Opinion

How does the UN identify a civilian from a combatant?

by Shenali D. Waduge

There are plenty of laws and conventions on how wars are to be fought, but those laws were for wars that did not have cowards manipulating them.

The Tigers regularly attacked civilian targets. Here a SriLankan Airlines plane blown up by them. - File photo

Today’s wars are all proxy wars as State armies fight asymmetrical wars where from some corner or corners of the world, groups of people with vested interested put together a group or groups, arm them and then use the media to propel them as ‘freedom fighters’ and launch a spate of terror targeted at the State and against civilians.

How does the UN separate a civilian from a combatant – not just according to the book? In the case of the LTTE, it had a civilian defence force, a first for any terrorist group and changes the dynamics of all laws.

Asymmetrical conflicts have made possible all that conventional wars were considered as violations. Transnational terrorists are blurring the distinction between a soldier and a civilian.

Terrorists are being treated as combatants thus dignifying criminality and affording terrorists the status of soldiers. The UN needs to be accountable for this.

In a traditional war, combatants and civilians are relatively easy to distinguish but what happens when terrorists dress up as civilians.

There were many ways the UN could have broken the hands of the LTTE over the years clamping down on those that funded LTTE from abroad knowing where they were all located and who they were but this aspect was purposely ignored.

Now, having allowed LTTE to thrive they have gone on to dignify LTTE by affording them combatant status with the likelihood of being punished remaining ever thin. On what legal grounds does the UN give to afford terrorists the same rights afforded to soldiers of a sovereign army?

Civilian women

LTTE had a civilian force armed and trained to kill. Can the UN place adjective ‘innocent’ civilian to them? Rule 1 of the ICRC declares the Principle of distinction between civilian and combatant. According to the rule, parties to the conflict must at all times distinguish between civilians and combatants.

Attacks may only be directed against combatants. Attacks must not be directed against civilians. Now, this is interesting. The LTTE did not emerge into the Sri Lankan scenario in 2008 or 2009. LTTE has been functioning as an armed terrorist group since the 1980s. They became known as a ruthless and brutal movement by targeting civilians. This makes LTTE violating Rule 1 (Principle of Distinction).

Attacks by LTTE were either upon the military or specifically upon civilians. If attacks are not meant to be directed against civilians, we next need to ask what was done by the UN, the ICRC about LTTE’s violation of Rule 1 since 1980s and why has this violation been omitted for UN investigation.

Hostilities

Surely, victims cannot be confined to a time-frame if an international panel is to punish or declare one party or either party guilty. Therefore, victims of the entire conflict need to be given justice more so when the victims being referred to as civilians throughout the 1980s, 1990s, 2000 and beyond have more right to qualify as civilians than those Tamil civilians whom we know were taking part in hostilities either voluntarily or by force.

Therefore, under customary international law applicable to international and non-international armed conflicts: * LTTE as combatants do not enjoy the protection against attack accorded to civilians. * LTTE also does not enjoy right to combatant status or prisoner of war status. * Rule 6 declares that civilians are protected against attack unless and for such time as they take a direct part in hostilities – this is quite a tricky situation.

* Does the UN know how many civilians did not take part in hostilities?

* Does the UN know how many civilians took part in one or two acts of hostilities making distinction further complicated?
* Does the UN know how many civilians volunteered to take part in hostilities?
* Does the UN know how many civilians may have died while taking part in hostilities?
* Does the UN know how many will admit and own up to being a civilian but taking part in hostilities?
* Does the UN know how many civilians 5 years on will admit to taking part in one or more hostile acts
* Can the UN rely on these civilian accounts if all those saved claim they did not take part in hostilities and thus provide them the package of witness protection for no reason?

These are just a handful of questions that come immediately to mind. You may be able to develop further on the possibilities.

Guilt list

Sri Lanka’s terrorism has been designated a non-international armed conflict In such an armed conflict under Article 13 (2) of the Additional Protocol II, it is prohibited to make civilian populations and individual civilians the object of attack.

This can be added to the list of LTTE’s guilt list and war crimes because every LTTE attack on villages, civilian populated areas, buses, infrastructure, buildings, airports etc by the LTTE since the 1980s qualifies as a violation of Article 13 (2) of the Additional Protocol II.

The LTTE also becomes guilty of Amended Protocol II to the Convention on Certain Conventional Weapons where it is prohibited to direct attacks against civilians. Not only did LTTE come from its training centres, with armed suicide cadres and cadres dressed as civilians with bombs and suicide belts, they were ordered and instructed to carry out suicide missions wherever civilian populations concentrated. We continue to question why no Resolutions, no UN representatives raised the same uproar as they are doing now.

UN failure

The LTTE also becomes guilty of violating Protocol III to the Convention on Certain Conventional Weapons under the Ottawa Convention banning anti-personnel land mines. If we are to count the number of civilian victims of landmines the proportionality of victims would be revealed.

But the easiest excuse has been to declare LTTE as non-signatory to conventions or treaties thus us wondering for what is this expense of international panel investigations been incurred for?

What we need to get straightened out is that there would be no non-international armed conflict if LTTE had not taken up arms. LTTE’s killing of scores of Tamils nullifies the oft promoted notion that LTTE stood for Tamil aspirations. That was far from so.

The Statute of the ICC (International Criminal Court) says ‘intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime in non-international armed conflicts.

If Petrie can write a report on UN failure during the last phase why were reports not written and action taken against all LTTE’s civilian targets every day, every month and throughout every year.

This is an important question because according to the ICC it is a war crime to intentionally direct attacks against civilians who have not taken part in hostilities.

This is where we need to take every civilian that the LTTE targeted living throughout the Sri Lanka because none of these civilians were living around any military camps. They were either going to school, travelling on buses, going to work, sleeping in their homes and villages or simply walking on the road.

Crucial

These people were the targets of the LTTE and was the UN and ICRC not aware of this and if so why did they not show the same urgency for the civilians of the last phase who we cannot ascertain whether they were civilians or combatants. Some civilians did function as combatants – the only issue is that we don’t know how many and the UN does not know how many to even claim they were civilians too.

The question that is crucial to the argument of allegations and accusations of civilians been killed or butchered remains who is best placed to distinguish a civilian from a combatant and a civilian engaged in hostilities? Is it the UN sitting in their offices in Geneva and New York, is it the INGOs or is it the soldier that has just a split second to determine whether the person in civil clothing is a civilian or a LTTE wearing civilian clothes behaving in a manner likely to lead to the soldiers life being compromised?

None of us were in a war zone. None of us know what it is like to be in a war zone. None of us can identify a civilian from an LTTE cadre because right throughout LTTE despite having uniforms dressed in civilian attire to carry out attacks against civilians. Therefore, in such a scenario it is extremely difficult to determine who a civilian is.

The UN can issue statements condemning attacks on civilians but surely three decades has been far too long for UN to pretend it did not know that LTTE was committing war crimes by targeting civilians.

What we need to say is that civilians were targeted not ONLY during the last phase as the UN is trying to project but civilians have been targets of LTTE ever since the 1980s which demands us to ask what has the UN done for these civilian victims?

Forcible recruitment

With the UN and ICRC well aware of how LTTE targeted civilians and with the sudden emphasis on claiming civilians were intentionally killed by the security forces, we need the UN to explain to us

* How the UN has categorised LTTE’s attacks on civilians throughout the 1980s,1990s, 2000s upto its defeat in May 2009?

* If the UN has categorised the LTTE as targeting civilians what did the UN do about it since the 1980s given that the attack itself qualified as a criminal act

* Why the UN and its staff did not make the same international outburst for the civilians that LTTE targeted and killed as it did for civilians in the last phase.

* Why has there been a very distinct difference in the way UN and associated entities have treated civilians killed by LTTE and the civilians whose status quo as civilians in the last phase is under question given the accusations of forcible recruitment and even appeals by the UN Secretary General asking LTTE not to recruit children and others.

Therefore, leaving aside all the law books, conventions and treaties can we simply know how in an non-international armed conflict, when dealing with internationally proscribed terrorists groups that have decades of notoriety for targeting and killing civilians and recruiting by force men, women and even children, a group that forcibly took civilians as hostage and human

shields as insurance for the LTTE’s safety and fired at the Sri Lankan army, how could the army have distinguished the LTTE combatant from a Tamil person whose ‘civilian’ title and status is blurred by the fact that he or she was taking part in hostilities.