The United Nations has condemned a Tamil Tiger suicide attack on February 9 at a registration centre for civilians fleeing the fighting in northern Sri Lanka, which killed and wounded many civilians, including children. Human Rights Watch, Amnesty International and the ICRC have all deplored the deteriorating humanitarian situation, in light of reports of daily civilian casualties and thousands of displaced unable to access food, water or medical care.
Around 200,000 civilians are trapped behind the front lines in northern Sri Lanka where the Liberation Tigers of Tamil Eelam (LTTE) have endured military defeats over the last few months. The Tigers continue to be bombarded by government troops and are gradually losing control of territory. The military has forced the rebels into a small area of land in the north-east, and the government claims that just 600 Tiger rebels are still participating in the conflict.
There were reports last week that thousands of Tamil civilians tried to flee villages in the conflict zone. One resident of Vishwamadu village, Manoharan Mahendran, said that residents begged to be allowed to cross into government safe zones, but the rebels blocked their path and fired indiscriminately. Such reports are consistent with UN accusations that the Tigers have refused to allow some of its staff members to leave the war zone. Colombo says thousands are trying to cross to safety each day and accuses the rebels of using civilians as human shields. Such claims give rise to allegations of breaches of international humanitarian law.
There are also fears that government troops may soon switch to guerrilla fighting, which would expose civilians to more danger.
According to Sri Lankan military spokesman Brig. Udaya Nanayakkara, the suicide bombing of February 9 took place whilst soldiers were checking civilians entering the rescue centre for the internally displaced. A female Tamil Tiger rebel who was in the group blew herself up whilst she was being checked by female soldiers. 20 soldiers and eight civilians were killed in the bombing, which happened in Sundarapuram, in the north-eastern district of Mullathivu.
In the wake of the attack, the UN reiterated that civilians must be distinguished from combatants and protected from the fighting. It called on the LTTE to separate its forces from civilians under its control. The Sri Lankan government accused the LTTE of deliberately targeting fleeing civilians as a reprisal for their refusal to take up arms against the military.
The pro-rebel news website TamilNet has claimed that the civilian deaths were due to gunfire launched by the military but maintained that “claims are unable to be verified in the absence of independent monitors or credible sources.”
This latest incident comes days after the last working hospital in the war zone was shelled, killing at least nine people. Ponnampalam Memorial Hospital in the town of Puthukkudiyiruppu in the Mullathivu district – a former Tamil Tiger stronghold – had been subjected to several attacks before it was evacuated on February 4 after 16 hours of shelling, including a cluster bomb attack, according to UN spokesperson Gordon Weiss. Several patients were killed in the attack.
On February 10 around 400 of the sick and wounded who fled the hospital were being evacuated onto a boat by the Red Cross.
Under international humanitarian law, hospitals are protected from attack unless they are being used for military purposes. If a hospital represents a legitimate military target, but is attacked in a disproportionate manner, it would also constitute a war crime. The use of cluster bombs – by their nature indiscriminate weapons – in such circumstances could also constitute a war crime; their use would violate the fundamental customary law principle of discrimination between civilian and military targets. Certain types of cluster bomb are banned under the Convention on Cluster Munitions which was signed by 107 states – but not Sri Lanka – last December.
Human Rights Watch has condemned a Sri Lankan government statement that it is not responsible for the safety of civilians who remain in areas controlled by the Tamil Tigers, and will only accept responsibility to ensure the safety and protection of those civilians in Safety Zones. This position violates the international humanitarian law principle that requires that parties to a conflict make the distinction between civilians and combatants and they must take all feasible precautions during military operations to minimise the loss of civilian life.
Less than 10,000 people from the Wanni district have been sheltering in government-held areas since December. They are held in de facto detention centres or ‘welfare villages’ and are vulnerable to abuses by government forces. The government has allowed some displaced people to go outside the camps for education, livelihood and health purposes. However, these persons must leave a family member inside the camp as a safeguard against them escaping. Amnesty International has stated that this policy violates the international legal prohibition on the taking of hostages.
The US media has recently reported that former US Deputy Assistant Attorney General Bruce Fein, representing Tamils Against Genocide (TAG) has filed genocide charges against two Sri Lankan government officials with the US Attorney General Eric Holder and the Department of Justice under the US Genocide Accountability Act (GAA) of 2007. The GAA allows the prosecution of non-US nationals living in the country for genocide perpetrated outside the US.
Mr. Fein, who is a long-time supporter of Tamil causes, said there was enough evidence to prosecute both the Sri Lankan Defence Secretary Gotabaya Rajapaksa and army chief Lt Gen Sarath Fonseka. Rajapaksa is a US citizen and Fonseka is a US Green Card holder.
The applicable time frame is from December 6, 2005, when both assumed their government positions, to the present. The indictment chronicles more than 3,750 extrajudicial killings, approximately 30,000 Tamils suffering serious bodily injury, and more than 1.3 million internally displaced. Both defendants are charged under the doctrine of command responsibility. Mr Fein claims that the genocidal acts chronicled in the draft indictment surpass by far the genocidal evidence in the indictment against former Bosnian-Serb leader Radovan Karadzic.
TAG has said that its single goal is the genocide indictments and prosecutions of Fonseka and Rajapaksa in the United States, as opposed to a United Nations organized plebiscite on Tamil independence, or a prosecution before the International Criminal Court.
This latest action in the United States highlights the fact that so far there has been no accountability on either side for serious violations of international humanitarian law during the conflict. Under international law, the Sri Lankan government has an obligation to investigate and prosecute persons suspected of war crimes where there is sufficient admissible evidence.
The government has rejected international calls for a cease-fire, stating that the only way the conflict can come to an end is through the disarmament of the Tamil Tigers. The Tigers have said they will not lay down their arms until they have a “guarantee of living with freedom and dignity and sovereignty.”
The civil war began in the 1980s over for a separate state for Tamils on the basis that ethnic Tamils were treated as second class citizens after the British left the island in 1948. The Tamils accused the government of favouring members of Sinhalese Buddhist majority over the minority Hindu Tamils for government positions and places at universities.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
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