Since the renewal of major military operations in April 2006, the Sri Lankan armed forces and the LTTE have been implicated in serious violations of international humanitarian law, which are war crimes. The limited information available on specific incidents makes conclusive findings difficult. However, existing evidence of violations of international law requires that parties to the conflict undertake serious investigations, act to hold those responsible accountable and introduce measures to prevent future violations.
The Sri Lankan armed forces have engaged in indiscriminate shelling and aerial bombing, attacking targets with insufficient regard as to whether civilians would be harmed. They have engaged in disappearances and summarily executed people in their custody. The LTTE has directly targeted civilians with Claymore mines and suicide bombings, and summarily executed those in their custody. In at least one instance it has used civilians as human shields and blocked water to a civilian population.
The conflict between the Sri Lankan government and the LTTE is considered a non-international armed conflict under international humanitarian law. Applicable law includes article 3 common to the four Geneva Conventions of 1949 and customary international humanitarian law. Common article 3 provides minimum standards for the treatment of all persons in custody, including prohibitions on murder, torture and other cruel treatment, the taking of hostages, humiliating and degrading treatment, and holding trials not in conformity with international fair trial standards. Customary international humanitarian law sets out, among other things, rules on the means and methods of warfare, including prohibitions on direct, indiscriminate or disproportionate attacks on civilians.39
On June 15 at about 7:30 a.m., a Claymore mine exploded beside a crowded bus outside the town of Kebitigollewa in central Anuradhapura district, killing 67 civilians and injuring about 45 others, including many children.40 The victims were primarily Sinhalese. The blast occurred at a time of when many villagers were traveling to work or school. An investigation by the Nordic-led Sri Lanka Monitoring Mission (SLMM) found the attack showed evidence of military expertise and the professional deployment and handling of weapons. The SLMM concluded that it was highly probable that the LTTE or LTTE-affiliated forces carried out the attack.41
On Friday, August 4, the LTTE withdrew its small force of two dozen cadres from Mutur and the Sri Lankan armed forces reoccupied the town during the day. The following evening the media reported that bodies of 15 Sri Lankan staff of the international aid agency ACF were found inside the ACF office compound. The next day two additional bodies were located outside the compound. The aid workers, all Tamil but for one Muslim, were involved in water and sanitation projects to help area victims of the 2004 tsunami. All were wearing ACF T-shirts. The fifteen found inside the compound, including four women, had been shot execution-style, with gunshot wounds to the head. The bodies of two others, apparently shot while trying to escape, were found in a car.
The police Criminal Investigation Division is investigating the killings. The government has permitted the participation of Australian forensic experts in the investigation, but difficulties in gaining permission to exhume the bodies of the murdered aid workers has to date limited their involvement.
The departing head of the SLMM, Ulf Henricsson, issued a statement on August 30 that concluded that there cannot be any other armed groups than the security forces who could actually have been behind the act. Henricsson said the SLMM reached its conclusions based on its determination that the Sri Lankan security forces were in Mutur at the time of the incident on information gathered from sources the SLMM considered highly reliable, and on the governments refusal to allow the SLMM access to the site of the killings, since it indicated the governments eagerness to conceal the matter from the SLMM.42
International humanitarian law requires that parties to a conflict at all times distinguish between combatants and civilians, and that attacks not be directed against civilians. The intentional killing of civilians during an armed conflict is a war crime.43
On the morning of May 1 in Trincomalee, an apparently remotely detonated Claymore mine attached to a parked bicycle exploded near a busy intersection in a Tamil residential neighborhood. The attack targeted a group of sailors, killing one and wounding three others. The explosion also killed four civilians, a family with two children in a passing three-wheeler. Four other civilians were injured.44
After the LTTE forcibly captured Mutur on August 2, about two dozen LTTE cadres remained within the town, reportedly searching for people with connections to the military (see LTTEs use of human shields, below, Sec. IV.D.). The Sri Lankan armed forces responded with heavy shelling from three military camps, including by Multi-Barrel Rocket Launchers (MBRLs) fired from the Trincomalee naval dockyard.45 Over several days the Sri Lankan armed forces repeatedly shelled the town with apparently little regard for the civilian population, which had largely fled to local religious centers and schools in the town. Residents reported that most of the civilian casualties during the fightingwhich resulted in more than 49 civilian deaths and many more injuredwere from the militarys shelling of the town. About half the civilian deaths occurred in religious centers and schools which the military had reportedly been informed were being used as places of refuge.46
International humanitarian law prohibits attacks that are not directed at a specific military target, or make use of a weapon or method of combat that cannot be directed at a specific military target.47 Also prohibited are attacks on military targets that would be expected to cause loss of civilian life disproportionate to the concrete and direct military advantage anticipated.48
The Sri Lankan military reported that on May 4, seven LTTE cadres were killed while attacking an army checkpoint near a petrol station in Nelliady in Jaffna district. According to a military spokesman, at around 2:15 p.m. seven LTTE cadres armed with hand grenades arrived in two three-wheelers (motorized rickshaws) and launched an attack on the two soldiers at the military checkpoint. Troops at the nearby Navindil camp blocked the passage of the three-wheelers and fired at them. Simultaneously, a huge explosion occurred inside the second three-wheeler killing all the men inside, said the spokesman. Soldiers then opened fire at the first three-wheeler while the LTTE cadres threw hand grenades at the troops. The spokesman said that after the fierce battle ended, soldiers recovered the bodies of seven LTTE cadres and several hand grenades scattered on the ground. It was further reported that the cadres were members of the LTTEs auxiliary force, which has been given military training for handling hand grenades and weapons to carry out attacks on the military, who were posing as civilians.49
Two human rights groups separately concluded that those killed were all unarmed civiliansfive Tamils youth aged 17 to 19 who worked as day laborers at the Point Pedro harbor and two three-wheeler drivers. Ten to twenty minutes earlier, a grenade had been thrown at the petrol station sentry post. The youth were returning from having gone drinking at a friends when they passed the petrol station sentry point and a military intelligence camp, which reportedly signaled them from a distance to stop. The drivers apparently did not see the signal and they continued towards the checkpoint. A rifle propelled grenade was fired at the three-wheelers from about 50 yards behind, causing the explosion reported by the military spokesman. Soldiers then fired at the vehicles with small arms.50
It appears that the soldiers fired upon the vehicles without doing everything feasible to verify that those targeted were combatants. Evidence contradicting the militarys claim that those killed were all LTTE cadres demonstrates the need for an independent investigation of the incident.
On August 14, Sri Lankan air force fighter jets dropped about twelve bombs on a former childrens home in Vallipulam, deep in LTTE-controlled territory in Mullaitivu district. The SLMM and UNICEF went to the site five hours after the bombing and were shown 19 corpses of women and girls aged 16 to 18. A list attributed to principals at local schools provided the names of 51 young women and girls said to have been killed in the attack, as well as four instructors. Another 100 persons were reported injured. The SLMM reported finding no evidence of weapons or military equipment at the site.
The Sri Lankan armed forces claimed that the women were getting military training to be LTTE combatants at a site near an LTTE base and were thus valid military targets. According to MoD spokesman Brig. Athula Jayawardana the day after the bombing: "If the children are terrorists, what can we do?51 In September, the government arrested three young women who were being hospitalized in Kandy for injuries received during the bombing, and announced that the women had confessed that they were receiving military training at the site.52
Local sources believe the LTTE had just started using the site not as a military training camp, but to provide first-aid and civil defense training for the school girls. There were no known LTTE military structures nearby. The training, which the girls probably had no choice but to attend, would have been part of broader LTTE indoctrination efforts in areas that it controls.53 Under such circumstances, these young women and girls would not have been combatants who could lawfully be targeted under international humanitarian law.54
The tragic circumstances of the attack underline the failure of both sides to take all feasible precautions to minimize harm to civilians. The LTTE, by assembling a large group of civilians in an unexpected place in the midst of a bombing campaign, appears to have unnecessarily put the young women at grave risk. The Sri Lankan military at a minimum directed an attack on a building without taking all feasible precautions to determine whether those inside were combatants or civilians. At worst, the military knowingly bombed people and a building that had protected civilian status.
In conducting military operations, each party to the conflict must do everything feasible to verify that targets are military objectives.55 Additionally, all feasible precautions must be taken to avoid loss of civilian life and property.56
During the fighting in Mutur in early August, several thousand Muslims sought shelter in the Nathvathul Ulama Arabic College, Al Hilal School and Ashraff High School, while Tamils in the area fled to the local Methodist and Roman Catholic churches or to LTTE-controlled areas. At around 9:30 a.m. on August 3, an LTTE leader called Shanthan and about a dozen cadres fired mortar shells not far from the Arabic College compoundwhich was sheltering about 15,000 people at that timeat government military camps. When the LTTE cadres walked to within 50 meters of the college compound, several Muslims pleaded with Shanthan to consider the safety of the civilians. Shanthan responded with verbal abuse. Government helicopters flying overhead apparently spotted the uniformed LTTE cadres. Fire from government artillery, including multi-barrel rocket launchers, came quickly. Three shells hit the Arabic College and its vicinity, killing 19 civilians on the spot and injuring several dozen others.57
It appears that the LTTE commander, by deliberately placing his unit close to the school filled with displaced persons, was either using them to try to shield his forces from attack, or was trying to provoke the Sri Lankan military to shell the Muslim civilians.
Intentionally using the presence of civilians to render certain points, areas or military forces immune from military attack is considered shielding, and is a war crime. While it may be unlawful to place forces, weapons and ammunition within or near densely populated areas, it is only considered shielding when there is a specific intent to use the civilians to deter an attack.58 Each party must take all feasible precautions to protect the civilian population and civilian objects under their control from the effects of attacks.59
On July 20, the LTTE closed the sluice gate of the Mavil Aru waterway in eastern Trincomalee district. The government Peace Secretariat claimed the closure of the sluice gate cut off water to over 15,000 families and approximately 30,000 acres of agricultural lands in government-held areas.60 Beginning on July 26 the Sri Lankan air force began bombing raids on LTTE areas. Two days later the army launched a major assault to capture the sluice gates. The Sri Lanka Monitoring Mission criticized the government for firing rockets towards the vicinity of negotiations between the SLMM and the LTTE to reopen the sluice gates, hampering those negotiations. On August 7, the LTTE reopened the sluice gates.
International humanitarian law prohibits attacks against or otherwise rendering useless objects that are indispensable to the survival of the civilian population.61
F. Cease reprisal attacks
In southern Trincomalee district on January 8, the LTTE attacked a military vehicle in Iruthayapuram, wounding three soldiers, and an army patrol in nearby Menkamam, killing one soldier. Government soldiers, who were particularly angry because of reports that LTTE cadres were moving around at night in civilian clothes, conducted a search operation in Menkamam in which they found weapons in a house. The soldiers went from house to house, allegedly threatening the villagers with a massacre in reprisal should there be another LTTE attack. As part of this threatened reprisal, the soldiers made reference to a massacre in the nearby village of Kumarapuram that had occurred ten years earlier, when over 20 civilians were killed and two girls were raped and murdered. No actual reprisals were carried out.62
In late April, about 400 persons left their homes near Mutur following an LTTE attack on a nearby Sinhalese village that was followed by military-backed reprisals against Tamils. Villagers from Bharatipuram, for instance, fled after about 35 Sinhalese civilians attacked their village, killing one young man, sexually harassing women, and looting and burning about 30 houses and shops. Eyewitnesses told human rights groups that the army closed off the entrance to the village and watched while the attack occurred.63
International humanitarian law bans belligerent reprisals against civilians.64
Since June 2006, the Karuna group abducted more than 100 boys for their forces from several towns in Batticaloa district.65 After a decline in reported abductions in July, abductions by the Karuna group rose sharply in August after fighting between government forces and the LTTE intensified. Local human rights groups said that the location, time and manner of the abductionsall in government-controlled territorystrongly indicate that the abductors were from the Karuna group and not members of the LTTE.66
Many of the youths abducted are known to be in Karuna camps, located either in government-controlled territory or in the no-mans land between government and LTTE forces, with government military camps nearby. In order to travel to these areas, the abductors would likely have had to pass through multiple Sri Lankan military checkpoints, suggesting that military officials were aware of the abductions. Some parents have visited their children at the Karuna camps and have even received payments (koduppanavu) for their childrens services. Some of these children have reportedly been deployed in military operations against the LTTE within weeks of being abducted.
In many cases family members have registered complaints with local police, but no action is known to have been taken. In some instances, the police refuse to record the abductions, saying it was not necessary.67 Parents who have filed complaints reportedly received threats soon after from the Karuna group, suggesting linkages with the police.
The LTTE has a long history of recruiting children as soldiers and continues to do so in areas it controls. A Human Rights Watch report published in November 2004 documented LTTE recruitment of thousands of children since the beginning of the 2002 Ceasefire Agreement. The report found that the LTTE often used threats, intimidation and sometimes abduction to bring children into its ranks. Prior to the ceasefire, children were routinely used in combat, and often deployed on suicide missions.68 During 2006, UNICEF reported that it had received an average of about 55 reports per month of children being recruited into the LTTE forces, though the actual figure is believed to be several times higher.69
The recruitment of children under the age of 18 by non-state armed groups contravenes international law. It prohibits any participation of children in active hostilities in the armed forces of states and in non-state armed groups. States are required to take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices. The recruitment of children under the age of 15 is a war crime.70
39 See generally, ICRC, Customary International Humanitarian Law.
40 See Bus blast in Sri Lanka kills 64, Agence France Presse, June 15, 2006.
41 Sri Lanka Monitoring Mission, The SLMM Condemns Murder of Kethesh Loganathan, press release, August 30, 2006.
42 Monitors' statement on Sri Lanka killings, BBC News, August 30, 2006, http://news.bbc.co.uk/2/low/south_asia/5298748.stm.
43 ICRC, Customary International Humanitarian Law, rule 1, citing Protocol II, article 13(2).
44 See Ranil Wijayapala & K.D. Jayasekara, LTTE claymore kills four civilians, sailor, Daily News, May 2, 2006; UTHR(J), When Indignation is Past and the Dust Settles, Special Report No. 21, May 15, 2006, p. 4 , http://www.uthr.org/SpecialReports/spreport21.htm.
45 The rockets fired are believed to have been Czech or Slovak-made 122mm unguided artillery rockets, a version of the former Soviet BM-21 Grad system.
46 See UTHR(J), Hubris and Humanitarian Catastrophe.
47 ICRC, Customary International Humanitarian Law, rule 12, citing Protocol I, article 51(4)(a) and Protocol II, article 13(2).
48Ibid., rule 14, citing Protocol I, articles 51(5)(b) and 57.
49 Kurulu Kariyakarawana, Easwaran Rutnam and Sunil Jayasiri, Seven LTTE cadres killed as military retaliates, civilians also injured, Daily Mirror (Colombo), May 5, 2006.
50 See INFORM, Some Key Concerns Regarding the Human Rights Situation; UTHR(J), When Indignation is Past and the Dust Settles, p. 28.
51 See Justin Huggler, Sri Lankan Army Warns Children Can Be Targets, The Independent (London), August 16, 2006.
52 Voices played on Sri Lankas Eye Channel attributed to the young women said that they needed authorization from the LTTE to sit for public exams or otherwise they would not be able to attend school. They said that to receive authorization they had to attend these sessions where, in addition to first aid, they would be taught self-defense, which in the future (they had been there four days) was to involve marching with poles and throwing dummy hand grenades.
53 See UTHR(J), Hubris and Humanitarian Catastrophe, p. 17.
54 Civilians may only be treated as combatants under international humanitarian law when and for such time that they are taking a direct part in hostilities. See ICRC, International Humanitarian Law, rule 6, citing Protocol II, article 13(3).
55 ICRC, International Humanitarian Law, rule 16, citing Protocol I, article 57(2)(a).
56Ibid., rule 15, citing Protocol II, article 13(1).
57 Human Rights Watch interviews, Colombo, August 13 and 22, 2006; see also, UTHR(J), Hubris and Humanitarian Catastrophe.
58 ICRC, Customary International Humanitarian Law, rule 97, citing Protocol I, article 51(7).
59Ibid.,, rule 22, citing Protocol I, article 58(c); Protocol II, article 13(1).
60 The number of people affected by the cutoff has been called into question. Because government reprisals against LTTE attacks had displaced many Tamils to LTTE-controlled areas in earlier months, only about 40 percent of the land was under cultivation. Other water-use concerns by the government have also been raised. However, these factors do not justify under international law the sluice gate cutoff.
61 ICRC, Customary International Humanitarian Law, rule 54, citing the prohibition on attacks on civilian objects and Protocol II, article 14.
62 Human Rights Watch interview, Colombo, August 16, 2006.
63 See INFORM et al, Report on the Fact-Finding Mission to Gomarankadawela and Mutur, Trincomalee District: April 26-27, May 7, 2006.
64 ICRC, Customary International Humanitarian Law, rule 148, citing the protection of fundamental rights of persons at any time and in any place whatsoever found in common article 3 to the Geneva Conventions and Protocol II, article 4. Any treatment of civilians that would violate common article 3 would also be prohibited if committed as a reprisal. See ICRC, Commentary on the First Geneva Convention (Geneva: 1952), pp. 54-55.
65 Human Rights Watch interviews, Colombo, August 22-23, 2006. UNICEF reported as of August 31 that they had received a total of 118 reports of children recruited by Karunas forces, of which 44 occurred in August. All but ten cases occurred in Batticaloa district. (UNICEF statistics on file with Human Rights Watch.)
66 Human Rights Watch interviews, Colombo, August 21 and 24, 2006.
68 See generally, Human Rights Watch, Living in Fear: Child Soldiers and the Tamil Tigers in Sri Lanka, vol. 16, no. 13(c), November 2004, http://hrw.org/reports/2004/srilanka1104/.
69 UNICEF statistics on file with Human Rights Watch.
70 Sri Lanka is a party to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted May 25, 2000. G.A. Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III, entered into force February 12, 2002. The protocol raised the standards set in the Convention on the Rights of the Child by establishing eighteen as the minimum age for any conscription or forced recruitment or direct participation in hostilities. Upon ratifying the Optional Protocol, the Sri Lankan government deposited a binding declaration establishing eighteen as the minimum age for all voluntary recruitment into its armed forces. The protocol also places obligations upon non-state armed forces. Article 4 states that armed groups that are distinct from the armed forces of a state should not, under any circumstances, recruit or use in hostilities persons under the age of eighteen.