Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka/IV Legal Evaluation of Allegations

by UN's Secretary-General's Panel of Experts on Accountability in Sri Lanka

IV. Legal Evaluation of Allegations

178. In light of the Panel’s conclusion that the allegations described in chapter III are credible, it will now examine the legal qualification of those allegations. This assessment is required by its mandate, which provides that the Panel will “hav[e] regard to the nature and scope of the alleged violations”. The Panel thus turns to the question of whether the events alleged above amount to alleged violations of the law and whether, if they are later proved to have in fact occurred, they would amount to actual violations. Moreover, the focus of the current evaluation is limited to the legal characterization of the allegations; the Panel’s view that a certain allegation would not violate international law should in no way be interpreted as an endorsement of the underlying activity. The Panel evaluates the allegations according to the categories identified at the end of chapter III.

A. Applicable law

179. The Panel’s mandate requires it to consider alleged violations of both international humanitarian law and international human rights law. The Panel proceeds from the basic and long-settled premise of international law that during an armed conflict such as that in Sri Lanka, both international humanitarian law and international human rights law are applicable.

180. For the Panel’s purposes, it suffices to discuss the key norms of international humanitarian and human rights law that apply, rather than all of them. Moreover, the norms of humanitarian and human rights law implicated have been the subject of significant interpretation by States, international organizations, courts, quasi-judicial monitoring bodies and other entities.

1. International humanitarian law

181. International humanitarian law applies because the hostilities clearly met the threshold for an internal armed conflict, i.e., one involving protracted armed violence between the Government and organized armed groups. According to the International Criminal Tribunal for the former Yugoslavia (ICTY), an armed conflict exists “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within the State.”^[1] There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct in the conflict of both the Government and the LTTE.

182. Sri Lanka is a party to the four Geneva Conventions of 1949; it is not a party to the 1977 Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). As a result, the obligations of the parties to the conflict are those set out in Common Article 3 of the four Geneva Conventions – the only article in them directed to conflicts not of an international character – and the part of customary international humanitarian law governing non-international, or internal, armed conflicts. It is worth quoting the key provisions of Common Article 3:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment . . .

(2) The wounded and sick shall be collected and cared for.

183. In order to determine the content and meaning of customary international law, the Panel relies upon various sources, including the ICRC’s study, Customary International Humanitarian Law (2005), which comprehensively analyses state practice and attitudes as well as international and national judicial decisions, and the statute and jurisprudence of international criminal tribunals. While the Panel recognizes some disagreement among States over the customary law status and the scope of some restrictions on the conduct of parties involved in non-international armed conflicts, the rules on which the Panel relies below are all, in its view, beyond dispute as rules of customary international humanitarian law.

2. International human rights law

184. Human rights law also applies in situations of armed conflict, as accepted by most States and confirmed by the International Court of Justice (ICJ) in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.^[2] This reasoning was also applied in its 2005 judgment in, Armed Activities on the Territory of the Congo, where it held that Uganda had violated provisions of the International Covenant on Civil and Political Rights (ICCPR) during an armed conflict.^[3]

185. The Panel applies the rules of international humanitarian law to the credible allegations linked to the armed conflict, recognizing that many of these will also constitute violations of human rights. Since the conclusion of the war on 19 May 2009, international human rights law became the sole body of applicable law. Thus, the Panel addresses only human rights violations that are materially or temporally outside the conduct of the war.

186. Sri Lanka is a party to the core international human rights treaties dealing with civil, cultural, economic, political and social rights, as well as treaties covering the ban on torture, and the rights of women and children.^[4] Sri Lanka has not entered reservations to any of these treaties. On 20 May 2000, the Sri Lanka notified the Secretary-General, of a series of derogations under article 4 of the ICCPR, which permits derogations from certain provisions of that treaty.^[5] On 4 June 2010, Sri Lanka notified the Secretary-General that it terminated all of these derogations with the exception of article 9(3), dealing with due process on arrest and detention, and expeditious trial.

187. The breadth and duration of Sri Lanka’s derogations are a matter of concern, given that article 4 of the ICCPR limits derogations to the context of a “public emergency which threatens the life of the nation” and that are necessary “to the extent strictly required by the exigencies of the situation”. The remaining derogations would likely not pass muster under the tests for reservations proposed by the International Law Commission and the Human Rights Committee.^[6] Given the uncertainties surrounding the validity of these derogations, the Panel discusses all the relevant provisions of the ICCPR below.

188. With respect to the LTTE, although non-state actors cannot formally become party to a human rights treaty, it is now increasingly accepted that non-state groups exercising de facto control over a part of a State’s territory must respect fundamental human rights of persons in that territory. Various organs of the United Nations, including the Security Council, have repeatedly demanded that such actors respect human rights law. Although the Panel recognizes that there remains some difference of views on the subject among international actors, it proceeds on the assumption that, at a minimum, the LTTE was bound to respect the most basic human rights of persons within its power, including the rights to life and physical security and integrity of the person, and freedom from torture and cruel, inhuman or degrading treatment and punishment.

B. Asymmetric warfare and international humanitarian law

189. Neither the publicly expressed aims of each side of this armed conflict (combating terrorism in the case of the Government, and fighting for a separate homeland in the case of the LTTE), nor the asymmetrical nature of the tactics employed by the two sides affects the applicability of international humanitarian law to the parties. The State has a right under international law to ensure its national security and to defend itself against armed attacks, including those of insurgents who may engage in acts of terrorism. Those ends do not, however, justify all means to achieve them; all action for those legitimate purposes must comply with the requirements of international law. As the International Court of Justice has found, the rules of Common Article 3 “constitute a minimum yardstick [and] reflect … ‘elementary considerations of humanity’”.^[7]

190. International humanitarian law thus respects the legitimate interests of a state like Sri Lanka facing a threat like the LTTE. Statements by both sides in the Sri Lankan civil war over the years suggesting that, for various reasons, the conflict was beyond the reach of international humanitarian law are thus incorrect as a matter of international law. Moreover, it is a well- accepted and fundamental premise underlying international humanitarian law that violations committed by one party do not, as a general rule, permit the other party to suspend its obligations under that law.

C. Forms of legal responsibility

191. In examining the legal nature of the allegations, the Panel must take account of the different entities on whom international humanitarian and human rights law impose obligations and thus who is responsible for alleged violations. The Panel considers three forms of responsibility. State responsibility concerns whether the State of Sri Lanka would be responsible for violations were the alleged acts found to be true. Under international law, state responsibility applies only to the acts of the State of Sri Lanka. Actions by non-state actors, such as paramilitary groups or private citizens who act under the instructions of, or are directed or controlled by, the State are imputable to the State.^[8] Organizational responsibility is a concept that recognizes that international humanitarian law also places duties on nonstate armed groups, including in this case the LTTE. Individual responsibility generally concerns whether particular individuals regardless of their affiliation in an armed conflict would be criminally responsible for violations. Criminal responsibility attaches to certain acts, regardless of whether the individual was acting on behalf of the Government or the LTTE (or neither). In addition, the Panel briefly considers some aspects of the application of Sri Lankan domestic law.

D. Alleged violations by the Government of Sri Lanka

192. Chapter III identified five categories of credible allegations concerning conduct by the Sri Lankan Government. This section lays out the Panel’s assessment of each category of allegation for the underlying legal violation.

1. Killing of civilians through widespread shelling

(a) Common Article 3 of the Geneva Conventions

193. In terms of paragraph (1)(a) of Common Article 3, i.e. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, credible allegations point to the murder of civilians in widespread shelling of an indiscriminate nature by the SLA. These include attacks in the three No Fire Zones. In terms of whether indiscriminate shelling may amount to murder, international jurisprudence accepts that “where a civilian population is subject to an attack such as an artillery attack, which results in civilian deaths, such deaths may appropriately be characterized as murder, when the perpetrators had knowledge of the probability that the attack would cause death.”^[9] The credible allegations also point to murder insofar as information, such as the Channel 4 videos, indicates that the SLA executed unarmed LTTE cadre who were taken into custody, particularly during the final days of the war.

(b) Requirement of distinction between combatants and civilians

194. International humanitarian law provides that “the parties to the conflict must at all times distinguish between civilians and combatants. Attacks may be directed only against combatants and must not be directed against civilians” (Rule 1, ICRC Study). Civilians are defined as “anyone who is not a member of the armed forces or of an organized military group belonging to a party to the conflict”.^[10] In cases of doubt as to the status of a person, that person shall be considered a civilian.

195. The credible allegations indicate that the Government of Sri Lanka did not respect the fundamental principle of distinction. The Government stated that its military operations in the Vanni yielded zero civilian casualties, when credible estimates of civilian casualties are in the tens of thousands; it also provided vastly low estimates of civilians trapped in the conflict zone. Together these indicate that it associated many or most people inside the conflict zone with the LTTE and thereby failed to take account of this bedrock principle.

(c) Ban on attacks on civilians or civilian objects

196. International humanitarian law prohibits attacks on civilians and civilian objects. Attacks may be directed only against military objects and combatants (Rule 7, ICRC Study). There is an “unconditional and absolute prohibition on the targeting of civilians in customary international law”.^[11] This norm is the most fundamental of those flowing from the principle of distinction. In addition, parties may not direct an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities (Rule 35, ICRC Study). In regard to the presence of the LTTE in the proximity of civilians in the NFZs, international tribunals, including the ICTY, have clarified that the ban on attacks against civilians protects a population that is “predominantly civilian”,^[12] and “the presence within the civilian population of individuals who do not come within the definition of civilians [i.e. combatants] does not deprive the population of its civilian character.”^[13]

197. In the case of Sri Lanka, it is important to consider the mental element of this prohibition from the context of the law on individual responsibility. Most significantly, the law does not prohibit only attacks in which the attacking party’s sole intent is to kill civilians deliberately. Reasoning by analogy from the First Additional Protocol, which defines the war crime of making civilians the object of attack in international armed conflict, requires that such a prohibited attack on civilians must be undertaken “wilfully”.^[14] According to the ICRC’s official commentary on the Protocol, “the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (criminal intent’ or malice aforethought’).”^[15] The ICTY’s authoritative jurisprudence has interpreted a “wilful” attack to also encompass an attack that is recklessness regarding the impact on civilians.^[16]

198. With respect to the determination of such intent to attack civilians, whether deliberately or recklessly, the ICTY has stated that: “the intent to target civilians can be proved . . . from direct or circumstantial evidence. There is no requirement of the intent to attack particular victims; rather it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack.”^[17] Whether the attack was directed against civilians can be inferred on a case-by-case basis from numerous factors, including the methods used in the attack, the distance between the victims and the source of fire and the number and appearance of the victims.^[18] Moreover, the ICTY has held that “indiscriminate attacks, that is to say, attacks that strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians.”^[19] In the same way, “certain apparently disproportionate attacks may give rise to the inference that civilians were actually the object of attack”.^[20]

199. As for any argument that the SLA did not intend to make the civilian population the object of attack, but that its attacks were aimed at the LTTE, an attack remains unlawful if it is conducted simultaneously at a lawful military object and an unlawfully-targeted civilian population.^[21] The SLA possessed and operated weapons and intelligence systems, in particular UAVs, that enabled lawful targeting, and the Vanni Commander and other Government officials received numerous communications to notify them when the SLA was striking civilian targets. In addition, with respect to hospitals, the law is clear that the possible presence of wounded LTTE in some hospitals does not transform those hospitals into legitimate military targets – they remain protected civilian objects.

200. It is thus clear to the Panel that credible allegations point to a violation of the ban on attacks directed against civilians insofar as the SLA, whether deliberately or recklessly, attacked civilians situated in the NFZs, as well as other civilian objects, such as hospitals and other humanitarian objects, including food distribution lines. In addition, the widespread shelling that is credibly alleged, notably across the succession of NFZs where the civilian population went at the Government’s urging, also points to a violation of the customary law rule that prohibits attacks, the primary purpose of which is to spread terror among civilians (Rule 2, ICRC Study).

(d) Ban on indiscriminate or disproportionate attacks against civilians

201. International humanitarian law prohibits indiscriminate attacks, generally considered to be those:

…which are not directed at a specific military objective;

(b) which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction (Rules 11-13, ICRC Study).

202. Credible allegations point to a violation insofar as the SLA employed artillery in a manner that did not target specific military objectives but struck civilians without distinction, including within the self-declared NFZs and civilian objects such as hospitals and food distribution lines. The alleged use of heavy weapons in respect of target areas heavily populated by civilians, or the widespread use of artillery in those areas, might itself be indiscriminate.

203. The law also prohibits “launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” (Rule 14, ICRC Study). This norm prohibits the disproportionate use of force defined in terms of anticipated excessive civilian casualties. While the Panel does not have information on all incidents, credible allegations suggest numerous violations of this provision insofar as the attacks on the NFZs were broadly disproportionate to the military advantage anticipated from such attacks.^[22] The Government’s repeated declaration that it had ceased using heavy weapons in these NFZs points to awareness that such usage could be considered disproportionate. Broadly speaking, once both the civilian population and the LTTE were confined to the very limited spaces of the second and third NFZs, the LTTE was no longer mobile as an armed force, and more precise means to defeat the LTTE than barrages of widely-spread artillery and mortar attacks could and should have been employed in order to ensure respect for international humanitarian law.

(e) Requirement of precautions before and during attacks

204. International humanitarian law requires parties to take all feasible precautions to avoid or minimize civilian casualties, including through verification that targets are military objectives, choice of means and methods of warfare to minimize civilian casualties, and if circumstances permit, through effective advance warning (Rules 15-20, ICRC Study).

205. Credible allegations point to a violation of this provision insofar as they indicate that the Armed Forces did not provide any or sufficient advance warning of attacks to the civilian population, including attacks on military targets that would have an impact on civilians. The leaflets that were periodically distributed in the Vanni did not constitute sufficient precautions for specific attacks. In addition, the Government’s instructions for civilians to move into the NFZs, only to be subsequently shelled by the SLA, disregarded this rule and in fact amounted to a cynical manipulation of it.

2. Shelling of hospitals and humanitarian objects

(a) Common Article 3 of the Geneva Conventions

206. The credible allegations of attacks on hospitals and humanitarian objects discussed above, in spite of their distinctive emblems and locations known by the Government, would give rise to a violation of the duty to “provide care for the sick and the wounded”, as enunciated in Common Article 3. They also point to murder in breach of Common Article 3, in that the targeting – whether direct or reckless – of known, populated hospital sites and humanitarian objects suggests that the perpetrators had the requisite knowledge of the probability that the attack would cause death.

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

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

(c) Ban on attacks on civilians or civilian objects

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

3. Denial of humanitarian assistance

(a) Common Article 3 of the Geneva Conventions

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

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

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

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

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

212. Credible allegations point to a violation of this provision insofar in that the Government

(i) deliberately and publicly underestimated the number of civilians in the Vanni, in order to justify a reduced amount of food relief;

(ii) impeded humanitarian convoys and ships from entering the conflict zone; and

(iii) knowingly shelled in the vicinity of humanitarian actors.

As a result, the civilian population was deprived of essential food and medicine, in particular in the second NFZ. The Government’s knowledge of these consequences is imputable from reports it received, notably from its AGA.

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

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

(a) Common Article 3 of the Geneva Conventions

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

(b) Ban on enforced disappearances

215. International humanitarian law prohibits enforced disappearances (Rule 98, ICRC Study). Credible allegations point to a violation of this provision insofar as they indicate that SLA and paramilitary groups removed individuals at various locations, through the screening process and at points of surrender, who have not been seen or heard from since that time. This issue has also been raised during the LLRC hearings.

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

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

(d) Requirements regarding the dead and the missing

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

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

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

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

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

(f) Ban on arbitrary detention

221. International human rights law guarantees to all persons freedom from arbitrary and unlawful detention (see ICCPR, article 9). Arbitrariness and lawfulness are measured with respect to both domestic law and international law values of proportionality and necessity. Anyone arrested shall be informed of the reasons for his arrest and of any charges; anyone arrested or detained on a criminal charge shall be brought promptly before a judicial officer and is entitled to trial within a reasonable time or to release. Persons awaiting trial should generally not be kept in custody.

222. Credible allegations point to a systematic practice of arbitrary detention, often for protracted periods, on a vast scale, and without access to counsel or the courts. This included, in particular, mass internment of IDPs in closed camps such as Menik Farm. There, the internment of up to 290,000 persons lasted and encompassed restrictions far beyond that possibly necessary to address reasonable security concerns; from April to September, essentially the entire IDP population was arbitrarily detained. In addition, almost 12,000 alleged former LTTE have been held in separate facilities in arbitrary detention, without procedural safeguards and access by the ICRC. The great majority of persons detained in these facilities have not been charged with any crime; for those charged with crimes, detention pending trial has been the near-universal rule.

(g) Rights to food and water, clothing and shelter, and to health

223. International human rights law guarantees the right of all persons to adequate food, clothing and housing (International Covenant on Economic Social and Cultural Rights, ICESCR, article 11). States have committed to “take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.” In addition, all persons have the right to enjoy the highest attainable standard of physical and mental health (ICESCR, article 12). The State must undertake measures necessary for the improvement of hygienic conditions, the prevention and treatment of disease and provision of adequate medical attention.

224. Credible allegations point to a violation of these provision insofar as the Government knew, or should have known, the true numbers of civilians who would emerge from the conflict zone – and for whom it would need to provide adequate care – were much higher than the number it was publicly citing; it failed to provide in advance for them or to remedy the situation once their needs became evident. By keeping Menik Farm and other camps closed, and failing to release the IDPs, it did not allow IDPs to seek shelter with relatives. The allegations point to violations insofar as there were a number of preventable deaths, as well as disease and inhumane conditions, in Menik Farm immediately after the war.

(h) Freedoms of assembly and association

225. International human rights law also guarantees freedom of assembly and association (ICCPR, articles 21 and 22). These rights may be limited when prescribed by law and necessary for national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. Any limitations must satisfy a test of proportionality.

226. Credible allegations point to a violation of this provision insofar as emergency powers and military necessity have been invoked repeatedly to suppress assemblies and association of groups, including the ability of IDPs to meet with international organizations or NGOs at screening points or in Menik Farm. These limitations are disproportionate to any legitimate assessment of public security and seem in part intended to prevent external contact with survivors of the conflict.

(i) Rights of women

227. Under international human rights law, States have an obligation to ensure equal rights to women to enjoy all civil, political, economic, social and cultural rights, without distinction of any kind (ICCPR article 2(1), article 3; ICESCR, Article 2(1), article 3; Convention on the Elimination of All Forms of Discrimination against Women). This obligation includes a duty to take all measures to eliminate discrimination against women (Convention on the Elimination of All Forms of Discrimination against Women, CEDAW, article 2(e)). Genderbased violence, defined as “violence that is directed against a woman because she is a woman or that affects women disproportionately… [and] includes acts that inflict physical, mental or sexual harm or suffering” represents discrimination against women (CEDAW General Recommendation 19). States have a duty to prevent violations, to investigate and punish acts of violence and to provide compensation, whether such violations are committed by a public or private actor.

228. Credible allegations point to violations of these rights insofar as women have been subjected to gender-based violence in camps and during the resettlement process, including most seriously rapes at Menik Farm, which have not been investigated. The Government failed to take measures to alter camp conditions that created an enabling environment for gender-based violence. Absent were any special measures to address the needs of vulnerable, war-affected women, including widows, single women-headed households, young mothers, wives and mothers of the detained and disappeared, survivors of sexual and gender-based violence, suspected LTTE and female former combatants.

(j) Special protection of families

229. International human rights law grants the family unit a particular importance, and the State is under an obligation to protect and promote it (ICCPR, articles 17 and 23; ICESCR, article 10). Credible allegations point to a violation of these duties in that during the escape from the conflict zone, the screening process and the transfer to hospitals and camps, family members in the custody of the State were separated with little regard to preservation of the family unit, permitting contact with separated family members or providing information as to their whereabouts. Few, if any, special measures were taken to provide protection for particularly vulnerable families, especially female-headed households. Moreover, the State inexplicably excluded the ICRC, with its highly skilled family tracing services, without setting up an adequate alternative.

(k) Special protection of children

230. International human rights law requires the State to take special measures to protect children, taking into account their particular vulnerability (ICCPR, article 24; ICESCR, article 10; Convention on the Rights of the Child (CRC)). This obligation is heightened in respect of unaccompanied children, as a result of their even greater vulnerability in the absence of parents or guardians. Credible allegations point to a violation insofar as no such special measures were taken at screening points or in the early phases of the detention at Menik Farm. Further, children surrendees were placed in Government detention without trial under the pretext of rehabilitation. They were moved between rehabilitation centres, which made it difficult to track their whereabouts or have family visits.

(l) Right to an effective remedy, including access to the courts

231. Under international law, the State is required to provide for an effective remedy for allegations of human rights violations that make arguable claims of a breach (ICCPR, article 2). For the most serious allegations of violations of the right to life and to physical security, this remedy includes an investigation and prosecution of responsible individuals. Access to fair and independent courts, to test the lawfulness of detention and to provide a remedy for violations, is the cornerstone of the protection regime (ICCPR, articles 2, 9, 14 and 26). This obligation is discussed further in chapter V.

232. Credible allegations point to a violation of these provisions insofar as very few of the alleged violations during the last stages of the war have been investigated, and those that have been undertaken are unlikely to satisfy international standards of effectiveness and independence. Access to the courts by victims has been dramatically curtailed or eliminated by law and restricted in practice. Individuals have almost no resort to the courts in respect of state officers exercising their official powers under the emergency legislation and regulations. Regarding detainees held under these powers, the courts have scant power to review the substantive justification of detention.

5. Human rights violations outside the conflict zone

(a) Ban on disappearances

233. International human rights law prohibits disappearances carried out anywhere in a State-party. An act of disappearance constitutes a violation of the right to liberty and security of person (ICCPR, article 9); the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (ICCPR, article 7); and the right of detainees to be treated with humanity and respect (ICCPR, article 10); it can also constitute a grave threat to the right to life (ICCPR, article 6). It represents a continuing violation of human rights until it is satisfactorily resolved.

234. Credible allegations point to a widespread practice in Sri Lanka, prior to, during and after the final stages of the war, of disappearances carried out by agents on behalf of the State, the victims of which were frequently suspected LTTE cadre, community activists, journalists or human rights defenders. Some were disappeared during the screening process. Credible allegations detail a common practice whereby such individuals were abducted and removed in white vans and never seen again.

(b) Freedom of opinion and expression

235. International human rights law protects the freedom to impart and receive information and to hold and express opinions (ICCPR, article 19). These rights may be limited only pursuant to law and where necessary to protect the rights or reputations of others, or for the protection of national security or of public order, public health or morals. Any limitations must satisfy a test of proportionality.

236. Credible allegations point to a violation of this provision insofar as the complete closure of the conflict area to independent journalists was disproportional to any public safety objective. The imposition of media guidelines in 2008 tightly limited reporting on the war and impeded media freedom. Journalists and media outlets seeking to present views divergent from those of the Government are credibly alleged to have faced a range of threats and some have been killed, disappeared or severely beaten.

E. Alleged violations by the Liberation Tigers of Tamil Eelam

1. Using civilians as a human buffer

237. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3’s ban on the taking of hostages insofar as they forced thousands of civilians, often under threat of death, to remain in areas under their control during the last stages of the war and enforced this control by killing persons who attempted to leave that area. (With respect to the credible allegations of the LTTE’s refusal to allow civilians to leave the combat zone, the Panel believes that these actions did not, in law, amount to the use of human shields insofar as it did not find credible evidence of the LTTE deliberately moving civilians towards military targets to protect the latter from attacks as is required by the customary definition of that war crime (Rule 97, ICRC Study)).

2. Killing civilians attempting to flee LTTE control

238. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3 (murder) in that the LTTE deliberately shot at and killed civilians, including women and children, trying to leave the conflict zone, notably in the second and third NFZs, in an attempt to maintain the civilian population forcibly on the LTTE’s side of the frontlines.

3. Using military equipment in the proximity of civilians

239. Ban on locating military objectives near densely populated areas: International humanitarian law prohibits the location of military objectives near densely populated civilian areas, where feasible (Rules 23-24, ICRC Study). Credible allegations point to a violation of this provision insofar as they indicate patterns of conduct whereby that the LTTE deliberately located or used mortar pieces, other light artillery, military vehicles, mortar pits, bunkers, and trenches in proximity to civilian areas. These locations included hospitals and concentrations of IDPs, including in each of the NFZs. This illegal practice does not relieve the SLA of its duties to comply with various precautions noted above to ensure respect for the rules of distinction and proportionality.

4. Forced recruitment of children

240. Ban on Forcible Recruitment of Children: International humanitarian law prohibits the forced recruitment of children. Although there is disagreement as to the exact age limit, States agree that it is at least 15 (Rule 136, ICRC Study). Credible allegations point to a violation of this provision insofar as they indicate that the LTTE forcibly recruited boy and girl children as young as 14, particularly in the late stages of the war. This forced recruitment, as well as the separation of young people from their families, when recruits had a high likelihood of dying in the final battles, could also amount to cruel treatment as a violation of Common Article 3.^[23]

5. Forced labour

241. Ban on Forced Labour: International humanitarian law prohibits uncompensated or abusive forced labour (Rule 95, ICRC Study). Credible allegations point to a violation insofar as the LTTE forcibly required many civilians to assist them in building fortifications and making other contributions to the war effort, sometimes in dangerous circumstances and frequently when separated from their families. In circumstances where the exposure to manifest risk of loss of life or physical harm was high, such as in the late stages of the war, this practice could also constitute cruel treatment in breach of Common Article 3.

6. Killing of civilians through suicide attacks

242. Common Article 3 of the Geneva Conventions: Credible allegations point to a violation of Common Article 3 (murder) insofar as the LTTE are credibly alleged to have perpetrated a number of suicide attacks, both in and outside of the conflict zone, against civilians. Outside the conflict zone, the LTTE perpetrated a number of suicide attacks during the final stages of the war, including attacks that killed large numbers of civilians, such as at a screening centre in Mullaittivu on 9 February 2009, or as part of the attack on Minister Mahinda Wijesekera on 10 March 2009. The Panel notes that these attacks constitute a clear violation of the ban on intentional or indiscriminate attacks on civilians discussed above. Suicide attacks were a common practice of the LTTE throughout its existence and the fear of suicide attacks may have contributed to – though did not and could not justify – violations perpetrated by the Government.

243. Finally, in light of the Panel’s views regarding the human rights obligations of nonstate actors (see A.2 above), the Panel has not addressed human rights violations beyond those that it has characterized as violations of international humanitarian law. The Panel has not considered LTTE abuses outside the conflict zone under international human rights law because of the uncertainty surrounding whether non-state actors have human rights obligations beyond the territories they control.

F. Individual criminal responsibility under international law

244. A number of the alleged violations of international humanitarian and human rights law discussed above incur individual criminal responsibility under international law. The Panel’s mandate is not to discuss the potential liability of particular individuals on either side of the armed conflict. The conclusions below are limited to stating whether the credible allegations, if proved, could potentially constitute crimes under international law; further investigation would be required to identify the individuals responsible for the criminal acts in question and to assess their state of mind (mens rea) at that time.

245. The Panel has limited its consideration to crimes defined under treaties to which Sri Lanka is a party or crimes under customary international law, focusing its analysis on whether the credible allegations point to the commission of a crime. As earlier, the Panel discusses only the most serious crimes. Later in the report, the Panel addresses the consequences of such alleged criminal acts in terms of the duties they create on Sri Lanka and the role for other States and the United Nations.

1. War crimes

246. International law provides for individual criminal responsibility for certain, but not all, violations of international humanitarian law. Although the Geneva Conventions do not list or define those violations during internal armed conflicts that constitute war crimes, other authoritative sources of international law have elaborated these crimes, and their criminality is now beyond doubt. Notable in this regard is the Rome Statute of the International Criminal Court (ICC), in particular Articles 8(2)(c) and (3). While Sri Lanka is not a party to that statute, the list and definitions of war crimes in non-international conflicts is broadly illustrative, if not precisely reflective, of customary international law. The Panel also relies on the ICRC in its comprehensive study of customary law.

247. The Panel believes that the credible allegations and violations point to the commission of the following war crimes by persons acting on behalf of the Government of Sri Lanka:^[24]

(a) Serious violations of Common Article 3, including violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, including rape; outrages upon personal dignity, in particular humiliating and degrading treatment; and failure to collect and care for the wounded and sick;

(b) Intentional attacks on civilians;

(c) Indiscriminate or disproportionate attacks on civilians;

(d) Attacks on medical and humanitarian objects, including humanitarian convoys and Red Cross-designated facilities;

(e) Starvation of the population and denial of humanitarian relief; and

(f) Enforced disappearances.

248. The Panel believes that the credible allegations and violations point to the commission of the following war crimes by persons on behalf of the LTTE:

(a) Serious violations of Common Article 3, including violence to life and person, in particular murder of all kinds, mutilation, cruel treatment (including forced labour) and torture; and taking of hostages; and

(b) Forcible recruitment of children.

2. Crimes against humanity

249. International law also establishes that certain abuses that form part of a widespread or systematic attack on a civilian population can constitute international crimes. Crimes against humanity have been defined in a number of international instruments, including the ICTY, International Criminal Tribunal for Rwanda (ICTR), and ICC Statutes. If the requisite elements are met, these acts are crimes regardless of any nexus to an armed conflict. The particular list of crimes varies across instruments, although, as with the list of war crimes, the list in the ICC Statute is broadly illustrative of customary international law.

250. The threshold requirement for crimes against humanity is the existence of a widespread or systematic attack directed against a civilian population.^[25] With respect to the meaning of a civilian population, the inclusion in a civilian population of military elements or combatants does not affect its status as civilian.^[26] As for an attack, it encompasses any mistreatment of that population and is not limited to armed conflict.^[27] In determining the widespread or systematic nature of an attack, the ICTY, for instance, has considered the number, pattern and concentration of criminal acts; the consequences upon the targeted population; the participation of officials or authorities in the attack; the logistics and financial resources involved; the number of victims; the existence of a plan or policy (which is required under the ICC Statute); the methods used in the attack; the adoption of various discriminatory measures against the population; and other factors. The ICC Statute requires that a perpetrator have knowledge of the attack; this state of mind need not, however, include awareness of all the details of the attack.

251. With respect to the Government of Sri Lanka, the credible allegations above point to a widespread or systematic attack on the civilian population of the Vanni during and subsequent to, as well as perhaps preceding, the final stages of the war. This attack included the widespread shelling of a large IDP population; extrajudicial killings and disappearances in the aftermath of the armed conflict; deprivation of food and medicine; large-scale imprisonment; and other violations, including on discriminatory grounds. As for the particular acts constituting crimes against humanity, the Panel concludes that credible allegations and violations point to the commission by the Government of the following crimes against humanity:

(a) Murder.

The ICTY has held that “[t]he constituent elements of murder …comprise the death of a victim as a result of the acts or omissions of the accused, where the conduct of the accused was a substantial cause of the death of the victim.”^[28] The mental element or mens rea required for murder as a crime against humanity is not limited to premeditation, but encompasses reckless disregard for human life.^[29] The credible allegations support a finding of the crime against humanity of murder insofar as the SLA killed civilians through widespread shelling.

(b) Extermination.

Under the ICC Statute, extermination includes “intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population” (Art. 7(2)(b)). The part of the population subject to extermination has to be “numerically significant”.^[30] The credible allegations support a finding of the crime against humanity of extermination insofar as the conditions imposed on civilians in the final months in the NFZs were calculated to bring about the destruction of a significant part of the civilian population.

(c) Imprisonment.

Imprisonment is a crime against humanity where civilians have been detained without reasonable grounds, arbitrarily or without legal basis.^[31] The credible allegations support a finding of the crime against humanity of imprisonment insofar as the detention of hundreds of thousands of IDPs at Menik Farm was without reasonable grounds.

(d) Persecution.

Persecution is a discriminatory act or omission founded on race, religion or politics that is intended to infringe an individual’s enjoyment of a basic or fundamental right, and of the same level of gravity as other acts considered as crimes against humanity.^[32] The credible allegations support a finding of the crime against humanity of persecution insofar as the other acts listed here appear to have been committed on racial or political grounds against the Tamil population of the Vanni, which was perceived by the Government as supporting the LTTE.

(e) Disappearances.

The ICC Statute defines disappearances as “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time” (Art. 7(2)(i)). The credible allegations support a finding of the crime against humanity of disappearances insofar as numerous persons, perceived by the Government to be critical of its approach or sympathetic to the LTTE, have been disappeared during and after the final stages of the war.

252. With respect to the LTTE, the credible allegations and violations above point to a widespread or systematic attack on the civilian population of the Vanni during the final stages of the war, insofar as there was a consistent and widespread practice of holding civilians against their will and killing some of those who tried to leave. As for the particular acts constituting crimes against humanity, the Panel concludes that credible allegations point to the commission by the LTTE of the crime against humanity of murder, according to the definition above, based on the LTTE’s killing of those seeking to flee as well as its use of suicide bombers against civilians during the war.

3. Scope of individual responsibility

253. International law recognizes criminal responsibility both for individuals who commit the acts as well as military commanders and civilian superiors. As to individuals committing the acts, the statutes and jurisprudence of international and domestic tribunals have recognized that commission of crimes can encompass

(i) direct execution of the acts constituting the crime;

(ii) aiding and abetting the direct perpetrators;

(iii) planning or instigating the crime;

(iv) ordering the crime; and

(v) participating in a joint or collective enterprise, or conspiracy, to commit them.

254. As to military and civilian commanders and superiors, international law also imposes criminal liability where

(i) there is a superior / subordinate relationship with the perpetrator(s), over whom effective control is exercised;

(ii) the commander or superior has actual or constructive knowledge of the crimes committed or about to be committed; and

(iii) the commander or superior fails to take necessary and reasonable measures to prevent, repress, or punish their commission.

255. Credible allegations presented to the Panel suggest that SLA commanders and senior Government officials, as well as military and civilian LTTE leaders, bear criminal responsibility for international crimes under these forms of liability.

G. Individual criminal responsibility under Sri Lankan law

256. The Panel wishes to summarize briefly the range of individual criminal responsibility under Sri Lankan Law, recognizing that independent domestic courts are in the best position to interpret that law. The major source of relevant criminal law is the Penal Code of Sri Lanka. Other laws contain criminal provisions complementing the Penal Code, for example, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 (CAT Act), providing for a crime of torture,^[33] and the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007, criminalizing the propagation of war or advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence (art. 3).^[34] The Penal Code also sets out liability for abetting and conspiracy (Chs. V-V.A), as well as defences, excuses and justifications (Ch. IV). The Army Act, No. 17 of 1949, sets out a series of military offences and provides for the concurrent application of military and civilian jurisdiction to offences by military personnel, namely regular, reserve and volunteer force personnel.

257. The credible allegations would point to the following crimes under the Penal Code committed by either or both parties to the armed conflict: waging war against the State (s.114); collection of men and arms with intent to wage war (s.116); excitement of disaffection (s.120); offences of unlawful assembly and rioting (s.138-155); murder and culpable homicide (ss.293-295); death by negligence (s.298); voluntarily causing hurt or grievous hurt (ss.310-326); endangering human life or safety of others (s.327); causing hurt or grievous hurt by rashly endangering human life or safety of others (ss.328-329); wrongful restraint and confinement (ss. 330-333); wrongful confinement in special categories (ss. 334-339); abduction and kidnapping (ss. 353-359); rape (ss.363-364); assault and use of criminal force (ss. 340-349); forced labour, slavery and use of children in armed conflict (s.358A), grave sexual abuse (s.365B); and extortion (s.372-378). There are likewise credible allegations that would point to crimes of torture (s.2 of CAT Act) and propagation of war and advocacy of national, racial or religious hatred (s.3 of ICCPR Act). Moreover, credible allegations point to commission by military personnel of military offences under the Army Act, including: disgraceful conduct (s.107); commission of an act of a cruel, indecent or unnatural kind (s.109(e)); unnecessary detention (s.112(a)); and conduct prejudicial to good order and discipline (s.129(1)). This list represents only the most serious crimes.

H. Conclusions

258. The final stages and aftermath of the war in Sri Lanka were characterized by a wide range of violations by both the Government of Sri Lanka and the LTTE of international humanitarian law and international human rights law, some even amounting to war crimes and crimes against humanity. More than 300,000 people became the victims of the reckless disregard for international norms by the warring parties. Indeed, the conduct of the war by them represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace. The victory of one side has emboldened some to believe that these rules may now be disregarded in the cause of fighting terrorism.

259. To summarize the Panel’s legal assessment:

(a) With respect to the Government, the credible allegations point to these violations of international humanitarian law: violations of Common Article 3 of the Geneva Conventions; the requirement of distinction between combatants and civilians; the ban on attacks on civilians or civilian objects; the ban on indiscriminate or disproportionate attacks against civilians; the requirement of precautions before and during attacks; the requirement of special protection to medical and humanitarian personnel and objects; the ban on starvation of the civilian population and denial of humanitarian relief; the ban on enforced disappearances; requirements of minimal level of treatment for those deprived of liberty; and requirements regarding the dead and missing. With respect to human rights law, the credible allegations point to violations by the Government of the rights to life and physical security and integrity of the person; the ban on arbitrary detention; the rights to food, water, clothing, shelter and health; freedoms of assembly and association; the rights of women; special protection of families; special protection of children; the right to an effective remedy; the ban on disappearances; and freedom of opinion and expression.

(b) With respect to the LTTE, credible allegations point to violations of Common Article 3 of the Geneva Conventions, the ban on locating military objectives near densely populated areas, the ban on forcible recruitment of children and the ban on forced labour.

(c) The credible allegations also point to the commission of the following war crimes by individuals acting on behalf of the Government: serious violations of Common Article 3 of the Geneva Conventions; intentional attacks on civilians; indiscriminate or disproportionate attacks on civilians; attacks on medical and humanitarian objects, including humanitarian convoys and Red Cross-designated facilities; starvation of the population and denial of humanitarian relief; and enforced disappearances.

(d) The credible allegations point to the commission of the following war crimes by the LTTE personnel: serious violations of Common Article 3 and forcible recruitment of children.

(e) The credible allegations point to the commission of the following crimes against humanity by the Government: murder, extermination, imprisonment, persecution and disappearances.

(f) The credible allegations point to the commission by the LTTE of the crime against humanity of murder.

(g) In the case of both war crimes and crimes against humanity, credible evidence points to the responsibility of superiors for their subordinates’ actions.

260. These credibly alleged violations demand a serious investigation and prosecution of those responsible.

Footnotes

1. (103) Prosecutor v. Tadić, Case No. IT-94-1 (ICTY Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, at para. 70; Prosecutor v. Kunarac et al., Case No.IT-96- 23 and IT-96-23/1 (ICTY Appeals Chamber), Judgment, 12 June 2002, at para 56. That definition was later adopted by other bodies and judicial authorities as representing customary international law.
2. (104) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p.136, at paras. 104-106.
3. (105) Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement, I.C.J. Reports 2005, p. 168.
4. (106) These are the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social, and Cultural Rights (State party to both since 1980), the International Convention on the Elimination of All Forms of Racial Discrimination (since 1982), the Convention on the Elimination of All Forms of Discrimination against Women (since 1981), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (since 1994), the Convention on the Rights of the Child (since 1991) and its optional protocols on the involvement of children in armed conflict (since 2000) and on sale of children, child prostitution and child pornography (since 2006).
5. (107) The articles specifically derogated from were articles 9(3), 12(1), 12(2), 14(3), 17(1), 19(2), 21 and 22. Sri Lanka had also previously entered derogations with respect to the earlier phases of the conflict.
6. (108) Note, in particular, the Human Rights Committee’s General Comment No. 29 on States of Emergency (Art.4), CCPR/C/21/Rev.1/Add.11, 31 August 2001. Sri Lanka’s June 2010 notice of termination of derogations was linked to amendments made in May 2010 that repealed significant parts of the Emergency (Miscellaneous Provisions and Powers) Regulations of 2005. However, Regulation 21 of the 2010 amendments provides that the 2005 regulations remain in force in respect of all persons subject to detention orders under the 2005 Regulations. As the now-lifted derogations were intended to save the past application of these Regulations from breaching the Covenant, the continued application of the full set of the Emergency Regulations with respect to this group of persons appears to be in breach of the Covenant.
7. (109) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports, 1986, p.14, at para. 218.
8. (110) International Law Commission’s “Articles on responsibility of States for internationally wrongful acts,” annexed to General Assembly Resolution A/RES/56/83 (28 January 2002), at art. 8.
9. (111) Prosecutor v. Strugar, Case No. IT-01-42-T (ICTY Trial Chamber), Judgment, 31 January 2005, at paras. 240.
10. (112) Prosecutor v. Galić, Case No. IT-98-29-T (ICTY Trial Chamber), Judgment, 5 December 2003, at para. 47.
11. (113 Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T (ICTY Trial Chamber), Judgment, 12 December 2007, at para. 944, citing Prosecutor v. Blaškić, Case No. IT-95-14-A (ICTY Appeals Chamber), Judgment, 29 July 2004, at para. 109, and Prosecutor v. Kordić et al., Case No. IT-95-14/2-A (ICTY Appeals Chamber), 17 December 2004, at para. 54.
12. (114) Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A (ICTY Appeals Chamber), Judgment, 12 November 2009, at paras. 50-51 (emphasis original), citing Prosecutor vs. Galić, (ICTY Appeals Chamber), Judgment, 20 November 2006, at para. 144, and Prosecutor v. Kordić et al., (ICTY Appeals Chamber), op. cit., at para 50
13. (115) Prosecutor v. Kordić et al., (ICTY Appeals Chamber), op. cit., at para 50. Prosecutor v. Galić, (ICTY Trial Chamber), op. cit., at para. 50.
14. (116) Protocol I, Article 85(3).
15. (117) ICRC Commentary to Protocol I, Article 85. It also notes, “The notion of ‘wilfulness’ encompasses the concepts of ‘wrongful intent’ or ‘recklessness,’ viz. the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered . . .”
16. (118) Prosecutor v. Galić, (ICTY Trial Chamber), op. cit., at para 54 (“the perpetrator who recklessly attacks civilians acts ‘wilfully’”); confirmed in ICTY Appeals Chamber, Judgment, Nov. 30, 2006, at para. 140. See also Prosecutor v. Strugar, Case No. IT-01-41-A (ICTY Appeals Chamber), Judgment, 17 July 2008, at para. 270.
17. (119) Prosecutor v. Strugar, (ICTY Appeals Chamber), op. cit., at para. 271 (footnotes omitted, emphasis original).
18. (120) Prosecutor v. Galić, (ICTY Appeals Chamber), op. cit., at paras.132-133, adopting Prosecutor v. Kunarac et al., (ICTY Appeals Chamber), op. cit., at para 91. See also Prosecutor v. Strugar, (ICTY Appeals Chamber), op. cit., at para. 271.
19. (121) Prosecutor v. Galić, (ICTY Trial Chamber), op. cit., at para. 57.
20. (122) Prosecutor v. Galić, (ICTY Appeals Chamber), op. cit., at para.133 (emphasis omitted).
21. (123) Prosecutor v. Katanga, ICC-01/04-01/07 (ICC Pre-Trial Chamber I), Decision on the confirmation of charges, 30 September 2008, at para. 273.
22. (124) The intent requirement for individual responsibility for a disproportionate attack is to launch such an attack “wilfully and in knowledge of circumstances giving rise to the expectation of excessive civilian casualties.” Prosecutor v. Galić, (ICTY Trial Chamber), op. cit., at para. 59.
23. (125) Prosecutor v. Blaškić, (ICTY Appeals Chamber), op. cit., at para. 597 (treatment is cruel when it “causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.”)
24. (126) The credible allegations that form the basis for these war crimes are addressed in the discussion of the international humanitarian law violations in sections D and E above.
25. (127) The ICC Statute states that “for the purposes of this statute” crimes against humanity be committed “pursuant to or in furtherance of a State or organizational policy to commit such attack.” The element of a state policy is generally not required in customary international law, although, in the case of Sri Lanka, the allegations are of such a nature to be able to infer a State or organizational policy.
26. (128) Prosecutor v Blaškić, (ICTY Appeals Chamber), op. cit., at para 115.
27. (129) Prosecutor v Kunarac et al., (ICTY Appeals Chamber), op. cit., at para. 86.
28. (130) Prosecutor v. Kupreškić et al., Case No. IT-95-16 (ICTY Trial Chamber), Judgment, 14 January 2000, at para. 560, citing Prosecutor v. Akayesu, ICTR-96-4-T (ICTR Trial Chamber), Judgment, 2 September 1998, at para. 589.
29. (131) Prosecutor v. Akayesu, (ICTR Trial Chamber), at paras. 589-590.
30. (132) Prosecutor v. Krstić, Case No. IT-98-33 (ICTY Trial Chamber), Judgment, 2 August 2001, at paras. 502.
31. (133) Prosecutor v. Kordić et al., Case No. IT-98-33 (ICTY Trial Chamber), op. cit., 17 December 2004, at para. 303.
32. (134) Prosecutor v. Kvočka et al., Case No. IT-98-30/1 (ICTY Appeals Chamber), Judgment, 28 February 2005, at paras. 319-320.
33. (135) The statutory definition of the crime is however at variance with the international definition set out in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a position which has been criticized by the United Nations Committee against Torture (CAT/C/LKA/2 (2005), at para. 5)
34. (136) For completeness, the Panel notes that the emergency regime defined in the Prevention of Terrorism Act and the Emergency Regulations also sets out a series of offences that on their face may also be applicable to, essentially, acts of alleged LTTE cadres. However, the constitutionality of application of many of these provisions has not been tested in court; moreover, they raise serious doubts regarding compliance with international human rights norms, notably standards of reasonable accessibility, foreseeability, clarity and fair notice, equality before the law and the proportionality of the associated sentences. Due to these uncertainties, the Panel declines to further discuss potential application of these emergency offences.