Rights of soldiers vs rights of terrorists

by Shenali Waduge

In the current context of things, it is imperative that we draw the lines between what and who are legal and what and who are not. With 32 nations including Sri Lanka having banned the LTTE as a terrorist organisation, we would first like to have legal luminaries tell us what rights under international human rights laws terrorists like the LTTE have, whatever LTTE fronts masquerading and lobbying amongst foreign parliamentarians and the UN may say.

The armed forces of a country are the legitimate entity tasked to safeguard the territorial sovereignty of a country and the safety of its citizens – not LTTE terrorists. Only the armed forces of a country have the legal right to a hierarchical command structure with distinguishable uniform and weaponry given by the State to protect the nation and its people – not the LTTE.

We would like to know why and who has placed a terrorist organisation on par with a sovereign Government when it is classified as a terrorist organisation, which under the IHL has no rights when they are armed non-State actors involved in an armed conflict.

A sovereign nation has the right to domestically apply laws to nullify threats to the country. That instance was hijacked by several foreign nations through various interferences that not only helped continue LTTE terrorism, but resulted in thousands of civilian deaths.

Why is the accountability of these foreign governments/representatives never subject to investigation?

It was in July 1987 that Sri Lankan forces cornered the LTTE leader in Vadamarachchi and it is said that India threatened to invade Sri Lanka if Prabhakaran was not let free. India is also believed to have given Prabhakaran refuge.

It was foreign governments that forced five rounds of peace talks and a ceasefire, none of which arrived at any solution except to virtually hand over territory to an armed terrorist organisation and watched them acquire arms and recruit children to kill.

These very trainers live on foreign soil and question why their roles in training children to kill is not investigated or charged.

Those that want international investigation teams to monitor the situation in Sri Lanka may have forgotten the presence of the Nordic Monitoring Mission (SLMM) that was on the ground, tabulating the violations, and the LTTE had close to 4,000 if not more as against less than 50 by the Armed Forces and nothing much was done about these violations except a statement which didn’t provide any reprieve for those bombed to pieces.

Domestic laws

In internal armed conflict, insurgents are not entitled to POW status under the Third Geneva Convention or Additional Protocol I since the conflict is not international.

Accordingly, they may be tried for sedition, treason, rebellion, murder, or other crimes under the domestic law of their State. Under Article 3 common to the four Geneva Conventions, they have to be tried in domestic courts.

We want the GOSL to immediately file charges against these LTTE remnants for their crimes against the people of Sri Lanka. It must be reiterated that the case of the LTTE is not as simple as anyone can make out to be. Today’s conflicts have been made into political agendas and often a country’s armed forces become guinea pigs just as civilians become targets – it is time these international authorities stop the confusion because none of their fancy notions have helped reduce conflict in any part of the world, especially when their role has been purposely diluted into finding theories on why armed non-State actors or even terrorists should prevail at the cost of the freedom of life to entire populations.

The nations pointing fingers may first like to see how they profit from the manufacture and sale of arms which begs to question whether most of these “conflicts” that exist are also engineered so that sales of arms will take place for both State and non-State actors, even terrorists!

Ideally, the LTTE has to be referred to as nothing other than terrorists if they are proscribed as such by nations. Legally they have no rights. However, various reports refer to them as “soldiers” – which they are certainly not, some call them “belligerent” while under US definition they would be “unlawful combatants”.

In an armed conflict, only “combatants’ can take direct part in hostilities. Soldiers are members of the armed forces, defined so under the IHL, and are known as combatants. As combatants, soldiers are entitled to, under the IHL, to take direct part in hostilities.

It was the LTTE who were taking the civilians with them and the LTTE claimed they were “voluntarily” with them. It was the LTTE that also claimed that these civilians were “voluntarily” helping move ammunition and artillery – these front organisations echoed the same sentiments.

In such a scenario, non-combatants lose their protected status and are not entitled to be treated as prisoners of war and are liable to be prosecuted under domestic laws. Civilians have no right to take “direct part in hostilities”. This is the hard truth that people have to accept.

We seem to forget that soldiers are humans too – they are sons, husbands and fathers and join the Forces to defend the nation. Placing them on par with terrorists such as the LTTE is an insult and every step should be taken to ensure that in all future Government publications, the LTTE is clearly placed as nothing more than a brutal terrorist organisation.

How do we draw the line between the soldier and the terrorist? Why should terrorists be treated as combatants? Firstly, they become who they are because they resort to terror – their notoriety comes by killing and destroying – they are given instructions to do mayhem. Soldiers are only instructed to kill the enemy in defence of a nation. Terrorists such as the LTTE chose to wear uniforms when it suits them and pretend to be civilians when it suits them. That was how they carried out so many brutal attacks on civilians.

Customary statements

It has been annoying to see that throughout Sri Lanka’s three-decade conflict regarding all of the close to 400 acts of terror by the LTTE, nothing beyond a customary statement from the UN and its associated entities as well as diplomatic missions came as consolation to the families of the dead and to the nation that had to explain to the people why it could not deal with LTTE terror.

Of course, we find fault with successive governments for not exerting their sovereign right and that of the people whose protection of life comes prior to the existence of a terror outfit such as the LTTE. The world has also forgotten that the rights of the people of a nation come before that of agendas that have helped the LTTE continue its terrorism.

It is these international organisations that keep dangling international laws on soldiers, forgetting that terrorists do not sign laws, treaties or wish to even uphold them except to cunningly use these for their own protection and sustenance.

International authorities and their speakers drafting these lovely clauses from their Geneva confines have forgotten LTTE atrocities and think that ONLY the soldiers are compelled to take their bible of laws in one hand and the gun in the other and in the thickness of terror attacks read through the pages to apply what is right according to what people such as Navi Pillay deem right; in the meanwhile, that soldier ends up blown to smithereens by the LTTE!

So, let’s be a little realistic here. These fancy righteous notions that are spoken across international conference tables and meeting rooms have done little to rope in terrorists for any of the crimes they have committed by premeditated planning and that is what these international authorities now need to explain to the victims of the dead through three decades. It is their interferences in the domestic right of nations to take care of terrorism that has led Sri Lanka to 30 years of mayhem by the LTTE.

Soldiers have died because these nations have denied Sri Lanka the right to defeat terrorists like the LTTE and instead forced nations to sign pacts with the LTTE, giving them credibility.

What about the rights of the children of the soldiers, their wives and their parents? These people are humans and have gone to defend the nation, to fight the enemy and that is something legal. Why are international authorities silent about the rights of these soldiers and the rights of the peoples whose lives the LTTE cut down illegally?

How can the UN seriously address the LTTE’s crimes over three decades when it is courting the front organisations that had been collecting arms and building the LTTE kitty from their foreign havens? If the world is serious about accountability, then there are some hometruths they would have to accept first and that starts with the simple fact that the LTTE served as an international proxy and by virtue of being virtually a mercenary, the LTTE has no rights under the IHL and if civilians have been with the LTTE as “volunteers”, then it is from these front organisations that the UN and UNHRC in particular must ask questions of accountability.

Lives compromised

It is they who compromised the lives of these citizens and let’s not forget that the soldiers have saved families of key LTTE leaders to prove that they fought an armed conflict fair and square. In so doing, they also saved these “volunteers” numbering 295,000 because though there is principle of distinction, that distinction cannot be manipulated to be used for the convenience of terrorists.

It is a soldier’s right to defend the nation and therefore before questioning soldiers, it is the ILLEGAL element that has to be first addressed. What we like to know is why the LTTE is not being questioned.

Given that “respectability” has been afforded to a terrorist outfit such as the LTTE and now that the LTTE leader is no more, there are plenty of offshoots of the LTTE functioning as “legitimate” entities in foreign shores and some have even created “transnational governments in the sky” – now these people are the ones that need to be taken for questioning on why civilians were forcefully denied their non-combatant status and turned into combatants because the LTTE did not fight the Armed Forces in uniform as traditional wars happen – they always applied a combination of terror tactics which Ms Pillay may like to explain before declaring that Sri Lanka’s soldiers are always in the wrong.

Double standards need to stop as the Eni Faleomavaega, Congressman for America Samoa said in his statement on Sri Lanka at the Congressional Committee hearing questioning Robert O’ Blake – this is worth listening to.

Sri Lanka had every right to apply the JUST WAR THEORY because Sri Lanka was a country that suffered three decades of LTTE terror, it was a country that listened to international community representatives and agreed to hold five rounds of peace talks/negotiations and numerous ceasefires which served only to allow room for the LTTE to regroup and refine their terror tactics, by virtue of allowing the LTTE to be accepted for their crimes even freely roam the world to purchase weapons and other hardware.

It is the international community that has wronged the 20 million people of Sri Lanka because every solution offered was thrown back in refusal.

We have had international monitors who have ended up doing nothing worthwhile, so we do not need such presence. We have had international organisations that have handed over equipment and facilitated the LTTE in their terror – bring out those crimes into the daylight.

It is about time that we do not keep silent about all that the foreign governments, NGO representatives, local counterparts and even Tamil politicians had been doing to help the LTTE – so roll out these names openly for the world to see.

Therefore, after three decades of watching people die, allowing the Armed Forces personnel to sacrifice their lives for no reason, the decision to militarily take on the LTTE was made – Sri Lanka cannot be faulted for that.

Thirty years is no small number and there were no documentaries, parliamentary debates or foreign television debates as are taking place now to demand that the LTTE be punished for their crimes! We are talking about an armed non-State actor that controlled territory and this territory was virtually handed over in a ceasefire agreement brokered by foreign nations who now preach to us about what is right and wrong.

No substantial evidence

Moreover, the world is supposedly aghast at a photo of a bloodless child, claiming without any substantial evidence that the Sri Lankan Army had killed him, based on some forensic evidence given by a doctor in the UK looking at a picture, and this has become world news just because a documentary film producer thinks he is the world’s authority on why Sri Lankan Forces should be accountable, based on some footage he has put together.

These pictures or allegations have not been produced by a government or the UN, so why is this global frenzy over a film? Lest people have forgotten, Prabhakaran and the LTTE were Sri Lanka’s Pol Pot – who mourns Pol Pot? Why has the world forgotten the LTTE crimes through 30 years and was there any year in each of the 30 years that any foreign nation, the UN, Navi Pillay or predecessors or film makers such as MacCrae came forward to tell the world of LTTE crimes?

The LTTE killed more than one child and many of them were not shot, they were hacked to death using clubs, they were cut up and had their heads put upon sticks as a message to others.

Pregnant women had their stomachs cut up – where were the films on these brutal atrocities where tens of thousands of civilians were killed by the LTTE and children who were just babies? So, if international players were silent through 30 years, save for a statement, they have no moral right to now point fingers. They should feel ashamed.

Many wrongs have taken place against the State of Sri Lanka, especially against its people, and bringing these to light is the best way a country can move forward. Hiding these facts from history is doing injustice to the many innocent people and soldiers who sacrificed their lives.

The LTTE is nothing but a terrorist outfit – it is designated so and it is the LTTE that compromised civilians, placing them as combatants and this entitles the UN and its associate entities to start questioning the LTTE front organisations as to why the rights of civilians were violated and it is not the soldiers that should be found fault for the crimes committed by the LTTE.

Moreover, all agendas are hidden in human rights legal jargon and we would like to know how far Sri Lanka’s External Affairs Ministry is upto the task of ensuring that Sri Lanka’s case is projected as it should be, to ensure that LTTE terrorists are not safeguarded and Sri Lanka’s officials do not commit to what satisfies the diplomatic and political agendas of their counterparts against Sri Lanka and its patriotic Armed Forces just because they receive personal accolades for the diplomatic adroitness which serves no interest of the nation, especially that of the Armed Forces.

Courtesy: eurasia review