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Paper on Tamils’ Right to Access to Humanitarian Assistance

April 3, 2009

This is a paper by Dr Sampavi Parimalanathan on ‘Tamils’ Right to Access to Humanitarian Assistance’ for the Conference of World Tamils

Conference of World Tamils
25th and 26th March 2009, London, United Kingdom

The unilateral withdrawal from the ceasefire by the GoSL and its escalation of military operations in the north of the island has seen the plight of Tamil civilians in both the conflict zone and the concentration camps in GoSL-held areas deteriorate exponentially. The GoSL’s order in September 2008 for all UN and international aid agencies to vacate the areas held by the Liberation Tigers of Tamil Eelam (LTTE), and their continuing denial of humanitarian access to Tamil civilians are not only morally wrong, but also legally.

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  1. fastuntoactionaust permalink
    April 3, 2009 8:23 am

    Conference of World Tamils
    25th and 26th March 2009, London, United Kingdom

    Humanitarian Situation in the NorthEast of the Island of Sri Lanka
    Mr. Arjunan Ethirveerasingam, Director, Coordination Office for Humanitarian and Human Rights of Tamils (COHHRT)

    The 330,000 internally displaced persons (IDPs) in the LTTE-administered Vanni are facing a catastrophic humanitarian situation. The Government of Sri Lanka (GoSL) has severely limited, and at times completely blocked, the transportation of food and medicine to the IDPs over the past 18 months. Since December 2008 the GoSL has become even more restrictive regarding the supply of essential humanitarian assistance into the area.

    Additionally, the GoSL has engaged in repeated, indiscriminate and targeted bombing and shelling of IDP settlements and hospitals by the Sri Lanka Army (SLA) and Air Force (SLAF). Estimates based on first-hand information obtained from reliable ground sources state more than 3546 civilians have been killed and more than 8370 have been injured between 1 January 2009 and 23 March 2009 alone – a total of 11,916 casualties or 148 per day . There have also been over 20 attacks on hospitals and medical facilities in the past 6 months . Recently, Sri Lankan Defence Secretary Gotabaya Rajapakse defended the GoSL’s military actions against hospitals by saying, “No hospitals should operate outside the safety zone…everything beyond the safety zone is a legitimate target” .

    Whilst targeting hospitals outside ‘safe zones’ that the GoSL unilaterally declared in February 2009, there is considerable evidence of the SLA and SLAF targeting hospitals, schools and civilian dwellings within these ‘safe zones’. Government health officials and the International Committee of the Red Cross (ICRC) have estimated that on average 80 civilians are being killed each day both inside and outside these ‘safe zones’. Furthermore, there is evidence of cluster bombs and white phosphorous weapons being used in these attacks. The GoSL has also used multi-barrel rocket launchers which are not precise enough to guarantee that the civilian population in the vicinity will not be harmed making their use in areas where civilians are located a violation of IHL.

    In addition to these attacks on hospitals and civilians, the GoSL has placed a humanitarian blockade and media blackout on the Vanni. Access to UN agencies and international non-governmental organisations (iNGOs) has been denied since September 2008 when the GoSL ordered them to leave the area – an order that all organisations, other than the ICRC, complied with without any public protest. However, in February 2009 even the expatriate ICRC staff left the area effectively removing the last remaining international witness. The media has also been prohibited from entering the Vanni since January 2007.

    The GoSL has also established concentration camps where IDPs are arbitrarily detained indefinitely under close military guard. The IDPs enjoy no freedom of movement and contact with the outside world is severely restricted. During the ‘screening process’ for IDPs who arrive from the LTTE-administered areas, relatives report that hundreds of men and women, some of whom are only teenagers, have been taken into secret detention . A Member of Parliament, Mr. S Gajendran said on 14 February 2009 that around 190 Tamil males were murdered and 130 females were taken for sexual abuse from the IDPs being screened by the GoSL forces, citing information he had received from witnesses. Requests by international observers to monitor the ‘screening process’ in order to ensure that international standards were being met, have to date been rejected by the GoSL. Tamil civilians detained, as well as those in the concentration camps, are subjected to torture, rape, enforced disappearance and extrajudicial execution.

    The concentration camps also do not have adequate water, food and sanitation facilities. Medical care of IDPs in GoSL-held areas is insufficient. Patients, even children, are not allowed to have family stay with them in the hospital and due to lack of medical facilities, patients are discharged well before medically acceptable. The hospital is essentially run by the military and guarded even more closely than the camps .

    The Tamils in the LTTE-administered Vanni do not trust the GoSL to safeguard their lives or their futures. The vast majority of those still in the LTTE-administered areas do not wish to come to the GoSL-held areas where they will be subjected to rape, torture, extrajudicial executions and disappearances and those that survive these human rights abuses will be placed in concentration camps where they would, according to the GoSL’s own project proposal, essentially be prisoners for up to 3 years.

    Tamils’ Right to Access to Humanitarian Assistance
    Dr. Sampavi Parimalanathan

    The unilateral withdrawal from the ceasefire by the GoSL and its escalation of military operations in the north of the island has seen the plight of Tamil civilians in both the conflict zone and the concentration camps in GoSL-held areas deteriorate exponentially. The GoSL’s order in September 2008 for all UN and international aid agencies to vacate the areas held by the Liberation Tigers of Tamil Eelam (LTTE), and their continuing denial of humanitarian access to Tamil civilians are not only morally wrong, but also legally.

    The Geneva Convention of 1949 and two Additional Protocols of 1977 outline that civilians have a right to obtain humanitarian access and that aid agencies have a right to insist on providing such assistance. Thus, under International Humanitarian Law (IHL) Tamil IDPs have a right to receive humanitarian assistance, the ICRC and other aid organisations have a right to offer such assistance and the GoSL has an obligation to accept such offers of humanitarian assistance. In the current situation of the GoSL not providing consent, aid agencies can lawfully act unilaterally in undertaking humanitarian relief action.

    Hence, the GoSL’s current wilful impeding of relief supplies is in breach of IHL and is categorised as a war crime in the Rome Statute of the International Criminal Court .

    In particular, it should be noted that 14 Tamils civilians have died in the last month due to starvation alone . The two Additional Protocols to the Geneva Convention of 1949 prohibit starvation of civilians as a method of warfare, and hence the GoSL is again in breach of IHL. The Rome Statute of the International Criminal Court further states that “[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival” can be considered a war crime.

    Interestingly, according to Article 3 common to the four Geneva Conventions, the GoSL cannot stop humanitarian action in a part of its territory which it does not actually control. Thus, to gain access for humanitarian assistance to the civilians in LTTE-administered areas, aid organisations need only obtain permission from the LTTE on the ground. Such has happened in the case of the cross border relief operations in Eritrea and Tigre province in Ethiopia during the famine and civil war .

    The GoSL which practices extensive human rights violations is currently relying on sovereignty as a shield to guarantee protection from scrutiny, thus enabling continuation of its practices free from outside interference. According to the Nuremberg code of ‘crimes against humanity’, governments engaged in massacres are considered illegal. Hence, the Sri Lankan State, which is violating human rights and cannot or does not meet its obligations can be termed illegitimate, and hence the individuals of that country have a right to ask for and receive assistance, and the international community has a right and obligation to respond in a manner most benefiting the individual, even if it means ignoring Sri Lanka’s sovereignty.

    The current treatment of Tamils IDPs in detention camps in GoSL-held areas also breaches international law. The GoSL’s blanket detention policy of placing anyone fleeing the Vanni into concentration camps violates its obligations under international human rights law and IHL which prohibit arbitrary detention of civilians during internal armed conflicts .

    Aid agencies are also denied free access to the concentration camps and in the few instances where access was allowed, there has been heavy military supervision of the independent visitors. These detention centres also do not have adequate water and sanitation facilities, and food provision to the Tamil IDPs is grossly insufficient. The situation of the IDPs receiving medical assistance in GoSL-held areas is also dire. Despite clearly being unable to handle the recent influx of 2500 patients the GoSL has ordered its medical staff not to ask assistance from international agencies .

    The GoSL’s denial of access to aid agencies to the IDPs and insufficient provision of the basic necessities needed for survival (food, water, medical assistance) further breaches international law which states that the occupying power has a definite obligation to maintain at a reasonable level the material conditions under which the population of that territory lives, and in the instance where it fails to do so, it is obliged to accept assistance from aid agencies.

    Tamils IDPs in detention centres are not simply restricted to the Vavuniya camps, but also exist in Jaffna, Mannar and along the East of the island, where they too are subject to such treatment by the GoSL.

    The GoSL had recently stated its plans to house all the IDPs from the Vanni in new camps for up to 3 years. Following protests from aid and human rights groups, the GoSL later said it intends to resettle most of the IDPs by the end of 2009. However, given its track record, it can only be assumed that future camps will also breach international law and these IDPs will also be confined indefinitely. According to the United Nations, over 350,000 civilians are displaced in GoSL-held areas to date due to war, with 90,000 since April 2006. The majority of the IDPs are farmers and fishermen and their ability to earn a livelihood is severely restricted. Schooling is sub-standard or not provided at all, and the psychological effect of long term detention is immense. No attempt has been made by the GoSL to facilitate return of these IDPs back to their homes. Furthermore, the inability of these detainees to return to their homes (many of which are military occupied in ‘High Security Zones’) breaches their fundamental human rights.

    Given this pattern of past, present and convincing signs of future gross violations of human rights by the GoSL, suggestions of forcible evacuations of Tamil civilians from the Vanni on humanitarian grounds is not a feasible solution to the humanitarian crisis at hand. Furthermore, it breaches the Tamil civilians’ fundamental human right to remain on their land.

    One needs to consider the ethical question of deliberately evacuating or uprooting Tamil civilians from the Vanni into GoSL-held areas in the name of a humanitarian mission, when it is clearly apparent that these civilians will be deprived of all their basic rights once this takes place. They will be made vulnerable to arbitrary detention for an indefinite period of time and forced to live in very poor conditions. The civilians’ concerns should be taken into consideration before such an initiative is even considered.

    In fact, just last month Karen Stewart of Medicins Sans Frontieres said, “patients were told they would go to the hospital for a few days and then go back to the Vanni again. But later they heard they couldn’t go back…People regretted coming here, saying they would prefer dying with their family to being in a camp.” This shows that IDPs, forced to flee the conflict zone due to the constant indiscriminate shelling, would still prefer to stay in the Vanni rather than the GoSL-held areas.

    With the current state of concentration camps and poor living conditions endured by the IDPs, it is evident that the GoSL is either incapable of or unwilling to provide the Tamil civilians with an acceptable standard of living. Even if the GoSL was to accept aid from iNGOs to provide relief to the forcibly evacuated Tamil civilians, no guarantee exists that the GoSL will not, as it did in September 2008, order the iNGOs and UN agencies to leave the concentration camps where the Tamil IDPs are to be detained. This will once again make the Tamil IDPs vulnerable to further violations of their human rights in the absence of international witnesses.

    Forcing Tamils to leave their land also has echoes of past colonisation schemes pursued by GoSL, especially obvious in the East.

    It should also be noted that along with restricting essentials such as food, water and medical supplies to the Tamil civilians in the Vanni, the GoSL has performed illegal military operations, such as the bombing of hospitals and civilian locations in the Vanni region inside and outside its self-declared ‘safe zone’ in direct breach of international law . There is also reliable evidence of the use of cluster bombs and white phosphorous weapons by the GoSL in these attacks which constitutes serious violations of IHL .

    Hence, forcible evacuation of Tamil civilians from the Vanni will indirectly condone the actions of the GoSL which has breached and continues to breach IHL and international human rights law in blatant disregard for calls by several members of the international community.

    The GoSL has, through its usage of food and medicine as a weapon of war and its targeted bombing and shelling of IDP settlements and hospitals, sought to force the Tamil civilians to leave the area in which they have chosen to take refuge. Forcible evacuation of civilians would also support the GoSL’s unwritten policy of ethnically cleansing Tamils out of the NorthEast. An example of this continuing strategy can be considered the September 2008 order by the GoSL of UN and aid agencies to abandon the Vanni.

    In addition, forcibly evacuating civilians sets double standards, where in the name of protecting a civilian’s right to safety, their right to choose whether or not to move is denied them.

    Finally, the Universal Declaration of Human Rights states, “political legitimacy arises from the people’s will – it does not descend deductively from the Wesphalian principles of state sovereignty”. Thus, the Tamil people’s will must be determined when considering whether they are to remain in their land or be removed from it.

    In the recent cases of Gaza and Darfur where too a large number of civilians have been victims of war and a large IDP population has resulted, the civilians were not forced to evacuate from their chosen area of residence in spite of similar violence by state authorities. Instead the international community and aid agencies worked to provide humanitarian assistance to the civilians, and both conflicts were discussed in the UN General Assembly and UN Security Council on numerous occasions – something yet to be seen regarding the plight of Tamil civilians residing in the Vanni.

    At this moment, the focus of the international community should be on ensuring that humanitarian aid reaches the Tamil areas and a ceasefire is immediately implemented to prevent further causalities, rather than removing Tamils from their land and delivering them into the hands of an awaiting perpetrator.

    According to International Humanitarian Law the Tamils have a right to access to humanitarian assistance. The international community has the right and duty to provide it, not just legally but also morally.

    Having felt abandoned by the international community, the UN and international aid agencies who withdrew without any signs of protest at the GoSL’s September 2008 order for them to vacate the Vanni, and their continuing silence and acceptance of the GoSL’s ban on food, medical and humanitarian aid to the Tamil civilians, the Tamil Diaspora have embarked on a mission to take the aid to the civilians themselves. The ship, ‘Vananga Man’ or ‘Mercy Mission’, will have its official launch on 31 March 2009 in London. It will carry food, medical supplies, aid and on board will be doctors, aid workers and journalists .

    Recommendations

    The International Community should:
    1. immediately initiate an impartial and effective internationally monitored ceasefire between the GoSL and the LTTE;
    2. pressure the GoSL to accept a fully staffed Office of the High Commissioner of Human Rights (OHCHR) with adequate powers to monitor and report on rights violations throughout the country;
    3. require that the GoSL immediately allow full and unfettered access to the Vanni to:
    4.1. humanitarian relief: food, medicine, fuel, shelter, etc.;
    4.2. UN Agencies, the ICRC, international humanitarian organisations and their expatriate staff – and allow them to maintain a permanent presence there;
    4.3. the national & international media;
    4. require that the GoSL end the blockade, embargo, and restrictions on all goods and services to civilians, and ensure a return to normalcy in the Vanni;
    5. dismantle the concentration camps in GoSL-held areas immediately and allow free movement to the IDPs so that they may travel to stay with relatives or make other plans;
    6. ensure the GoSL immediately ‘reconstructs’ the Tamil population as it existed prior to the displacement;
    7. ensure the return of the IDPs to their own lands and homes immediately, especially those whose homes are in the so called ‘High Security Zones’.

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