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The End Days of the Fourth Eelam War: Sri Lanka's Denialist Challenge to the Laws of War
Published online by Cambridge University Press: 31 January 2022
Abstract
During the final months of Sri Lanka's 2006–2009 civil war, Sri Lankan armed forces engaged in a disproportionate and indiscriminate shelling campaign against the Liberation Tigers of Tamil Eelam (LTTE), which culminated in the deaths of tens of thousands of civilians. Conventional wisdom suggests that Sri Lanka undermined international humanitarian law (IHL). Significantly, however, the Sri Lankan government did not directly challenge such law or attempt to justify its departure from it. Rather, it invented a new set of facts about its conduct to sidestep its legal obligations. Though indirect, this challenge was no less significant than had Sri Lanka explicitly rejected those obligations. Drawing on Clark et al.'s concept of denialism, this article details the nature of Sri Lanka's challenge to the standing of IHL. At the core of its denialist move, Sri Lanka maintained that while the LTTE was using civilians as human shields, government forces were adhering to a zero civilian casualty approach. With this claim, Sri Lanka absolved itself of any responsibility for the toll inflicted on civilians and sealed its conduct off from the ambit of IHL. This case illustrates how actors can considerably undermine the law using strategies of contestation far more subtle than direct confrontation.
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- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the Carnegie Council for Ethics in International Affairs
References
NOTES
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91 Office of the United Nations High Commissioner for Human Rights, Report of the OHCHR Investigation on Sri Lanka, p. 146. See also Rajapaksa, “Address by His Excellency President Mahinda Rajapaksa to the Diplomatic Community in Colombo on Current Developments in Sri Lanka, 2009”; and the UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. ii.
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97 The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 13.
98 Ibid., p. 21.
99 Ibid., p. 19.
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101 Aryasinha, “Time to Act”; Bogollagama, “Foreign Minister Calls for LTTE Listing as Terrorist Group”; and Ministry of Foreign Affairs, Sri Lanka, “Sri Lanka Statement at the Sub-committee on Human Rights of the European Parliament.”
102 Weiss, The Cage, p. 234.
103 Tikku, After the Fall, p. 146.
104 Rajapaksa, “Address by His Excellency President Mahinda Rajapaksa to the Diplomatic Community in Colombo on Current Developments in Sri Lanka, 2009.”
105 Bogollagama, “Winning Counter-Insurgency Campaigns.”
106 “Mahinda Samarasinghe,” interview by Stephen Sackur; Ministry of Foreign Affairs, Sri Lanka, “Sri Lanka Statement at the Sub-committee on Human Rights of the European Parliament”; and the UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 34.
107 The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 49.
108 Ibid., p. 37.
109 Ibid., p. 49.
110 The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 29.
111 “Mahinda Samarasinghe,” interview by Stephen Sackur (words of Mahinda Samarasinghe).
112 The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. ii; U.S. Department of State, Report to Congress on Incidents during the Recent Conflict in Sri Lanka, p. 3; and Petrie, Report of the Secretary-General's Internal Review Panel on United Nations Action in Sri Lanka, p. 10.
113 The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 49.
114 Ibid., p. 59.
115 Petrie, Report of the Secretary-General's Internal Review Panel on United Nations Action in Sri Lanka, p. 65.
116 The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 40.
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118 Ministry of Foreign Affairs, Sri Lanka, “Sri Lanka Statement at the Sub-committee on Human Rights of the European Parliament.”
119 Bogollagama, “Winning Counter-Insurgency Campaigns”; Rajapaksa, “Address by His Excellency President Mahinda Rajapaksa to the Diplomatic Community in Colombo on Current Developments in Sri Lanka, 2009.”
120 Bogollagama, “Winning Counter-Insurgency Campaigns.”
121 The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, pp. iii–iv.
122 International Crisis Group, War Crimes in Sri Lanka, p. 11.
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124 Whereas this incident was witnessed firsthand, satellite imagery was relied on for many of the other incidents. The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 186.
125 Petrie, Report of the Secretary-General's Internal Review Panel on United Nations Action in Sri Lanka, p. 10.
126 Ibid., p. 59.
127 International Crisis Group, War Crimes in Sri Lanka, p. 13; Somini Sengupta, “U.N. Staff and Hospital Come under Shelling as Sri Lanka Fights Cornered Rebels,” New York Times, January 27, 2009; and Weiss, The Cage, p. 87.
128 Rajapaksa, “Address by His Excellency President Mahinda Rajapaksa to the Diplomatic Community in Colombo on Current Developments in Sri Lanka, 2009.”
129 Office of the United Nations High Commissioner for Human Rights, Report of the OHCHR Investigation on Sri Lanka, p. 146; and the UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 48.
130 Weiss, The Cage, p. 87.
131 Gordon and Perugini, Human Shields, p. 147.
132 Ibid., p. 149.
133 Bogollagama, “Winning Counter-Insurgency Campaigns.”
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139 “Mahinda Samarasinghe,” interview by Stephen Sackur; Ministry of Foreign Affairs, Sri Lanka, “Sri Lanka Statement at the Sub-committee on Human Rights of the European Parliament”; and the UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 34.
140 Petrie, Report of the Secretary-General's Internal Review Panel on United Nations Action in Sri Lanka, p. 65.
141 Bogollagama, “Winning Counter-Insurgency Campaigns”; Rajapaksa, “Address by His Excellency President Mahinda Rajapaksa to the Diplomatic Community in Colombo on Current Developments in Sri Lanka, 2009.”
142 Office of the United Nations High Commissioner for Human Rights, Report of the OHCHR Investigation on Sri Lanka, p. 146; Rajapaksa, “Address by His Excellency President Mahinda Rajapaksa to the Diplomatic Community in Colombo on Current Developments in Sri Lanka, 2009”; and The UN Secretary-General's Panel of Experts, Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, p. 48.