Original image courtesy PEDRO UGARTE/AFP/Getty Images
A central challenge of curating content on Groundviews is that some of the most interesting discussions which occur on comment threads get obscured over time, and are less visible than the primary material published here. A case in point is the recent thrust and parry of wit over the establishment of the No Fire Zones towards the end of war in Sri Lanka. The debate was between two leading voices on this site and the Sri Lankan new media landscape, Aachcharya and David Blacker, in response to a review of The Cage, the explosive new book on the end of war by former UN spokesperson Gordon Weiss.
What follows are key excerpts from this comment thread. To read the exchange in full, click here and scroll down to see the nested comments. In all of the following excerpts, points in bold are by us and not in the original.
The debate began with a question posed by wijayapala,
I did not understand the reason why the govt established the NFZ; as far as I can tell, it was an idiotic move that opened the way for criticism once the SLA violated it. Did Weiss mention anything at all about how all those civilians had wound up in Mullivaikkal ie the LTTE’s human shields strategy?
David Blacker responded by saying,
The declaration of the NFZs was an area denial ploy by the SL military. When they needed to capture an area that was heavily defended and likely to cause heavy casualties to the Army, it was declared an NFZ. Once this was done, the Tigers were forced to withdraw from the area and allow the Army to walk in, or defend it and risk being accused of fighting from within the NFZ and causing civilian casualties. Legally, the NFZs have no standing as they were unilaterally declared by the MoD without the agreement of the Tigers. Safe areas, cease fires, truces, etc must be agreed upon by both warring parties to be legitimate. Therefore, neither attacking the NFZs nor defending them are war crimes per se.
Wijayapala responded to this and noted that “Apparently then this approach was an utter failure. The LTTE defended these areas and used civilians as human shields, but everyone is blaming the SLA for the outcome.“
Blacker disagreed, and averred
“Actually it was a resounding success… A lot of SL Army casualties were saved… most of the criticism about attacks in the NFZ have been leveled against the Tigers; the criticism of the SL military is about targeting of civilians and hospitals, which are valid criticisms if true. Those making a big noise about SL Army attacks against the NFZ are far fewer in number, and made by people who willingly or unwittingly ignore the fact that the NFZs have no legal standing. If this ever goes to court, the only thing examined will be overall policy and specific incidents.“
Blacker had made this point repeatedly in the past, and it is a point echoed by others as well. The difference this time was that Aachcharya, who we reliably know to be a Chevening Scholar with a background in law, joined the fray. This isn’t the first time Blacker, with military training and active combat experience, and Aarchcharya have debated a vexed issue. Three weeks before the end of the war in ’09, we posed a deliberately provocative question, whether killing 50,000 civilians to finish off the LTTE would bring peace. Aarchcharya’s interventions on that post, beginning with this one, along with Blacker’s own missives, provided much food for thought. Two years hence, their debate is anchored to a similarly explosive issue – the fate of thousands who found themselves trapped between government armed forces and the LTTE in so-called No Fire Zones (NFZs).
“David Black (sic) is right about the legality of the NFZs. Article 15 of the 4th Geneva Convention says that there has to be mutual agreement for a NFZ to come into effect. The rule is recognised as a customary principle of IHL (Rule 35 of the ICRC study on Customary Principles of IHL). In fact the UNSG Panel recognises in para 80 that the LTTE did not recognise the NFZs as binding. But the fact that GOSL unilaterally declared these NFZs (their notice did not say that it will come into effect only if the LTTE recognises them) would help establish the intention to engage in ‘widespread’ and ‘indiscriminate’shelling. (See para 176 (a) and 193 of the report) Prof Steven Ratner knows his IHL inside and out.”
Blacker responded by saying that “To the contrary, declarations of a ceasefire, NFZs, etc, will hardly be done by a force intent on indiscriminate killing” and in response to a short interjection by Groundviews, stated that,
“I maintain that the motive behind declaring the NFZs was simply to deny the Tigers an area that was vital to the SL military offensive. However, that is about motive. My disagreement with Aacharya is that such declarations can be used to prove a policy of indiscriminate attack on civilians by the GoSL. Defence lawyers will argue that in fact it shows that GoSL policy was to discriminate between combatants and civilians and remove the latter to areas of safety; areas that the Tigers then endangered by defending. In the end, the true GoSL motive will be hard to prove, and the declaring of the NFZs will always look like an attempt to safeguard the civilians from harm.“
The resulting exchange between the two are worth quoting in full, and help us understand the key issues at play.
Aachcharya: David, The fact that they declared NFZs and killed so many people in the NFZs is evidence of intention to engage in widespread and systematic attacks against civilians. There is clear evidence that they did fire into the NFZs and there is also clear, documented evidence as to the express intention as to why the GOSL created NFZs. So when they fired they very clearly knew (the ‘knowledge’ requirement in law) that there were civilians in the NFZ. You may be right about the ‘strategic poly’ argument but the GOSL cant employ this argument in a court of law. That they were declared for the benefit of the people was the expressed intent for the creation of the NFZs by the GOSL. Further this strategic ploy argument only shows that they wanted to defeat the tigers at any cost. This is not allowed in IHL. It militates against the test of proportionality in IHL. Politically, David’s strategic ploy argument confirms the fact that we have argued for so long that the Government wanted the Vanni people to be converted as ‘human shields’. The GOSL have absolutely no moral high ground on this.
David Blacker: Aacharya you’re confusing allegations with facts and then topping it off by applying an assumed intent. None of this will stand up before the law. Let’s take it step by step.
- The declaration of the NFZs by the GoSL. The latter cannot be faulted for declaring this unless the intent to deny the area to the Tigers can be proven as the sole intent (contrary to what you say, there is no evidence, but just opinions), or that the NFZs were created to draw in civilians so that they could be killed. The first will be hard to do, and the second impossible.
- The deaths of civilians within the NFZs. Firstly, it’ll have to be proven that the GoSL targeted civilians or that they inadvertently killed them because they callously ignored their presence. So far there has been no such evidence. Secondly, it will have to be proven that it was GoSL action within the NFZs, and not that of the Tigers, that created an environment of violence. Again, extremely difficult, as the declaration of the NFZs themselves will be seen as an act to prevent violence, and the fact that the Tigers fought on from within the NFZs will be seen as an act of aggression. If either option in point 1 had not been proven, then at best the whole NFZ issue becomes moot and individual actions within the area would have to be considered as they would be considered anywhere on the battlefield.
- Knowledge of civilian presence within the NFZs would be no different to civilian presence anywhere on the battlefield, since the NFZs have no special legal standing. So each situation would have to be considered individually as to motive, intent, precautions, discrimination, etc.
Bottom line, any legal action based on the existence of the NFZs is doomed to failure. However, the act of creating the NFZs themselves (however flawed it might be) will give the GoSL a moral advantage because it will be seen as an attempt to protect civilians.
Aachcharya: David, You are now talking about lack of evidence, that these are only ‘allegations’ – that’s an entirely different matter – a more fundamental objection. The UN report says there are credible allegations. So if you think they are nonsense lets try that out in a proper court of law. Otherwise you repeat what you have said and i am not going to repeat what i have said before. But let me draw your attention to Article 51(8) of Additional Protocol I (which deals with International Armed Conflicts but by analogy applied to Non International comflicts):
“Any violation of these prohibitions [for example use of civilians as human shields] shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians”
May I very gently and humbly suggest to you that before speaking so authoritatively about law to at least read up a little bit on the basics like criminal intent- express and implied intent etc. I will never ever comment on a professional subject so authoritatively unless i have been trained in that profession. But you have no qualms about this. Somebody warned me not to get into a debate with you as it generally turns out to be useless. I should have listened.
David Blacker: Aacharya, do you think that last para of yours is part of a “useful” argument? Isn’t it more a case of you dropping in an ad hominem attack; which makes it look like you’re worried your argument can’t stand up for itself. It is when you resort to these tactics that arguments against me become “useless” as you were advised. I didn’t say that the allegations that the Ban report calls credible are nonsense; I said there was no evidence. If you wish to wait til this goes to court, by all means do so; but I assumed by your comments that you’d rather discuss it now! Your quote from Article 58 in no way contradicts what I have said; which is why I said intent on the part of the SL military will have to be proven and not assumed. The fact that you’re quoting a portion of the law that doesn’t cover what we’re discussing is perhaps indicative of your misunderstanding of the situation. Just to remind you, the question was whether military action within the NFZs was itself illegal. We all know what the law says in regard to civilians, and that is not in question. I am not trained in law, but believe me I have a good understanding of it. I assume you’ve also been trained in war, since you seem to believe training is necessary for understanding.
As it often happens, debates of an engaging, substantive nature on Groundviews and elsewhere on the web are very quickly taken over by bitter invective. This is a pity. As we noted in response to Cheelanka on this same comment thread,
“We are keen to see, to the extent possible, a debate on the merits of the NFZ in relation to IHL and not on the individuals concerned. Aarchcharya made his point about Blacker, Blacker responded, Aachcharya can take this forward if she / he pleases, Blacker is free to respond on substantive matters. If you have something to add to the debate, please do. Else this just descends into mindless name calling. You’ll agree that it’s too interesting and too important a debate to be wasted thus?”
The unimaginably harrowing details of what befell civilians trapped in the No Fire Zone captured in The Cage by Weiss echo significant concerns in the report released by the UN Secretary General’s Panel of Experts. Both in turn reiterate that which has been flagged in a number of statements by the UN, foreign governments and reports by Amnesty International and Human Rights Watch. Blacker and Aarchcharya aren’t just debating the finer points of International Humanitarian Law (IHL) as it can be applied to Sri Lanka, but in a larger sense, represent two very different ways of looking at war’s dénouement. One sees reason enough, in law as much as a moral compulsion, to pursue a robust process of truth-seeking. The other sees no reason to believe, and no evidence to prove that civilians in the NFZs were actively targeted by the Sri Lankan armed forces.
The review of The Cage has generated to date one other vital question, which we explore in Two years after war’s end in Sri Lanka: What can the Tamil and Sinhala diaspora do? Much like in that post, our interest is in taking this vital dialogue forward in the spirit of robust debate and discussion this site encourages.