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Volume 3 / Issue 2 / Winter 2016 Military Operations TJOMO.com

Page 15

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.

To cite this Article:

Niruthan, Nilanthan, “International Law and The Counterinsurgent’s Nightmare: A Sri Lankan

Case Study”,

Military Operations

, Volume 3, Issue No. 2, Winter 2016, pages 15-17.

International Law and The Counterinsurgent’s

Nightmare: A Sri Lankan Case Study

Nilanthan Niruthan

Sri Lankan Armed Forces, by Chamal Pathirana

[CC BY-SA 3.0

(http://creativecommons.org/licenses/by-sa/3.0

)], via Wikimedia Commons