The Panel’s treatment of the government version of the military operation has other serious consequences affecting the way in which the issues of criminality are framed against the government and the way international law and the rules of war are applied.

(i) Failure to define  the armed conflict as a legitimate operation to counter terrorism.

The Panel  quotes the EU  response to the military operation in which it recognizes the government's right to undertake operations to counter terrorism on its territory – para 47.  But the Panel does not examine the implications of this statement and does not explicitly deal with the character of the military operation undertaken by the government.

(ii)  Failure to define the special character of the armed conflict.

For the purposes of the Panel the armed conflict they were examining for war crimes is not different from any other armed conflicts where the behaviour of both warring parties has been such that they can be expected to  act in compliance with the international rules of war. The Panel takes the position that the terrorist   character of the LTTE does not make any difference to the nature of the actions taken by the government to deal with the LTTE.  In the Panel’s view the fact that government must be guided by the knowledge that LTTE as terrorists are capable of actions that  are in fundamental violation of the rules of war  are not relevant for judging the army’s actions. The panel also does not consider the problem of civilians being used as buffer or hostage relevant to the issues pertaining to the actions of the government and the military.  They had already come to the conclusion that the government’s actions did not have the rescue of the hostages as one of its main objectives.

(iii) The lack of relevance in the comparative international experience  surveyed.

The Panel deals with comparable international experience in conflicts which have little relevance to Sri Lanka – Yugoslav experience, Rwanda, Truth Commissions in varying situations very dissimilar to the case of Sri Lanka.  The closest would have been the Peru Government’s war on the Shining Path. (The issue of war crimes committed by government troops in crushing the Shining Path may have been raised  and it would be useful to examine how they were dealt with.  Human rights organizations organized protests against the Peruvian president when he came to San Francisco.)  For the  comparable experience  dealing with similar extreme  military  situations,  the panel would have to go to the recent experience coming out of  the global war on terror – issues of civilian killings in the wars in Iraq  Afghanistan  and Checknya  and  military operations  mounted  against terrorists in Pakistan -  and inquire,  how or whether at all,  these have been dealt with under the UN system . 

Framing the issues in this context of extreme situations caused by terrorism would have required the panel to examine much more carefully the issues of intentionality and proportionality in regard to government actions, especially in the light of its own description of the actions of the LTTE in the NFZ.  The Panel would have had to examine a set of questions which they have ignored :  how  exactly were the LTTE   operating within the NFZ?  What is the nature of criminality in using civilians as a human buffer?( if this does not fall within the existing law relating to hostages and human shields as argued in the ICG report ) whether   protected institutions were being actually used for military purposes by the LTTE  ( the available information on this matter is insufficient, );whether the civilians men  women and children whom the LTTE was  conscripting   for military tasks became  military targets as a result ; whether the military calculus of the army had to take into account the possibility that the LTTE in their desperation would have escalated the killing of civilians  or forced them to forms of  mass  suicide   and whether the military had to design speedily a strategy to avoid such a catastrophe; and many more on similar lines. 

The panel would have needed to examine the wide ranging controversy of the applicability of the rules of conventional war to these extreme situations and the need to redefine the rules of war. Their excuse for not doing so is that the established law has little to offer to deal specifically with situations arising out of terrorism. But the fact was that the Sri Lankan government and army were dealing “specifically with situations arising out of terrorism” whereas  the panel was applying the rules of conventional wars to judge their actions. Both the ICG and the panel suggest that the use of civilians as a human buffer does not strictly fall into the category of war crimes defined as human shields or hostages in the existing law. If so the panel should have addressed the unprecedented character of the crimes that the LTTE were committing and examined their implications for the military actions taken by the army.   Evidently the Panel did not wish to explore in territory which was highly sensitive in political terms. They would have had to deal with the conduct of more powerful countries who were engaged in the global war on terror and were also those who had sponsored their appointment as an advisory  panel  to the UNSG.

Consequently the Panel has little of worth to contribute to the most important issues that the Sri Lanka case has posed in conditions that have no precedent in the recent history of war against terrorists. In that sense the Panel report is a  non starter . It only applies the available law to actions which it has framed as conventional war crimes.  Here the Panel has no problem; it  merely lists and enumerates the  available law in all its ramifications.

" The opportunity to surrender is a cherished, civilized and valuable part of warfare. But accepting an enemy's white flag in the heat of battle is a life-endangering proposition: The flag could be a ruse; a bomb could be hidden; the captors could end up dead. We give enemy soldiers the benefit of this dangerous doubt for two reasons. First, because soldiers who have fought honorably, complying with the laws of war, have earned it. And second, because we want the enemy to treat our soldiers the same way. Neither reason applies, however, to enemies who flagrantly violate the laws of war, targeting civilians for death, hiding bombs behind bunkers, using children as shields or  yes,  faking a Red Cross, upraised hands or other symbolic white flags to perpetrate lethal attacks.”  Jed Rubenfield  Professor of Law  Yale University. 

<< Truth and Accountability : The Last Stages of the War in Sri Lanka - Introduction

<< Chapter 1 - Issues relating to the Appointment and the Status of the Panel

<< Chapter 2 - Analysis and Appraisal of the Report - Criteria

<< Chapter 3 - The Narration of Events and Allegations

>> Chapter 5 - Issues of Accountability and Justice

>> Chapter 6 - Measures for Advancing Accountability : The Domestic Justice System and further Obstacles

>> Chapter 7 - The Recommendations of the Panel

>> Chapter 8 - Conclusions