problem is that while there is an established and identifiable military unit, there is also a considerable group within the terrorist group, which operates in the guise of normal, ordinary civilians, carrying out suicide attacks.

Protecting civilians

There are also the innumerable houses, schools, hospitals, play grounds, orphanages and others which form part of the training camps etc. of the terrorists.

Therefore, while the LTTE can operate as an established and distinct unit, the terrorists could also, and in particular their suicide carders, operate in the guise of civilians, stationed and trained in places which would have otherwise been inhabited by ordinary civilians, or rather, which are in fact inhabited by civilians living under the clutches of the LTTE. A huge bonus - Prabhakaran scores again.

The conflict begins, and greater difficulty arises in relation to the protection of civilians.

A fundamental objective of international humanitarian law is the protection of civilians not engaged in armed conflict. Common Article 3 of the 1949 Geneva Conventions states very explicitly that "Persons taking no active part in the hostilities ... shall in all circumstances be treated humanely ...".

While direct attack against the civilian population and objects is forbidden, the defending forces should, so far as possible, not locate military objectives in the vicinity of civilian habitation or objects, nor should the presence or movement of civilians used to protect an area from military operations or to shield military objectives from attack. Very laudable objectives, indeed.

However, how could the civilian be protected when there is simply no guarantee that the civilian might not turn up to be a terrorist? The targets, on which the Air Force or the Armed Forces might carry out attacks, even after careful planning and strategizing, might well be civilian objects.

For instance, it could be a school in which little children study, or a school building in which little child soldiers are trained, and vice versa. The Armed forces cannot shy away from their responsibility. Yet, is it always possible? Take the 'Sencholai' incident.

The Government Forces were accused of killing innocent girls housed in a 'home caring for children'. It was pointed out later that the Air Force had carefully targeted and bombed the LTTE training camp.

The orphanage had been relocated at Killinochchi, and the complex in Vallipurum (Sencholai) had been turned into a Tiger training facility. Hence, the confusion and the barrage of accusations.

This also relates to the issue of 'indiscriminate attacks'. Indiscriminate attacks are forbidden in armed conflict. This approximates to the requirement of proportionality and the need to distinguish between military and non-military objectives.

Article 51(4) of Protocol I defines 'indiscriminate' as those not directed at a specific military objective or employing means and methods which cannot be so directed or whose effects cannot be limited as required by the Protocol concerning protection of the wounded and sick (Leslie Green, The Contemporary Law of Armed Conflict).

How then would the soldier or the armed forces reasonably distinguish between military and non-military objectives, when homes, schools, hospitals, places of worship etc. are used by terrorist to further terrorist activity ?

Consider the aerial bombing carried out on the 'Voice of Tigers' radio station in Killinochchi on 27 November 2007; clearly, an establishment which can be operated via civilians. Yet, it was clearly the propaganda arm of the LTTE, operated by terrorists. It was never a 'civilian' radio station in that sense of the term.

It was a legitimate target, being that of the LTTE. The Tigers sought protection of the Geneva Conventions. Some others condemned the attack - including the Director General of UNESCO Koichiro Matsuura, who had studied law at the University of Tokyo, who should have known better. Rights and privileges to terrorists ?

In the law of armed conflict, there are also rights and privileges accorded to detainees and prisoners of war (POWs).

The question is whether the 'prisoner of war' status applies to a captured terrorist. John C. Yoo (former Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice) has argued, for instance, in an article titled 'The Status of Soldiers and Terrorists under the Geneva Convention' that the rights contained in the Geneva Conventions are designed for professional soldiers and not for criminals or terrorists; that the protection afforded for detainees do not legally apply to Taliban and al Qaeda detainees, the denial being legally correct; that the Taliban militia do not meet the standards for 'legal belligerency' and hence lacks entitlement to 'prisoner of war status'; that it is only lawful combatants who are protected under international humanitarian law, and not unlawful combatants; that the prohibition of disadvantageous treatment of POWs implies better treatment for terrorists.

All this was in relation to the Taliban and al Qaeda. The US, in arguing so, even formed the justification for torture.

Johannes van Aggelen of the OHCHR, responding to Yoo's article writes that the Taliban met the requirements of a regular force as 'they were organised under the authority of a central command of government and did distinguish themselves from the civilian population by wearing black turbans and scarves.' ('Response to John C. Yoo', in the Chinese Journal of International Law, June 2005, p. 167) Yoo's arguments raise valid points, but need not be accepted without questioning.

However similarly, van Aggelen's argument also cannot be sustained in the Sri Lankan context where there are no black turbans and scarves worn by suicide terrorists. As stated above, distinguishing the ordinary civilian from the terrorist can be extremely difficult.

However, consider the law in question. Captured personnel are the responsibility of the power by whose forces they have been captured.

Their rights and status are regulated in accordance with the 1949 Geneva Convention relating to the treatment of a POW (Geneva Convention 3). Article 4 (A)(2) of the Convention contains 4 conditions which need to be satisfied if POW status is to be accorded.

They are, that the captured should be i) commanded by a person responsible for his subordinates, ii) having a fixed distinctive sign recognizable at a distance, iii) carrying arms openly and iv) conducting their operations in accordance with the laws and customs of war. Now, to the Tiger terrorist in whatever form, (iv) above is never applicable. To the suicide Tiger terrorist, (ii), (iii) and (iv) are not applicable.

Also, a POW is entitled to respect for their persons and honour. This covers their right of religious and intellectual freedom (what!), and protection against acts which might demoralise them (what would!). Article 14 together with Article 75(2) of Protocol 1 provides protection against the physical violence or torture. There are a whole host of other rights and privileges accorded to the POW, which need not be specifically enumerated here.

Fine. This should very well be the case. Inhuman treatment is inhuman treatment. Likewise, torture is torture, and there are no good kinds of torture. All such acts should be prohibited and condemned at all times.

But consider the case of Menaka - the suicide terrorist who was attempting to target PM Ratnasiri Wickramanayake. In her interview with Jan Goodwin, she explains that the Police, having stopped her for questioning, beat her unconscious. Now, if the explanation stops there, this becomes a case of a grave violation of human rights and humanitarian law.

But consider the following: she was sent on a suicide mission, she realised that she was getting exposed, and she wanted to bite the cyanide capsule before she was caught. The police knew her next move.

Therefore, she was beaten hard to prevent her from committing suicide. Now, could one truly accuse the Police of violating humanitarian laws ?

Self-Determination

There is also another broader issue which should be taken note of. There are special privileges accorded to members of a group fighting for the right of self-determination. Article 1 (4) of Additional Protocol I of 1977 defines an international armed conflict to include a conflict in which peoples are fighting against colonial domination, alien occupation or a racist regime in the exercise of their right of self-determination.

The right of self-determination, being necessarily a concept vigorously promoted in the context of decolonization, is highly vague, subjective, complex, controversial and faces the danger, as Judge Rosalyn Higgins has stated (Problems and Process: International Law and How We Use It, p. 128), of being "all things to all men".

So, the acknowledgement of the existence of a conflict based on the right of self-determination remains very subjective and a decision which is within each state's own discretion.

The protection that should be afforded to members involved in a national liberation movement fighting for this right of self-determination is interesting. Members of a national liberation movement acquire the status of combatants, and thus, cannot be considered as committing criminal offences vis-a-vis the armed forces of the State during times of conflict.

There are a number of privileges afforded to such combatants (through Protocol I), the most glaring of them being the privilege accorded of not requiring the members of the movement to wear any identifiable uniform, or carry arms openly at all times.

The dangers posed, to the innocent civilians as well as the armed forces of a state when such a liberation movement is nothing less than a brutal terrorist organisation, are enormous.

The Armed Forces are fighting a most ruthless terrorist organisation. Suicide terrorism perpetrated by the LTTE is second to no other. It exceeds the ferocity of groups such as Hizballah, Hamas, the PKK and the Al Qaeda in the area of suicide terrorism.

Hizballah started suicide terrorism in 1983, but LTTE which started its suicide campaigns in 1987 has made Hizballah look amateurish.

The task, therefore, of combating LTTE terrorism is extremely arduous. Gone are the days when clear battle lines were drawn and the two parties to the conflict were distinct and distinguishable.

The nature of the conflict has changed. So should the law governing such conflicts. The laws of armed conflict do not seem to provide much hope for the soldier engaged in combating terrorism. Terrorists being such a group which has nothing to lose have much to gain due to the protection afforded by the laws. What then is easier - being a soldier, or being a terrorist?

Asian Tribune