December 15, 2008

IV. Restrictions on Freedom of Movement

Freedom of movement is essential for civilians in times of conflict. The ability to move is often the only way to avoid becoming a casualty or to gain access to relief assistance. Yet, between 230,000 and 300,000 civilians,[36] most of them already multiple times displaced (some as many as 10 to 12 times), remain trapped inside the Vanni war zone. The main reason so many civilians are trapped is because the LTTE has forced civilians to flee with them, often to remote locations into LTTE-controlled territory, and refuses to allow civilians to freely leave areas under their control for government-controlled territory.

One international humanitarian official explained LTTE restrictions on movement, its pass system, and its impact on local humanitarian staff:

The LTTE has a pass system for those who want to leave the Vanni for government areas. Many of our staff members were simply refused a pass for one reason or another… The passes are granted to individuals, not families, so those who were granted one had a heartbreaking decision to make, whether to leave their spouse and children behind under a barrage of shells and air attacks to come with us to continue to work and earn money, or to stay behind with their family and face the possibility of being forced to join the LTTE and sent to fight.
To manage, advise and counsel our staff through this process was the hardest thing emotionally I and many of us had ever dealt with. As the roar of the shells got ever closer to Kilinochchi the urgency of the decision-making increased and staff had to begin to move to government areas, leaving their loved ones behind.[37]

The LTTE has long used a coercive pass system to prevent civilians from leaving areas under its control. Strict regulations on movement of civilians have been in place since at least 1995. Ordinarily, persons of recruitment age (between 12 and 35 years old, male or female, more recently extended to 45 years) wishing to temporarily exit LTTE-controlled areas are required to leave a relative behind as a "guarantor." A "guarantor" is normally a relative who ensures that the person leaving the Vanni will return to the Vanni as promised. If the individual fails to return to the Vanni as promised, the "guarantor" is arrested and normally subjected to forced labor.

Prior to the current phase of the conflict, if families wanted to leave LTTE-controlled areas permanently, they had to hand over their land, home, and property to the LTTE (an option only available to the relatively wealthy). Once permission is granted by the LTTE's Transport Monitoring Division (TMD), the person or family wishing to move is given a one-time travel pass by the TMD.

Movement restrictions were somewhat relaxed during the ceasefire agreement period from 2002 until 2006, when the TMD issued everyone over the age of 10 in LTTE-controlled areas a Transport Admission Card (TAC), which allowed individuals and families to move relatively freely in and out of LTTE-controlled areas during this period.

After the closure of the LTTE's Jaffna peninsula checkpoint on the A9 road leading to the Vanni on August 11, 2006, the LTTE again began to issue increasingly restrictive travel regulations. As before the ceasefire, the LTTE again started requiring individuals to apply for a one-time pass from the TMD and leave a relative behind as a guarantor. Passes are now only issued on the day of travel and authorize travel outside LTTE-controlled areas for a period of one day to three months.

These strict travel policies also have allowed the LTTE to implement its "one person per family" forced recruitment policies for military service in the LTTE, as they prevent persons the LTTE wishes to recruit in the future from leaving LTTE-controlled areas.

Following the closure of the LTTE's northwestern Uyilankulam checkpoint in Mannar district in September 2007, even more restrictive policies were implemented. Anyone wishing to travel outside the Vanni now had to apply to the TMD with an application that included a letter from the LTTE recruitment office certifying that the family had complied with the "one person per family" recruitment policies; the reason for travel had to be supplemented by supporting documentation such as hospital records (for medical cases); and all persons aged between 10 and 55 years old had to leave a "guarantor" behind.

Since being under increased military pressure from Sri Lankan forces, the LTTE has virtually stopped giving out passes, except for a few urgent medical cases. This has effectively trapped the several hundred thousand displaced persons remaining, as well as a smaller number of nondisplaced persons, inside LTTE-controlled territory. As one humanitarian official, an ethnic Tamil native of the Vanni, told Human Rights Watch in October 2008:

The LTTE no longer gives people passes to go [out of the Vanni.] At the moment, only medical cases or the elderly will get an LTTE pass. Before this time, you could hand over all your assets to the LTTE and you were free to go. But now they stop everyone, saying, "We are fighting for the people, but the people have to stay with us."[38]

The restrictions on movement also affected many humanitarian organizations during the September withdrawal. Despite earlier agreements that the LTTE would not interfere with the freedom of humanitarian workers and their families to leave the Vanni, the LTTE refused to allow most Vanni residents employed by humanitarian agencies to leave when the government ordered the UN and humanitarian agencies to leave. Even those individuals allowed to leave by the LTTE often had to leave their immediate families behind. One humanitarian agency official told Human Rights Watch that out of their eight local staff members, only one who was not a Vanni resident was allowed to leave without conditions; four staff members were allowed to leave but not take along their immediate relatives; one staff member was allowed to leave because another family member had been forcibly recruited by the LTTE; and two staff members were forced to remain behind by the LTTE, possibly because the LTTE wanted to forcibly recruit them.[39]

In another case involving a humanitarian worker, a local ethnic Tamil humanitarian staff member not from the Vanni who had been working in the Vanni for several years was prevented from leaving even though she had been issued a pass by the TMD. The LTTE argued that she had become a resident of the Vanni during her several-year stay, and insisted on forcibly recruiting her for military service. Constant efforts by the humanitarian agency to get her released from military service, and allowed to leave the Vanni, have been unsuccessful to date.

The LTTE's restrictions on the movement of civilians in the Vanni violate international humanitarian law. Parties to a conflict must, to the extent feasible, remove civilians under their control from the vicinity of military objectives.[40] This obligation is considered especially relevant "where military objectives can not feasibly be separated from densely populated areas."[41] Thus parties to a conflict deploying in populated areas should take measures to ensure that civilians move to safer areas.

It is also unlawful under international humanitarian law to deny freedom of movement to civilians seeking access to humanitarian relief.[42] Holding civilians as "guarantors" for family members allowed to leave the Vanni would constitute a form of hostage taking and arbitrary deprivation of liberty.[43] Collective punishments are also prohibited.[44] Those who commit such acts deliberately or recklessly are responsible for war crimes.

[36] At a meeting for humanitarian agencies convened by the Government Agent of Vavuniya on November 4, 2008, the Government Agents for Mullaittivu and Kilinochchi stated that they had counted a total of 197,103 displaced persons in Mullaittivu (96,135 persons displaced since August 11, 2006, and 100,968 persons displaced before that date), and 151,000 displaced persons in Kilinochchi (148,109 since August 11, 2006, the remainder before that date), for a total of 348,103 displaced persons. UNHCR's most recent (November 2008) estimates are 230,000 displaced, but this does not include the more than 100,000 registered displaced persons who were displaced prior to August 11, 2006, and which are included in the counts of the Government Agents. There is no clarity on how many of the pre-2006 displaced persons are also included in the post-2006 displaced persons count, because many of the pre-2006 displaced persons have again been displaced by the conflict. Responding to an Amnesty International report on the humanitarian situation in the Vanni, the Ministry of Disaster Management and Human Rights claimed that the actual number of  persons displaced after April 2006 was only 207,000 persons. Ministry of Disaster Management and Human Rights press release, "AI Statement on Sri Lankan IDPs Subjective and Misleading," November 21, 2008. During a November 21 ceremony accepting India government aid for the civilian population of the Vanni, Sri Lankan Foreign Secretary Palitha Kohana gave an even smaller number, arguing that the figures of displaced persons in the Vanni were "grossly exaggerated," and stating that he believed there were "around 100,000" displaced persons in the Vanni. B. Muralidhar Reddy, "Aid Distribution: Red Cross, India differ with Sri Lanka," The Hindu, November 21, 2008. It's not clear why the foreign secretary gave a figure only half that estimated by the Ministry of Disaster Management and Human Rights, but the humanitarian plight of the Vanni displaced population has greatly concerned neighboring India, with a large Tamil population in Tamil Nadu state: lowering the figures of affected persons may be an attempt to limit Indian pressure.

[37] "'Pain' of Sri Lanka aid pull-out," BBC, September 23, 2008.

[38] Human Rights Watch interview with humanitarian official, Vavuniya, October 14, 2008.

[39] Human Rights Watch interview with humanitarian official, Vavuniya, October 16, 2008. See also, Center for Policy Alternatives, "Field Mission to Vavuniya," September 2008 (On file with Human Rights Watch).

[40] See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978, article 58(a).

[41]See ICRC, Customary International Humanitarian Law, p. 76.

[42] See, e.g., Protocol II, art. 18(2).

[43] See article 3 common to the four Geneva Conventions of 1949.

[44] See ICRC, Customary International Humanitarian Law, rule 102.