INDICTMENT AGAINST SRI LANKA
Sri Lanka's Genocidal War - '95 to '01
Denial of Food & Medicine - a War Crime says Professor Paust
"...Under human rights law, there is a recognised right to adequate and available food......whatever the full contours and permeations of the right to food might be, it is clear that it constitutes a violation of the human rights law to deny adequate food to a given population. Moreover, it would be especially unlawful and egregious to deny the right to adequate food as government tactic to control certain persons or as a weapon of war. The most egregious violations include denials of food and medicine or medical supplies, especially for children.… If food is likely to be used by both the general population and enemy combatants, the destruction or denial of food, in circumstances where one can reasonably foresee that the general population will suffer, will necessarily involve the indiscriminate use of food as a weapon. [these] denials also violate related prohibitions under the laws of war, and constitute serious war crimes... Fear of food falling into the hands of enemy combatants is not an excuse for denying food to the civilians... starvation even of enemy combatants, seems necessarily inhumane because it involves unnecessary and lingering death and suffering.."
Professor Jordan J. Paust in an Essay published in the Vanderbilt Journal of Transnational Law in May ’98 (titled 'The Human Rights to Food, Medicine and Medical Supplies, and Freedom from Arbitrary and Inhuman Detention and Controls in Sri Lanka') stated:
Introduction
"Are the denial of adequate and available food and the denial of adequate and available medicine and medical supplies violations of human rights law? This Essay demonstrates that such denials are not only violations, but are quite serious violations of basic human rights.
Such denials of food or medicine and medical supplies tend to be among the most egregious types of human rights violations, since those who can least afford to suffer tend to be victims. Usually only the poorest of the poor, the displaced, the infirm, the disabled, and children suffer from such calculated or foreseeable inhumanity. The denial of food or medicine and medical supplies can lead to slow, painful, inhumane deaths - not among enemy combatants and official elites, but among the poor, the disadvantaged, and children. It is particularly egregious for any person to use the denial of food or medicine and medical supplies as a governmental tactic or political weapon. All such denials must be exposed and opposed. ..
In a given context, denials of these types also violate related prohibitions under the laws of war termed "human rights in times of armed conflict. and constitute serious war crimes. It has long been recognised that there is a Civil war occurring in Sri Lanka that has reached at least the level of an insurgency"- thus implicating common Article 3 of the 1949 Geneva Convention ... (Indeed).. It is more appropriate to consider that the armed conflict (in the island of Sri Lanka) lasting more than a decade in which the Tamil people are fighting for self-determination has reached beyond an insurgency as such and implicates Protocol I to the Geneva Conventions...
Common Article 3 reflects customary international law, and several tenets of customary international law are mirrored in Protocol II.. Human rights norms are also mirrored in the Geneva Conventions. For example, common Article 3 requires that the government treat "humanely" all those "taking no active part in the hostilities. Moreover, common Article 3 expressly provides that it shall be prohibited "at any time and in any place whatsoever with respect to the above-mentioned persons" to engage in cruel treatment" of such persons as well as "outrages upon personal dignity, in particular humiliating and degrading treatment." The protections found in common Article 3 and in Protocol II reach a state's own nationals....
In case of an armed conflict of an international character, common Article 3 continues to apply as a customary set of minimum standards....As explained below, there are several allegations and recognitions with respect to the denial of food, the denial of medicine and medical supplies, and the denial of freedom from arbitrary and inhumane detention and controls, implicating common Article 3 and Articles 16, 23, and 24, as well as various articles in Protocol II.
Moreover, if specific intent to commit these types of denials is shown, the denials can even constitute international crimes of genocide. These international crimes implicate not merely individual responsibility, but also the duty of the government to seek out, arrest, and initiate prosecution or extradition of those reasonably accused of such crimes...
As demonstrated in this Essay, there are serious allegations and significant recognitions of human rights violations in Sri Lanka relating to the right to adequate food, the right to adequate medicine and medical supplies, and the right to freedom from arbitrary and inhumane detention and controls. Such denials are sustained by governmental censorship, denials of access to certain areas for investigative purposes, and intimidation of non governmental organisations (NGOs), which in turn involve violations of the human right to transnational freedom of speech. Moreover, these denials are sustained by the lack of adequate governmental investigations, arrests, and prosecutions of alleged perpetrators - patterns that facilitate an air of impunity...
Denial of Adequate Food
"There are several serious allegations and significant recognitions of failures of the government of Sri Lanka and its officials, officers, and agents to provide adequate and available food to populations in northern regions, including allegations that crops have been intentionally destroyed.
There are also allegations that these failures are often deliberate: that the failure to provide adequate food is used as political tactic or weapon of war against non-combatants in the northern regions for various purposes. Such purposes allegedly include the intent to break down civilian support processes so that the civilians are forced to move to detention centres or government controlled areas; the intent to assure suffering, insecurity, and thus, instability in various regions; the intent to engage in punishments or reprisals against unsympathetic civilians and the intent to keep food out of the hands of insurgent forces.
There are also allegations that, if not deliberate, the government's failures to provide adequate and available food are the result of government policies pursued in the context of known starvation and malnutrition, despite the high likelihood that such polices will result in further starvation and malnutrition....
Under human rights law, there is a recognised right to adequate and available food......whatever the full contours and permeations of the right to food might be, it is clear that it constitutes a violation of the human rights law to deny adequate food to a given population. Moreover, it would be especially unlawful and egregious to deny the right to adequate food as government tactic to control certain persons or as a weapon of war. The most egregious violations include denials of food and medicine or medical supplies, especially for children.…"
"If food is likely to be used by both the general population and enemy combatants, the destruction or denial of food, in circumstances where one can reasonably foresee that the general population will suffer, will necessarily involve the indiscriminate use of food as a weapon."
"[these] denials also violate related prohibitions under the laws of war, and constitute serious war crimes... Fear of food falling into the hands of enemy combatants is not an excuse for denying food to the civilians... starvation even of enemy combatants, seems necessarily inhumane because it involves unnecessary and lingering death and suffering.."
Denial of Medicine and Medical Supplies
"There are several serious allegations -and significant recognitions of failures of the government of Sri Lanka and its officials, officers, and agents to provide adequate and available medicine and medical supplies to populations in northern regions. As in the case of the denial of food, there are allegations that these failures are often deliberate and constitute a political tactic or weapon of war. Similarly, there are allegations that even if the government's acts are not deliberate, some of these failures are the result of governmental policies pursued in the context of inadequate supplies of medicine and medical supplies and, thus, with highly foreseeable consequences that these policies will result in greater shortages and the denial of medical care...
... within the 1997 (US State Department) Sri Lanka Country Report, however, one finds a shocking confirmation of war crime policies and activities with respect to medicine and medical supplies… War crime policies are further documented in the 1998 (US State Department) Sri Lanka Country Report…
More shocking is the (US State Department) recognition that, ‘the government refused to permit relief organisations to provide medical attention to wounded LTTE fighters.
....Common Article 3 of the 1949 Geneva Conventions, in addition to its general duty of humane treatment and prohibition of cruel treatment" noted above, contains the specific requirement that "the wounded and sick shall be collected and cared for." The government's refusal of medical treatment of wounded insurgents is a violation of common Article 3
Moreover, the intentional failure to provide adequate medicine, other medical supplies and medical treatment or a policy of denial and neglect involving similar and foreseeable consequences would violate the prohibition of "cruel treatment" and the duty to treat civilians "humanely."
Further, these government actions would constitute humiliating and degrading treatment" of those forced to suffer the lack of adequate health care, and they would constitute a clear violation of the duty to collect and care for those who are wounded or sick.
As the authoritative commentary by the International Committee of the Red Cross (ICRC} adds, the duty to respect and protect the wounded and sick is "a categorical imperative which cannot be restricted. Therefore, the intentional withholding of medicine and medical supplies from LTTE controlled areas, as recognised by the State Department, is a clear violation of common Article 3 and a war crime.
This is true whether or not medicine and medical supplies were foreseeable destined solely for use by enemy combatants or enemy wounded and sick. Medicine and medical supplies are neutral and protected property in time of armed conflict, and may not be withheld.
In the case of an armed conflict of an international character, additional protections relating to medicine, medical supplies, and medical treatment and facilities are recognisable. For example, Article 38 of the Geneva Civilian Convention recognises the right of protected persons "if their state of health so requires, [to] receive medical attention and hospital treatment."
Article 23 adds the general duty of signatories to the Geneva Convention to allow, the free passage of all consignments of medical and hospital stores."
In occupied territory, as recognised in Article 55, there is a "duty, of ensuring the food and medical supplies of the population" and, "in particular, [to] bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate. Article 56 adds: "To the fullest extent of the means available to it . . . [there is a] duty of ensuring and maintaining . . . the medical and hospital establishments and services, public health and hygiene in the occupied territory. Again, medicine and medical supplies are considered neutral property and may not be diverted even from enemy hands.
Among the fundamental guarantees listed in Article 75 of Protocol I to the Geneva Conventions is the prohibition of "violence to . . . health, or physical or mental well-being of persons. Among the fundamental guarantees listed in Article 4 of Protocol II to the Geneva Conventions, applicable in case of an armed conflict not of an international character, one also finds the prohibition of "violence to . . . health and physical or mental well-being of persons. The use of medicine and medical supplies as a weapon of war would certainly thwart the policies that lie behind the prohibition of violence to health and wellbeing.
Conclusion
"...The pattern of behaviour established by the government’s refusal to allow non-governmental and HRTF investigations, as well as the refusal to adequately investigate denials of human rights, coupled with evidence of government impunity, constitute circumstantial evidence of the policy of denial of rights noted in all three sections of this Essay...
Serious violations of basic human rights and humanitarian law occur in Sri Lanka when food, medicine, and medical supplies are used as political weapons.
Those least able to cope, especially children, are the primary victims of such criminal tactics. Such details must be exposed, and the (US) Country Reports should address the misuse of food and medicine, and medical supplies in Sri Lanka and wherever else such illegal weapons are employed...
Under Article 56 of the U.N.Charter, members have a legal obligation to respect and ensure respect for human rights such as the rights to food and basic medical care. Similarly under the common Article 1 of the Geneva Conventions, signatories have an obligation to respect and to ensure respect for Convention precepts "in all circumstances".
It is time for the international community to recognise that, in addition to medicine and medical supplies, food should always be treated as neutral property during an armed conflict. Because of highly predictable consequences, both short term and long term, food should never be used as a weapon of war.
Moreover the international community should strive to assure that corridors for the free passage of food and medicine and medical supplies are negotiated or imposed during any armed conflict. For the children and others who suffer, criminal and civil sanctions are inadequate and come too late, if at all." (Courtesy: Vanderbilt Journal of Transnational Law Vol. 31;Number3:May 1998)
The UN Committee on Economic, Social and Cultural Rights, at its 25th meeting held on 13 May 1998 declared:"7.The Committee expresses its grave concern regarding the situation of an estimated 800,000 displaced persons, many of whom have been living in temporary shelters for the past 15 years, because of the armed conflict, and who lack basic sanitation, education, food, clothing and health care. It is reported that Tamil families who were forced by the military to leave their ancestral villages in the Welioya region are among these displaced persons.
8. The Committee is alarmed by the results of an independent survey estimating the incidence of under nourishment of women and children living in these shelters to be as high as seventy percent.... ." (Concluding Observations of the UN Committee on Economic, Social and Cultural Rights on the Report submitted by Sri Lanka under Articles 16 and 17 of the Covenant - E/C.12/1/Add.24, 13 May 1998)
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