Media and advocacy groups make mistakes. It’s true. The reason for the errors can vary from simple human error, time constraints resulting in insufficient research to subtle manipulation of facts and wording to push an agenda.

Once a mistake has been pointed out, most reputable organisations will publish an acknowledgement along with the correction. Less reputable organisations may ignore the error or correct the error without any acknowledgement. How organisations deal with errors are a great indicator of the quality of the publication.

The United Nations Secretary-General, Ban Ki-moon, appointed an advisory panel to report on the final stages of Sri Lanka’s separatist war. The Darusman report was published in April and human rights advocacy groups, including Amnesty International, International Crisis Group and Human Rights Watch, initiated a controversial media campaign accusing Sri Lanka of war crimes.

The most glaring error propagated by this media campaign is the assertion that there was “credible evidence” of crimes. There was not. The Darusman report states clearly that it found “credible allegations” of crimes. Simply, evidence is required to prove an allegation to be true. Without evidence, an allegation can not be considered to be fact. 1 2

There are only two instances of the phrase “credible evidence” in the report, namely:

“…(With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)).

In the case of both war crimes and crimes against humanity, credible evidence points to the responsibility of superiors for their subordinates’ actions.” 3

In the first instance the report states ‘it did not find credible evidence”. In the second instance, the report finds “credible evidence” that superiors are responsible for the actions of subordinates.

Amnesty International has substituted “credible allegations” with “credible evidence” when quoting the Darusman Report:

“A report submitted to UN Secretary-General Ban Ki-moon on 12 April 2011 by the Panel of Experts he appointed to advise him on accountability issues in Sri Lanka ‘found credible evidence, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed by both the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity.”’4

The actual report states, “found credible allegations, which if proven …” 5. The official response from Amnesty International is:

“Thank you for your message regarding Amnesty International’s public statement on Sri Lanka of 17 May. The mistake you highlight was a typographical error on our part which we have now corrected. Thank you for bringing this to our attention.”

It has not been corrected yet (04/06/2011).

In CrisisWatch N°93, the International Crisis Group (ICG) has substituted the phrase “credible allegations” with “credible evidence”6 7. The International Crisis Group has not replied with an official response. Though the first instance of this error remains on the ICG website, the second has been corrected.

A number of prominent media organisations like ABC (Australia), AFP, BBC, Channel 4, Reuters and even Groundviews have propagated the aforementioned error.8 Groundviews corrected the error immediately after becoming aware of it.

Media and advocacy groups will continue to make errors. We all have to accept it. Knowing this simple fact, readers need to be more critical when consuming news. The media reaction to the Darusman report is a great example of where a small but pertinent error is introduced in press releases by advocacy groups and then those errors are broadcast far and wide by the media. With the advent of the Internet these factual errors can not be completely corrected and will continue to misinform readers well into the future. It is critical for the media and advocacy groups not to succumb to the 24 hour news cycle and ensure factual correctness, not deadlines, determine the content of the news.

Updated 15 July 2011:

Amnesty International
The original factually incorrect press release remains available on the Amnesty International website1 (24/06/2011). A new corrected press release is now available on their website 2, however the error has been silently corrected and is not acknowledged in the corrected press release.

International Crisis Group
An official response from the International Crisis Groups was received on 07/06/2011:
“Thank you for bringing this mistake to our attention. We have now corrected the misquote in our database , the original media release and the PDF . In each place we have added a note explaining the change. In the PDF, at the bottom of the page: *”Sri Lanka changed 30 May 2011: “credible evidence” replaced with “credible allegations”.”* In the media release and the database entry: *”**Text changed 30 May 2011: ”credible evidence” replaced with “credible allegations”.”*”

Further incidences
There has been a plethora of further incidences of incorrectly replacing “credible allegations” with “credible evidence”. Notable transgressors are Jon Snow (Channel 4), Gordon Weiss and Australian Member of Parliament & former United Nations lawyer Melissa Parke.3
… 1 http://www.amnesty.org/fr/library/asset/ASA37/005/2011/en/7f414896-e15c-4d24-9d0a-98fe8b418892/asa370052011en.pdf
…2 http://www.amnesty.org/en/library/asset/ASA37/005/2011/en/0936a027-5c2f-4d3e-8896-108915beaec0/asa370052011en.pdf
…3 http://jayasolutions.com/slreport/sl-Darusman-report-media-reaction.html

Endnotes

1 http://dictionary.law.com/Default.aspx?selected=2387

2 http://dictionary.law.com/Default.aspx?selected=671

3 http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf

4 http://www.amnesty.org/fr/library/asset/ASA37/005/2011/en/7f414896-e15c-4d24-9d0a-98fe8b418892/asa370052011en.pdf

5 http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf

6 http://www.crisisgroup.org/~/media/Files/CrisisWatch/2011/cw93.ashx

7 http://www.crisisgroup.org/en/publication-type/crisiswatch/2011/crisiswatch-93.aspx

8 http://jayasolutions.com/slreport/sl-Darusman-report-media-reaction.html

  • Thambi

    This is so common among the illiterate Tamil diaspora that posts on online comment sections that I don’t even notice it anymore.

  • It’s funny though that they never seem to make the mistake of substituting “credible allegations” for “credible evidence”. It’s also quite amusing that the reports says it cannot find credible evidence of the Tigers using civilians as human shields.

    • Gehan

      David, what’s really amusing is that you have adjusted your position on the difficulties of establishing intent in the heat of battle.

      There’s a subtle distinction between violations of Rule 23 and 24 and violations of Rule 97.

      Rule 23. Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas.

      Rule 24. Each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives.

      Rule 97 refers to ‘human shields’.

      It appears that the Panel is drawing a distinction between the two prohibitions (see paras. 237-239 of the Panel report) because under Rule 97 the offending party must DELIBERATELY move civilians within proximity of military targets. See the following link for a comprehensive analysis of the practice relating to ‘human shields’. You will see that intention is an essential component of the legal definition of ‘human shields’: http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule97

      Under Rules 23 and 24, the offending party is bound to remove the civilans from within proximity of military targets. As you can imagine, the burden in respect of Rule 97 is higher, because it refers to the deliberate moving of civilians to protect military objectives from attack. This is perhaps what prompted the Panel to say there is no credible ‘evidence’ of a violation, while conceding that the ‘allegations’ still remain credible.

      Btw, ‘credible allegations’ is the terminology that is used for all references to the actions of the GoSL.

      You raised doubts over establishing intentionality in terms of all the credible allegations made against the GoSL. Yet, the same difficulty doesn’t seem to plague you when discussing the issue of human shields. Wonder why that is.

      I hope your answer is that, sometimes, actions are sufficient to infer intention.

      • Ha ha, Gehan, chill out. I assure you I haven’t adjusted any of my viewpoints, as I explained to you in that previous thread.

        As for the allegations versus evidence theme, I would suggest that video footage of armed Tigers corralling civilians to prevent them leaving a military area, shooting those that attempt to do so, and using artillery and armour in close proximity to civilians to be evidence rather than allegation. Agree?

        I have also in the discussions alluding to SL Army motive, given credible options to the assumed motive. Perhaps you would care to do the same in the above mentioned situations on behalf of the Tigers. If you could do that, perhaps this would all get a lot less amusing 😉

      • Gehan

        ‘As for the allegations versus evidence theme, I would suggest that video footage of armed Tigers corralling civilians to prevent them leaving a military area, shooting those that attempt to do so, and using artillery and armour in close proximity to civilians to be evidence rather than allegation. Agree?’

        Agree completely. However, typically, you have responded without bothering to read the law.

        All of the above appear to be evidence of violations of Rules 23 and 24. I think the Panel concedes that there are credible allegations in this respect. I’m also assuming there was a reasonably basis i.e. evidence of such violations, to call the allegations ‘credible’. So credible evidence appears to be part of the criteria for calling an allegation credible. We’re both on the same page there.

        I referred to Rule 97–the only rule to actually refer to ‘human shields’. Preventing civilians from leaving relates to Rule 23 and 24, while deliberately moving them to a place where there are military targets relates to Rule 97. I’m sure you appreciate the distinction. Again, don’t confuse terms used in the law (i.e. ‘human shields’) with common sense definitions.

        If you say there is credible evidence of using civilians as ‘human shields’, then you need to refer to relevant evidence–not the evidence that relates to Rule 23 and 24. Also, as far as Rule 97 is specifically concerned, you’re attaching intentionality to whatever action was taken without resorting to your usual ‘intention is impossible to assess in the heat of battle’ caveat. You’ve obviously not thought this through.

      • “Agree completely. However, typically, you have responded without bothering to read the law.”

        Oh dear. You mean even if I’m right, I’m not allowed to be right unless I refer to the law?

        “So credible evidence appears to be part of the criteria for calling an allegation credible. We’re both on the same page there.”

        Not quite the same page. Don’t you think that if credible evidence was part of the criteria for calling an allegation “credible”, it would no longer be called an allegation, but actually evidence?

        “Again, don’t confuse terms used in the law (i.e. ‘human shields’) with common sense definitions.”

        Oh, I assure you I have never in my adult life correlated the law with common sense. If (according to you) the law reasons that the term “human shield” absolutely cannot be used unless a civilian has been moved to a military object, and not if the military object has been moved amongst civilians who were then not allowed to leave, you have certainly proved your point on common sense.

        “Also, as far as Rule 97 is specifically concerned, you’re attaching intentionality to whatever action was taken without resorting to your usual ‘intention is impossible to assess in the heat of battle’ caveat. You’ve obviously not thought this through.”

        To the contrary, it is your failure to understand what the “heat of battle” is that makes you feel that this caveat is universally applicable. If you have seen the UAV footage of the Tigers corralling the civilians, or firing on those escaping (I assume you have), you will see that there is no fighting going on, anymore than there is fighting going on during the Channel 4 executions, or during Mai Lai, or at Abu Ghraib.

      • Gehan

        Let me try a simpler form…

        1. Rule 97 – related to human shields – deliberately moving civilians to where military targets are located – Panel says no credible evidence.

        2. Rule 23 and 24 – NOT related to human shields – moving military targets into densely populated areas; failure to remove civilian persons and objects under its control from the vicinity of military objectives – Panel says there are credible allegations.

        The footage you refer to is only relevant to allegations made in respect of Rules 23 and 24. This was taken into account, I’m sure, when the Panel found the allegations to be credible.

        This makes your amusement over why the Panel can’t find credible evidence of the Tigers using civilians as ‘human shields’, slightly odd.

        As for ‘intention in the heat of battle’, I’d assume moving civilians into a particular place where there are military targets that may be under fire (i.e. where human shields are being deployed in the legal sense–which is not the same as a violation under Rules 23 and 24), falls well within your caveat.

      • As I said earlier, Gehan, you’re running a very convincing argument about the law having no correlation to common sense, and I cannot find any counter argument to it. I guess Mr Bumble was right. Do carry on.

        “The footage you refer to is only relevant to allegations made in respect of Rules 23 and 24. This was taken into account, I’m sure, when the Panel found the allegations to be credible.”

        Yes, but you earlier agreed that this footage constitutes credible evidence and not simply credible allegations. Now you say that the footage backs up the panel’s statement that there is credible allegations of the violation of rules 23 and 24, giving the impression that there is no credible evidence, even though you have agreed there is. Since the report also states that there is no credible evidence of the violation of rule 97, without confirming if there are credible allegations, you will agree that this leaves the report open to interpretation in a wide number of ways.

        “As for ‘intention in the heat of battle’, I’d assume moving civilians into a particular place where there are military targets that may be under fire falls well within your caveat.”

        How so? My “heat of battle” caveat is in relation to the fact that the pressures and confusion of battle increases the chances of combatants making mistakes and unintentionally endangering civilians. The human shields issue is about deliberately using non-combatants to shield oneself from enemy fire. If your argument is that the Tigers might have accidentally moved civilians into positions around military installations, then there is no crime, since this is about intent. The charge is that the Tigers did so deliberately. Perhaps you could present some examples of the Tigers accidentally moving civilians into the frontlines and areas around military installations 😀 Are you sure you’ve thought this through?

      • Gehan

        ‘Yes, but you earlier agreed that this footage constitutes credible evidence and not simply credible allegations. Now you say that the footage backs up the panel’s statement that there is credible allegations of the violation of rules 23 and 24, giving the impression that there is no credible evidence, even though you have agreed there is.’

        I think there is only one way to interpret the Panel’s findings on this. They maintain that credible allegations exist in terms of Rules 23 and 24. But then say, as far as the law is concerned, there is no credible evidence in respect of Rule 97. This is obviously because the Panel couldn’t find any credible evidence to suggest that the LTTE deliberately moved civilians within proximity of military targets (as opposed to the other way round, which is covered by Rule 23 and 24). So credible evidence is necessary, it seems, to call an allegation a ‘credible allegation’. This is the relationship between credible evidence and credible allegations. .

        So I think there must’ve been credible evidence of violations of Rules 23 and 24 (like the footage you mention) that convinced the Panel that the allegations in that regard were credible. It’s really not that hard to figure out. Credible allegations is the standard for conducting investigations. Credible evidence is the standard for determining an allegation to be credible. The terminology could have been better, I admit. But it’s not that confusing.

        You’ve completely misunderstood my point about your caveat. My position has always been that actions may be sufficient to infer intention. I would rather have investigations into the allegations against the LTTE in respect of the use of human shields if there was some evidence to suggest that they moved civilians within proximity of military targets. The allegations against the GoSL have also been that it intentionally (in the legal sense, which includes knowledge and recklessness) targeted civilians. You were uncomfortable with the idea of attributing intention to the GoSL, but you’re not so uncomfortable with attributing intention to even a hypothetical situation where the LTTE moves civilians to within proximity of military targets. This is because you’re aware that the ‘deliberate’ nature of the action can be inferred from the action itself.

        We’ve hit another pointless juncture. But I think intelligent readers would understand the problem. 

      • OK, Gehan, I must admit I haven’t been giving this discussion my full attention as I’ve been preoccupied writing a blog piece of my own, but let’s get down to it. Rule 97 defines the use of human shields thus:

        “The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.[18] Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks. The military manuals of New Zealand and the United Kingdom give as examples the placing of persons in or next to ammunition trains.[19] There were many condemnations of the threat by Iraq to round up and place prisoners of war and civilians in strategic sites and around military defence points.[20] Other condemnations on the basis of this prohibition related to rounding up civilians and putting them in front of military units in the conflicts in the former Yugoslavia and Liberia.[21]

        In the Review of the Indictments in the Karadži? and Mladi? case, the International Criminal Tribunal for the former Yugoslavia qualified physically securing or otherwise holding peacekeeping forces against their will at potential NATO air targets, including ammunition bunkers, a radar site and a communications centre, as using “human shields”.[22]

        It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”

        I think the first sentence of the first paragraph and that last paragraph pretty much shows that your insistence that only the moving of civilians to a military location can be said to be using them as human shields is false. Also, rule 97 refers to articles 19, 23, and 28 of the ’49 GC, articles 12(4) and 51(7) of the ’77 Additional Protocol, and Article 8(2) of the ’98 ICC when it comes to practice; and none of these define the crime as restricted only to the movement of civilians to a military location. The specific mentioning of the Karadzic/Mladic case is also significant for that the UN peacekeepers used as human shields went to the locations voluntarily in the course of their duties, but were then held there as shields.

        Now, on to your evidence vs allegation rigmarole. From what you’re saying, I take it your meaning is that credible evidence is required for a credible allegation to be said to exist. Correct? Now if the report had only used “credible evidence” in the negative form as it has when it says there is no credible evidence of Tiger use of human shields, what you say could be accepted, as the explanation would be that the panel used the phrase only to confirm the lack of such evidence, since its existence would equate a credible allegation, and the latter would then be used in the report. However, as has been quoted in the article, the phrase “credible evidence” is also used in the positive, as in the pointing out that such evidence exists that superiors were responsible for the actions of their subordinates. Therefore it is logical (I avoid using the phrase common sense here for obvious reasons!) that “credible evidence” doesn’t invariably lead to a “credible allegation”. Agreed? Now, I’m not suggesting that you are incapable of interpreting the law, but perhaps you should consider that the terminology in, or the intentions behind, the report don’t quite follow the letter of the law as closely as you believe it to.

        Finally, the discussion on intent. Once more you prefer to believe that I have misunderstood you rather than that your knowledge of the situation could possibly be incomplete. You assume that everything that occurs in a theater of operations would be a battlefield situation; whereas that is patently not so. Actions themselves can infer intent when there is no conflicting circumstances that might redefine such intent. I gave you clear examples where intent was obviously contradictory to what the action inferred. I also gave you clear examples of where there was no such extraneous circumstances and where action certainly defined intent. In situations where the status of the victims is absolutely unambiguous to the perpetrators (Mai Lai, Malmedy, Kokkadicholai, Channel 4, and the human shields use), there is no doubt that action defines intent. And since as I have pointed out to you, Rule 97, in my understanding, doesn’t seem to define the crime of using human shields to only moving the shields into place, and since footage exists of the Tigers preventing the civilians from leaving, I’m sure you’ll agree that credible evidence does in fact exist of this crime. The only way to counter this evidence would be to show extraneous circumstances in which the Tigers somehow did not know that they were holding civilians in close proximity to military installations. Do you have any examples of this, or any such examples from investigations or trials in other wars?

        “We’ve hit another pointless juncture. But I think intelligent readers would understand the problem.”

        I think they would have understood it better before your interjection 🙂

      • Gehan

        Finally. It’s a lot more fun when you read up and come.

        ‘I think the first sentence of the first paragraph and that last paragraph pretty much shows that your insistence that only the moving of civilians to a military location can be said to be using them as human shields is false.’

        Not at all. See the examples that are cited: ‘Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.’

        ‘The specific mentioning of the Karadzic/Mladic case is also significant for that the UN peacekeepers used as human shields went to the locations voluntarily in the course of their duties, but were then held there as shields.’

        Though this is not a case of civilian movement, it is one that deals with non-combatants, so I’ll concede the relevance. I think you raise a really interesting point. From what I gather, the Bosnian Serb forces kidnapped 200 UN Peacekeepers and held them hostage at specific locations that were military targets.
        This seems to be a hard case, but I don’t think it makes my insistence that Rule 97 requires the offending party to move the protected persons false. Remember, I’m making this legal distinction in relation to Rule 23 and 24. The Panel makes the same distinction.

        But thanks for doing the reading. Really appreciate it.

      • Lol, Gehan, your paraphrasing and commentary continues to amuse. I can almost see you summing up in front of that fantasy jury! Unfortunately, there’s no jury here to decide, so your continued cracks about my assumed ignorance are a bit of a waste of time. Weeks ago, I told you I don’t have the legal literature memorised, so yes, I do have to look it up to quote it. But to assume therefore that I am ignorant is your ego doing the talking. Your claim that Rule 97 is limited to the moving of civilians to a location sounded fishy when you first brought it up, but as I said I was preoccupied elsewhere. Now I know why it smelled so bad.

        You seem to be grasping at straws now, but it’s cool, I’ll indulge you. You said: “Not at all. See the examples that are cited: ‘Most examples given in military manuals, or which have been the object of condemnations, have been cases where persons were actually taken to military objectives in order to shield those objectives from attacks.’”

        Most examples, Gehan, but not all; therefore to assume that Rule 97 only cites the moving of shields to a location is a false assumption. In addition, while most examples provided in military manuals may be in regard to such movement, military manuals are created to enforce regulations within one’s own military, and therefore to base your IHL argument solely on a military manual is a bit shaky, you must admit. And though the examples provided in the military manuals may match your criteria, the actions prohibited cover other forms of restricting non-combatant movement too. Also, as I said before Rule 97 cites several other articles of the GCs and ICCs, none of which lay out the condition of movement to a location, and all of which are cited as practices related to the use of human shields. It also mentions Rule 96, which is to do with hostage taking. Here is what is said in the articles (I guess you’ve forgotten):

        The responsible authorities shall ensure that [fixed establishments and mobile medical units] are, as far as possible, situated in such a manner that attacks against military objectives cannot imperil their safety. — Article 19, second paragraph, of the 1949 Geneva Convention I

        No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations. — Article 23, first paragraph, of the 1949 Geneva Convention III

        The presence of a protected person may not be used to render certain points or areas immune from military operations. — Article 28 of the 1949 Geneva Convention IV

        Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety. — Article 12(4) of the 1977 Additional Protocol I

        I can keep going, but I think you get the picture. You’ll agree that there is credible evidence (video footage, UN eyewitness testimony, etc) of the Tigers violating most or all of the above articles directly cited in the practice of Rule 97, ie using human shields.

        The concluding line of the section of Rule 97, defining human shields, basically says it all: It can be concluded that the use of human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.

        I think that’s pretty clear. Do you still want to have a go at that dead horse?

        “Though this is not a case of civilian movement, it is one that deals with non-combatants, so I’ll concede the relevance.”

        Big of you, Gehan, but if you actually read Rule 97 for yourself you’d know that whether you conceded or not, you’d still have been wrong. The opening paragraph of the definition of human shields says (I quoted it before, but you clearly missed that bit, so I’ll repeat it): The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.

        Civilians or other protected persons, Gehan. That would include enemy wounded, POWs, diplomats, and of course UN officials or peacekeepers.

        “From what I gather, the Bosnian Serb forces kidnapped 200 UN Peacekeepers and held them hostage at specific locations that were military targets.”

        The BBC on June 3rd 1995, when laying out the charges against Mladic said: “In order to prevent Nato from conducting air strikes against Bosnian Serb military targets, forces under Gen Mladic’s control detained more than 200 UN peacekeepers and military observers and used them as human shields in various strategic locations to deter air strikes.” (http://www.bbc.co.uk/news/mobile/world-europe-13561875) So clearly “detaining” was sufficient.

        “I don’t think it makes my insistence that Rule 97 requires the offending party to move the protected persons false. Remember, I’m making this legal distinction in relation to Rule 23 and 24. The Panel makes the same distinction.”

        It’s a free world, Gehan, and you can insist as much as you like, but I think all of the above “credible evidence” on the wording of Rule 97 makes it clear that my amusement at the panel’s claim that it had no credible evidence of a use of human shields is well warranted.

      • Gehan

        David, I think we need to clear up a few false assumptions.

        First, customary international humanitarian law, is not precisely written down anywhere. It is based on state practice and opinio juris. The rules are an attempt by the ICRC to clarify what is contained in the body of CIHL. Now citing explanations and military manuals is helpful, but you have to try and understand the role state practice plays. It is the overlapping consensus between the various practices that forms the content of the CIHL principle. I don’t mean to sound condescending, but I think there are some first principles that you need to acquaint yourself with.

        So there might be some manuals and even some specific articles in conventions that talk about various things that seemingly support your quest to always be right. But it is the overlap that helps us understand what the rule is. What you are citing is either elements of practice or opinio juris which help establish the CIHL principle. This is why my reference to ‘most examples in military manuals’ is important.

        Second, you don’t have to get worked up about whether the LTTE violated CIHL. I think the Panel is clear that they did. They refer to Rules 23 and 24 because there is a clear fit. I’m sure you don’t disagree that the footage you refer to fits the framework under Rules 23 and 24 better. The Panel says that there is no credible evidence of a violation of Rule 97 because, like me, they understand that the CIHL principle in this regard relate to deliberate acts to move civilians in such a way as to render military targets immune to attacks. I reiterate, they have no issue in finding a violation of Common Article 3 or Rules 23 and 24. This is the precise wording of para.237 of the report.

        ‘237. Common Article 3 of the Geneva Conventions. Credible allegations point to the violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave the area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, IN LAW, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the CUSTOMARY DEFINITION of that war crime (Rule 97, ICRC Study) (emphasis mine))’

        I know this area is confusing. But these are trained professionals in IHL who say this. I agree with their reading of the law.

        I didn’t say Rule 97 applies only to civilians. I said that civilians need to be moved within proximity of military targets for Rule 97 to apply. So yes, Rule 97 itself covers a wider gamut of non-combatants, but I thought you understood that we were talking about its application to the LTTE’s handling of civilians.

        The Bosnian-Serb incident is interesting and I’d like to discuss it further. I’m not sure the BBC report can be considered an exhaustive description of what took place. I read the case and found that the actions were described as ‘kidnapping’. I’m not sure if that’s the same as ‘detaining’. I think kidnapping involves some movement of the abductees.

      • “First, customary international humanitarian law, is not precisely written down anywhere.”

        Come, come, Gehan. You’re descending from the realm of embarrassing to the pathetic now. First you claim I am ignorant of the law, suggest I read up on it, and condescendingly provide a link. When I quote from that very link the wording of the law in question, you now claim that it is not precisely written. Oh dear. Just how far are you going to shift the goalposts? To compound matters, in spite of claiming that the law is imprecisely written, you quote one portion of it that refers to examples in military manuals as justification of your claims, while dismissing everything else as irrelevant. The fact is, Rule 97 covers a plethora of actions that construe the use of human shields, one of which is moving civilians or other protected persons to a military location with the intent of using their status as a shield. The fact that the Karadzic/Mladic case ruled them guilty of using human shields in spite of the fact that their actions were only that of forcibly detaining the peacekeepers is proof of it. You can continue to deny this, but I think you’re looking a bit silly now. Are you sure you want to continue with this line?

        “Second, you don’t have to get worked up about whether the LTTE violated CIHL. I think the Panel is clear that they did. They refer to Rules 23 and 24 because there is a clear fit. I’m sure you don’t disagree that the footage you refer to fits the framework under Rules 23 and 24 better.”

        First of all, I’m not at all worked up. I’m just amused. It was my amusement that seemed to offend you, resulting you jumping into this debate with both feet but with little preparation or understanding. Secondly, I think the footage fits Rules 23, 24, and 97 equally well, given the wording of the definition of human shields in the latter rule, as well as the practices cited in that rule. I think the Darusman panel knows that the use of human shields is a more dramatic and media-friendly violation, and that it is something that is likely to be picked up on if alluded to in the report; and therefore they prefer to link the Tigers to rules 23 and 24 which don’t sound so serious. Rule 97 is certainly clear on what constitutes use of human shields. I have quoted the relevant portions. I really can’t think what more to add if you wish to stick to your denial mode.

        “I know this area is confusing. But these are trained professionals in IHL who say this. I agree with their reading of the law.”

        Sorry to disappoint you, but I see nothing confusing about Rule 97, in spite of all your efforts to confuse the matter. You seem to be once more falling back on the “Ooh we’re all lawyers so trust us, we’re right” defence, but I think there’s only so far you can go with that before people start asking awkward questions to which you clearly have no answer. I don’t doubt you agree with the Darusman panel, but your agreement is at best based on a flawed understanding, and at worst, like the panel, based on creating a biased picture by ignoring certain aspects of the law.

        “I didn’t say Rule 97 applies only to civilians. I said that civilians need to be moved within proximity of military targets for Rule 97 to apply.”

        Clearly not. In the case of Karadzic/Mladic, the UN peacekeepers were not civilians, regardless of whether they were moved to the location or simply held there. So your statement, I said that civilians need to be moved within proximity of military targets for Rule 97 to apply,” is incorrect.

        Also, if you think the BBC report is inaccurate or not detailed enough, do provide one of your own. Personally, I can’t see a media house eschewing as dramatic a term as “kidnapping” for one as dry as “detaining” if it were at all possible not to. Finally, the Free Legal Dictionary defines kidnapping as “The crime of unlawfully seizing and carrying away a person by force or Fraud, or seizing and detaining a person against his or her will with an intent to carry that person away at a later time.” (http://legal-dictionary.thefreedictionary.com/kidnapping) So seizing and detaining would be sufficient to construe kidnapping. The article acknowledges that kidnapping usually involves movement of the person, but not invariably.

        I’m happy to keep this debate ticking along, Gehan, but I think it’s pretty clear you’re wrong here.

      • “So there might be some manuals and even some specific articles in conventions that talk about various things that seemingly support your quest to always be right.”

        Dear Gehan, you’re sounding like a petulant child now. It is you who is insisting you’re right based on one reference to examples cited in military manuals. Rule 97 refers to 28 military manuals and in only three of theses manuals (those of the Ivory Coast, New Zealand, and the UK) are examples referred to, and of these three only NZ and the UK talk about placing civilians (both in reference to placing them on trains), but still do not say anything about moving them to a location as you claim. In addition, the wording of Part III of the Manual of Military Law 1958, the Law of War on Land says, “In the past prominent inhabitants were placed on engines of trains running on the lines of communication in occupied territories to ensure the safety of the trains. Such a measure exposed innocent inhabitants to the illegitimate acts of train wrecking by private enemy individuals, and also to the lawful operations of raiding parties of the armed forces of the belligerent. It now comes within the prohibition of the [1949 Geneva Convention IV],” giving the impression that this example has been given to include the placing of civilians thus, and not to limit the law to this action.

        Most of the referred part of the military manuals in Rule 97 make no such clarification and limit themselves to saying that “using civilians” is sufficient to fall within this violation. I suggest you do some reading yourself, Gehan.

      • Gehan

        I apologize for I assuming that you understood how customary international law works.

        Let me bring this discussion to a close by highlighting the essentials.

        1. You said that it is ‘quite amusing that the reports says it cannot find credible evidence of the Tigers using civilians as human shields.’

        2. I have attempted (and failed miserably) to show you that there is a customary definition for the term ‘human shields’ and that the state practice and opinio juris on the issue sugget that for some action to fall within the scope of Rule 97 (i.e. the rule that prohibits the use of human shields), the protected persons must be deliberately moved within proximity of military targets so as to render such tagets immune to attacks.

        3. You have rejected the Panel’s interpretation of the customary definition of the war crime relating to ‘human shields’.

        4. I made the mistake of assuming that you were aware of the customary definition.

        When you have some free time, think of two spheres. One is the state practice of country x, the other is the state practice of country y. Customary law is built on the overlapping section when the two spheres are compared, and not the entirety of the two spheres.

        However you see this issue, I admire your confidence in interpreting customary international law better than IHL experts. If you had raised a question or doubt, I may not have even cared. But to say you are amused suggests a very advanced understanding of customary international law. You should really take up academia, David. It’s a calling.

      • Sory I think I posted this in the wrong thread earlier:

        “I apologize for I assuming that you understood how customary international law works.”

        Lol, I think you should be apologising for assuming that laying down a line of BS instead of an argument would work.

        “2. I have attempted (and failed miserably) to show you that there is a customary definition for the term ‘human shields’ and that the state practice and opinio juris on the issue sugget that for some action to fall within the scope of Rule 97 (i.e. the rule that prohibits the use of human shields), the protected persons must be deliberately moved within proximity of military targets so as to render such tagets immune to attacks.”

        I glad you acknowledge this finally, since nowhere in the text of Rule 97 is this criteria made. Nor have you been able to satisfactorily explain how the Karadzic/Mladic case was judged to have been a use of human shields without falling into your acclaimed criteria.

        “3. You have rejected the Panel’s interpretation of the customary definition of the war crime relating to ‘human shields’.”

        We do not know what the panel’s interpretation is. We have only your opinion on it. I have rejected your interpretation of the definition.

        “4. I made the mistake of assuming that you were aware of the customary definition.”

        Well if this customary definition is nowhere to be found in the law itself and is some sort of secret between you and Darusman, then no, I would be unaware of it. I have however, quoted Rule 97?s definition on human shields, and since this was the law you were referring to, I think we should go by it.

        “When you have some free time, think of two spheres. One is the state practice of country x, the other is the state practice of country y. Customary law is built on the overlapping section when the two spheres are compared, and not the entirety of the two spheres.”

        Perhaps then you should reevaluate where that overlap is, and point it out. Right now, I think the overlap is the stated definition of what the use of a human shield is, as articulated in Rule 97.

        “However you see this issue, I admire your confidence in interpreting customary international law better than IHL experts. If you had raised a question or doubt, I may not have even cared. But to say you are amused suggests a very advanced understanding of customary international law.”

        Now you’re sounding whiny, Gehan. Put up or shut up, no?

        “You should really take up academia, David. It’s a calling.”

        Depends who’s calling 😉

      • Gehan

        ‘We do not know what the panel’s interpretation is. We have only your opinion on it.’

        Not quite true. I’ve deferred to the Panel’s interpretation of what the customary definition is. I’ve only used the phrasing in para.237. Let me reproduce it again for your convenience:

        ‘With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, IN LAW, amount to the use of human shields insofar as it did not find credible evidence of the LTTE DELIBERATELY MOVING CIVILIANS TOWARDS MILITARY TARGETS TO PROTECT THE LATTER FROM ATTACKS AS IS REQUIRED BY THE CUSTOMARY DEFINITION of that war crime (Rule 97, ICRC Study) (emphasis mine)’

        OK, let’s assume the Panel got it wrong and your interpretation of CIHL is correct. Let’s test your definition. Here are some key questions:

        Your customary definition includes situations where civilians are hanging around military targets and the LTTE detain them right there, right?

        You use the Bosnian Serb case as precedent to support your claim, right?

        You present the ‘UAV footage of the Tigers corralling the civilians, or firing on those escaping’ as credible evidence of this, right?

      • Gehan

        One more clarification:

        You say: ‘I have however, quoted Rule 97?s definition on human shields, and since this was the law you were referring to, I think we should go by it.’

        Heavens, no, Rule 97 only says this: ‘The use of human shields is prohibited.’

        What you’ve been citing are not portions of the Rule itself, but commentaries on the Rule and military manuals that make up the state practice, which the Rule is based on. This is why I said you need to acquaint yourself with first principles. This is also why the Panel’s interpretation of the customary definition cannot be discarded just because you found some line in the commentaries that is perhaps prone to misinterpretation by the untrained mind.

      • Right.

      • Gehan

        Are you comfortable with adding the perquisite that the detaining of the civilians must be for the deliberate purpose of protecting military targets?

        Mind you, this is different from saying that the detaining itself was deliberate.

    • Hela

      As David mentioned, I am yet to see an error in reverse being made by these esteemed organisations when it comes to reporting on Sri Lanka.

    • Gehan

      On the evidence vs allegation point, as I said before, the terminology could’ve been better. But you seem to have almost gotten over your confusion in respect of the relationship between credible evidence and credible allegations. I never said credible evidence cannot exist independently of some allegation. That would explain its positive usage. Come on now, you surely get the usage.

      On the intent point, David, it appears you are now willing to apply your caveat to a situation where the LTTE moves civilians to a military target while it is under fire. This is the quintessential instance of deploying human shields, and this is certainly a battlefield situation. If you can agree on this, then there is not much I can add. If you disagree, it makes the equivalent observation that it is impossible to establish intent when the GoSL attacked the NFZ while knowing that civilians were present rather dubious.

      • yapa

        Dear Gehan;

        How about your valuable participation in the discussion in the thread, Vesak and Violence Against Women.

        Appreciate your valuable views.

        Thanks!

      • “But you seem to have almost gotten over your confusion in respect of the relationship between credible evidence and credible allegations.”

        As I said before, the only confusion here is that which you yourself are creating. I understand that distraction is a useful tactic in a courtroom, but this isn’t one, so why don’t we try to be honest?

        “I never said credible evidence cannot exist independently of some allegation. That would explain its positive usage.”

        Really? So now you’re suggesting that credible evidence can be insufficient to make an allegation credible? Are you sure about this?

        “On the intent point, David, it appears you are now willing to apply your caveat to a situation where the LTTE moves civilians to a military target while it is under fire. This is the quintessential instance of deploying human shields, and this is certainly a battlefield situation.”

        I’m sorry, but that’s just utter rubbish. It is pretty much impossible to move civilians to a place that is under fire. It’s hard enough to move soldiers! Civilians just lie down, curl into balls, and refuse to move even under physical abuse or threats of death. Nevertheless, even if it were possible, my caveat would be applicable only if the Tigers unknowingly (because of the stress of combat) moved said civilians. I can forgive you your ignorance of war since you’ve never been to one, but surely you’re not ignorant of past prosecutions? Can you quote me a single instance from a past case where a prosecution on the use of human shields has been overturned by mounting such a defence? Or where even such an attempt had been made by the defence? The decision to use civilians as human shields can be taken only if the perpetrators are aware that the people in question are civilians or other protected persons, since if they were unaware, there would be no purpose to their use since people who are neither civilians nor protected would be useless as shields. Again, this is just logic (and of course common sense).

        In contrast, I have shown you instances where the assumed intent inferred by the action was clearly wrong, once the conditions were examined. I asked you before to provide a similar situation in regard to the use of human shields, hypothetical or real, but you’re unable to do so.

        If you can agree on this, then there is not much I can add. If you disagree, it makes the equivalent observation that it is impossible to establish intent when the GoSL attacked the NFZ while knowing that civilians were present rather dubious.”

        Only if you are unable to distinguish that the very use of civilians as human shields requires the perpetrators to recognise the status of the people they are using, whereas my caveat is based on the fact that the perpetrators did not.

        Give it up, man, and have the integrity to admit you’re wrong.

      • Gehan

        ‘So now you’re suggesting that credible evidence can be insufficient to make an allegation credible? Are you sure about this?’

        That’s a mischaracterization of what I said.

        David, the positive usage was in respect of the responsibility of superiors. I think the Panel is making an assessment with regard to the doctrine of command responsibility as opposed to an assessment with regard to violations. While allegations would require some solid evidence to make the allegations ‘credible’, there might be evidence of command responsibility regardless of whether someone is making an allegation in that regard. Allegations usually pertain to violations. This is why the Panel consistently refers to ‘credible allegations’ of violations. Where they need to analyze the responsibility of superiors, I think referring to ‘credible allegations of the responsibility of superiors’ is superfluous. What is important there is the evidence. This is really not that complicated.

        ‘The decision to use civilians as human shields can be taken only if the perpetrators are aware that the people in question are civilians or other protected persons, since if they were unaware, there would be no purpose to their use since people who are neither civilians nor protected would be useless as shields.’

        Spot on. But you would describe this as the deployment of ‘human shields’ only if the offending party knowingly moved the civilians to a military target.

        Let’s take a hypothetical situation. Say party X is under artillery attack and has a bunch of civilians to look after. So instructions are given to move them immediately. Due to battle fatigue and the accented Sinhalese of the radio operator, there is a cock up with the coordinates and the civilians are moved to a place where party X’s tanks are already on their way to. The civilians are moved to the location. The other side (party Y) tracks the tanks and is about to shell the tanks when it observes the civilians in the area. You seem to suggest that your caveat can’t apply to such a situation.

        In any event, we’re arguing this the wrong way round. I’m happy to see you use your caveat selectively. So don’t mistake my questions as a defense of your caveat or my willingness to apply it across the board.

      • “the positive usage was in respect of the responsibility of superiors. I think the Panel is making an assessment with regard to the doctrine of command responsibility as opposed to an assessment with regard to violations. While allegations would require some solid evidence to make the allegations ‘credible’, there might be evidence of command responsibility regardless of whether someone is making an allegation in that regard.”

        Well, since the entire panel report is in the context of violations and not some general analysis of the military hierarchy, I think it is safe to say that the meaning of the report is that there is credible evidence of the responsibility of superiors for the actions of their subordinates in regard to violations. Why then is there no credible allegation that the superiors are responsible for the violations committed by subordinates if credible evidence exists of that responsibility, and if credible allegations have been made of violations?

        “Let’s take a hypothetical situation. Say party X is under artillery attack and has a bunch of civilians to look after. So instructions are given to move them immediately. Due to battle fatigue and the accented Sinhalese of the radio operator, there is a cock up with the coordinates and the civilians are moved to a place where party X’s tanks are already on their way to. The civilians are moved to the location. The other side (party Y) tracks the tanks and is about to shell the tanks when it observes the civilians in the area. You seem to suggest that your caveat can’t apply to such a situation.”

        Firstly, I’m quite curious to know why the Tigers (party X) would be talking accented Sinhalese to each other. Second, your scenario doesn’t show civilians being moved to a military location, but to a location which subsequently becomes military due to the later arrival of some tanks. Thirdly, when the tanks arrived at the location where the civilians had now been moved to they (the tanks) would be obliged to either move on or move the civilians out in order not to endanger them. It is only at this point that the human shields issue comes into action. If the tankers then prevented the civilians from leaving, or co-located themselves with the civilians, they would be guilty of using them as human shields. So my caveat certainly cannot be applied to this situation, or in fact any situation involving the use of human shields simply because (as I have already explained, and to which you say you agree) the use of human shields requires the perpetrator to be both aware of the shields’ status as well as the location for the act to be carried out.

        “In any event, we’re arguing this the wrong way round. I’m happy to see you use your caveat selectively. So don’t mistake my questions as a defense of your caveat or my willingness to apply it across the board.”

        My caveat can only be applied selectively, and only in situations where mistakes, misinterpretation, confusion, fear, or any of the other stresses of battle can cause the status of the civilians or other protected persons to be confused. The violation of Rule 97 requires the perpetrators to not just be fully aware, but prevents the act even taking place if awareness were not there. How long is it gonna take you to understand this? It’s pretty straightforward.

      • Gehan

        ‘Why then is there no credible allegation that the superiors are responsible for the violations committed by subordinates if credible evidence exists of that responsibility, and if credible allegations have been made of violations?’

        ‘Credible allegations’ is the terminology used when discussing the war crime or crime against humanity involved. I think the Panel (and most people) know there is no war crime which can be described purely as ‘responsibility of superiors’. 😀 This is getting totally ridiculous. The Panel said this:

        ‘In the case of both war crimes and crimes against humanity, credible evidence points to the responsibility of superiors for their subordinates’ actions.’

        So obviously, there’s a list of war crimes and crimes against humanity. The Panel thinks credible allegations were made in relation to these crimes. The Panel also thinks there’s credible evidence that responsibility for the crimes can be traced to superiors–regardless of whether someone alleges it or not.

        On the hypothetical:

        ‘Firstly, I’m quite curious to know why the Tigers (party X) would be talking accented Sinhalese to each other.’

        Stop being petty, David. It’s called a hypothetical. We needn’t even assume the LTTE is party X.

        You misunderstood the point of the hypothetical. In a strange role reversal, I’m now showing you how this situation–from the perspective of party Y–can seem like an instance of party X deploying human shields. Of course, we’re privy to what really happened, so obviously you can call it a mistake and not a war crime, similar to how I called your anecdotes mistakes rather than war crimes. But your point was that even incidents that seem like war crimes could be explained as mistakes if we really knew what took place in the battle field.

  • Panabokke

    Harshula
    Thank you.

    What can we do to minimise these errors please?

    • Harshula

      I suggest the following:

      1. If you read a news article or press release that appears to contain a factual error. Check and verify it by reading other sources.

      2. If there is a verified factual error, then contact the publisher. Be polite and do not assume malice. Quote the factual error and also quote the other sources to prove your point. Note, some media organisations are held in higher esteem than others. So keep that in mind when quoting a source as evidence to prove your point.

      3. Keep an archive of the complaints you have submitted.

      4. After a while a pattern will develop. You may be surprised to find some prominent media organisations are very reluctant to acknowledge and correct factual errors.

  • georgethebushpig

    Dear Harshula,

    This is a good observation regarding the conflation of terms but does it render unnecessary the need for conducting an independent investigation into whether war crimes were committed or not?

    • Harshula

      I assume you are referring to the 3 out of the 8 members of the LLRC who have been flagged as not independent by the Darusman report? The justification in the report seems reasonable and logical. I am reserving judgement on the LLRC till it has published a final report or has been prematurely disbanded.

      Furthermore, “credible allegations” appear to be the threshold at which it is expected that a state conduct an investigation. If that is the case, then the Darusman report only needed to find “credible allegations” to trigger the requirement for an investigation.

  • Lee Kuan Yew

    Think about it for a moment: could there be credible allegations without credible evidence? Hello? The semi-argument you make – “Simply, evidence is required to prove an allegation to be true. Without evidence, an allegation can not be considered to be fact” – either undermines the point of your article or misses the point. By finding there were credible allegations, the panel is by implication saying there was credible evidence, even if they don’t use that term. Is this really so hard to figure out? So while there may have been a minor slip on the part of ICG and Amnesty to misquote the report, it is utterly inconsequential. Meanwhile your nation is nailed to a tree being gang raped by the powers that be and you are wasting time with silly issues like this. Really – can’t you find a better thing to do with your time?

    • sabbe laban

      Why Mr. Yew, can’t there be allegations without evidence? If somebody says that Mr. Lee Quan Yew swindled millions of dollars from government monies it will remain an allegation only, until proven with evidence, won’t it?

      Now do you understand the extent of that “minor slip”?

      Or rather, I must say that our nations is wrongly crucified by the Holy Goats in the West!

    • Harshula

      re: “could there be credible allegations without credible evidence?”

      Yes. I’ll leave it to you as an exercise to work out the reasoning. Hint: start by understanding the definition of “allegation” and “evidence”.

  • Velu Balendran

    For a govt in denial, burying its head in sand, does it matter whether it is allegations or evidence. Is it so difficult to understand that the call is for independent investigations?

    • Dear Velu,
      No sovereign state (with enough internal power and external support) will allow external independent investigations, unless the results are known beforehand. Surely you know this?

      Let’s pretend for a moment that GoSL has been pressurised into allowing this ‘independent investigation’.

      – Who will comprise the investigating team?
      – Which countries ?
      – Which genuinely independent international body?
      – What will be there terms of reference?
      – What will be the agreed outcomes in case they find against SL?
      – Will they be allowed to go after key pro-LTTE diaspora figures who funded death & mayhem in SL for the last few decades?

      GoSL will have to agree to every single aspect of the above criteria. Realistic?

      In effect SL will be on trial and the jury will not comprise of its peers, rather a lynch mob. That’s why no govt can afford to allow external investigations into a purely internal conflict, regardless of the atrocities committed. Perhaps in 30-40 years after the dust has settled and the main actors have departed.

      The best course of action (regarding the C4 video) is to copy the US and in how they dealt with Abu Ghraib. Find and prosecute a few identifiable low rankers, reduce their sentences after 1-2 years and let them go.

      • ravana

        “The best course of action (regarding the C4 video) is to copy the US and in how they dealt with Abu Ghraib. Find and prosecute a few identifiable low rankers, reduce their sentences after 1-2 years and let them go.”

        Exactly. As cynical as it (white man speak) is, it works in the modern world. Even though this approach is cynical GoSL has not even demonstrated willingness to do this minimum, increasing the suspicion that it is complicit.

        OTOH Fonseka has said exactly what we would like to hear from the time allegations had reached the UN level. That shows the sort of confidence which should have been demonstrated officially by the GoSL. To incarcerate SF for saying he would be happy to front a War Crimes investigation was really really stupid.

        “… That’s one point… he can’t do that.. he was the commander of the army.. that’s a treason..we’ll hang him”

        Very Ugly. “The white man” would have never done that. A head hunter has no place in the modern World.

      • So the only difference you can see between your civilised white man and the headhunter is that the former is more deceitful than the latter. Oh dear, Ravana. I think I can put up with someone calling a spade a spade instead of calling it a shovel. Call me a headhunter if you like.

      • Velu Balendran

        In their day, the LTTE were arrogant too; that they could defy the whole world and win their fight for a just cause, irrespective of how they fought.

        GoSL on the other hand is trying to defend its ‘sovereign’ right to conduct a ‘war without witness’ as it pleases irrespective of international norms.

        Good luck Mango if you can’t sense the noose tightening!

        • Lakshan Wickrema

          Just cause ? what is the just cause ?

  • Harshula

    An official response from the International Crisis Groups was received on 07/06/2011:

    Thank you for bringing this mistake to our attention. We have now corrected the misquote in our database , the original media release and the PDF . In each place we have added a note explaining the change.

    In the PDF, at the bottom of the page: *”Sri Lanka changed 30 May 2011: “credible evidence” replaced with “credible allegations”.”* In the media release and the database entry: *”**Text changed 30 May 2011: “credible evidence” replaced with “credible allegations”.”*

    • sabbe laban

      Harsula

      Well done!

  • ravana

    David,
    Heh, Heh. You do know that I am not talking about the white man, right? Calling a spade a spade might work under some circumstances. But in others you have to learn to talk in a more soothing fashion. Most of the people on this forum are essentially not head hunters despite my critical comments at them.
    I doubt if any of the head hunters would visit this site nor understand the language (including metaphor) used here.
    My comments are for the intelligent readers of this site who should be able to read between the lines. Even as I speak my mind with little restraint on this site, you still have not seen my agenda in plain speak. Not entirely any way.

    If you were to meet me in real life, you may be surprised at the entirely different language I use. Language is a gift that nature has given us along with the higher level emotions which allow us to control the lower levels of our brains. It is but a sliver of grey matter that separates us from the baboons.

    Sri Lanka is a traumatised country. When such trauma occurs the Baboon comes out. You have to speak to the baboon in the language he understands. Hopefully, some of the baboon keepers who visit this site will take the message back.

    • In other words, you’re just [Edited out.] who hasn’t much to say, but likes to give the impression you have, by pretending there’s actually something between your lines? Hmm, no wonder you feel comfortable on this blog 😉

      • sabbe laban

        Great Mythical King

        You have uttered a “racial slur” which is quite unbecoming of you!
        Are you impling that Sinhala is the language of the “baboons”?

  • jansee

    I am baffled at the hu ha.

    Under criminal law, a person is usually investigated based on allegations and evidence will be adduced by the prosecution to prove those allegations beyond reasonable doubt. This is what I have read about on many criminal matters.

    The Panel was right in terming most of the issues dealt with as allegations and, in fact, it did reiterate that it has found credible allegations and that further scrutiny should be pursued. What is wrong with that? I believe the addendum “credible” allegations as stated in the Panel’s report has been carefully weighed before being cited by the Panel.

    We are not talking about ordinary people here. Darusman was the former AG of Indonesia. The SL regime started with dismissing the Panel as a non-entity but quickly rushed to meet them in a hush-hush manner. While they are shocked that the report didn’t go their way, what do you think would have been the reaction if the report had patted on the back on a congratulatory note.

    • The hu ha is over Gehan’s claim that a credible allegation isn’t simply an allegation but one that is made after examining credible evidence.

      • jansee

        Gehan:

        Whatever happened to the notion of a man “is innocent until proven guilty”. That is why allegations are just that – allegations. No matter how bad an adversary may look or behave (let us not talk about actus rea and mens rea) every man should have his day in court against allegations levelled at him.

  • @ Velu: “GoSL on the other hand is trying to defend its ‘sovereign’ right to conduct a ‘war without witness’ as it pleases irrespective of “international norms.” There were witnesses, just not the pukka types (e.g. Times reporters and Marie Colvin) demanded by those now pursuing SL. As for ‘international norms’, come off it, Velu. After Iraq 2, even the Russians look like pacifists.

    @ ravana: GoSL will have to be dragged kicking and screaming into even this minimal attempt of at least going through the motions of punishing any identified SLA troopers. GoSL can then demand the same standard be applied to people like Aunty Adele, currently enjoying her annual appearance on ‘Heroes Days’ celebrations in London. http://tinyurl.com/643cdss
    What do you reckon are the odds on that happening?

    How does the civilised White Man deal with difficult generals? They’re simply sacked, as Gen, McChrystal was for critcising Obama’s AfPak strategy. MR & Co will rue the day they decided on the course of action they took with SF, when more intelligent solutions were available.

    I recommend this superb two-part BBC documentary called “The Secret War On Terror”. Credit to the US spokesmen for being honest – unlike the slimy, dissembling Brits who pretend that they haven’t used information gained through torture and other human rights abuses. 🙂

    Best quote (for me), is Phil Mudd, CIA “… identify the target and eliminate them so more people don’t die.” Other senior US intel people honestly admit that torture works. The modern world is still run by headhunters, who’ve simply swapped their nose rings for smart suits, speak in soothing tones and lecture the rest of humanity on human rights.

  • Harshal, good point, well made.

    In other news, I’m wondering how to draw a distinction between myself and this other ‘ravana’.

    • How do we know the other Ravana isn’t just another pair of your hands typing away without your knowledge?

      • Oh!,dear Groundviews, is a good one!

        Thanks!

  • “I apologize for I assuming that you understood how customary international law works.”

    Lol, I think you should be apologising for assuming that laying down a line of BS instead of an argument would work.

    “2. I have attempted (and failed miserably) to show you that there is a customary definition for the term ‘human shields’ and that the state practice and opinio juris on the issue sugget that for some action to fall within the scope of Rule 97 (i.e. the rule that prohibits the use of human shields), the protected persons must be deliberately moved within proximity of military targets so as to render such tagets immune to attacks.”

    I glad you acknowledge this finally, since nowhere in the text of Rule 97 is this criteria made. Nor have you been able to satisfactorily explain how the Karadzic/Mladic case was judged to have been a use of human shields without falling into your acclaimed criteria.

    “3. You have rejected the Panel’s interpretation of the customary definition of the war crime relating to ‘human shields’.”

    We do not know what the panel’s interpretation is. We have only your opinion on it. I have rejected your interpretation of the definition.

    “4. I made the mistake of assuming that you were aware of the customary definition.”

    Well if this customary definition is nowhere to be found in the law itself and is some sort of secret between you and Darusman, then no, I would be unaware of it. I have however, quoted Rule 97’s definition on human shields, and since this was the law you were referring to, I think we should go by it.

    “When you have some free time, think of two spheres. One is the state practice of country x, the other is the state practice of country y. Customary law is built on the overlapping section when the two spheres are compared, and not the entirety of the two spheres.”

    Perhaps then you should reevaluate where that overlap is, and point it out. Right now, I think the overlap is the stated definition of what the use of a human shield is, as articulated in Rule 97.

    “However you see this issue, I admire your confidence in interpreting customary international law better than IHL experts. If you had raised a question or doubt, I may not have even cared. But to say you are amused suggests a very advanced understanding of customary international law.”

    Now you’re sounding whiny, Gehan. Put up or shut up, no?

    “You should really take up academia, David. It’s a calling.”

    Depends who’s calling 😉

  • ravana

    Saban Machan,
    Siyabasa (Seehala Basa) is my mother tongue. The one I cut my baby teeth on. There is no reason for me to insult it. If you mean that Baboons are meant to be speakers of sinhala only, then you are wrong. Many of the Baboons have paid much to learn English. I on the other hand learnt English late and never paid for it. I may now teach those who cut their teeth on it to speak it better. But unlike cardboard-hero Sinhalas, I take silent pride in the beauty of it.
    If you haven’t already got it, I also grew up in the very lap of the Dhamma.

    It is precisely because I was once proud to be sinhala, that I take my inalienable right to destroy the myths of the “Para Sinhala W#[email protected]% Puthas” who have raped my Mother!

    In case you wonder why I use “proud” in past tense, the pride suffered first in July 1983; then it was raised again in a fateful day in Colombo during the Northern Campaign, when citizens of Colombo came out in their thousands against Goata’s orders to evict Tamil citizens who had fled the War front and send them back there. Well that pride perhaps lasted barely 4 months post May 2009. I guess that history is not too far for you to remember.

    Ahhh! Saban, I’m getting a terrible itch. Kassapanko machan, saban daala kassapan.

    (Here, I’ll give you a gift; a riddle to solve. Karathotte Thernunanse dunna Bara Nama kumakda?

    Hint: James who was much more honourable than Percy)

    • sabbe laban

      Great Mythical Ra…–..vana

      Sorry, I’m unable to solve your riddle. If it is relevent to this discussion please solve it and let me know, maybe when you are sober!

      • ravana

        My dear Sabbe,

        The relevance is your misunderstanding that I made a racial slur. So, I have established some evidence for my love for Sinhala (the language not the Jathi Ale variety) as there is an artificial “race” associated with it.

        The riddle was to test whether your love for Sinhala is a deep as mine. The subject of the riddle is in a tome which was put away and ignored in my library for 25 years. It was after I discovered a reference to the treasure of the riddle on the Internet, that I came upon this book, by chance, in my library and on perusing it found the treasure. I was desperately trying to find it elsewhere and it was under my nose! Serendipity indeed.
        Now I have put the treasure under your nose. When and if any one solves the riddle, it would seem obvious. I have given many clues by now. One more clue- Karathotte may be spelt differently (you don’t need the possessive). Since Sabbe has thrown in the towel, anyone who solves the riddle can have his jewels as a prize (Saban too!).

        One more thing; whilst the treasure is the epitome of beauty of the Sinhala language, it is also an Achilles heel, revealing an aspect, a root of the Sinhala Buddhist Nationalism.

  • ravana

    Hey bro,
    Cool site. Why is the last post on 19 May 2010; Hena Gahuwada- heh heh heh

    Mind you I like the interviews of MR, Palitha Kohona and Ashok Mettha on Oct 8 2008:

    MR (re political vs military solution): I agree with that; the final solution will be a political solution; there is no military solution for this. But you have to defeat the terrorism.. if you defeat terrorism…then for the reasonable people, I mean we might be able to give the political solution (hmm… Dougy, Pilliyan, Karuna, KP…)

    (about it being personal between him and Prabhakaran):No it is nothing personal for me, I mean I don’t have any personal grudges against people, not even with Prabhakaran (hee hee hee- what about the World’s Greatest…)

    Ashok Metta: .. Sri Lankan Government has to realise that LTTE cannot be defeated militarily (ho ho ho, this simply precious stuff)… over the years the political solution gets sidelined in the guise of defeating terrorism (well Ashok it’s been 2 years since they defeated the terras)

    Now for the most hilarious part:

    Palitha Kohona:(on Tamils having genuine grievances): ..I must emphasise as the President said earlier that the end game is political. We can only solve this conflict through a political process. (so what are going to offer the Tamils of Sri Lanka?) It’s not a matter of one party offering something to the other. We have to get together and work out a solution. That is why we have the APRC…

    HIK HIK HIK; so much for APRC. I think Palitha Ayya also had a party with the Moon committee but where is the solution?

    Reminds of Dr. Rajasingham’s quote elsewhere on this blog:

    The Moving Finger writes; and, having writ,
    Moves on: nor all thy Piety nor Wit
    Shall lure it back to cancel half a Line,
    Nor all thy Tears wash out a Word of it.

    (Rubaiyat of Omar Kayyam)

    replace moving finger with Talking Head.

    • sabbe laban

      Great Mythical Ra(beepu!)vana

      To add to tha..t, Ma-chang..:

      “we come like the wind
      and go like the wind”

      -Omar Kayyam

      • ravana

        I came like water, and like wind I go.

    • ravana

      Aove comment re MR, Ashok and Palitha was a reply to ravana.wordpress.com.

  • I’m posting this at the end cos I think these multiple threads are intentionally confusing the issue.

    “Heavens, no, Rule 97 only says this: ‘The use of human shields is prohibited.’”

    Golly gee, really??

    “What you’ve been citing are not portions of the Rule itself, but commentaries on the Rule and military manuals that make up the state practice, which the Rule is based on.”

    It’s not what I’ve been citing, Gehan; it’s what we’ve both been citing, as well as what the law itself is citing. The difference is, you’re comfortable citing only the NZ and UK manuals, because they suit your argument, whereas I prefer to cite all of the manuals and practices the law is based on. I think it’s self evident which system is fair and just.

    “This is also why the Panel’s interpretation of the customary definition cannot be discarded just because you found some line in the commentaries that is perhaps prone to misinterpretation by the untrained mind.”

    To the contrary, it is you who have found one line in one manual that fits your interpretation. My interpretation is based on all of these commentaries and manuals, as well as the definition of what a human shield is.

    Keep going, Gehan. You’re most amusing 😀 Looks like your so-called training cannot overcome your arrogance. Perhaps that should be a module at law school.

    “‘Credible allegations’ is the terminology used when discussing the war crime or crime against humanity involved. I think the Panel (and most people) know there is no war crime which can be described purely as ‘responsibility of superiors’.”

    Yes but that’s not what I asked, so have another read lol.

    “‘In the case of both war crimes and crimes against humanity, credible evidence points to the responsibility of superiors for their subordinates’ actions.’ So obviously, there’s a list of war crimes and crimes against humanity. The Panel thinks credible allegations were made in relation to these crimes. The Panel also thinks there’s credible evidence that responsibility for the crimes can be traced to superiors–regardless of whether someone alleges it or not.”

    Certainly, but then the wording would say that there was credible allegations that the high command was responsible for war crimes. And since it is the panel itself that is making the allegations, there is no reason to wait for your “someone” to make the allegations. I know you’ve gone to great pains to convince us that the law has no correlation to logic or common sense, but I tend to disagree.

    “Stop being petty, David. It’s called a hypothetical. We needn’t even assume the LTTE is party X.”

    Even a hypothesis has to have a basis in reality, Gehan. There has never in 30 years of war been a single allegation, credible or otherwise, about the SL Army using human shields, so let’s not play silly buggers. Party X are Tigers and your combat stress is an illogical and unrealistic one.

    “You misunderstood the point of the hypothetical.”

    No, Gehan, it is you who have misunderstood the nature of the battlefield, the character of the combatants (something not uncommon amongst people removed from the realities they’re dealing with), and thereby rendered your hypothesis both absurd and irrelevant.

    “In a strange role reversal, I’m now showing you how this situation–from the perspective of party Y–can seem like an instance of party X deploying human shields.”

    Only if party Y were as ignorant of the battlefield as you are, or were trying to hoodwink someone as ignorant (much as you are trying to do by assuming my ignorance of the law). As I told you already, sending the civilians to a non-military location is not a violation of Rule 97, and there is no way Party Y could think it was. It is only when X’s tanks arrive at the location does it become military, and it is the subsequent behaviour of the tankers that is relevant to Rule 97; ie if they detained the civilians or co-located with them, they would be in violation. I see no reason for any confusion.

    “Of course, we’re privy to what really happened, so obviously you can call it a mistake and not a war crime, similar to how I called your anecdotes mistakes rather than war crimes. But your point was that even incidents that seem like war crimes could be explained as mistakes if we really knew what took place in the battle field.”

    Don’t be silly. The biggest flaw in your hypothesis is the fact that you don’t state that any civilians were killed, whether Party Y was foiled by the civilian presence, or whether even Party Y targeted the tanks. Without that how can there even be an allegation of a violation?

    Are you comfortable with adding the perquisite that the detaining of the civilians must be for the deliberate purpose of protecting military targets?”

    Come on, Gehan. I think we’ve established that intent to violate must be proven.

    • Gehan

      1. On allegations and evidence:

      ‘And since it is the panel itself that is making the allegations, there is no reason to wait for your “someone” to make the allegations.’

      I’ve finally detected the source of your concerns. So you think the term ‘credible allegations’ refers to the Panel’s own allegations?

      2. On the hypothetical:

      I’m sure if Party Y, for the first time, observed civilians in close proximity to the tanks, that would have rendered the tanks immune to attack. The only real question would be whether the move was intended to shield the tanks. We know it wasn’t. The key here is that Party X did not deliberately move the civilians within proximity of those tanks, even though at the material time, both the civilians and the tanks were at the same location (co-location). Wouldn’t you agree that it is the lack of this intention (rather than the move itself) that exonerates Party X?

      For example, if the entire hypothetical is reworked, and Party X KNEW of the imminent arrival of the tanks to that location, then moving the civilians to that location could be construed as a deployment of human shields, right? (Under the co-location theory?)

      3. On the definition:

      Great, so you agree that there is a difference between

      a. ‘deliberately detaining civilians’; and
      b. ‘detaining civilians for the deliberate purpose of rendering military targets immune to attack’, right?

      Would you agree that there is a distinction between civilians and other non-combatants (say, UN peacekeepers) when it comes to the likelihood of these two groups hanging around military targets?

  • “So you think the term ‘credible allegations’ refers to the Panel’s own allegations?”

    Well since it is the panel that has defined the allegations as “credible”, I think it is fair to say that they — as far as this discussion is concerned — come from the panel.

    “I’m sure if Party Y, for the first time, observed civilians in close proximity to the tanks, that would have rendered the tanks immune to attack. The only real question would be whether the move was intended to shield the tanks. We know it wasn’t. The key here is that Party X did not deliberately move the civilians within proximity of those tanks, even though at the material time, both the civilians and the tanks were at the same location (co-location). Wouldn’t you agree that it is the lack of this intention (rather than the move itself) that exonerates Party X?”

    Cmon, Gehan. At no point in your hypothesis is it possible for Party Y to have observed civilians being moved to, or being held at, a military location; nor of a military unit co-locating with civilians. So how can a violation have been alleged? Ie what you’ve done is laid out a situ where There’s almost no chance of confusion towards a violation, and defended it as being innocent. In other words, a strawman. If you can lay out a situ where it actually looks like a violation has been committed (as shown on the footage), then we can discuss it.

    In your reworked hypothesis, intent would still have to be established, or at least the lack of any other intent. If the tankers then prevented the civilians from leaving, or followed them, the intent would be clear.

    “Great, so you agree that there is a difference between
    a. ‘deliberately detaining civilians’; and
    b. ‘detaining civilians for the deliberate purpose of rendering military targets immune to attack’, right?”

    Of course. Eg if civilians were held in an internment camp, though it is deliberate detention, it isn’t using them as shields.

    “Would you agree that there is a distinction between civilians and other non-combatants (say, UN peacekeepers) when it comes to the likelihood of these two groups hanging around military targets?”

    Not in relation to Rule 97 or the shields issue, since the rule is only concerned with with combatant use of protected persons, and not the actions of the latter.

    • Gehan

      Yes, the Panel calls already-made allegations ‘credible’ by assessing the evidence. I don’t think it’s fair to say that this assessment makes the credible allegation actually emanate from the Panel.

      Ok, let’s use our imaginations and apply my hypothesis to a more definite scenario. Say there’s a bridge. Party X sends the civilians to the bridge. The tanks cross the bridge when the civilians are on it. Now the material time would be the period when the tanks cross–which happens to be the only period they might have been vulnerable to attack. Party Y is prevented from attacking the tanks because of the co-location.

      If Party X knew the tanks had to cross the bridge and sent the civilians there deliberately to protect the tanks, that would be a deployment of human shields–at least for the duration of the crossing. There is no detention, but there is co-location. However, if there was a miscommunication or miscalculation, the co-location would be merely coincidental. No war crime. Agreed? So it would be a little unfair to say the issue of human shields is exempt from battle field cock ups.

      ‘Not in relation to Rule 97 or the shields issue, since the rule is only concerned with with combatant use of protected persons, and not the actions of the latter.’

      I tend to agree with you. My reading of the customary definition supports this view. But in order to fit your interpretation of the customary definition (i.e. detaining civilians who hang around military targets), we should inquire whether it’s likely for civilians (as opposed to UN Peacekeepers) to hang around military targets. I suspect this is very unlikely. I don’t see a single example of this phenomenon. Even in the case of Bosnian-Serb violations, civilans were used as ‘living walls’ thereby indicating their movement by the combatants.

      If you don’t mind, let’s leave the UN Peacekeepers out for the moment. I promise to return to this later, because I admit there is something interesting to discuss there. As you already know, the Panel refers to ‘civilian movement’. I think there’s something to this distinction worth investigating.

  • sabbe laban

    ravana

    My atrophied brain could find this much only: Thorakatta Kerunnanse..something! I don’t get your clue of James and Percy!
    Maybe another clue would do. The problem of ambiguous phonetics do play a role, Your Majesty!

    Thanks for correcting the poem! I just quoted it as I remembered!

  • “Yes, the Panel calls already-made allegations ‘credible’ by assessing the evidence. I don’t think it’s fair to say that this assessment makes the credible allegation actually emanate from the Panel.”

    I disagree. Since the panel is more or less the prosecution, I think it can be said suggestions of violations are allegations made by the panel.

    “Ok, let’s use our imaginations and apply my hypothesis to a more definite scenario. Say there’s a bridge. Party X sends the civilians to the bridge. The tanks cross the bridge when the civilians are on it. Now the material time would be the period when the tanks cross–which happens to be the only period they might have been vulnerable to attack. Party Y is prevented from attacking the tanks because of the co-location.”

    Gehan, there are a plethora of situations in which military units and civilians share the same space in war. It is unavoidable. To take one of these and pretend you can defend it from an allegation of a violation is still burning that strawman. Unlike many other rules, 97 is a very difficult one to dodge if violated.

    “If Party X knew the tanks had to cross the bridge and sent the civilians there deliberately to protect the tanks, that would be a deployment of human shields–at least for the duration of the crossing. There is no detention, but there is co-location. However, if there was a miscommunication or miscalculation, the co-location would be merely coincidental. No war crime. Agreed? So it would be a little unfair to say the issue of human shields is exempt from battle field cock ups.”

    I don’t think co-location and co-habitation are the same thing. Which is probably why Rule 97 cites the UK military manual of 1958’s comment about placing civilians on the running boards of locomotives. This is a deliberate act. Under your logic, merely allowing civilians to travel on the train as passengers would be grounds for confusion. It isn’t. So in your hypothesis, the civilians sent to cross the bridge wouldn’t be confused for shields. If, however, those civilians were lined up at gunpoint on the bridge while the tanks crossed, forcibly held around the bridge, or forced to travel on the tanks, it might be seen to be a use of human shields. You’re still not setting up an adeqately ambiguous situation, Gehan.

    “But in order to fit your interpretation of the customary definition (i.e. detaining civilians who hang around military targets), we should inquire whether it’s likely for civilians (as opposed to UN Peacekeepers) to hang around military targets. I suspect this is very unlikely. I don’t see a single example of this phenomenon.”

    It all depends what the military target is. If you mean a nuclear missile base or an aircraft carrier, no, it’s unlikely. But if you mean Katunayake Air Force Base, which is alongside the international airport, or Ratmalana AFB, which is also a civilian airport, or a Tiger base in Mullaitivu, the chances are high. Also targets can be mobile ones like convoys, trains, or an individual, who might be moving through civilian areas like a city or village, and so the natural chances of civilian presence would be high.

    “Even in the case of Bosnian-Serb violations, civilans were used as ‘living walls’ thereby indicating their movement by the combatants.”

    Possibly, but not necessarily. A military unit could move into and occupy the centre of a village, and prevent the villagers living around them from leaving, using them as your living wall.

    “If you don’t mind, let’s leave the UN Peacekeepers out for the moment. I promise to return to this later, because I admit there is something interesting to discuss there. As you already know, the Panel refers to ‘civilian movement’. I think there’s something to this distinction worth investigating.”

    Given that the Karadzic/Mladic use of UN peacekeepers is the only actual case cited by Rule 97 in its definition, I think it’s odd to leave it aside. The definition and the cited manuals and articles don’t make a distinction between civilians and other protected persons; they all consitute human shields. I know that this case kinda puts a spanner in your “movement” argument, but that’s all the more reason to consider it.

    • Gehan

      David, I’m now going to bring the point of my hypothetical and the customary definition of human shields together to sum up.

      You say: ‘Under your logic, merely allowing civilians to travel on the train as passengers would be grounds for confusion. It isn’t. So in your hypothesis, the civilians sent to cross the bridge wouldn’t be confused for shields.’

      Is that really fair to say? Having the civilians stationed on the bridge will certainly make the crossing tanks immune to attacks. The same applies to civilians visibly placed in trains that are specific military targets (we need to exclude dual-use objects because that would undermine the ‘deliberate’ nature of the civilian placement). I think you might be dodging the hypothetical by not considering the difference between knowingly co-locating the civilians and coincidentally sending them to the bridge. I don’t think keeping the civilians at gunpoint would be necessary if the civilians themselves are unaware of the fact that the tanks are being targeted. The co-location at the relevant time puts the civilians at risk. The war crime relates to the risk at which the civilians are put. If it was deliberate co-location, it may be construed as a deployment of human shields.

      I think we both agree that when it comes to human shields, some action which CLEARLY reveals the deliberate purpose of rendering the military targets immune to attack is necessary.

      Our disagreement lies in the nature of the action. I say this deliberate feature can only be demonstrated adequately if the civilians are moved in some way. Even in my hypothetical, Party X would have to move the civilians to the location and then hold them there at gunpoint for you to agree it is a war crime. I say this because civilians are not likely to be around military targets in the first place. You hypothesize that there could be instances where civilians happen to be amongst military targets to begin with and no movement whatsoever would be necessary. I still can’t imagine that happening.

      Even if we disagree about what civilians are likely to do, we both agree that there are no illustrations that relate to civilians, except for the ones where they’ve been moved.

      This brings us to the Karadzic/Mladic case. I don’t think it’s the only illustration referred to in the material, as I distinctly recall examples where civilians were used as ‘living walls’ also mentioned. Having said that, we should closely examine what really took place with regard to the UN Peacekeepers. I mentioned before that the judgment suggests that the peacekeepers must’ve been moved. Para.47 of the judgment recounts the facts:

      ’47. After seizing UN peacekeepers in the Pale area, Bosnian Serb military personnel, under the direction
      and control of RADOVAN KARADZIC and RATKO MLADIC, immediately selected certain UN
      hostages to use as “human shields,” including but not limited to Capt. Patrick A. Rechner (Canada), Capt.
      Oldrich Zidlik (Czech Republic) Captain Teterevsky (Russia), Maj. Abdul Razak Bello (Nigeria), Capt.
      Ahmad Manzoor (Pakistan) and Maj. Gunnar Westlund (Sweden). From on or about 26 May 1995
      through 27 May 1995, Bosnian Serb military personnel physically secured or otherwise held the UN
      peacekeepers against their will at potential NATO air targets, including the ammunition bunkers at
      Jahorinski Potok, the Jahorina radar site and a nearby communications centre in order to render these
      locations immune from further NATO airstrikes. High level Bosnian Serb political and military
      delegations inspected and photographed the UN hostages who were handcuffed at the ammunition
      bunkers at Jahorinski Potok.’

      All things considered, it appears that your only illustration doesn’t quite support your interpretation of the customary definition of human shields. Unless these personnel were physically at the locations with their arms held up, even detaining them at the locations must’ve involved moving them in some way.

      I think we’ve exhausted the interpretational spectrum. Thanks for the discussion, David. I must sincerely admit it was interesting as well as thought provoking.

  • Gehan

    Sorry about the formatting. Here’s where you can find the judgment: http://www.icty.org/x/cases/mladic/ind/en/kar-ii950724e.pdf

  • “Is that really fair to say?”

    Given that guilt musn’t be presumed, and that there’s no sign in your hypothesis of the civilians being compelled or threatened by Party X, it is perfectly fair to say that neither Party Y nor a neutral party would presume that the civilians are being used as human shields.

    “Having the civilians stationed on the bridge will certainly make the crossing tanks immune to attacks. The same applies to civilians visibly placed in trains that are specific military targets (we need to exclude dual-use objects because that would undermine the ‘deliberate’ nature of the civilian placement).”

    Correct. But none of this happens in your hypothesis, so I still fail to see how anyone can misconstrue the described actions to be that of using human shields.

    “I think you might be dodging the hypothetical by not considering the difference between knowingly co-locating the civilians and coincidentally sending them to the bridge.”

    Lol, you seem to have forgotten that it was I who pointed out to you that the deliberate in your hypothesis could be misconstrued to be coincidental, rather than the other way around as you were trying to prove, via your flawed hypothesis! As I said before, it isn’t your intelligence that is to blame but your arrogance; and your ignorance of battlefield realities.

    “I don’t think keeping the civilians at gunpoint would be necessary if the civilians themselves are unaware of the fact that the tanks are being targeted. The co-location at the relevant time puts the civilians at risk. The war crime relates to the risk at which the civilians are put. If it was deliberate co-location, it may be construed as a deployment of human shields.”

    This would be true if the civilians had been ordered to do something unambiguous, like lining the bridge or riding on the tanks. There’s no reason to be suspicious of civilians being told to cross a bridge, since the bridge is not a military object. That is why I invited you to defend the Tiger actions seen in the UAV footage, unambiguous actions of holding civilians at military targets and preventing their departure by firing on them. If you had been able to show that the stresses of combat changed the perceived intention behind the evidentiary actions, we would have a debate. Instead you set out a hypothesis that cannot do so.

    “I think we both agree that when it comes to human shields, some action which CLEARLY reveals the deliberate purpose of rendering the military targets immune to attack is necessary.”

    Certainly, and I suggested that the UAV footage showing the Tigers corraling and shooting at civilians revealed that deliberate purpose and is therefore credible evidence. The verdict in the Karadzic/Mladic case supports this.

    “Our disagreement lies in the nature of the action. I say this deliberate feature can only be demonstrated adequately if the civilians are moved in some way.”

    Quite to the contrary, as both the UAV footage and the Karadzic/Mladic case reveal. The only way to discount these examples is to be selective in the practices, manuals, and articles cited by Rule 97. This is acceptable when defending against an allegation, but in no way represents the truth. Of course, the truth has nothing to do with defence, but about presenting your own version of the truth. Unfortunately for you, the cited practices are pretty clear.

    “Even in my hypothetical, Party X would have to move the civilians to the location and then hold them there at gunpoint for you to agree it is a war crime.”

    Not at all. Civilians could have been crossing the bridge of their own volition, and Party X could have held them on the bridge til the tanks had crossed. This would have been a violation of Rule 97. The civilians might have been camped next to the bridge and attempting to flee when Party Y’s tank-busting aircraft arrived, but prevented by Party X, making it a violation. The possibilities are wide.

    “I say this because civilians are not likely to be around military targets in the first place. You hypothesize that there could be instances where civilians happen to be amongst military targets to begin with and no movement whatsoever would be necessary. I still can’t imagine that happening.”

    That is because you’re being obtuse, Gehan. I have given you sufficient examples; if you think they’re faulty, have at ’em. More often than not, in modern warfare, civilians are in close proximity to military targets.

    “Even if we disagree about what civilians are likely to do, we both agree that there are no illustrations that relate to civilians, except for the ones where they’ve been moved.”

    Wrong again. Have you even read through the practices cited? Here’s a tip: check out the Ivory Coast manual quoted.

    “This brings us to the Karadzic/Mladic case. I don’t think it’s the only illustration referred to in the material, as I distinctly recall examples where civilians were used as ‘living walls’ also mentioned.”

    Why don’t you actually read through material, and if you can find another case mentioned, we’ll take it from there.

    “Having said that, we should closely examine what really took place with regard to the UN Peacekeepers. I mentioned before that the judgment suggests that the peacekeepers must’ve been moved. Para.47 of the judgment recounts the facts: From on or about 26 May 1995 through 27 May 1995, Bosnian Serb military personnel physically secured or otherwise held the UN peacekeepers against their will at potential NATO air targets, including the ammunition bunkers at Jahorinski Potok, the Jahorina radar site and a nearby communications centre in order to render these locations immune from further NATO airstrikes. High level Bosnian Serb political and military
    delegations inspected and photographed the UN hostages who were handcuffed at the ammunition
    bunkers at Jahorinski Potok.’ All things considered, it appears that your only illustration doesn’t quite support your interpretation of the customary definition of human shields. Unless these personnel were physically at the locations with their arms held up, even detaining them at the locations must’ve involved moving them in some way.”

    So it doesn’t strike you as odd that the sole criteria you claim is essential for the violation of Rule 97 isn’t even mentioned in the above judgement??? Instead, the judgement says that the peacekeepers were held against their will; criteria that has no relevance to Rule 97, according to you. Are you now going to tell me that judgements are not precisely written and can be interpreted widely?

    “I think we’ve exhausted the inter pretational spectrum. Thanks for the discussion, David. I must sincerely admit it was interesting as well as thought provoking.”

    I don’t blame you for wanting a quick exit after that fiasco of a summing up. Harvard, eh? Golly gee. Frankly, I think we would have been done and dusted long ago but for the fact that your highly trained legal ego wouldn’t allow itself to be provan wrong by an ignorant grunt.

  • Gehan

    David, just read the judgment and get back to me if you still think the UN Peacekeepers were not moved in any way. I don’t think you’re ignorant, mate. You need to dust yourself off and get them chips off your shoulder.

  • sabbe laban

    My Kosovan friend says, ” No more Serbs, no more.. Russia. All finished now! The Serbs killed….women, children.. Russia killed them too. NATO..bombed and no more Serbs, (they)were down..on their knees, “down” we said, and boom, boom no more Serbians…Kosovo in an independent country.”

    “Melosovich”, hanged himself with his belt, Mladic will do the same.
    He was crying! Tears rolling down. Did you see?

  • Gehan, I’ve read the portion you’ve quoted. I really can’t be bothered going through a 15-page document, looking for something on movement that you yourself cannot find. If there’s anything there on movement, do quote it and we’ll look at the context. The point isn’t whether there was movement of the peacekeepers or not, but whether the guilt of the perpetrators is based on that movement. From your quote, it is abundantly clear that it is the detention that has been scrutinised and mentioned as cause. Give it up now.

  • Gehan

    It’s pretty clear you’re admitting movement now. Of course, the final restraining is the culmination of the chain of events. The perpetrators a) detained 200 Peacekeepers; b) selected a few of them including high level officers; 3) took them to the potential NATO air targets; and 4) restrained them there. I don’t see how this is inconsistent with the UN Panel’s interpretation of the customary definition: ‘deliberately moving civilians towards military targets to protect the latter from attacks.’

  • Cmon, Gehan, you’re making a spectacle of yourself now. I’m not admitting anything. I’m conceding there might or might not have been movement, simply because the judgement doesn’t say there wasn’t. But I think it’s crystal clear that if movement was the criteria, and the only criteria, as you continue to insist, the judgement would at least make a mention of it. Correct? Instead, it unambiguously states the cause to be the very criteria you claim has nothing to do with 97 and the human shields! Don’t forget that I never claimed that movement wasn’t a criteria; just that it’s not the only one.

    The judgement is there in black and white, and while your desparate dogpaddling from one straw to another might provide some momentary amusement, please don’t insult our intelligence and your training by insisting it’s an argument.

    Clearly intentionally detaining non-combatants with the intent of using their presence is a violation of Rule 97. The definition lays it out, the cited practices support it, and the Karadzic/Mladic judgement confirms it. Both you and Darusman are wrong about the UAV footage not being credible evidence of a violation of 97, ie the use of human shields by the Tigers. Take it like a man, Gehan.

    • Gehan

      ‘Don’t forget that I never claimed that movement wasn’t a criteria; just that it’s not the only one.’

      So if movement is part of the criteria, the Panel’s interpretation is right. Of course it’s not the only criterion! 😀 There would also need to be identifiable military targets and subsequent co-location or restraining of civilians to demonstrate that the movement was actually for the deliberate purpose of rendering these military targets immune to attack.

      This is consistent with the commentary you rely on: ‘human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.’

      It’s your interpretation of the commentary that’s flawed. You think co-location can take place accidentally or coincidentally. It’s the word ‘intentional’ that’s important. I don’t think the judges in the Karadzic/Mladic case need to use the word ‘movement’ or ‘moving’ to opine that the co-location must be caused by the perpetrator for a deliberate purpose. Para.47 clearly shows us that the perpetrators deliberately moved the UN peacekeepers to the specific targets. This movement TOGETHER with the subsequent restraining demonstrates the deliberate attempt to shield the targets. You can’t divorce the two elements.

      Anyway, all of this comes down to whether the UAV footage amounts to credible evidence or not. So let’s examine the footage.

      But first, do you at least agree that the military targets need to be specific?

  • “We’re not men, we’re correspondents.” — Matthew Modine in Full Metal Jacket

    Lol looks like that applies to lawyers too.

    If I’d actually said that it was part of the criteria, you might have had a point. What I said was that it was one of the criteria. Part implies that without it the whole would be incomplete. One means that it is one of many possibilities. English comprehension failing you under the stress of combat? 😀

    “There would also need to be identifiable military targets and subsequent co-location or restraining of civilians to demonstrate that the movement was actually for the deliberate purpose of rendering these military targets immune to attack.”

    Ha ha I know you’ve done a lot of backtracking and u-turns in the debates we’ve had, but Lol this is funny now. In your own hypothesis you laid out the fact that there was no restraint. Yet now you say the latter is part of the criteria. And earlier you were presented with the video as evidence, you argued that restraint wasn’t the criteria. Have you now had to resort to intellectual deceit to assuage your ego?

    Do look at the UAV footage; it’s the last straw left to you. It’s what you should have first examined instead of arrogantly assuming that your knowledge of the law would let you BS your way through. The fact that a military target was in the equation was a given, or we wouldn’t be having this debate. Perhaps the Tigers were using the civilians to protect the YMCA.

    Upto now I managed to muster some respect for your abilities to defend the indefensible; but now you’ve just made yourself into another Heshan. Pathetic and sad; with an ego too swollen to admit defeat. As I told you back on Indi.ca, I hope the UN won’t have to depend on lawyers of your calibre. Luckily, SL will have guys far more capable than me. From what I’ve seen here, it should be a doddle. If it ever comes to court; which it won’t.

  • Gehan

    I think what you meant to say was that movement to a particular location is a dispensable criterion. 🙂

    I believe I said co-location OR restraining. You must’ve been in a hurry when you drafted the last set of insults.

    I’m not particularly interested in earning your respect, David. If you feel more comfortable engaging in friendly banter, I’d be happy to oblige in another forum. But over here I wouldn’t want to provoke you into having another Tourette’s episode, though I sense you could do with the release. The last time Groundviews edited out your hysterics was embarrassing.

    ‘The fact that a military target was in the equation was a given.’

    Does the UAV footage reveal which military targets you’re talking about? You know, hostage taking is not the same as the deployment of human shields. Regardless of the movement debacle, you now insist that specific military targets don’t have to be evident. Having military targets in the general vicinity seems to be enough to go by. You’re shredding the customary definition into pieces just to justify your initial amusement. Yes, this debate is absolutely about my ego. 😉

    • “I think what you meant to say was that movement to a particular location is a dispensable criterion. I believe I said co-location OR restraining. You must’ve been in a hurry when you drafted the last set of insults.”

      You were insulted? Lol. Yes, I think the movement criteria is dispensable, whereas you think the restraint criteria is irrelevant, regardless of whether movement is present or not, as evidenced by your hypothesis. You are now backtracking and denying this, in spite of the fact that you argued that the restraint visible in the UAV footage is not a criteria according to your interpretation of Rule 97.

      “Regardless of the movement debacle, you now insist that specific military targets don’t have to be evident.”

      Where have I said this? It is a pity that you’ve had to resort to misquoting me, as well as denying what you previously claimed. Intellectual deceit seems to be the last resort now.

      “Does the UAV footage reveal which military targets you’re talking about?”

      Gehan, the purpose of this debate isn’t to examine the evidence. Neither of us is even privy to all the evidence. The panel doesn’t even lay out what the evidence behind their credible allegations are; so if you wish to now examine or dismiss evidence, I could very well insist that the evidence behind the panel’s allegations against the GoSL be also presented and examined, or dismissed out of hand. We are both assuming here which evidence was examined and attempting to figure out what the panel’s interpretation is. We all know that evidence of the shelling of hospitals, executing of prisoners, co-location with civilians and non-combatants, and forcible detention of civilians is there. All we’re concerned with is whether these actions fall under the various IHL laws. Upto now, your argument has been that the actions visible in the UAV footage doesn’t fall under Rule 97, just under rules 23 and 24. If you believe the latter, you must also believe that the UAV footage shows the detention of civilians at a military location, and/or the co-location of military targets with civilians (which is what 23 and 24 deal with). So to now suddenly do a U-turn and claim that the UAV footage may not show this at all is evidence that you understand, even though you will not admit to, the fact that your argument on the irrelevance of Rule 97 is an abject failure.

      Don’t worry about the perceived insults. Unfortunately, at least one of the GV editors tends to be a bit trigger-happy with the censor button. I assure you none of my comments would be more insulting than anything leveled at you by opposing counsel in a court of law.

      So once more, here it is: the UAV footage shows Tigers detaining civilians under threat of death, consistent with the criteria defined in Rule 97, supported by the practices cited from military manuals, state laws, the GCs, and the ICC, and confirmed by the judgement in the Karadzic/Mladic case, which makes no mention of movement of non-combatants. You can keep batting on, but you’re looking like a little kid who refuses to leave the wicket even after being bowled middle stump. All you’re doing is making yourself look foolish.

    • As an aside, I suggest you also read Prof Michael Roberts’ piece on the landscape of the Tiger’s last bastion:

      http://thuppahi.wordpress.com/2011/06/07/the-landscape-of-the-ltte%E2%80%99s-last-redoubt-may-2009/

      • Gehan

        Thanks, David. I don’t doubt that the LTTE violated IHL. But none of this evidence seems to fit the criteria under Rule 97. The illustration you rely on is the Karadzic/Mladic case. I would presume that we would require evidence of that calibre to proceed under Rule 97. Perhaps the UN Panel ignored some credible evidence, which you’re not in a position to reveal publicly. I’ll give you the benefit of the doubt and move on.

      • As has been amply proven, the UAV footage fits perfectly under the criteria of Rule 97. This has been shown, and you have no counter argument beyond insisting that what is before us in black and white isn’t true. Pathetic. I also see you’re once more attempting to break this thread up to sow more confusion. I have responded below, and I urge you to stick to one thread if you actually have something more to add.

      • Here are basically the questions you need to ask yourself and articulate answers to if we are to give your argument any semblance of credibility:

        1. Do you accept the Karadzic/Mladic case as a valid judgement of a violation of Rule 97? If not, why not?

        2. Do you accept that movement isn’t articulated in the judgement of the above case as a criteria for violation? If not, show us where it is mentioned.

        3. Based on questions 1 and 2, do you accept that movement is not an essential criteria in judging a violation of 97? If not, show us a case where movement was said to be the vital criteria, or a case where detention alone was insufficient.

        4. Are you now changing your original acceptance that the UAV verdict showed detention at a military target by the Tigers? If you are, tell us why you are doing this U-turn (other than the obvious, ie that you’re losing the debate).

        Please try to retain your intellectual honesty, given that this is not a court case but an attempt to get at the truth behind the panel’s wording. No one’s going to the chair if you lose this debate, Gehan 😀

      • Gehan

        1. Yes I do.

        2. It is not articulated as a criteria. But it is a fact. Even if (as you suggest) we dispense with movement as a criterion, you still have to show a specific intent to shield specific military targets. And as argued under point 4 below, the fact of movement becomes indispensable to prove intent.

        3. See above.

        4. No, I’m not changing my stance. I’m drawing a distinction between acts that depict specific intent to protect military targets and acts (such as hostage taking) that are merely inexcusable under IHL. It is difficult to ascertain specific intent unless the actions themselves demonstrate it. This is why I have been preoccupied with proving that movement is necessary to infer this intention. I think you have been preoccupied with proving that detention is necessary to infer intention for this very reason.

        Taking the protected persons from point A to point B (where there are military targets) and restraining them there is the clearest example of the deployment of human shields. This happens to be the fact pattern in Kardzic/Mladic. I admit, restraining the peacekeepers is an important fact. But their movement from somewhere else to these specific locations demonstrates the intent. It would not have been so clear if the personnel were taken hostage and there were military targets in the vicinity. The intent there could be the same as in any hostage taking situation. The UAV incident falls into the category of hostage taking.

        David, if you are intellectually honest, you would accept that in the absence of independent evidence of intent (such as for example, the war diary of General Hermann Hoth), we have to rely on the actions of the parties to infer intent. In such circumstances, both movement to the location and subsequent restraining are necessary. This is perhaps how the Panel analyzed the issue.

        So if you think detention alone is enough to infer intent, then the burden is on you to provide an example which lacks movement.

  • Gehan

    ‘Upto now, your argument has been that the actions visible in the UAV footage doesn’t fall under Rule 97, just under rules 23 and 24. If you believe the latter, you must also believe that the UAV footage shows the detention of civilians at a military location, and/or the co-location of military targets with civilians (which is what 23 and 24 deal with).’

    I think it falls under Rule 23 and 24 because the threshold is lower. I’m not even saying there is a violation in respect of 23 and 24. But the allegations seem to be credible, and this warrants investigation. Since there appears to be no deliberate movement to shield some specific military target, I don’t see even prima facie evidence of a violation of Rule 97.

    ‘Neither of us is even privy to all the evidence.’

    Correct. Which is why this debate started. You insinuated that you were privy to ‘credible evidence’. Turns out the ‘credible evidence’ you referred to was the UAV footage, which doesn’t reveal movement for the deliberate purpose of protecting specific military targets. It only shows civilians being taken hostage. You now see the lacuna and defend your position by saying that there must be evidence you’re not privy to. Superb.

    • Nope, that wasn’t what I said. I said that for the sake of debate we both accepted that the UAV footage was credible evidence of a violation of IHL (you yourself said: “Under Rules 23 and 24, the offending party is bound to remove the civilans from within proximity of military targets. As you can imagine, the burden in respect of Rule 97 is higher, because it refers to the deliberate moving of civilians to protect military objectives from attack,” thereby accepting that the UAV footage showed civilians being held at and/or being prevented from leaving a military target). The debate was whether the violation was of rules 23 and 24 alone (as you maintain) or of rules 23, 24, and 97, and possibly 96, (as I maintained). Now, once it has been distinctly proven that movement is unnecessary under 97 (based on the cited practices, the accepted definition, and the Karadzic/Mladic case), you’re changing your tune and claiming that the footage perhaps doesn’t violate 23 and 24 either, the rules you yourself suggested the panel was in actuality alluding to. I think you’ve managed to shift the goal posts all the way onto the cricket pitch.

      “Since there appears to be no deliberate movement to shield some specific military target, I don’t see even prima facie evidence of a violation of Rule 97.”

      We’ve been through all this, Gehan. The cited practices, the definition, and the Kardzic/Mladic judgement all support the fact that movement is just one of many actions that evidence a violation of 97. I have invited you to show a case where detention was insufficient to show violation, but you seem unwilling or unable to do so. End of story, no? As I said before, put up or shut up.

      “Turns out the ‘credible evidence’ you referred to was the UAV footage, which doesn’t reveal movement for the deliberate purpose of protecting specific military targets. It only shows civilians being taken hostage.”

      But as has already been shown, and to which you have no counter, Rule 97 doesn’t require movement if detention is proven. See above, so hat I don’t have to repeat myself.

      “You now see the lacuna and defend your position by saying that there must be evidence you’re not privy to.”

      The evidence we are not privy to is in regard to violations by the GoSL, not about violations of 97. I pointed out the former because you now decide, as a last resort, to argue the actual evidence; evidence you had already accepted as credible of a violation. The debate is simply on what that violation is. As I see it, the UAV footage falls within the criteria of 97, and you’re unable to show us a case where a detention was overturned in relation to 97. In the only example we have (cited in Rule 97 moreover), detention was sufficient.

      • Gehan

        David, the problem is that we disagree on a number of issues. I think the most fundamental disagreement is the interpretation of the Kardzic/Mladic case. Why place the burden on me to show you a case where detention was NOT enough, when in fact the only case you refer to (i.e. Kardzic/Mladic) has movement in it? You conceded that there could be movement, which is as far as you would wish to go without conceding the point. I get that.

        This is why I said we’ve exhausted the interpretational spectrum. What remains to be done is to review the UAV footage and analyze it in terms of a definition we can both agree on (though once again, interpret differently). I’m referring to the commentary you cited.

        I maintain that under rules 23 and 24, the perpetrators don’t have to co-locate or restrain the civilians next to a specific military target with the deliberate purpose of protecting them. The DELIBERATE PURPOSE of protecting military targets (required under rule 97) doesn’t feature so strongly under these rules. This is why the UAV incident can fit in easily.

        I’ve maintained right throughout our discussions that I’m not comfortable with analyzing facts. But it was you that referred to facts and cited the UAV footage. So what remains to be done is to view the footage and see if it fits the criteria you yourself cited. This criteria doesn’t suggest that detention next to military targets is sufficient. This criteria clears insists on the deliberate purpose of shielding specific military targets.

        Here’s the commentary YOU cited: ‘human shields requires an intentional co-location of military objectives and civilians or persons hors de combat with the SPECIFIC intent of trying to prevent the targeting of THOSE military objectives (emphasis mine).’

  • “1. Yes I do.”

    Excellent. Glad to see you’ve not lost it totally.

    “2. It is not articulated as a criteria. But it is a fact. Even if (as you suggest) we dispense with movement as a criterion, you still have to show a specific intent to shield specific military targets. And as argued under point 4 below, the fact of movement becomes indispensable to prove intent.”

    An irrelevant fact. For instance if someone is found guilty of having committed murder by shooting someone to death, the judgement will say that it was the act of shooting with an intent to kill as being the criteria for the verdict. Now it’s a fact that the murderer had to pick up the weapon in order to fire it; however, the act of picking up said weapon is irrelevant, though it is a fact. It is the firing that shows guilt.

    So given that Rule 97 doesn’t specify that movement is the vital criteria, and given that the Karadzic/Mladic case doesn’t mention movement as cause, we have to accept that movement is irrelevant if detainment can be proven.

    “3. See above.”

    I requested you (I think for the third time) to then provide a case where movement was articulated to be the criteria in spite of the fact that detention was proven, or a case where the allegation was overturned because movement couldn’t be proven. You are unable to do so, predictably, because no such case exists, obviously.

    “4. No, I’m not changing my stance. I’m drawing a distinction between acts that depict specific intent to protect military targets and acts (such as hostage taking) that are merely inexcusable under IHL. It is difficult to ascertain specific intent unless the actions themselves demonstrate it. This is why I have been preoccupied with proving that movement is necessary to infer this intention. I think you have been preoccupied with proving that detention is necessary to infer intention for this very reason.”

    Do stop squirming, Gehan; it’s unseemly. You accepted that the UAV video shows a violation of 23 and 24. We have that on record. Rules 23 and 24 require a military target to be in the scenario. Now you’re saying that the video doesn’t show this. So you’re contradicting yourself as usual. Your above statement doesn’t clear up this contradiction. Are you or are you not saying that the UAV footage doesn’t show a military target alongside civilians? Initially you agreed that it did, and that was your basis for arguing on behalf of the panel; ie that the footage proved 23 and 24 (which are not about using human shields, but about holding civilians at a military target) but didn’t prove 97 (the use of human shields). So which is it, Gehan? 😀

    “Taking the protected persons from point A to point B (where there are military targets) and restraining them there is the clearest example of the deployment of human shields. This happens to be the fact pattern in Kardzic/Mladic.”

    It may or may not be the fact pattern. The judgement doesn’t say so. I have urged you to point out where it does, but of course, you cannot.

    “I admit, restraining the peacekeepers is an important fact. But their movement from somewhere else to these specific locations demonstrates the intent. It would not have been so clear if the personnel were taken hostage and there were military targets in the vicinity. The intent there could be the same as in any hostage taking situation.”

    Restraining the peacekeepers is the only fact in the Kradzic/Mladic judgement. You are still unable to explain why what you consider to be the defining criteria in the verdict isn’t even mentioned. 😀

    “The UAV incident falls into the category of hostage taking.”

    But you initially claimed that it fell into the categories of rules 23 and 24. Hostage taking comes under Rule 96 😀

    “David, if you are intellectually honest, you would accept that in the absence of independent evidence of intent (such as for example, the war diary of General Hermann Hoth), we have to rely on the actions of the parties to infer intent. In such circumstances, both movement to the location and subsequent restraining are necessary. This is perhaps how the Panel analyzed the issue.”

    Given that movement was unnecessary and irrelevant in the Karadzic/Mladic case, and that you’re unable to present a case that proves your argument (ie articulates movement as well as detention, or that detention is insufficient), we have to accept that detention at a military target with the intent of shielding the target is sufficient

    “So if you think detention alone is enough to infer intent, then the burden is on you to provide an example which lacks movement.”

    The Karadzic/Mladic case is that example, and I have provided it. 😀 You need to now present a case where movement is articulated as the vital criteria over detention or where detention alone was insufficient. We can do this all day and you’ll still be unable to dig yourself out of this hole.

    “Why place the burden on me to show you a case where detention was NOT enough, when in fact the only case you refer to (i.e. Kardzic/Mladic) has movement in it?”

    Then why is it that you’re unable to show a word about movement in the judgement. THE most important factor (according to you) doesn’t even warrant a mention! Lol.

    “You conceded that there could be movement, which is as far as you would wish to go without conceding the point. I get that.”

    Just as I concede that Karadzic and Mladic are Serbs. A fact, but hardly a relevant one. The relevant fact is whether movement was the crucial criteria; and clearly, from the judgement in the case, it is not.

    “This is why I said we’ve exhausted the interpretational spectrum. What remains to be done is to review the UAV footage and analyze it in terms of a definition we can both agree on (though once again, interpret differently). I’m referring to the commentary you cited.”

    I think what has been exhausted is your argument. The practices cited in Rule 97 cover movement, detention, and other aspects, none of which are cited as being uniquely critical, nor is it stated that all criteria must be present. The sole specific case cited has no mention of movement as a criteria in the verdict. Given all of that, the interpretation is clear.

    I am averse to examining the UAV footage in this debate, firstly because you’ve demonstrated your intellectual dishonesty by first accepting that the video showed civilians being held at a military target in violation of 23 and 24, but now claiming that perhaps there are no apparent military targets shown. When called on to clarify your position, you remain ambiguous, as I’ve pointed out above; and secondly because you’re prepared to accept the panel’s decision on other alleged violations without examining evidence, evidence which hasn’t been shown. There are huge gaping holes in your interpretation of Rule 97 and the Karadzic/Mladic case, yet without substantiating your interpretation, you wish to move on to the evidence. I see no reason to do so until you fill in the said holes.

    Therefore, you need to first state unambiguously that, if the UAV footage shows civilians being forcibly detained at a military target, and the intent of shielding said target from attack can be inferred, you’re willing to accept that that is credible evidence of a violation of 97. If you can accept that, then let’s examine the evidence to see if it does indeed show that. Upto now, we had both accepted that a military target was shown. If we can agree on that, then let’s look at the footage.

    • Gehan

      David, I didn’t say the footage depicted a specific military target that was deliberately being protected, which is necessary under Rule 97. What I did say was that there were military targets in the vicinity, which is sufficient to find a violation under Rules 23 and 24.

      The murder illustration is a poor analogy. Think of the distinction between a premeditated act and a ‘spur of the moment’ act. In the former, certain preparatory steps are important to demonstrate intent. This is why movement to a particular location where there are military targets is important to demonstrate intent to protect those targets from attack. I really can’t understand what is preventing you from seeing the specific way Karadzic/Mladic selected the UN personnel and took them to the military targets. This case would not have been cited as authority had the UN personnel been restrained in the vicinity of targets. Movement to a particular location is certainly not irrelevant.

      ‘You need to first state unambiguously that, if the UAV footage shows civilians being forcibly detained at a military target, and the intent of shielding said target from attack can be inferred, you’re willing to accept that that is credible evidence of a violation of 97.’

      Let me refine that statement. If the UAV footage shows civilians being detained at a SPECIFIC military target (like in the Karadzic/Mladic case), this can be taken to be prima facie evidence of a violation of rule 97. If there is specific evidence of intent, it could be termed as credible evidence. In the absence of evidence of intent (like a war memo or a declaration of intent. e.g. war diary of General Hermann Hoth; Saddam Hussein’s call for voluntary human shields), I believe there should be clear evidence of some movement to the location in order to infer intent.

      However, I realize you’re dodging the evidence because you know that there were no specific military targets precisely where the civilians were being detained. Assuming without conceding that detention is sufficient to infer intent, the UAV footage still doesn’t show us which military targets were being specifically protected.

      The key to resolving this problem is to understand that detaining civilians in the vicinity of military targets is not sufficient to infer intent under Rule 97. Are you ready to examine the footage now?

  • While you seem eager to suggest that I wish to avoid examining the evidence, let me assure you that’s not the case. The UAV footage is in fact one of the few instances of actual evidence of violations, and it would be absurd to ignore it as the Darusman panel has, in favour of unknown evidence and testimony that no one has seen. My hesitation is because I prefer to have you dig in your goalposts before we play; I don’t want to spend another two weeks debating something only to have you shift the goalposts when you lose instead of admitting defeat.

    Since you claim that in the absence of a statement of intent, there must be evidence of a movement of civilians to infer that intent, it still obliges you to explain how Karadzic and Mladic were indicted and adjudged to have used human shields without such a movement being brought forth as cause. I am in the process of writing an article based on our debate, and have been tying off all the bleeding ends; as a part of that I read through Goldstone’s judgement, and there is absolutely no mention of movement.

    In fact, Part III of the charges involves hostage-taking as well as use of human shields. Rule 96, which prohibits hostage-taking doesn’t require movement of hostages, and it seems that the judgement is of taking hostages with the purpose of using them as shields and then doing so. Therefore, we can take it that intent was inferred in spite of there being no evident movement. The act of holding the peacekeepers at military targets ( itself a deliberate act) would be sufficient to infer intent.

    You’re also wrong that the UAV footage only shows evidence of a violation of rules 23 and 24. Both these rules compel the combatants to do remove civilians from military locations and/or remove the military targets from the civilians. Violations would be acts of ommission. The footage shows the deliberate holding of civilians at a military target and the deliberate co-location of military targets with the civilians; both of which therefore are violations of rules 96 and 97; and we know from the Karadzic/Mladic case, that 96 is closely associated with 97.

    Now, in conclusion, we are also aware through separate evidence and testimony, that the Tigers did in fact move large numbers of civilians across the breadth of the Wanni, to the Mullaitivu/Puttumaatalan area. Though this is not on the footage in question, evidence of this exists. The UAV footage I will post tomorrow (I don’t have them on my phone) shows the Tigers holding civilians at gunpoint and preventing them leaving an area that is clearly a military target, the civilians subsequently escaping while being fired upon, the placement of military installations amongst civilian dwellings, the movement and use of Tiger artillery and armour amongst civilians, and the deliberate movement to, and concealment among, civilians of Tiger gunboats.

    The evidence is there, Gehan, and it’s credible. It’s in fact the only evidence of violations actually available; which is why it is so amusing that the panel says there isn’t any 😀

    • Gehan

      David, just a quick response about the conflation of Rules 96 and 97.

      1. First, let’s remember these are rules that deal with customary international humanitarian law, so at least Rule 96 doesn’t necessarily feature in the Karadzic and Mladic case.

      2. Goldstone didn’t issue a judgment. I think I may have previously been sloppy in my use of terminology. He was the prosecutor. What we’re reading is the indictment. Karadzic is on trial and Mladic is yet to stand trial. But I’ve conceded this as a case relevant to Rule 97 because if the prosecutor’s version is correct, I believe it is relevant.

      2. Karadzic/Mladic is an ICTY case, so the statute which is immediately applicable is the ICTY statute.

      3. Hostage taking is a violation of Article 2(h) of the ICTY statute – ‘taking civilians as hostages.’ The prosecutor refers to this article in para.48. There is no need to infer intent through movement. So the lack thereof is irrelevant.

      4. Human shields involves customary international humanitarian law. As you will find, there is no reference to human shields in the ICTY statute. You can find it here: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf

      5. The prosecutor doesn’t conflate the two violations. Examine what he says in para.48:

      ‘RADOVAN KARADZIC and RATKO MLADIC, individually and in concert with others planned,
      instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the taking
      of civilians, that is UN peacekeepers, as hostages and, ADDITIONALLY using them as “human shields” (emphasis mine).

      My argument is that to commit the additional violation under Rule 97, there should be a movement of the hostages to specific locations where military targets are located. Of course, subsequent detention at the specific location is also necessary to infer intention. But Goldstone clearly draws a distinction between the two violations and insists on some additional element to find a violation concerning human shields. If we examine the fact pattern in para.47, we see that only SOME of the UN personnel were used as human shields. This is obviously because only some were moved to military targets and restrained there.

  • You’ve been sloppy in many areas, Gehan, which is why you’ve lost this debate. It’s all there in black and white. There’s no mention of movement in the Karadzic/Mladic case. Yet it is the only case cited in Rule 97. Give it up. You’re embarrassing yourself 😀

    • Gehan

      Haha. Mature response, David. I was taking responsibility for your reference to Goldstone’s ‘judgment’, which after all was only an indictment. But typically, that’s all you got from my last response. I take it then that you understood the point I was making. Why are you so interested in who won or lost some random cyber debate? It’s disturbing how you treat this discussion like some sort of competition. Is it intellectual insecurity? I hope no one thinks you’re foolish, David. I don’t. But if you feel the urge to prove yourself by incessantly declaring ‘victory’ after each comment, knock yourself out.

      • Lol, Gehan, it’s not about winning and losing; it’s about being honest and getting at the truth. You provide nothing new in your last comment, but simply continue to insist on things that are not there — eg: the claimed movement that isn’t mentioned by Goldstone. I have repeatedly asked you to substantiate your claims by quoting the relevant rulings, but you’re unable to. What else is then left but to laugh at you.

        I’m almost done with the blog post I’ve written based on this debate, and will be posting the UAV footage there. I will post a link here so that you can read it and look at the footage, if you’re interested. I think I’ve been fair in articulating both our positions. I would also like to name you as an opposing viewpoint instead of simply linking to this thread. If you’re comfortable with that, please post some details about your legal background here (I’m aware of your full name) or email me on [email protected]

        Cheers

      • I won’t name you unless you’re OK with it, so feel free to say no.

      • Here’s the post: http://blacklightarrow.wordpress.com/2011/06/16/why-does-the-darusman-panel-ignore-evidence-of-war-crimes/

        I can modify it to include your name if you’re OK with that.

      • Gehan

        Nice post, David. I don’t agree with your analysis at all. But it serves to educate those who wish to analyze the footage and make their own minds up. You may wish to correct a couple factual errors:

        1. Radovan Karadzic and Ratko Mladic were not charged by the International Criminal Court. It was the International Criminal Tribunal for the former Yugoslavia (ICTY). It would also be helpful to link the ICTY statute, so readers could see the distinction drawn in the indictment between mere hostage taking and the deployment of human shields.

        2. Karadzic and Mladic were NOT ‘found guilty of using human shields, in spite of the fact that there was no apparent movement of the peacekeepers’. They’re trials are not over. In fact Mladic is yet to stand trial. So I don’t think it’s fair to use the word ‘guilty’, until the trials are over. What you are referring to is an indictment. This may cast further doubt over your entire hypothesis, but let the readers make that connection.

        I think it is also fair to clearly highlight my point about how the indictment uses the word ‘additionally’ when referring to hostage taking and subsequent deployment of human shields. Your post will be more balanced if it refers to the analysis that only some of the UN personnel were taken to specific military targets, thereby indicating movement. You may of course refute this argument once it is accurately stated.

        You will be showing a great deal of sincerity if you also mention how the UAV footage defers from the Karadzic and Mladic narrative. If nothing else, at least mention the lack of specific military targets being depicted in the UAV footage, while in Karadzic/Mladic’s case, there were photographs of UN personnel handcuffed to or next to military objectives. It would be good to admit that the UAV footage presents a harder case. Let the readers make up their minds. Cheers!

      • Wrong again, Gehan. Rule 97 says: “The prohibition of using human shields in the Geneva Conventions, Additional Protocol I and the Statute of the International Criminal Court are couched in terms of using the presence (or movements) of civilians or other protected persons to render certain points or areas (or military forces) immune from military operations.”

        Military forces are military targets, Gehan. This is what I meant about you being sloppy. I note you haven’t clarified if you want you name mentioned. Can’t say I blame you!

        Apologies for assuming you knew what you were talking about when you called Goldstone’s indictment a judgement. I’ll have to change that.

      • Gehan

        I don’t want to be named in a post which mischaracterizes me as a lawyer defending the tigers. I’ve only attempted to draw attention to distinctions in the law. I would’ve taken the same legal objection against you if you had misguidedly said the Panel ignored credible evidence of the GoSL committing genocide.

        I think the link back to this discussion suffices.

      • I don’t think anyone would think you were defending the Tigers; just the Darusman report. Anyway, it’s cool.

      • Gehan

        Fantastic. I’m to blame for your failure to read the title of the document you’re citing.

        Shifting goalposts, you say?

        Here’s the logical conclusion of your new hypothesis: If you simply conflate the two (i.e. military personnel and military targets), any incident of hostage taking by military personnel would amount to the deployment of human shields–because the personnel detaining the civilians are themselves military targets, and intention to protect themselves could be inferred. IHL would have to be accordingly amended and Rules 96 and 97 would be amalgamated. That would make your entire analysis right and mine wrong. Thanks for the discussion, David.

      • Lol, Gehan, it was you that posted the link, claiming it was a judgement. I assumed that you being a Harvard-trained lawyer and all (as you keep telling us) that you’d know the difference between an indictment and a judgement. I didn’t even actually follow your link until I began to write my blog post. You seem to make a habit of presenting justifications for your arguments, but quickly change their status when they prove to be two-edged swords. That’s what I meant about you and your wheeled goalposts.

        On your conflation mumbo-jumbo, you’re wrong again. Not all enemy personnel are inevitably targets. Hostage taking is often done proactively, as in a hijack, with the perpetrators in no danger until the hostage taking happens. In the UAV footage, the Tigers who hold the civilians hostage are fully aware that they are under attack or shortly to be under attack; and that is why the intent to shield is inferred. That’s of course leaving aside the footage where the Tigers are seen to hide gunboats mere yards from refugee tents. I’m sorry if you think the law is unfair because it states that military troops are military targets, but tough shit. Perhaps you can write to Mr Bumble and tell him you’re from Harvard.

  • Gehan

    And don’t be disingenuous, David. It was not I who referred to Karadzic and Mladic. When you referred to the case, I looked up the indictment to ascertain the facts. I referred you to the relevant paras not to demonstrate a legal precedent but to refer you to the fact pattern. Calling it a judgment was wrong on my part, but inconsequential, as I’m not relying on the indictment as legal precedent. It’s you who made the Karadzic/Mladic case to be the benchmark on human shields. So you ought to have checked if the Karadzic/Mladic had actually been concluded. Don’t whine now just because you have no leg to stand on.

  • Ha ha whining? Dude, it’s you who’s hanging around whining after you’ve had your butt handed to you.

    It wasn’t me who cited the Karadzic/Mladic case; it was the ICRC in their definition of human shields. All I did was quote them after YOU provided the link. It was also YOU who linked to the indictment, called it a judgement, and claimed it showed movement as cause. Now that you can’t actually show any such movement in that document, and it’s ended up biting you in the arse, you’re trying to cast aspersions on its relevance! Just as you claimed the Rule 97 you brought up was imprecisely written, when it inconveniently contradicted your absurd argument.

    You actually thought no one would actually question your legal line of BS, eh? 😀 I told you it was your arrogance that lost you this debate, and yet your ego will not let you walk away, standing here with egg all over your face. Please, Gehan, run along now with whatever reputation as a lawyer you have left. Don’t do this to yourself.

    We can go through this “I said, you said” routine as long as you like, but it won’t change the fact that you’ve failed miserably.

  • aadhavan

    Actually, the human shields were tied to specific military targets. They were not mwerely taken hostage where they were and as they were. Para 20 of the review of the Indictment, penned if I am not mistaken by Judge Riad and which is what the ICRC Customary Study cites to, says this explicity.

    http://www.icty.org/x/cases/mladic/related/en/rev-ii960716-e.pdf

    Confirmation of this is to be found in the submissions of the Prosecutor made on 8 July 2006 at page 904 – line 6 onwards.

    http://www.icty.org/x/cases/mladic/trans/en/960708IT.htm

    I fear your entire debate and Blacker’s post are rather pointless. You two should have read the document you cited, without citing what appears to me to be only an exec summary of the indictment. The review is some 60 pages long. The evidence of intent came from the act of tying, and the tying is what separated the general hostages from the human shields. This is why not all hostages were considered human shields. Blacker, the laws of physics tell me it’s impossible to tie someone without moving him, but I’ll let you find someone else to split hairs with over that point.

    Gehan, as usual, you took the most tortuous route to prove your point, when an accurate citation was a google search away 😛

    • Gehan

      Aadhavan, I wasn’t relying on the case to prove anything. I think the Panel’s interpretation of the customary definition is instructive. Don’t you?

      When David postulated that the case is an example of where movement was NOT present, I was curious about the facts. What is found in the indictment clearly demonstrates a separation of certain hostages from the rest and movement to a specific location. That’s all. It was a reference intended to rebut David’s initial position that this was a case were no movement was found.

      In this context, the mumbo jumbo about whether it is a judgment or indictment or whether it specifically states movement to be a criteria is kind of irrelevant, don’t you think?

      The burden to prove that the tribunal disregarded movement now shifts to the person that insists that movement is irrelevant. If you read the discussion above, I’ve maintained that movement to and restraining at the specific military targets are both important to infer intent. If not, there would be a conflation between hostage taking and human shields.

  • As already pointed out to Gehan on Groundviews, it wasn’t me who cited the executive summary, it was Gehan himself, just as it was Gehan who linked to the ICRC’s Rule 97. So if the evidence is incomplete, it is still Gehan’s evidence, in support of his argument. All I did was accept the evidence and cite it in my counter-argument.

    My debate with Gehan wasn’t that there had to be no specific act to infer intent, but that movement didn’t have to be that act. The tying or otherwise restraining of the peacekeepers, and the holding of the Tamil civilians at gunpoint at military targets are the same act.

    I am aware that movement is necessary to get the peacekeepers to the sites, as well as the civilians all the way across the Wanni to places like PTK and Puttumaatalan, but it isn’t that movement that infers intent.

    • Gehan

      ‘I am aware that movement is necessary to get the peacekeepers to the sites’.

      David, you unambiguously admitted that movement could be one of the criterions to infer intent, but that it was dispensable, right? As a matter of simple logic, shouldn’t you take an example where there was NO movement to prove your argument?

      • The Karadzic/Mladic case is that example. Movement isn’t cited as the causative action. The peacekeepers were taken in the Pale area and held in the same area. Movement isn’t mentioned anywhere in the indictment.

    • Gehan

      *criterion

      • Gehan

        *As in, movement could be a criterion. 😀

  • aadhavan

    In relation to the NFZ, your clips show military targets being ‘concealed’ close to civilian ones and the holding of civilians at gunpoint on a beach. Neither leads to the necessary conclusion that there was intent to shield. On the contrary, the attempt to conceal the boats indicates a very different intention. Human shields has nothing to do with concealing military targets – it has to do with using civilians to protect them from attack. If the civilians were used to protect the boats from attack, why conceal? ouldn’t you want to display the boats very prominently with civilians forced to sit inside/just next to them if you intended to use the civlians as shields? Your own evidence obliterates your own point. Next point? The holding of civilians at gunpoint on the beach. Ok, where’s the military target? You’re not even getting co-location. Forget intent, you don’t even have the actus reus here.

    The Panel did not find evidence of the sort you get in cases like Mladic where you have a positive act that proves intent. In Mladic, that additional positive act involved moving and tying. If you have a clip showing civilians being tied to an artillery gun or similar evidence, that would be the clincher. However, your videos do not present any of the evidence of the sort the the judges referred to in the Mladic review. That’s why the Panel was right and you are wrong.

  • This is what para 20 of Riad’s review says:

    “In response to airstrikes by the North Atlantic Treaty Organisation (NATO) on Serbian military targets,between 26 May and 2 June 1995, Bosnian forces took hostage 284 United Nations peacekeepers assigned inter alia to the regions of Pale, Sarajevo, and Gorazde.

    Around 26 May 1995, Bosnian Serb forces selected United Nations military observers in the Pale region and used them as “human shields”. Those observers were tied to petential targets of NATO airstrikes, specifically the munition depot at Joharinski Potok, the radar facility at Jahorina and a nearby communications centre.”

    The para then goes on to describe the individual actions of the accused. There is no mention again about the movement of the hostages being the causative action. Jahorina and Joharinski Potok are both in the Pale region, where the peacekeepers were captured in the first place. Look at a map, Aadhavan, if you can manage it.

    This is what page 904 lines 2-22 of the prosecutor’s submission says:

    ” 2 The evidence in support of these charges is very

    3 straightforward. Following NATO air strikes against Bosnian Serb

    4 military sites on 25th and 26th May, Bosnian Serb Army personnel

    5 detained 284 peacekeepers and used some of them as human shields in

    6 order to prevent further air strikes.

    7 Captain Patrick Rechner, a Canadian United Nations military

    8 observer who was taken hostage and handcuffed to a lightening rod next

    9 to an ammunition bunker by Bosnian Serb soldiers with the obvious

    10 consent of Dr. Karadzic and members of his government, testified about

    11 his experiences as a hostage and about his conversations with the vice

    12 president of the Republika Srpska, Nikola Koljevic, related to these

    13 blatant violations of international law.

    14 He said that Koljevic readily acknowledged that hostage taking

    15 was an approved policy of the government implemented to deter NATO air

    16 strikes. He said it was akin to electric-convulsive therapy.

    17 Our evidence shows that on two earlier occasions, in April

    18 1994 and in November 1994, the Bosnian Serb Army took United Nations

    19 military observers hostage. At the time Dr. Karadzic and General

    20 Mladic ordered hostages taken and used as human shields, they were

    21 fully aware that such conduct was a gross violation of international

    22 law.”

    Again, no mention of movement being the causative act. Restraint at a military target under, or about to come under, attack was sufficient. You have added nothing new to Gehan’s argument, but in fact have proven that movent was never part of any indictment.

    The only material I have cited in my argument is the ICRC’s Rule 97. Gehan brought up the indictment, executive summary, review, or whatever. I have quoted them only to show the holes in his reasoning 😀 So I see no reason to modify anything.

    All you’re doing, Aadhavan, is making the holes in Gehan’s defence even larger. Do you guys actually think no one’s gonna check the links you post? 😀 The cock-up isn’t mine; it is Gehan’s. You’re compounding it brilliantly.

  • Gehan

    David, you’re just lying now. When you first read the link I sent you (i.e. on Rule 97), you said this:

    ‘The specific mentioning of the Karadzic/Mladic case is also significant for that the UN peacekeepers used as human shields went to the locations VOLUNTARILY in the course of their duties, but were then held there as shields (emphasis mine).’

    I responded by saying that there’s material to suggest that there was in fact movement. The indictment/review (whatever) was cited to respond to your misinterpretation of the facts. Our dispute with regard to Karadzic/Mladic was FACTUAL.

    After reading all the links Aadhavan and I sent you, you now say:

    ‘I am aware that movement is necessary to get the peacekeepers to the sites’. Tsk tsk.

  • aadhavan

    Oh dear. Blacker you’ve done it again. You’ve effectively, completely and utterly eviscerated your own argument like only David Blacker can. It’s painful to watch, but funny a hell 🙂 If the Tigers knew that the army would shell them despite their use of ‘human shields’, then they could not by definition have intended to use human shields! Tu comprends or do I need to drill it in? 🙂

    Despite the copious spilling of words on the matter, you’ve miserably failed to understand what a human shield means. Human shields are used to render military targets immune from attack. In other words, you intend to legally bar the opposing side from attacking your military objects. This is evidently different to an attempt to conceal a military object in civilian dwellings. Nevertheless, you have completely shredded your own argument in inimitable style by suggesting that the Tigers were aware that the government would shell targets, whether protected by human shields or otherwise. This awareness is completely incompatible with the specific intent to render a military object immune. Sorry for rubbing it in. I thought the pedagogic purpose justified the insult.

    IHL, law and logic in general take time to master Blacker. Your significant investment of time in this venture suggests you’re on the right track. Please accept this encouragement in the spirit in which it is offered.
    Cheers.

    • Gehan

      Aadhavan, what David is attempting to do is merge the two UAV clips into one fact-pattern.

      Say Party X hides military equipment in a specific area, then brings civilians to the location and restrains them there specifically to render the area immune to attack, thereby rendering the equipment immune to attack.

      How relevant is Party Y’s knowledge of the location of the equipment in that area? Of course, Party Y will simply not conduct military operations in the area due to civilian presence. But isn’t the actual likelihood of conducting military operations contingent on that Party Y’s knowledge of the location of military targets. Hence concealing military targets will legally preclude the use of human shields in that area, right?

      That pretty much sums up the relevance of the UAV clips (either taken together or in isolation) as credible evidence of the use of human shields.

    • Gehan

      (Sorry, posted it in the wrong place)

      No. I said in the absence of independent proof of intent, movement together with restraining or co-location simpliciter is necessary to infer intent.

      It’s occurred to me that we need not go that far. As analyzed above, I think the UAV footage can’t possibly fit into the framework of Rule 97, simply because concealment of military targets precludes the possibility of them being targeted in the first place.

      You would agree that taking a bunch of civilians and tying them to tanks is irrelevant if no one knows where these tanks are or if no one plans to attack the tanks. Similarly, if the actual location of the target that is intended to be protected is unknown, there is no likelihood of it being attacked. So the LTTE could not have intended (i.e. satisfied the mental element under Rule 97) to protect the gunboats by corralling civilians–because they concealed the boats. The act of concealment breaks the causal link. This is an important fact regardless of whether the GoSL subsequently identified the locations of the boats via UAV.

  • Ha ha, don’t be silly, Aadhavan. I didn’t say that the SL military inevitably would attack in spite of the shields. I said that they have. Therefore the Tigers would be inclined to disguise their craft as part of the civilian dwellings. It is the presence of the civilians that enables the concealment.

    Unfortunately, in spite of your loud claims of victory, your long years of immersion in the law hasn’t given you much ability in actually arguing a case! Keep trying.

    On the other hand, I’m glad to see you’ve abandoned your colleague’s stupid insistence of movement being the sole causative action. I’m happy to be of service. Isn’t English comprehension necessary as a lawyer?

    Gehan, some of the peacekeepers were at the locations in Pale when they were taken hostage.

    I am not insisting that there was no movement; just that there’s no mention of movement in the indictment, which there would be if it was the inferring action. I earlier gave you the example that it is the deliberate firing of a gun with the intention to kill that is important in deeming murder, not the picking up of the gun; though it is impossible to fire a gun without first picking it up. It doesn’t matter if the weapon was picked up or not; all that matters is that it was deliberately fired.

    As I told you, we can argue about who said what, but the point is neither you nor Aadhavan can show movement cited as the causative or inferring action in the Karadzic/Mladic case. And that’s the point.

    You’re right that Aadhavan has needlessly confused the issue by arguing about the definition of that indictment; but that’s Aadhavan — can’t see the woods for the trees.

    As at the start of this debate you need to prove that movement is the only causative action acceptable. Now that Captain Aadhavan has come in to save the day, perhaps you’ll manage this together 😉

    • Where you’re missing the point, Gehan, is that my dismissal as irrelevant of any possible movement is seen by you (and Aadhavan) as a conceding of the point that there was movement. Here it is in as simple a sentence as I can construct: There is no movement mentioned in the indictment; movement is therefore irrelevant, as all relevant actions would have been mentioned. Understand? Alles klaar? Comprende? Therunadher?

      Unless you can prove movement as the causative action, you cannot claim that movement is essential for inference. Can you manage to grasp that complex logic? 😀

      • One more point on the boats: Rule 97 doesn’t require that you be successful in protecting your military target with human shields to be in violation; only that you attempt to do so.

      • Gehan

        You’re contradicting yourself, David. When attempting to refute my original hypothetical, you said this:

        ‘The biggest flaw in your hypothesis is the fact that you don’t state that any civilians were killed, whether Party Y was foiled by the civilian presence, or whether even Party Y targeted the tanks. Without that how can there even be an allegation of a violation?’

        Applying the same logic, you would agree that there should be evidence of the GoSL actually targeting or planning to target the gun boats for there to be a violation, right?

  • It’s still the same question to you, Gehan; sadly there’s no dodging it. If in the absence of independent proof of intent (which there isn’t in the Karadzic/Mladic case), why is that the indictment doesn’t mention movement as inference of intent? Why does it only mention the detaining? You have dodged this point for over two weeks.

    The UAV footage wasn’t subsequent to the act. It was in real time and the Tigers knew the SLAF had them. If shielding wasn’t the intent, why conceal the boats next to refugee tents? If you look at the footage you can see that the boats aren’t completely buried but made to look like tents complete with blue UNHCR tarpaulins. Therefore the civilian presence was being used to conceal the co-located boats. The corralling is pretty self evident. There’s no reason to hold the civilians at gunpoint in plain view if they were not to be used as shields.

    You two are fighting a losing battle; even the GoSL’s most virulent critics — Weiss, etc — have said clearly that the Tigers used human shields. The evidence is the only evidence of war crimes available.

  • aadhavan

    Ya that was my initial point Gehan. When an attempt is made to conceal a military target using civilians, the intention there is mutually incompatible with the intention to render immune. The very need to render immune arises only when the military objects are identified. Blacker went a step further in obliterating his argument. He rightly pointed out that government policy was, unlike NATO, to attack military targets regardless of the whether human shields were used. He suggested that the Tigers concealed the boats as a matter of necessity because of this government policy. I confess to a teeny weeny bit of baiting with the ‘concealment is incompatible with human shields’ line I fed him, but it’s not a sin if he takes it right? 🙂 In any case, the argument he makes is a good one and I am willing to let him take credit for it. It’s just that the argument dismantles the line he’s trying to support, but those are only minor details. I think he doesn’t realise that human shields = rendering a target immune from attack, and conversely that using civilians to physically conceal targets does not constitute the use of human shields. Can you explain the difference to him? It might take you a good twenty to thirty comments but only you have the patience…

  • To the contrary, Gehan. Your hypothesis was an attempt to show that an entirely innocent act (ie attempting to move civilians to safety) could be misconstrued to be a war crime. My comment was to point out to you that unless the other party was at the very least attempting an attack, they were unlikely to even notice the act, never mind mistaking it for a violation. In the case of the gunboats, their movement and concealment has certainly been observed and the accusations made. It is also clear that the SL military was in fact attacking such military targets.

    Haven’t you guys run out of straws to grasp yet? And when are you going to address the pointed lack of a mention of movement in the Karadzic/Mladic indictment?

  • A point I missed, Gehan, is that unlike in your hypothesis, there’s no doubt that a violation has been committed; the question is as to the severity of the violation.

  • Gehan

    Haha. Aadhavan, actually, I fed him a hypothetical where a party intentionally co-locates civilians and tanks on the same bridge so as to render the tanks immune to attack while crossing the bridge. I mischievously avoided detention, so as to ensure that David would attempt to refute the hypothetical. 😉 According to my hypothetical, the civilians were unaware of the risk, so they didn’t resist but remained on the bridge. He was quick to point out (as cited above) that if there is no evidence of the other party targeting the tanks, there is no violation. Of course, in my hypothesis I mentioned that in fact the tanks were targeted but rendered immune due to the co-location.

    But I think his essential point was valid. The party that is purporting to use the civilians as human shields needs to be aware of the fact that the action would render military targets immune to some impending attack.

    Why spend more time on this when David has refuted his own arguments elsewhere?

  • Ha ha if you two took a break from congratulating yourselves on your claimed genius, you might have got somewhere. Two internationally trained lawyers, and you can’t scrape together a decent defence between you. You should be ashamed of yourselves. Gehan’s even had to resort to open lies to stay in the race. LMAO.

    As I already pointed out, your hypothesis laid out an innocent act, you plainly said there was no violation intended, and tried to show that a violation could have been assumed by the other party. You made no mention of an attack by the other party. I pointed out that unless the second party was intending to attack, they wouldn’t misconstrue the first party’s actions.

    Now you’re taking a hypothesis where there is no apparent violation by your own account, and attempting to use it to justify a defence in a case where you have agreed there is a violation (of rules 23 and 24) against a further violation. Jesus, man, is this what they teach you at Harvard; that you can lie and fabricate statements of opposing counsel?

    I’m also waiting for your answer about the lack of movement in the Karadzic/Mladic case; regardless of our debate on the boats, it doesn’t change the fact that that case has decimated you movement argument.

    You guys are pathetically bad at this, no? Ha ha

  • Btw, talking about own goals, this is what Captain Aadhavan had to say on my blog:

    “It is definitionally impossible to intend to render a target immune from attack when you are aware that the policy of the other side is to attack human shields.”

    For there to be a policy of attacking human shields, you have to concede there must first be a use of human shields. 😀

    Lol, you guys are “definitionally” hilarious. Harvard and Cambodia, eh? Crikey.

  • Gehan

    David, don’t you recall I reworked my hypothetical and asked you if your position changed if Party X intended to co-locate the civilians and the tanks? Party Y’s intention to attack the tanks was not in doubt in my hypothetical. But in your haste to insist that detention is key (because that’s all you’ve got in the UAV incident), you presented an over-broad response–most of which (as I had hoped) was correct. You’re initial position was that Party X should know that Party Y intends to target the tanks and that civilian presence would actually foil that plan. This position didn’t change even after I reworked the hypothetical suggesting that Party X intentionally co-located the civilians and the tanks.

    This is what happens when you just debate for the sake of winning. You tend to contradict yourself. Oh dear, what a mess.

  • Sigh, yes, Gehan, you’ve done a lot of reworking over these two weeks; not to mention all the backtracking, denials, and outright lying you’ve had to do to stay in the game. Apologies if I’ve lost track of all these toing and froings. If you and Aadhavan had been able to base your arguments on the evidence and legal precedents, this would have been a far more coherent debate. Instead you’re attempting to catch me out in a statement in the hope you can use it to cover your arse. At least Aadhavan flies in, cape flapping, drops a few red herrings (like that absurd rigmarole about calling the indictment a judgement) and takes off, patting himself on the back 😀 I’m not sure what your plan is; are you hoping I’ll just get tired and confused if you bullshit enough?

    I had hoped you’d drawn a discreet curtain over that absurd hypothesis, but it seems your gluttony for punishment is unsated. Yes, you modified your hypothesis to show intentional co-location with party X doing so in the knowledge they were about to be attacked, and that in that situation the movement of the civilians was the inferring action. I then pointed out that the movement would be inconclusive unless there was an act such as restraint since without independent verification it couldn’t be concluded that the movement was deliberate. Correct, so far?

    In the case of the boats, we know that the Tigers had been under attack and were aware that they would continue to be under attack. With this knowledge in hand, they co-locate their boats with civilians visible to the GoSL and deliberately disguise them as civilian dwellings. So the inferring actions are the movement to co-locate and deliberate concealment.

    In the case of the civilians held at gunpoint, the Tiger troops and installations were co-located with visible civilians and under attack. The Tigers were aware they were under attack and would continue to be under attack. They then prevented the civilians living the targeted areas under threat of death. They also fired at and killed and wounded many who defied the threats.

    All of this, in conjunction with the legal precedent set by the Karadzic/Mladic case in which deliberate restraint is cited as the inferring action, conclusively proves that the Tigers used human shields.

  • Pingback: BBC-Blind: Misreading the Tamil Tiger Strategy of International Blackmail, 2008-13 | Thuppahi's Blog()