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A Legal opinion for the Commission Inquiring into Disappearances

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A Legal opinion for the Commission Inquiring into Disappearances
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Prof. Michael Newton, Professor of the Practice of Law, Vanderbilt University School of Law

1. The purpose of this memorandum is to provide my expert assessment regarding the widespread use of civilian human shields by LTTE forces in the final stages of the Sri Lanka civil war, which ended in May 2009. In particular, this opinion focuses on the intentional use of artillery fire directed to specifically respond to LTTE artillery fire emanating from within civilian areas. As you know, the LTTE refused to permit some 330,000 fellow Tamils to flee towards safer areas away from the zone of conflict, and in essence used them as human shields to deter offensive operations by the Sri Lanka Army. The Government of Sri Lanka previously declared the entire area as a safe civilian or no fire zone (NFZ) in order to protect the innocent civilians, which had the incidental effect of incentivizing international organizations to remain in that area. Aside from refusing to agree to the creation of such a safe zone, which itself constitutes prima facie evidence of its intent to use civilians and civilian objects as an impermissible extension of its military campaign, the LTTE embedded its heavy artillery within the NFZ and intentionally shelled Sri Lankan positions from the midst of the civilian population.
2. The use of the civilian population in that manner is roughly comparable to the war crime of perfidy because the LTTE sought to use the government's compliance with the laws and customs of warfare in order to gain an unwarranted military advantage. This leveraging is precisely why the laws and customs of war uniformly reject the use of human shields in a variety of specific places. Civilians who would otherwise have spread out into areas remote from the conflict or sought shelter with family in other regions were prevented from doing so in order to dissuade the government from attacking lawful targets using lawful weapons. Intentional efforts to use the presence of such civilians to shield military operations constitutes a war crime in its own right, and this opinion therefore also addresses the law regarding the use of force directed against military objectives when one party to the conflict has attempted to insulate those targets through manipulation of the laws and customs of warfare.

3. At the outset, I wish to note two provide two preliminary observations that inform the analysis of the underlying issues. Firstly, the obligation to protect civilians within the zone of conflict is perhaps the most deeply embedded premise of the entire corpus of the laws and customs of warfare. In the language of Article 57(1) of Protocol I to the Geneva Conventions of 1949 the participants to an armed conflict must ensure that "in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects." No responsible commander ever intentionally targets civilian populations during either international or non-international armed conflicts, and the law prohibiting such deliberate harm to civilians is clearly stated in a variety of forms and fundamental. 3 There is no evidence to suggest that Sri Lankan commanders ignored this fundamental obligation. As reported by the U.S. Embassy, the Sri Lankan military expressly took "the utmost care" to avoid civilian casualties, despite the intentional warping of its operational environment by the LTTE. This is reminiscent of the difficult operational balancing faced by NATO during operations in 'Kosovo, during which international media and diplomatic engagement highlighted the balance between the loss of civilian lives and the absolute prerogatives of commanders to seek to end the conflict lawfully. NATO repeatedly briefed the public and diplomatic communities on efforts to minimize civilian casualties. Even when confronted with the presence of human shields, the commander of air operations vehemently maintained that "every day we did our very very best to limit collateral damage and limit the loss of life on the adversary's side." Similar statements were made by Sri Lankan officials and there is no evidence to contradict that assertion. Thus, the nub of the issue at hand is whether government forces used a lawful weapon (artillery) against lawful military objectives (in this instance identified as the points of fire from LTTE batteries) in a lawful manner (remaining cognizant of the multiple provisions of law aimed at protecting the civilian population from the effects of hostilities insofar as possible).

4.  Secondly, in distinguishing between "the civilian population and combatants and between civilian objects and military objectives" and directing military operations "only against military objectives" as required by Article 48 of the Protocol, the law is clear that the extensive obligations to protect innocent civilians enshrined in Article 57 of Protocol I apply to any "acts of violence against the adversary, whether in offence or in defence."4 In my expert opinion, these principles constitute customary international law that is unquestionably binding on all states and all parties to all conflicts. Thus, assuming that the operational goal of the LTTE was to effect a military advantage against the Sri Lanka government (which seems clear from the facts provided and the assessment of the U.S. Ambassador at the time), the very act of forcibly preventing the evacuation of civilians who wished to leave the declared safe zone constituted an independent war crime on the part of LTTE authorities. This tenet coincides perfectly with the internationally accepted basis for finding that the war crime of using human shields has been committed. The Elements of Crimes for the Rome Statute, which were adopted by widespread international consensus on June 30, 2000, are clear that any action by a perpetrator committed with the intent "to shield a military objective from attack" or to take advantage of one or more civilians to "shield, favour, or impede military operations" constitutes the completed war crime.5 Against that backdrop, Sri Lanka Panel of Experts suggestion (T 237) that the war crime of using human shields requires "credible evidence of the LTTE deliberately moving civilians towards military targets rgets to protect the latter from attacks" is unfounded as a matter of law. The elements of crimes to the International Criminal court make it plain that the crime of using human shields is committed by any perpetrator that intentionally "moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict." (emphasis added) The LTTE committed the war crime of using human shields on any occasion that it took advantage of the presence of innocent civilians with the intent of protecting its military assets from any attack or to "shield, favour or impede military operations." In other words, the war crime of using human shields was a completed offense with or without the deliberate moving of civilians, so long as the LTTE collocated equipment in an effort to gain an inappropriate military advantage from the presence of civilians and/or civilian objects.

5. In my expert opinion, it is wholly inconsistent with the broader legal and moral principles to reward such intentional misconduct by requiring the attacker to ignore the changed role of the otherwise protected civilians. In other words, there is no per se prohibition against attacking targets protected by human shields. Rather than summarily condemned, the government artillery strikes must be assessed under the established duties to comply with the principle of proportionality and the accompanying obligation to take "all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

6. Human shields - the difference between Hamas/LTTE On the surface, many commentators might be willing to analogize the situation of Hamas in the Gaza Strip with the tactics of the LTTE at the end of war. In both instances, the record is replete with instances of human shields being used unlawfully to favour military operations. There is much to be said of the specific tactics employed by Hamas to conduct indiscriminate rocket attacks against Israeli citizens, particularly in comparison to the tactics employed by the LTTE. I have seen little evidence that the LTTE specifically emplaced artillery in the homes of civilians as Hamas has repeatedly done. If necessary, I will conduct extensive research to document the tactics employed by Hamas and analyze the contradistinctions between the two situations.

7. However, there are at least two clear points of contrast where juxtaposition of the contexts helps to justify the actions of the Sri Lanka government forces. In the first place, the evidence is clear that targets were specifically attacked in response to LTTE fire emanating from within the civilian areas. This correlates to Israeli practice of course. It is noteworthy, however, that no government has declared the illegality of Israeli strikes simply because they were directed into civilian areas. In other words, the law is clear that artillery fire into civilian areas cannot be deemed per se unlawful in its own right, but must be subjected to the traditional analysis drawn from the principles of distinction, military necessity, and proportionality. The ICRC Customary Law study recounts many such instances of state practice in support of this proposition, to include the response of the German government following the 2009 Israeli incursion into Gaza.7 The Bundestag asked the following: How does the Federal Government assess the use of artillery ammunition, fin-stabilized ammunition, shrapnel shells, and other imprecise weapons in the densely populated residential areas in Gaza, documented by Amnesty International under international law? The response is telling because it supports the assertion that there is no per se prohibition on the use of artillery shells in urban areas: The Federal Government has no reliable information on the use of such ammunition. The use of means of warfare which cannot be directed against a specific military objective, so called indiscriminate attacks, would be prohibited ...This would depend not only on the type of ammunition, but also on the circumstances of their use.

8. By the same token, in their respective decisions in the Gotovina Case, neither the ICTY Trial Chamber8 (¶ 1904-1910) nor the Appeals Chamber (¶ 58-67) asserted that the use of artillery fire directed against purported military objectives located in civilian urban areas is in itself dispositive of illegality. Though they reach opposite conclusions for other reasons, both Chambers based their legal conclusions on assessments of the military value of targets, the evidentiary basis for concluding that attacks were (or were not) indiscriminate as conducted, or violative of the proportionality standard. The Appeals Chamber, for example, cites the location of artillery batteries as affecting the accuracy of fire into urban areas, but in no way suggests that there is any tenet in modem international law that such fire is- always prohibited as a matter of overarching international law.

9. Conversely, there is one vital distinction between the two situations. In the Gaza conflict, there has been much international criticism directed against the Israeli Defense Forces because of the implication that widespread military strikes directed in the urban areas of Gaza can warrant the inference that such strikes in actuality constituted an unlawful attack directed against the civilian population as such. The law is clear, however, that there is no cognizable tenet of international law that treats the status of an entire area as being legally relevant. In the case against Dragomir Milosevic, the perpetrator attempted to argue that the presence of military targets in a designated zone warranted military strikes with no further analysis. In rejecting that claim, the Appeals Chamber of the ICTY9 reinforced the principle that the designation or functional description of a zone or area can never serve as a legal basis for attack:

53. The Appeals Chamber recalls that it is well established that the principle of distinction requires parties to distinguish at all times "between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives". There is an absolute prohibition against the targeting of civilians in customary international law, encompassing indiscriminate attacks.' Asstated in the Galic Appeal Judgement, "Article 51(2) of Additional Protocol I "states in a clear language that civilians and the civilian population as such should not be the object of attack", that this principle "does not mention any exceptions", and in particular that it "does not contemplate derogating from this rule by invoking military necessity." Article 51(2) "explicitly confirms the customary rule that civilians must enjoy general protection against the danger arising from hostilities" and "stems from a fundamental principle of international humanitarian law, the principle of distinction, which obliges warring parties to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives and accordingly to direct their operations only against military objective.

54. There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. Further, considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milogevic's argument regarding the proportion of civilians present in areas "replete with military objectives" unpersuasive. In fact, Milos'evic, does not even attempt to argue that the civilian victims in Sarajevo were proportional casualties of lawful military attacks launched by the SRK. A general assertion that the attacks were legitimate because they allegedly targeted "military zones" throughout the city is bound to fail. (emphasis added, citations omitted)

10. The holding of Milosevic in conjunction with Article 51(5)(a) of Protocol I10 definitively establishes that under modern international law, a number of distinct military objectives located within an urban area cannot lawfully be aggregated to constitute one single military objective. Just as the Israelis are required to make individualized assessments of the proportionality grounds for attacking any target within Gaza, the Sri Lanka government had that same duty. In other words, the mere labeling of an area as a safe area or protected zone had no legal effect on the underlying authority of the Sri Lanka forces to attack lawful targets using lawful weapons in a lawful manner as permitted under the laws and customs of warfare. While Hamas gains no higher degree of automatic protection from attack merely by the terminology attached to the urban areas within the Gaza Strip, the legal authority of Sri Lanka to respond to attacks initiated by the LTTE was similarly unaffected by the semantic designation of the NFZ. The legality of specific artillery strikes conducted by Sri Lanka in the so-called safe zone are thus entirely dependent upon the case by case, target by target, analysis common to the assessment of any operational decisions in the context of an armed conflict.

11. The need to rethink Proportionality in the light of modern human shielding -- The problem of human shields presents military decision-makers with one of the most potent challenges to the implementation of international humanitarian law in the world today. On the one hand, civilians remain entitled to absolute protection from the effects of hostilities "unless and for such time as they take a direct part in hostilities."" This includes the right to be absolutely free of deliberate targeting efforts by both military adversaries at all times and under all circumstances. On the other, when one side violates its obligations "avoid locating military objectives within or near densely populated areas" and fails to "take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations" its opponent is faced with what I have termed an impermissible "forced choice." Either the commander in the field cedes an unlawfully obtained military advantage to the enemy, and suffers casualties with no possible recourse, or undertakes careful strikes in response directed against military objectives. If the law is warped to permit the enemy to unlawfully exploit human shields with no possibility of recourse, then it becomes irrelevant and essentially obsolete. Good faith application of the law of proportionality is the only way to balance these competing but equally important priorities.

12. No military commander in the world, and by extension no political official that authorizes the use of military force, should accept a legal premise that military forces must suffer the lethal force of the enemy while under a legal obligation not to respond using lawful force in self-defense. Because the LTTE enemy deliberately misused civilians to protect military targets, and ignored governmental efforts to establish safe areas for civilians while hindering their ability to seek safety, the only way to ensure respect for the overall fabric of the laws and customs of warfare is to recognize the right of the Sri Lankan government to respond using lawful (i.e. discriminate) weapons against identifiable military targets,

13. Nations should be alert to oppose any efforts to create or reinforce legal rules that would become tactically irrelevant on modem battlefields. Commenting on the impractical aspects of Additional Protocol I, the eminent Dutch jurist Bert Roling — who served on the bench of the Tokyo International Military Tribunal—observed that treaty provisions ought not "prohibit what will foreseeably occur" because the "laws of war are not intended to alter power relations, and if they do they will not be observed." 12 When one side in an armed conflict deliberately ignores its own legal duties, disconnects between aspirational legal rules and human experience are borne out in operational experience. This is a growing and troubling trend in modern operations, and the LTTE mastered the art in the final stages of its multi-generational conflict. States that act decisively to protect the lives and property of innocent citizens even when faced with human shields risk widespread but simplistic condemnation. Such lawful responses, even in the face of enemy war crimes, accord with their own legal obligations, yet inevitably feed an undercurrent of suspicion and politicization that could erode the very foundations of humanitarian law. This gap in turn leads to a cycle of cynicism and second-guessing that could weaken the commitment of some policy makers or military forces to actually follow the law. Phrased another way, if the laws and customs of war embed a presumption against the rights of individual or unit self-defense, then they will inevitably atrophy into disrepute and eventual disuse. The law of proportionality provides the intellectually consistent and time-tested framework for reconciling the competing priorities at hand when faced with human shields.

14. The warning of the U.S. Ambassador that strikes should not be undertaken against clearly identified military objectives when the LTTE used the presence of civilians in the so-called NFZ to launch military strikes is both naive and unfounded in modern international law. The law of armed conflict is integral to military professionalism, and the proportionality principle is at its core. Just as there should be no safe harbor for warfighters accused of clearly disproportionate war crimes, so to should the world remain united in its support for the appropriate range of discretion duly accorded to military commanders faced with the most difficult operational challenges who continue to apply the law in good faith to the best of their abilities. Policymakers and military practitioners should be absolutely clear that the law of proportionality itself provides an essential protection to noncombatant lives and property. rty. Permitting one side to completely preempt the military prerogatives of its opponent through the use of human shields would endanger proportionality by transforming it into the property of the adversary with the most compliant media and the most well-tuned propaganda machine. Unless the law of proportionality is understood to apply even in the face of human shields, then war fighters may well begin simply to discount the constraints of the laws and customs of war because they have been twisted to provide an undue and essentially insurmountable military advantage to one side based solely on its own unlawful actions. The laws and customs of war cannot countenance such undue military leverage to the side that willfully ignores the reciprocal obligation to protect innocent civilians insofar as possible.

15. Modern international law remains unsettled on the precise application of the proportionality principle in the face of human shields. All forms of human shields pose the challenge of artificial, contrived circumstances under which a party must decide between two unappealing prospects that would not be the only options but for the human shields. This artificiality in turn affects the hostilities in profound ways. Whereas human shields force a choice upon the party that seeks to pursue an otherwise lawful military goal, civilians that voluntarily seek to use their own protected status to provide an undue military advantage to one side actually impose the unpalatable choice onto an opposing party that seeks to accomplish its military objectives while continuing to abide by its obligations never to intentionally direct attacks against the civilian population. Voluntary human shields seek to assist the military efforts of one of the belligerent states, but absent evidence of coercion or state coordination, it is difficult to directly attribute their actions to the responsibility of the LTTE.

16. Voluntary human shields, even though they do not wear uniforms, carry guns openly, or follow a chain of command, seem to have chosen directly to participate in the war effort. Indeed, by placing themselves in the line of fire, voluntary human shields move onto the battlefield and even directly to the precise point where the effects of hostilities are anticipated. It is true that once they are on the battlefield they are passive rather than active, but they intend to affect the war by their passivity, and the passivity is often even more efficacious than those soldiers who are carrying weapons and are actively ready to fire them. To be a voluntary human shield, a person must intentionally seek to put herself or himself between a likely attack and a military target. This volitional conduct epitomizes the essence of the principle from Article 51(3) of Protocol I that civilians enjoy express protections "unless and for such time as they take a direct part in hostilities." Indeed, the temporal caveat in Protocol I that such civilians may be targeted "for such time as" they participate in hostilities seems particularly appropriate for the human shields that forsake the safety of their homes in order intentionally to endanger their safety in an effort to serve the military interests of a party to the conflict. Voluntary human shields have acted, though the very act of shielding a military target is defined by inactivity, i.e. simple presence suffices.

17. Voluntary human shields risk their own lives for a particular military or political objective. They are therefore intellectually identical to unlawful belligerents or other insurgents in the sense that they participate in hostilities but do not enjoy combatant immunity or benefit from the full range of rights that accrue to lawful combatants. If we think of proportionality as only calculating likely casualties or harms to civilians, then the likely deaths to voluntary human shields are not properly part of the proportionality calculation. Neither the principle of discrimination nor the principle of proportionality applies to persons no longer legally categorized as civilians. Though the attacking force must comply with its overall obligations under the laws and customs of war, the express right to protection derived from civilian status is forfeited by voluntary participation in the conflict. Voluntary human shields may reclaim their protections at any time by renouncing any role in the conflict and returning to their civilian homes to live and act as protected non-combatants.

18. At the same time, the killing of involuntary human shields cannot be treated merely as acceptable collateral damage in all circumstances. The US Joint Targeting Manual adopts this approach by recognizing that while an enemy cannot lawfully use civilians as human shields in an attempt to protect, conceal, or render military objects immune from military operations or force them to leave their homes or shelters to disrupt the movement of an adversary, the proportionality principle remains fully applicable in its conventional application (i.e., permitting attacks unless the collateral damage is clearly excessive in relation to the concrete and direct overall military advantage anticipated). There may be some sense in which it is indirect rather than direct targeting because the lives of protected civilians are foreseeably endangered, but that aspect of proportionality is no different with respect to human shields than it is for any other application of proportionality. Killing innocent civilians may often be an integral part of the destroying of the military target and the proportionality principle thus hinges on the anticipated extent of civilian casualties as well as the degree of military advantage forecast. Hence, it may appear that in cases of involuntary human shields, the principle of discrimination or distinction is primarily implicated because the attacker must endeavor by all feasible means to direct attacks at military objectives while employing all feasible measure to minimize or to eliminate civilian deaths.

19. Involuntary human shields should not be understood to have waived or forfeited their human right to life. Yet, we can still discount the human shields' lives during the, proportionality analysis because of the wrongful way, if it is demonstrably wrongful, that the enemy adversary has acted even as we keep the larger framework of humanitarian law intact. Hence, the attacking commander must do his best to avoid harming them, perhaps by changing the choice of weaponry or the time of attack, or by vigorous advance warning." In this context the actions of the LTTE had the effect of nullifying any advance warnings by government forces by preventing them from leaving. Indeed, but for the LTTE use of artillery fire from civilian areas, the civilians were perfectly safe based on the government declaration of the area as protected. But that does not mean that the rights of involuntary human shields trump every countervailing consideration. If the lives of combatants have inherent value, as I believe that they both under the human rights regime and the laws and customs of warfare, undue constraints on the ability of an adversary to respond to hostile actions could undermine respect for the fabric of jus in hello by creating a fatalistic sense of unavoidable death at the hands of an adversary that uses human shields to enhance the enemy war effort.

20. Emer de Vattel was absolutely correct in my view by maintaining that the law should not be fashioned or applied in order to favor oppressors, 14 which in turn logically requires the conclusion that the use of human shields should not be permitted to provide an automatic asymmetric advantage to one adversary. This is particularly appropriate because of the extensive listing of explicit precepts built into the law that the LTTE ignored in its actions in the safe zone. Vattel's logic applies perfectly to the LTTE attempts to exploit the presence of civilians in order to favour military operations because unduly tilting the application of proportionality to disfavor the lawful and limited responses of the government would be rewarding its own illegality. In other words, if the law exists to protect innocent civilians to the greatest degree possible given the realities of modern conflicts, it cannot be construed to reward the party that intentionally endangers civilians.