Unlawful attacks on civilians and civilian objects in the Wanni during the Govt-LTTE war

- transcurrents.com

Extracts from the report on Sri Lanka by the advisory panel appointed by the UN secretary -general Ban Ki moon

2. Shelling of hospitals and humanitarian objects

(a) Common Article 3 of the Geneva Conventions

206. The credible allegations of attacks on hospitals and humanitarian objects discussed above, in spite of their distinctive emblems and locations known by the Government, would give rise to a violation of the duty to "provide care for the sick and the wounded", as enunciated in Common Article 3.

They also point to murder in breach of Common Article 3, in that the targeting - whether direct or reckless - of known, populated hospital sites and humanitarian objects suggests that the perpetrators had the requisite knowledge of the probability that the attack would cause death.

(b) Requirement of special protection to medical and humanitarian personnel and objects

207. International humanitarian law requires parties to respect and protect all medical personnel, medical units, medical transports, humanitarian relief personnel and humanitarian relief objects (Rules 25, 28, 31 and 32, ICRC Study). Parties may not attack medical personnel and objectives displaying the distinctive emblem of the Geneva Conventions, which, in the case of Sri Lanka, was the Red Cross or the ICRC flag (Rule 30, ICRC Study). Credible allegations of the shelling of numerous hospitals and humanitarian objects with visible emblems or whose coordinates had been clearly communicated well in advance to the Government of Sri Lanka would point to a violation of this rule. Likewise, attacks on United Nations premises, such as in the first NFZ, where the United Nations flag was clearly hoisted, points to the same conclusion.

(c) Ban on attacks on civilians or civilian objects

208. The attacks on hospitals and humanitarian objects also constitute unlawful attack on civilian objects. The fact that certain hospitals (PTK, Putmuattalan and Mullivaikkal) may have had a wing to treat wounded LTTE cadres does not change the civilian nature of the object. Nonetheless, these hospitals were shelled repeatedly, raising the inference that they were targeted.

(d) Denial of humanitarian assistance

209. With respect to the obligation to "provide care for the sick and the wounded", in the final stages of the war, the Government increasingly placed restrictions on basic medical supplies, in particular surgical materials, entering the conflict zone through humanitarian convoys organized by the United Nations, or ICRC ships. It did not heed calls from the Regional District Health Secretary, in various communications for medical supplies needed for life-saving surgery. Despite its internationally recognized role as an independent, impartial provider of humanitarian assistance, the ICRC was seriously impeded in its ability to aid wounded civilians, through limitations on the medical supplies it was allowed to deliver on ships, as well as firing or shelling near ships sent to evacuate the wounded.

(b) Requirements of special protection to medical and humanitarians personnel and objects

210. In addition to the shelling of hospitals discussed under 2 above, credible allegations point to a violation of this provision insofar as several humanitarian relief objects experienced SLA shelling, in particular Convoy 11, the United Nations presence near Putumattalan, food distribution lines in the first NFZ and Ampalavanpokkanai, and shelling near the ICRC ships.

(c) Ban on starvation of the civilian population and denial of humanitarian relief

211. International humanitarian law prohibits starvation as a method of warfare. It also requires the parties to "allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control" (Rules 53 and 55, ICRC Study).

212. Credible allegations point to a violation of this provision insofar in that the Government (i) deliberated and publicly underestimated the number of civilians in the Vanni, in order to justify a reduced amount of food relief; (ii) impeded humanitarian convoys and ships from entering the conflict zone; and (iii) knowingly shelled in the vicinity of humanitarian actors. As a result, the civilian population was deprived of essential food and medicine, in particular in the second NFZ. The Government’s knowledge of these consequences is imputable from reports it received, notably from its AGA.

4. Human rights violations suffered by victims and survivors or the conflict

213. Because the Government’s actions in this category took place both during and after the armed conflict, the Panel addresses them under both international humanitarian law and international human rights law.

(a) Common Article 3 of the Geneva Conventions

214. With respect to the ban on "outrages upon personal dignity, in particular humiliating and degrading treatment", credible allegations point to a possible violation of this provision insofar as members of the SLA may have raped or committed sexual assault against women or girls in particular suspected LTTE in military custody or in detention facilities. The panel notes in particular the Chanel 4 photographs of what appear to be dead female cadre including video footage in which naked bodies of women are deliberately exposed accompanied by lurid comments by SLA soldiers raising a strong inference that rape or sexual assault may have occurred prior to execution. Credible allegations also point to degrading treatment of females in the screening process.

(b) Ban on enforced disappearances

215. International humanitarian law prohibits enforced disappearances. Credible allegations point to a violation of this provision. Findings indicate that SLA and paramilitary groups removed individuals at various points during the screening process and at points of surrender, who have not been seen or heard from since that time. This issue has also been raised during the LLRC hearings.

(c) Requirements of minimal level of treatment for those deprived of liberty

216. International humanitarian law requires parties to provide those detained with adequate food, water, clothing, shelter and medical attention (Rule 118, ICRC Study). Credible allegations points to a violation of these provisions during the armed conflict insofar as they indicate that the Government of Sri Lanka detained IDPs at facilities where minimal conditions were not met.

(d) Requirements regarding the dead and the missing

217. International humanitarian law requires parties to search for the dead, treat them with respect, record the location of graves and take all feasible measures to notify families of the missing of their fate (Rules 112, 113, 115, 116 and 117, ICRC Study).

218. Credible allegations point to a violation of these provisions insofar as they indicate that the Government has not undertaken all practicable efforts to search for dead civilians or combatants. Many of these people were buried in unmarked graves in the Vanni; some may have gone missing during the process of screening surrendering persons, as also alleged before the LLRC. It also kept significant numbers of former combatants and civilians interned in closed camps without notifying family members of their fate or setting up a timely tracing system for family reunification. The Panel further recalls the international humanitarian law rule that "the dead must be disposed of in a respectful manner, and their graves respected and properly maintained" (Rule 115, ICRC Study). It has seen video footage and photographs of persons who appear to be SLA soldiers treating bodies in a highly disrespectful manner, including the bodies of naked women.

(e) Rights to life and physical security and integrity of the person

219. International human rights law protects against arbitrary deprivation of the right to life and guarantees the right to physical security of the person (ICCPR, articles 6 and 9). Closely connected is the protection afforded against torture and other cruel, inhuman or degrading treatment or punishment (ICCPR article 7, and the Convention against Torture). These rights include protection against sexual and gender-based violence and abuse.

220. Credible allegations point to a violation of this provision insofar as they indicate preventable deaths in Menik Farm of individuals within the power and control of the Government, as a result of its failure to provided adequate food, water and health care in the initial phases of reception and detention. The Government did not guarantee the physical security of IDPs in camps insofar as it gave paramilitary Groups access to camps with a broad writ to continue the removal of persons. Practices such as the use of cruel or degrading treatment, rape or torture may have been used during interrogations by the CID or TID.

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