OHCHR report slurs over LTTE’s use of human shields

by Stanley Mathews

The reports of the UN High Commissioner of Human Rights and the US-led core group on alleged ‘war crimes’ in Sri Lanka, which have been submitted to the UN Human Rights Council (UNHRC) during the on-going session, have slurred over the LTTE’s using civilians as a human shield, even though using civilians in this way is a war crime under International Humanitarian Law.

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The report does castigate the LTTE for using civilians as human shields in the final months of the 2006-2009 war, but it concludes that the Sri Lankan State should be blamed for the estimated 40,000 civilian deaths because it had the ultimate responsibility to protect civilians. The non-state actor in the conflict – in this case the LTTE – had less of that responsibility, it argues.

“The duty to respect international humanitarian law does not depend on the conduct of the opposing party, and is not conditioned on reciprocity,” the UN report says after mentioning the LTTE’s use of human shields as a possible war crime. In other words, it says that the Sri Lankan State cannot and should not imitate the LTTE and justify its actions citing the LTTE’s actions as a precedent or as a provocation.

Use of human shields

But this is not the international humanitarian law, according to a paper entitled ‘Human Shield in International humanitarian law’ by Prof. Michael N.Schmitt of the US Naval War College, Newport, Rhode Island, US.

Both States and non-state actors like terrorists, have used civilians as shields in the past. This tactic was used in the American Civil War in the latter half of the 19th Century, and in the Vietnam and Korean Wars in the 20th Century. In former Yugoslavia also, it was used widely in Bosnia and Herzegovina against peace keeping forces in 1995. Insurgent groups had no compunction about using human shields in El Salvador, Somalia, Liberia, Sierra Leone and Chechnya.

Iraq used it against Iran in the 1980-88 Iran-Iraq war, and against the US during the latter’s Operation Desert Storm in 1990-91. They were used in 2003 during Operation Iraqi Freedom. In the Arab-Israeli conflict, it was used in 2000 during the Israeli attack on Jenin town in the West Bank. The Hezbollah group used it in Operation Change Direction when the Israelis attacked Lebanon.

The Al Qaeda did the ultimate by using children in Afghanistan. In Sri Lanka, the LTTE used civilians as a shield in the early days of the war against the Indian Peace Keeping Force (IPKF) in 1987-88 and then again, in the final months or weeks of Eelam War IV in 2009, to fend off attacks by the Sri Lankan Security Forces at Mulliwaikkal and other coastal areas of the Mullaitivu district.

The use of human shields is now ‘endemic’ and that with ‘dreadful results,’ comments Prof. Michael N. Schmitt, legal scholar and the Director of the Stockton Centre for the Study of International Law at the United States Naval War College in Newport, Rhode Island. According to him, human shields are used by insurgent groups because of the ‘dramatic asymmetry characterizing many of today’s conflicts.’

Insurgent groups use civilians as a weapon to fend off attacks by a militarily superior force. It is also a kind of ‘moral warfare’ which warfare expert Maj. Gen. C. Dunlap as describes as ‘lawfare’ as it is tantamount to using International Humanitarian Law as a weapon to redirect fire from a military objective. The attacker holds fire because he does not want to get bad publicity and raps from an increasingly vocal West-based, human rights lobby.

Not moral

Any victory achieved by killing civilians, even if they had been used as a defensive weapon, is not considered ‘legitimate.’

The attacker is denied the political advantage of a military victory. Since war is nothing but politics by other means, States refrain from attacking military targets which are surrounded by civilians. By using civilians as a defensive weapon, the insurgent or non-state actor secures a military victory without loss of life, which is the best bargain under any circumstance. States with big military machines have nothing to match this ‘legal’ or ‘moral’ weapon used by Lilliputian insurgent groups. However, according to the Geneva Convention of 1949, the use of human shields is ‘cruel and barbaric.’ The Additional Protocols to the Geneva Convention signed in the 1970s say that warring parties shall not direct the movement of the civilian population in order to attempt to shield military objectives from attacks or shield military operations. The presence or movement of the civilian population shall not be used to render certain points or areas immune to military operations, they say.

Article 58 of the Additional Protocol I says that parties to a conflict are obliged to remove the civilian population and civilian objects under their control from the vicinity of military operations. It also prohibits locating military objectives within or near densely populated areas. Prof. G.L.Peiris, former Sri Lankan Foreign Minister and a legal expert, has pointed out that the LTTE had brazenly violated these provisions in the last months of the war when it had kept nearly 300,000 Tamil civilians as hostage and shot at people who tried to break its cordon and flee to the relative safety of the Sri Lankan army lines. Using civilians as shields in warfare is tantamount to ‘hostage taking’ which is banned under Article (2)( c ) of Additional Protocol II and Common Article 3 (1) (b) of the 1949 Geneva Convention. Officially, those seized and forced to act as human shields are ‘hostages’.

The International Committee of the Red Cross (ICRC) has clearly banned use of civilians as shields, explicitly saying that it is ‘prohibited.’ And the ICRC makes it very clear that the norm applies to both States and non-state actors. The other noteworthy aspect of International Humanitarian Law is that it does not give protection to those who ‘volunteer’ to be a human shield. They are combatants. According to Prof. Yoram Dinstein, scholar, authority on the laws of combat and Professor Emeritus at Tel Aviv University, those civilians who work in military establishments like arms factories or in military propaganda units, are also legitimate military targets. Their deaths in attacks are considered to be ‘acceptable collateral damage.’ However, Article 57 (2) (a) (1) of Additional Protocol I requires an attacker to do ‘everything possible’ to verify that a target surrounded by civilians qualifies as a ‘military objective.’