by Gomin Dayasri
(The following is the text of a paper headlined ‘Legal Issues to Establish Just War’ presented by Lawyer Gomin Dayasiri to the Lessons Learnt and Reconciliation Commission)
(1) The war was waged against an organisation (Liberation Tigers of Tamil Eelam) deemed to be a terrorist organisation that had bans imposed against them and recognised by the UN as utilising child soldiers. Its war was not a liberation struggle.
(2)The LTTE was terrorist outfit that spilt beyond territorial boundaries as evident from the assassination of former Indian Prime Minister Rajiv Gandhi. In the international realm there were money laundering rackets, terrorist funding, especially through networks such as the TRO, illegal shipping activity, narcotics trade that enabled the outfit to buy/bring arms to the country.
(3). It was a war Mahinda Rajapaksa government had to wage after all attempts at peace talks failed. At the first round of talks at Geneva, the LTTE was not interested in a peaceful solution but wanted to disable the breakaway Karuna group. At the second round, in Oslo they refused to talk at the table. When they realised at the third round in Geneva that the government was not going to open the A-9 highway, they walked away from talks. It was only after the government realised that there was no purpose in continuing peace talks and when it was clear that the CFA was being violated beyond the limits of tolerance, that had decided to wage war to rid the country of terrorism after the failure of all other options.
(4) Features of the war that makes it a just war were:
(a) It commenced after exhausting the peace process to its end after many futile attempts and after LTTE re- launched several attacks after violating on many occasions the terms in the CFA and when the terrorist started depriving civilians of water resources available to the local population that the government decided to undertake the war
(b) The fact the war was completed successfully within a short period ending terrorism and ushered a period of genuine and lasting peace. The people held captive were restored their democratic rights with political plurality and the right to exercise the franchise together with the right to dissent. The fact that a party opposed to government won a majority of the votes in the North and East is a matter of significance as it shows that political plurality was indeed established, democracy restored and a free and fair election duly held without delay.
(c) The fact that a stable and peaceful society emerged after the end of terrorism shows that it was a just war that benefited the people. A just war was the only possible avenue to a lasting peace and a society where law and order prevailed and there was end to the carnage of 30 years.
(d) The fact that during the military campaign (until the final stages) there were no complaints of harm to civilians (except of a few stray and vague complaints) and that the majority of the complaints were during the last few days of the war establishes that the military exercise was carried out with the intent of minimising civilian casualties and it was successful. You can never have zero casualties in a: war but this reveals that the principles of proportionality leading to excesses did not feature. If so, civilian casualties should have been a uniform complaint throughout the military campaign but that was not the cry or complaint. Even the complaints made by the US State Department covers a period that coincides with the period that the terrorist were holding civilians as human shields for their protection during the last days of the war when the theatre was in a restricted area.
(e) The fact that all times when the civilians desired to make the crossing to government areas and when ever they got the opportunity they did make the crossing and never desired to go back to the terrorist controlled areas.
(h) Rehabilitation of cadres returning child soldiers to parents, no prisoners of war except in cases where crimes have been committed- the characteristics of a just war.
(i) Principle of jus ad bellum-can be invoked since the military operation commenced with the intent to provide water to a multi ethnic community where water sources were deprived by the terrorists; which is needed for consumption and livelihood- so that it originated with the intent to restore lost basic human needs. Throughout the military campaign the purpose was to end brutal terrorism that terrorized the entire country and deprived a sector of people their democratic fundamental and human rights. The fact of success within a limited time frame shows it was an achievable goal realistically undertaken that contribute to eventual greater good theory-a principle of a just war. This was indeed achieved.
The accusation of excesses came in only during the last phase of the war when there was near hand- to- hand fighting in a small theatre where the terrorist were hiding in a zone meant for civilians exclusively and civilians were held in captivity as a human shield. If the war had been not completed within a short time frame there would have been serious international ramifications that would have prevented the end to the war. If Millebands and Kouchners were let loose to sun bathe on the beaches in Nandikadal we would not have been enjoying the luxury of peace today!
(j) Principle of jus in bello has been satisfied because the targets taken were of a military nature. It was proved beyond doubt the Senencholai (that was the celebrated human rights case) showed beyond doubt that it was military training camp where children were taken against their will. There were no complaints during the Eastern campaign or till the last days of the Wanni campaign that there were civilian targets zeroed. In that narrow stretch of land between the lagoon and the sea where the terrorist established every inch of the land termed a ‘no fire zone’ as a cover for civilians as a protective shield for themselves. In fact, it was a live military camp where the terrorist leadership quartered holding the civilians against their will, as their final line of defence. That whole stretch of land was a military target required to complete the war against terrorism as it was the final headquarters of those mastering the terrorist war. Two factors stand out-
(i) With the backbone of the terrorist leadership being decimated, terrorism came to an abrupt end. This would not have been possible to achieve unless terrorist military installations was over run. You cannot take the prime military installation without civilian casualties when they kept civilians as the last defence line till the attempted final break out by the leadership took place with their family members.
(ii) The fact that hordes of civilians crossed the line during the last 48 hours when the LTTE began to loosen their iron grip over them displayed that they lived in captivity searching for the first opportunity to escape. If the Forces did not carry out a softening up operations to flush terrorists, those civilians would not have obtained escape avenues. It was an imperative military exercise. All attacks were made within limits of token collateral damage to civilians. The military objectivity of ending terrorism and the achievement of greater good within a limited time frame was successfully achieved
It fits perfectly with additional protocol No. 1 of 1977 on the principle of an advantage achieved in defeating terrorism, in terms of a just war in the absence of excessive collateral damage. Democratic and human rights were restored over territory held over by terrorists. This battle brought to a conclusion 30 years of terrorism. The extent of collateral damage is minimal compared to Hiroshima and Nagasaki, which ended the war against Japan?
There was minimising of collateral damage to the possible minimal by resorting to No Fire Zones, Precision bombing, use age of small arms, intelligence obtained from surveillance drones on civilian presence as the methods to lower human casualties. On the contrary, drones are used as attack instruments in Pakistan presently, while in Sri Lanka it hovered over the battlefield relaying pictures of civilian movement to ground commanders to save innocent lives.
Humanitarian aspects of the military undertaking have already been presented by other witness and therefore will not dwell.
There are seven principles required to establish a just war coming down from the time of Hugo Grotius, eminent jurist
(1) there is a just cause-[to end terrorism and restore democracy]
(2) there is right authority-[undertaken by a sovereign state to regain land/people captured by terrorists and held under their command depriving them of the democratic rights enjoyed by the rest of the country]
(3) right intention-[to attack the terrorists while providing humanitarian assistance to the people under the control of the terrorist and to safeguard civilians from collateral damage]
(4) resort to force being proportionate to the object- [the safeguards taken to protect civilians, the attacks directed at military targets]
(5). last resort-[after efforts at peace talks collapsed and at the stage the terrorists deprived people of facilities to water to maintain life and agriculture that the war was initiated when the terrorists were disregarding the CFA comprehensively]
(6) peace is the goal-[the results show permanent peace was restored and democracy regained]
(7) hope-of success-[success achieved comprehensively within a short time frame for the greater good. in a planned undertaking with minimal damage to human life].
What was at stake was the self - defenses of a sovereign state where the sovereignty is vested in the People by the Constitution which was under attack by a terrorist organisation which does not adhere to the principles of democracy or the norms of human rights. Should that have been a state in perpetuity or regained by an armed assault after efforts of peaceful undertakings were rejected by the terrorists? The government had no other option.
The war effort was criticised by only a handful of western nations ironically engaged in wars fought without any considerations of humanitarian efforts (unlike the campaign in Sri Lanka where humanitarian consideration were a prime factor) that have been universally condemned as wrongful interventions and a few NGOs carrying out their own agenda on human rights. Most countries after the war lauded Sri Lanka for eliminating terrorism comprehensively and are learning lessons from our campaign