Opinion By David Coltart|I was at first glance impressed that a Queens Counsel has been included in the Commission of Enquiry into the military shootings of civilians but on further enquiry understand why he has been included. It is such a shame that President Mnangagwa didn’t just choose a panel of people which victims could trust to have an open mind. It would be so much better to have Commissioners who do not have a predilection for the military.
What follows are Rodney Dixon QC’s closing remarks into the enquiry into the Sri Lankan military’s killings of civilians in 2014, which gave enormous cover to that government regarding actions which appalled the human rights community.
“8. Particular attacks and the overall pattern of attacks must fall to be assessed on the particular circumstances at the time and how they would have been known to the commanders charged with the mission of winning (and ending) the war. It is clear that a well-established set of rules under IHL would permit some loss of civilian lives in the specific circumstances of the final phase of the conflict in the Vanni. It may also be argued that the justifiable number of such losses could take account of the opposing party’s unlawful reliance on the civilian population, which in the present case was by all accounts substantial and widespread and likely in the mid- and longer- term to lead to yet more substantial loss of life.
49. It is clear from the above analysis of the law and from authoritative commentary (from the ICRC and from legal authorities of the ICTY and other courts) that assessments of the lawfulness of attacks must take account of the reaction of commanders on the ground to the situations they faced. Post facto, such ‘would-be’ assessments can only be reconstructed by top-level military personnel from countries completely uninvolved in the conflict. This is an exercise those criticising the Government of Sri Lanka have not performed.
Conclusion
50. The conclusions expressed in this Opinion are unavoidably confined by the available evidence about the factual circumstances and are without the benefit of a full investigation into the particular circumstances of each attack.
51. However, the Opinion sets out a legal framework within which the Government forces could have been permitted to act without transgressing the limits of IHL, and against which their actions can be measured in accordance with properly defined legal standards.
52. Any future inquiry, whether by the UN or any other body, is strongly encouraged to draw on this legal framework for its work, and to avoid making findings based on generalised statements about the law that lack rigorous analysis. Similarly unfortunate would be any such inquiry failing to understand the need for calculations to be made of what, for any particular attack, would have been the assessments of the putative reasonable commander in the field.
Sir Geoffrey Nice QC
Rodney Dixon QC
London
22 August 2014”