I just noticed that a second comment of yours has appeared that was probably delayed by moderation, so let me respond to that as well. I must however point out that you continue to amuse me with your backtracking whenever you realize you’ve talked your way into a cul de sac 😉

“These laws define the relationship of the State with respect to its citizens and the rights of civilians in conflict. The overarching responsibility of the State for protecting the “dignity and sanctity of life (which includes death)” is a cornerstone in the frameworkof these laws. Another fundamental principle is that the State cannot abrogate its responsibility towards its citizens.”

I do not believe that a conflict being defined as a civil war changes any of the emphasis in the principles and articles you have quoted. The state’s responsibility to its citizens notwithstanding, the portions you have quoted clearly define two adverse parties and what their responsibilities are. I suspect that since your ego will not allow you to admit you were mistaken in quoting those articles and principles so that you could take a new tack, you are now attempting to reinforce failure.

Even in the event of the conflict being defined a civil war (which doesn’t change any of the rights of the parties involved; ie you don’t have less or more rights depending on the type of war), the fact is that the civilians were SL citizens, held hostage by the Tigers (or interned as you prefer to call it). I will address later your attempt to straddle both sides of the fence by now also suggesting the civilians were trapped by hostilities 😉 According to Article 129, which you quoted, the responsibility for those held lies with the interning party. A state’s responsibility to its citizens doesn’t outweigh the adverse party’s responsibility to adhere to IHL, and as far as I know, nowhere in any convention does it suggest that in the event of a civil war that the state is responsible for the actions of the non-state party it is fighting.

“Let me turn to the Articles I have referred to and the rationale for using them. In the case of Mullivaikkal it could be argued that the civilians were trapped both as captives of the LTTE and also as, a consequence of the circumstances of the war (the latter being the restriction of movement of people as a consequence of hostilities as interpreted by customary law).”

But a few days ago, you claimed that the entire population of Mullivaikkal were interned by the Tigers in your attempt to suggest that responsibility for internees lay with the state. I pointed out that you hadn’t understood what you were quoting, and I guess you went back and actually read through it. Now that you’ve realized you’ve painted yourself into a corner by removing all responsibility from the GoSL, you’re backtracking and claiming that not all the civilians were internees (part of the reason why I scoffed when you made the initial claim was because I realized what an untenable position you were traipsing into). Basically you’re trying to define the civilians as broadly as possible to make as many laws applicable. Pretty pathetic, even for this forum.

Nevertheless, I’ll humour you, as I did before, but let me ask you if you’re prepared to abandon the “internee” argument now that it has crippled your attempt to place responsibility with the GoSL, or whether your new position is that some of the civilians were internees/hostages/human shields and others were simply trapped by “circumstances”. I’ll understand if you want to sit on the fence and keep your options open, but it would be nice to see some sincerity even at this late stage of the debate.

I hope your belated attempt to balance your “internee” argument off with another has now made it clear to you that Mullivaikkal cannot be defined as a single event with silly generalizations of the entire population as internees, etc, and that specific events within the area must be examined for suspicious circumstances.

Now, let’s examine your contention that some of the civilians might have simply been trapped by the circumstances of war (“the restriction of movement of people as a consequence of hostilities,” as you say). So what were these circumstances? The SL Army had been advancing relentlessly for something like two years, gradually pushing back the Tigers, capturing their territory, and holding it against counterattack. The Tigers had been pushed first out of the entire Eastern Province and gradually from the western Wanni coast to the eastern coast. Along the way, the Tigers bundled into their retreat entire populations from towns and villages across the Wanni, taking the civilians with them as they retreated. No doubt, some civilians went willingly too. (families of Tigers, supporters, those who feared GoSL retaliation, etc). But the fact of the matter is that throughout the SL military campaigns in the Eastern and then Northern provinces, every opportunity was taken to convince civilians to come over to the GoSL side of the lines whenever there was a lull in the fighting, and throughout the Tigers attempted to prevent this (shooting at civilians, executing the families of successful escapees and deserters, using suicide bombers against refugee centers, etc). Now some might argue that it was actual fear of the SL military and possible abuse that drove the civilians east across the Wanni, and those were part of the circumstances; but the above actions of the Tigers and the fact that there was no such move of civilians during the Eastern Province campaign dismisses that argument. In the East, the Tigers made no attempt to seriously defend territory nor to coerce the civilians into retreating with them as hostages and human shields. The Tigers traded territory for troops, saving their fighting strength to defend their heartland in the Wanni. The fact that there were negligible civilian casualties in the East, that the civilians moved wholesale into GoSL territory whenever the fighting approached, and that none were trapped by the Tigers makes it clear that it was only the difference in Tigers strategy between the two provinces that changed the circumstances of the war. So it is safe to say that the “circumstances” you refer to were entirely of the Tigers’ making, and thus their culpability in the fate of the civilians is clear.

“If we were to consider that it was the LTTE’s responsibility to undertake the certification of deaths (as the detaining power), given that they were decimated during the hostilities, they couldn’t be expected to dischargethis obligation.”

I never said that that was my expectation; however, the death of the person or persons responsible for an act doesn’t then shift responsibility to the adverse party, as you’re attempting to suggest.

“The reference to GC AP 1, Article 33 is to point out that the unrecorded deaths in Mullivaikkal have to be considered “missing” and as such, the GOSL has a continued obligation to search for the missing because they are citizens of Sri Lanka.”

Article 33 says, “1. As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party. Such adverse Party shall transmit all relevant information concerning such persons in order to facilitate such searches.” The obligation is to account for those missing from the adverse party’s side (and reported thus), whereas your most recent argument is that the GoSL is accountable because the missing are its own citizens. So which is it? Article 33 isn’t talking about a party being obliged to account for the dead from its own side is it? Again, your backtracking and fence sitting on several points have led you to some confusion, it seems. This parallels the usual argument that when the Tamils are doing the killing they are citizens of Eelam, and when they are being killed they are citizens of SL. You can’t have it both ways.

“While it is recognised that 2(b) refers to the search being undertaken “to the fullest extent possible”, the bulldozing of thedead in Mullivaikkal cannot be considered an action that goes towards meeting this obligation.”

Bulldozing the dead into mass graves (if this actually occurred) is sometimes a necessity of circumstance, and can’t be said to be an attempt to avoid accountability. Many of the dead found by the Allies in German concentration camps had to be similarly disposed of to avoid disease, etc, but it’s hardly likely that the Allies were unconcerned about recording the victims of the Holocaust.

“The reference to the Right to Know principles is to point out that regardless of the intransigence of the GOSL to examine its own conduct, at least it must assume the responsibility of making known the truth of violations and crimes committed by the LTTE. Among the other alleged violations, if the LTTE was holding civilians at gunpoint and shot them when trying to escape, the families of the victims, and we as Sri Lankans, need to know the truth.”

They may assume that responsibility if they wish, but they are not obliged to. As I already told you several days ago, the GoSL might respond in broad terms by saying that x number of civilians were killed in the assault on y town, and so forth, which would fulfill their obligations. I doubt that would satisfy the detailed investigation you are demanding, but as I said at the very beginning there is no obligation or necessity to undertake the latter.

“Despite the intransigence of the GOSL, as Sri Lankans we also have a right to know the truth about the alleged crimes committed by the military, for example the execution of a 12 year old boy as punishment for the sins of hisfather.”

I am not familiar with this anecdote. Can you refer me to it and explain the relevance?

“The argument that there has to be evidence of wrong doing prior to war crimes investigations being instituted is correct however it does not annul the State’s responsibility with relation to certifying citizens’ deaths. This is a first vital step.”

I am glad to see that you have now accepted the argument about the necessity to establish the occurrence of a war crime prior to the launch of an investigation. Given the numbers of dead, and the time that has elapsed, it is practically impossible for the GoSL to issue certificates with the detail you require, but yes, it could issue documentation to any applicants cross referenced to the latest census certifying that an individual was believed killed in the fighting. Legally that would suffice. But as I said before, it will hardly satisfy those keen on an investigation with culpability as its objective. It also leaves many holes in which actually living individuals could be certified as dead. However, it is not likely that actual exhuming of remains will actually help in identification, much less a detailed conclusion of the circumstances of their death.

“If as a result of the process of certification a pattern of violations and crimes emerge this would be the evidence needed for investigations to be initiated. Furthermore, the certification of deaths also allows for an accurate counting of the dead. This will help bury the absurd claim of the “proportionality” of the war despite no record of the actual number of people that died.”

As I said, the certification pattern is unlikely to reveal circumstances of death, and even an exhuming is unlikely to give an accurate count, given that many victims of shellfire leave such small pieces behind.

“The unwillingness of the GOSL to certify this many deaths is a gross violation of its obligation to its citizens and a demonstration of callous disregard at best and a conspiracy of silence at worst.”

As long as elements outside SL continue to agitate for a prosecution of the current SL leadership for war crimes, it is unlikely that the GoSL will ever formally certify even these deaths. It might be possible if their is a change in government, but I wouldn’t hold my breath. It’s unfortunate, but it’s not Hague Tribunal stuff. Far more were killed during the JVP insurgencies under far more suspicious circumstances with nothing done about it.

“Which takes me back to the original question: if an investigation (which must by definition start by determining the cause and manner of death) can be called for in Weliweriya why can’t the same be done for Mullivaikkal?”

The cause and manner of death at Weliweriya is already known and doesn’t require further investigation. The cause was the deployment of an assault-ready infantry unit to put down a protest by unarmed civilians; the manner of death was by shooting. The lack of proportionality defines this as a crime, and what is now necessary is an investigation to identify a guilty party and possible prosecute. Which takes me back to my original comment that the difference between Weliweriya and the Mullivaikkal is that in the former the killings were deliberate, and in the latter it wasn’t.

Dear David,

My sincere apologies. Having reread my previous post I realise that it was dumb on my part indeed to expect you or anyone else to make sense of the Articles that I referred to without an accompanying explanation. Here it is albeit late.

While the following points will be obvious to you, it needs to be stated so the context is clear. The conflict in Sri Lank falls under the category of a civil war or technically speaking a Non-International Armed Conflict (NIAC). As such, customary international law and customary humanitarian law is widely applicable in addition to International Humanitarian Law (IHL) and International Human Rights Law (IHRL). These laws define the relationship of the State with respect to its citizens and the rights of civilians in conflict. The overarching responsibility of the State for protecting the “dignity and sanctity of life (which includes death)” is a cornerstone in the framework
of these laws. Another fundamental principle is that the State cannot abrogate its responsibility towards its citizens.

Let me turn to the Articles I have referred to and the rationale for using them. In the case of Mullivaikkal it could be argued that the civilians were trapped both as captives of the LTTE and also as, a consequence of the circumstances of the war (the latter being the restriction of movement of people as a consequence of hostilities as interpreted by customary law). As such, the following GC IV Article 129 is relevant and applicable – “Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred.”.

If we were to consider that it was the LTTE’s responsibility to undertake the certification of deaths (as the detaining power), given that they were decimated during the hostilities, they couldn’t be expected to discharge
this obligation. However, regardless of whether LTTE was responsible or not,
given GOSL’s responsibility towards its own citizens under national and
international law, the certification of deaths remains an obligation under its
domain and cannot be ignored. Simply put the issuance of birth certificates and death certificates is the responsibility of the GOSL.

The reference to GC AP 1, Article 33 is to point out that the unrecorded deaths in Mullivaikkal have to be considered “missing” and as such, the GOSL has a continued obligation to search for the missing because they are citizens of Sri Lanka. While it is recognised that 2(b) refers to the search being undertaken “to the fullest extent possible”, the bulldozing of the
dead in Mullivaikkal cannot be considered an action that goes towards meeting this obligation.

The reference to the Right to Know principles is to point out that regardless of the intransigence of the GOSL to examine its own conduct, at least it must assume the responsibility of making known the truth of violations and crimes committed by the LTTE. Among the other alleged violations, if the LTTE was holding civilians at gunpoint and shot them when trying to escape, the families of the victims, and we as Sri Lankans, need to know the truth. Despite the intransigence of the GOSL, as Sri Lankans we also have a right to know the truth about the alleged crimes committed by the military, for example the execution of a 12 year old boy as punishment for the sins of his
father.

So to tie this all together consider the following points:

a) Certifying deaths of civilians is an obligation of the State and is not contingent on evidence of suspicion or war crimes. Through the certification of deaths the causes of death and the conditions under which it occurred have to be recorded. This is a basic obligation of the State. The argument that there has to be evidence of wrong doing prior to war crimes investigations being instituted is correct however it does not annul the State’s responsibility with relation to certifying citizens’ deaths. This is a first vital step.

b) If as a result of the process of certification a pattern of violations and crimes emerge this would be the evidence needed for investigations to be initiated. Furthermore, the certification of deaths also allows for an accurate counting of the dead. This will help bury the absurd claim of the “proportionality” of the war despite no record of the actual number of people that died.

c) If we take what you consider to be the authoritative voice (IDAG-S) on the “numbers game”, between 15 000 – 18 000 civilians died (albeit some from natural causes etc. but the majority from hostilities). The unwillingness of the GOSL to certify this many deaths is a gross violation of its obligation to its citizens and a demonstration of callous disregard at best and a conspiracy of silence at worst.

d) Which takes me back to the original question: if an investigation (which must by definition start by determining the cause and manner of death) can be called for in Weliweriya why can’t the same be done for Mullivaikkal?

Best regards
GTBP

Just as an addendum; by proposing that every civilian at Mullivaikkal was an internee of the Tigers, and quoting Article 33, which places accountability with the interning party, you have effectively removed responsibility for accountability from the GoSL, except in circumstances of suspicion. This is basically what the GoSL has been saying for the past four years — the Tigers were endangering the civilians, so it is their fault. The GoSL would applaud you 😉

“Is your understanding that the LTTE didn’t commit any violations and heinous crimes? … Are you now suggesting that there is no evidence even of LTTE violations that need to be investigated?”

Certainly, the only actual evidence that exists is of Tiger violations (video footage, eye witness testimony), and I have consistently pointed this out. So the fact that violations took place doesn’t need to be further established. Any investigations now have to be to determine the guilty and possibly punish them. The GoSL has chosen not to pursue a case in this matter, for various reasons (the guilty being themselves dead for the most part in the case of Mullivaikkal). The fact that the UN itself (in the form of the Darusman Panel) refuses to acknowledge that the Tamil civilians trapped at Mullivaikkal were in fact held by force as hostages and used as human shields (both violations of IHL) in spite of the evidence makes it doubly unlikely that investigation of Tiger violations will be possible even as an academic exercise. And, in the case of accounting for and certifying the deaths of civilians held by the Tigers, as I said in my last comment, Article 129 identifies the interning party (in this case the Tigers) as responsible for that task. If we accept the evidence as conclusive enough to show that the Tigers held the entire population of Mullivaikkal as hostages (the word internment suggests a more formal system), thereby placing them in fatal endangerment, the Tigers bear an automatic complicity in their deaths. The degree of complicity depends on whether the killings were deliberately done (as in the case of shooting escapees) or accidental; but either way, the Tigers would be cited as complicit. GoSL complicity requires an additional establishment of suspicious circumstances to disprove an accidental death.

“what I wanted to say was “Regardless of whether the civilians were detained by the LTTE or not, according to the Right to Know…””

Well, the right to know that you quote in Principle 2 is in the event of a violation being established, and so far the only violations established is with regard to Tiger IHL violations. So with regard to this, petitioners are already aware that their loved ones were killed as a result of being held hostage and/or used as a human shield. Any further details would be the obligation of those who’s actions caused the deaths by tacit responsibility (taking hostages) and/or direct responsibility (using human shields or actually killing). IHL doesn’t oblige the adverse party (in this case the GoSL) to take on accountability. Personally, I believe that the GoSL should indeed account for the dead as far as is possible, to give the families some closure. However, I doubt that the level of accounting will satisfy those that are demanding that investigations be pursued with the aim of establishing GoSL culpability for the civilian deaths.

Dear David,

Is your understanding that the LTTE didn’t commit any violations and heinous crimes? If people are held at gunpoint and are shot in the back if they try to escape aren’t they being detained/interned? As you have argued elsewhere, the LTTE used civilians as a human shield and co-located military objects among civilians. Are you now suggesting that there is no evidence even of LTTE violations that need to be investigated?

The following sentence was badly formulated “Whether the civilians were detained by the LTTE or not is irrelevant considering that according to the Right to Know” – what I wanted to say was “Regardless of whether the civilians were detained by the LTTE or not, according to the Right to Know…”

Please reread the argument I put forward more carefully in light of the above clarifications.

Regards
GTBP

Lol, and away those goalposts go, racing down the field once more, George pushing frantically 😀

“What I said was “In any violent or suspicious or unattended death you need to determine the cause and manner of death”.”

I know what you said, and I have responded as to the difference between what is considered suspicious in wartime and that in peacetime. The fact that IHL allows for an acceptable number of civilian deaths dismisses your argument that all civilian deaths are automatically deemed suspicious. We’ve been through this. Can we move on now.

“According to the Geneva Convention IV (protection of civiliansduring war), Article 129, the 2nd sentence states the following (the bold emphases are mine): “Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred.”.”

Yes, internees. Are you suggesting that all the civilians killed at Mullivaikkal can be termed “internees”? You really are grasping at straws, aren’t you? Even if we were to humour you and accept this absurd claim, surely the implication is that the onus of certifying the deaths lies with those who had interned these individuals (and were therefore responsible for their wellbeing) rather than those who were trying to free them.

“Furthermore, under the Geneva Convention Additional Protocol 1, Article 33, the following paragraphs place further obligations:”

I quite agree. Any info on individuals who were being held prisoner during the war — or are still being held — should be divulged. What has this got to do with your demand that all the deaths of Mullivaikkal must be investigated despite the fact that you can show no suspicious circumstances?

All of what you have quoted of Article 33 indicates that what is being suggested is a recording and disclosing of the status of said internees — are they alive, are they dead, how were they killed — and not an investigation into possible criminal action.

“Whether the civilians were detained by the LTTE or not is irrelevant considering that according to the Right to Know”

In the context of what you have quoted above, it is certainly relevant because, if they were not being detained by the Tigers they cannot be defined as internees and the above articles would not be discussing them. In the context of who is responsible for their wellbeing (and therefore responsible for accounting for their deaths) the detail of whether they were interned by the Tigers or not is totally relevant. George, you can’t have it both ways 😀 If you want to quote articles on internees you can’t then get wishywashy on whether they are actually internees or not, and who interned them! Lol, that is crucial to your argument, and I suspect as usual you haven’t thought this through.

Now, let’s look at your quoting of Principals 2 and 4, which you obviously haven’t grasped.

Principal 2 (I am highlighting what you’ve missed):“Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.”

My dear George, Principle 2 is making suggestions on actions to be carried out in the event of a crime; not on the assumption of a crime.

Principle 4: ”Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.”

Again, Principle 4 is talking about actions to be carried out in the event of a crime, not in the investigation of an allegation. Don’t you bother to read through the stuff you quote?

“What the above Articles and Principles highlight are the obligations of a State with relation to dealing with civilian casualties.”

Once again, risking being called illogical for daring to point out that you’re ignorant, I must tell you that you’re wrong. Those articles and principles are outlining the obligations of those responsible for the welfare of internees and the investigation into the victims of war crimes. As has been pointed out to you repeatedly, which point you duck when called on to respond to, civilian deaths in war are NOT considered a war crime per se or a violation of IHL. I have asked you to quote the relevant conventions that rule ALL civilian deaths as violations, and you simply avoid responding; predictably, of course.

“Once GOSL has gone through the process of recording civilian casualties we will be able to determine if a pattern emerges with relation to violations, if any, on either side, whether crimes were committed and who should be held accountable for those crimes.”

I would agree if there was indeed such an obligation which, I have clearly shown you above, there isn’t. The obligation is to each party to account for those it has interned (not those interned by an adverse party), to account for “to the fullest extent possible” (a subjective stipulation) those reported as missing by an adverse party, and to investigate the circumstances behind the deaths of victims of war crimes. Nowhere does it say that all deaths must be investigated for possible criminality. If a party was to state that X number of civilians were killed by shellfire during the assault and capture of Y town, and list out their names, that would be reasonable.

“So yes, it is hard work recording the causes of death and the conditions under which it occurred, considering that each civilian death has to be accounted for. This is the responsibility of the GOSL as signatory to the Geneva Convention and member of the UNHRC, and not of individuals or civil society, unless of course the GOSL wants to delegate that responsibility.”

It would be the GoSL’s responsibility if the GCs actually said that; but it doesn’t as has been explained to you. Intentionality and proportionality certainly do not have anything to do with articles and principles you have quoted, but they certainly have everything to do with the ones concerning the defining of an event as a violation of IHL. You’ve simply not read the conventions you have quoted and have therefore misunderstood the relevance.

“I rest my case.”

Prematurely, I’m afraid. Until an event can be credibly shown to have been a possible violation, investigation is unnecessary. Try again, take as long as you like, but do it right. Don’t waste both our time.

Dear David,

You’re arguing from the position that all unattended deaths of civilians in a war can be termed suspicious and/or violent. While this is true in everyday life, it is not true in war. It is a given that in a war civilians will die.

What I said was “In any violent or suspicious or unattended death you need to determine the cause and manner of death”. The following is a summary of arguments made by Professor Susan Breau and Rachel Joyce (2011) that have bearing on our discussion. Of the IHL and IHRL obligations that they refer to, I present a sub-set that are relevant to the purposes of our discussion.

According to the Geneva Convention IV (protection of civilians
during war), Article 129, the 2nd sentence states the following (the bold emphases are mine):

“Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred.”.

Furthermore, under the Geneva Convention Additional Protocol 1, Article 33, the following paragraphs place further obligations:

”1. As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party. Such adverse Party shall transmit all relevant information concerning such persons in order to facilitate such searches.

2) (a) record the information specified in Article 138 of the Fourth Convention in respect of such persons who have been detained, imprisoned or otherwise held in captivity for more than two weeks as a result of hostilities or occupation, or who have died during any period of detention;

(b) to the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilities or occupation”.

Whether the civilians were detained by the LTTE or not is irrelevant considering that according to the Right to Know, Principle 2 “Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.”.

Furthermore, according to Principle 4, ”Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.”.

What the above Articles and Principles highlight are the obligations of a State with relation to dealing with civilian casualties. Considering that the LLRC did not having the mandate to look into the violations committed by both sides this “imprescriptible (inalienable) right” referred to above yet remains to be realized.

Once GOSL has gone through the process of recording civilian casualties we will be able to determine if a pattern emerges with relation to violations, if any, on either side, whether crimes were committed and who should be held accountable for those crimes.

So yes, it is hard work recording the causes of death and the conditions under which it occurred, considering that each civilian death has to be accounted for. This is the responsibility of the GOSL as signatory to the Geneva Convention and member of the UNHRC, and not of individuals or civil society, unless of course the GOSL wants to delegate that responsibility. “Intentionality and proportionality” have nothing to do with the above obligations.

I rest my case.

Thank you
GTBP

“Your circular argument can be finally given the unceremonial burial that it deserves.”

Rofl, your arguments have been so circular you should change your pseudonym to Billy Bunter.

“Because they are dead! In any violent or suspicious or unattended death you need to determine the cause and manner of death; this helps ascertain whether a crime was committed or not, and whether further investigation is necessary.”

Oh dear, you really don’t pay attention, do you, George. Nor do you seem to understand what you agree and disagree with. We’ve been through all of this. Did we not agree that we must look at specific incidents? Mullivaikal is not a specific incident; it is a place in which many incidents occurred. To take Mullivaikkal as a whole is similar to taking the whole war as a whole; and we have agreed that that is a dead end.

Now, let’s instead take it that you see each death as a specific incident. You’re arguing from the position that all unattended deaths of civilians in a war can be termed suspicious and/or violent. While this is true in everyday life, it is not true in war. It is a given that in a war civilians will die. This is not a debatable point; it is a fact. Therefore the assumption that all unattended civilian deaths in war must be viewed with suspicion, is false. It is possible in fact to go so far as to say that ALL civilian deaths in war will be unattended, violent, or at the very least a result of the violence. So therefore, violent and unnatural death in war in fact becomes the natural cause in those circumstances, unlike in everyday civil society where an unattended death requires an autopsy. In fact, IHL allows for an acceptable number of civilian deaths in military actions; so therefore ALL civilian deaths cannot be deemed suspicious from the outset. So if there’s any burying to be done, it’s that argument (you can have a ceremony if you like, I’m sure no one will mind).

If you disagree, I urge you to quote the relevant law or convention that states that all civilian deaths in war can be assumed to be suspicious and requiring of investigation.

Now, given that there is no reason or rationale to assume that the average civilian death at Mullivaikkal was anything other than an unfortunate byproduct of the war, each and every such death does not require investigation. What requires investigation is a death in which there is suspicion that the killing was deliberate and/or a result of a disproportionate amount of violence.

So instead of crippling your argument by generalizing everyone at Mullivaikkal (or indeed in the NE), you need to select incidents in which the deaths seem to indicate the above causes. If there is enough cause to substantiate those suspicions, investigations can commence.

“Preempting an examination of the cause and manner of death is not simply bad law enforcement but also, an indication of objectives other than justice being pursued.”

While IHL parallels regular criminal law in many areas, it is not simply a copy. Allowances have to be made for the circumstances, and I’m afraid you’re ignoring that in the hope of defending your argument. It is because of these allowances that IHL in fact accepts the possibility of civilian deaths in war, and only defines criminality if the deaths are disproportionate to the military objectives. In regular criminal law, no such allowances are made for the acceptable deaths of certain numbers of innocent parties.

So the burden remains to determine which deaths are suspicious enough to warrant investigation; which is why we must return to examining specific incidents. It’s hard work, I know, but self-proclaimed activists such as yourself should be willing to put in the hard time rather than being lazy and taking shortcuts.

I note that your comments seem to have got scattered and repeated all over the thread, but I’ll try and cover all your points.

“With regard to the identification of the war dead, it is political will rather than “practicality” that is the determining factor.”

Not really. Can you point to any war where all of the dead were identified and accounted for? Were all those failures a result of a lack of political will?

GV, I made an edit to this post and it seems like it went missing…..

Dear David,

Your circular argument can be finally given the unceremonial burial that it deserves.

“On what grounds must the Mullivaikkal deaths be investigated?”

Because they are dead! In any violent or suspicious or unattended death you need to determine the cause and manner of death; this helps ascertain whether a crime was committed or not, and whether further investigation is necessary. Preempting an examination of the cause and manner of death is not simply bad law enforcement but also, an indication of objectives other than justice being pursued.

With regard to the identification of the war dead, it is political will
rather than “practicality” that is the determining factor.

Regards
GTBP

Dear David,

Your circular argument can be finally given the unceremonial burial that it deserves.

“On what grounds must the Mullivaikkal deaths be
investigated?”

Because they are dead! In any death you need to determine the cause and manner of death; this helps ascertain whether a crime was committed or not, and whether further investigation is necessary. Preempting an examination of the cause and manner of death is not simply bad law enforcement but also, an indication of objectives other than justice being pursued.

With regard to the identification of the war dead, it is political will rather than “practicality” that determines this.

Regards
GTBP