International Law and The Counterinsurgent’s Nightmare: A Sri Lankan Case Study

Sri Lankan Armed Forces, by Chamal Pathirana
[CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons
 

In his annual report submitted at the 28th UNHRC session in Geneva, the UN High Commissioner for Human Rights urged the Sri Lankan government[i] to ensure “failures of the past” were not repeated and that a foundation for reconciliation was laid. This comes in the context of successive UNHRC resolutions adopted in 2012, 2013 and 2014 demanding that an independent investigation be held on allegations of human rights violations by the Sri Lankan army in the civil war against the LTTE.

While international legal interest in Sri Lanka’s military campaign comes with tremendous potential for good, it does expose worrying problems for counterinsurgency practitioners and theorists around the world. International humanitarian law is appropriately robust to deal with conventional warfare, but turns into a counterinsurgent’s nightmare in modern asymmetric conflicts, as it places obligations which render the State utterly impotent in the face of a brutal adversary and encourages insurgents to blur the distinction between civilians and combatants.

The Sri Lankan conflict is a useful case study to illuminate this and will be particularly pertinent to democratic states involved in counterterrorism operations, like India, Israel and the United States. After all, the LTTE was a highly sophisticated insurgent and its methods are a textbook example of what is now referred to as “Hybrid Warfare”, which we see gaining traction all over the world. It possessed an army, a navy and an air force, enabling it to resort to unconventional and conventional warfare as it pleased, forcing civilians to serve as shields and readily disguising its members as non-combatants in order to gain a tactical advantage.

Impunity for Non-State Actors

There is no established system that restrains the use of force by non-state actors. While the LTTE was free to use targeted killings, suicide bombers, human shields, torture, child soldiers and anti-personnel mines to achieve their tactical objectives without the threat of legal prosecution, the Sri Lankan army could not adopt a cavalier attitude towards the obligations placed upon it by international law. As nations like India and the USA also consistently find in their military campaigns, the tools at the State’s disposal are limited, often devastatingly so, in comparison to those of the insurgent.

It should perhaps not come as a surprise to anyone that insurgent groups are more or less immune to legal action, since a large bulk of humanitarian law (like the Hague and Geneva conventions) was envisioned with State vs State conflicts in mind. There are no legal mechanisms capable of preventing groups like the LTTE or ISIS from breaking the law on the battlefield or of holding them accountable once the damage is done. While there might be restrictions in theory, there are no arrangements in place to enforce them. One could argue that this is untrue and that non-state actors have been prosecuted in the International Criminal Court, but even a cursory look at the scope and effectiveness of those prosecutions would reveal how inadequate that legal regime is.

Consider the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. Though the Convention completely bans the use of anti-personnel mines, employing them (along with even cruder booby traps) was a huge part of the LTTE’s combat style, eventually resulting not only in the maiming of Sri Lankan soldiers but hundreds of civilians as well. There was no procedure available to anybody to hold the LTTE legally accountable for violating the ban. Even after they were defeated, the de-mining process took years, hurting post-war resettlement plans.

Another factor contributing to this could also be the misconception among many that the gratuitous use of force weakens the cause of the insurgent, as it alienates the local population. This might be true if one was to accept the effectiveness of the “hearts and minds” approach. However, in large swathes of the world, especially in guerrilla conflicts where the local population is far weaker than the insurgent financially and politically, this does not seem to be the case. The LTTE was utterly relentless in its brutality and rarely paid a price for it, since the civilian population under its control was totally incapable of resistance. Some emphasize the need to act humanely so that neutral parties might switch over to or remain on the counterinsurgent’s side. The truth however, is that such parties are usually negligible in number. In asymmetric warfare across the world, the will of rural civilians unfortunately makes almost no difference to the outcome of armed engagements.

There is an inherent problem that exists with non-state groups in this regard. Since they inevitably rely on terrorism as a prominent tool in their arsenal, a rejection of concepts like the rules of war is part of their very nature. It is futile to expect them to take heed of legal obligations listed in Treaties and Conventions they are not even a party to. The innumerable bomb blasts orchestrated by the LTTE through the decades, for instance, were a clear violation of humanitarian law, but any legal considerations were dismissed by the organization’s propagandists and sympathizers as irrelevant in a struggle for freedom of this kind. The army on the other hand could never justify its actions purely in terms of tactical advantage, since the State is expected to behave better.

The Counterinsurgent’s Nightmare

While insurgents can get away with nearly every illegality, States are subjected to restrictions that are often crippling. For a soldier on the battlefield today, there are two legal principles that he or she must always have in mind while using force – Distinction and Proportionality. In theory, both principles lay down requirements that mandate the protection of civilians, but in practice they give non-state armed groups more incentive than ever before to use civilians as pawns in asymmetric warfare. There is a third principle – Military Necessity – which is the go-to principle for practitioners to justify their actions. As the element of necessity is determined solely by those who exercise force themselves, it is often criticized for being arbitrary and subjective, and will not be discussed here. Distinction and Proportionality are explicitly stated in the Geneva Conventions, and that is where the focus ought to be.

Distinction requires belligerents in a conflict to always classify civilians and combatants as two separate entities, the idea being that while combatants can be considered legitimate targets, civilians cannot. The principle is enshrined in Article 48 of the 1977 Additional Protocol I to the 1949 Geneva Conventions, which declares that ‘…the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.’

While Additional Protocol I applies only to international armed conflicts, Distinction is also considered a part of customary law, which means that it would apply to non-international armed conflicts as well. Here is the problem. In traditional warfare where two uniform-wearing armies gather on a battlefield to attack each other, it is understandable for the law to demand that civilians not be targeted. In the irregular wars of today however, it is an impossible task, since combat takes place not on some open field between the two States, but in cities, towns and villages where anyone could be a combatant.

In the infamous April 2006 attack on Sri Lanka’s then army commander, General Sarath Fonseka, the suicide bomber sent after him was disguised as a pregnant woman. The LTTE often blended into the general public this way, orchestrating more than 315 such attacks – more than Hamas and Hezbollah combined.[ii] During any military engagement against the LTTE, it was consistently unviable to abide by the Distinction principle, since they had mastered the use of disguise.

When the Indian Peacekeeping Forces fought the separatists, they noted that armed cadres were always accompanied by an equal number of unarmed ones, usually to provide ammunition or carry their slain comrades away. If they could not carry a corpse away, they would clothe it in a ‘lungi’ (a traditional Sri Lankan sarong) in order to perpetrate the notion that it was a civilian who had died.[iii] In the final offensive by the Sri Lankan army in 2009, the LTTE’s ability to blur the lines took on horrifying proportions. They used child soldiers wearing civilian clothes to charge in and assault their way through the army’s defenses, creating fatal moments of hesitation that led to the deaths of several Sri Lankan soldiers.[iv]

This is not a problem unique to the Sri Lankan context, though it is a prominent example of it. Distinction was formulated with good intentions, but for a style of warfare that is simply not prominent today. As conflicts become increasingly urban and against groups that rely on the element of surprise to seize the initiative, it has the opposite effect of granting the insurgent a decisive advantage.

The same could be said of the Proportionality principle as well, which is also considered part of customary law. It is codified in both Article 8(2)(b)(iv) of the ICC statute and Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, which prohibits any ‘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.’

This too, while clearly intended to outlaw the gratuitous use of force in battle, becomes impossible to abide by when the adversary is adept at using human shields and attacking from the midst of civilian areas. For several years, a favored tactic by the LTTE was to gather specially trained members in a village, assemble their artillery and fire at army bases nearby. By the time the army could respond with any firepower, the insurgents would have escaped back into the jungles. In essence, this continuously forced the army to retaliate in defense, damaging the villages instead. This would be considered a breach of Proportionality, despite being deliberately orchestrated by the insurgents. As Israel too found out with the Goldstone report, the international community is reluctant to take heed of these imperatives while assessing a counterinsurgent’s decision to open fire on civilian areas.

More worrying is the response to the final offensive in 2009, which is the root of most allegations that throw around words like “genocide” and “ethnic cleansing”. The Sri Lankan army was faced with a cruel choice due to the LTTE’s forcible use of tens of thousands (some estimates put the number of trapped civilians at over 200,000) of non-combatants[v] as human shields. The choice was between endangering the lives of the civilians boxed in with the LTTE or allowing the insurgents, including their notorious leader Velupillai Prabakaran, to escape by blending in, thus negating all the sacrifice and bloodshed incurred so far.

As a counterinsurgent, the Sri Lankan state took a military decision to prioritize the annihilation of the rebels in order to end the war and relieve the entire country from an insurgency that had gripped it in fear for over three decades. Neutral experts representing neither the Sri Lankan army nor international human rights lobbies, like Indian security analysts Nithin Gokhale and Narayan Swamy, have not observed any deliberate genocidal motive behind the decision. Yet, like Israel, the ire of the international community is directed squarely at the State, with allegations of mass murder from many quarters. The UNHRC resolutions are by themselves a reflection of what is perhaps an unintentional but nonetheless demonstrable bias favoring non-state actors.

From a purely security related perspective, this raises important questions. If it is indeed wrong for counterinsurgents to breach Proportionality even while human shields are used, does this not give insurgents in all future conflicts a brutal but secure tactical option? Does this not actively incentivize non-state armed groups all over the world to adopt this tactic? What are States to do, other than capitulate, when human shields are used?

Conclusion

Thus, the issue might not be how insurgents can be held accountable, since a rejection of conventional laws is an inborn trait in them, but how law-abiding States can be given the freedom to cope with this imbalance. It is clear that something needs to change, for the rules meant to protect civilians are steadily becoming their worst enemy.

A radical solution would be for democratic states to form an alliance of sorts to officially recognize that the structure of humanitarian law today is grossly out of touch with reality. There needs to be a strong legal consensus built up by countries that currently or potentially face security challenges similar to Sri Lanka. If Distinction and Proportionality continue to paralyze counterinsurgents in this manner, the only possible outcome is that countries get disillusioned with the international legal system altogether, eroding even the credibility of appropriate laws in armed conflicts. Laws that cannot regulate the actions of both parties to a conflict cannot be considered legitimate; unless they allow the side whose actions they restrain a reasonable margin of freedom.

This could be criticized as a counterproductive suggestion, as it is only the democratic states of the world that can be relied upon to enforce international standards of conduct. But the opposite is then true as well – that since the democracies are the only parties who agree to limit their military operations in the interest of humanitarianism, it is all the more vital that they not be penalized by outdated laws for their commitment to avoid gratuitous harm.

Another suggestion is that a new principle be introduced in international law – the “Lesser Evil” test.[vi] What this concept envisions is simple – that if a State has to exercise the use of force in order to spare civilians even greater misery in the future, or to defend a large number of non-combatants, or any other purpose which can be objectively assessed as being part of the greater good, it must be allowed the freedom to do so, even if this means breaching the other rules of war. This would free up democratic States whose soldiers intend to pursue the laws of war wherever possible, without having to compromise their safety in the face of insurgents who use civilians for leverage.

Whatever the situation and the acceptable solutions may be, something has to change in order to defeat outfits like ISIS, the Naxalites, Boko Haram, Al Qaeda and Lashkar-e-Taiba, which seriously undermine either global or regional security. As long as the Sri Lankan or Israeli style of counterinsurgency is rejected by the international community, there is little chance of any success. It is about time that more practitioners and academics started highlighting this problem. Until then, international humanitarian law shall remain the counterinsurgent’s nightmare.