Apologists for the Sri Lankan government have marshaled a number of arguments in response to the growing pressure on accountability for war crimes and crimes against humanity. Some are less clever than others. The argument that the Panel Report is part of a Western witch hunt against Sri Lanka as punishment for defeating terrorism needs only be restated for purposes of rebuttal. The claim is so self-evidently puerile a response to mounting evidence of serious international crimes that meaningful rebuttal is difficult. While some conspiracy theories are amusing, others are tiresome. The suggestion that a South African apartheid era human rights lawyer and a former Attorney General of Indonesia together with one of the world’s most respected international humanitarian law scholars conspired themselves to or fell prey to a conspiracy to restore the idea of a separate Tamil state is as stunning as it is idiotic. The better arguments are at least falsifiable and therefore more honest. Examples include those challenging the legality of the constitution of the panel itself, the legal rules and principles applied by the Panel or the criticism that the Panel overlooked crucial evidence. I believe that these arguments are easily rebutted on a purely legal and logical analysis of the claims.

However, perhaps the hardest challenge facing proponents of accountability are arguments made by those who, while not subscribing to the government’s alibis, still question the value and/or the desirability of pursuing international action. There are many shades of opinion representing this spectrum, with some thoughtful critiques from those who have demonstrated a solid commitment to human rights, the rule of law and reconciliation.[1] These arguments essentially boil down to the fear that the backlash against the report will impede rather than catalyze national reconciliation or reform of the state.

This piece addresses a few of the popular legal or quasi legal arguments employed in the attack on the Panel and its Report. A second follow-up piece will attempt to grapple seriously with more meaningful voices that caution against a blind belief in international justice that does not pay due heed to the domestic ripples generated by international pressure on war crimes.

Power of the Secretary General to appoint the Panel?
One of the common refrains heard, not just from government ranks but also from some members of the UNP was that the UN Secretary General exceeded his authority in appointing a Panel of Experts to advise him on accountability in Sri Lanka. There are different versions of this argument. One version suggests that the appointment of the Panel violated Sri Lanka’s sovereignty guaranteed by article 2 (7) of the Charter which reads: “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” The argument is that the civil conflict was “essentially within the domestic jurisdiction” of Sri Lanka and thus UN intervention was unwarranted. This claim is, with all due respect, bad in law. International crimes, the application of international humanitarian law and human rights obligations arising out of multilateral treaties are not matters that are essentially within the domestic jurisdiction of any state. Ever since the International Court of Justice ruled in the Western Sahara advisory opinion that human rights violations in Namibia constituted a “flagrant violation of the principles and purposes of the Charter of the United Nations”,[2] the debate on whether human rights are “essentially within the domestic jurisdiction” of states has been considered closed. There is even less of a doubt about whether international criminal law (ICL) and international humanitarian law (IHL) violations go beyond the exclusively domestic, because violations of these laws are by definition international crimes or violations of international law.

Another popular argument is that the Secretary General (SG) was not authorized by the UN Charter to constitute such a Panel. Interestingly, Sri Lanka is the only country of the close to two-hundred states that alleged a lack of vires. Even Russia merely indicated caution.[3] The UN Charter vests certain powers with the UN Secretary General including “good offices” powers under article 99. The good offices powers of the SG under article 99 are only meaningful if in fact the SG is able to arrive at an informed decision on which matters warrant the attention of the Security Council. While this section provides ample textual support for the SG’s power to appoint the Panel, one need not even go that far. The Reparations advisory opinion by the ICJ laid down the principle that international organizations possessed implied powers necessary for the effective performance of their functions.[4] As the Chief Administrative Officer of an organization tasked by States with “promoting and encouraging respect for human rights and for fundamental freedoms”[5], the appointment of a Panel to advise him on accountability in a member state is undeniably a necessary implied power. All but one of the member states of the UN appear to tacitly or explicitly consent to this exercise of authority by the SG.

Overstepping its Mandate?
The counter-argument then may well be that while the SG had the power to advise himself on accountability, the Panel had no right to go beyond that mandate and inquire into the veracity or credibility of allegations of international crimes. This argument is difficult to comprehend. The Panel could never have been expected to advise the SG within a factual vacuum and this is precisely why the SG’s mandate to the Panel was to advise him on accountability “having regard to the nature and scope of alleged violations.”[6] Determining the nature and scope of the alleged violations is thus a necessary precondition to the fulfillment of the Panel’s mandate and falls squarely within its parameters.

Credible Allegations?
Yet another line of attack is to assail the Panel’s process of verifying allegations. What is a credible allegation that the Panel speaks of? Simply put, ‘credible allegations’ remains the international legal standard that gives rise to the duty to investigate. No less an authority than the European Court of Human Rights has declared it to be so,[7] which is why the suggestion that ‘credible allegations’ is some amorphous standard employed arbitrarily by the Panel is a false claim. Paragraphs 51 and 52 of the Report detail the rigorous processes by which the credibility of allegations was assessed. Of interest to domestic lawyers is the Panel’s use of the reasonableness test to define ‘credible’. Where the Panel found a reasonable basis to conclude that a violation occurred, the allegation was termed ‘credible’.

Human Shields: Whitewashing the LTTE’s crimes?
There has been some concern and criticism of the UN Panel Report because, contrary to popular perception, it failed to find credible allegations of the use of ‘human shields’ by the Tigers.

The ICC Rome Statute’s formulation of the war crime of using human shields is formulated thus: “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations”[8] This prohibition of using civilians to render points, areas or forces that would otherwise be legitimately targeted immune from attack is gleaned from Geneva Conventions III and IV.[9]

A couple of explanatory notes are in place at this point. First, the war crime of using human shields is a specific intent crime – which means that evidence to establish the intention to use civilians to render what would otherwise be military objectives immune from attack needs to be established. Specific intent crimes also require more than a mere knowledge of the consequences of the act. In other words, recklessness is insufficient to satisfy the mental element of the crime. Other specific intent crimes in international law include genocide, where the intention to destroy a group or a substantial part of a group forms the operative mens rea. The rendering of military objectives immune from attack is substantially divergent from an attempt to, say, conceal a military objective within civilian dwellings because concealment does not render an objective immune. If for instance, the anticipated military advantage of attacking the object exceeded the loss to civilians – the concealed objective and dwelling could even be attacked in a manner that is consistent with international humanitarian law (IHL). Moreover, the intention to render a target immune from attack is predicated on an expectation that the use of shields will render the target immune – i.e. – the opposing party will desist from attacking the military objective in the event human shields are used. As respected military observer, ex-soldier and writer David Blacker observes “the SL military has targeted Tiger positions in spite of the use of human shields.”[10] Thus the awareness by a party of the possibility that the opposing party will attack military objectives in spite of the co-location of civilians and military objectives is mutually incompatible with an intention to render a target immune from attack. The commission of an act with the awareness that such act will not render a target immune can never evince an intention to render a target immune. This is a definitional incompatibility.

Second, the acts constitutive of the crime of using human shields may very likely violate other prohibitions in IHL and constitute other crimes besides the crime of using human shields such as the prohibition on taking hostages, the violation of the principle of distinction and the violation of the duty to take precautions to separate military and civilian objectives. These violations have been criminalized by the Rome Statute, the ICTY and ICTR statutes and hybrid statutes. Thus, an individual(s) who in fact used human shields may well be prosecuted for and convicted of other war crimes besides the war crime of using human shields.

Third, every intentional violation of IHL does not constitute a war crime. This is based on the distinction between international humanitarian law (IHL) and international criminal law (ICL). To constitute a war crime, a violation of IHL must first be ‘criminalized’ (made an offence) under ICL. Only violations that are criminalized may give rise to individual criminal responsibility. For example, IHL requires that “every prisoner of war shall be enabled to write direct to his family, on the one hand, and to the Central Prisoners of War Agency provided for in Article 123, on the other hand, a card… informing his relatives of his capture, address and state of health.”[11] However, an intentional violation of this requirement has not and may never reach the status of war crime. Individuals who violate this requirement cannot be hauled before an international court. The grave breaches provisions of the GCs provide a non-exhaustive list of criminalized violations of IHL provisions. The explosion of new tribunals codifying international crimes has taken international criminal law from a reliance on custom to a largely uniformly accepted code of crimes. This process culminated with the creation of the ICC through the Rome Statute which codifies crimes under ICL, and to which more than 120 States are now parties.

Fourth, not all crimes applicable in international armed conflicts (IACs) are applicable in non-international armed conflicts (NIACs). This flows from the idea that not all IHL obligations on belligerents in IACs are applicable in NIACs. According to the Rome Statute, the use of human shields is a sui generis crime in IACs, but it is not a crime in NIACs. The reason for the exclusion of human shields from the list of crimes applicable in NIACs is precisely because the prohibition on using human shields as a stand-alone prohibition features only in Geneva Conventions III and IV and Additional Protocol I (which apply exclusively to IACs) – and not in Additional Protocol II (which applies to NIACs).[12] However, customary IHL prohibitions do apply across the board, even in NIACs. Rule 97 establishes the customary nature of the prohibition of the use of human shields in IHL, but it does not suggest a criminalization of this prohibition in NIACs. Thus, no individual in the Sri Lankan civil war can ever be convicted by the ICC of the war crime of using human shields, given that the conflict in Sri Lanka was undoubtedly an NIAC.

The Panel Report made the following observations on the use of human shields : “…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)

The supposed insistence on deliberate movement of civilians as the sole criterion for a finding of credible allegations of the use of human shields has been the subject of some debate.[13] As the commentary to the ICC Statute makes clear, movement or “otherwise taking advantage of the location of one or more civilians” constitutes the first element of the crime of using human shields.[14] Thus two scenarios present themselves. [A] – in the event the civilians intended to be used as human shields were not present within or on the military objective before they were used as human shields, movement to the military objective is necessary. On the contrary in scenario [B] – where such civilians were in fact present within or on the military objective, there must be proof that the prior presence of the civilians in or on a military objective was taken advantage of. It is clear that the Panel’s report that movement was a sine qua non of the violation is solely in the context of the allegation that the failure to allow civilians to leave the combat zone constituted the use of human shields. This was the charge that was popularly articulated in the public sphere. Thus, the only question dealt with by the Panel was whether the broad policy of the LTTE to refuse to allow civilians to leave the areas within their control – indubitably an IHL violation and potentially a war crime – constituted additionally a violation of the human shields prohibition. The Panel did not inquire into the question of specific cases within the no fire zones that could potentially be individual cases of the use of human shields. It did not consider the evidence that the concealment of boats near or in civilian dwellings constituted the use human shields either. This is presumably because concealment and rendering immune are occasioned by intentions that by their very nature are different. Given that the combat zone in its totality did not constitute a military objective – evidenced by the Panel’s finding that the government violated IHL by indiscriminately attacking the no fire zone – the Panel was necessarily dealing with scenario [A] – where civilians were not present within or on military objects. Movement was thus rightly used as the sole condition for proof of intent. However, if civilians were actually present within or on a military objective, movement would evidently not be necessary. There does not appear to be any evidence of civilians actually finding themselves within or on military objectives before they were allegedly used as human shields by the LTTE. If such evidence were to emerge in the future – such as for example the incidental presence of a civilian in an LTTE bunker and subsequent detention there with the intention of rendering the bunker immune – the finding of the Panel may then need to be reconsidered.

A brief reference to the Review of the Indictment in the Karadzic/Mladic case is appropriate in order to consider its relevance to the Panel Report. This Review is cited by the ICRC in their study on customary IHL. It has been suggested that the non-reference to movement in Mladic demonstrates that movement is not a necessary to prove the use of war crimes, which in turn demonstrates the error in the Panel’s reasoning. The point that movement is not a necessary condition – in scenario [B] cases – is well established. However, the paragraph above demonstrates that the Panel finding on human shields was based on the evidence available to date that falls squarely within scenario [A]. Moreover, Mladic does not serve to demonstrate the irrelevance of movement in any case since in Mladic, the protected persons were in fact moved. The Review notes that protected persons were “tied to potential targets of NATO airstrikes, specifically the munition depot at Joharinski Potok, the radar facility at Jahorina and a nearby communications centre.”[15] While the Review does not explicitly use the word “movement”, it appears that the peacekeepers were in fact moved to the munitions depots, radar facilities and communication centres. The ‘human shield’ himself recently testified that he and others were captured in their office before they “were driven away” to potential NATO targets.[16] Thus, Mladic, like the evidence considered by the Panel, is limited to scenario [A] where movement is a necessary condition to prove the use of human shields.

Thus to conclude this section on human shields, it appears that the finding of the Panel Report that the LTTE did not use human shields is the only reasonable conclusion that can be inferred from the facts available at this stage.

Panel showed leniency to the LTTE?
The charge that the Panel ‘went soft’ on the LTTE is bewildering. The Panel’s legal findings indicate a willingness to impose the maximum possible obligations on the conduct of the LTTE.  For example, the Panel proceeded on the basis that certain human rights obligations bound non-state actors and by extension the LTTE[17] – a groundbreaking finding on an issue that is by no means settled in international law.

Conclusion
This piece has attempted to deal with some of the popular legal or legalistic challenges that have been leveled against the constitution, process and outcome of the Panel Report. It is notable that these challenges emanate exclusively from Sri Lanka – its government and its supporters. While the international community may be divided on the politics of international accountability, the legality of all aspects of the Panel’s formation and work have hardly ever been questioned outside the country. On the contrary, as evidenced by comments made by the brilliant up and coming ‘star’ of the international law firmament and co-editor of the website of the European Journal of International Law Marko Milanovic “[t]he report’s discussion of the applicable law and legal findings, at p. 52 et seq, seem [to me] to be more or less watertight. There are no flights of fancy here; even when broad or progressive, the legal findings are appropriately cautious when caution is warranted.”[18]

Authors note: Niran Anketell is an attorney-at-law based in Colombo. He read for his Masters degree in International Legal Studies at New York University as a Hauser Global Scholar and Fulbright Scholar. He has also worked at the Office of the International Co-Prosecutor in the Extraordinary Chambers in the Courts of Cambodia as a Fellow of International Law and Human Rights attached to the NYU Center for Human Rights and Global Justice.


[1] http://groundviews.org/2011/04/29/war-crimes-accountability-in-sri-lanka-is-there-a-liberal-democratic-alternative-to-international-action/

[2] http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=a7&case=53&code=nam&p3=5

[3] http://www.thesundayleader.lk/2010/06/25/russia-questions-un-panel-on-sri-lanka/

[4] UN Panel Report, pg i

[5] http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=41&case=4&code=isun&p3=5

[6] UN Panel Report, pg i

[7] Brecknell v United Kingdom and other cases (App Nos 32457/04, 34575/04, 34622/04, 34640/04, 34651/04, – [2007] All ER (D) 416 (Nov); http://business.timesonline.co.uk/tol/business/law/reports/article3014568.ece.

[8] Rome Statute, article 8 (2) (b) (xxiii)

[9] Geneva Convention III, art 23; Geneva Convention IV, art 24.

[10] Comment 6 – http://blacklightarrow.wordpress.com/2011/06/16/why-does-the-darusman-panel-ignore-evidence-of-war-crimes/

[11] Geneva Convention III, article 70.

[12] http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule97

[13] http://groundviews.org/2011/06/06/when-allegations-become-evidence/

[14] Elements of Crimes – article 8 (2) (b) (xxiii)

[15] Paragraph 20, Review of the Indictment, Karadzic/Mladic. http://www.icty.org/x/cases/mladic/related/en/rev-ii960716-e.pdf

[16] http://www.nowpublic.com/world/un-hostage-speaks-execution-fears

[17] UN Panel Report, para 88.

[18] http://www.ejiltalk.org/un-panel-of-experts-report-on-the-sri-lanka-conflict/

  • As already pointed out to Gehan and Aadhavan, the SL military’s willingness to attack targets in spite of proximity to civilians, doesn’t mean such attacks were inevitable. On occasion, the SL military has also desisted from attacks where the civilian casualties were likely to have been heavy. Therefore, there was a possibility of attack in spite of the human shields, but not necessarily. The Tigers were therefore covering both possibilities — if the boats weren’t detected because they had been disguised, well and good; if they were detected, they were shielded by the refugees; and if they were attacked, the civilian casualties would be used as PR tools.

    On the movement issue, I think I’ve made myself clear in the previous discussion, and see no reason to argue it once more.

    As I wrote in my blog post (http://blacklightarrow.wordpress.com/2011/06/16/why-does-the-darusman-panel-ignore-evidence-of-war-crimes/), it isn’t that the Darusman panel is sympathetic to the Tiger or Tamil nationalist cause when it overlooks Tiger war crimes; it is just that it’s purpose is to overcome GoSL resistance to investigations. To therefore declare that the only actual hard evidence available in fact points to the guilt of the very party calling for investigations would be counter productive.

    • kadphises

      Let me take a guess. If the army suspected the presence of a high value LTTE target in a certain area or a clear military objective such as precipitating a civilian exodus from the NFZ they would have shelled strategically regardless of the presence of civilians. I doubt if they shelled randomly just to cause casualties among the civilians as the Ch4 tends documentry tends to imply. If their intention was to blitz the entire area and kill everybody that would have been easlily achievable. There is incontrovertible UAV footage of the civilians running towards the army lines as soon as the LTTE line was breached. This alone is enough to prove that the Civilians wanted to get out and it was the LTTE who were preventing them from doing so. The reason should be clear to any idiot. If the Civilians got out there was nothing to stop the army overunning the LTTE fighters within a matter of hours. And that is why they had to be held – against their will. To my understanding that is a human shield.

  • Gehan

    The Panel describes each of the actions of the LTTE as violations of IHL. The only question was whether these actions constitute an additional violation pertaining to the use of human shields.

    I appreciate the distinction between an international crime and a violation of IHL. The fact that this is an specific-intent ‘crime’ is important. But Niran, you may need to clarify whether the prohibition on using human shields under CIHL, a) applies to NIACs, and 2) whether a violation of this principle requires specific intent.

    Interestingly, you seem to suggest that even if the Panel found the LTTE to be guilty of violating the CIHL prohibition on the use of human shields, no party would have been accused of committing a war crime in that regard.

  • niran anketell

    Since the crime of using human shields is a specific intent crime, the act of placing the boats (assuming they were military objects) near civilian dwellings (assuming that they were in fact civilian dwellings) must evince an intention that is inconsistent with the intention to merely conceal. This evidence seems to be absent, which is probably why the Panel didn’t even consider this sole incident worthy of discussion in the paragraph on human shields.

    Also, the Panel finds the LTTE guilty of war crimes and crimes against humanity – the same groups of violations they held the government responsible for. I’m unfamiliar with the distinction between hard and soft evidence – the fact is that the Panel found these allegations against the LTTE to be credible.

  • niran anketell

    Gehan, thanks for your comment. Of course the prohibition on using human shields in CIHL is applicable to NIACs. And yes, a violation of the CIHL principle requires specific intent. The final paragraph of the Rule 97 Commentary says so specifically. The crime of genocide is a good analogy. Genocide is prohibited by international law, but it also gives rise to individual criminal liability under ICL. However, even where inquiring bodies have gone into the question of whether a state is responsible under the articles of state responsibility for genocide (as opposed to determining the guilt of individuals), they have continued to require proof of the specific intent to destroy in whole or in part, a national, ethnic, racial group etc. Off the top of my head, I believe the ICJ used the specific intent requirement to inquire into allegations of genocide by Serbia in the Bosnia case. I’m more certain of the fact that the Cassese report into Darfur used a specific intent requirement as well, even when not inquiring into individual criminal responsibility under ICL.

    Hope this helps.

  • stan

    I am not sure I agree with Anketell’s analysis of the power’s of the SG. However that does not mean that the SG did not have the power. This is because the power of the SG is derived from a joint statement issued on May 23, 2009. The Panel Report bases its jurisdiction also on that. This is something that Anketell needs to address.

    • policyminded

      the joint statement does not give rise to a legal right to the SG to appoint the panel above and beyond the UN charter. it was a joint statement which merely stressed the importance of accountability, in one sentence, that is it. To use that as the mechanism to violate the sovereignty of a state is in bad faith, to say the least on the part of the SG

  • Niran, do you feel that the deliberate co-location of the Tiger craft mere feet from the refugee dwellings to be consistent with merely an intention to conceal? Also, what do you feel the deliberate holding off civilians by the Tigers in proximity to targets under attack to be consistent with?

    For hard versus soft evidence you may interject credible versus incredible. My point isn’t whether the panel report finds the Tigers in violation or not, but which violations they are declared to have committed. This is as much a PR battle as a legal one; and for now, more the former than the latter. To say that there is no evidence of the Tigers using human shields, is therefore a definite taking of sides in this battle; particularly in the face of the UAV footage, which is far more credible than anything available against the GoSL, including the footage shown by CH4.

  • policyminded

    This article errs in Law a couple of times;

    A. despite the arguments made by the the author,

    #1: the appointment of the Panel does violate Sri Lanka’s sovereignty guaranteed by article 2 (7)

    #2:if the appointment of the panel does not constitute a breach of the UN charter; the panel exceeds it’s mandate during its work

    The reason; pg ii. “The panel has used this framework as the basis for assessing the domestic policy, measures and institutions…”

    pg iv “the governments notion of restorative justice is flawed because it substitutes a vague notion…”

    If these two instances along with few others do not violate Article 2(7), they clearly overstep the mandate of the panel which makes no reference to examining domestic accountability mechanisms let alone domestic policy, legal institutions etc

    B.”recklessness is insufficient to satisfy the mental element of the crime [i.e. intent]”

    this is incorrect

    Please note that the US legal scholar on the panel is not an authority on IHL or IHRL, nor is he even a famous IHL prof, he only has a hand full of publications.

  • aadhavan

    Stan, thanks for your comment. The Joint Statement as I see it does not bestow on the SG a right that he otherwise does not have. I think the JS forms the factual background that led to the commissioning of the report, but it does not empower the SG beyond that which international law authorises him to do. It happens that the SG does have the right under article 99 and the implied powers principle to appoint the Panel.

    David, I think the concealment of boats is not inconsistent with the mere intention to conceal the boats. To prove human shields, you need specific proof that the intention went beyond merely hiding the boats, and you don’t get that evidence of intention from any of the videos going around. The deliberate holding of civilians is not inconsistent with the mere intention to use the human shields as a human buffer. As the panel notes correctly, in legal terms, the use of human buffers is different to the use of human shields. I tend to think both are equally morally culpable and odious.

    Policy minded, the principle of complementarity of a fundamental principle of international criminal law. According to this principle, where a state is unwilling and unable to investigate and prosecute international crimes, relevant international bodies are authorised to step in. Determining the adequacy of domestic accountability mechanisms is an essential to determining whether the state is willing and able to investigate and prosecute. Article 2[7] does not interfere with this finding. Also, recklessness is insufficient to establish a crime of specific intent in international law. Prove me wrong. Finally, Steven Ratner – Chair of the UN Group of Experts for Cambodia, brains behind the hybrid ECCC and author of the seminal OUP publication “Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy” is not an authority of IHL? That’s a really weird claim.

  • georgethebushpig

    I think I lost the plot somewhere on the issue of human shields… Let’s say that the Panel got it wrong and that in fact there is a legal basis to say that the LTTE used human shields. Where does this put GOSL then? Isn’t it in a worse position? Knowing that the LTTE were holding civilians against their will as seen in the UAV footage, does the deliberate bombing of those areas by the GOSL become legitimate because the “legal” status of the civilians can be termed human shields? So the great rescue operation was about liberating civilians from their earthly pleasures and transporting them to heaven isn’t it? Ugh?

  • Why are you dodging the question, Niran? I didn’t ask you if concealment of the boats is consistent with an attempt to conceal; I asked you if deliberate movement to a co-location with civilians and concealment of a military object known to be a target was consistent with an intention merely to conceal. Why this reluctance to give a straight answer.

    Also, could you tell us the difference between “human shields” and these “human buffers” you now concede the civilians were. Could you also tell us which law or rule forbids the use of buffers as opposed to shields?

  • niran anketell

    I think it is consistent. If the actions are not inconsistent with the intention to merely conceal, you can’t find a human shields. I’ve said so repeatedly. (I think posing the question in the double negative is legally more accurate, but people are complaining about this being too technical to start with that I don’t want to get into it]

    Regarding other questions you have re difference between buffers and shields, the legal rules (do you mean IHL or ICL or both] that prohibit human buffers etc – you will find the Report self-explanatory. If you have any questions regarding the validity of what the Panel says I’d be happy to oblige, but I’m not too keen to paraphrase the Report.

    • Well, Niran, what you think is subjective. I think it is inconsistent. I was hoping you would justify it with precedents and law. you and Gehan have, in previous debates on this site and on my blog, claimed that movement to co-locate is an inferring action. We have such movement in the case of the boats. How therefore is it inconsistent with a use of human shields?

      On the subject of the shield versus buffer farce, I am asking you a simple question: show us the law (ICL, IHL, or whatever L you like) that says that use of human buffers as opposed to human shields is forbidden. It’s not that complicated; for a violation, there must be a law that is violated. Also show us how the law (any law you deem relevant) defines human buffers as opposed to human shields.

      On the movement issue, you continue to insist that it was part of the inferring actions in the Karadzic/Mladic case, yet you and Gehan are unable to quote any part of the indictment that says so. You also ignore the fact that the UN peacekeepers were taken hostage in Pale and used as human shields in Pale.

      Neither of you have also been able to provide any reason for the Tamil civilians being held at gunpoint, except to shield the Tigers.

      On my blog, you also stated that the GoSL had a policy of attacking in spite of the Tiger use of human shields, thereby conceding that for uch a policy to exist, human shields had to also exist. How is this statement consistent with your other claim that the Tigers didn’t use human shields?

      • niran anketell

        Asking whether the movement of boats was consistent with the use of human shields is emphatically to ask the wrong question. That’s a bad legal test. Here’s why. Movement could be consistent with the intent to render an objective immune whilst also being consistent with a mere intention to conceal. However, specific intent crimes require proof of intent, and the fact that there’s an plausible alternative explanation of the intent of the suspects means that you don’t have proof of a violation. Putting forward an alternative explanation of intent is a standard defence ploy in any courtroom – ask any lawyer. A simple analogy from the law of genocide. As you may know, a person can be convicted of genocide for killing just one person provided he possessed the specific intent to destroy a protected group. Suppose someone hurls racist abuse at a person before killing him and is indicted for genocide, his lawyer’s defence would be that he had no such intention and that the killing was also consistent with the mere intention to terminate the life of a single person he hated on account of his race. The act of killing is consistent with genocidal intention, but it is also consistent with the intent to kill the solitary person. The law would then require the person’s acquittal.

        I rather you do your own reading but the Panel says that the LTTE’s use of human buffers violated common article 3, and constituted war crimes and crimes against humanity. Human buffers are different from human shields because co-location is an element of using human shields. Human buffers are not co-located with military objectives.

        Mladic was an obvious case of movement. I’ve cited an article quoting the human shield himself testifying before the ICTY that they were “driven away” from their office to the locations. If you look at the ICC Commentary – you get proof of human shields by either showing movement or by showing that the location of the protected persons was otherwise taken advantage of. Since the latter is irrelevant to Mladic [since the UN office was obviously not a NATO target], movement is necessary.

        On your blog, I said that your comment that the army has targeted human shields was mutually incompatible with the LTTE having an intention to render an objective immune. I myself did not say the army targeted human shields. I avoided that amateurish trap by referring to the army attacking ‘civilians purporting to shield military objects’ or some such formulation.

        A small concluding request. I don’t want to despoil this thread with regurgitation of previous discussions and reinventions of the wheel which I doubt the larger readership will find fascinating. You may post your own comments here, but if you desire a response to your comments on human shields, feel free to email Gehan and myself. We can have this conversation in private if you so wish.

      • Oh dear, Niran. I didn’t think even you were capable of cramming such a lot of bullshit into one comment, but you’ve proven me wrong 😀

        “Asking whether the movement of boats was consistent with the use of human shields is emphatically to ask the wrong question. That’s a bad legal test. Here’s why. Movement could be consistent with the intent to render an objective immune whilst also being consistent with a mere intention to conceal. However, specific intent crimes require proof of intent, and the fact that there’s an plausible alternative explanation of the intent of the suspects means that you don’t have proof of a violation.”

        That would be true if the concealment wasn’t conducted mere feet away from civilian dwellings. Once more, you answer only part of the question. Surprise, surprise. Therefore, movement to co-locate with the civilians was unnecessary for concealment.

        “Putting forward an alternative explanation of intent is a standard defence ploy in any courtroom – ask any lawyer.”

        But you have not put forward an alternative explanation for co-location, since co-location was unnecessary if only concealment was the intent.

        You have also failed to put forward an alternative explanation for why the Tigers were holding the civilians at gunpoint, and shooting those who attempted to escape.

        “I rather you do your own reading but the Panel says that the LTTE’s use of human buffers violated common article 3, and constituted war crimes and crimes against humanity. Human buffers are different from human shields because co-location is an element of using human shields. Human buffers are not co-located with military objectives.”

        How are humans to be buffers if they are not co-located with military targets? What are they then buffering? 😀 Since there is visual evidence in the UAV footage of co-location between civilians and Tiger military targets, and since you and Gehan have conceded this and attempted to point out that the co-location wasn’t with the intent of using the civilians as shields, and since the report accepts that the Tigers violated rules 23 and 24 (which require co-location), how is this consistent with your current claim that the panel designates them as human buffers (which require no co-location). Ha ha, Capt Aadhavan, stepped on your cape again?

        Suggesting I do my own reading is pretty lame when you make a claim. It’s upto you to substantiate the claim by quoting the relevant law. If you cannot therefore quote to us how and where the law differentiates human buffers from human shields, nor show us which law forbids the use of the former opposed to the latter, I don’t think you really have much of an argument.

        “Mladic was an obvious case of movement. I’ve cited an article quoting the human shield himself testifying before the ICTY that they were “driven away” from their office to the locations. If you look at the ICC Commentary – you get proof of human shields by either showing movement or by showing that the location of the protected persons was otherwise taken advantage of. Since the latter is irrelevant to Mladic [since the UN office was obviously not a NATO target], movement is necessary.”

        We’ve been through all this many times over, Niran. The question isn’t whether movement was there or not, but whether movement was the inferring action. I think it’s obvious that inferring actions would be mentioned in the indictment; and yet movement isn’t mentioned; just restraint. C’mon, Niran, wake up.

        “On your blog, I said that your comment that the army has targeted human shields was mutually incompatible with the LTTE having an intention to render an objective immune. I myself did not say the army targeted human shields. I avoided that amateurish trap by referring to the army attacking ‘civilians purporting to shield military objects’ or some such formulation.”

        No, Niran, that is only part of what you said. I myself made no mention of policies. THIS is what YOU said: “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 (http://blacklightarrow.wordpress.com/2011/06/16/why-does-the-darusman-panel-ignore-evidence-of-war-crimes/ — comment 10).” Whenever people begin to lie, Niran, it’s clear they don’t have a factual argument or defence.

        “A small concluding request. I don’t want to despoil this thread with regurgitation of previous discussions and reinventions of the wheel which I doubt the larger readership will find fascinating. You may post your own comments here, but if you desire a response to your comments on human shields, feel free to email Gehan and myself. We can have this conversation in private if you so wish.”

        I think it’s upto the GV editors to decide if a comment is relevant or not, not you. I also see no reason to communicate privately with you or Gehan. If you have made a claim in the public forum, it’s upto you to substantiate it in public too. Though I quite understand if you feel unable to respond further 😉

      • georgethebushpig

        Dear David,

        I have tried to follow the argument on human shields both on GV and your blog and am confused as hell now! As I understand, your position is that the LTTE used human shields and there’s a legal basis to hold them culpable. I presume you are not arguing some legal minutiae here but consider this to be a significant omission on the part of the Panel.

        The conclusion in your blog article, if I may paraphrase, is that the Panel is out to get GOSL, and in the process it is not necessarily interested in the truth and that regardless of evidence, it wants to make the GOSL look guilty.

        I would very much appreciate if you could clarify the following and my apologies if you have covered this somewhere else (please direct me to it in the event you have):

        1. Are you arguing that since the Panel got the issue of the LTTE using human shields wrong, then the accuracy of the entire report is brought into question? Or is it that you agree that the report provides a good overall analysis but is tainted with an agenda to “target” the GOSL by downplaying the LTTE’s culpability in causing civilian deaths? Or that the overall analysis sucks in addition to the agenda against the GOSL?

        2. Are you arguing that if there is a legal basis to state that the LTTE used human shields then the GOSLs actions of firing heavy artillery into the NFZ cannot be termed a war crime as it wasn’t targeting civilians but actual LTTE positions (or “military objectives” as you guys seem to be fond of using) and civilian casualties were but unfortunate collateral?

        3. If it was known by GOSL that the LTTE were using human shields when they hit LTTE military targets does the culpability of the GOSL change with regard to civilian casualties?

        Thanks

      • “As I understand, your position is that the LTTE used human shields and there’s a legal basis to hold them culpable. I presume you are not arguing some legal minutiae here but consider this to be a significant omission on the part of the Panel.”

        That’s correct, George.

        “The conclusion in your blog article, if I may paraphrase, is that the Panel is out to get GOSL, and in the process it is not necessarily interested in the truth and that regardless of evidence, it wants to make the GOSL look guilty.”

        I don’t necessarily mean that the panel being “out to get the GoSL” is necessarily something that they should be criticised for. It is what they were briefed to do; to create enough reason to overcome the GoSL (and its allies’) resistance to a UN investigation. But this brief must be accepted, so that we don’t mistake their advice to be the conclusions of some neutral investigation.

        “1. Are you arguing that since the Panel got the issue of the LTTE using human shields wrong, then the accuracy of the entire report is brought into question? Or is it that you agree that the report provides a good overall analysis but is tainted with an agenda to “target” the GOSL by downplaying the LTTE’s culpability in causing civilian deaths? Or that the overall analysis sucks in addition to the agenda against the GOSL?”

        Again, I would hesitate to use words like “tainted”, simply because the Darusman panel has never tried to present itself as a neutral or pure body that can be tainted. It’s brief or agenda has always been clear. Certainly, the fact that they are willfully wrong on the human shields issue suggest that there could be inaccuracies in their other claims as well. The overall analysis is meant to be a piece of advice to the UNSG on what he should do next, and how he can do it. The analysis “sucks” only if you’re expecting it to be neutral and unbiased.

        “2. Are you arguing that if there is a legal basis to state that the LTTE used human shields then the GOSLs actions of firing heavy artillery into the NFZ cannot be termed a war crime as it wasn’t targeting civilians but actual LTTE positions (or “military objectives” as you guys seem to be fond of using) and civilian casualties were but unfortunate collateral?”

        Well, as I understand it, the commitment of a war crime by one side (in this case the Tiger use of human shields) doesn’t absolve the other side (the GoSL) of war crimes it might commit in the course of overcoming the effects caused by the first crimes. The GoSL is still obliged to observe the rules and act within them to avoid deliberately causing civilian casualties.

        “3. If it was known by GOSL that the LTTE were using human shields when they hit LTTE military targets does the culpability of the GOSL change with regard to civilian casualties?”

        I don’t think so. The GoSL is still obliged to protect the civilians. However, I think the Tiger use of human shields should and will be taken into account when judging the GoSL actions.

        Hope this answered your questions.

      • georgethebushpig

        Dear David,

        Many thanks for the clarifications and it is much appreciated. The question that remains is whether the use of human shields by the LTTE obviates the need for investigating the GOSLs alleged war crimes.

        Cheers

  • Nimal Sandaruwan

    The 30 year war against the Tamils is an illegal war in the first place.

    It’s responsibility lies squarely on the Sri Lankan establishment who ruled the island for the past 60 years. There is enough ‘evidence’ to allege war crimes against the Sri Lankan security forces not only during the last stages of the war but also during the past 30 years to which any investigation must be extended including finding out who backed the perpetrators all along. Anyone doubting such crimes is an apologist for the Rajapaksha regime.

    But that does not mean the ‘hypocrisy’ charge against UN, ‘international community’ etc they demanding war crimes prosecution, must not be raised. If one looks at what has been under the dictates of UN in the past, it is obvious UN has no legitimacy to prosecute war crimes in that UN itself could be implicated for abetting war crimes. UN’s reputation for justice is good as reputation for Kapuruhami’s breadth.

    There is great urgency and all kinds of diversionary tactics are being schemed (by so called proponents of UN’s involvement as well) to leave out the ordinary people from the equation.

    • Nimal, under which law is the war against the Tamil secessionist militants deemed by you to be illegal?

      • jansee

        David Blacker:

        “Nimal, under which law is the war against the Tamil secessionist militants deemed by you to be illegal?”

        To the extent the SL regime bombed civilians.
        To the extent it lied that only 70,000 civilians were in the LTTE areas.
        To the extent it bombed hospitals.
        To the extent it summarily executed those surrendering.
        To the extent …….. is there really and end to the atrocities of the SL regime [Edited out.]

      • Individual violations do not make a war illegal, Jansee. If so, every war fought in the 20th century would be illegal. Lying to the UN in order to invade another country would fall into that category.

      • Nimal Sandaruwan

        Reply to David B:

        Yes, majority of wars waged in the 20 th century are illegal wars.

        Most of them have been sanctioned by the UN,’international community’.I do not accept their legal frame work within which they define the ‘war’ or ‘an armed conflict’ or ‘civil war’ simply because I reject the political programme beneath that legal frame work. I am infavour of going beyond the post 1945 international legal principles whixh would cover all the crimes carried out in our name and for the sake of peace,just cause, protection of civilians etc.

        However, if DB prfers the current regime of International law that applies to waging wars, I can list out few atrocities carried out by the Sri lankan security forces during the last 30 years. The learned counsel in the Sri lanka’s Attorney Generak’s dept would have dealt with these massacares in defense of the State and some of them have been subjects of ‘Commissions of Tnquiry’ appoibted by the State. Therefore authenticity of the identity of the perpetrators would not be an issue.

        The list is as follows.

        Thirunelveli massacre ? 24, 25.07.1983 .
        Sampalthoddam massacre ? 1984
        Chunnakam Police station massacre ?08.01.1984
        Chunnakam market massacre ? 28.03.1984
        Mathawachchi – Rampawa ? September 1984
        Point Pedro – Thikkam massacre ? 16.09.1984
        Othiyamalai massacre ? 01.12.1984
        Kumulamunai massacre ? 02.12.1984
        Cheddikulam massacre ? 02.12.1984
        Manalaru massacre ? 03.12.1984
        Blood soaked Mannar ? 04.12.1984
        Kokkilai?Kokkuthoduvai massacre ? 15.12.1984.
        Vankalai church massacre ? 06.01.1986
        Mulliyavalai massacre ? 16.01.1985
        Vaddakandal massacre ? 30.01.1985
        Puthukkidiyiruppu Iyankovilady massacre 21.04.1985
        Trincomalee massacres in 1985
        Valvai?85 massacre 10.05.1985
        Kumuthini Boat massacre 15.05.1985
        Kiliveddi massacre in 1985
        Sampaltivu ? 04 to 09.08.1985 .
        Veeramunai massacre ? 20.06.1990
        Nilaveli massacre 16.09.1985
        Piramanthanaru massacre ? 02.10.1985
        Kanthalai?85 massacre ? 09.11.1985
        Muthur Kadatkaraichenai ? 08, 09, 10.11.1985
        Periyapullumalai massacre in 1986
        Kilinochchi Railway Station massacre ? 25.01.1986
        Udumbankulam massacre ? 19.02.1985
        Vayaloor massacre ? 24.08.1985
        Eeddimurinchan massacre ? 19, 20.03.1986
        Anandapuram shelling ? 04.06.1986
        Kanthalai?86 massacre ? 04, 05.06. 1986
        Mandaithivu sea massacre ? 10.06.1986
        Seruvila massacre ? 12.06.1986
        Thambalakamam massacres ? 1985, 1986
        Paranthan farmers massacre ? 28.06.1986
        Peruveli refugee camp massacre ? 15.07.1986
        Thanduvan bus massacre ? 17.07.1986
        Mutur Manalchenai massacre ? 18.07. 1986
        Adampan massacre ? 12.10.1986 .
        Periyapandivrichchan massacre ? 15.10.1986
        Kokkadichcholai?87 massacre ? 28.01.1987
        Paddithidal massacre ? 26.04.1987 .
        Thonithiddamadu massacre ? 27.05.1987
        Alvai temple shelling ? 29.05.1987
        Eastern University massacre ? 23.05.1990
        Sammanthurai massacre ? 10.06.1990
        Xavierpuram massacre ? 07.08.1990 .
        Siththandy massacre ? 20, 27.07.1990
        Paranthan junction massacre ? 24.07.1990
        Poththuvil massacre ? 30.07.1990
        Tiraikerny massacre ? 06.08.1990
        Kalmunai massacre ? 11.08.1990
        Thuranilavani massacre ? 12.08.1990
        Eravur hospital massacre ? 12.08.1990
        Koraveli massacre 14.08.1990
        Nelliyadi market bombing ? 29.08.1990
        Eravur massacre ? 10.10.1990
        Saththurukkondan massacre ? 09.09.1990
        Natpiddymunai massacre ? 10.09.1990
        Vantharamullai?90 massacre ? 05, 23,09,1990
        Mandaithivu disappearances ? 23.08.1990, 25.09.1990
        Oddisuddan bombing ? 27.11.1990
        Puthukkudiyiruppu junction bombing
        Vankalai massacre ? 17.02.1991
        Vaddakkachchi bombing ? 28.02.1991
        Vantharumoolai ? 09.06.1991
        Kokkadichcholai?91 massacre ? 12.06.1991
        Pullumalai massacre ? 1983?1990
        Kinniyadi massacre ? 12.07.1991
        Akkarayan hospital massacre ? 15.07.1997
        Uruthrapuram bombing ? 04.02.1991
        Karapolla?Muthgalla massacre ? 29.04.1992
        Vattrapalai shelling ? 18.05.1992
        Thellipalai temple bombing ? 30.05.1992
        Mailanthai massacre ? 09.08.1992
        Kilali massacre ?1992, 1993
        Maaththalan bombing ? 18.09.1993
        Chavakachcheri?Sangaththanai bombing ? 28.09.1993
        Kokuvil temple massacre & bombing ? 29.09.1993
        Kurunagar church bombing ? 13.11.1993
        Chundikulam?94 massacre ? 18.02.1994
        Navali church massacre ? 09.07.1995
        Nagarkovil bombing ? 22.05.1995
        Chemmani mass graves in 1996
        Kilinochchi town massacre ? 1996?1998
        Kumarapuram massacre ? 11.02.1996
        Nachchikuda strafing ? 16.03.1996
        Thambirai market bombing ? 17.05.1996
        Mallavi bombing ? 24.07.1996
        Pannankandy massacre ? 05.07.1997
        Kaithady Krishanthi massacre ? 07.09.1996
        Vavunikulam massacre ? 26?09?1996, 15?08?1997
        Konavil bombing ? 27.09.1996
        Mullivaikal bombing ? 13.05.1997
        Mankulam shelling ? 08.06.1997
        Thampalakamam?98 massacre ? 01.02.1998
        Old Vaddakachchi bombing ? 26.03.1998
        Suthanthirapuram massacre ? 10.06.1998
        Visuvamadhu shelling ? 25.11.1998
        Chundikulam?98 bombing 02.12.1998
        Manthuvil bombing ? 15.09.1999
        Palinagar bombing and shelling ? 03.09.1999
        Madhu church massacre ? 20.11.1999
        Bindunuwewa massacre
        Mirusuvil massacre ? 1

      • Nimal, regardless of your list of claimed atrocities, these are still individual incidents, and do not make a war either legal or illegal.

    • yapa

      Dear Nimal Sandaruwan;

      Would you please list out a few atrocities carried out by the LTTE as well, in fairness to the LTTE Organization?

      Thanks!

      • Nimal Sandaruwan

        I am not an apologist for LTTE.Just as every Sinhalese does not support the heinous crimes of the sucdrssive governments and their armed forces who committed against the Tamils and every Tamil does not support the attacks on civilians.

        My intention was to point out that the Sri Lankan armed forces had carried out horrendeous crimes against the Tamil population particularly over the last 30 decades.

        I do not see this war as something between the ‘Sinhalese majority’ and the ‘Tamil minority’. The successive governments (UNP, SLFP, UFPA etc) and the political leaders of these governments, the members of the armed forces who committed these crimes, the politcal and military assistance from the governments of India, Pakistan, China, US, UK, Israel etc have also need to be accounted for.

        It may not happen in my life time but I am confident future generations who would live in this island would study this history of bagarism and reject them in disgust the things that wrer done in their name. They will not forget and forgive.

      • Dear Nimal Sandaruwan;

        BTW, are you a Sinhalese or a Tamil?

        Thanks!

  • jansee

    David Blacker:

    Oh Oh Oh, join the team that claims that this war was fought on a policy of zero civilian casualties. Truth, nothing but the truth!! Ah, talking about individual violations – as Gotabaya would have it during an interview – that bombing hospitals would be ok – is he the individual you are talking about?

    • yapa

      Dear jansee;

      You also can join the team that shout from your throat and level allegations without evidence. Shouting in hatred and empty propaganda is not a replacement for evidence.

      Thanks!

      • jansee

        yapa:

        If that hatred you are so benevolently imposing on me for making my voice heard as my god-given right is that intense in you, I am not surprised or having sleepless nights. After all, you belong to a regime that still carries on the bogey of terrorism even after two years of the LTTE being defeated but still continue with the emergency regulations just to stifle its citizens.

        By the way, you are giving me more credit than is due. You should give that credit to your friend Wimal Weerawansa who unceremoniously went on a fast and pitched his voice for the “loud” contest. May be you are still in your slumber and call this “propaganda”, would you? But my heart, for all its magnanimity, wishes you well, “at the top of my voice”. Cheers

      • yapa

        Dear jansee;

        Have you put forward any evidence other than shouting from you throat with hatred and riding propaganda to achieve your ill-intentioned end? Can you show any? Just distorted emotions are not evidence.

        [Edited out]

        Thanks!

    • Lol Jansee, I stand by what I have said. Why are you bringing up things I haven’t said? Easier, no?

  • jansee

    yapa:

    Ah yapa, you must be one of the venerable soothsayers who can see through your astral eyes how loud I am shouting. Credit to you for that. That speaks volumes of what kind of hoaxes I am dealing with, isn’t it?

    Have you seen the C4 programme? Have you read the UN Panel report? Has the SL regime the guts to “rebut” the allegations except than denials it has become famous for? After all, the UN sent a copy of the report to the regime for it to give their side of the story. Rather, the regime would take a covert trip to meet the Panel to talk something else – like reconciliation, development, which incidentally is a hoax anyway. With you as their comrade, what anyone can expect other than a replica of WW? Of course, expecting an honest answer is like asking the devil to tell the truth.

    The art of propaganda is something we have to learn from the SL regime. “We will implement the 13th Amendment immediately after the war. I have formed the APRC to find a durable solution to ethnic conflict”. Weren’t these the statements of a President who just wanted to hoodwink the whole world? We have designated a no-fire-zone and we will not fire but we will shell the people – propaganda, lies and deceits. So, please don’t get emotional and excited and let your anxiety wander in circles. There is a Panel report and the C4 news video. If you don’t want to rebut them just like the regime, fine, and that’s your call but don’t get carried away like a cat with closed eyes.

    Well, I have a suggestion. There is a summons served on the SL President to answer some allegations. Perhaps, as a starting point to prove us wrong, encourage the President to take it up rather than hiding behind sovereign immunity. Well, we all know what happened during his UK visit, didn’t we? In actuality, I thought we should leave this matter alone – but since you opened the door, let us deal with it with an open mind rather than being evasive.

    • Why the devil you cannot deviate from your routine tours of just allegations? A bit of reliable evidence to support what you assert?

      Are you talking about that summon sent on the foul effort of that paid servant, Bruice Fein? His attempt is to find some money heat his bed room during the winter in his last days in retirement? Who cares about such old humbugs?

      Thanks!

      • jansee

        yapa:

        Famous as they are to buy off those who oppose them, I am not surprised that this bug has rubbed on you, too.

        It is only too noticeable that your seething frustration at getting to pin down someone who has to pander to the diatribes of a regime that is hell-bent to wash away the blood it has on his hands and there would be hardly any surprise that you are just a mask for them.

        I have stated the parameters and if you choose to ignore them, then it only goes to prove that, like the SL regime, you are just being persuasive to be evasive. It does not cut with me. Just as a parting shot, arrange for independent foreign newsmen to visit the battle zone, with a magic wand we will show you the proof and the evidence, and that too, in abundance. Would you at least not be slippery this time and get your act together?

      • yapa

        Dear jansee;

        Why do you think we should dance according to your tune? We represent a lawful government and a country while you are representing a dead terrorist group and a dream eelam. What justification do you have us to ask to do what ever the way you want.

        However, there is one way to get what you want done by majority Sinhalese. Why don’t you think of getting married with a handsome Sinhalese guy? Then your hatred will automatically go away, and you can order him to do whatever you want, under that particular “P” government. Otherwise you can do husband bashing at your heart’s content until you finish your hatred.

        Otherwise no Sinhlese will do anything to your agenda.

        Cheers, jansee.

        Thanks!

    • Off the Cuff

      Jansee, asked from Yapa

      Have you seen the C4 programme?

      Yapa may or may not have seen it but I have.

      I have also seen this (thanks for the link Mango)

      http://www.youtube.com/watch?feature=player_embedded&v=h2T1FiwRmQo

      Did you see it Jansee?

      The CH4 50 minute documentary has a strange characteristic.

      I could not observe a SINGLE LTTE CADRE IN LTTE UNIFORM within the Hospital precincts or outside. If there were any, it escaped my attention. How many can you count and at what locations?

      The ONLY logical explanation for the absence of Combat casualties and dead, in the ONLY hospital, accessible to the LTTE combatants, in the war front, is, that all of them were disguised as civilians.

      The video (shot by LTTE cameramen) at the link provided above, shows LTTE fighters in Civilian Clothes. It also shows Civilians being led to the War Front by armed LTTE cadres.

      These two facts exposes the CH4 film and those who scripted and edited it, as totally deceitful and dishonest.

      Except for the atrocious and deplorable scenes depicting LTTE women, the rest of CH4 is total rubbish.

      • jansee

        Off the Cuff:

        “I could not observe a SINGLE LTTE CADRE IN LTTE UNIFORM within the Hospital precincts or outside. If there were any, it escaped my attention. How many can you count and at what locations?”

        This is the problem with you guys. Your argument accepted – the possibility of LTTEs in disguise cannot be ruled out. You don’t have to be Sherlock Holmes to realise that. You are talking as if this is prime time news – something already known and acknowledged.

        But surely going by that same argument, not ALL of them would be LTTEs and painting all them as LTTEs and bombing them all is what the issue is here about. If you had been LISTENING you would not become an ostrich. Sadly but surely this is what you are.

      • Off the Cuff

        Jansee,

        You say
        “This is the problem with you guys”

        Have you identified the problem with yourself?

        You say
        “Your argument accepted – the possibility of LTTEs in disguise cannot be ruled out”

        Possibility?
        It is a FACT Jansee not a possibility. The proof is in the video I linked to earlier and here is more.

        Now that you admit that Tiger Terrorists wore civilian clothes could you explain how advancing SLA troops dealing with complex life and death situations for themselves and their colleagues distinguish between a Tiger terrorist that is ready to dispense death and a civilian?

        Here is an openion from a Tamil Scientist, Rajasingham Narendran expressed to Prof Micheal Roberts about blatant propaganda photographs displayed in TamilNet

        “definitely there was a carnage, inflicted by the armed forces and the LTTE. This was confirmed by the IDPs I met towards the end of the war and thereafter. They had to step over the dead and the dying while escaping. Once they escaped the firing zone, the soldiers were of immense help. Soldiers carried the sick, the weak and the elderly, across lagoon waters at great risk to themselves. Some cadres of the LTTE had been helpful too. They had defied orders to shoot and permitted many to escape. Charles Anthony — Prabaharan’s eldest son – was specifically accused by many IDPs of shooting into the crowds trying to escape. The armed forces also lobbed grenades into bunkers, when they entered the final war area — especially in the periphery, and were less combative once they felt assured there were not in danger. This was to be expected, in view of the manner in which the LTTE fought.”

        You say
        “You don’t have to be Sherlock Holmes to realise that. You are talking as if this is prime time news – something already known and acknowledged”

        CH4, hailing from the land of Holmes, does not seem to think so. There is no talk of LTTE injured or dead in Hospital. The implied meaning is that it was all civilians. I may be wrong here, but did you ever mention that what was shown were not all civilians?

        The attempt was to make it Prime Time, did you forget that it was shown at the UNHCR?

        You say “But surely going by that same argument, not ALL of them would be LTTEs and painting all them as LTTEs and bombing them all is what the issue is here about “

        Yes not all of them are LTTE and I have not claimed that either, though CH4 dishonestly stated that it was all civilian. In view of the video evidence given to you earlier, showing civilians being forced at gun point to the front lines how can you now claim that the majority of them were not injured at the front line?

        Here are more pictures
        Notice the number of dead.
        The majority are in CIVILIAN CLOTHES.
        http://thuppahi.files.wordpress.com/2011/06/a4dead20090306_03g.jpg
        http://thuppahi.files.wordpress.com/2011/06/a4-tiger-dead-20090405_04_pp2.jpg

        The LTTE located themselves within the safe zone which was meant ONLY for CIVILIANS
        Here is pictorial proof of LTTE bunkers, Artillery transport, Fuel Dumps inside the NFZ
        http://thuppahi.files.wordpress.com/2011/06/fig-13-ivan-11.jpg
        http://thuppahi.files.wordpress.com/2011/06/image002.jpg

        Here is how the SLA received those who fled the LTTE
        http://thuppahi.files.wordpress.com/2011/06/c2-2-s-ob-10may-yatawara.jpg
        http://thuppahi.files.wordpress.com/2011/06/234664224p9-1.jpg

        The CH4 talks of Army shelling hospitals after ICRC suplied them with map coordinates

        Look at the pictures below and observe the LTTE bunkers at the given coordinates. The pictures you see were taken by Ms Kanchan Prasad, the Special Correspondent for Prasar Bharati, she is a photo journalist.

        http://thuppahi.files.wordpress.com/2011/06/picture-038.jpg
        http://thuppahi.files.wordpress.com/2011/06/picture-046.jpg
        http://thuppahi.files.wordpress.com/2011/06/picture-054.jpg
        http://thuppahi.files.wordpress.com/2011/06/picture-065.jpg
        Here is the ICRC coordinates
        http://thuppahi.files.wordpress.com/2011/06/picture-058.jpg

        You say “If you had been LISTENING you would not become an ostrich. Sadly but surely this is what you are.”

        Were you listening Jansee?
        Where you REALLY Listening?

        Since you are a Tamil, you would have understood what was said by the Tamil civilians who ran out of a trench in the video.

        Why is the English Commentary completely different from the spoken Tamil? Any reason for making that FALSE TRANSLATION?

        Your epithet would be more appropriate for yourself is it not?

        BTW here is pictorial proof of Child Soldering
        http://thuppahi.files.wordpress.com/2011/06/23b-men-mobiised-2.jpg
        Here is proof of civilian deployment
        http://thuppahi.files.wordpress.com/2011/06/003step.jpg
        http://thuppahi.files.wordpress.com/2011/06/012m-gun.jpg

        Acknowledgement: Most of the Material in this post is from Prof Michael Roberts web site

  • jansee

    yapa:

    “while you are representing a dead terrorist group and a dream eelam. What justification do you have us to ask to do what ever the way you want.”

    When Hillary Clinton says that there should be accountability, by your brush she must be a Tamil. James Cameroon, by your argument, is a Tamil because he raised the accountability issue in the British Parliament. Grow up please. I have heard this sort of tune for years but as I told you, you are just mocking yourself.

    Who knows, one day I may end up with a Sinhalese because race would not play a part there as your notion suggests that I assume all other races (including Tamils) are good and all Sinhalese are bad. But one thing would be certain, he will be a man with a backbone and not a hoodlum. If that happens to be a Sinhalese, so what. May be I should take Noel Wickramanayake for dinner this Saturday to prove it all. Get the drift. By the way, does Jansee sound Tamil or Sinhalese?

  • Gehan

    Niran, thanks for the earlier response. I think the discussion on human shields has exhausted everyone.

    I’d like to present another argument for your consideration. It relates to the appointment and status of the Expert Panel. I believe it is relevant to your post, and may be worth responding to. I’ll attempt to articulate it clearly, though I’m sure a few rounds of clarifications are inevitable.

    Leaving aside the joint statement, the argument you present above is that ‘the SG does have the right under article 99 and the implied powers principle to appoint the Panel.’

    1. The Panel Report was a legal opinion, and was meant to assist the UNSG in making informed decisions under the Charter. For example, if he were to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’ under Article 99, he could seek the advice of a panel of experts before doing so. Making such advice public per se does not appear to be inconsistent with this framework.

    2. The issue is that the Panel Report has now attained a status independent of the UNSG. The Report should have been presented purely in conjunction with a particular decision of the UNSG. For example, if the UNSG sought to act under Article 99, the Panel Report could have been released—for the sake of transparency—as a justification for his view that there was a matter that may threaten the maintenance of international peace and security.

    3. However, in the absence of such a view held by the UNSG himself, it is difficult to justify the release of the Panel Report. The UNSG has thus far maintained that he is unable to act on the recommendations of the Panel unless Sri Lanka agreed or member states of the UN mandated him to do so. This is not quite true. He can very well act under Article 99 if he is of the opinion that crimes against humanity were committed by the GoSL. If such crimes were in fact committed, they may be construed as a threat to the maintenance of international peace and security. The Panel Report clearly states that there are credible allegations that the GoSL committed crimes against humanity. Hence, the UNSG had a basis to act under Article 99. However, he chose not to act, as he was NOT of the opinion that there was a matter that may threaten the maintenance of international peace and security.

    4. In such circumstances, releasing the Panel Report to the public cannot be justified, as it is neither a reflection of the UNSG’s own opinion, nor the basis of an informed act carried out under the Charter.

    5. At present, the Panel Report has acquired an almost sui generis character. However, the Panel derives its legitimacy from its appointment by the UNSG. This legitimacy is contingent on the UNSG’s decision to act upon the Report. If the UNSG chooses to disregard the Report or take no action, then the release of the Panel Report is, at best, premature.

    6. It appears that the UNSG strategically released the Report so as to ensure that the international community and necessarily the member states would take appropriate action. It was an exercise in ‘passing the buck’. The UNSG does not seem to be authorized under Chapter XV of the Charter to adopt such a course of action. The only provision empowering the UNSG to initiate action appears to be Article 99. By contrast, Article 100 clearly establishes a separation between the member states and the UN Secretariat. The article provides that the UNSG and his staff ‘shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.’ Hence direct or indirect encouragement of member states to act against other member states through the release of a report runs contrary to the spirit of Article 100 of the UN Charter.

    Looking forwarded to hearing your thoughts on this.

    • Interesting points, Gehan; and is the basis of the concern I, and many others, have about the panel report. What the panel report says is no more important than what it does, and what it was intended to do.

      As you know, this is not a courtroom battle, and is as much a PR one, or one for the hearts and minds of the west. A document that was tasked with providing recommendations to the UNSG regarding an independent investigation, is now being used as if it is itself the conclusion of an independent investigation. Case in point: Ch4 substantiating its ridiculous claims by quoting (and misquoting) the panel report.

  • niran anketell

    Gehan, none of your analysis or critique looks at the actions of the SG as an exercise of implied powers under the Charter, under which there is no restriction on what he can do provided States tacitly or expressly consent. In this case, there’s unanimous consent minus one.

    Since you’ve raised it though, the good offices powers includes steps taken to prevent situations from escalating into threats to international peace and security, which means not every action is done with a view to submitting a case to the UNSC. Prevention is key. The Panel was of the view that the crimes committed by the government constituted a grave assault on the regume of international law. I think there’s a strong argument to be made that any steps taken toward ensuring accountability was not just in consonance with the SG’s implied powers, but also with his prevention duties. The argument is based on the premise that if impunity is allowed to prevail in Sri Lanka, that would occasion a threat to intl peace and security. The release of the Report is thus part of this prevention duty.

    An alternative but not mutual incompatible view is that SG who did follow up on some of the recommendations – regarding an internal review for instance – needed to release the Report to justify his actions. In other words, he was providing reasons for his actions.

    Regarding passing the buck, the SG routinely communicates with the member-state bodies. None of this is considered inconsistent with article 1OO.

    Finally, there’s nothing wrong with transparency. On the contrary, a decision not to release the Report would have been an international scandal. There’s no principle of law that militates against releasing the Report. In the circumstances, transparency should take precedence in determining what the response should be.

  • Gehan

    (Sorry I keep posting in the wrong place. I hope GV ignores the previous posts)

    Niran, you’re right. The argument only focuses on the UNSG’s express powers under Article 99.

    1. On Implied Powers:

    It appears that the UNSG’s powers have evolved since they were first conceived under the Charter. I think there’s plenty of literature to suggest that his political role in maintaining international peace and security requires a purposive interpretation of the Charter. However, as you say, he may only act under his implied powers PROVIDED the member states consent.

    In this light, how important is the UNHRC Special Session Resolution of 2009 (A/HRC/S-11/L.1/Rev.2)? Shouldn’t that be considered an unambiguous expression of the member states’ opinion? Does the UNSG have the implied power to interpret the tacit consent of the member states in the face of such a resolution? If not, shouldn’t he have waited for a fresh resolution authorizing him to act?

    2. On Express Powers:

    Relying on the UNSG’s express powers under Article 99 seems more appropriate than relying on his implied powers. This is because he doesn’t require the consent of the member states to act. In fact, commenting on Article 99 powers, the Preparatory Commission stated that this article: “confer(red) a special right which goes beyond any power previously accorded to the head of an international organization”, and that: “it [was] impossible to foresee how this article [would] be applied”.

    You suggest that the UNSG’s powers under Article 99 includes prevention. I think this position is well supported by the language of Article 99 and subsequent practice.

    The question is whether the UNSG’s express powers under Article 99 permits him to take preventive action unilaterally. Shouldn’t any preventive steps be carried out through the Security Council? So while I see how the release of the Panel Report assists in the process of preventing a threat to international peace and security, the UNSG doesn’t appear to have the power (under Article 99) to take any measures outside bringing such a threat to the attention of the Security Council. The only preventive step that the UNSG is permitted to take is bringing the matter to the attention of the Security Council.

    Or am I making the mistake of interpreting the UNSG’s express and implied powers separately, when in fact, those powers can be exercised in conjunction with each other?

    3. On Transparency:

    I take you point. But we can perhaps shelve that issue until we resolve the above, because the value of and need for transparency is probably contingent on the legitimacy of the UNSG’s actions under the Charter.

  • niran anketell

    Gehan.

    1. On, implied powers, the previous Resolution of the SG has nothing to do with the States’ tacit consent of his actions vis-a-vis the appointment of the Panel. If fact the Resolution fortifies his position given that the HRC was at one time seized of the matter, they chose not to interfere or criticise his actions at the recently concluded session. None bar Sri Lanka has suggested the appointment was ultra vires even though he’s created some precedent here and used organisation funding. Given this, the question relating to release to the public that you’ve identified don’t necessarily apply.

    2. The good offices powers probably did develop through the implied powers principle and the doctrine of effectiveness. It would be hard to contest that since there’s nothing in the Charter that specifically refers to his good offices powers. If the only action the SG could legally take was to inform the SG, then there’s no real innovation in the good offices powers, is there? The SG has done a whole number of remarkable things – appoint commissions of inquiry, conduct peacekeeping, set up courts etc without the prior authorisation of any of the legislative bodies – so there’s little question that his good offices powers go beyond acting as a messenger to the UNSC.

  • Gehan

    Niran,

    1. Implied powers:

    I think relying on implied powers alone (if such powers require the tacit consent of the member states) to justify the appointment of the Panel is tricky. This is because the UNHRC’s tacit consent seems to come only after the Panel was appointed. At the time of appointment, the resolution of 2009 was applicable.

    It might be more reasonable to argue that the UNHRC didn’t interfere with the UNSG’s decision to appoint the Panel, because the UNHRC had nothing to do with it and the UNSG was exercising his express powers under Article 99 or had some other basis to appoint the Panel (see below). I don’t think we can call into question the actual appointment of the Panel as long as it was meant to advise the UNSG on how to proceed under the Charter. This is why the appointment and continued status of the Panel need to be examined separately. However, as pointed out above, relying solely on Article 99 runs into its own set of problems.

    2. Good Offices Powers:

    Is it possible to deviate slightly from your original point about implied powers requiring the tacit consent of the member states?

    Good offices powers appear to have been conceived as part of the political role of the UNSG. It more or less concerns the diplomatic intervention of the UNSG in order either to prevent a conflict or to conciliate the parties to a conflict. I think the way you framed the issue above makes sense–that the alleged crimes may be an assault on the regime of international law. Hence responding to the situation certainly appears to fall within the scope of ‘preventing conflict’. Here’s an interesting anecdote:

    According to the Security Council Official Records, 70th meeting, 20 September 1946, Trygve Lie claimed an independent power of investigation separate from that of the Council. This was when the Security
    Council was considering the alleged communist infiltration in Greece’s northern frontier. He said: “I hope the Council will understand that the Secretary-General must reserve his rights to make such enquiries or investigations as he may think necessary, in order to determine whether or not he should consider bringing any aspect of this matter up to the attention of the Council under the provisions of the Charter.”

    Rings a bell doesn’t it?

    Based on the above, one could perhaps argue that the appointment of the Panel was intra vires vis-à-vis the UNSG’s good offices function, and this did not require the consent of any member state. Also, ‘the right to make such enquiries or investigations’ appears to be independent of Article 99. This supports the view that the UNSG could make the necessary enquiries and decide not to immediately bring the matter to the attention of the council. Does that make sense?

  • niran anketell

    Gehan.

    I don’t see why the UNHRC Resolution militates against tacit consent. I think how it works is that someone interprets the limits of their powers, determines what is implied to fulfill their functions effectively and then exercises those powers. The test of whether such action was done in accordance with international law – i.e whether that person’s interpretation of his own powers was valid and whether it sets a valid precedent – is determined by the response of the international community to that action. So the relevant date is the appointment of the Panel. Any state action construed as consent – tacit or explicit – must assessed from that point onwards. Whatever happened previously is really not relevant. Quite apart from that though, I don’t think the UNHRC Resolution prevents the appointment of a Panel. So I still think that your argument about the correctness of the decision to publish can be sidestepped when if the appointment is seen as an exercise of implied powers. As I mentioned earlier, this is not just an implied power under art 99 (although it could well be construed as such) but under the implied powers accruing to the Chief Executive of an international organisation responsible inter alia for the promotion of human rights and international law.

    2. art 99

    Agreed entirely.

  • jansee

    Off the Cuff:

    “Now that you admit that Tiger Terrorists wore civilian clothes could you explain how advancing SLA troops dealing with complex life and death situations for themselves and their colleagues distinguish between a Tiger terrorist that is ready to dispense death and a civilian?”

    So, you do admit that the SL regime fired at the “crowd” it could not identify the LTTEs from the civilians. And you know what, it is precisely for this reason that the regime has been cited for alleged war crimes. How more deeper you people want to pin yourselves down?

    If Rajasingam had said something, there are others who have said just the opposite. C4 mentioned allegations, and credible allegations that need to be investigated further. By closing off the war zone, the SL regime has a lot to hide including info that thousands of bodies it massacred burned and buried. Of course, the evidence, proof, etc is already available – and since the SL regime is a party to the conflict, no one with a sane mind will turn over this evidence to them. Let there be an international inquiry, or may be the leaders are cited in any country for war crimes, then you have to see the fun. After all, Oxford would have been a good place to start with but the team escaped just at the nick of time.

    What implied meaning are you talking about? Your very own. How many trust your interpretation?

    • Off the Cuff

      Jansee,

      You say “So, you do admit that the SL regime fired at the “crowd” it could not identify the LTTEs from the civilians. And you know what, it is precisely for this reason that the regime has been cited for alleged war crimes. How more deeper you people want to pin yourselves down? “

      Terrorists becomes a Crowd for you?

      Masquerading in Civilian Clothes does not get immunity from RETURN fire.

      Since when did killing Armed Terrorists masquerading in civilian clothes become a War Crime?
      Wishful thinking Jansee.

      With what are you hoping to “PIN” Lanka down?
      With the CH4?

      You say “If Rajasingam had said something, there are others who have said just the opposite. C4 mentioned allegations, and credible allegations that need to be investigated further.”

      Yes such as DBS Jayaraj and even Tamil MP’s

      Pray detail the Credible Allegations in CH4 that has not been rubbished yet?

      You say “By closing off the war zone, the SL regime has a lot to hide including info that thousands of bodies it massacred burned and buried. Of course, the evidence, proof, etc is already available”

      No country does an Autopsy for enemy dead. Can you name any?
      Just empty rhetoric Jansee. If there was proof these guys would already be arrested when they travel. They do travel yet nothing. Why?

      You say “and since the SL regime is a party to the conflict, no one with a sane mind will turn over this evidence to them. Let there be an international inquiry, or may be the leaders are cited in any country for war crimes, then you have to see the fun. After all, Oxford would have been a good place to start with but the team escaped just at the nick of time. “

      Who are these people who are sane that possesses evidence? You seem to be privy to a lot of insider info. However you could like the CH4 attempt that is backfiring now could do another video and make that public too.

      Two years have passed, SL leaders are still travelling, High Ranking Military officers are serving as Diplomats, yet nothing happening. So much for your evidence. So you think Oxford was a show of Diaspora strength? Good for your ego just like the attempts against the cricket team some time ago.

      You say “What implied meaning are you talking about? Your very own. How many trust your interpretation? “

      The meaning conveyed when Terrorists Masquerading as Civilians are shown as Civilians and commented as such in the commentary.

      Jansee you have been unable to respond to any of the issues I have raised in my post (with evidence) about the false claims of CH4 and it’s patent dishonesty.

      CH4 does not stand a chance in hell under inquiry due to the provable dishonesty.
      Even the Tamil spoken within CH4 is Falsified in the English commentary.
      You understood it but avoided answering my direct question.

      Prove that Artillery, Mortars, Bunkers were not used and located within the NFZ by the LTTE. Then firing into the NFZ would be a crime. The Times photographs and those that I have provided prove they located all above and even command centres within the NFZ.

  • wijayapala

    BTW, are you a Sinhalese or a Tamil?

    Yapa, who cares??

  • ordinary lankan

    Niran

    This is a different take – if you have the stomach for it.

    Quite apart from the legal aspects – is not the whole idea of criminality psychologically blind?

    To generalize and punish is a method of social control that is used by the powerful over the weak – nationally and internationally. We saw the way the process was hijacked in the case of Gen Fonseka.

    The argument is that such abuse lies at the heart of the design and implementation of anglo saxon criminal justice.

    Anglo saxon criminal justice was never devised as an intelligent response to crime. It was devised in order to exploit criminality in order to affirm the moral superiority of the state over the law breakers and of the rich over the poor.

    In short this is not ‘justice’ but a show – a carefully enacted drama to convey a clear message as to who is boss….

    Justice is a far more direct and human process – like the truth and reconciliation process in s africa. This is a waste of time – energy and emotions.

    • yapa

      Dear ordinary lankan;

      BRAVO!

      I bow my head to you.

      Thanks!

  • niran anketell

    Ordinary Lankan, tell that to the thousands of Tamil youth detained, investigated and prosecuted under Emergency Regulations promulgated under colonial era laws.