OHCHR report slurs over LTTE’s use of human shields
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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soldiers haunt public memory
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,
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.
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.’