Association of Humanitarian Lawyers


MEMORANDUM

ON THE LEGAL STATUS OF THE WAR IN SRI LANKA
AND THE LIBERATION TIGERS OF TAMIL EELAM


Karen Parker
Attorney at Law
154 Fifth Avenue
San Francisco California 94118
(415) 668-2752
voice and telefax


CONTENTS

SUMMARY OF ARGUMENT

THERE IS A WAR IN SRI LANKA

A. What is War
B. Terrorism
C. War in Sri Lanka

LTTE ENTITLED TO COMBATANT STATUS

THE SRI LANKA-TAMIL WAR IS A WAR OF
NATIONAL LIBERATION IN DEFENSE OF THE
PRINCIPLE OF SELF-DETERMINATION

HUMANITARIAN LAW RELATING TO THE CONDUCT OF WAR

HUMANITARIAN LAW RELATING TO VICTIMS OF THE WAR

BREACHES OF THE LAWS AND CUSTOMS OF WAR
IN THE SRI LANKA -TAMIL WAR

SUPPORT FOR LTTE MAY NOT BE CRIMINALIZED

CONCERNS FOR THE UNITED STATES


SUMMARY OF ARGUMENT

This Memorandum addresses why the Liberation Tigers of Tamil Eelam may not be included as a terrorist organization under the terms of P.L. 104-132. Rather, the Liberation Tigers of Tamil Eelam are a combat force in a war -- the Sri Lanka - Tamil War. To include the Liberation Tigers of Tamil Eelam in a list of terrorist organizations has no basis in law and fact.

This Memorandum is not meant to be an exhaustive account of the Sri Lanka - Tamil War. The facts chosen are meant to be illustrative of the fact that there is a war and that in the course of the war there have been violations of the rules of war by both sides. For each example given many others could be made.

There is armed conflict (war) in Sri Lanka between the armed forces of the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). The conflict is governed by humanitarian law: the Hague Conventions, the Geneva Conventions (including all provisions of the Protocols Additional considered customary law) and all treaty-based and customary laws of armed conflict. A fundamental rule of humanitarian law is that combatants in a war are entitled to combatant status. The LTTE meet all factual and legal tests for combatant status under humanitarian law rules. Laws relating to terrorism do not apply to combatants in wars or to acts carried out in the course of war. Because the LTTE has combatant status, the LTTE cannot be considered a terrorist organization nor can its acts in the course of war be treated as terrorist. Therefore it is legally incorrect to include the LTTE in a list of terrorist organizations under the terms of P.L. 104-132.

While the war in Sri Lanka could be characterized as a civil war requiring neutrality from third party states such as the United States, this author is convinced that the Tamil people meet all criteria for the right to self-determination. Accordingly, the war in Sri Lanka is a war of national liberation in defense of the right to self-determination. Under international law rules applicable to wars of national liberation in defense of the right to self-determination the United States is legally required to side with the Tamil people and the LTTE. Regardless of whether the war is characterized a civil war or war of national liberation the LTTE still have combatant status and cannot be considered a terrorist organization under P.L. 104-132.

The laws and customs of war do not exonerate all acts undertaken in wartime. There are numerous violations of the laws and customs of war taking place in the Sri Lanka - Tamil war both by the government of Sri Lanka and the LTTE. The existence of violations of the laws and customs of war on either side do not reduce the parties to the conflict to terrorists and the war itself to terrorism: the armed forces of both the government of Sri Lanka and the LTTE maintain their combatant status. Individual violators, however, could charged with breaches of the laws and customs of war.


THERE IS A WAR IN SRI LANKA

A. What is War

Humanitarian law -- also referred to as the laws and customs of war, the law of armed conflict or jus in bello -- applies when there is armed conflict or war. One of the threshold questions addressed by the law of armed conflict is whether or not a particular situation is a war. Under the currently applicable laws and customs of war, war is action carried out by military forces utilizing the methods and materiel of war to defeat by military means the military forces of the opponent or enemy. Simply put, if it looks like a war it probably is a war.

Military action can involve conventional warfare or guerrilla or other form of warfare. The laws and customs of war do not prohibit any particular form of military action. All modern wars have been fought with a variety of military tactics.

Because the purpose of war is to defeat the enemy military forces, the weaponry of war may vary from situation to situation. Contemporary wars have seen the use of spears and poison blow guns as well as napalm bombs and bullets containing depleted uranium.

It is not necessary for the parties to a conflict to formally declare war for there to be a war: a war exists and the laws and customs of war are applicable when objectively armed conflict is taking place. For example, the United States carried out lengthy military actions in Vietnam without ever having declared war. Even so, the laws and customs of war were applicable to both sides in that conflict.1

Many countries at war either refrain from a formal declaration of war or try to deny a war is even taking place at all to try to avoid application of humanitarian law to their conflicts.2 One method governments use to attempt to avoid evaluation of their military actions under humanitarian law rules is to characterize the conflict as "terrorism" and "counter-terrorism" rather than war. Governments mis-characterize armed conflict for a variety of reasons, all present in the Sri Lanka - Tamil war: (1) the government's own armed forces have violated the rules of war and the government wants to avoid international censure; (2) the opposition forces have destroyed military targets that are insured and the government wishes the insured to receive insurance indemnification for the damage;3 (3) the government needs foreign aid (war is expensive) and many foreign donors such as the United States restrict foreign aid during war or only allow funds to combat "terrorism". Regardless of the political or economic motives for evoking "terrorism" when a war is taking place, humanitarian law automatically applies and the "terrorism" label is incorrect.

B. Terrorism

There is no universally accepted international definition of terrorism. Even so, it is easy to distinguish terrorism from war. For example, a group involved in terrorism generally is quite small, does not have any semblance of military command, and does not use the typical weapons or military tactics of war. The groups often function secretly -- in fact the clandestine nature of these groups makes them so hard to control. Most of these groups engage exclusively in random attacks on civilians or on civilian structures using bombs or small firearms or by kidnapping people for ransom.4 Members of these groups are not entitled to combatant status because their actions and the response by law enforcement actions of governments are not sufficient to qualify as a war.

While there may be a stated goal, groups involved in activities usually labeled "terrorist" seek to achieve that goal by intimidating the opposition into agreement rather than through military achievement. In part this may be because military victory is impossible given the group's small size and limited military training. On the other hand, lack of military activity may reflect on the typical goals of these groups: while some try to overturn governments or seize political power or governance, many groups seek to protect their "system" of monetary gain (usually illegal): the "drug" business, extortion rings and the like. Military action against such groups makes no sense at all -- these groups have no military bases, zones of territorial control, or the like. While occasionally, some groups do have "camps" and carry out "military training", they are not engaged in combat in any sense of the meaning of combat. Wishful thinking, week-end "war games" or playing at war and future plans are not sufficient to qualify as combat. Armed attacks on civilians rather than concerted military actions against the opponent's armed forces are likewise not combat. If on the other hand large-scale, mutually fought military actions over a wide territory are carried out against a so-called "terrorist" group it is far more than likely that the group is not "terrorist" at all but rather a military force in a war. Under these circumstances the "terrorist" is really a combatant.


C. War in Sri Lanka

Applying the criteria for armed conflict to Sri Lanka, it is patently obvious that there is a war in Sri Lanka and that it is between the forces of the government of Sri Lanka and the LTTE. The government military forces utilize the methods and materiel of war to carry out military actions to defeat by military means the military forces of its enemy the LTTE. On its part, the LTTE carries out military actions against the military forces and military targets of the government of Sri Lanka. There is nothing random or sporadic about this war, nor is there anything clandestine about the LTTE -- the LTTE is very public. The LTTE does not play week-end war games but fights militarily on military battlefields day in and day out.

The war has existed for at least thirteen years or since the period immediately following the massacre of Tamils in Colombo in 1983.5 The existence of armed conflict was recognized by Sri Lankan government officials in this early period. For example, in 1986 the Finance Minister questioned how elections urged by Prime Minister Bandaranaike could take place when the country was "engulfed in a civil war."6 The international community also recognized the obvious: in 1987, the United Nations Commission on Human Rights passed a resolution calling on the parties to the conflict "to respect fully the universally accepted rules of humanitarian law"7 which, of course, only apply in wartime. The United States State Department has also characterized the situation in Sri Lanka as war.8

The early years of the war were characterized by Tamil military control of much of the Tamil areas, the emergence of Vellupillai Prabhakaran as the leader of the LTTE, and the gradual supremacy of the LTTE among other Tamil groups in the armed conflict.9 A most important event of the early years was the failure of the 1985 Thimpu Negotiations. These talks, arranged by India, were to put in place an agreed cease fire and a program for a political rather than military solution to the Tamil national question. The talks took place in Thimpu, Bhutan from 8 July to 17 August 1985, breaking off abruptly when the Tamil delegation walked out10 in protest of the continued military actions against Tamil civilians, especially Sri Lankan army attacks on Vavuniya and other villages in the north.11

In 1987 India became a party in the Sri Lanka-Tamil War several months after the July 1987 signing of the Indo-Sri Lanka Agreement to Establish Peace and Normalcy in Sri Lanka (Indo-Sri Lanka Accord or the Accord). The Accord was to "resolv[e] the ethnic problem of Sri Lanka",12 to enable India to protect itself from "foreign military and intelligence personnel"13 and to prevent Trincomalee harbor or other Sri Lankan ports from being used by foreign powers for military purposes.14 Shortly after signing the Accord, India sent the Indian Peace Keeping Force (IPKF) to Tamil areas. Although under the terms of the Accord the purpose of the Indian military presence was to protect the Tamil people and to carry out a surrender of arms by the Tamil military groups, the Indian forces began fighting the LTTE in October 1987. Between October 1987 and the final withdrawal of Indian forces in 1990 India's military incursion in Sri Lanka produced thousands of refugees of the war and civilian casualties.15

At the height of the IPKF - LTTE war, Indian troops were said to number nearly 100,000.16 Major General Harkirat Singh, the divisional commander of Indian forces, explaining why the Indian Forces were unable to either win or capture the LTTE leadership, reported that the LTTE fought against their tanks at close range with Chinese rocket-propelled grenade launchers.17 General Singh also reported: "They even attacked tanks with burning jerry cans full of petrol." 18

Since the withdrawal of Indian forces, both the Sri Lankan Army and Navy have been almost continually engaged in military operations against the LTTE.19 The government forces use tanks, airplanes, armoured vehicles, military weapons, gun boats and other military materiel. Major military campaigns are given code names. For instance, three recent large-scale military operations against Jaffna in the north were code-named Leap Forward, Riviresa (Sunshine) I and Riviresa II. In the same period of time, the LTTE has been involved with almost continual army and navy operations against the government's forces.

In the past several years, both sides have had some military victories. The Riviresa campaign in the Fall of 1995 by the Sri Lankan army pushed into Jaffna and the LTTE retreated to other areas under their control. Most of the civilian population also fled, and it is only recently that some have begun to return. Even so, at time of this writing, more than 300,000 Tamils from the Jaffna area are still displaced and the war is still raging.
On the LTTE side, in July 1996 the LTTE successfully overran and seized the entire Mullaitivu Army Camp, killing about 1200 Sri Lankan troops.20 The LTTE are thought to have sustained about 250 casualties, including a large number of women combat troops.21 The LTTE were able to capture the entire arsenal at the camp. This victory was followed by an ambush of a Sri Lankan army unit at Thenmaratchi (July 28, 1996) in which the LTTE also captured many arms and ammunition.

The LTTE also has naval troops, and has been able to carry out successful operations against the Sri Lankan navy. For example, in April and October 1996, the LTTE "Sea Tigers" sunk five vessels of the Sri Lankan navy in Trincomalee. The "Sea Tigers" have also sunk government vessels in Jaffna, and have been able to carry out periodic blockades.

Since the beginning of the war, the military advantage of each side has ebbed and flowed. What is apparent is that there is a war and that neither side has won. At time of writing (December 1996) there appears to be a another of a series of military standoffs.


LTTE ENTITLED TO COMBATANT STATUS

A fundamental principle of humanitarian law is that combatants in a war are entitled to combatant status.22 While this principle has been one of customary international law for centuries, it also find expressions in treaty-based humanitarian law. For example, Article One of the Hague Regulations grants the rights of war to members of armies.23 Members of militia and volunteer corps are also entitled to the rights of war if they meet certain conditions: they must be under responsible command, wear some visible emblem to distinguish them form civilians, carry arms opens and conduct operations in conformity with the rules of war.24 Even civilians are entitled to engage in combat when they spontaneously take up arms on the approach of the enemy.25 Because there is a war in Sri Lanka between the government forces and the LTTE, the LTTE have combatant status and the right to engage in combat. This status is inconsistent with a label of "terrorist" -- a terrorist does not have combatant status or the right to engage in combat.


THE SRI LANKA-TAMIL WAR IS A WAR OF NATIONAL LIBERATION IN DEFENSE OF THE PRINCIPLE OF SELF-DETERMINATION26

Modern humanitarian law applies to all types of war: international wars, civil wars and wars of national liberation.27 Each is governed by different provisions in humanitarian law, although there are basic principles applicable to all armed conflicts.28

A war is an international war when military action or hostilities take place between two or more separate States. Typically, the military forces of one country engage in military actions against another country by invading another country, but international rules can also apply when a country defends another country from military action from a third state. In all circumstances, the treaty-based and customary international law relating to international war applies to these conflicts. In international wars, the international community must be neutral if the war is equally the fault of the parties. If one party is clearly the aggressor, the international community must condemn the aggression.

A war is a civil war when there is armed conflict taking place in one State between government armed forces and opposition armed forces or groups who have identifiable and responsible military commanders, who control enough territory to carry out a significant level of armed conflict, who distinguish themselves from the civilian population by means of distinct uniforms or other readily identifiable physical features and who have the means to comply with humanitarian law obligations relating to civil wars.29 Neither police actions against civilian demonstrators nor isolated attacks by armed persons against civilian or government targets qualify as armed conflict. In civil wars, the international community must be neutral, as a civil war is an inherently internal affair.30 The Sri Lanka - Tamil war could be viewed as a civil war, in which case all humanitarian law relating to civil wars would apply. However, for reasons set out below, this author is convinced that the Sri Lanka - Tamil war is a war of national liberation in defense of the principle of self-determination.

A war is a war of national liberation when a group having a claim to self-determination carries out military actions against the occupying state, which can be a colonial or alien power or a racist regime.31 Self-determination is the collective right of a people to freely determine their own political status and to pursue economic, social and cultural development.32 People claiming self-determination must show a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance. 33

In wars of national liberation in the exercise of the right to self-determination or against racist regimes, the international community is required to side with the people with the right to self-determination or fighting against racist regimes. This is because of the peremptory (jus cogens)34 nature of the principle of self-determination35 and the international prohibition against racism. Because the right to self-determination is jus cogens, the duty of the international community to uphold it is an obligation erga omnes.36 Ian Brownlie reinforces the erga omnes obligation to observe the principle of self-determination in his opinion that armed defenders of self-determination have a special combatant status.37

The Tamil claim to self-determination is one of the strongest in the contemporary international scene. The three main elements of a claim to self-determination -- historic self-governance in an identifiable territory, a distinct culture and a national will and capacity to govern -- are all present in the Tamil case.

The Tamil people have a centuries-old tradition of independence on the island of Ceylon, broken only by colonial powers. Early mention of a distinct Tamil kingdom and culture exists in the 6th century B.C. in the great Indian epics Mahabharata and Ramayana.38 A series of Tamil kings founded the ancient capital Anuradhapura and ruled until 101 B.C. when the Tamil Ellaran was defeated by a Sinhalese prince. This capital was retaken by the Tamils and other Indian invaders in the ninth century.39 By 1214 A.D. however, the Tamils held power in the kingdom of Jaffna,40 extending into current Tamil lands in the North and East. A 1789 map of the area by the cartographer Du Peron clearly indicates the territorial divisions of the two kingdoms.

The colonial period began in the early sixteenth century when the Portuguese captured the Sinhalese kingdom in the south of Ceylon. The Tamil kingdom remained free until 1621, more than 100 years later when the Portuguese captured the Tamil king Sankili.41 The Portuguese were defeated by the Dutch in 1658, and the Dutch soon began to import Tamils from south India as slaves and textile workers. 42 The British replaced the Dutch in 1796, who by 1833 governed both Tamil and Sinhala kingdoms under unitary colonial rule.

The first British colonial secretary, Sir Hugo Cleghorn, recognized not only that the Tamil and Sinhalese kingdoms were politically separate, he also attested to their profound cultural, linguistic and religious differences. In his now-famous Minute he wrote:

Two different nations, from the very ancient period, have divided between them the possession of the island: the Sinhalese inhabiting the interior in its Southern and Western parts from the river Wallouve to that of Chillaw, and the Malabars [Tamils] who posses the Northern and Eastern Districts. These two nations differ entirely in their religions, language and manners.

Cleghorn and other subsequent British administrators were acutely aware that the Tamil people are predominately Hindu and the Sinhala people predominately Buddhist.43 It is self-evident that Tamil culture, based on Hinduism, would be dramatically different from Sinhala culture, based on Buddhism. The Tamil language is also significantly different from the Sinhala language, although they are both derived from ancient Indian languages. 44

The third element of self-determination -- national will and capacity to govern -- is also exceptionally strong in the Tamil case. Not only are the LTTE themselves evidence of a willingness to defend the right to self-determination with the use of force but the vast majority of Tamil civilians, whether in Sri Lanka or abroad, also show an exceptionally strong national will that has endured for the many long years of the war and indeed throughout the colonial period and post colonial period. Even those relatively few Tamils who do not strongly support the LTTE do not deny their insistence on some form of self-governance, whether in association with the Sinhalese or as a separate nation.

The immediate post-colonial period saw the rise of the highly-regarded Tamil politicians such as G.G. Ponnambalam, founder of the Ceylon Tamil Congress (1944) and S.J.V. Chelvanayagam, founder of the Tamil Federal Party (1947).45 Chelvanayagam was able to secure agreements with two prime ministers46 to address the growing Tamil grievances47 in the early post-colonial period, but these pacts were completely violated by the Sinhala governments. The Tamil United Front was formed by the three leading Tamil politicians -- Ponnambalam, Chelvanayagam and Thondaman -- and Tamil youth and student organizations. Running on a separatist plank, Chelvanayagam won a huge majority in a 1975 election. As cited above, the historic Pannakam meeting in May 1976 resulted in the Vaddukoddai Resolution calling for a separate Tamil state.48 In the 1977 general elections, the TULF ran on a platform of Tamil "sovereignty in its homeland on the basis of self-determination"49 and won 18 out of the available 19 seats. The LTTE was formed from a TULF youth group, and took its symbol from the tiger symbol of the historic Tamil kingdom.

The large number of Tamil organizations in Sri Lanka and abroad speaks to this national Tamil will. Each year of the war has seen more and more organization among the Tamil people in Sri Lanka and in the diaspora. The Tamil question is debated and urged in countless community forums and in international conferences, many of which are organized by the Tamils themselves. There are Tamil politicians from a variety of political parties, all of whom attest to a goal of at least significant devolution of power in Sri Lanka to afford the Tamil people full expression of their cultural aspirations as a people.50 The leading Tamil religious leaders also support Tamil sovereignty. For example, in an impassioned speech at a major peace conference in Australia, The Rev. Dr. S.J. Emmanuel, Vicar General of the Diocese of Jaffna stated:

I am standing here as a man of God in service to a suffering mankind. I have hope in the goodness of
God and men. From amidst the deafening sounds of thousands of bombs falling on our soil and
consuming sacred lives, I cry out with Moses of old, "Let my people go from this slavery to freedom."51

Even prominent Sinhalese leaders attest to the strength of the Tamil will for self-governance. For example, Mr. Adrian Wijemanne writes:

In Sri Lanka that stage is set for a long-drawn-out guerrilla war, the total impoverishment of both
nations, the demise of civil government among the Sinhala people and the eventual establishment of
the State of Eelam. The best efforts of the Sinhala state can only postpone this sequence of events --
they cannot avert the final outcome. 52

About the capacity to self-govern there can be no doubt. The Tamil people have a long political history, and there are a variety of Tamil political parties with great experience and highly developed platforms and programs. Many leading Tamils have had high offices in former Sinhalese governments, and while they are now mainly in exile, they are able and ready to serve in a Tamil government. The LTTE has maintained a civilian authority in the areas under their control since the beginning of the war

The Tamil people also have a claim to self-determination based on the racism and persistent violations of their human rights carried out by the succession of Sinhala-dominated governments since the end of the colonial period.


HUMANITARIAN LAW RELATING TO THE CONDUCT OF WAR

Before evaluating whether either the government of Sri Lanka or the LTTE violates the rules of war in prosecuting this war, there must be some understanding of what the rules of war are. Modern humanitarian law has two branches: (1) the law governing the conduct of combat and (2) the law governing treatment of persons affected by war.

In the modern age, the law governing the conduct of combat is frequently referred to as " The Hague law" because the most important multilateral treaties relating to combat were drafted at conferences held in The Hague, the Netherlands. Humanitarian law governing treatment of persons affected by war is now referred to as "Geneva law" because of the important multilateral treaties drafted at similar conferences held in Geneva, Switzerland.53 Humanitarian law is both customary and treaty-based.54

Modern treaty-based humanitarian law dates from the first Geneva Convention, promulgated in 1864.55 The Hague Conventions of 189956 and 1907,57 multilateral treaties resulting from the peace conferences held in the Hague in 1899 and 1907 developed the law of combat.58 Subsequent treaties and declarations have focussed on prohibitions against certain weapons (i.e. napalm, chemical and biological weapons) and against modification of the environment for hostile purposes:59 there have been no major revisions of the law of combat since the Hague Conventions of 1899 and 1907.60 Customary humanitarian law (including customary humanitarian law discerned by expert opinion) therefore is especially important.

The right of combatants to combatant status and to engage in combat is a fundamental principle of the law of military operations or The Hague body of humanitarian law. As noted above, this customary rule was codified in Article 1 of the Hague Regulations of 1907.

While clearly an important provision of The Hague law for the combatants, The Hague law has one more important general principle: any military operation necessary to defeat the enemy forces is legal unless specifically prohibited or limited.61 Prohibitions or limitations may be found in any source of international law: treaties, customary law, principles of law of civilized nations, decisions of tribunals, expert opinion, the laws of humanity, and the dictates of the public conscience.62 Prohibitions may also be included in agreements between the parties to a conflict. Because of the extensive prohibitions and limitations found in these sources of humanitarian law, this principle of humanitarian law is now frequently stated by its corollary rule: the means of warfare are not unlimited. This formula first appeared in the Hague Convention (IV) of 1907 (Regulations, Article XXII): "The right of belligerents to adopt means of injuring the enemy is not unlimited."

As of present time, The Hague law limits or forbids certain combat activities: killing a combatant who is sick, wounded or has surrendered; military operations against towns, villages, or buildings which are undefended or against the civilian population or civilian habitations (including foodstuffs and drinking water); and pillage. Military operations against combatants may also be prohibited, for instance if there is a strong likelihood that an undue number of civilians will be killed or injured in proportion to either the enemy armed forces or the military objective.

The principle of "necessity" presents one of the major restriction on military operations: a military operation must be necessary to defeat the enemy.63 What constitutes military necessity is usually in constant dispute in any war, with most combatant forces justifying any and all operations as necessary. However, most sources require military operations objectively to demonstrate a definite military advantage. Military operations may not be carried out if the military gain is too small in proportion to the loss of life or property necessary to achieve it.64 Military operations also may not be carried out if objectively the enemy is already defeated or if the purposes of the war are already achieved.65

In spite of the extensive prohibitions and limitations to warfare in current customs and treaties, many military operations remain legal even though for political or other purposes they may be condemned. One common military goal is to kill the military or political leaders of the opponent force. While there is growing concern about political assassination, most armed forces consider it legal to kill any political or military leader of the opposition.66

Legal military targets include all movable property of the opposing forces, and all transport vehicles used to supply the opposition forces. These can include trains, buses, cars, even if not the actual property of the enemy. Military bases, offices, quartels and camps are legal targets of military operations. Lines and means of communication and transport (railroads, bridges, roads, broadcast facilities, telephone and telegraph facilities having fundamental military importance) are also legal targets. Fuel sources (depots, refineries, and the like) as well as munitions factories or other facilities producing or storing war materiel (arms, uniforms, military food supplies) are all legal military targets. Electric works or other energy supply installations (with the exception of nuclear ones) are also legal targets.

At present time, there are no prohibitions against attacking structures related to the enemy's financial capacity: most wars are costly, so targeting the enemy's monetary resources certainly meets the necessity test. Combatants typically try to attack payroll dispensaries, gold or bullion/specie storage facilities, mints and the like.

The Hague law also establishes rules for administration over seized enemy territory and provides for compensation for violations. It provides rules for proper use of uniforms and insignia, including insignia (red cross, red crescent) of medical relief providers and equipment.


HUMANITARIAN LAW RELATING TO VICTIMS OF THE WAR

Since the first Geneva Convention there has been substantial development of treaty law protecting victims of armed conflict illustrated by the promulgation of the Geneva Convention of 1906,67 Geneva Convention (Wounded and Sick) of 192968 and Geneva Convention (Prisoners of War) of 1929,69 the Geneva Conventions I - IV of 194970 and Protocols Additional I and II of 1977.71

The law of protections for persons affected by war (Geneva law) also has one overriding principle: combatants hors de combat and civilians not directly engaged in armed combat may not be the target of military operations and must be treated humanely.72 This body of humanitarian law address the right of combatants to medical care if sick or wounded; the right of medical personnel to treat sick or wounded combatants even if the combatants belong to the enemy forces; the obligation to protect medical personnel, equipment and facilities from military attacks; rules for the treatment of prisoners of war (POWs); and protections of the civilian population from the hazards of war and their right to medical care, subsistence needs and services. Geneva law outlaws torture, slavery, wilful killing (killing outside of legal combat) and other inhumane acts at all times.

In present time, the two bodies of humanitarian law are merging: both Protocols Additional contain provisions historically considered The Hague law.73 For example, Protocol Additional I has a section called "methods and means of warfare"74 which restates the basic rule of The Hague law,75 and prohibits certain weapons and means of warfare.76 Geneva law originally did not address civilian objects other than hospitals. The Protocols both address a wide range of civilian objects that may not be subjected to military action. For example Protocol Additional I expands upon the provision of the Hague Convention of 1907 prohibiting attacks on undefended towns, villages or civilian buildings.77 The Protocol also provides for duties and protections for civil defense78 and establishes new regulations concerning aircraft signals and other electronic identification.79 Both Protocols severely restrict attacks on public works of installations containing dangerous forces: dams, dikes, nuclear installations.80

This modern blending of the two branches of humanitarian law is in part due to the fact that there has been no effort to revise and up-date the Hague Conventions themselves. There has also been substantial development of human rights law which has had an impact on humanitarian law.


BREACHES OF THE LAWS AND CUSTOMS OF WAR IN THE SRI LANKA -TAMIL WAR

In all wars, the international community has a right to investigate compliance with humanitarian law, in particular with the Geneva Conventions, the Hague Conventions and all customary humanitarian law. The Sri Lanka-Tamil war, like all wars, is one with many violations of the laws and customs of war, especially by the Sri Lanka military and government forces but also by the LTTE.

A major and repeated violation of the Sri Lanka forces is that they carry out military attacks against the civilian population: in fact, the Sri Lankan military forces carry out far more military operations against the civilian population than against the LTTE. Some of these have received widespread international condemnation. For example, Pope John Paul II spoke out following the government bombing on a church and school at Navaly in July 1995 as part of the military campaign "Operation Leap Forward."81 During the same period a bomb killed 65 civilian in a church at Manipay and its local hospital was shelled. Following the LTTE military victory at Mullaitivu Army Camp in July 1996, the Sri Lankan security forces carried out widely-condemned reprisal attacks against Tamil civilians in 6 villages in the area. The ICRC, Medecins San Frontieres, Oxfam and the Offices of the United Nations High Commissioner for Refugees left their missions in Kilinochchi because of shelling from the Sri Lankan forces.

Protection of prisoners of war is a fundamental obligation of the rules and customs of war. The Sri Lankan government appears to have no normalized treatment of LTTE prisoners of war. In the nearly 13 years of sustained armed conflict in Sri Lanka, the government of Sri Lanka still has no designated facilities for POWs. There is presently no regular international monitoring of the POW situation as required by the Geneva Conventions. The Sri Lankan government has allowed the International Committee of the Red Cross (ICRC) to carry out some prison visits in a limited way -- for example, in 1994 the ICRC had access to 2469 detainees.82

Under Geneva Convention rules, sick and wounded combatants and civilians have an absolute right to care.83 In spite of this, the Sri Lankan government has carried out blockades of food and medicine for the Tamil areas during most of the war.84 International NGOs have repeatedly condemned this practice at the annual sessions of the United Nations Commission on Human Rights. For example, in 1992, 24 non-governmental organizations condemned the blockade that had been in force since 1990.85 In June, 1996, the Vicar General of Jaffna appealed to the government to lift the economic blockade to the North.86

The violations of human rights that the international community has acknowledged occur in Sri Lanka (such as torture,87 violation of the right to life and summary execution,88 disappearances,89 and extreme procedural anomalies in the justice system) can also be characterized as violations of the rules of war or violations of humanitarian law (war crimes) when they occur in the context of the war. Most violations of the rights of Tamils indicated in the above reports and in numerous other reports prepared by non-governmental human rights organizations do in fact occur in the context of the war, and are therefore both war crimes and human rights violations.

The LTTE also has violated the rules of war protecting civilians: the LTTE has on occasion attacked civilians; the LTTE has carried out military operations of dubious military utility or against buildings or facilities that are generally treated as protected. The LTTE has also carried out attacks on Tamil groups that have collaborated with the Sri Lankan government.90 The LTTE is alleged to have carried out killings of Sri Lankan political leaders although some of these killings are also widely viewed as carried out by rival Sinhala factions.91 Even with the accusations of violations of this type, a review of all available information shows that for the most part, the LTTE attacks traditional military targets.

It is also difficult to assess the LTTE's overall compliance with humanitarian rules relating to prisoners of war. However, the LTTE has openly allowed the ICRC to carry out regular visits to POWs and has returned a number of their POWs to the Sri Lankan government through the ICRC.92 Recently, the LTTE released other POWs and turned them over to clergy.93 The release of these POW was not part of a POW exchange, and this author is not aware of any recent POW exchange between the LTTE and government forces such as those that took place between the LTTE and the IPKF during the Indian phase of the war.

Verification of violations of the rules of war is a serious problem in the Sri Lanka - Tamil war. In part, verification is difficult because the Sri Lankan government denies access to international, impartial monitors. This situation has provoked the government into making wild accusations against the LTTE in an attempt to damage the international acceptance of the LTTE and to reinforce its labeling of the LTTE as "terrorist". For instance, the government frequently accuses the LTTE of massacring villagers. Independent monitoring that has investigated certain of these massacres reveals a different story -- sometimes Sri Lankan soldiers themselves or anti-LTTE Tamil groups have been implicated. In other circumstances, an event may have been unrelated to the Sri Lanka - Tamil war.94

Sadly, some human rights organizations without direct access to the area echo government-originated accusations against the LTTE, even circulating reports of alleged LTTE violations without indicating the source of the information about the events, or whether the organization has carried out its own investigation or even sought clarifying information. This, of course, inadvertently plays into the intent of the government to label the LTTE "terrorist" and even worse intimidates others from demanding from both parties -- LTTE and government -- the truth.95

The Sri Lankan government even goes so far as to denounce any expression of sympathy for sick and wounded or displaced Tamil civilians as support for "terrorism." For example, a Roman Catholic parish in North Carolina issued a appeal for humanitarian aid for the hundreds of Tamils displaced in the government assault of Jaffna in 1995. The Sri Lankan government launched a counter-attack, sending the parish priest letters arguing that support for Tamils was support for terrorism.96 Another priest, this time in San Francisco, sent a letter to the editor (San Francisco Chronicle) also urging humanitarian aid for Sri Lankan Tamils. The Sri Lankan Embassy (Washington) sent a harsh reply letter, also referring to Tamils as terrorist and condemning any aid to Tamil people.97 This climate of hostility makes the task of those investigating alleged humanitarian law and human rights violations even harder.

In spite of the many violations of the laws and customs of war in the Sri Lanka - Tamil War, the war remains a war and is not reduced to terrorism nor its participants of either side to terrorists. The international community however, has the right and the obligation to seek full compliance with humanitarian law and to modify relationships with that country because of these violations.


SUPPORT FOR LTTE MAY NOT BE CRIMINALIZED

Regardless of whether the war in Sri Lanka is recognized as a war of national liberation in the exercise of the right to self-determination or a civil war, support for the LTTE from the Tamil people cannot be criminalized. The Tamil people, whether in Sri Lanka or elsewhere, have the right to freedom of opinion and belief, the right to freedom of expression and the right to support political parties or groups of their own choosing.


CONCERNS FOR THE UNITED STATES

Section 302 of P.L. 104-132 authorizes the Secretary of State to designate a group as a terrorist organization if three criteria are met: the organization is a foreign organization, it engages in terrorist activity and the terrorist activity threatens the security of United States nationals or the security of the United States.

As set out above, these criteria do not apply to the LTTE, a combatant force in a war in Sri Lanka. Even so, it is useful to evaluate the war in Sri Lanka under the specific language of the Act to reinforce that fact. First of all, the LTTE is a military force (army and navy) not a terrorist organization. Humanitarian law make clear distinctions between combatant forces and other groups. For example, the choice of wording in Article 1 of Protocol Additional II -- "dissident armed forces" and "organized armed groups" that carry out "military operations" is meant to distinguish combatant forces from "organizations" that meet P.L. 104-132 criteria by carrying out random or sporadic violence associated with terrorism. Protocol Additional II specifically provides that "isolated and sporadic acts of violence and other acts of a similar nature . . . are not armed conflicts"98 and hence not governed by humanitarian law.99 The long, protracted and heavily prosecuted war in Sri Lanka can hardly be characterized as sporadic or isolated violence.

Second, the LTTE does not engage in terrorist activity as defined by this act. As indicated above, the LTTE engages in military operations in a war. The military operations take place in Sri Lanka, not in the United States. There are no United States troops stationed in Sri Lanka as part of a United States force participating in the Sri Lanka - Tamil war. Therefore there is no LTTE activity that can threaten the security of United States nationals100 or the security of the United States.

This author acknowledges the real threat to ordered society posed by terrorist groups and terrorism. The very nature of terrorist activity, especially its randomness and seeming irrationality and the fact that groups are secretive and clandestine, fosters personal and national insecurity. While recognizing the emotional and political nature of anti-terrorism, this author is convinced that true progress in anti-terrorist efforts mandates distinguishing "terrorism" from wars. Labeling the LTTE as "terrorist" will do nothing to combat terrorism in the United States or elsewhere. But, tragically, such an incorrect label could play a part to unduly prolong the war in Sri Lanka and cause thousands more deaths and injuries of Sri Lankans -- Tamil and Sinhala alike. Rather than incorrectly labeling the war in Sri Lanka and its combatants, the United States ought to be taking a far more aggressive role in seeking a peaceful resolution to the Sri Lanka - Tamil war and the underlying Tamil question.

There are a number of concrete steps that the United States could take to assist in the resolution of the Sri Lanka - Tamil war. The United States should insist that the government of Sri Lanka and the LTTE correctly apply the laws and customs of war. The United States should urge independent, impartial monitoring of the war by not only the ICRC but by the many international human rights groups and aid providers. The United States should acknowledge the application of the law of self-determination to this conflict and adapt its foreign policy accordingly. Even if the Untied States fails to fulfill its obligations under the law of self-determination, the United States should at least fulfill its obligations under the rules of civil war. Accordingly, it should refrain from providing arms to the Sri Lanka government both because of the duty of neutrality but also because of the proven violations of humanitarian law. The United States can encourage other nations to likewise refrain. The United States can also support and encourage international initiatives to mediate in this war. Finally, the United States can enter into dialogue with representatives of the Tamil people as well as the government.

The United States has a strong interest in a peaceful resolution of all the worlds current conflicts, including the Sri Lanka - Tamil War, and the prevention of future ones. The sheer number of current armed conflicts is staggering -- Burundi, Zaire, Liberia, Chechnya, Sudan, Burma, Rwanda, Kashmir, Afghanistan, Western Sahara, the Middle East, Iran, Turkey to name a few.101 Achieving peace in these many conflicts is hampered by failure to address them as the wars that they are. Most importantly incorrect labeling of combatants as terrorists and treating a war as terrorism for whatever reasons undermines humanitarian law and what should be its universal application. Clearly it is not possible to have a coherent foreign policy when one war is treated as a war and another is treated as terrorism. The United States cannot take an active role in seeking peace in all the many wars, but the United States can uniformly and honestly seek compliance with humanitarian law in all the conflicts, including the Sri Lanka - Tamil war. This alone can be an effective strategy in achieving peace.

Respectfully submitted,

Karen Parker
Attorney at Law
154 Fifth Avenue
San Francisco, California 94118
(415) 668-2752
voice and telefax


3 March 1996

1The United States was particularly concerned with application of all treaty-based and customary laws protecting prisoners-of war (POWs). The United States applied armed conflict rules to itself in, for example, the prosecution of Lt. Calley.
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2During the recent civil war in El Salvador, for example, the President and other high government officials told this author on several occasions between 1983 and 1987 that there was no war in El Salvador and therefore there were no prisoners-of-war. The United Nations recognized the application of humanitarian law early in the conflict. See, e.g. United Nations Comm'n on Human Rights Res. 1982/28, U.N. Doc. E/1982/12 (1982) at 145:"Draws again to the attention of all Salvadoran parties concerned that the rules of international law, as contained in article 3 common to the Geneva Conventions of 12 August 1949 on the laws of war, are applicable to armed conflicts not of an international character and requests all parties to the conflicts to apply a minimum standard of protection of human rights and of humane treatment of the civilian population." Id., op. para. 5 (underlining in original).
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3Most insurance policies contain a clause limiting or denying indemnification for acts of war or for damage incurred during war. Most of these policies will pay claims for damage from "terrorism." Several LTTE military actions have caused severe damage to insured facilities whose indemnification is sought by the government. Recently, for instance, a major oil installation suffered huge losses and the government is pursuing claims for indemnification, arguing that the damage occurred as a result of terrorism rather than in war.
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4A common thread in attempts to define terrorism includes elements of randomness. See, e.g. United Nations, Comm'n on Human Rights res. 1996/47, U.N. Doc. E/1996/L.18 at 153, 154 (Comm'n deplores "random acts of violence and terror" directed at civilians).
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5Many scholars of the Sri Lanka-Tamil War date the conflict from 1976, when the Tamil United Liberation Front (TULF) passed a resolution at Pannakam proclaiming the right of Tamils to their own state and called upon Tamil youth to "throw themselves fully into the sacred fight for freedom . . .." TULF Resolution of 14 May 1976 (called the Vaddukoddai Resolution) reprinted in James Karan, "The Tamil National Struggle" in The Tamil National Question and the Indo-Sri Lanka Accord (N. Seevaratnam ed. Delhi 1989). The United States Department of State dates the conflict from 1983: in its 1995 report on human rights it states "the conflict between the Government and the liberation Tigers of Tamil Eelam (LTTE), an insurgent organization fighting for a separate state for the country's Tamil minority, continued beyond its 12th year." United States Dept. of State, 1995 Annual Report on Human Rights (1996). United States courts have also dated the conflict since at least 1983. See, e.g. Ratnam v. Lewis, 892 F. Supp. 619, 625 (D.N.J. 1996): "The armed conflict . . . commenced in 1983 and has continued since that date."
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6Statement of Ronnie de Mel, Finance Minister, quoted in The Daily News (Colombo), Jan. 20, 1986. Mr. de Mel went on to claim there would be no election until 1989. Id. In another report on the same day, the Sri Lankan Navy lost a gun boat to the LTTE. The Sun (Colombo), Jan. 20, 1986.
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7United Nations Comm'n on Human Rights Res. 1987/61, op. para. 1, U.N. Doc. E/1987/18 at 134.
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8See, e,g, United States State Department, Bureau of Human Rights and Humanitarian Affairs, October 1994 Profile of Asylum Claims and Country Conditions. (Describes the situation in Sri Lanka as a civil war between Tamil forces and Sri Lankan government).

Statement of Ronnie de Mel, Finance Minister, quoted in The Daily News (Colombo), Jan. 20, 1986. Mr. de Mel went on to claim there would be no election until 1989. Id. In another report on the same day, the Sri Lankan Navy lost a gun boat to the LTTE. The Sun (Colombo), Jan. 20, 1986.
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9At the Thimpu talks in 1985, five armed Tamil groups participated: the LTTE, the Eelam Revolutionary Organisation, the Eelam Peoples' Revolutionary Front, the Peoples' Liberation Organisation of Tamil Eelam, and the Tamil Eelam Liberation Organisation.
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10In addition to the organizations listed above, the Tamil delegation included the Tamil United Liberation Front.
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11See Joint Statement of the Tamil Delegation at Thimpu (August 17, 1985) reprinted in N. Satyendra, "The Thimpu Negotiations: The Basic Documents" in The Tamil National Question and the Indo-Sri Lanka Accord (N. Seevaratnam ed. Delhi 1989). Mr. Satyendra was spokesperson for the Tamil delegation at Thimpu.
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12Accord, preamble.
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13Letter of Rajiv Gandhi to J.R. Jayewardene, annexed to the Accord.
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14Id. At the time of the Accord, there were talks underway between the United States and Sri Lanka regarding possible United States use of Trincomalee harbor.
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15The Indian forces were reported to be especially brutal against the civilian population, earning them the nickname the Indian Peace Killing Force. The term was apparently coined by Dr. Mohammed Shakil Khan, a member of the Indian Red Cross.
See "Indisk lege bekrefter overgrep mot sivile: Dr. M.S. Khan kaller fredsstyrken 'peace killing force'", Stavanger Aftenblad, Dec. 4, 1987.
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16In February, 1988, the Sri Lankan government acknowledged that India would send three more brigades, bringing total troop strength to 70,000 at that time. "India Plans Final Battle with the Tigers", The Daily Telegraph, Tues. Feb. 9, 1988 at 1. This was still very early in the conflict. By mid-January, the following units were involved: the 4/5 Gorkhas (battalion), the Sikh Light Infantry (battalion), the 41st Brigade, 54th Infantry, 72th Brigade, and others. "Operation Pawan: In a Rush to Vanquish" in India Today, Jan. 11, 1988 at 73. In only several weeks of war, the Indian Air Force carried out "4,100 transport sorties . . . to maintain the Jaffna-Madras air bridge".Id. at 76.
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17"Operation Pawan: In a Rush to Vanquish" in India Today, Jan. 11, 1988 at 76.
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18Id. The article states that the LTTE learned this tactic from an Anthony Quinn movie about North Africa in World War II. Id.
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19There have been several short periods of cessation of hostilities with peace talks but to date they have been unproductive.
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20The LTTE turned over 441 bodies to the International Committee of the Red Cross (ICRC) on July 21, 1996. LTTE Press Release, 21 July 1996.
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21The LTTE has a major division of women combatants called the Women's Military Unit. This unit uses all weapons used by men combatants, including surface to air missiles (SAMs) and other heavy artillery. The Women's Military Unit first fought in combat in Mannar in 1989. Since that time, they have carried out many successful large-scale military operations against government (Sinhala) military bases and against military vessels and aircraft. Five interviews with S. Krishnakumar ("Commander Kittu"), in London and Geneva (1990 - 1992). See Adele Ann, Women Fighters of Liberation Tigers (London, 1993). In Tamil-controlled areas, women play a significant role in civil administration. Id. The current President and Prime Minister of Sri Lanka are both women: Chandrika Bandaranaike Kumaratunga is President and her mother Sirimavo R.D. Bandaranaike is Prime Minister. The rest of the civilian Sinhala government is nearly all male, and the government military forces have no women in leadership or combat positions.
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22Abraham Sofaer, former Legal Advisor to the State Department and former Federal District Court Judge states this principle thus: "The laws of war mark the line between what is criminal and what is an act of combat. A person who kills someone is normally guilty of homicide. If he does it during combat, however, he is a soldier and can only be held as a prisoner of war, and may be punished only if the killing violates the laws of war."
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23The Hague Convention (IV) of 1907 and Regulations, signed Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.
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24Id.
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25See, e.g. The Hague Regulations of 1907, Article II; Geneva Convention IV of 1949, Article 13 (6).
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26The author stresses that the LTTE have combatant status regardless of what type of war exists in Sri Lanka. However, because of the important issues raised by the war that must be taken into consideration by the United States, this examination of the type of war is included here.
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27Most commentary of contemporary wars includes a category of war called "internationalized civil war" because many of the current armed conflicts beginning as civil wars involve extensive military and political action from third parties. See, e.g. Karen Parker & Anne Heindel, Armed Conflict in the World Today: A Country by Country Review (Humanitarian Law Project/International Educational Development 1996)(available in Notre Dame Law School Library)(discusses the wars in Afghanistan, Bosnia, Croatia, El Salvador, Liberia, Mozambique, Rwanda, and Somalia as internationalized). See also, Hans-Peter Gasser, Internationalized Non-international Armed Conflicts: Case Studies of Afghanistan, Kampuchea and Lebanon, 33 Am. U. L. Rev. 145 (1983).
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28For example, the International Court of Justice has identified principles from both customary and treaty-based humanitarian law that are applicable in all conflicts. See Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4. The Court determined that the failure to warn of sea mines was a violation of principles "underlying" its expression in treaties and is a violation of "certain general and well recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war." Id. at 22. See also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) 1986 I.C.J. 14, 114 in which the Court declared that Common Articles 1 and 3 of the Geneva Conventions I - IV of 1949 "constitute a minimum yardstick, in addition to the more elaborate rules which also apply in international armed conflicts; and they are rules which reflect what the Court in 1949 [in the Corfu Channel case] called 'elementary considerations of humanity'." Regarding Common Article 1 the Court held: "There is an obligation on the United States government, in the term of Art. 1 of the Geneva Conventions, to 'respect' the Conventions and to 'ensure respect' for them 'in all circumstances', since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression." Id.
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29Protocol Additional II to the Geneva Conventions sets out the customary definition of civil war in the laws and customs of war: "[civil wars are armed conflicts] which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement [humanitarian law]." Protocol Additional II to the Geneva Conventions of 1949, in force Dec. 7, 1978, 1125 U.N.T.S. 609, reprinted in 16 I.L.M. 1442 (1977), Art. 1. (Protocol Additional II). This definition is considered the customary international definition of civil war for all states regardless of whether or not they have ratified Protocol Additional II.
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30The long-honored duty of neutrality in civil wars of customary international law receives strong support in the U.N. Charter and OAS Charter which both prohibit intervention in the in the internal affairs of another state regardless of the reason. See, G.A. Res. 2625 U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028, interpreting U.N. Charter, Art. 2; OAS Charter, Art. 18.
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31Protocol Additional I to the Geneva Conventions of 1949, in force Dec. 7, 1978, 1125 U.N.T.S. 3, reprinted in 16 I.L.M. 1391 (1977), Art. 1. Wars of national liberation are considered a type on international war.
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32The right to self-determination is enshrined in the United Nations Charter as one of the fundamental purposes of the United Nations (U.N. Charter, Art. 1.2). For this reason, the right to self-determination is the first article in each of the two human rights treaties, the International Covenant on Civil and Political Rights, in force Mar. 23, 1976, 999 U.N.T.S. 171 and the International Covenant on Economic, Social and Cultural Rights, in force Jan. 3, 1979, 999 U.N.T.S. 3.
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33See Karen Parker and Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int'l & Comp. L. Rev. 411, 440 (1989), drawing on A. Critescu, The Right to Self-determination, U.N. Doc. E/CN.4/Sub.2/404/Rev.1, U.N. Sales No. E.80.XIV.3 (1980) and H. Gros Espiell, The Right to Self-determination, U.N. Doc. E/CN.4/Sub.2/405/Rev.1, U.N. Sales No. E.79.XIV.5 (1980), and The Western Sahara Case, 1975 I.C.J. 12.
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34Jus cogens ("known law") or peremptory norms are the highest rules of international law. See Karen Parker and Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int'l & Comp. L. J. 411 (1989), citing inter alia Committee of United States Citizens v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988).
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35H. Gros Espiell, op cit. at 11-13: "[N]o one can challenge the fact that . . . the principle of self-determination possesses the character of jus cogens." Gros Espiell also indicates numerous instances in United Nations human rights bodies citing the principle of self-determination as jus cogens. Id. See also, Parker & Neylon, op. cit., 440 - 441 (sets out case for self-determination as jus cogens).
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36The International Court of Justice articulated the doctrine of erga omnes in Barcelona Traction, Light and Power Co (Belg. v. Spain) 1970 I.C.J. 3, 32. Erga omnes obligations are owed to the international community as a whole. The Court identified protection from slavery, aggression, genocide and racial discrimination as obligations erga omnes. Id.
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37I. Brownlie, Principles of Public International Law 83 (3d ed. 1979): "One aspect of jus cogens, the principle of self-determination, may justify the granting of higher status to certain types of belligerent entities and exile governments than would otherwise be the case."
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38James Karan, "The Tamil National Struggle" in The Tamil National Question (N. Seevaratnam, ed. 1989 Delhi) at 58.
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39David Feith, "The Tamil Struggle -- A Brief Historical Survey" in The Tamil National Question, op.cit. at 73, 76 citing Spencer.
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40James Karan, op.cit.
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41Id. Sankili was taken to Goa and hanged.Id.
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42David Feith, op.cit. at 77 citing Ludowyk.
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43Since entry of the colonial powers, some Tamils and some Sinhala people have become Christian, especially Roman Catholic. There are other religions in Sri Lanka, the largest of which is probably Islam, practiced by people known as the Moors. The Moors are Tamil speaking and live mainly in Tamil areas, but are not Tamil.
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44British Governor General Robert Brownrigg considered the Tamil language to be mixed with Portuguese, due of course, to the period of colonization of Portugal. Letter from Sir Robert Brownrigg to the Secretary of State for the Colonies, July 10, 1813, cited in James Karan, op. cit. at 59.
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45For a brief review of this period, see G.G. Ponnambalam, Jr., "The Intransigence of the Singhalese" in Australian Human Rights Foundation, Peace With Justice 36 (1996).
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46The Bandaranaike-Chelvanayagam Pact of 1957 and the Senanayake-Chelvanayagam Pact of 1965.
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47A key element of the grievances has been the perception that the Sinhala politicians sought to make Sri Lanka Sinhala. This author notes the continued tendency of the Sri Lankan government to portray Sri Lanka as Sinhala and Buddhist. For example, the government frequently refers to Sri Lankan as Buddhist -- a reference even used by the present Ambassador to the United States in his presentation of his credentials. See, "Ambassador Presents Credentials to President Bill Clinton", Sri Lanka Newsletter, April 30, 1995, at 4, 5. (Refers to Sri Lanka as "the land where Buddhism had flourished since the third century B.C.") The same edition of the Embassy's newsletter refers to the visit by Hillary Rodham Clinton to Sri Lanka where she was taken to a Buddhist temple. It is also important to note that the use of the lion on the Sri Lankan flag is viewed as a symbol of the Sinhala intent to make Sri Lanka a Sinhala state: the symbol for the Sinhala kingdom was the lion while the symbol of the old Tamil kingdom was the tiger.
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48At that session, the Tamil United Front became the Tamil United Liberation Front (TULF).
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49TULF Election Manifesto (1977), reprinted in James Karan, "The Tamil National Struggle" in The Tamil National Question (N. Seevaratnam, ed. 1989 Delhi) at 65.
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50See, e.g. G.G. Ponnambalam, Jr., "The Intransigence of the Singhalese", op.cit. at 43: "It is my position that even peace packages are non-starters because the whole approach is wrong. We will hobble along for some time more before the Singhalese and Tamils together herald the separate state of Thamal Eelam. It seems only this will bring "peace with justice." (Underlining added). Mr. Ponnambalam is the son of the founder and the current Secretary General of the All Ceylon Tamil Congress, the oldest Tamil political party in Sri Lanka.
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51S.J. Emmanuel, "Let My People Go" in Peace With Justice, op. cit. at 68, 75.
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52Adrian Wijemanne, "The War of Tamil Independence", reprinted in Tamil Voice (Winter 1996).
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53See, e.g. Mohammed Bedjaoui, Humanitarian Law at the Time of Failing National and International Consensus, in Modern Wars: The Humanitarian Challenge 9 (M. Bedjaoui ed.)(distinguished the law of The Hague from the law of Geneva). Some definitions of armed conflict law emphasize The Hague law and some Geneva law. For example, International Court of Justice Judge Mohammed Bedjaoui favors Geneva law: "humanitarian law . . . is a set of legal rules intended to protect and aid victims of all situations of armed violence." Id. at 8. The International Committee of the Red Cross invokes both branches of humanitarian law in its definition: "[humanitarian law is] international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of parties to a conflict to use weapons and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict." The Efforts of the ICRC in the Case of Violations of International Humanitarian Law, in The International Review of the Red Cross (March-Apr. 1981).
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54For compilations of humanitarian law instruments see The Laws of Armed Conflict: A Collection of Conventions, Resolutions and Other Documents, (Dietrich Schlinder & Jiri Toman eds., 1973); The Law of War: A Documentary History (Leon Friedman, ed., 1971-72).
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55Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed Aug. 22, 1864, 1 Bevans 7, 1 Am.J.Int'l L. Supp. 90 (1907). This convention was urged by Swiss doctor Henri Jean Dunant following his visit to the battlefield of the 1859 battle of Solferino; it sets out basic protections for wounded combatants and medical personnel. Dunant, whose book A Memory of Solferino was published 1862, was instrumental in founding the Red Cross and in the calling of the conference that drafted the first Geneva Convention. This convention though limited in scope, was the first general multilateral treaty to begin to codify the laws and customs of war. For his work in urging the Geneva Convention and for founding the Red Cross, Henri Dunant shared the first Nobel Prize in 1901 with Frederic Passy. One earlier document (not a treaty), the Declaration of Paris, recognized the neutrality of the enemy's merchant goods and ships. Declaration of Paris, dated Apr. 16, 1856, 1 Am. J. Int'l L. Supp. 89 (1907). This declaration arose from the peace conference called to end the Crimean War.
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56The Hague Convention (II) of 1899, signed July 29, 1899, 32 Stat. 1803, 187 Parry's T.S. 429. See also The Hague Peace Conference of 1899, Final Act of the International Peace Conference, July 29, 1899, 7 Moore Dig. Int'l L. 78. There were two other conventions and 3 declarations from the 1899 conference, the only one still arguably relevant (others were largely superseded by the Hague Convention of 1907) prohibits expanding (dum-dum) bullets, named for the factory near Calcutta where they were first made.
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57The Hague Convention (IV) of 1907 and Regulations, signed Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631. The full name of this convention is The Laws and Customs of War on Land. See also The Hague Peace Conference of 1907, Final Act and Conventions of the Second International Peace Conference (Oct. 8, 1907), reprinted in The Hague Peace Conferences of 1899 and 1907 (J. Scott ed. 1909, reissued 1972); Proceedings of the Hague Peace Conference of 1907 , (J. Scott ed. & trans. 1920-21). The Hague Convention (V) of 1907, signed Oct. 18, 1907, 36 Stat. 2310, 1 Bevans 654 (full name Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land), has become substantially superseded by post-World War II attention to collective security apparent in the Charter of the United Nations and in numerous regional arrangements established under authority of Articles 52-54 of the United Nations Charter.
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58The first international instrument to limit weapons was Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (St. Petersburg, Dec. 11, 1868, 1 Am. J. Int'l L. Supp 95 (1907).
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59See, e.g. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, in force Oct. 5, 1978, U.N.T.S. ; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, in force Mar. 26, 1975, U.N.T.S. reprinted in 11 I.L.M. 310 (1972).
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60One exception is the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed May 14, 1954. This Convention expands protections set out in the Hague Convention and Regulations of 1907, Regulations, Art. XXVII which provides that "all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments . . .not being used at the time for military purposes." A standard explanation of why the international community has not significantly augmented treaty-based humanitarian law in this area is that first the League of Nations Covenant and subsequently the United Nations Charter seeks to abolish war. See, e.g. Stanislaw Nahlik, A Brief Outline of Humanitarian Law, (ICRC 1984). The United Nations Charter provisions abolishing aggressive war include Article 1.1 (sets out purpose of UN to maintain peace), Article 2.3 (mandates peaceful settlement of disputes), and Article 2.4 (prohibits threat or use of force). These principles are now jus cogens. Military and Paramilitary Activities in and Against Nicaragua (Nicar. V. U.S.) 1986 I.C.J. 14, 100-01, 113 -15 (opinion of Court); 151 - 53 (Singh, J., separate opinion), 199 - 200 Sette-Camara, J., separate opinion).
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61Pictet explains that the whole of humanitarian law seeks to balance military necessity with the requirements of humanity. See Jean Pictet, The Principles of Humanitarian Law (ICRC 1966).
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62All except the last two of these sources are set out in the Statute of the International Court of Justice. Stat. I.C.J. Art. 38. The last two sources are taken from The Hague Convention of 1907, 8th preamb. para., included in each Geneva Convention of 1949 and in Protocol Additional I.
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63In the words of one prominent early commentator: "No use of force is lawful, except so far as it is necessary. A belligerent has, therefore, no right to take away the lives of those subjects of the enemy that he can subdue by any other means." Henry Wheaton, Elements of International Law (1866 & photo. reprint 1936). Thus even if a particular means of warfare has not been specifically prohibited, if it is not necessary or if there would be undue loss of life compared to the realized military gain, it may not be used in that situation without violating the laws and customs of war. The author has been amazed by the frequency of situations in contemporary wars that call up this principle.
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64This author considers the "human wave" operations of the Irani forces in the Iran-Iraq war to violate the principle of necessity. In these operations, thousands of young men were recruited (essentially for martyrdom) to be human shields as the Irani forces attempted to inch their way in the dessert towards Iraqi forces.
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65This author considers the United States forces carried out unnecessary military operations against the Iraqi forces in the Gulf War when the United States forces had already clearly achieved military victory according to the purposes of the war.
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66For example, there has been much public debate in the United States because the United States chose not to kill Saddam Hussein during the Gulf War. During the armed attack by the United States on Libya, the United States singled out the private residence of Moammar Gaddafi, killing his infant daughter.
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67Geneva Convention of 1906, signed July 6, 1906, 35 Stat. 1885, 1 Bevans 506, 1 Am J. Int'l L. Supp 201 (1907).
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68Geneva Convention (Wounded and Sick) of 1929, signed July 27, 1929, 47 Stat. 2974, 118 L.N.T.S. 305.
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69Geneva Convention (Prisoners of War) of 1919, signed July 27, 1929, 47 Stat. 2021, 118 L.N.T.S. 343.
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70Geneva Conventions I - IV of 1949: Geneva Convention I, in force Oct. 21, 1950, 6 U.S.T. 1114, 75 U.N.T.S. 31 (armed forces in the field); Geneva Convention II, in force Oct. 21, 1950, 6 U.S.T. 3217, 75 U.N.T.S. 85 (armed forces at sea); Geneva Convention III, in force Oct. 21, 1950, 6 U.S.T. 3315, 75 U.N.T.S. 135 (prisoners of war); Geneva Convention IV, in force Oct. 21, 1950, 6 U.S.T. 3516, 75 U.N.T.S. 267 (civilians).
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71Protocol Additional I to the Geneva Conventions of 1949, in force Dec. 7, 1978, 1125 U.N.T.S. 3, reprinted in 16 I.L.M. 1391 (1977); Protocol Additional II to the Geneva Conventions of 1949, in force Dec. 7, 1978, 1125 U.N.T.S. 609, reprinted in 16 I.L.M. 1442 (1977).
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72Pictet words this principle thus: "Persons placed hors de combat and those not directly participating in hostilities shall be respected, protected and treated humanely." Jean Pictet, The Principles of Humanitarian Law 32 (ICRC 1966).
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73See, e.g. Erickson, Protocol I: A Merging of the Hague and Geneva Law of Armed Conflict, 19 Va. J. Int'l L. 557 (1979).
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74Protocol Additional I, Part. III, Sec. I, Arts. 35 - 42.
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75Id., Art. 35.1.
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76Id., Arts. 35.2 and 35.3. Article 35.3 prohibits methods or means of warfare that damage the environment.
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77The Hague Convention (IV) and Regulations of 1907, Regulations, Article XXV. The Protocol provides a detailed scheme for declaration of non-defended locations (Protocol Additional I, Art. 59), and provides for demilitarized zones (Id., Art. 60).
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78Id, Arts. 61 - 67.
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79Id, Annex I, Arts. 5 - 13.
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80Id., Art. 56; Protocol Additional II, Art. 15.
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81L'Osservatore Romano (English Edition), July 19, 1995 at 11.
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82International Committee of the Red Cross, Annual Report:1994 at 112 (Geneva 1995). The ICRC reports do not distinguish between civilian detainees and prisoners of war so it is not possible to know how many POWs are currently held by government forces.
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83Most of the Geneva Conventions I - IV of 1949 addresses aspects of medical care for sick and wounded combatants. A common article in the Conventions prohibits any renunciation of rights, either by the sick and wounded themselves or by medical personnel or chaplains. Geneva Convention I, Art. 7; Geneva Convention II, Art. 7; Geneva Convention III, Art. 7; Geneva Convention IV, Art. 8.
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84One of the terms of the 1995 cessation of hostilities was that the government of Sri Lanka promised to life the blockade in the Tamil areas. The failure of the government to implement these promises was a major factor in the LTTE's withdrawal from the peace talks and the agreement for cessation of hostilities. BBC Tamil Section, Interview with V. Pirabakaran, on "Tamilosai", April 27, 1995.
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85The 24 NGOs raised this point to the Commission under agenda item 12 (gross violations of human rights). The Sri Lankan government carries out the blockades under terms of its Emergency Regulations. The Emergency (Regulation on Transport of Articles) Regulations No. 1 of 1991, for instance, listed as prohibited articles to the Northern Province: surgical equipment, medicines, alcohol, candles, soap, soy-based food and candy among 47 prohibited items.
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86S.J. Emmanuel, op.cit. at 74.
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87See, e.g. Reports of the United Nations Special Rapporteur on Torture: P. Kooijmans, U.N. Docs. E/CN.4/1987/13, E/CN.4/1990/17, E/CN.4/1991/17, E/CN.4/1992/17, E/CN.4/1993/26; N. Rodley, U.N. Docs. E/CN.4/1994/31, E/CN.4/1995/26 and E/CN.4/1996/34.
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88See, e.g. Reports of the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: S. Amos Wako, U.N. Docs. E/CN.4/1990/22, E/CN.4/1991/36, E/CN.4/1992/30/Add.1/Corr.1; Bacre Waly Ndiaye, U.N. Docs. E/CN.4/1993/46, E/CN.4/1994/7, E/CN.4/1995/61.
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89See, e.g. Reports of the United Nations Working Group on Enforced or Involuntary Disappearances, U.N. Docs. E/CN.4/1991/20, E/CN.4/1992/18/Add.1, E/CN.4/1993/25/Add.1; E/CN.4/1994/26, E/CN.4/1995/36 and E/CN.4/1996/38.
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90These attacks may not technically be a violation of humanitarian rules to the extent the other groups are armed and carrying out military operations as part of the government's strategy. It is frequently very difficult to distinguish civilians from combatants when these groups are involved because so many are armed.
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91The Premadasa and Athulathmudali assassinations, for example.
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92For example, the ICRC indicates 27 returnees for 1994. International Committee of the Red Cross, Annual Report:1994 at 113.
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93In mid-March 1995, the LTTE released 16 POWs in what the LTTE referred to as a "humanitarian gesture". They were handed over to Church of England Bishop K. Fernando in a public event attended by journalists and the ICRC. These POWs had been on a hunger strike demanding that the Sri Lankan government seek their release. The LTTE had also unilaterally released 24 POWs on other occasions between 1992 and 1995.
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94There were many allegations of communal killing during the government's actions against Sinhala armed groups, especially the JVP. The JVP has apparently eliminated, but there are still reports of some armed anti-government Sinhala groups.
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95This point has been strongly made by The Rev. Dr. S.J. Emmanuel, who stated in a recent speech: "In exaggerating the consequences of a guerilla warfare, the Government may succeed in justifying before the world its military actions against the Tamils, even those which easily qualify to be none other than state-terrorism. But the cumulative effect of all these on the world has been to project a wrong image of the Tamils of Sri Lanka as terrorists and war-lovers." S.J. Emmanuel, op. cit. at 72.
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96This author has copies on file of the parish appeal and a sampling of reply letters condemning humanitarian aid to Tamils as support for terrorism.
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97This author has copies on file of the letters to the editor of the priest and the Sri Lankan government, as well as her reply to the Sri Lankan government, also published by the San Francisco Chronicle. This exchange was reported in the Sri Lankan Embassy newsletter. "Embassy Replies to San Francisco Chronicle" in Sri Lanka News, March 1996 at 8.
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98Protocol Additional II, Art. 1.2.
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99Id.
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100Of course, United States nationals could be injured or killed if they go to the war zone.
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101For a review of current wars see Karen Parker & Anne Heindel, op. cit.. The 1997 edition of this annual report is currently in preparations and will be available in March.
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