Washington’s LTTE dilemma | Daily News

Washington’s LTTE dilemma

The United States was disappointed by its failure to salvage the leadership of Sri Lanka’s Tamil Tiger secessionist movement to relocate elsewhere as a foreign policy strategy and to use it as a pressure group to influence changes in Sri Lanka because of its total annihilation by the military.

Tamil Tigers’ Debt to America, an insider account authored by Daya Gamage who served at the US Department of State, documents the similarities of Tamil Tiger objectives and the postwar trajectory of the diaspora to achieve a mono-ethnic state in Sri Lanka’s north. Gamage’s work analyses how the diaspora crafted a global diplomacy, since the war ended in May 2009, bringing the West into its orbit, to de-legitimise Sri Lanka as an initial move towards a bifurcation of the island-state.

Reproduced below is the seventh segment of Daya Gamage’s Tamil Tigers’ Debt to America.

Printed and published by Vijitha Yapa publications

The entire argument is how Washington took a softer attitude toward the LTTE because, in their belief, it stood for the rights and grievances of the ethnic minority Tamil of Sri Lanka. This perspective led Washington to develop a close rapport with the professional activists within the Tamil Diaspora. During the final three or four weeks - April - May 2009 - when Washington saw the imminent defeat of the Tamil Tigers, it was contemplating to remove the top brass of the Tiger leadership from the battle zone with the intention of using the secessionist movement in a different form as a pressure group to effect changes in Sri Lanka.

In fact, Washington, with the Norwegian mediator, was effectively involved in providing a rightful place for the LTTE in Sri Lanka supporting the ‘self-rule concept’ of the Tigers, which emerged in the February 2002 Oslo Talks between the GoSL and the LTTE, US State Department’s Deputy Secretary Richard Armitage personally attending the talks and conferring with Prabhakaran’s chief negotiator Anton Balasingham. Armitage saw to it that no photographs were taken during his talks with Balasingham because of the IS federal restrictions of having any contacts whatsoever with members of organisations that Washington had designated foreign terrorist organisations (FTO).

War crimes committed by the LTTE during the war were secondary to Washington, as its focus was the minority Tamil issues. To average the foreign-policy setback - saving Prabhakaran - it adjusted the foreign policy approach toward Sri Lanka that widely enhanced the voice as well as the assaulting power of the professional activists within the Tamil Diaspora to place Sri Lanka on the agenda of the West.

Here I present the applicability of international humanitarian law to LTTE actions, and how the West - especially Washington - turned a blind eye, allowing professional activists, who were ‘permanent residents’ in the United States, to provide material support to sustain a terrorist organisation designated by the US State Department an FTO.

Western nations led by the United States, since the defeat of the LTTE in May 2009, have systematically sharpened their manoeuvres to, first, strategically communicate to the rest of the world that the GoSL was responsible for violating International Humanitarian Law whipping up anti-Sri Lankan sentiments in their capitals and among the lawmakers, and thereafter, to create a voice to influence the United Nations, exposing Sri Lanka to global scrutiny, preparing the path to prosecute its leaders and military personnel for crimes against humanity, human rights abuses, war crimes, and genocide at the international level.

The initiative was initially taken by the US State Department in maintaining a rapport with pro-Eelam elements in the United States, which obviously encouraged the latter to lobby US lawmakers, providing them with ‘information’ about the ‘genocidal Sri Lankan regime,’ which encourage congressmen to make representations to the USG to bring an accountability process of Sri Lanka’s execution of the war especially between the January-May 2009 period.

Assistant Secretary of State for South Asia Robert Blake refused to disclose the identities of the Sri Lankan Tamil expatriate attendees at several dialogues he initiated at his Washington office, before and after the war was concluded, to a media query from this author for the Asian Tribune, citing confidentiality of the discourses. The State Department’s Office of Global Crimes Issues released two ‘Sri Lanka War Crimes’ report with ambiguous and unsubstantiated information by its head Ambassador Stephen Rapp, providing enough ammunition to US lawmakers and some nations in the European Union creating a conducive atmosphere for a section of the Sri Lankan Tamil Diaspora in the United States and Europe to bring Sri Lanka to the dock with allegations of war crimes and genocide. This facilitated the professional activists of the Tamil Diaspora to lobby the United Nations for its involvement.

The culmination of this exercise by many elements was the production of the war crimes report, popularly known as the Darusman report, by the panel appointed by the United Nations Secretary General Ban Ki-moon.

Mass killings of innocent civilians

Why were the blatant terrorism, mass killings of innocent civilians, ethnic cleansing with brutality, and other atrocities committed by the Tamil Tigers from 1983 through 2009 ‘ignored’ by the West and the United States? While these crimes against humanity and genocide were committed by the LTTE, the West in general and the United States in particular brought pressure, at times through India, on the GoSL to engage in negotiations with the LTTE. In her May 11-14, 2003, visit to Sri Lanka, US Assistant Secretary of State for South Asia Christina Rocca, echoing the international call for the peace process between the GoSL and Tigers at the initiative of Norway, urged the LTTE to engage in a negotiated settlement fully.

Mark Salter, in his 2015-published book, ‘To End A Civil War: Norway’s Peace Engagement in Sri Lanka’ wrote, ‘As Solheim observes, Rocca’s statement is an interesting reminder of ‘how differently the US treated the Tigers, compared to Afghan and Palestinian ‘terrorist’ groups. There were limits to US engagement, he notes, but there was also a ‘willingness to support the peace process’ that showed ‘substantial flexibility’ in relation to the ‘guiding Washington doctrine of the time.’

Erik Solheim was the Norwegian government official who was the chief negotiator/mediator between the GoSL and LTTE from the late 1990s through 2006 to bring a negotiated settlement to the Sri Lankan crisis.

The accepted belief was (or is) that if the state actor in an internal conflict is a signatory to international covenants of humanitarian law, that state actor needs to abide by the provisions ratified by the United Nations and that any violation of the International Humanitarian Law (IHL) the state actor bears culpability. In contrast, in a situation in which an armed nonstate actor (ANSA) is not a signatory to international covenants, the general belief is, it has no obligations toward honouring or upholding the provisions. Further belief is it limits the culpability of those who provide material support to such a nonstate actor.

Washington knew full well that the Tigers were committing atrocities; nevertheless, the US focus was a negotiated settlement. The exercise here is to highlight the International Humanitarian Law (IHL) provisions, which are applicable to armed nonstate actors (ANSA), and most importantly to examine the applicability of the law to their violent acts.

I need to give credit to Dayana Jardarian’s graduate paper ‘IHL Applicability to ANSAs’ of Stockholm University, which helped to prepare this chapter and enabled me to provide the interpretation and analysis in connection of the role of the West vis-à-vis Tamil Tiger violence.

I will investigate how the IHL provisions are applicable to the violent acts of Sri Lanka’s Tamil Tigers and why and how the Western nations, which includes the United States (and the United Nations), who are at present citing the IHL to put the GSL on the dock conveniently turned a blind eye or ignored the crimes against humanity, war crimes, mass killings of unarmed innocent civilians, and genocide committed by the Tamil Tigers from 1983 through 2009, largely influenced by political reasons noted above.

Atrocities of the LTTE

Once this analysis clearly establishes that the IHL - at all times - applicable to the atrocities of the LTTE, an armed nostate actor (ANSA) according to the legal definition of the IHL, a question will emerge as to why the Western nations, particularly the United States, ignored those provisions and attempted to sustain Sri Lanka’s Tiger outfit and prevent a total annihilation of the ANSA.

Internal conflicts constitute a unique form of conflict, involving both guerrilla and regular army forces that produce many difficult questions and legal problems.

The first question to consider is whether IHL is applicable to ANSAs and armed conflicts in which they are parties. However, to answer that, there is a need to address numerous other questions: What are ANSAs? And how does international law recognise them? Regardless of whether these ANSAs are engaged in armed conflicts of an international or non-international character, how does IHL view them? And are individuals involved in or supportive of these armed groups to be regarded as criminals or lawful or unlawful combatants? How can or how do these ANSAs adhere to or abide by the norms of IHL?

Sri Lanka never endeavoured to address the above issues long before it ended the domestic-terror violence created by the LTTE to prepare for what this South Asian nation faces today: allegation of violation of the IHL, war crimes, and even genocide. Even long after the LTTE was removed from the Sri Lankan domestic scene, while the call for international scrutiny was entering the narrative of the West with active counselling and participation of the professional activists and their global organisations within the Tamil diaspora, Sri Lanka never undertook to address the LTTE culpability in terms of the IHL to round up the remaining ‘Tiger remnants’ in the United States and other countries whose involvement with the Tamil Tiger terror and other countries whose involvement with the Tamil Tiger terror was well documented, advocating even arms transfer as a legitimate exercise to the Tigers describing the outfit as a national liberation movement.

When US Deputy Secretary of State Armitage was in Oslo in February 2002, LTTE and Prabhakaran’s acolyte Visuvanathan Rudrakumaran was there discoursing with the Americans. When the Norwegian delegation led by Jan Peterson travelled to LTTE de facto capital Kilinochchi on May 15, 2003, to meet with the Tiger hierarchy, Rudrakumaran was at Prabhakaran’s side assisting the terror group during the dialogue. The Norwegians and Americans shared every detail of the LTTE, their military and political adventure, the dialogue/talks between the two warring factions facilitated by the Nordic state. The Norwegian outlook definitely influenced Washington. Mark Salter wrote in his book, ‘To End A Civil War: Norway’s Peace Engagement in Sri Lanka’, what Erik Solheim told him about the LTTE’s ideology: ‘I was fascinated by the LTTE because I had had a lot of contact with the Indian leftist movements in the early 1990s.

They saw the LTTE as a fascist, deeply reactionary and ultra-rightist group - far away from the left, in other words. It became clear to me that this was not a Marxist or left-wing movement but a staunch nationalist group, as much as the Serb or Croat nationalists. It was all about being a Tamil in other words, nothing to do with left or right.’

The US involvement in bringing leaders of Bosnia, Serbia, and Croatia to sign the Dayton Agreement in 1995, ending a united Yugoslavia, is now well known.

What needs to be investigated is whether the IHL was applicable to the violent acts of Sri Lanka’s Tamil Tiger outfit during those years of terror - 1983 through 2009 - and whether the remaining operatives/facilitators/counsellors/active participants of that outfit could be prosecuted under the provisions of the IHL.

The 2010 landmark US Supreme Court decision, an eye-opener to Sri Lanka, nevertheless lost its chance.

During the height of the battle

As much as the GoSL failed to focus on this vital issue, the Western nations and the Office of UN Secretary-General or UN Human Rights High Commissioner’s office knowingly or unknowingly ignored this issue during the height of the battle - from the late 1980s through 2009 - as they were preoccupied encouraging or pressurising the GoSL to engage in negotiations with the LTTE, an outfit the IHL describes as an ANSA.

LTTE are Belligerents under IHL: The International Humanitarian Law has recognised four groups that fall within the category of armed nonstate actors:

1. Rebels are individuals that are typically involved in purely sporadic and isolated acts of violence and hostilities against the established government. Rebels have never been considered to have any international rights or obligations. Their acts or violence are susceptible to standard containment procedures of internal security. Upon capture, these rebels are treated as criminals under domestic law.

2. Insurgents constitute armed groups that become involved in civil disturbances and riots. These hostilities are usually restricted to a limited area of the state territory. They fall within the remit of domestic law.

3. National liberation movements’ main objective is to replace the existing state or form of their own state. Traditional international law lacked recognition for this specific category. Members of NLMs are recognised as rebels and are treated as criminals under domestic law.

4. Belligerents are the most organised. The act of belligerency is clearly defined in international law, pointing out certain conditions to be fulfilled first order for a case of belligerency to be present: (a) the existence of an armed conflict; (b) occupation by the belligerents of a significant part f the national territory; (c) an internal organisation exercising sovereignty on that part of the territory; (d) the same organisation is keen on conducting the armed conflict in accordance with IHL; and (e) circumstances which make it necessary for outside states to define their attitude by means of recognition of belligerency.

Except (d), the Tamil Tiger outfit fulfilled other conditions defined in international law to qualify as belligerents.

Due to the frequency of the internal armed conflicts as the one Sri Lanka experienced for twenty-six years, the international community was forced to realise that some form or regulation or noninternational conflicts was needed. The effort to extend IHL to non-international armed conflicts ultimately resulted in the Article 3 common to the Geneva Conventions (Common Article 3).

The Protocol II of the Geneva Convention that covers situations of conflicts between ANSAs and regular forces of established governments will be discussed later, bringing the LTTE factor into account.

The IHL applicable in non-international armed conflict is the result of a compromise between the concept of sovereignty and humanitarian concerns. Internal conflicts involve a high intensity of violence and cannot remain beyond the reach of international law, providing protection to both civilians and combatants. Non-international armed conflicts are covered by Common Article 3, Protocol II, several other treaties, as well as by customary law. Customary law acts both as a complement and as a confirmation of the basic standards set by both Protocol II and Common Article 3.

The traditional instruments, stipulated in the Geneva Conventions of 1949 and the two additional Protocols of ‘977 to protect Human Rights and restrain humanitarian abuses were developed to be applicable only to states. Since only states can have diplomatic relations with other states, sign treaties and be parties to international institutions, ANSAs were usually not expected to meet the same standards as states. Their acts of violence were seen as a domestic problem of the state concerned, to be dealt with through legal, political, or military means.

Key players in internal armed conflicts

The increased attention due to events such as Rwanda, Darfur, Afghanistan, Lebanon and so on made the world change their framework of armed nonstate actors (ANSAs). They came to be fairly recognised as the key players in internal armed conflicts. This is why devises in the IHL were developed to make ANSAs responsible for their actions.

The issue I raise her is whether the international community took any attempt to hold Sri Lanka’s Tamil Tigers (LTTE) responsible for the violence it unleashed during the 1983-2009 period, which involved mass-scale civilian massacres, killing of 600 unarmed surrendered police officers in a single day in an execution style, using suicide bombers to indiscriminately murder civilians in mass scale, and ethnic cleansing using genocidal acts.

The interest the United States and some Western nations have in summoning their courage to accuse Sri Lanka for alleged violation of the IHL was not seen when the Tamil Tigers were committing crimes against humanity.

The State Department, in a statement through its Office of the Spokesperson on June 28, 2009, dispatched a warning that Sri Lanka may be brought before international scrutiny. The warning (or the threat) said the following:

As we have stated before, the United States supports a full, credible, and independent investigation of alleged violations of international human rights law and international humanitarian law and accountability for such violations. While domestic authorities have primary responsibility to ensure that those responsible for violations of international humanitarian law and human rights law are held accountable, international accountability mechanisms can become appropriate in circumstances in which a State is unable or unwilling to meet its obligations. We continue to urge the Government of Sri Lanka to quickly demonstrate that it is able and willing to meet these obligations as it seeks reconciliation. We hope the Sri Lankans will themselves do this, but if they do not, there will be growing pressure from the international community to examine other options.

I noted earlier that Sri Lanka’s Tamil Tiger movement fell into the category of belligerents under the International Humanitarian Law (IHL). I further described that the act of belligerency is clearly defined in international law, pointing out certain conditions to be fulfilled first in order for a case of belligerency to be present.

It was also mentioned that, due to the frequency of the internal armed conflicts, such as the one Sri Lanka experienced for twenty-six years, the international community was forced to realise that some form of regulation of non-international conflicts was needed. The effort to extend IHL to non-international armed conflicts ultimately resulted in the Article 3 common to the Geneva Conventions (Common Article 3).

Subsequently, Protocol II of the Geneva Convention emerged to cover situation of conflicts between armed non-state actors (ANSAs) and regular forces of established governments.

The endeavour here is to discuss Common Article 3 and Protocol II and their applicability to ANSAs and their violent acts. In doing so, what needs to be investigated is whether the IHL was applicable to the violent acts of Sri Lanka’s Tamil Tiger outfit during those years of terror - 1983 through 2009 - and whether the remaining operatives of that outfit could be prosecuted under the provisions of the IHL.

With the glaring evidence and factual data that Common Article 3 and Protocol II have presented before us, making their provisions applicable to the blatant terrorism and violence unleashed by the Tamil Tigers, why did the West in general and the United States in particular turn a blind eye? Since the defeat of the Tamil Tigers, why did senior State Department officials and officials of the US mission in the United Nations engage in several dialogues with some Sri Lankan Tamil expatriates who once advocated that the LTTE has the legal right to transfer lethal weapons from overseas, in their opinion, as it was a ‘national liberation movement’?

When Common Article 3 was first adopted, it was considered a major step in the right direction in the development of the IHL. It is the result of the first attempt ever to impose some basic humanitarian legal restraints upon both parties of an internal conflict.

Common Article 3:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as minimum, the following provisions.

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 causes, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place.

Whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.

(3) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

If one carefully reads the above Common Article 3, many of the provisions are applicable to the atrocities committed by the LTTE fighting cadre. Also to the material supporters, who sustained Tiger terrorism for decades from their overseas posts, who effectively engaged in fundraising, propaganda and diplomatic endeavours, legal counselling and defending the procurement of armaments justifying the Tiger movement in liberation organisation.

Free speech against national security

In a case pitting free speech against national security, the US Supreme Court in June 2010 upheld a federal law that makes it a crime to provide material support to foreign terrorist organisations, even if the help takes the form of training for peacefully resolving conflicts.

Chief Justice John G Roberts Jr, writing for the majority, said the law’s prohibition of providing some types of intangible assistance to groups the State Department says engage in terrorism did not violate the First Amendment.

The decision was the court’s first ruling on the free speech and association of rights of Americans in the context of terrorism since the September 11 attacks. The law has been an important tool for prosecutors. In 2010, the government said that, since 2001, it has charged about 150 defendants for violating the material-support provision, obtaining about 75 convictions.

The US federal stature defines ‘material support or resources’ as ‘any property, tangible or intangible, or service, including currency or monetary instrument or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.’

Individuals associated with the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), two groups designated as FTOs in 1997, brought the law suit in US Supreme Court asserting that they wanted to provide humanitarian assistance in battle zones through them.

As one analyst pointed out, armed groups (such as Sri Lanka’s Tamil Tigers) that do not have an aspiration to achieve international recognition and legitimacy, lack the intention to comply with international norms. They are merely interested in controlling economic/natural resources or running criminal activities. In the case of Tamil Tigers, a separate independent state added to that list.

In Sri Lanka, the international mediation/involvement/interference particularly by Western nations (the United Stated and Norway in the forefront), and to some extent by India, forced the GoSL to open talks/negotiations with the LTTE, making it a semi-legitimate movement. I have noted before that the Tier chief negotiator and ideologue Anton Balasingham was contacted to engage in a discourse by US deputy secretary Richard Armitage in Oslo in early 2002, lifting the designated FTO to a respectable and recognised position in the international arena and legitimising its cause.

Common Article 3 does not confer by any means recognition to the ANSA involved in the conflict, nor does it change the ANSA’s status in international law. It certainly does not provide any legitimacy to the actor’s cause.

Protocol II of June 8, 1977: The International Committee of Red Cross (ICRC) report on IHL and challenges of contemporary armed conflicts says Protocol II, like Common Article 3, was considered innovative, as it was the first separate treaty to establish standards for the protection of persons involved in internal armed conflicts. It provided basis rules on methods of warfare applicable by both State and ANSAs involved in non-international armed conflicts. It should be stressed here that a compliance with the provisions of Protocol II of the Geneva Conventions does not imply recognition of any particular status for armed opposition groups, according to the ICRS report.

Article 3 of Protocol II gives the state the right to restore law and order, and the internal conflict cannot be taken as a justification for outside intervention. During the onslaught by the Tamil Tigers, Sri Lanka was conscious of what it was engaged in, upholding the provision, which is a follows:

1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.

2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.

Both Common Article 3 and Protocol II can apply simultaneously to a conflict, providing the minimum amount of protection. However, Protocol II provides a much greater substantive protection, introducing new fundamental rules concerning the protection of civilians against the effects of hostilities, as well as protection of medical personnel and transport.

Was the West ignorant of this international law provision when the Tamil Tigers were committing crimes against humanity, war crimes, human-rights violations and genocide?

Article I of Protocol II

This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of August 12, 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which were not covered by Article I of the Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out and concerned military operations and to implement this Protocol.

This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

I would like to bring attention to the final three lines of Article I to highlight the applicability of this portion of international law to violent atrocities of the Tamil Tigers. The relevant section reads: ‘armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’ While Common Article 3 does not provide a definition of non-international armed conflict, Article I of Protocol II clarifies that the protocol applies to armed conflicts, which take part (1) in the territory of a state party to the protocol, (2) between its armed forces and ANSAs, which (a) are organised under a responsible command, (b) exercise control over part of its territory, and (c) are able to carry out continuous and intensive military operation and to implement the protocol.

Military operations

The above description fits well to the armed conflict between the GoSL and LTTE and the controlling authority the LTTE possessed during the conflict.

Consider the applicability of the IHL to the Tamil Tigers of Sri Lanka and its actions: the condition of having a responsible authority and putting in place an organisation do not imply that the hierarchical system of the Tamil Tigers outfit is similar to that of the armed forces of Sri Lanka. It simply points out the obligation of having an organisation that exercise control over a certain amount of territory and capable of planning and carrying out continuous and concerted military operations.

In addition to that, it should have a de facto authority imposing discipline on its members and capable of implementing Article 1 of Protocol II.

The occupation of the territory only has to be such as to al-low sustained and concerted military operations and to apply this protocol. Being under command and in control of a large amount of the territory is a crucial requirement to be able to implement Protocol II, for instance to set up hospitals and prison camps. In practical terms, if an armed nonstate actor (ANSA) is organised in accordance with the requirements of the protocol, the extent of territory it can claim to control will be that which escapes the control of the government’s armed forces. However, there must be some degree of stability in the control of even modest area of land for it to be capable of effectively applying the rules of the protocol. These criteria restrict the scope of application of the Protocol to conflicts of a high intensity.

Now, the above interpretation of the IHL clearly shows how the LTTE fit into the description and the applicability of Protocol II to all the actions the LTTE committed during the twenty-six years of armed conflict it has with the legitimate government of Sri Lanka and its armed forces.

The LTTE control of vast land and its hierarchical structure with the high intensity of the conflict that Sri Lanka experienced and the international community witnessed covered Protocol II and Common Article 3.

Therefore, the protocol applied to the internal conflict between the LTTE and GoSL armed forces as the above threshold had clearly passed. Once this threshold is passed, the application of the Protocol is automatic - that is, no declaration has to be made by the parties to the conflict as long as the requirements of article I of Protocol II are met.

The Protocol II only applies to situations of conflicts between ANSA and the established government.

Article 44.3 of Protocol II states, ‘In order to protect the civilian population from hostilities, civilians are not to be harmed if they are not taking part in attacks or war activities or preparing attacks.’

Were the prayers at the Kathankudi Muslim Mosque preparing attacks when the LTTE cadre entered the mosque premises and brutally massacred the innocent civilians?

Were the unarmed civilians and Buddhist prelates who were in a religious ceremony preparing an attack against the LTTE when the Tiger terrorists entered the area in Anuradhapura to engage in whole sale massacre?

The United States and some other Western nations were not linking these Tamil Tiger actions to the IHL. Instead, they were forcing/encouraging/influencing the GoSL to engage in talks with the LTTE.

The International Criminal Tribunal for the former Yugoslavia concluded in an important decision that horrific crimes committed in a non-international armed conflict are to be considered international crimes. As a result, rules concerning international armed conflicts apply when trying a person prosecuted for a crime committed in a non-international armed conflict such as the international community witnessed between the years 1983 and 2009 in Sri Lanka.

Both Common Article 3 and Protocol II apply simultaneously and automatically to internal conflicts when certain threshold criteria are reached. We saw in Sri Lanka how these threshold criteria had met.

Protocol II describes its scope in considerable detail, excluding low intensity conflicts. Sri Lanka experienced very high intensity conflict during those twenty-six years.

Article I makes the application of Protocol II dependent on the exercise of de facto control of part of the national territory and on the ability of material circumstances linked to the nature of the hostilities - that is, the ability to carry out organised and sustained acts of violence and to implement the protocol. It applies to all armed conflicts in which these conditions are met, regardless of who triggered the conflict and why.

All these conditions were present during the twenty-six-year conflict in Sri Lanka that the West could have seen the applicability to the LTTE and its acts. They chose to ignore having had an agenda to award the LTTE legitimacy through negotiations with the GoSL.

The applicability of IHL does not confer any legal status on a group or its particular use of force. More importantly, the applicability of IHL cannot be judged upon the legality of the cause and conduct of hostilities. The rules of IHL apply equally to all parties to an armed conflict, irrespective of which is the aggressor or the self-defender or which is a state or an armed group.

The West was solely interested in the ‘legality of the cause’ of the Tamil Tigers and perhaps did not care much of the IHL applicability to the Tamil Tigers and its acts.


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